SAN FRANCISCO (CN) — A federal judge on Thursday kept alive California's bid to force the federal government to crack down on ghost guns.
Senior U.S. District Judge Edward Chen rejected the federal government’s attempt to dismiss the lawsuit brought by California and nonprofit Giffords Law Center against the Bureau of Alcohol, Tobacco, Firearms and Explosives.
However, he ordered that two individual plaintiffs be removed from the case and granted a motion to dismiss the “alternative” claim for relief, although the remaining plaintiffs are not barred from raising that claim in the future “should circumstances change.”
Former California Attorney General Xavier Becerra, the law center and plaintiffs Bryan Muehlberger and Frank Blackwell sued the federal government in 2020, fed up with increasing gun crimes and shootings using untraceable homemade firearms.
California demanded that the Bureau of Alcohol, Tobacco, Firearms and Explosives crack down on ghost guns that skirt mandates on background checks and age verification. It also requested a court order nullifying the ATF’s classification of an unfinished rifle or pistol frame as not a firearm, and a finding that its guidance on 80% receivers and frames is arbitrary and capricious under the Gun Control Act.
Lacking a commercial serial number and purchasable without a background check, ghost guns are not considered firearms subject to ATF regulation because a central piece, — the receiver or frame of the weapon housing all of its internal components — is not finished.
California argues the Gun Control Act expressly provides that a receiver or frame can be considered a firearm because such pieces are “designed to or may readily be converted” into functional weapons. According to the lawsuit, ghost guns are becoming the “weapon of choice” for gun traffickers, gangs, and political extremists like Steven Carrillo, who shot and killed federal officer David Underwood outside the federal courthouse in Oakland in 2020.
In an 18-page motion to dismiss filed this past November, the federal government argued the individual plaintiffs lack standing because the original complaint did not specify how they or family members would be “realistically threatened” by a crime committed with an unserialized firearm made from a receiver blank that would not be classified as a firearm under the Final Rule.
Litigation was paused because in 2021 following several mass shootings, “the White House announced that it intended to ‘issue a proposed rule to help stop the proliferation of ghost guns.'” ATF released a final rule April 2022 saying the terms “frame” and “receiver” shall include “a partially complete, disassembled, or nonfunctional frame or receiver designed to be completed … but shall not include a forging, casting or unmachined body that is not clearly identifiable as an unfinished component part of a weapon.”
The plaintiffs said the final rule took steps to eliminate ghost gun-making kits, but criticized it for allowing the sale of "80%" receivers and frames as stand-alone items. They said the final rule was “arbitrary and capricious” for this reason.
Several ghost gun manufacturers have filed lawsuits in other federal courts, challenging the final rule’s validity.
In his ruling issued Thursday, Judge Chen found California has sufficiently established standing to proceed with the litigation due to proving possible injury resulting from the final rule's effects. He said it is predictable that "'80%' receivers or frames will be sold standalone, and that ghost gun manufacturers have already advised consumers to purchase such receivers or frames separately “to avoid regulation under the final rule."
Chen also said it is plausible that some may be used in crimes, because the entire point of buying these pieces separately is to avoid regulation and tracking through serialization.
“This may be reasonably inferred from the substantial number of ghost gun seizures in the state in connection with crimes over the years,” he said.
The Barack Obama appointee noted that in California v. Azar, the Ninth Circuit Court concluded the state did have standing to bring suit because, although the law could argue that the state contributed to its own injury, it was not true the state's injury is self-inflicted. The panel pointed out courts regularly entertain actions brought by states and municipalities that face economic injury “even though those governmental entities theoretically could avoid the injury by enacting new legislation.”
Chen said this shows California cannot be blamed for “avoiding” injury by enacting legislation to fill the regulatory gap left by the ATF, and could claim to face injury resulting from a regulatory gap if it does not enact legislation.
He dismissed the two individual plaintiffs, Blackwell and Muehlberger, because they could not prove there is a likely ghost gun epidemic in their cities — Santa Monica and Santa Clarita — even if they proved those pieces are being sold standalone in Los Angeles County. The plaintiffs can join in an amicus capacity if desired.
He granted the federal government’s claim that the state and nonprofit’s alternative claim for relief – that if the final rule was altered or amended, then prior ghost gun determinations will be reactivated to fill the void – should be dismissed, because it has “a problematic ripeness problem.”
The judge also said intervenors attempting to join did not give persuasive arguments, and ignored the fact that he already allowed plaintiffs to file an amended complaint. He said their motion to stay was not warranted because plaintiffs have been “diligent” in litigating the case since 2020.
The judge expedited briefings, ordering intervenors to file a supplemental brief by Feb. 23. By March 9, any opposition to intervention must be filed.
Attorneys for the plaintiffs and the federal government did not respond to requests for comment by press time.
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