Pro Bono Q&A: How One Law Firm Is Helping a California City Curb Gun Violence

JD Supra Perspectives

We spoke recently with Farella Braun + Martel partner Tony Schoenberg about the law firm's pro bono efforts, and, in particular, his work related to a Sunnyvale, Calif., ordinance that bans the possession of large-capacity gun magazines. Farella is representing the city of Sunnyvale in its defense of the 2013 ordinance, which was upheld last month by a federal appeals court.

Q: To begin, can you explain the significance of the Sunnyvale ordinance, and what it does?

A: There are several parts to it. The part that ended up in the 9th Circuit imposes a ban on the possession of large-capacity ammunition magazines, which are sometimes called LCMs for short. A large-capacity magazine is defined in the ordinance as a magazine that's capable of holding more than 10 rounds of ammunition. That's the definition most commonly seen in different laws and statutes. There are a few other parts of the law that weren't challenged in this lawsuit.

...the continuance of mass shootings and other horrific events has prompted a lot of states and municipalities and cities to pass laws like Measure C in the hopes that they can help curb that kind of violence. As a result of these legal challenges, there is a growing body of jurisprudence under the Second Amendment.

To give you a little context, in the year 2000, the state of California passed a law that bans the manufacture, sale, importation, or transfer of large-capacity magazines but did not ban the possession of large-capacity magazines. At that time, there was a federal law that we refer to as the federal assault-weapons ban, which banned the possession of large-capacity magazines, with some exceptions. The federal law was enacted in 1994, and it expired in 2004. When that law expired, suddenly there was what you might call a loophole in California regarding people who had lawfully possessed large-capacity magazines before the California law was passed. You might say they got grandfathered in through this weird confluence of the state law passing and then the federal ban expiring in 2004. The 9th Circuit gives a little bit of the history of that in its opinion in our case. It's fair to say that Sunnyvale has plugged that hole with Measure C.

Q: Why do you think this particular ordinance has attracted so much attention?

It's an interesting question. Has it attracted a lot of attention? The plaintiffs in our case have given it a lot of attention, and the lawyer for the plaintiffs, Chuck Michel, is the West Coast counsel for the NRA [National Rifle Association]. The NRA has paid attention to it. There have been large-capacity magazine bans passed in a number of states and cities across the United States, mostly in recent years, in the wake of Newtown and other mass shootings. So far, every legal challenge to a large-capacity magazine ban has failed -- so our case, Fyock v. the city of Sunnyvale, is consistent with every other legal decision regarding a large-capacity magazine ban.

Our case is the second circuit court to rule on the issue. The D.C. Circuit upheld a large-capacity magazine ban in a case called Heller II several years ago. Otherwise, it's been district courts.

Q: What were the significant points in last month's 9th Circuit ruling on the case?

One of the significant points is that the court applied what we call intermediate scrutiny. When courts review constitutional claims -- as in the Sunnyvale case, where the plaintiff alleged that the city's large-capacity magazine ban violated the right to bear arms under the Second Amendment -- there are several levels of scrutiny that they might apply. The most lenient level of scrutiny is what they call rational basis review. The most difficult level of scrutiny to pass is strict scrutiny. In the middle, there's something called intermediate scrutiny.

The 9th Circuit determined that intermediate scrutiny was the proper level of scrutiny. I believe that's consistent with every other case that has addressed challenges to large-capacity magazine bans. That's significant because the level of scrutiny could affect the outcome of the case. Strict scrutiny requires that a law be narrowly tailored to the purpose that it serves, while intermediate scrutiny requires a reasonable fit -- which is a less exacting standard -- between the law and the public purpose or the governmental objective. In fact, the plaintiffs in our case had argued that the Sunnyvale ordinance is per se invalid under the Supreme Court's Heller decision. They said to the court, "You don't even have to apply any level of scrutiny; you can just strike the law down."

