Fresno judge upholds suit against waiting period for gun purchases

The Fresno BeeDecember 17, 2013 

A California gun-rights organization has won a round in its federal lawsuit that says the state's 10-day waiting period for buying firearms shouldn't apply to those who've previously purchased weapons and cleared background checks.

U.S. District Court Judge Anthony W. Ishii denied a request by state Attorney General Kamala Harris to throw out the lawsuit. Harris, along with the California Department of Justice, are defendants in the suit.

"This is a very, very important ruling," said Madera County resident Brandon Combs, one of five plaintiffs in the case and executive director of The Calguns Foundation. "(Ishii) put the state in a position to really have to defend their case."

The decision, filed Dec. 9 in Fresno's federal court, comes two years after the lawsuit was initially brought by gun owners Combs, Jeff Silvester and Michael Poeschl, as well as The Calguns Foundation and the The Second Amendment Foundation. Two of the plaintiffs are local: Besides Combs, Silvester lives in Kings County.

Combs said they filed the case in Fresno because he and Silvester live nearby, the state Department of Justice has an office here, and because California's eastern federal judicial district, of which Fresno is a part, has a "better understanding of these sorts of issues" than the state's other judicial districts, which are based in San Diego, Los Angeles and San Francisco.

Their suit contends that the state's 10-day waiting period violates the U.S. Constitution's 2nd and 14th amendments by requiring firearms buyers "who lawfully already have at least one firearm registered in their name" to continually go through the waiting period.

Combs, for instance, says he's already gone through the background check and has a gun license with the state. He said officials statewide would know instantaneously if he committed a crime or did anything else that would disqualify him as a gun owner.

The suit says California has had a waiting period for firearms purchases since 1932 -- but that it has been inconsistent, varying in time from one day to as many as 15 days.

It says that "ten days to allow the Department of Justice to investigate prospective purchasers and to allow repeat purchasers to 'cool off' is an infringement on the purchaser's fundamental right to keep and bear arms in their home."

The suit also says the law violates the Constitution's equal protection clause by including multiple exemptions. It lists 18 exemptions to the waiting-period law and points out that California has opted out of a federal computerized background check system that can "instantly determine" if a gun buyer is eligible to buy firearms.

Harris' office declined to comment, but in the motion to dismiss the case said the plaintiffs, "who possess firearms already, are complaining about the mere inconvenience of a waiting period that is well-justified as a public-safety measure."

No matter how the case ends in Fresno's federal court, Combs expects an appeal to the 9th U.S. Circuit Court of Appeals and, quite possibly, to the U.S. Supreme Court.

If they are ultimately successful, Combs said, he'd like to challenge the state's entire waiting-period law.

"The government really has a tough job defending a law that has no basis in reason," he said.

The reporter can be reached at (559) 441-6320, or @johnellis24 on Twitter.

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