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Silvester v. Harris

United States District Court, E.D. California

August 25, 2014

JEFF SILVESTER, et al., Plaintiffs
v.
KAMALA HARRIS, Attorney General of California, and DOES 1 to 20, Defendants

Decided Date: August 22, 2014.

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For Jeff Silvester, Brandon Combs, Calguns Foundation, Inc., a non-profit organization, The Second Amendment Foundation, Inc., a non-profit organization, Plaintiffs: Victor John Otten, LEAD ATTORNEY, Otten Law, PC, Torrance, CA; Donald E. J. Kilmer, Jr., Law Offices of Donald Kilmer, APC, San Jose, CA.

For Michael Poeschl, Plaintiff: Jason Andrew Davis, LEAD ATTORNEY, Davis and Associates, Temecula, CA; Victor John Otten, LEAD ATTORNEY, Otten Law, PC, Torrance, CA; Donald E. J. Kilmer, Jr., Law Offices of Donald Kilmer, APC, San Jose, CA.

For Kamala D. Harris, Attorney General of California (in her official and individual capacities), Defendant: Jonathan Michael Eisenberg, LEAD ATTORNEY, Kim L Nguyen, Office of the Attorney General, Los Angeles, CA; Peter H. Chang, Office of the Attorney General, Department of Justice, San Francisco, CA.

For Brady Center to Prevent Gun Violence, Amicus: Neil R. O'Hanlon, LEAD ATTORNEY, Hogan Lovells Us LLP, Los Angeles, CA.

OPINION

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ANTHONY W. ISHII, SENIOR DISTRICT JUDGE.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case deals with the constitutionality of various firearms related statutes. Plaintiffs challenge the 10-day waiting period imposed by California Penal Code § 26815(a)[1] and § 27540(a),[2] and approximately 18 categories of exemptions to the waiting period found in Penal Code § 26000 et seq. and § 27000 et seq. Plaintiffs contend that the 18 exemptions violate the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs contend that the 10-day waiting periods violate the Second Amendment. Specifically, Plaintiffs contend that the 10-day waiting periods violate the Second Amendment as applied to those who already lawfully possess a firearm as confirmed in the Automated Firearms System (" AFS" ), to those who possess a valid Carry Concealed Weapon (" CCW" ) license, and to those who possess a valid Certificate of Eligibility (" COE" ). See Doc. No. 91 at 29:23-30:8. Plaintiffs do not challenge the 10-day waiting period on a facial basis, do not challenge the waiting period laws as applied to first time firearms purchasers, and do not challenge the requirement that firearm purchasers pass a background check. See Doc. Nos. 91 at 17:13-15; 93 at 3:1-3; 98 at 16:10-15; and 105 at 7:6-8, 13:17-20.

In March 2014, the Court conducted a bench trial in this matter. The Court has now taken live testimony, deposition testimony, and numerous exhibits. The parties have completed all briefing and made their final arguments. Given the nature of the challenges made, the Court emphasizes that it is expressing no opinion on the constitutionality of the 10-day waiting period in general or as applied to first time California firearms purchasers.

After considering the evidence and the arguments, the Court concludes that Penal Code § 26815(a)

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and § 27540(a)'s 10-day waiting periods impermissibly violate the Second Amendment as applied to those persons who already lawfully possess a firearm as confirmed by the AFS, to those who possess a valid CCW license, and to those who possess both a valid COE and a firearm as confirmed by the AFS system, if the background check on these individuals is completed and approved prior to the expiration of 10 days. Because of the Court's resolution of the Second Amendment issue, the Court need not reach the Fourteenth Amendment challenges.

I. REQUEST FOR JUDICIAL NOTICE

Parties' Positions

Defendant requested that the Court take judicial notice of various exhibits. Defendant argued that each of the exhibits could be judicially noticed as legislative facts because such facts are relevant to the justification for the statutes at issue, the court's legal reasoning, and to the decision making process.

Plaintiffs objected and argued that it was unclear how Defendant intended to use the information in the exhibits. Plaintiffs recognized the distinction between adjudicative facts and legislative facts, but contended that they could not determine the admissibility of the exhibits without further clarification. However, relevancy, hearsay, and contestability issues in general with Defendant's exhibits make judicial notice under Rule 201 improper. Further, as part of supplemental briefing, Plaintiffs stated that once specific portions of exhibits were identified by Defendant in her proposed findings of fact and conclusions of law, Plaintiffs would then make arguments in their June 30, 2014 responsive briefing as to those specific exhibits.

