Federal Judge Cites PORAC President Brian Marvel’s Declaration in Order Enjoining Unsafe Handgun Act

By David E. Mastagni and Taylor Davies-Mahaffey

On March 20, 2023, Central District Judge Cormac J. Carney issued a preliminary injunction in Boland v. Bonta barring enforcement of the deceptively titled “California’s Unsafe Handgun Act” (UHA), ruling that “Californians have the constitutional right to acquire and use state-of-the-art handguns to protect themselves.” This ruling is of particular importance to California peace officers given the introduction of SB 377, which would eliminate the peace officer exemption from the UHA, thereby prohibiting officers from purchasing or selling the modern handguns they bear while on duty. Intuitively, peace officers should have access to the newest and safest equipment, including firearms.

On behalf of the Peace Officers Research Association of California (PORAC), David E. Mastagni assisted PORAC President Brian Marvel in submitting a declaration in support of the plaintiffs, which was cited repeatedly by the court in pointing out the hypocrisy of the state’s rationale for the roster.

The court explained: “The government cannot credibly argue that handguns without CLI, MDM, and microstamping features pose unacceptable public safety risks when virtually all handguns available on the Roster and sold in California today lack those features.

“Similarly, if Off-Roster firearms were truly unsafe, California would not allow law enforcement to use them in the line of duty when the stakes are at their highest. But the substantial majority of California’s law enforcement officers use Off-Roster handguns in the line of duty. (Dkt. 57-2 [Declaration of Brian R. Marvel, President of Peace Officers Research Association of California, hereinafter ‘Marvel Decl.’] ¶ 5 [‘Most agencies issue officers the latest models of either Glock or Sig Sauer handguns, which lack magazine safety disconnects, chamber load indicators, and of course, microstamping.’]; see id. ¶ 7 [‘For example, many officers are issued 4th or 5th-generation Glock pistols, which are off-roster and lack magazine safety disconnects, chamber load indicators, and of course microstamping.’].) Indeed, the government’s own witness, Special Agent Salvador Gonzalez, testified that he uses an Off-Roster duty handgun without a CLI, MDM, or microstamping capability. (Tr. at 243–44.) If CLIs and MDMs indeed increased a firearm’s overall safety, law enforcement would surely use them. (Marvel Decl. ¶ 5.) But they do not. Instead, they use ‘newer, improved and safer generations of handguns’ that are Off-Roster. (Id. ¶ 7.)”

In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, the Supreme Court vindicated the “constitutional right to bear arms in public for self-defense,” a right that includes peace officers who place themselves in harm’s way to protect members of the public. This ruling also affirmed the arguments we raised during the debate on the use-of-force legislation. The court held under Bruen, “to be constitutional, regulations of Second Amendment rights must be ‘consistent with this Nation’s historical tradition of firearm regulation.’” 

The UHA barred the sale of handguns that don’t contain certain so-called safety features, which since 2013 has included theoretical microstamping technology. Judge Cormac noted, “Since 2007, when the (loaded chamber indicator) and (magazine disconnect safety) requirements were introduced, very few new handguns have been introduced for sale in California with those features. Since 2013, when the microstamping requirement was introduced, not a single new semiautomatic handgun has been approved for sale in California.”

The court rejected the state’s historical analogies, explaining that laws to ensure guns operate as advertised are not analogous to requiring the implementation of new safety features. “These regulations are having a devastating impact on Californians’ ability to acquire and use new, state-of-the-art handguns,” according to the court.

This ruling should moot the SB 377 elimination of the peace officer exemption to the UHA by allowing all Californians access to state-of-the-art handguns for self-defense. The preliminary injunction is set to go into effect in two weeks, so the state can appeal the ruling to the Ninth Circuit Court of Appeals, which is particularly vital and affirmed PORAC’s successful argument during the AB 392 debate that the state cannot impinge on officers’ right to self-defense.