Ninth Circuit To Hear Challenge To Newsom's COVID Clampdown

The Ninth Circuit Court of Appeals is set to hear oral arguments today in a case that could rein in some of the most onerous coronavirus restrictions put in place by California Gov. Gavin Newsom, which have led to delays in the processing of background checks for would-be gun owners in the state.

Now, that’s not the primary thrust of Givens v. Newsom, which deals primarily with violations of the 1st and 14th Amendment, but the impact that Newsom’s orders have had on those trying to exercise their Second Amendment rights is still an important part of the case.

According to the lawsuit, under Newsom’s order mandating all residents to “heed current state public health directives,” requiring people to stay at home, neither the governor’s order nor state public health directives exempt demonstrations, protests, or other First Amendment-protected activities from enforcement.

[Ron] Givens also protests the state’s failure to process background checks for those purchasing firearms, as well as employment background checks for gun stores, which he claims deprives Californians of their Second Amendment rights.

[Co-plaintiff Christine] Bish intends to protest the extent and duration of the state’s shelter-in-place order.

According to the pair’s lawyers, the governor has specifically ordered the California Highway Patrol to deny protest and  rally permits at the State Capitol, a core First Amendment speech venue. The governor’s orders thus deny all California residents the right to exercise their First Amendment rights to free speech, free assembly, and petition the government.

In June, the U.S. Department of Justice­ invoked protests over the killing of George Floyd to argue in court that California’s restrictions on in-person protests related to the coronavirus pandemic should be invalidated.

The DOJ’s argument is contained in an amicus brief that was filed in the U.S. Court of Appeals for the Ninth Circuit. The document was submitted to support Givens and Bish, who were denied permits to stage protests against Newsom’s COVID-19 executive orders.

The plaintiffs are also seeking a temporary restraining order and a preliminary injunction.

The Givens case is one of two legal challenges to the delays in background checks underway in the federal court system. Back in August, a coalition of Second Amendment organizations filed suit against California Attorney General Xavier Becerra over the same issue; delays in the background check process that have resulted in a 30-day waiting period for many gun buyers.

The lawsuit alleges that Becerra’s Bureau of Firearms began delaying waiting periods on background checks for prospective firearm purchasers in April, due to apparent staffing reductions stemming from the coronavirus pandemic. The practice delayed “tens of thousands” of transactions across the state, in violation of state law, the plaintiffs allege.

Becerra’s office could not immediately be reached for comment regarding the lawsuit, though the state Department of Justice has previously stated that California law does allow it to take up to 30 days to complete background checks.

The Ninth Circuit won’t release any decision in the Givens case today, but given the fact that Newsom is issuing new lockdowns this week, I would anticipate that the appeals court won’t dawdle too long before handing down its opinion and hopefully puts a stop to the numerous violations of constitutional rights that have been imposed by officials like Newsom and Becerra.