Judge Plans to Block California Fee-Shifting Statute That Targets Gun Lawsuit Plaintiffs (and Lawyers)

From AP (Julie Watson):

U.S. District Judge Roger T. Benitez said he plans to issue an injunction because the law would force people who challenge any of California's famously restrictive gun laws to pay the government's legal fees if they lose.

Benitez said this would have a "chilling effect" on the public's right to challenge the government in court because people would not want to take the risk of being liable for expensive legal fees….

Benitez has not officially issued his ruling yet, but announced his decision during a hearing at a federal courthouse in San Diego….

The law is modeled after a Texas measure passed in 2021 that aimed to enforce that state's ban on most abortions….

I'll blog about the opinion when it comes out; for more on the law, see this post.

Comments

[John F. Carr]

The docket is here: https://www.courtlistener.com/docket/65377309/miller-v-bonta/

As I write this the most recent documents are the briefs concerning the request for a preliminary injunction.

[elnurmamedrafiev]

It should be the opposite. Plaintiffs should be reimbursed on gun cases whether the state or city wins or not. Also, the cities and states should not be allowed to indemnify legislators who enact unconstitutional laws.

Oh, and the concept of legislative and judicial immunity needs to go, for good. If nasty c**ts like Kathy Hochul had to do jail time if they lost, they'd stop with the unconstitutional laws.

[Sarcastr0]

Thank goodness you censored the word cunt.

My virgin eyes are safe!

[Mr. Bumble]

I thought he meant coots. Why would you thick of Hochul as a nasty cunt?

[Michael P]

Some possibilities are more biologically oriented: cysts or clots.

[Rev. Arthur L. Kirkland]

Careful, Sarcastro. Prof. Volokh has acknowledged that he sometimes censors vulgarity.

But not always . . . for example, when the speaker is a movement conservative, a pass is customary. You seem vulnerable.

[MoreCurious]

I wouldn't worry too much. If elnurmamedrafiev and Frank Drackman -- with their bigotry and obsessions about sex between men -- can avoid censorship, I think Sarcastro is probably safe.

[Rev. Arthur L. Kirkland]

That's what Artie Ray Lee Wayne Jim-Bob Kirkland thought . . . until Prof. Volokh and the Volokh Conspiracy Board of Censors banned him.

[Gandydancer]

And yet you are still here, tediously rehearsing your butthurt.

[Aubrey LaVentana]

Disagree, Reverend. Sarcastr0 is distinguishing between use and reference. Elnurm… employed asterisks to avoid outright use of the pejorative. Sarcastr0 was referring to elnurm…’s use, or non-use, of it.

One can challenge whether obscuring use is still use. But Sarcastr0 wasn’t using.
This blog features articles on the distinction, and how that distinction should enjoy freedom-of-speech and academic freedom protections in court, the classroom, and the public.

Here's another example. Another commenter on this blog elsewhere referred to Republicans as assholes. I'm not calling them assholes, the other commenter did.
Oh, wait, that was you.

[Gandydancer]

I n the immediate aftermath of local George Floyd riots I was banned from NextDoor.com because I informed another poster who had complained about being called a “coon” that the woman she had accused of calling her a coon had not done so since the actual poster who had called an apparently black woman* a coon had identified himself, when challenged as a black man thus making the epithet ok in his estimation.

I wrote Nextdoor asking why they had banned me (as is apparently typical, they hadn’t told me why, apart from some boilerplate about “violating community standards”) and they produced my post informing the complainant of her error. They said “If I had any further questions…” so I followed up pointing that =I= hadn’t called anyone anything. But they didn’t respond and I am still banned.

So I can testify from personal experience that the distinction you mention isn’t universally recognized.

* I didn’t at first realize it, but the apparently black woman who had been called a coon was not THIS apparently black woman, who seems to have been making her outrage out of COMPLETELY whole cloth.

[Aubrey LaVentana]

Disagree, Reverend. Sarcastr0 is distinguishing between use and reference. Elnurm... employed asterisks to avoid outright use of the pejorative. Sarcastr0 was referring to elnurm...'s use, or non-use, of it.

