Firearm Safety Certificate Lawsuit

CRPA Submits Opposition To “Emergency” Regulations For California’s Firearm Safety Certificate Program

On Monday, March 2, 2015, the California Rifle and Pistol Association (“CRPA”), along with the National Rifle Association (“NRA”) and FFLGuard, submitted a letter of public comment opposing the California Department of Justice’s proposed “emergency” regulations for California’s new Firearm Safety Certificate (“FSC”) Program and safe-handling demonstrations.

The FSC Program, signed into law by Governor Jerry Brown on October 11, 2013, requires every individual wishing to take possession of a firearm in California to first take and pass a written test and to perform a safe-handling demonstration with the firearm to be acquired. While the NRA supports efforts to encourage the safe use and handling of firearms, the launch of the FSC Program was abysmal, and it has been plagued with problems since it took effect on January 1, 2015.

The Program’s many failures were the result of the Department’s refusal to meaningfully engage FFLs, certified FSC instructors, and gun owners in the creation of formal regulations for the administration of the Program. Instead, the Department unilaterally unveiled a host of generally applicable “rules,” such as requiring all certified instructors to obtain and maintain a valid Certificate of Eligibility, to submit FSC fees to the Department by major credit card only, and to access an automated, web-based system to process and issue FSCs.

These rules have already cost FFL’s and certified FSC instructors untold sums and will cost them thousands of dollars each year, forcing many to simply stop administering the FSC Program altogether. With the support of the NRA, the CRPA, FFLGuard, and five individuals filed Belemjian v. Harris in the Superior Court of Fresno, challenging the Department’s actions as a violation of California’s Administrative Procedures Act (“APA”) and asking the court to direct the Department to formally adopt regulations for the administration of the Program in accordance with the law.

Nearly two months after the lawsuit was filed, the Department submitted a package of proposed “emergency” regulations to preserve the rules it had illegally adopted in violation of the APA. Under the procedure for emergency regulations, the general public was given only 5 days, as opposed to the 45-day minimum under normal rule-making procedures, to offer comment after the Office of Administrative Law received the proposal and posted it to its website. The Department claims that firearm sales will necessarily cease if their FSC regulations are not adopted under that shortened time frame, inviting costly Second Amendment litigation against the state and bringing harm to the public welfare.

But the Department was given nearly a year and a half between the adoption of the FSC Program and its implementation. It had plenty of time to follow the regular rule-making procedures, providing adequate time for input from the general public and open discourse with FFLs, certified FSC instructors, and gun owners. It instead chose to promulgate informal rules in violation of the APA, and then seek to push those same rules through as “emergency” regulations, circumventing the generally stringent requirements of the APA and shutting down the ability of the public to work with the Department to create a workable program.

What’s more, the Department’s “emergency” regulations are simply not necessary to avoid serious harm to the public peace, health, safety, or general welfare. They are not even necessary for the FSC Program to continue. Indeed, the former Handgun Safety Certificate Program has thrived in California for over a decade without any of the regulations in question. Ultimately, it seems the proposed “emergency” regulations are not really about protecting the public at all.

As the Department’s own “Finding of Emergency” letter demonstrates, the regulations are truly aimed at generating over one billion dollars in additional revenue annually for the Department’s unrelated law enforcement activities, which include the highly controversial APPS Program, at the expense of law-abiding California gun owners.

The letter submitted by the CRPA, NRA, and FFLGuard request that the Office of Administrative law not allow the Department a free pass and, like Belemjian v. Harris, it simply seeks to have the Department open the regulations to public comment and discussion as it should have done from the beginning.

For an FAQ on the Firearms Safety Certificate from the Department of Justice click here.

CRPA Lawsuit Seeks To Stop Enforcement Of Botched Implementation Of New Firearm Safety Certificate Program California’s new Firearm Safety Certificate (FSC) Program laws went into effect on January 1, 2015. On January 6, 2015, a lawsuit, Belemjian v. Harris, was filed in California Superior Court on behalf of the California Rifle and Pistol Association, FFLGuard (http://www.fflguard.com), and several individual gun owners and firearm instructors against the California Department of Justice (DOJ) to stop any enforcement of “underground regulations” that the DOJ illegally adopted when it tried to implement the FSC laws.

