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Media Alerts - Silvester v. Harris
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March 8, 2017
  Silvester v. Harris
Headline: Ninth Circuit panel applies intermediate scrutiny standard in upholding California's waiting period law as relates to firearms purchasers who previously passed background checks.

Areas of Law: Constitutional Law; Second Amendment Rights; Waiting Period Laws

Issues Presented: The panel considered whether California's 10-day waiting period to take possession of any firearm violated the Second Amendment rights of subsequent purchasers where those purchasers passed the required background checks in less than the required 10-day wait period.

Brief Summary: The panel applied intermediate scrutiny in this case of first impression. The 10-day waiting period, as applied to three specified classes of "subsequent purchasers," was found to reasonably fit the State's important interest in promoting safety and requiring a cooling-off period to deter violence resulting from impulsive purchases of firearms.

Significance: The Supreme Court expressly left undecided the determination of the level of scrutiny applied to laws or regulations relating to individual rights under the Second Amendment. The Ninth Circuit panel determined that intermediate scrutiny should be applied to regulations which do not substantially burden the Second Amendment.

Extended Summary: This case involved a challenge to California's required 10-day wait period between the purchase and receipt of any firearm as it applied to purchasers belonging to specified classes. The 10-day waiting period was not challenged in its entirety. Instead, the challenge was limited to how it applied to three classes of purchasers. The first class of purchasers included individuals who have previously registered a firearm in the Automated Firearms System (AFS) database. The second class consisted of those purchasers with a concealed weapons permit. The final class included those purchasers who possessed a "certificate of eligibility" (COE) in the AFS. Plaintiffs did not assert that belonging to one of these classes meant they should receive the weapon on the same day as a purchase, but rather if their application was processed faster than 10 days and the purchaser was part of one of these three classes, then they should receive the weapon prior to the end of the 10-day wait period.

The district court applied intermediate scrutiny and found in favor of the plaintiffs, holding that the State's interest in a 10-day cooling off period did not justify denying the receipt of a firearm to purchasers belonging to these three classes where their applications were processed faster than ten days. The State appealed.

The panel's decision and reasoning stemmed from the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the District of Columbia banned all handguns and operable hunting rifles in the home. This case laid out the analysis required in a Second Amendment challenge. First, there must be a determination of whether the regulation is within the scope of the Second Amendment right. Next, the regulation must survive the appropriate level of scrutiny. However, the question as to what level of scrutiny should be applied was left unanswered, as the regulation in Heller would not have passed any level of scrutiny because it placed too heavy of a burden on the right to self-defense. The only determination made regarding the level of scrutiny was the express rejection of the rational basis standard of review.

The Supreme Court's decision to leave the standard of review open to either strict scrutiny or intermediate scrutiny led the panel to examine Ninth Circuit law that has developed since the decision in Heller. The two-step test of Heller has been consistently used with the second step requiring a determination of the level of scrutiny applicable. In Jackson v. City & County of San Francisco, the Ninth Circuit stated that a determination of the level of scrutiny requires consideration of: "(1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on that right." 746 F. 3d at 960-61 (9th Cir. 2014). This established three types of categories in which a law may fall: (1) the law will be unconstitutional on any level of review; (2) met with strict scrutiny; or, (3) met with intermediate scrutiny depending upon the severity of the burden it imposes upon the Second Amendment right. A law falls into the first category will be unconstitutional under any level of review. A regulation falls within the second category where it places a substantial burden on Second Amendment rights. If the regulation falls in some other category, then it shall be met with intermediate scrutiny.

Intermediate scrutiny requires a determination of whether the regulation "reasonably fits" with an important governmental interest. A determination of an important governmental interest can be identified by looking to the history and operation of the California law. The history of the waiting period for firearms purchases began in 1923 and has been in continuous existence since. Waiting period laws began as a ban on certain firearms from being delivered on the day of the purchase. In addition to the waiting period, the law created the Dealer Record of Sale (DROS), which is presently used electronically. Throughout the history of the waiting period, it has been extended up to as long as fifteen days. The extensions were reflective of the State's need to conduct more extensive background checks and were only reduced when technology permitted faster processing. The 1996 reduction of wait period time to ten days included a legislative explanation for the waiting period laws. The governmental interests asserted were: (1) the time required to conduct a proper background check, and (2) the need for a "cooling off" period.

The panel applied the two-step test for intermediate scrutiny to the waiting period law. There must be important governmental objectives behind the law, and the law must be reasonably suited to achieve those objectives. It was uncontested that the State's interests in promoting safety and reducing gun violence were important. The dispute was over whether the 10-day waiting reasonably fit those objectives. The panel concluded there was a reasonable fit because the waiting period allowed for background checks to be properly conducted and created a cooling-off period even for those purchasers who already owned a firearm. For these reasons, the 10-day waiting period for these classes of purchasers was held to be constitutional.

To read the full opinion, please visit:

Panel: Sidney R. Thomas, Chief Judge, and Mary M. Schroeder and Jacqueline H. Nguyen, Circuit Judges.

Argument Date: February 9, 2016

Date of Opinion: December 14, 2016

Docket Number: 14-16840

Decided: Reversed the judgment of the district court's bench trial in favor of plaintiffs-appellees. Remanded the case to the court for an entry of judgment in favor of defendant-appellant, the State of California.

Case Alert Author: Greyson Morain

Counsel: Jonathan M. Eisenberg (argued) and Peter H. Chang, Deputy Attorneys General; Mark R. Beckington, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Francisco, California; for Defendant-Appellant.

Bradley A. Benbrook (argued) and Stephen M. Duvernay, Benbrook Law Group PC, Sacramento, California; Donald E.J. Kilmer, Jr., Law Offices of Donald Kilmer, San Jose, California; Victor J. Otten, Otten Law PC, Torrance, California; for Plaintiffs-Appellees.

Anna M. Barvir, Clinton B. Monfort, and C.D. Michel, Michel & Associates PC, Long Beach, California, for Amici Curiae California Rifle and Pistol Association and Gun Owners of California.

Jeremiah L. Morgan, John S. Miles, William J. Olson, Robert J. Olson, and Herbert W. Titus, William J. Olson P.C., Vienna, Virginia; for Amici Curiae Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Institute on the Constitution, and Conservative Legal Defense and Education Fund.

Michael Connelly, Ramona, California, as and for Amicus Curiae U.S. Justice Foundation.

George M. Lee, Seiler Epstein Ziegler & Applegate LLP, San Francisco, California; John R. Lott, Jr., Ph.D., Crime Prevention Research Center, Swarthmore, Pennsylvania; for Amicus Curiae Crime Prevention Research Center.

Marienne H. Murch, Rebecca A. Jacobs, and Simon J. Frankel, Covington & Burling LLP, San Francisco, California, for Amicus Curiae The Law Center to Prevent Gun Violence.

Jonathan E. Taylor and Deepak Gupta, Gupta Beck PLLC, Washington, D.C., for Amicus Curiae Everytown for Gun Safety.

David Skaar and Anthony Basich, Hogan Lovells US LLP, Los Angeles, California; Jonathan E. Lowry, Brady Center to Prevent Gun Violence - Legal Action Project, Washington, D.C.; for Amicus Curiae Brady Center to Prevent Gun Violence.

Author of Opinion: Judge Schroeder

Concurrence: Chief Judge Thomas

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Philip L. Merkel

    Posted By: Glenn Koppel @ 03/08/2017 07:15 PM     9th Circuit  

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