One can challenge whether obscuring use is still use. But Sarcastr0 wasn't using.

[Aubrey LaVentana]

Disagree, Reverend. Sarcastr0 is distinguishing between use and reference. Elnurm... employed asterisks to avoid outright use of the pejorative. Sarcastr0 was referring to elnurm...'s use, or non-use, of it. This blog features articles on the distinction, and how it should enjoy freedom-of-speech and academic freedom protections in court, the classroom, and ((guardedly) in public.

One can challenge whether obscuring use is still use. But Sarcastr0 wasn't using.

Here's another example. A commenter here refers several times to certain Republicans as assholes. That I point this out does not equate to me calling them assholes. He did. Reference versus use.

In fact, that was you.

[Rev. Arthur L. Kirkland]

Let's hear your argument that John Eastman isn't an un-American asshole.

Or your argument that Prof. Volokh's enthusiastic endorsement of un-American asshole John Eastman isn't hanging out there like a rotting corpse.

Carry on, clingers.

[Bored Lawyer]

Let's hear your argument as to why anyone here should care about your irrelevant deflections.

[Gandydancer]

Even he must know by now that we do not care, but he must get some masturbatory pleasure out of his tedious repetitive posts. Like when he buggers some sex doll this is something we don't need to see, but there you are. There's no point, I'm sure, in EV playing whack-a-mole with his new accounts, since the first ban didn't work.

[Frank Drackman]

What's difference between the Stanford Women's Track team and the Stanford Chess Club?

[Gandydancer]

Is the same tranny the star of both?

[David Nieporent]

Also, the cities and states should not be allowed to indemnify legislators who enact unconstitutional laws.

They don't indemnify legislators who enact unconstitutional laws.

There's no need, since legislators can't be sued in the first place for enacting laws.

[Gandydancer]

He didn't say that that immunity didn't exist, he said it needed to go.

Is there some actual Constitutional, as opposed to judge-invented, bad to prosecution for legislative or judicial deprivation of rights?

[Gandydancer]

* ban

[Michael Ejercito]

On the merits, the law is problematic because it singles out Second Amendment challenges as opposed to First, Fifth, or unenumerated rights challenges.

But even if the law broadly requires plaintiffs to pay legal costs if they lose any legal challenge against state laws, regardless of the plaintiffs' rationales, who would get enjoined?

[Gandydancer]

Can’t collect on any judgment without the involvement of a state actor. Don't see why that wouldn't apply to SB8 convictions, but there couldn't be any before Roe was overturned.

But here the AG can be directly enjoined from even asking for the reimbursements.

[bevis the lumberjack]

Wow, it’s amazing how badly California wants to be so much like us, if only on the shitty oppressive borderline unconstitutional stuff. Proud of you little brother!!!!!

[Flight-ER-Doc]

I loved it when Benitez asked Newsome's personal attorney (since the AG bailed on the case) if he would be willing to personally cover the plaintiffs costs...

[Rev. Arthur L. Kirkland]

If you liked that, you are going to love the professional disciplinary proceedings against the Republican assholes (and Federalist Society members) who filed a series of frivolous, un-American actions on behalf of another bunch of delusional conservative clowns with respect to "stolen elections."

On second thought, I probably should be careful about referring to un-American assholes as un-American assholes at the Volokh Conspiracy, because this white, male, right-wing blog finds un-American assholes to be just dreamy.

(Has Josh Blackman been revealed to have had a role in the Eastman-Clark-Perry-Stone-Ginni Thomas-Meadows-Giulian-Powell-Ellis effort to subvert American democracy yet? I doubt Prof. Volokh was the only Conspirator who cuddled with those un-American assholes.)

[Armchair Lawyer]

Oh lord... What next? Criminal defendants needs to reimburse the state if their lose their criminal defense case against the state?

"You have the right to a lawyer. If you cannot afford a lawyer, one will be provided for you. If you choose to plead innocent to your case and lose, you will be charged the cost of the states legal fees, which may be tens to hundreds of thousands of dollars".

[Michael P]

And while California is at it, why not restrict that clause to prosecutions for illegal gun possession?

