Gavin Newsom
(AP Photo/Damian Dovarganes)

By LKB

The sharpest thorn in the side of California’s gun-grabbers has done it again. Federal Judge Roger Benitez — who has already issued rulings, currently in the appellate and post-appellate pipeline, tossing California’s “assault weapon” and standard capacity magazine bans — ruled Friday that he would be enjoining a California law designed to discourage challenges to California’s gun control laws.

The newly-minted California law makes litigants and their attorneys liable for the state’s legal fees if they challenge a California gun law and are not 100% successful.

That inverts the usual practice under federal civil rights law, under which a plaintiff is considered the “prevailing party” (and thus eligible for an award of attorneys fees and costs of court) if it prevails on any of its claims challenging the constitutionality of a law.

A plaintiff can also be a “prevailing party” eligible for fees if the state moots the case by changing the challenged law, a la New York’s last-minute dodge in the first New York Pistol & Rifle Association case.

While there are situations (e.g., copyright infringement lawsuits) where an unsuccessful plaintiff can be held liable for the defendant’s attorneys fees, a party’s attorneys are typically personally liable for an opposing party’s fees only if they sign onto utterly frivolous filings (i.e., materials that violate Federal Rule of Civil Procedure 11), disobey a court order, unreasonably and vexaciously complicate a case, etc.

The California law at issue was passed earlier this year in a fit of pique after the Supreme Court issued the Bruen and Dobbs decisions, and refused to enjoin a Texas law that authorized private actions to enforce the state’s “fetal heartbeat” law. California’s attorney general asserted that while the state believed the Texas law was unconstitutional, California would play “tit for tat” by passing a similar law designed to make it prohibitively expensive to challenge any California gun control law.

Understand that fighting a state like California in federal court is an inherently very expensive proposition, beyond the budget of all but the most well-heeled individuals. This is why organizations like the Firearms Policy Coalition, Second Amendment Foundation, Gun Owners of America, and others are so essential to protecting our Second Amendment rights.

If you file a challenge to a California gun law, the odds are strong that you will draw a judge who will be, shall we say, not as disposed to Second Amendment rights as Judge Benitez. Litigating such a test case will thus likely be a very long and expensive process designed to eventually get the expected adverse decision from the California district court and the Ninth Circuit in front of the Supreme Court.

But under the new California law, if the district court or Ninth Circuit rules against you on even a subsidiary point of your lawsuit, you and your attorney would be immediately liable for what would probably be hundreds of thousands of dollars…or even more. That would make challenging even obviously unconstitutional California gun control laws so economically risky that few if any victims affected by the law could do so. And very few attorneys would be willing to represent them, given the economic risks.

That, of course, was the state’s reason for passing it.

Fortunately, the Firearms Policy Coalition stepped up to challenge this law. And in a master stroke of lawyering, they were able to do so in a way that made it very, very likely that the case would be assigned to Judge Benitez. The FPC moved for an immediate injunction against the law.

California reacted predictably. First, it claimed the state would not enforce the law until its constitutionality had been decided, and therefore there was no need for an injunction. Judge Benitez rejected that almost immediately, noting that California has already used the threat of liability under the new law as leverage in other cases. Judge Benitez thus not only set the matter for an evidentiary hearing on the request for a preliminary injunction, but also consolidated that with a trial on the merits. This isn’t unheard of in a case like this, where the facts are not in dispute and the only issues are legal ones.

After that ruling, the California attorney general – who was in a legally untenable position, given that he had already admitted that he believed the California law was unconstitutional – bowed out of the case, requiring the governor to hire outside attorneys to take over the defense of the law.

The hearing and trial were held yesterday. The transcript isn’t yet available, nor is there anything on the court’s docket at this time, but according to the press account of the hearing (h/t to Cody Wisniewski of the FPC for sending it to me last night) Judge Benitez ruled from the bench that he would be enjoining the law.

Judge Benitez ripped the state for playing games with people’s constitutional rights, saying, “I can’t think of anything more tyrannical.” He similarly castigated California’s claims that it was somehow justified in enacting the law response to the Texas abortion law, stating “[w]e’re not in a kindergarten sandbox. It’s not about, ‘Mommy he did this to me so I should be able to do it to him.’”