As a backup, the plaintiffs said that, if you're going to apply some level of scrutiny, it should be strict. The court rejected both of those arguments; it said intermediate scrutiny is the right level of scrutiny, and the ordinance passes intermediate scrutiny because it (A) promotes an important governmental objective, which is public safety and reducing violent crime and violence against law enforcement -- because there's data that violence against law enforcement has frequently been carried out using large-capacity magazines -- and (B) they determined that the Sunnyvale law had a reasonable fit with that important governmental purpose.

Q: So, it's safe to say you're very happy with how the 9th Circuit ruled on this?

We're pleased with the ruling, yes.

Q: What are the next steps in the case?

The district court case was stayed pending the appeal. The district court case will likely be un-stayed sometime soon, which means we'll be in litigation again and will move toward trial. The lawyer for the plaintiff said publicly that they're either going to seek en banc review by the entire 9th Circuit or they're going to file a petition for the U.S. Supreme Court to review the decision. But the deadline to seek en banc review has passed and they did not file a petition. If they follow through with their stated intent to seek Supreme Court review, we will oppose their petition. Otherwise, the case may start moving forward again at the trial court level. This was an appeal from a denial of a preliminary injunction. The plaintiffs had sought to have the court enjoin the law from being enforced during the pendency of the case. The district court refused to do that, and the 9th Circuit upheld that denial. Another important aspect to the 9th Circuit decision is, in ruling on a motion for a preliminary injunction, courts have to determine whether or not a claim is likely to succeed on the merits. The district court, in denying the preliminary injunction motion, decided that the claim was not likely to succeed or prevail on the merits. The 9th Circuit affirmed that. That's part of what makes it important in our view.

Q: At what point did Farella's involvement in this case begin, and how has the firm's role evolved over time?

We got involved with this matter in the fall of 2013. In November of 2013, Measure C was on the ballot as an initiative in a local election; the voters voted directly on it. Leading up to that election, Chuck Michel, who is the plaintiffs' lawyer in this case, made a public statement saying that, if the law passed, he was going to file a lawsuit immediately to challenge it. My law partner, Rod Thompson, who is on the board of directors of the Law Center to Prevent Gun Violence, was contacted by someone at the law center, who told him the city of Sunnyvale was interested in having a law firm represent it pro bono. I'm in charge of most of the pro bono work at our firm, so Rod contacted me and asked if it was something I would be interested in working on or if I thought it was something the firm should undertake.

My law partner, Rod Thompson, who is on the board of directors of the Law Center to Prevent Gun Violence, was contacted by someone at the law center, who told him the city of Sunnyvale was interested in having a law firm represent it pro bono.

Two lawsuits got filed. There was the Fyock case, which we have already discussed. And a separate case got filed in Santa Clara County Superior Court; that was U.S. Firearms vs. Sunnyvale. The two cases challenge different parts of the law. Measure C also has a provision that requires retail sellers of ammunition to log certain information related to ammunition sales. It's similar to the information that you have to provide when you buy a firearm -- things like your name, address, phone number, basic personal information that law enforcement could use to find people who are illegally possessing firearms, because various people are not allowed to have guns -- the mentally ill, for example, or sometimes people who have restraining orders against them -- and obviously, if they're out purchasing large amounts of ammunition, they may be violating the prohibition on ownership of firearms. That part of the law was challenged in the U.S. Firearms case.

Another part of the law requires people to report stolen firearms to law enforcement within 48 hours. That part of the law was also challenged in the U.S. Firearms case. That lawsuit was primarily based on a claim that state law pre-empts Measure C. In that case, the plaintiffs first sought a temporary restraining order and subsequently sought a preliminary injunction. Both those requests were denied. As in the Fyock case, we represent Sunnyvale in the U.S. Firearms case. That case is currently stayed pending the outcome of the California Supreme Court’s decision in a case called Parker. Parker addresses a challenge to a state law that imposes handgun ammunition sales logging requirements. The parties agreed to stay the U.S. Firearms case, pending the outcome of the California Supreme Court’s decision in Parker. So that case is on hold. That case was actually filed first, and shortly thereafter, the Fyock case was filed. We are the counsel of record for Sunnyvale in both cases and are litigating both cases for Sunnyvale.