Discussion

At the end of the last day of trial testimony, and upon the parties' agreement, the Court ordered the parties to include and to cite to specific proposed exhibits and portions of proposed exhibits as part of their proposed findings of fact and conclusions of law. See Trial Tr. at 526:9-533:13. The parties were permitted to file responsive briefing and objections to the proposed findings, including evidentiary objections to any evidence that was included in the proposed findings and the subject of Defendant's motion for judicial notice. See id. The Court would then make evidentiary rulings based on the briefing and the proposed findings of fact and conclusions of law. See id. This framework was primarily meant to address the exhibits in Defendant's request for judicial notice. The framework was designed to provide the Court and the parties with a method of determining how and for what purpose an exhibit was being used. Defendant's proposed findings of fact and conclusions of law comply with the Court's order. In fact, Defendant helpfully submitted binders with the exhibits and the specific excerpts that were cited in her proposed findings. Nevertheless, as part of Defendant's June 30, 2014 responsive briefing, Defendant defended and addressed exhibits that were part of the request for judicial notice, but were not included in her proposed findings.

If Defendant did not cite an exhibit or portion of an exhibit in her proposed findings and conclusions, then Defendant did not sufficiently rely upon such evidence. There was an inadequate demonstration of how such evidence was intended to be used and/or how the evidence is relevant. The Court will not comb through the hundreds of pages of proposed exhibits and make rulings if an exhibit is not actually cited and specifically relied upon by a party.

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Cf. Hargis v. Access Capital Funding, LLC, 674 F.3d 783, 792-93 (8th Cir. 2012) ( courts need not take judicial notice of irrelevant evidence); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003) ( in summary judgment context court is not required to examine the entire file when specific evidence was not adequately identified); Charles v. Daley, 749 F.2d 452, 463 (7th Cir. 1984) (courts need not take judicial notice of irrelevant evidence); Rodriguez v. Bear Stearns Cos., *34 (D. Conn. Apr. 14, 2009) (courts need not take judicial notice of cumulative evidence).

Accordingly, the Court will limit its discussion and consideration to the exhibits and excerpts that were actually cited by Defendant in her proposed findings. Those exhibits are Defendant's Exhibits CD through CI, DG, DH, DM, DQ, DS, DT, DV, DW, DX, EC, EJ, EK, and GN. All other exhibits that were included in Defendant's March 24, 2014 request for judicial notice (Doc. No. 78), but that were not cited in Defendant's proposed findings of fact and conclusions of law, will not be considered by the Court.

The Defense exhibits at issue fall into one of four general categories -- legislative history, history books, professional journal articles, and a newspaper article. The Court will examine each category of exhibits separately.

1. Legislative Histories

The Ninth Circuit has approved of taking judicial notice of legislative history. Association des Eleveurs de Canards et D'oies du Quebec v. Harris, 729 F.3d 937, 945 n.2 (9th Cir. 2013); Chaker v. Crogan, 428 F.3d 1215, 1223 n.8 (9th Cir. 2005); see also Korematsu v. United States, 584 F.Supp. 1406, 1414 (N.D. Cal. 1984). Defendant has limited the portions of legislative history that she wishes the Court to consider. In their June 30 responsive briefing, Plaintiffs did not address these specific portions of legislative history. The Court finds that the identified portions of legislative history are relevant and probative. Therefore, the Court will grant Defendant's motion with respect to the identified excerpts of legislative history.

Therefore, the Court takes judicial notice of the following portions of Exhibit CD: Cover & p. 701. The Court takes judicial notice of the following portions of Exhibit CE: Cover & p. 657. The Court takes judicial notice of the following portions of Exhibit CF: Cover & pp. 2799, 2800. Exhibit CG: Bates Numbers AG000008, AG000026, AG000052 through AG000055, and AG000059 through AG000061. The Court takes judicial notice of the following portions of Exhibit CH: Bates Numbers AG000231 through AG000233, AG000297 through AG000298, AG000343 through AG000344. The Court takes judicial notice of the following portions of Exhibit CI: Bates Numbers AG000399 through AG000402, and AG000468.