He also tartly asked the state’s attorney if he would be willing to pay the plaintiff’s attorneys’ fees. When counsel claimed not to understand the question, Judge Benitez noted he was wise not to answer, because no attorney would want to risk being personally liable for paying the other side’s attorneys fees if he loses.

As is required by federal law, Judge Benitez will have to issue a written opinion making various findings and formally explaining his reasoning. I expect it will be out within the next month, and will likely be blisteringly critical of the state of California.

For now, let’s all raise a glass to Judge Roger Benitez for once again upholding the rule of law.

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53 COMMENTS

  1. CA set it up so their big money can bully the little guy into staying quiet…I hope Judge Roger Benitez will keep the ball bouncing in CA and does not assume the fetal position like mitch mcconnell et al…Cheers.

    fuahhead…The AOL chat room you belong in is up the road, over the hill and down in a toilet.

    • … so now you’re sticking up for D-rat lawyers by giving shit to posters? And you forgot to add your usual ” rooted in racism” shpiell, slipping today, hangover maybe?

      • whisperingwimp…So now you are sticking upon for the m.fuah bigot. As for rooted in racism…Do you have a problem with me pointing out a history confirmed fact for politically inept history illiterates like yourself when a no-count like you wouldn’t, couldn’t point to such a fact in a million years? If so dial: 1-800-eat-poop.

        • “Do you have a problem with me pointing out a history confirmed fact….”

          The problem is you say the same stupid shit all the time without realizing todays gun grabbers want to take everyone’s guns no matter what race they are. Black and white politicians want to disarm all citizens whether they are black, white, brown, yellow, red, or whatever.

          People that refuse to pull their heads out of their ass and understand the threat to preserve 2A rights today instead of constantly whining about facts that no longer apply or help the fight, are worthless to the cause and by association, make all gun owners look stupid.

        • Well from the replies I know when I am beat because the support for the bigot fuahhead is overwhelming.
          So like the person who hears a next door neighbor beating their wife several times a week and says nada I’ll be just as silent when I spot a bigot speaking from the anus below their nose…Not.

          Furthermore I promise never to say History Confirms Gun Control in any shape, matter or form is rooted in racism and genocide again. That is with the exceptions when Gun Control is expressed, implied or stated…New exceptions same as the old exceptions.

          catcoclown…Take everyone’s guns? I didn’t realize what a genius you are. Like I told another crybaby like you…When what you say makes it to the floor of The US Congress you LMK…
          https://youtu.be/WlItbl9SOAg

        • I agree with everything Congressman Roy said. It is true gun control laws in the past were based on racism in the US. I didn’t hear him say the current crop of gun grabbers want to disarm anyone now based on those old laws.

          History shows us what happens when a people are disarmed. Not all instances of this were based on race.

          The idea that black and white libs want to disarm one race and not another is stupid. Calling someone like Congresswoman Corey Bush a racist because of her anti-gun views is retarded.

          Arguing the 2A gives everyone, no matter what color they are, equal gun rights makes more sense.

        • @ Cato – you can get off Debbie’s ass. Today’s gun laws are just as racist as they ever have been. Areas such as I live in, where the blacks are genuinely a minority, tend to have liberal and reasonable gun laws – like Constitutional carry. Areas where the privileged white assholes are outnumbered by Black, Brown, and hybrid people tend to have ultra-strict gun laws.

          Translation, for those who don’t understand: The elite whites fear their constituency, who are anything but a minority in places like Shitcago.

          Gun laws in the US always have been, and always will be, about race.

        • Paul

          That is the dumbest thing said today.

          Chicago Demographics:
          White: 47.73% Black or African American: 29.22% Other race: 10.55% Asian: 6.84%

          Shitcago isn’t a place where the privileged white assholes are outnumbered by Black, Brown, and hybrid people. Shitcago has a black mayor, black police chief, etc. The elite whites don’t run the show there, translation for those that don’t understand.

          Nice try though. Better luck next time……..

        • Debbie W,
          I agree with everything you say.
          However you do say the same thing over and over again.
          We get it about the racist roots of gun control.
          Maybe you could point it out once a year for the new commenters and add something else to the conversation?

