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California Gov. Plans to Use Citizen Enforcement Measures for Guns, Are Other States Next?

By Richard Dahl on December 19, 2021 9:43 PM

California Governor Gavin Newsom has decided what's good for the goose is good for the gander. If Texas can rely on "citizen enforcers" to regulate abortions, he reasons California should be able to use the same legal tool to regulate assault weapons. Newsom issued such an announcement late on the night of Dec. 11, one day after the U.S. Supreme Court essentially gave its blessing to Texas' strict new anti-abortion law.

Texas' Citizen Enforcement Provision Upheld 

In that case, the issue before SCOTUS was whether Texan abortion providers could sue the private citizen enforces as well as state officials—the Texas Attorney General, and the state court judge and clerk. The justices ruled in a 5-4 decision that lawsuits challenging Texas' near-total ban on abortions could proceed in federal court against some individuals (defendants with "specific disciplinary authority" over medical licensees such as the petitioners) while dismissing others (the state court judge and clerk, the Texas Attorney General, the private individual defendant). In doing so, the court allowed Texas' law to largely remain in place.

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That law, Texas Senate Bill 8 (SB 8), bans abortions after about six weeks and, in an unprecedented enforcement arrangement, deputizes citizens to enforce the ban. The law states that citizens may sue anyone who "aids and abets" an illegal abortion and collect bounties of at least $10,000.

The statute provides a significant incentive for Texas citizens to sue anyone connected to abortion—from medical providers to even the taxi drivers who transport women to abortion clinics. Not only could private citizens enforcing the law claim $10,000, but they face no risk in bringing weak claims; the text does not impose any penalty for frivolous cases that get dismissed.

On the other hand, more traditional lawsuits against SB 8 are continuing in both federal and Texas state courts. On Dec. 9, Texas District Court Judge David Peeples ruled that the citizen-enforcement mechanism violates the state constitution—although he nonetheless declined to put the law on hold. That decision is currently on appeal.

Enter California

California has banned many types of assault weapons for decades. However, in June, a federal judge ruled that such prohibitions were unconstitutional. Two weeks later, the Ninth Circuit Court of Appeals issued a stay, allowing the ban to remain in effect while litigation continued.

The unsettled state of California's assault weapons ban in part prompted their governor to issue his Dec. 11 announcement. Referring to the Texas anti-abortion law and its citizen-enforcer provision, he stated:

"[I]f states can shield their laws from review by the federal courts … then California will use that authority to protect people's lives, where Texas used it to put women in harm's way."

Newsom also said that he had directed his staff to work with the state legislature and attorney general's office to develop a bill that would establish a private right of action allowing citizens to sue for violations of the assault weapons ban and to collect at least $10,000 per violation—an amount that perhaps uncoincidentally matches the minimum recovery allowed under Texas' anti-abortion statute.

Key Differences in Texas' Law

It's important to note that giving law enforcement powers to private individuals is not in itself that unusual. It's just that Texas has taken the concept to an unprecedented level.

The False Claims Act, for instance, allows individual "whistleblowers" to go to court if they suspect fraud against the government. If they succeed, they can receive a portion of the recovered funds. Similarly, environmental enforcement regimes recognize the right of individuals to sue polluters on the understanding that environmental degradation harms everyone.

Stanford Law School Professor Diego Zambrano points out that our legal system also empowers private plaintiffs to provide enforcement in various other areas, including antitrust, employment law, and security fraud cases.

But the difference between those actions and the ones now available to citizens in Texas is vast. Zambrano says that most of the traditional private enforcement regimes allow only individuals who have been injured or harmed to bring suit. "S.B. 8, by contrast, seems to empower anyone, regardless of the existence of a direct or even indirect injury." The result, he says, is "a procedural Frankenstein designed solely to nullify a federal right and avoid federal judicial review."

Similarly, while the moves in Texas and California both involved constitutional rights—abortion rights and the Second Amendment, respectively—there are huge differences between the two.

Where Texas' law could effectively play out as a blanket ban of a recognized constitutional right, Newsom's gun proposal is far more limited. He's proposed giving private actors the right to sue anyone who manufactures, distributes, or sells assault weapons or "ghost gun" kits or parts in California.

While the Supreme Court has ruled that the Second Amendment protects the rights of individuals to keep handguns in the home for self-defense, appellate courts have upheld bans on so-called "assault weapons." In addition, no federal circuit has struck down a law banning ghost guns.

So if Newsom really wanted to go toe-to-toe with Texas, he might offer something more on par with what the Lone Star State has done. Writing in the Dec. 13 Los Angeles Times, Duke University School of Law's Jake Charles described what that would look like:

"If Democrats really wanted to show the Supreme Court the full implication of its ruling on the Texas scheme, they would have to enact a law directly flouting the right to keep a gun in the home, or perhaps enact a complete ban on the sale or carrying of all firearms – and allow only private citizens to sue anyone who kept a gun in the house or sold or carried firearms."

Imagine the chaos.

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