National News

More than a decade after it passed, California gun law still being fought in court

Posted April 4, 2018 7:17 p.m. EDT

SAN FRANCISCO -- It's been more than a decade since state lawmakers passed a law requiring expended shell casings from new-model semiautomatic pistols to carry identifying marks called microstamps, which police would be able to use to pinpoint a gun used in a crime.

But, despite support from law enforcement, the stamps have yet to appear on any guns in California.

Firearms manufacturers say microstamping is still beyond the range of modern technology. They've refused to sell new models of the handguns in the state since the law took effect, and on Wednesday they asked an apparently skeptical state Supreme Court to halt the law's enforcement.

``The Legislature is requiring something that is totally impossible,'' Lance Selfridge, a lawyer for the National Shooting Sports Foundation, said at a one-hour hearing in Los Angeles. He contended the microstamping law violates a ``maxim'' that legislators adopted as a statute in 1872 declaring that ``the law never requires impossibilities.''

The state's lawyer, Deputy Attorney General Janill Richards, disagreed. Gunmakers, she countered, will have the means to comply with the law sometime in the foreseeable future, and the lawmakers are entitled to enact such challenging measures as ``an incentive to push technology forward.'' The general wording of the 1872 law, she said, was not a barrier, and several justices appeared to agree.

Why would a new law, enacted more than a century later, ``violate (the 1872 law) as opposed to superseding it?'' asked Justice Leondra Kruger. ``The Legislature can change the law'' by passing later, more specific laws, she said.

Chief Justice Tani Cantil-Sakauye noted that courts presume new laws are valid and require opponents to prove they are unconstitutional. Even if the 1872 maxim also has the force of law, she asked, ``why would it invalidate another statute?''

And Norman Epstein, a state appeals court justice from Los Angeles assigned to the case in place of the retired Justice Kathryn Mickle Werdegar, questioned whether such maxims are ``legislative commands'' rather than non-binding guidelines.

The court will rule on the case within 90 days.

The microstamping law, passed in 2007, was drafted to take effect for new semiautomatic handgun models when state officials certified that technology was available to implement it. It won support from law enforcement as a crime-solver, but gunmakers said it would increase their costs and could be evaded by criminals.

Although certification from the state was made in May 2013, the only semiautomatic handguns sold in California have been older models that do not have to comply with the law.

Microstamping imprints a serial number on shell casings when a gun is fired. The state law requires a stamp in two places, but gunmakers say the imprint on a casing can be made only when it is struck by the firing pin. There is no way to stamp a shell from elsewhere in the gun's chamber.

The state's 2013 certification cited the availability of microstamping patents and did not specify the technology needed for compliance. In a court filing, the Giffords Law Center to Prevent Gun Violence declared that microstamping ``has been extensively tested and found to be feasible and reliable,'' but argued that the state also has the authority to pass ``technology-forcing'' laws requiring companies to meet new standards, like clean-air goals for cars, to remain in the California market.

But Selfridge, the industry group's lawyer, told the court that the incentive to develop such technology ``is not what the Legislature orders to be done. ... The incentive is going to come from the market. If it's possible to do this, it would have been done.''

He asked the court to put the law on hold until the manufacturers can take their suit to trial, where a judge can hear expert testimony and decide whether compliance is possible.

Courts usually overturn laws only by finding them unconstitutional, an argument the manufacturers have not yet made. But a state appeals court in Fresno ruled in 2016 that the gun manufacturers could proceed with their suit and try to prove that no one could comply with the microstamping law. The state's high court granted review to decide that issue.

The case is National Shooting Sports Foundation vs. California, S239397.