Metropolitan News-Enterprise


Friday, June 29, 2018


Page 1


Supreme Court:

Gun Microstamping Law Valid Even If Compliance Impossible




A gun law which requires firearm manufacturers to implement microstamping technology in all new handguns sold in the state was upheld by the California Supreme Court yesterday, despite opponents’ claims that compliance is technologically impossible.

Justice Goodwin Liu was joined by five justices, including Court of Appeal Presiding Justice Norman Epstein of this district’s Div. Four, sitting on assignment. Justice Ming Chin wrote a concurring opinion.

The law, passed by the Legislature in 2007, amended the state’s Unsafe Handgun Act to require all new semi-automatic handguns to implement “dual placement microstamping” before being approved for sale and manufacture. This microstamping is a system whereby spent cartridge casings ejected from a gun would be stamped in two places with microscopic characters identifying that gun.

The law went into effect in 2013, after the Department of Justice released a certification that the technology would not be restricted, by virtue of patents, to a single manufacturer. That certification was a requirement of the legislation.

Nonexistent Technology

But the National Shooting Sports Foundation (NSSF) and the Sporting Arms and Ammunition Manufacturers’ Institute (SAAMI) challenged the law, claiming that the technology does not exist. The Office of Attorney General has conceded that the Department of Justice merely certified the lack of patent restrictions, not that the technology is available.

The Fifth District Court of Appeal, in an opinion by Acting Presiding Justice Bert Levy, reversed a Fresno Superior Court order granting the state’s request for judgment on the pleadings. The sole issue on appeal was whether the impossibility of compliance with the statute invalidated it.

Levy agreed with the plaintiffs that the maxim of jurisprudence in Civil Code section 3531, that “[t]he law never requires impossibilities,” invalidated the microstamping provision.

Function of Maxim

In his opinion reversing the Fifth District, Liu said of the maxim:

“It is an interpretative canon for construing statutes, not a means for invalidating them. Impossibility can occasionally excuse noncompliance with a statute, but in such circumstances, the excusal constitutes an interpretation of the statute in accordance with the Legislature’s intent, not an invalidation of the statute.”

He analogized the situation to cases where the “courts have excused compliance with a statute of limitations where timely compliance was impossible,” and where his own court had “excused compliance with a state statute requiring drainage efforts that would have brought ‘financial ruin’ and ‘irreparable injury’ to an irrigation district and its landowners.”

Liu said that “case law recognizes that a statute may contain an implied exception for noncompliance” but that such exceptions are to be applied by the courts on an individual basis, not to invalidate an entire statute as the NSSF and SAAMI were seeking.

Administrative Determination

The jurist declared:

“The Legislature specified that the statute’s requirement takes effect on January 1, 2010 provided that the Department of Justice issues the certification. We express no view on the validity of the Department’s certification or whether it included an adjudication of impossibility. Our conclusion here is that the statute does not authorize courts to independently carve out exceptions for impossibility after that administrative determination has been made.”

In his concurring opinion, Chin disputed that there is any relevance to the administrative determination. He said:

 “I agree with the majority that Civil Code section 3531 is a maxim of statutory construction that authorizes courts to construe statutes to avoid impossibilities….I also agree that a statutory requirement cannot be completely invalidated based on Civil Code section 3531….disagree, however, that the Department of Justice’s certification has any relevance to the question of carving out exceptions…based on impossibility.”

The case is National Shooting Sports Foundation v. California, S239397.

Lance A. Selfridge of Lewis Brisbois Bisgaard & Smith in Los Angeles argued before the Supreme Court on behalf of the plaintiffs. The state was represented by Principal Deputy State Solicitor General Janill L. Richards, of Oakland.


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