[Noscitur a sociis]

It is extremely common to assess some of the costs of prosecution, imprisonment, and appointed counsel against convicted defendants.

[Armchair Lawyer]

So you're right. Turns out one of the major culprits was...California.

So, take a relatively minor crime. You expanded your living room without a building permit. You pled guilty and paid the $900 fine.
Whoops. Turns out you also owed the prosecution costs. $26,000. Oh, you wanted to appeal that? Now you owe $31,000.

An Indio woman who strung a Halloween decoration across the street in front of her home – then pleaded guilty to a crime no more serious than a speeding ticket at her first court appearance – was billed $2,700. In these cases, the bills got larger when the defendants dared to object. The Halloween decoration bill rose from $2,700 to $4,200.

https://www.desertsun.com/story/news/crime_courts/2017/11/15/he-confessed-minor-crime-then-city-hall-billed-him-31-k-his-own-prosecution/846850001/

Good ol' CA....

[Brett Bellmore]

There's a similar scam back in Michigan with tax increment districts. Creating one is subject to a vote, but once that vote takes place, they can decide afterwards how much tax they'll levy.

Well, you can request a public hearing at which the decision can be appealed. But you'll have to pay for it, win or lose.

Since all you're paying for is an opportunity for the people running the district to say, "Here's the bill for wasting our time." basically nobody ever exercises this right.

[Michael Masinter]

How does the threat posed by the fee shifting provision differ from the Texas fee shifting provision in private plaintiff (vigilante) suits against abortion providers thought to have violated Texas law that, per SCOTUS, did not present a justiciable controversy?

[Gandydancer]

One involves the government penalizing you for making a constitutional challenge to its laws while the other involves penalizing convicted lawbreakers. Duh.

Needless to say, there is no “THOUGHT to have violated” conditionality in SB8.

[Michael P]

Texas SB8 establishes a civil cause of action, not a crime, so no one is "convicted" under it.

[Gandydancer]

The law already made most of what they can be accused of crimes and now that Roe is out of the way TX can convict the guilty, I assume. But I accept the correction to "penalizing lawbreakers".

But the "how does it differ" question was nonetheless tendentious in a quite silly way.

[Brett Bellmore]

The Texas law was intended to discourage challenges to a law infringing a fake civil right, while the California law is intended to discourage challenges to laws infringing a real civil right.

Otherwise they take generally the same highly offensive approach.

The Texas law didn't actually kick in until Roe was overturned, so it wasn't particularly subject to legal challenge until Dobbs. It's certainly subject to challenge NOW.

The California law doesn't even have that defense, it is already in effect and subject to challenge. Obviously so, the OP is about such a challenge.

[Bored Lawyer]

Since constitutional challenges are generally brought under Section 1983, why would this law not be pre-empted, assuming the challenge is brought in federal court?

[Gandydancer]

Scenario: The AG charges in State court. The charged challenges in Federal court under 1983, loses, and loses again in CA court.. The AG then bills the convicted for all costs, including maybe the costs of the defense of the charge in Federal court. Make your argument for why he can't do this. You may be right (maybe only for the Federal case costs) but waving the magic word "preemption" is insufficient.

[Bored Lawyer]

The federal court is governed by federal law, specifically 42 USC 1988. The state in theory can recover under that statute as the prevailing party. But the Supreme Court has held that a prevailing defendant can only be awarded fees upon a showing that the claim was "frivolous, unreasonable, or without foundation." Fox v. Vice, 563 U.S. 826, 833 (2011). This was adopted for policy reasons, not to chill civil rights claims.

California law awarding fees under a different (presumably more liberal) standard interferes with the federal policy of encouraging civil rights claims, unless they are clearly meritless. So that should pre-empt fees for the federal court proceedings.

Furthermore, if the State moved for fees in federal court and was denied, then that is res judicata.

I don't think pre-emption would apply to the State court proceedings, although maybe some other doctrine might.

[Bored Lawyer]

Thinking about this more, any claim under Section 1983, whether in federal court or state court would be governed by the federal standard set out by the Supreme Court. State courts are not free to fashion their own standards.

As for state court, I suppose a challenge under state law could be governed by state law.