Ruling in Silvester v. Harris

JEFF SILVESTER, et al., Plaintiffs
v.
KAMALA HARRIS, Attorney General of California, and DOES 1 to 20, Defendants

CASE NO. 1:11-CV-2137 AWI SAB

FINDINGS OF FACT AND CONCLUSIONS OF LAW

[…]

After considering the evidence and the arguments, the Court concludes that Penal Code § 26815(a) and § 27540(a)’s 10-day waiting periods impermissibly violate the Second Amendment as applied to those persons who already lawfully possess a firearm as confirmed by the AFS, to those who possess a valid CCW license, and to those who possess both a valid COE and a firearm as confirmed by the AFS system, if the background check on these individuals is completed and approved prior to the expiration of 10 days. Because of the Court’s resolution of the Second Amendment issue, the Court need not reach the Fourteenth Amendment challenges.

[…]

The Court has found that the 10-day waiting periods of Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to certain groups. Plaintiffs urge the Court to follow the approach of Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), in which the Seventh Circuit stayed its ruling for 180-days in order to give the Illinois legislature the opportunity to craft new laws in light the unconstitutionality of various Illinois firearms laws. The Court finds Moore’s approach to be appropriate.

Accordingly, IT IS HEREBY ORDERED that:

1. The 10-day waiting periods of California Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to those individuals who successfully pass the BFEC/standard background check prior to 10 days and who are in lawful possession of an additional firearm as confirmed by the AFS system;

a. If the BFEC/standard background check for such an individual is completed and approved before 10-days, Defendant shall immediately release the firearm for delivery to such individual and shall not wait the full 10-days;

2. The 10-day waiting periods of California Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to those individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess a valid CCW license issued pursuant to California Penal Code § 26150 or § 26155;

a. If the BFEC/standard background check for such an individual is completed and approved before 10-days, Defendant shall immediately release the firearm for delivery to such individual and shall not wait the full 10-days;

3. The 10-day waiting periods of California Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to those individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess both a valid COE issued pursuant to California Penal Code § 26710 and a firearm as confirmed by the AFS system.

a. If the BFEC/standard background check for such an individual is completed and approved before 10-days, Defendant shall immediately release the firearm for delivery to such individual and shall not wait the full 10-days;

[…]

5. Nothing in this order is to be construed as interfering with Defendant’s authority to deny a transfer or sale of a firearm to those who are prohibited by state or federal law from possessing a firearm;

6. Nothing in this order is to be construed as interfering with the Defendant’s ability to delay a transfer or sale of a firearm when further investigation is required to confirm that a buyer or transferee is not prohibited by state or federal law from possessing a firearm;

7. Paragraphs 1 through 6 of this order are stayed for a period of 180 days from entry of this order;

8. The parties shall appear for a status conference on December 8, 2014 in Courtroom No. 2 at 1:30 p.m.;44 and

9. The Clerk shall enter judgment in favor of Plaintiffs and against Defendant.

IT IS SO ORDERED. Dated: August 22, 2014


Silvester v Harris No 10 Day Waiting Period for Current CA Gun Owners

Author: Greg Raven

Trained with Chuck Taylor. What else is there to know?