SB 1327 - Private Claims Against the Gun Industry

One of the more controversial laws going into effect on Jan. 1 is SB 1327, signed by Gov. Newsom on July 22. In response to a Texas law that gives private individuals a right to seek civil damages from those who provide or assist with the provision of abortion services, this new law creates a private right of action against those who manufacture or distribute certain types of weapons within California.

Specifically, the law empowers individuals to sue anyone who, within the state, "(1) manufactures or causes to be manufactured, distributes, transports, or imports into the state, or causes to be distributed or transported or imported into the state, keeps for sale or offers or exposes for sale, or gives or lends any firearm lacking a serial number required by law, assault weapon, or .50 BMG rifle; (2) purchases, sells, offers to sell, or transfers ownership of any firearm precursor part that is not a federally regulated firearm precursor part; or (3) is a licensed firearms dealer and sells, supplies, delivers, or gives possession or control of a firearm to any person under 21 years of age."

Notably, the California gun law would become null and void upon invalidation of the abortion law in Texas, and its provisions would be repealed on Jan. 1 of the following year. As drafted, the law amends the Business and Professions Code by adding Section 22949.60, with the legislative intent clearly spelled out:

"It is the intent of the Legislature in enacting this chapter to further restrict in this state the manufacture, distribution, transportation, importation, sale, lending, and transfer of assault weapons, .50 BMG rifles, and unserialized firearms, and further restrict the proliferation of firearms to and among those under 21 years of age, by creating new civil law prohibitions and a civil enforcement mechanism, independent of existing law."

The bill is drafted to make it difficult to mount a defense against private lawsuits. It mandates that damages of at least $10,000 per gun - similar to damages in Texas abortion cases - be awarded, even if a judge declares the law invalid. All provisions of the bill are severable so that if the lawsuit provisions are declared unconstitutional, civil penalties could be substituted in their place:

"If any court declares or finds a provision of this chapter facially unconstitutional, when discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating the United States Constitution and the California Constitution, those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted as if the Legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application will not violate the

United States Constitution and the California Constitution."

In reality, there is little chance that private lawsuits will be brought under SB 1327. The firearms in question are already illegal under California law. Makers of black market "ghost guns" would be hard to identify and likely have insufficient funds to make a lawsuit worthwhile. Finally, federal law provides broad protections from liability to gun makers whose products are used in the commission of crimes or for other nefarious purposes. Any SB 1327 lawsuits are thus likely to become tied up in a legal quagmire because of these conflicting laws.