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Obscure court rule sends gun rights cases to one San Diego federal judge, troubling gun control groups

The San Diego Union-Tribune — Greg Moran The San Diego Union-Tribune

Oct. 17--In the past two years U.S. District Judge Roger Benitez has issued sweeping rulings, written in vigorous and sharply-worded prose, in two separate lawsuits challenging California state laws banning high-capacity magazines and mandatory background checks for ammunition purchases.

On Monday Benitez will hold a hearing in his courtroom in the downtown San Diego federal courthouse on another case filed last year that challenges several laws regulating and defining assault weapons in the state.

And he is also overseeing a fourth weapons case — one that challenges the state prohibition on possessing batons, billy clubs and blackjacks — that the plaintiffs say violates the Second Amendment.

In a federal district with more than a dozen judges, Benitez has been able to oversee and rule on a series of challenges to state gun laws. His rulings have wide implications, not only in California but also across the 9th U.S. Circuit Court of Appeals — a huge section of the nation stretching from Montana to Hawaii and Guam to Alaska.

With a U.S. Supreme Court that is seemingly on the verge of establishing a strong conservative majority where several justices, including current nominee Judge Amy Coney Barrett, support an interpretation of the Second Amendment more favorable to gun ownership rights, Benitez's rulings are drawing scrutiny from gun control groups.

That scrutiny also includes the question of how various gun cases have gone to Benitez. In federal courts, cases are assigned randomly to judges when they are filed.

The reason the cases land in front of Benitez lies in an obscure court rule for the federal court district in San Diego that governs "related cases."

Under the related case rule, one party in a lawsuit can file a notice asserting the issues in the case involve "the same or substantially identical questions of law" as those in another case, and request that the case get assigned to the related-case judge.

All federal courts have this kind of a rule. It is meant to promote efficiency and consistency. San Diego differs from other federal courts in California in one key area: there is no process for the other side in a case to challenge or object to the transfer. If both judges determine the case should be transferred, it is.

In Los Angeles, the rules allow for one side to object, and in some instances a committee of judges reviews transfers. In San Francisco, the other side can oppose a related-case request and a judge decides. In Sacramento there is no chance to oppose a transfer, but the chief judge of the district decides whether a case is related or not.

Gun control groups, who support the state regulations and whose position has taken a pummeling from Benitez, contend the unique way the rule operates in San Diego steers cases toward Benitez. They say gun rights organizations are essentially judge shopping — filing cases here instead of elsewhere in California in order to get the case heard by a particular judge.

"They struck gold with this one judge," said Ari Freilich, state policy director for the Giffords Law Center, one of the country's leading gun control groups. "The purpose of the rule is for judges engaged in complex cases really drilling into the issues, and not having to reinvent the wheel on a really similar case.

"This has been taken to an illogical extreme now when one judge is ruling on everything touching upon gun violence in the state of California."

That's an overstatement, said C.D. Michel, a lawyer and gun law expert who is also the president of the California Rifle & Pistol Association. Michel's group filed both the high capacity magazine and ammunition background cases, winning both. "We certainly have multiple Second Amendment cases in other jurisdictions," he said in an email response.

He said the group has an "active and engaged membership in San Diego County" that is willing to advocate for their gun rights. Moreover, Michel said that the court rules are being followed, and the gun control groups simply don't like losing.

It is no secret among lawyers that different courts are more receptive to certain kinds of cases, and a litigation strategy necessarily takes into account how a case might be received in one courthouse as opposed to another. And controversy over one federal judge getting several cases along the same topic has come up before in other federal courts.

Over more than a decade in New York, a single federal judge presided over multiple lawsuits brought by the American Civil Liberties Union and other groups over the New York Police Department's "stop and frisk" policy — all via the related case rule in that court.

Judge Shira A. Scheindlin repeatedly ruled in favor of the civil rights groups, earning the ire of the city police chief and then-Mayor Michael Bloomberg. In 2014, an appeals court ordered her removed from presiding over one lawsuit on the policy, saying she had maneuvered to get the case in front of her and given media interviews that gave an appearance of bias.

Federal Judge Jack B. Weinstein, also in New York, was criticized in 2007 by gun rights groups like the Second Amendment Foundation for getting firearms cases assigned to him under the related case rules there. At one time the foundation said Weinstein should recuse himself from any firearms cases because he was no longer neutral.

A similar dynamic may be shaping up in San Diego. Benitez, who declined to comment this week because the cases are still active and judicial rules prohibit judges from discussing current cases, has not held back in his rulings in the two cases so far.

The ruling on the high-capacity magazine ran 86 pages, the first three of which were taken up with anecdotes told in cinematic prose of homeowners who had been accosted in their homes by intruders and fought back with their guns — but ran out of ammunition.

The ammunition background ruling issued in April ran an unusually long 120 pages, and invoked George Orwell and the comedian Rodney Dangerfield when making cutting references to the state law.

"The experiment has been tried," Benitez wrote at the start of that opinion. "The casualties have been counted. California's new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured."

It is not only those rhetorical flourishes that bother gun control groups, but what they reveal about Benitez's attitude to gun regulations, advocates say. Eric Tirschwell, the managing director for Everytown Law, the legal arm of the gun control group Everytown for Gun Safety, said the high capacity magazine ruling was an outlier nationally.

He said courts in six other judicial circuits in Massachusetts, New Jersey, Maryland and Illinois have all upheld laws prohibiting large capacity magazines. "(Benitez) reads the Second Amendment more broadly than just about any other court in the country," Tirschwell said. "And he regularly adopts the language and tone of the gun lobby.

"And his decision on Second Amendment issues often read more like what an advocate would write and not what would you expect from a neutral dispassionate judge."

So far Benitez's ruling on high capacity magazines has survived. It was appealed by state Attorney General Xavier Becerra, whose office has defended against the lawsuits challenging state gun regulations, but in August a panel of the 9th U.S. Circuit Court of Appeals upheld the ruling, 2-1.

Becerra is seeking a review of that decision by the full circuit.

Michel, of the California Rifle & Pistol Association, dismissed criticism of Benitez by gun control groups as so much sour grapes. he said Benitez is following gun law as laid out in two U.S. Supreme Court decision in 2008 and 2010. One affirmed an individual right to keep handguns in the home for self defense. The second held that the Second Amendment applied to state and local governments too.

"Gun ban advocacy groups and the billionaires who support them prefer biased judges who will bend over backwards intellectually to twist those rulings to uphold any gun ban law no matter how useless or extreme," Michel said.

In the current assault weapons lawsuit, both Everytown and the Giffords groups requested to file a friend-of-the-court brief that would supports the state regulations. Such requests are common from advocacy groups, and judges have broad discretion to allow them.

Benitez said no, ruling that Becerra "is well-equipped to defend the statutes at issue." Tirschwell, who said his group routinely files such briefs in gun control cases around the country, said it was "extremely unusual for a court not to accept a brief."

It is difficult to say how influential Benitez's rulings will be nationally. Second Amendment issues are in a fluid state, and the Supreme Court has not taken a significant gun rights case for years, said Glenn Smith, a constitutional law professor at California Western School of Law in San Diego.

In general rulings in cases from district court judges like Benitez can influence how a case is viewed by appeals courts, he said. Those rulings develop a record of the case, and frame the legal issues for higher courts.

"How narrowly or strongly or broad the rhetoric is may influence how the appeals courts react to it," he said. "Certainly an appeals court can look behind the evidence, or look at the fact differently. But as we all know in life, when you start the conversation in a certain framing, it affects how people who react to that respond."

This story originally appeared in San Diego Union-Tribune.

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