The Volokh Conspiracy

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No Second Amendment or Privacy Right Problem with California Laws Disclosing Firearms Purchaser Information to Certain Researchers


From today's decision in Doe v. Bonta, written by Judge Mary Schroeder and joined by Judges Patrick Bumatay and Salvandor Mendoza:

California's DOJ maintains two databases relevant to this case. The first database relates to purchasers of firearms and applicants for CCWs. It is called the Automated Firearm System ["AFS"]. The second relates to purchasers of ammunition and is known as the Ammunition Purchase Records File ["APRF"]…. California has long permitted disclosure of information from these databases to a wide range of public officials, primarily for law enforcement purposes….

DOJ is statutorily required to include in the AFS the following personal information about gun purchasers and CCW holders: name, address, identification, place of birth, telephone number, occupation, sex, description, and legal aliases. The APRF contains similar information collected from ammunition vendors. Plaintiffs do not object to the existence of these databases or to dissemination of the information for law enforcement purposes….

The legislation at issue in this case, AB 173, became effective in September 2021. It amended the existing statutes to require DOJ to disclose data from these databases to researchers. The statute itself names as a recipient of the information the California Firearm Violence Research Center at University of California-Davis. The Center is a state institution the legislature created to do research on firearm violence, in order to inform policy and assist the legislature in enacting appropriate legislation. The statute also permits DOJ in its discretion to share information from these databases with other accredited, non-profit research institutions studying firearm violence. Currently, Stanford University houses the only institution so authorized.

Several gun owners sued, but the court rejected their arguments. First, as to the right of privacy:

Our court has recognized a right to informational privacy under the Fourteenth Amendment stemming from an individual's interest in avoiding disclosure of personal matters. In Doe v. Garland, we described such matters as "highly sensitive" personal information, like medical records relating to abortion. We held that the information at issue there—plaintiff's name, age, and employment history, and the charges against him—was not similarly sensitive and thus did not implicate the right to informational privacy.

The personal information that is contained in DOJ's databases is not highly sensitive either. It consists largely of biographical data, which we have recently observed does not implicate the right to informational privacy. In considering the disclosure of juvenile records, we have distinguished between "innocuous biographical data" and "intimate" information such as "medical diagnoses, reports of abuse, substance-abuse treatment records and the like." Other decisions further illustrate the kinds of intimate information that are protected. See, e.g., Planned Parenthood of S. Ariz. v. Lawall (9th Cir. 2002) (information regarding an abortion decision); Thorne v. City of El Segundo (9th Cir. 1983) (information regarding sexual activity). The AFS and APRF contain only identifying information that is not intimate personal information that would implicate the right to privacy under our decisions….

Second, as to the Second Amendment:

AB 173 does not regulate the conduct of persons. The law is directed at DOJ and requires it to share data from its databases with researchers. Thus, AB 173 does not regulate conduct protected by the plain text of the Second Amendment or impede plaintiffs' ability to purchase, keep, carry, or utilize firearms.

Plaintiffs alternatively contend that even if AB 173 does not actually impede their ability to keep and bear arms, it chills them from exercising their Second Amendment rights. Plaintiffs claim that, as a result of AB 173, they fear increased risk of public exposure and harassment, and that such fears discourage them from purchasing firearms and ammunition and from applying for CCWs. Plaintiffs' fears of public exposure, however, appear to be speculative and lacking in empirical foundation. AB 173 authorizes disclosure of biographical information only to accredited research institutions, and as the district court explained, research institutions are prohibited from publicly disseminating personal information.

The record reflects that DOJ also requires researchers to abide by strict data security precautions to prevent disclosure. There is no allegation that approved research institutions have violated the restrictions imposed on them, that the institutions have been responsible for any public leak of information, or that the institutions have been the victims of hacking. In sum, neither plaintiffs' subjective fears of possible future harm nor their choice to refrain from exercising their Second Amendment rights is a concrete injury. A feared future injury must be "certainly impending"; speculative fears relying upon a "chain of contingencies" and self-inflicted injuries based on "fears of hypothetical future harm" are insufficient to establish a cognizable injury.

Plaintiffs have not plausibly alleged they will suffer any cognizable Second Amendment injury as a result of AB 173. As the district court concluded, "[p]ermitting gun owners' information to be shared under strict privacy protection protocols for legitimate research purposes … [does not] restrict conduct covered by the plain text of the Second Amendment and [is] permissible."

The court also concluded that the relevant statutes didn't call for disclosure of social security numbers, and thus didn't implicate the federal Privacy Act or any informational privacy right focused on SSNs.

Sebastian Brady argued the case for the state.