2. Category 2 -- History Books

In their June 30, 2014 responsive briefing, Plaintiffs did not make any evidentiary arguments regarding the specific excerpts from Defendant's history books. Regardless, the Court has conducted an independent evaluation of the excerpts submitted.

Exhibit EC consists of excerpts from a book by Jack Larkin, The Reshaping of Everyday Life: 1790-1840 (Harper Perennial 1988). The excerpts from this book deal with the nature of life in America from 1790 to 1840. Defendant seeks to admit these excerpts in order to demonstrate that, given the nature of the way of life between 1790 and 1840, most people

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would have been unable to readily obtain firearms. Because the geographic and economic conditions did not lend themselves to a person being able to immediately purchase and possess a firearm, Defendant contends that the citizens of 1790 and 1840 would have no quarrel with a government imposed waiting period before obtaining firearms. See Doc. No. 88 at ¶ ¶ 29-34, G.

Although it appears that Exhibit EC is the type of historical work that has been consulted in cases such as McDonald, Heller, and Peruta, the information contained in Exhibit EC is not particularly relevant to this case. Exhibit EC appears to be a generalized historical text that touches on many aspects of the American life as it existed between 1790 and 1840. What Exhibit EC excerpts do not contain is any information regarding firearm waiting period laws that may have existed between 1790 and 1840, or information regarding the understanding of the Second Amendment during this timeframe. It is that type of information, not American life in general or the economic and geographic conditions of the time, that are relevant. " The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States." Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). " [T]he constitutional right to bear arms restricts the actions of only the federal or state governments or their political subdivisions, not private actors." Florida Retail Fed'n, Inc. v. Attorney Gen. of Fla., 576 F.Supp.2d 1281 (N.D. Fla. 2008). That naturally-occurring non-governmental forces may have limited the ability of some individuals in some parts of the country to readily obtain firearms does not show that it was understood around 1791 (the year the Second Amendment was adopted) or 1868 (the year the Fourteenth Amendment was adopted) that the government could impose a waiting period between the time of purchase and the time of possession of a firearm.[3] The Court does not find the excerpts in Exhibit EC to be relevant, and declines to consider them.[4] See Hargis, 674 F.3d at 792-93; Charles, 749 F.2d at 463; Rodriguez, at *34.

Exhibit EK consists of excerpts from a book by Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America (W.W. Norton 2013). Exhibit EK discusses some of the laws in existence around the founding era. However, there is nothing in Exhibit EK that discusses waiting period laws between 1791 and 1868. The first mention of a waiting period law was a 1923 model law that imposed a 1-day waiting period on the delivery of handguns. According to Winkler, this law was proposed by a private organization, the U.S. Revolver Association. Winkler states that this law was adopted by nine states, including California. However, like Exhibit EC, Exhibit EK does not discuss waiting period laws during 1791 or 1868.[5]

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Because there is no discussion of waiting periods during the relevant time periods, the Court does not find the excerpts from Exhibit EK to be relevant, and declines to consider them.[6] See Hargis, 674 F.3d at 792-93; Charles, 749 F.2d at 463; Rodriguez, at *34.

3. Professional Articles

In their June 30, 2014 responsive briefing, Plaintiffs did not make any evidentiary arguments regarding the specific excerpts from the professional journal articles cited by Defendant. Depending on their use in a case, see Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002), social science studies can be reviewed by courts as " legislative facts." [7] See Snell v. Suffolk County, 782 F.2d 1094, 1105-06 (2d Cir. 1986); Dunagin v. Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983); cf. United States v. Carter, 669 F.3d 411, 418 (4th Cir. 2011) (government may establish the " reasonable fit" of legislation through a wide range of sources including empirical evidence). Legislative facts can be considered more liberally and are outside the structures of Federal Rule of Evidence 201. See Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992); United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976); see also Qualley v. Clo-Tex Int'l, Inc., 212 F.3d 1123, 1128 (8th Cir. 2000) (holding that trial court erroneously took judicial notice of legislative facts under Rule 201).

The Court finds that the excerpts from Defendant's Exhibits DG (pp. 27-29), DH (pp. 585, 588, 590), DS (pp. 228-231), DT (pp. 59-61, 69-72), DV (pp. 1583-1585), DW (pp. 225, 226, 229, 232, 234-236), and DX (pp. 40, 51-52) are relevant. Given the absence of additional argument from Plaintiffs on these exhibits, the Court will consider these exhibits as legislative facts. However, the Court will not take judicial notice of these exhibits under Rule 201. See Qualley, 212 F.3d at 1128.

