Firearms Dealer Refuses to Sell a Gun (PC 28220(f)(4))?

Peter Paul Regina sued the State of California and Rob Bonta and Xavier Becerra in their capacities as the current and former Attorney General after a federally licensed firearms dealer refused to complete Regina’s purchase of an antique shotgun (Peter Paul Regina v. State of California, et al.). This took place in 2019.

Mr. Regina purchased the firearm, a William Moore & Co. double barrel antique shotgun, in another state and had the firearm shipped to a federally licensed firearms dealer in California to initiate the background checks as a precondition to legally transferring the firearm to him.

Mr. Regina alleged that the dealer had received a letter from the Department of Justice (DOJ) pursuant to Penal Code § 28220(f)(4), advising it that the DOJ had been unable within the statutory time period to ascertain Regina’s eligibility to buy a firearm.

While the DOJ letter did not identify the potentially disqualifying information, according to Mr. Regina’s pleading the FBI reported Mr. Regina’s 1967 arrest for burglary, which would have made him ineligible to purchase the firearm only if it had resulted in a felony conviction (Mr. Regina alleged that his felony burglary conviction was reduced to a misdemeanor).

Although the Department’s letter in accordance with § 28220(f)(4) authorized the immediate transfer of the firearm to Mr. Regina at the dealer’s discretion, the dealer elected not to do so, telling Mr. Regina he was unwilling to “take the risk.”

The dealer eventually sold the gun to someone else. Mr. Regina then brought his civil lawsuit.

It merits knowing that before a federally licensed firearms dealer may sell or transfer a firearm in California, the dealer must submit certain purchaser information to the California DOJ to conduct a background check to determine whether the individual is prohibited by federal or state law from purchasing a firearm.

Penal Code § 30105 permits an individual, for a fee, to directly request the DOJ to perform a firearms eligibility check for that individual.

If the DOJ’s background check reveals an arrest or criminal charge, the DOJ has 30 days from the date of submission to investigate whether that arrest or charge resulted in a disqualifying conviction.

Pursuant to Penal Code § 28220(f)(4), if the DOJ is unable within the 30-day period to ascertain the final disposition of the arrest or charge, the DOJ must notify the dealer of that fact in writing and inform the dealer it may immediately transfer the firearm to the purchaser.

In Mr. Regina’s case, as mentioned above, the dealer told Mr. Regina that he was unwilling to “take the risk.”

Mr. Regina’s civil lawsuit alleged deprivation of a federal civil right (under 28 U.S.C. § 1983) and requested declaratory relief that § 28220(f)(4) was unconstitutional because it burdened or “chilled” a purchaser’s Second Amendment rights.

The trial court judge, Judge John Doyle in the Stanley Mosk courthouse, sustained without leave to amend the demurrer of the State of California and the Attorney General.

Mr. Regina then appealed this ruling to the Second Appellate District Court in downtown Los Angeles, alleging Judge Doyle erred.

While the appeal was pending, at Mr. Regina’s continued request, the DOJ declared him eligible to buy a firearm, but the firearm at issue had been sold months earlier.

The Second Appellate District affirmed Judge Doyle in part. The Second District noted from the outset of its ruling that § 28220(f)(4) does not prevent a prospective firearm purchaser from owning or possessing a firearm or restrict an individual’s ability to acquire a firearm. After all, the law did not mandate that the firearms dealer refuse to sell the gun. The firearms dealer could sell the firearm if he or she wanted to. In other words, the statutory scheme challenged by Mr. Regina lies beyond “the outer bounds of the right to keep and bear arms.”

The District Court nonetheless remanded the case to the trial court for the parties to submit supplemental briefing on the constitutional challenge to the statute in light of the U.S. Supreme Court ruling in New York Rifle & Pistol Assn. v. Bruen (2022) ___ U.S. ___, 142 S. Ct. 2111, wherein the U.S. Supreme Court ruled, while Mr. Regina’s appeal was pending, that a New York state law requiring a showing of “proper cause” or “special need” to obtain a public carry permit was unconstitutional. In Bruen, the Court held that the Second Amendment’s guarantee is considerably broader, extending to law-abiding citizens seeking to carry a gun outside the home for purposes of self-defense.