Governor Gavin Newsome

California Governor Gavin Newsome has put his signature on legislation inspired by SB 8, the Texas statute enacted last session permitting private citizens to enforce the state’s anti-abortion laws through civil lawsuits.

SB 1327 creates a private cause of action that may be brought by any person against any other person who, within the state:

  • manufactures, distributes, transports, or imports (or causes any of those things to happen), keeps for sale, offers, or exposes for sale, or gives or lends any firearm lacking a serial number required by law, an assault weapon, or a .50 BMG rifle (i.e., a machine gun);
  • purchases, sells, offers to sell, or transfers ownership a firearm precursor part as defined by federal law; or
  • is a licensed firearms dealer and sells, supplies, delivers, or gives possession or control of a firearm to any person under 21 years of age.

The new law contains the same language as SB 8 regarding enforcement solely by private civil action and not by any arm of the state. Like SB 8, it subjects a violator to knowingly engaging in the conduct described by the law or aiding and abetting a violation. Again, as in SB 8, the remedies include injunctive relief, statutory damages of at least $10,000 for each violation, and court costs and attorney’s fees. The law provides for an alternative civil penalty if a court finds the private remedies unconstitutional. It further deprives a defendant of standing to assert the right of another individual to keep and bear arms under the Second Amendment in the same manner that SB 8 bars third-party standing to assert abortion rights.

In a clever example of turnabout is fair play, SB 1372 includes a self-destruct clause in the event SB 8 is repealed or annulled. It seems doubtful, however, that the Texas Legislature will take this hint, and perhaps even more doubtful that the U.S. Supreme Court, having let SB 8 go, will be able to do much about. Justice Kavanaugh’s concerns about SB 8 have now been fully realized, probably more quickly than he thought.

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