With respect to Exhibits DM and DQ, these are portions of articles that relate to suicide studies in Australia. Exhibit DM is a 1994 study of 33 survivors of attempted firearm suicides, who were all treated at Westmead Hospital (a teaching hospital of the University of Sydney). Exhibit DQ is a 1999 study of suicide statistics from Tasmania, Australia. The Court does not find these articles to be probative. There are cultural, societal, and geographic differences between Australia and the United States. These types of differences can manifest themselves not only when comparing suicide statistics between the two countries, but also when comparing the suicide rates of the states and territories of Australia with the states of the United States. The Tasmania study, for example, highlights the fact that Tasmania had one of the highest suicide rates of all of Australia,

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yet made up only 2.6% of Australia's total population. In other words, there was something unique that was occurring in Tasmania. Suicide is a complex psychological occurrence. Without further expert guidance, the Court is not inclined to consider two studies that focus on two small portions of a separate country. The Court declines to consider Exhibits DM and DQ.[8] See Hargis, 674 F.3d at 792-93; Charles, 749 F.2d at 463; Rodriguez, at *34.

With respect to Exhibit EJ, this exhibit is several pages from a book entitled " Reducing Gun Violence in America." Only one page of the excerpts has potential relevance (the other excerpts are the cover and publishing pages). The one page discusses a study that found a reduction in the firearm suicide rate for people over the age of 55, and the reduction may have been due to the Brady Act waiting period. See Defendant's Ex. EJ. The book page appears to have been written by the study's authors, Messrs. Cook and Ludwig. The Court will consider portions of the underlying study. See Defendant's Ex. DH. Because the Court will consider portions of the underlying study, additional information from the study's authors is relevant. The Court will consider Exhibit EJ, but will not take judicial notice of Exhibit EJ under Rule 201. See Qualley, 212 F.3d at 1128.

4. Newspaper Article

Exhibit GN is a 2014 newspaper article from the Washington Post, whose headline reads, " Study: Repealing Missouri's background check law associated with a murder spike." Plaintiffs did not address this exhibit as part their June 30 responsive briefing. Nevertheless, Plaintiffs are not challenging California's background check. Plaintiffs do not argue that they should be exempt from a background check nor do they argue that the background check is unconstitutional, rather they argue that they should not be subject to the full 10-day waiting period between the time of purchase and the time of possession. See Doc. No. 105 at 7:6-8, 13:17-20. The Washington Post article purports to describe the results of a study on an issue that is not before the Court. Thus, the article is not relevant, and the Court will not consider Exhibit GN.[9] See Hargis, 674 F.3d at 792-93; Charles, 749 F.2d at 463; Rodriguez, at *34.

II. STANDING

Defendant contends that the two entity plaintiffs, California Guns Federation (" CGF" ) and the Second Amendment Foundation (" SAF" ) do not have standing to maintain this lawsuit. Defendant argues that there is insufficient evidence that the entities have been personally injured by the Penal Code provisions at issue, and that there is insufficient evidence that any of the entities' members have been injured. CGF and SAF contend that the evidence is sufficient to show both direct personal injuries to themselves, as well as injuries to their members.

Legal Standard

It is the plaintiff's burden to establish standing to bring a lawsuit in federal court. See Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013). An organization may have representational

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standing, where it acts as a representative of its members, or direct standing, where it seeks to redress an injury it has suffered in its own right. See Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004). " An organization has direct standing to sue when it shows a drain on its resources from both a diversion of its resources and frustration of its mission." Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013); Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012). The organization's " standing must be established independent of the lawsuit filed by the plaintiff." Fair Hous., 666 F.3d at 1219. " An organization cannot manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all." Valle Del Sol, 732 F.3d at 1018. An organization may assert standing on behalf of its member if the " members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013).

Findings of Fact

SAF has between 30,000 and 40,000 members, supporters, and donors in California. Gottlieb Dep. 18:11-13.[10] One-third to one-half of the total 30,000 to 40,000 California members, supporters, and donors are dues-paying members. See id. at 18:16-19:4.

