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Duncan v Becerra, Part III

Duncan v Becerra, Part Trois

Last year Judge Benitez issued a stay on the implementation of Proposition 63 as it related to the confiscatory nature of the law related to standard capacity magazines.  That decision, and the resulting opinion, was Duncan v Becerra, Part Un. 

Later he issued his summary judgment (Glorious Decision) that beatified him in our 2A community (we now know him as St. Benitez), creating for a brief period of time that we now refer to as “Freedom Week”.  This decision became Duncan v Becerra, Part Deux.

The State, not surprisingly, appealed his decision to the Ninth Circuit.  Last Thursday, we had oral arguments in front of the three-justice panel in Pasadena.  (Well… actually it was “virtually held” in Pasadena… With the advent of social distancing and remote broadcasting, I have no idea where the individual attorneys and justices were actually… but it does appear, from the background, that Justice Lee has a lovely home library.)

This brings us the beginning of Duncan v Becerra, Part Trois.  Actually, titling this is a little premature since a formal decision won’t be relayed for a minimum of 30 days.  With this whole virus thing, I suspect it may be as long as 60 days before we get a decision.  That all notwithstanding, I am always frustrated when legal talking heads pontificate on oral arguments as a means of predicting the ultimate decision.  Orals typically bear no relationship to the final decision and, while trying to analyze the tone of the questions is interesting, it typically yields little of substantive value. 

(As an aside… I often mention a case my partner, MAJ Taormina, litigated at the appellate level in which his client, literally, couldn’t have cared less if they won or lost.  He submitted his brief and, essentially, refused to participate in the oral arguments.  He was visibly irritated in front of the justices that they were even doing oral arguments on the case, and they tried to bait him into participating by stopping the appellee during their presentation and asking the MAJ what he thought of their position.  The MAJ’s response was golden:  “I’m sorry, I wasn’t listening.”

When the decision was ultimately handed down, the MAJ won.

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With that disclaimer in place, there were some interesting things to glean from the oral arguments that are not necessarily predictive… though, maybe?  Who knows?… What was very interesting were the missives put forth by the State.

The State’s attorney started his presentation and was quickly interrupted by Justice Callahan; she wanted to know two things that were weighing on her mind:  First, should they be interpreting the statute under strict scrutiny?  And, second, does the State wish for the appellate court to review the case de novo?  (De novo literally means fresh, with no deference given to St. Benitez’s objective analysis of the evidence provided at trial.)

The State said strict scrutiny was not the proper level of review and, instead, suggested an intermediate level of review was more appropriate.   However, in the State’s rebuttal period he butchered the definition of strict scrutiny, essentially hamstringing it into an intermediate level of scrutiny, suggesting, perhaps, that they would like an even more watered-down version of intermediate level of review to be promulgated. 

Justice Callahan did not seem particularly persuaded by the State’s line of argumentation or the questioning by her and the other two justices, Lynn and Lee, who took a decidedly adversarial tone.

They were less than thrilled about the State’s request that they review the case de novo. 

The State did concede, under questioning, that a magazine restriction of one round per mag would be too egregious notwithstanding Constitutional scrutiny, but it feels that ten rounds is more than ample for self defense… essentially because it says so.

Erin Murphy… (our side’s attorney) did a very, very good job of bootstrapping the “common use” doctrine into her presentation.  The justices were definitely not adversarial in their questioning of her… more inquisitorial. 

During rebuttal the State dropped a little missive, though, that I thought was probably the best “take away” of the State’s mentality… and it definitely did not sit well with Justice Callahan.   

Justice Callahan had asked (using proper nomenclature… I think she is a gun owner) If she acquired a standard capacity magazine for her “Sig” when it was legal to do so, and she is a law-abiding citizen, does the statute at bar turn her into a criminal?  The State was ultimately forced to conclude that, yes, it does.

The follow-up by the State was that when someone buys property, it comes with the “reasonable expectation” that there may be future regulation of that product.  This can be extrapolated to any product you own… when you buy that microwave oven, you do so with the realization that at some future date, the State (your betters) might tell you that you have to dispose of it for your own good… oh… and the State is not compelled to compensate you for your loss.

We shall see how this, ultimately, plays out… but I will be the first to say, as I turned off the live-feed, I was very, very pleased with how the arguments transpired.

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Comments (6)

  • Lichtenstein Paul Reply

    Great synopsis of the oral arguments Steve. I saw the same thing you did and would add that Erin brought up the fact that the FICA, not sure of the spelling on this, body of information the state was quoting for metrics that related to this case was NOT scientific evidence but more opinion and supposition. The state, in my mind, did not present a strong case at all while Attorney Erin did.

    04/08/2020 at 07:52
  • Warner Carr, MD Reply

    Love these updates. Can’t wait to see what the decision will be. I can’t wait to hear if the Judge turns out to be a Judge or a criminal in the eyes of the State.

    04/08/2020 at 08:29
  • Ari Reply

    “‘reasonable expectation’ that there may be future regulation of that product”….
    Cannot one argue that owing a microwave is a privilege vs. owing a fire are which is a Constitutionally enumerated right. How are the to related?

    04/08/2020 at 11:38
  • Tom Williams Reply

    Thank you so very much for your analysis.
    I watched the oral arguments and was more then a bit lost.
    I love the example of a purchased microwave.
    Be well, stay safe and stay healthy.
    Tom Williams

    04/08/2020 at 11:45
  • Bill Farone Reply

    “Commonly owned or used” worries me unless it is clear that it refers to a firearm type and not specific models. All new guns and many C&R firearms are not commonly used or owned. Even NFA weapons can be considered commonly owned or used in many States. I think you can still own a machine gun in CA if you get a “Dangerous Weapons Permit” if anyone could actually get one. By classification, and requiring a permit no one can get, the firearms class becomes “not commonly owned” thus redefining “infringement”. It is therefore a relatively good thing that the State has decided to nitpick infringement to the level of a 10 round versus an 11 round magazine. But the State won on saying you could only have new weapons of a specific type (semiautomatic pistols) that meet a certain classification (microstamping). Hmmmm…

    04/08/2020 at 14:13
  • Paul Callanan Reply

    Thanks for the analysis and commentary. I also listened to the hearing replay and while I thought Ms. Murphy did well i wish there had been a better response to the States argument that if you want more rounds, just carry more 10-round magazines.

    The State argued that the “average” gun fight only uses 2.5 rounds so a 10 round mag has four times the average available.

    The response started out well taking about a situation of multiple assailants, say in a home invasion, but failed to point out the obvious that multiple mags requires multiple hands, or mag pouches or a chest rig which of course we all sleep in. What if all you have is your phone dialing 911 and your gun? Or are fleeing with an infant and a gun?

    Still the best argument made by Ms Murphy seemed to be that there are millions of standard capacity magazines in common use for lawful purposes and the State’s law is far from a fit of minimal impact to people’s right to accomplish a goal of making an active killer pause between reloads.

    04/08/2020 at 18:50

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