        • RE: catcoclown: “I agree with everything Congressman Roy said. It is true gun control laws in the past were based on racism in the US. I didn’t hear him say the current crop of gun grabbers want to disarm anyone now based on those old laws.”

          Not so fast bozo…Your spew is fixated around everyone having a 2A Right today which of course has to mean not everyone had a 2A Right yesterday. News for you…Politically correct Gun Control Today went to Gun Control Yesterday and erased Negro and Jew and inserted, Everyone. The aforementioned goes without saying providing one is competent enough to define Gun Contol by its History.

          Roy said two words you missed, “Fact Check.” That meant my words were fact checked then brought to table not me fact checking Roy’s words and bringing his words to you…get that straight. Furthermore according to you what I say is sht and Roy says the same damned thing and you agree with everything he said? If you haven’t figured it out by now I don’t need a lecture from you.

          Paul is correct. I.E…Not so long ago in two major cities ran by democRat mayors Black Americans living in fear in Public Housing were denied their 2A Right. The NRA ILA stepped in and sued based on, “Discrimination” and rights denied and prevailed. Sounds like yesterday’s Jim Crow is today’s Jim Crow to me…Thanks to today’s History illiterates who wouldn’t know the difference between Jim Crow and Old Crow.

          From this moment forward if you want to defend a centuries old Right you best know the History of Gun Control otherwise the Gun Grabbers you claim to disdain will chew you up and spit you out.

        • Dipshit Debbie

          You claim that anyone that disagrees with you is illiterate when it comes to the history of guns in America.

          That’s a pretty ignorant statement considering your inability to see that history has changed/is changing. The rest of us aren’t stuck in the last century.

          While you are obsessed with Nazis, KKK, etc. to the point of being blind to everything else around you, you fail to see that gun control has spread past anything having to do with race today. If you are so dense you can’t see that libs want to take away everyone’s guns, you can not have an intelligent conversation about what is going on now – instead of stuff that happened decades ago.

          And when you bring up an example of recent racism, you fuck that up also. In the 90’s when Clinton banned guns in public housing, the law applied to everyone – no matter what race. Did you realize the white and Hispanic people also live in public housing? Forty-five percent black; 32% white; 20% Hispanic. Are you honestly stupid enough to believe that the law didn’t apply to the white residents?

          Don’t lecture me about fact checking history when you can’t fact check the stupid shit you spouted above.

        • docdurajoke…RE: “Debbie W,
          I agree with everything you say.
          However you do say the same thing over and over again.
          We get it about the racist roots of gun control.
          Maybe you could point it out once a year for the new commenters and add something else to the conversation.”

          What do you mean by, We? Are you the official forum spokesman or is We something you need because you can’t handle little me all by yourself?

          When the topic relates to Gun Control somebody has to Define Gun Control by its History of rot. Just think if it were not for me defining Gun Control by its history if you were asked by a Gun Control zealot to Define Gun Control you’d have to scratch your behind and think hard for something to call an answer. And if all you can produce is the typical butthead’s omni directional definition for Gun Control you instantly become a savy Gun Control zealot’s bword.

          Perhaps you should take a year off and look for a job on some marxist site where they beat around the bush acting all nasty nice but really want to shut people like me up, just sayin.

          BTW…Contribution? Regulars on this forum know I have an extensive knowledge of firearms and share that knowledge here and elsewhere quite often. Why just the other day I shared my entire secret receipe for an AR-.308…you musta missed it.

        • catcotheclownshow…”Dipshit Debbie
          You claim that anyone that disagrees with you is illiterate when it comes to the history of guns in America.
          That’s a pretty ignorant statement considering your inability to see that history has changed/is changing. The rest of us aren’t stuck in the last century.

          Your baseless “anyone” distraction doesn’t fly potty mouth so man up and try to keep it between you and l.

          “Today” the battle is between the centuries old Gun Control and the centuries old Second Amendment. To prevail in such a battle one must have full knowledge (intel) of his opponent’s tactical history. That certainly excludes you in the Art of War.

        • Deborah the gun expert

          Calm down honey, no one is saying you’re a bad person, I’m just saying you’re dumb.

          Regulars know you say you have extensive knowledge. You have yet to prove you know anything.