SAF conducts research on state and federal firearms laws, including California's firearms laws. See id. at 22:3-11. Approximately 20% of SAF's research deals with California's firearms laws. See id. at 22:12-19.

SAF also expends funds in the defense of the civil rights of its members, including the prosecution of this lawsuit. See id. at 35:10-23.

SAF seeks input from its members about which litigation to pursue, and SAF members contacted SAF about challenging the California 10-day waiting period. See id. at 28:1-3, 29:2-11. Over the years, a number of SAF members have contacted SAF to complain about the 10-day waiting period. See id. at 30:1-15.

SAF has California members who are subjected to the 10-day waiting period, and has California members who wish to purchase a firearm and also have a CCW, a COE, and/or another firearm. See id. at Depo. Ex. 13, Responses to Interrogatories 5, 8-15.

SAF has publicly commented on the 10-day waiting period, and done research into the California 10-day waiting period laws for a number of years (possibly for more than a decade). See id. at 23:25-24:23.

SAF receives between 50 and 100 calls per year from California members regarding the 10-day waiting period. See id. at 43:4-9.

Aside from this lawsuit, SAF has expended resources researching the 10-day waiting period, and expended staff time and money and resources in connection with other people's calls, letters, e-mails, and discussions about the 10-day waiting period. See 35:17-36:1.

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SAF has never attempted to purchase a firearm in California, nor has it incurred any expenses in acquiring firearms in California. See id. at 33:17-20, 62:19-23.

CGF is a public interest group that was created by gun owners. See id. at 117:7-8.

CGF's purposes are to defend people whom CGF believes to be unjustly charged with violating California firearms laws, and to challenge laws that CGF believes are unconstitutional under the Second and Fourteenth Amendments. See id. at 117:8-12. CGF will file amicus briefs in various cases, including before the United States Supreme Court, but such briefs tend to be on issues that CGF believes would be useful in California. See id. at 120:2-5. CGF routinely publishes white papers, FAQ's, and WikiQ's that explain California's gun laws, including explaining legislative history. See id. at 120:23-121:4. CGF defends people who have been improperly charged for violation of various California firearms, and also engages in litigation to ensure that California's firearms laws are constitutional. See id. at 117:21-118:3.

CGF has approximately 30,000 members, most of whom are in California. See Trial Tr. 121:11-14. Almost all of CGF's members are subject to the 10-day waiting period. See id. at 121:18-19. " Quite a few" of CGF's members have written about the 10-day waiting period on CGF's blog. See id. at 143:11-19.

CGF brought this lawsuit so that its members who already have firearms in the AFS system, possess a CCW, or possess a COE, would not have to wait 10 days to obtain a firearm. See id. at 121:23-25. Although not an individual plaintiff, Gene Hoffman, the CGF's chairman, currently owns a firearm, plans to obtain a firearm in the future, and has a CCW license. See id. at 113:13-114:1, 136:1-7.

CGF has never attempted to purchase a firearm on its own behalf for self-defense. See id. at 145:19-146:2.

Conclusions of Law

1. Direct Standing

To show an injury that is sufficient for direct standing, an organization must show: (1) frustration of purpose, and (2) diversion of funds. See Valle Del Sol, 732 F.3d at 1018.

a. CGF

CGF has met the first requirement. It is within CGF's purposes to defend and advocate for Second Amendment rights, including bringing lawsuits that challenge laws that may infringe upon the Second Amendment. The 10-day waiting period is a law that CGF believes unconstitutionally infringes upon the rights of those who have at least one gun registered in the AFS system, a CCW license, and/or a COE. CGF brought this lawsuit to remedy this perceived unconstitutional infringement. Therefore, CGF has demonstrated that the 10-day waiting period frustrates its purposes.

CGF has not met the second requirement. The testimony of CGF's chairman establishes that CGF is active in litigation in general, and has expended resources in connection with this lawsuit. However, expenditure of resources in the current lawsuit alone does not meet the requirements for direct standing. See Fair Hous., 666 F.3d at 1219. There is no evidence that deals with CGF researching, expending funds, educating or engaging in advocacy activities, or spending time addressing members' concerns about the 10-day waiting period separate and apart from this lawsuit. Cf. Valle Del Sol, 732 F.3d at 1018; Fair Hous., 666 F.3d at 1219.

