Private Benjamins

Benjamin, “[a] term that refers to the $100 dollar bill of the U.S. currency that uses a picture of Benjamin Franklin.” (slang.net/meaning/benjamin.)

As promised (or threatened), California Governor Gavin Newsom took a page from the Texas legislature’s book and signed a gun control bill with a bounty hunter provision modeled on Senate Bill 8, the “Texas Heartbeat Act.” SB 8 prohibits an abortion after a “fetal heartbeat” is detectable. SB 8 limits enforcement exclusively to a civil action brought by a private person (i.e., not a public official) for injunctive relief and statutory damages not less than $10,000, as well as costs and attorney’s fees, against any person who performs or induces an abortion, aid or abets inducement or performance of an abortion, or intends to do either of these things. The objective of the civil enforcement limitation was to evade a constitutional challenge under Roe v. Wade, 410 U.S. 113 (1973), to implementation of the law by removing the target defendants, public officials, from the equation, leaving no one to sue pre-enforcement. The United States Supreme Court denied a request for emergency injunction against SB 8, which was seen as tacit approval of the scheme. Eventually, in Whole Women’s Health v. Jackson, 21-463 (S. Ct filed Sept. 21, 2021), the court allowed pre-enforcement suit against medical licensing officials, again not ruling on the validity of private enforcement.

The world changed when the court overruled Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, 19-1392 (S. Ct., filed June 15, 2020). Now Texas could do directly what SB 8 did indirectly. But the concept of private enforcement of what would otherwise be a criminal proscription (in a “fetal personhood” state, abortion is murder) by a civil action for damages, where the plaintiff has suffered no personal injury, property loss, or breach of contract, remains if not expressly approved by the Supreme Court not disapproved either.

Cue Governor Gavin Newsom. As Justice Sonia Sotomayor previewed in her dissent in Whole Women’s Health v. Jackson, the California Governor has signed an SB 8 copycat bill, Senate Bill No. 1327, aimed at gun rights. Liberal tit for conservative tat. The language of exclusive civil enforcement in SB 1327, as well as the controversial aiding and abetting liability provision, is substantially identical to SB 8, as is SB 1327 generally. Governor Newsom has indicated that the purpose of SB 1327 is as much to prove a point as to take aim (so to speak) at the proliferation of illegal guns in the state.

Putting aside the subject that fascinates most commentators – the legitimacy of legislation seeking to evade judicial review of its constitutionality – what of arming non-officials with the ability to sue people for criminal conduct? In Texas, the legislature has banned abortion, but neighboring states have not, a situation which prompts creation of an underground railroad, if you will, to help pregnant people who want an abortion to travel to another state where it is legal. This conduct would appear to be the basis for a civil suit against Texans under the aiding and abetting provision of SB 8 for money damages and attorney’s fees (which, by the way, only the plaintiff may collect as the bill expressly prohibits an award of attorney’s fees to a defendant). An enterprising anti-abortion organization, in order to facilitate SB 8 suits, might be incentivized to develop an apparatus for collecting information on any person or organization involved in helping a person seeking an abortion to travel from Texas to another state. An anti-abortion activist who learns that a neighbor intends to drive a daughter, wife, sister or other relative or a nonrelative to another state for an abortion is now in possession of sufficient information to file suit potentially for a quick $10,000. Further, an SB 8 bar of anti-abortion attorneys might arise in light of the one-way attorney’s fees provision in SB 8. A defendant sued under SB 8 might be warned by the plaintiff or plaintiff’s lawyer to settle and not fight the suit because to do so will only increase the fee award.

Lest anyone think that the onerous effects of a bounty hunter provision are limited to anti-abortion zealots in Texas, consider the scenario in California of a son who tells his anti-gun dad that that the boy’s friend showed him his dad’s standard AR-15, which a friend of that dad visiting Florida bought at the dad’s request because he couldn’t buy it in California (that is, unless a recent federal district court decision overturning California’s assault weapons ban is upheld on appeal). The anti-gun dad now has information on which to base an SB 1327 suit potentially against multiple defendants. Indeed, a stroll around a gun show striking up friendly, casual conversations with attendees chafing at California’s gun restrictions might yield a treasure trove of information for SB 1327 suits.

In “Reversal of Fortune,” the fictional Alan Dershowitz, in real life currently reduced to complaining about his ostracism in the liberal enclave where he lives on Martha’s Vineyard, explains that he takes cases because he is “pissed” off. Dershowitz takes on the defense of Claus Von Bulow because Dershowitz is “pissed off here. The family hired a private prosecutor: unacceptable! They conducted a private search! Now, if we let them get away with that, rich people won’t go to the cops any more. You know what they’re going to do. They’re going to get their own lawyers to collect evidence – and then they are going to choose what evidence they feel like passing on to the DA.”

To be fair, this argument was rejected by the court that eventually acquitted Von Bulow. Nonetheless, it is chilling that SB 8 and SB 1327 go farther than the family in “Reversal of Fortune” and eliminate the middleman, the district attorney, allowing anyone to maintain in effect a private prosecution by substituting a judgment for money damages and attorney’s fees in place of a criminal conviction. If anything, an SB 8 or SB 1327 lawsuit – easy to file and lacking the procedural protections of a criminal prosecution, including the burden of proof beyond a reasonable doubt – could become a popular means to punish and deter conduct that a state controversially wants to proscribe. Legislatures in other states might be tempted by SB 8 and SB 1327 to adopt similar laws in such circumstances.

Over and above the ostensible purpose of SB 8 and SB 1327 to avoid judicial review – an issue the majority of the Supreme Court seems to have little interest in – the problem with this kind of legislation is its effect on the social fabric. It pits ordinary people against each other and exacerbates an already excessively polarized populace. It creates an incentive for people to investigate and seek to punish others over issues like abortion and gun ownership that are extraordinarily divisive. The crucial mitigating influence of prosecutorial discretion over which cases to prosecute and how is taken out of the picture. (See People v. Birks (1998) 19 Cal.4th 108, 134 [“It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring”.].) To be sure, in the present circumstances, SB 8 and SB 1327 look like little more than a pissing contest between Governors Greg Abbott and Newsom. But the potential for statutes promoting private prosecution for money to get out of hand would seem obvious. To quote Cyndi Lauper: “We think we know what we’re doing/We don’t know a thing/ . . . /Money changes everything.”