Q: I'm curious about the whole process by which Farella vets pro bono projects and decides what to get involved in.

We have a lot of different types of cases we do pro bono. There's really not a lot to the process. Rod came to me, we talked about it, we had a bit of a dialogue with the rest of the partnership about it, and generally people were supportive, so we decided we wanted to do it, and were engaged by the city of Sunnyvale.

Q: Apart from the regular process of deciding which pro bono cases to take on, were there any concerns regarding the particular nature of this specific case, in terms of the NRA as an adversary, or this being too hot an issue to get into, or the firm possibly alienating clients by taking on the Sunnyvale case?

The NRA is not actually a party to this case. The plaintiffs are six individuals who live in Sunnyvale and who have allegedly lawfully owned large-capacity magazines prior to the passage of Measure C. Their lawyer claims to be West Coast counsel for the NRA, so it's possible the NRA may be funding the case to some degree, though I don't know that to be definitively true. They have been a persistent adversary and appear to be well funded, but I'm accustomed in my law practice to aggressive, persistent, well-funded adversaries. In terms of the possibility of this being too hot an issue or alienating clients, we certainly haven't had that experience. I've not heard any negative feedback. And frankly, lawyers sometimes take unpopular cases, or cases that some people might not like — there’s a long and noble tradition of that in the legal profession. I have not based my law practice on concerns over how other people might view the work that I'm doing. I'm not doing it to please other people.

The NRA is not actually a party to this case... it's possible the NRA may be funding the case to some degree, though I don't know that to be definitively true.

Q: Do you have a sense of whether the Sunnyvale case could be a template for other cases? How does it fit in with the larger constellation of other gun rights disputes that may be going on around the country?

Heller, which was decided by the U.S. Supreme Court in 2008, was the first case to recognize the individual right to bear arms under the Second Amendment. There have been a lot of challenges brought by gun owners and the NRA to firearm laws since that time, so courts are dealing with a lot of those challenges and probably will be for some time. I should also say that the continuance of mass shootings and other horrific events has prompted a lot of states and municipalities and cities to pass laws like Measure C in the hopes that they can help curb that kind of violence. As a result of these legal challenges, there is a growing body of jurisprudence under the Second Amendment. The Sunnyvale case adds to that body of jurisprudence, and it does so in a way that is consistent with how all other courts have thus-far addressed large-capacity magazine bans.

Q: What has Farella's level of commitment been for this particular pro bono effort?

Our litigation team has consisted of between three and five lawyers at different times. We're all litigators. The practice of Rod Thompson, who is senior lead counsel on the Fyock case and argued it before the 9th Circuit, is mostly intellectual property litigation -- particularly but not solely patent. I'm a general commercial litigator who has done a lot of intellectual property litigation as well, mostly copyright and trade secret cases, and other types of commercial disputes and complex contractual disputes.  James Baker is another general commercial litigator at our firm who has worked on the case since the beginning.  All told, our team of lawyers and paralegals has put more than 1,500 hours into the case.

Q: Can you also describe the Right to Civil Counsel program and your relationship to it?

...while there's a constitutional right to an attorney in a criminal case, there's never been a recognition of a similar right in civil cases.

That project endeavors to provide free legal representation to people who can't afford lawyers in civil cases involving basic human needs, such as eviction cases, certain types of family law matters, domestic violence, and certain types of disability benefits. The idea is that, while there's a constitutional right to an attorney in a criminal case, there's never been a recognition of a similar right in civil cases, notwithstanding that the consequences of not having a lawyer in a civil case can sometimes be as severe as, if not worse than, in a criminal matter.

The city of San Francisco has implemented the program through a nonprofit legal services provider called the Justice & Diversity Center, which is a subsidiary of the Bar Association of San Francisco and which works with outside law firms that staff pro bono cases. I'm on the board of the Justice & Diversity Center as of January 1st of this year. Farella's participation has been mainly in handling landlord-tenant cases.

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