Sharp v. Becerra Case Update
By George Lee, lead counsel
Seiler Epstein LLP
Yesterday afternoon, Judge Morrison C. England, U.S. District Court Judge for the Eastern District of California, denied the defendants’ motion to dismiss the plaintiffs’ claims in Sharp, et al. v. Becerra, et al. (E.D. Case No. 2:18-cv-02317-MCE-AC). This case deals with people who were denied the ability to register their firearms, putting them in legal jeopardy, because of what we allege are systemic issues within California DOJ, not the least of which was the DOJ’s non-functioning website that was plagued with problems, preventing many law-abiding gun owners from complying with the registration requirement.
We filed this case in 2018, shortly after the California Department of Justice closed its website that required all owners of California-compliant so-called “assault weapons” (the California kind, that were equipped with magazine locking devices, i.e., “bullet buttons”).
In 2016’s “Gunpocalypse”, the California legislature, in enacting Sen. Bill 880 and Assembly Bill 1135, defined “assault weapon” to include many of these legally-owned firearms, and required California gun owners to register them (Penal Code § 30900(b)(1)), and allowing those who timely registered those guns to keep them. (Pen. Code § 30680(c)). The Legislature also required the DOJ to create a functional “public-facing” Internet based registration system for this purpose.
We now know that the DOJ had estimated that perhaps as many as 250,000 gun owners, owning possibly as many as 1.5 million such firearms could have been expected to register them. That shows the popularity of this type of arm – common, constitutionally-protected semi-automatic firearms, including the nationally-popular AR-15 platform rifle.
At the same time, however, the DOJ was woefully unprepared, understaffed, and under-budgeted to deal with this crush of State-mandated registrations. And the DOJ knew it.
Many California gun owners, like our clients – who were simply trying to avoid serious criminal liability by complying with the law – were unable to register their firearms before the deadline. Many were simply “timed out” by the DOJ’s Web application, or found the DOJ’s website completely inaccessible. Others who were able to access the website found that it was unable to process the four photographs that the DOJ had required, thus resulting in failures. (The requirement for photograms was the DOJ’s own made-up invention, by the way. It wasn’t required by statute.) Some others got as far as being able to prepare everything for submission, but when they clicked on the “submit” button, the system would crash, causing them to lose their work and have to start over (if the system then even allowed that).
Seven individuals throughout the state who experienced these types of problems joined our lawsuit and are named in the case. However, after the DOJ’s website disaster, including after the deadline passed, I personally spoke with many other gun owners who experienced similar problems. So these were not simply aberrations, nor were they “user errors” as the DOJ tried to suggest. This was a systematic failure on the DOJ’s part.
Some of our clients attempted to call the DOJ to explain that the website wasn’t functioning. The DOJ’s standard response was to blame the gun owner for “waiting until the last minute” to attempt registration. This, despite the fact that the DOJ’s website ominously had a “countdown clock” literally ticking the last day, hour, minute and second that gun owners had to comply with the requirement. We now know from documents produced in discovery that this attitude of victim-blaming went to the highest levels of the DOJ.
The ruling by Judge England supports our theory that the DOJ’s failures to maintain a functioning website may rise to the level of a due process violation under the Constitution. In fact, these systemic failures, in addition to the countdown clock, supports an inference of “deliberate indifference” on the part of the DOJ.
In essence, they knew that gun owners wouldn’t be able to comply with the registration requirement under the law—and they simply didn’t care.
For example: “Those who waited until the last day will just have to keep trying and if they are unable to register that is on them,” said one DOJ administrator.
Another high-ranking DOJ official said in response to a suggestion that the failures might result in a lawsuit said, “Not going to please everyone. 😉”.
We are looking forward to proceeding to the next phases of the case, where we will continue to uncover documents, and find witnesses who will demonstrate that the DOJ’s failure to create a functioning website violated basic principles of due process, fundamental fairness, and only served to make technical criminals out of people who were simply trying to comply with the law.