        • Debbie the Historian

          I’ve read the Art of War. The main take away I got from it is to know your enemy. Not what they did decades ago but what they will do now. Weapons and tactics change, if you don’t keep up with those changes and adapt, instead of always looking backwards, you will be defeated.

        • @ Cato – did ya fail to notice that whites are NOT the majority in Shitcago? 47% of the population is not a majority. That means that when you walk down the streets, you’re going to see as many non-white people (black, brown, whatever) as there are white people. Whites are outnumbered, and they fear the brown/black masses.

          I stand by what I said originally.

        • You can stand by whatever you want. It’s still wrong. You failed to mention who runs the city and who makes and enforces the laws.

          “The elite whites fear their constituency…”

          Not in Chicago dumbass. Whites don’t run the city.

          Keep trying, you might learn something.

      • ansel…I’ll be happy to answer your question regarding the existence of AOL chatrooms as it relates to this forum and my response to fuahhead…AOL chatrooms consisted of half baked sentences and silly questions…Ring a bell?

      • Because perhaps the mofo is white as rice and the mofo has said more than that before. I prefer truth straight up sans the bigotry and so you.

        • Your initial reply to me says any prior posts from such an individual would have sailed past you. He’s from the beavis and butthead wing of this forum who jump at the chance to spew concocted labels like Chicongo and Detoilet.

  3. If only other judges would judge correctly like Judge Benitez. How did FPC wrangle getting this case assigned to Judge Benitez? That tactic should be promulgated far and wide in the freedom loving community. Because if it can work in CA it can work in other communist states.

    • It’s not something that can be easily replicated.

      The tactic used here leveraged what’s known as the “related case” rule. When you file a case in federal court, you *must* disclose any “related cases” on the Civil Action Cover sheet. This is to prevent / address gamesmanship, such as filing a case, see who you drew as a judge, immediately file a Rule 41(a)(1)(A)(i) dismissal notice if you don’t like who you drew, and then refile and hope you get a better judge. (Rinse and repeat until you draw the judge you want. Yes, people used to do that.) Under the “related case” rule, the clerk can assign any subsequent related cases to the first-assigned judge, thus defeating the above-described gambit. Following the related case rule is not required, but most district clerks do so as a matter of course.

      Here, the FPC filed this case in the same court (SDCal, San Diego division) as the AWB case that it before Judge Benitez, and also had EXACTLY the same parties as the AWB case. They thus could (indeed, they were required to) say it is a related case to the AWB case (exactly the same parties, same kind of dispute). Seeing what was about to happen, California bitched and moaned about it, but the clerk’s office followed their standard neutral procedure and assigned the case to Benitez.

      The *usual* way test cases get “forum shopped” into a friendly court is to file them in a division that has only one or two judges that you know they are favorable. (The leftists did the same thing during the PDT admin (D.Hawaii was their venue of choice), and until recently it’s why such a massive percentage of patent cases were being filed in WDTX, Waco division (single judge division).) But that’s almost never going to be an option in 2A cases in blue states like California.

      • “Seeing what was about to happen, California bitched and moaned about it, but the clerk’s office followed their standard neutral procedure and assigned the case to Benitez.”

        It’s entirely up to the whim of the Clerk of the Court to assign cases? Because knowing how Leftist Scum ™ operate, if I was that clerk, I’d be checking under my car for wires each time before I drove it.

        I put *nothing* above how far they would go to get a 2A ruling the way they want, they are that mad for their power over us… 🙁

        • I would imagine its a few ‘rules’ procedure in place the clerk follows and its up to the whim of the clerk.

        • It’s more like the Chief Judge of the district (and/or General Services Administration, which is the agency in charge of Courthouses) the has promulgated a set of internal operating procedures that the clerk’s office (lower level federal bureaucrats) have to follow. Most of these IOP’s have been in place for many years.

          Litigants don’t have a right to demand that the clerk’s office follow the IOP’s (that’s the Chief Judge’s perview, and he or she can change them), but on things like case assignments (e.g., random assignment of cases; procedures for docket balancing) they want to have neutral, consistently-enforced policies to avoid problems and maintain the perception that the court is being run in an impartial fashion.