Because there is no evidence that the 10-day waiting period laws have caused a diversion of CGF's resources, separate and

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apart from this lawsuit, CGF has not met its burden of establishing direct standing. See id.

b. SAF

SAF has met the first requirement. SAF is engaged in educational, research, and litigation efforts regarding the Second Amendment. SAF believes that the 10-day waiting period unconstitutionally infringes upon the Second Amendment rights of its members and of non-members in California, and has brought this lawsuit to remedy that perceived infringement. Therefore, SAF has demonstrated that the 10-day waiting period frustrates its purposes.

SAF has met the second requirement. SAF has been researching the 10-day waiting period for likely more than a decade. SAF yearly receives numerous complaints and questions from its members about the 10-day waiting period. SAF has had to divert time, resources, and money as part of its efforts to research the 10-day waiting period and to educate and address the concerns of its California members. Therefore, SAF has demonstrated a diversion of resources from the 10-day waiting period. Cf. Valle Del Sol, 732 F.3d at 1018; Fair Hous., 666 F.3d at 1219.

Because SAF has met both requirements, it has established its direct standing to challenge the 10-day waiting period laws. See id.

2. Representative Standing

An organization has standing to bring suit on behalf of its members if the organization shows: (1) its members would have standing to bring suit; (2) the lawsuit is germane to the organization's purpose; and (3) neither the claims asserted nor the relief requested require participation of a member. See Friends of the Earth, 528 U.S. at 181; Bellon, 732 F.3d at 1139.

CGF and SAF have met the requirements for representative standing by an organization. Both CGF and SAF have members in California who either already possess a firearm, a COE, or a CCW license, and plan on obtaining a firearm in the future. These California members' Second Amendment right to keep and bear firearms is burdened by the 10-day waiting period, see infra., and those members could have filed suit on their own behalf. The burden imposed by the 10-day waiting period is germane to the purposes of both CGF and SAF. These organizations actively research, publicly address/educate, and litigate on Second Amendment issues. No specific members are necessary to either determine the constitutional validity of the challenged laws or to fashion a remedy. Therefore, CGF and SAF have representative standing to sue on behalf of their members. Friends of the Earth, 528 U.S. at 181; Bellon, 732 F.3d at 1139.

III. SECOND AMENDMENT CHALLENGE

A. Contentions

Plaintiffs' Contentions

Plaintiffs argue that the 10-day waiting period interferes with the right to keep and bear arms, interferes with property rights, and causes additional expenses that may prevent a person from obtaining a firearm. Plaintiffs argue that there were no waiting period laws in existence in either 1791 or 1868, that waiting period laws are not prevalent today, and are not longstanding and presumptively lawful regulations.

Plaintiffs argue that it is unnecessary to determine whether intermediate or strict scrutiny applies because the waiting period

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laws will not pass intermediate scrutiny. Under intermediate scrutiny, the 10-day waiting period laws are justified as being necessary to do a background check and to provide a cooling off period. However, Plaintiffs argue that they do not contend that they should be exempt from a background check, rather their challenge deals with timing. As for background checks, 10-days is an arbitrary figure. For 20% of all applicants, the background check is approved and completed in about one hour. For those who already own a firearm and are known to be trustworthy due to the licenses that they hold and a history of responsible gun ownership, there is no justification for imposing the full 10-day waiting period. With respect to cooling off periods, Plaintiffs aver that for those individuals who already possess a firearm, the waiting period will not prevent impulsive acts of violence because the individual already has a firearm. As to concerns about whether a person may become prohibited from possessing a firearm after the firearm has been delivered, California has implemented two " safety net" systems, APPS and rap back. These programs undercut the need to impose a full 10-day waiting period.

Plaintiffs propose that the Court should order modification of the background check system and waiting period laws as follows: Any person for whom Defendant can determine (a) has a valid and current CCW license, that person should be subject to the same background check as the 18 statutory exceptions to the 10-day waiting period and should not be subject to the 10-day waiting period; (b) has a valid and current COE and for whom the AFS system shows a firearm purchase since 1996, that person is subject to the same background check as the 18 statutory exceptions to the 10-day waiting period and should not be subject to the 10-day waiting period; and (c) has purchased a firearm that is documented in the AFS system since 1996, that person may take delivery of the firearm upon approval of the background check. See Doc. No. 91 at pp. 29-30.