The lawsuit also seeks to stop California’s new long-gun safe handling demonstration law from being enforced until the DOJ adopts implementing regulations through the proper process, as the law required the DOJ to do. The new Firearm Safety Certificate program replaced the Handgun Safety Certificate (HSC) program. Prior to the first of this year, the HSC program required handgun purchasers to pass a written test about handgun safety. Once passed, would-be handgun purchasers obtained an HSC card with which they could obtain a handgun, but only after first completing a safe handling demonstration using the handgun that was being purchased. Now the HSC program has been turned into the FSC program, and requirements for handgun transfers now cover all firearm purchases. In implementing the new FSC program, the DOJ created problems for gun buyers and sellers by unilaterally creating a number of new requirements for issuing FSC cards that were not previously required under the HSC program.

But the DOJ created the requirements without going through California’s legally mandated formal procedures for state agencies to adopt regulations. Those procedures mandate that an agency proposing a regulation: 1) provide the public with notice of the proposed regulation’s language; 2) solicit public comments; 3) and hold a public hearing. When an agency creates a rule without following these requirements, the agency creates an illegal “underground regulation.”

Because the DOJ went through none of the required procedures before it published the new FSC rules, the lawsuit seeks to have a court strike them down as illegal “underground regulations.” If the DOJ had followed the legally required procedures, this lawsuit would not be necessary. The public would have seen the DOJ’s plans and been provided ample opportunity to comment before the challenged regulations came into effect. Instead, the DOJ tried to force these new, improperly-promulgated requirements onto the public at the last minute, without seeking any input from the people who will be most affected by the new laws and policies.

By skipping the required regulatory adoption procedures, the public was deprived of its opportunity to comment on and to help shape the FSC regulations that affect our Second Amendment rights. This is not the first time the DOJ has failed to fulfill its legal obligations to properly adopt regulations to implement ill-advised gun control laws. In 1998 the DOJ created “underground regulations” relating to the Basic Firearm Safety Certificate (BFSC) program. (The BFSC was the precursor to the HSC, which in turn was the precursor to the FSC.)

You can view a copy of the Office of Administrative Law’s opinion concerning the DOJ’s illegal “underground regulations” relating to the BFSC here.

Adding another layer of problems, DOJ’s rollout of the FSC program has not gone smoothly. The FSC website is still suffering from delays and crashes. These glitches are affecting the entire DROS Electronic System (DES) and are causing great problems for California’s legal firearm dealers as many frustrated customers leave their stores empty-handed. For those who remember the problems with the DES roll-out, this current mess is not a surprise, but is infuriating nonetheless considering the DOJ had over a year to put the FSC system in place! NRA/CRPA attorneys have also filed an Underground Regulation Petition with the Office of Administrative Law (OAL) asking that the OAL weigh in.

Although the OAL cannot force an agency such as the DOJ to stop implementing illegal “underground regulations,” a ruling from the office will be extremely beneficial as persuasive authority for the court to consider in the lawsuit. In response to the lawsuit, the DOJ intends to hastily bypass the regular rulemaking procedures of the APA once again.

Now the DOJ wants to adopt the “underground regulations” as “emergency regulations.” Emergency regulations are not subject to the same notice and comment procedures that regular (non-emergency) regulations are. They can be proposed and adopted in an expedited manner. But the DOJ must first provide a statement showing a “finding of emergency.” The problem for the DOJ is that any “emergency” that currently exists is one solely of DOJ’s making for waiting over a year to start the process. The DOJ is just trying to avoid the work and scrutiny involved in the regular rulemaking procedures under the guise of needing “emergency regulations.” The NRA-CRPA attorneys will not allow the DOJ to cut corners here.

Please stay tuned for future alerts if you want to be notified regarding any regulations the DOJ plans to submit to OAL. It may be necessary for affected people to provide comments to OAL when the proposed regulations become available to the public. The public only has 5 days to submit comments to OAL once the DOJ proposes its emergency regulations. In the meantime, if you are affected by the new FSC laws in any way, please notify our attorneys here.

Help CRPA and NRA to Help You

You can assist in the fight to defend gun owners’ rights in California courts by donating to The California Rifle and Pistol Association Foundation and the NRA Legal Action Project today. For a summary of some of the many actions the CRPA and NRA have taken on behalf of California gun owners, including the tremendous recent victory in the Peruta case click here. Second Amendment supporters should be careful about supporting litigation efforts promised by other individuals and groups without access to the necessary funding, relationships, firearm experts, and experienced lawyers on the CRPA – NRA’s national legal team. The CRPA – NRA’s team of highly regarded civil rights attorneys and scholars has the resources, skill and expertise to maximize the potential for victory. (Thanks to Dr. Bruce Krell from http://www.shooters-edge.com for his help preparing this case.) See Proposed Emergency Regulations Under Review, OAL, http://www.oal.ca.gov/Emergency_Regulations_Under_Review.htm (visited Jan. 26, 2015).