          Are there some discretionary calls made by the clerk’s office (e.g., is the case actually a related case or not)? Sure, but in my experience when there is any sort of hard call (especially on a high profile case), the decision gets pushed up the chain to one of the judges. Remember the first rule of the bureaucracy: don’t make any decisions that could get you fired.

  4. Bonta being the pussy that he is (just like Becerra) bowed out of the case, requiring the governor to hire outside attorneys to take over the defense of the law. Screw these assholes.

    • Is there an election coming up for Bonta? That may explain why doesn’t want his fingerprints on any dirty tricks he has planned.

      Plausible deniability is another hallmark of a Leftist Scum ™ fascist tactic… 🙁

  5. Judge “Saint” Benitez has been patiently laying the bricks down to create a path leading straight to the enjoining of several of our stupid restrictive laws here. He tried the direct approach in his previous rulings, but now that the ball’s back in his court (Court?) again due to procedural wrangling, he’s taking the time necessary to remove appellate options from CA before running for the touchdown.

    CA’s plethora of gunn control issued over the past dozen years is about to come down like a wobbling Jenga tower. Patience, my friends. To all those who repeatedly told me to just leave CA and give up a “worthless” fight, I bring to your attention Patriots such as Benitez, with whom I lock arms (as in, elbows, not gunns, lol).

    We will prevail. 2022 was a banner year nationally with Bruen. 2023 will be a banner year for CA as Benitez prepares to lead the charge down the hill against the Orcs.

    • “CA’s plethora of gunn control issued over the past dozen years is about to come down like a wobbling Jenga tower.”

      I’m more concerned with their reactions when that happens. It will scare the Hell out of them, and unbalanced Leftist Scum ™ (really, are there any other types? 😉 ) people are dangerous when that happens… 🙁

    • And this is where we find out DeSantis as a true leader.
      The fact that he disparaged the Rhino leadership (w/o calling them Rhinos) is a good thing. He called them out for having long term super majorities in both houses, yet they have not accomplished any positive forward movement. Cuts right to the chase if you ask me.
      Especially since he called them out for foot dragging AND specifically said he would sign constitutional carry.

      • Time to lay on the pressure on that senate ‘leader’ who’s the real problem.

        I want open carry, as well… 🙂

  8. I hope Benitez is taking appropriate security precautions. The governor might resort to other than legal approaches.

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    • That may be the best spam post I’ve ever read. It may be appealing spam, but it’s still spam. Don’t do that again!

  10. Tyrants always have to tyrant. Even Hillbilly dictators like Newsom.

    And a chance to scapegoat and administer a collective punishment will never me missed.

    • “Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.” – Thos. Jefferson

    • There are some other “good” federal judges in California, but to understand why there are so few (even though we’ve 24 years of GOP presidents in the last 42 years) you have to account for the “blue slip” process.

      For many years, as a matter of “Senatorial courtesy” nominees for district or circuit benches would not be brought up for a vote at the Senate Judiciary Committee until it received “blue slips” from the two senators from the state in question, indicating they had no objections to the nominee. As a result, GOP nominees in blue states like California had to be unobjectionable to the democrat senators, and so we often got RINO’s who were certainly better than the SJW’s Biden is appointing but hardly hardcore Federalist Society types. (I think Benitez slipped under their radar during the Bush admin, perhaps because they did not want to be seen as opposing a Hispanic nominee.)

      McConnell pretty much abandoned “blue slip” practice during PDT’s administration, which is why so many excellent judges were added during his administration. But that’s why we have had the phenomenon of “GOP judges” in Washington state ruling against PDT in opinions that were indistinguishable from the democrat playbook: these judges were RINO’s that were appointed as “best we can do” under the “blue slip” rules in place at the time.

      The “blue slip” saw did cut both ways: it prevented Obama from filling a lot of vacancies on the Fifth Circuit, which subsequently led to PDT being able to pack it with originalists such as Judges Ho and Willett, such that now there is a solid majority of “good” judges that will likely persist for quite a while.

  13. Thank goodness Judge Benitez. It is heartening to know there is still people that has some common sense. The problem is, and I’m not sure how to address this situation as it is only going to get worse, a number of these states are passing laws they know are unconstitutional. Seems to me, there should be some type of punishment for this. The states paying the plaintiffs fees does no good as they are using taxpayer dollars.

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