Defendant's Contentions

Defendant argues that the 10-day waiting period does not burden the Second Amendment. None of the organizational plaintiffs have attempted to purchase a firearm, and both Plaintiffs Jeff Silvester and Brandon Combs have possessed a firearm at all relevant times. The increased cost or minor inconvenience of having to make return trips to a gun store are de minimis.

Defendant also argues that the 10-day waiting period falls under one of the longstanding regulatory measures identified by the Supreme Court. The 10-day waiting period is a condition or qualification on the commercial sale of a firearm. As a longstanding and presumptively lawful regulation, the 10-day waiting period does not burden the Second Amendment.

Defendant also argues that in 1791 and 1868, the nature of production of firearms, where firearms were sold in relation to where people lived, and the relative expense of firearms made obtaining a firearm within 10 days of deciding to purchase one nearly impossible. As a result, the people of 1791 and 1868 would have accepted a 10-day waiting period before obtaining a firearm.

Defendant argues that if the Second Amendment is burdened, the 10-day waiting period's burden is not so severe as to justify strict scrutiny. Under intermediate scrutiny, the 10-day waiting period laws are constitutional. The waiting period laws serve the important interests of public safety and keeping prohibited persons from obtaining firearms.

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The 10-day waiting period reasonably fits these interests in three ways. First, it provides sufficient time for the Department of Justice to perform a background check. The nature of the databases utilized often require analysts to seek out information and dispositions from other agencies, entities, and states, which can be extremely time consuming. Further, sometimes prohibiting information is entered into the system after the initial check. Without the 10-day waiting period, there could be an incomplete check and prohibited individuals could obtain firearms. Relying on a CCW license or a COE is not a substitute for the background check because new prohibiting events may have arisen after a person obtains the CCW license or COE. Second, it provides a cooling off period so that individuals will have time to re-think committing impulsive acts of violence. Suicide is often based on transient thoughts. Studies show that waiting periods limit a person's access to firearms, and allows time for the transient suicidal thoughts to pass. Even if a person has a firearm in the AFS system, there is no guarantee that the person still has the firearm. Further, a firearm may be in an inoperable condition, or a person may not have ammunition for the weapon. For those individuals, a cooling off period could be beneficial. Further, some guns are not suitable for some purposes, and a cooling off period for a newly purchased firearm is beneficial. Finally, the waiting period laws provide Department of Justice agents with additional time in which to investigate straw purchases. It is better to intercept a weapon before it is delivered to a purchaser. If the waiting period laws did not exist, law enforcement would have to perform more retrievals of firearms from straw purchasers. Therefore, the 10-day waiting period is a " reasonable fit" and constitutional.

B. Findings of Fact

1. Impact of the 10-day Waiting Period

Unless a statutory exception applies, every person who wishes to purchase a firearm in California must wait at least 10-days from the date of purchase before taking possession of a firearm. See Cal. Pen. Code § § 26815(a), 27540(a).

The 10-day waiting period affects a person's ability to defend themselves through the use of a newly purchased firearm. See Trial Tr. at 74:2-75:1. The 10-day waiting period interferes with the exercise of dominion over property with respect to a newly purchased firearm. See Trial Tr. 29:10-13, 74:21-75:1.

Generally, the 10-day waiting period requires a firearm purchaser to make at least two trips to a firearms dealer in order to complete a firearms transaction. The multiple trips required to complete a transaction can cause disruptions in work and personal schedules, extra fuel expense, and wear and tear on a car depending upon where a firearm or a firearms dealer is located in relation to the purchaser. See id. at 26:9-14, 33:16-34:12, 35:13-36:8. This can be a financial burden on a purchaser. See id. at 26:15-18, 84:15-85:3.

The 10-day waiting period may also necessitate additional fees for the transfer of firearms between dealers, so that a person can purchase a firearm from a more distant dealer, but can retrieve the firearm from a closer dealer. See 28:2-29:1.

Schedule conflicts and dealer location may cause a person to miss the window to retrieve a firearm after the 10-day waiting period has expired. See 65:12-66:10.

The additional transfer expenses, the impact on a purchaser's schedule, and/or the location of a firearm may combine with the 10-day waiting period to cause a person

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to forego purchasing a firearm. ...


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