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Required Disclosure of Gun Owners’ Information Upheld
Ninth Circuit: No Violation of Constitution by Compelling DOJ to Turn Over Personal Data to Researchers
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that an California Assembly bill requiring the state to provide information about gun owners to a newly-developed research center at the University of California at Davis is not unconstitutional as it does not restrict conduct protected by the plain text of the Second Amendment and the data is not sufficiently intimate to be shielded by the Fourteenth Amendment.
Senior Circuit Judge Mary M. Schoeder authored the opinion which affirms the judgment of dismissal by now-retired Senior District Court Judge Larry Alan Burns, who dismissed the action at the request of the plaintiffs after a determination that the complaint failed to state a claim. Circuit Judges Patrick J. Bumatay and Salvador Mendoza Jr. joined in the opinion.
Appealing the dismissal were five registered California gun owners who challenged the constitutionality of Assembly Bill 173, signed into law by Gov. Gavin Newsom in 2021.
The state Department of Justice (“DOJ”) maintains two databases containing personal information of purchasers of firearms and ammunition as well as of those applying for permits to carry concealed weapons (“CCWs”). Penal Code §11106(b) governs the database relating to purchasers of firearms and applicants for CCWs, and §30352(b)(1) pertains to the database relating to purchasers of ammunition.
The databases are not new nor is the disclosure of information from the databases to public officials for law enforcement purposes. The bill adds to the disclosures by amending the existing statutes to require the DOJ to disclose biographical data about gun owners to researchers at a state institution created by the Legislature to conduct research on firearm violence—the Firearm Violence Research Center.
The plaintiffs filed an action pursuant to 42 U.S.C. §1983 seeking to declare the bill unconstitutional and to enjoin its enforcement.
Second Amendment Challenge
Schroeder considered the plaintiffs’ Second Amendment challenge in light of the 2022 U.S. Supreme Court case of New York Rifle and Pistol Association v. Bruen in which Justice Clarence Thomas, writing for the majority, said “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”
In the present case, Schroeder wrote:
“The initial and critical inquiry in this case is therefore what conduct of the plaintiffs is relevant. Bruen itself suggests that the relevant conduct of the plaintiffs is ‘the proposed course of conduct,’ i.e., the conduct the regulation prevents plaintiffs from engaging in.”
She rejected the plaintiffs’ characterization of the conduct at issue as their ability to purchase firearms and ammunition and to obtain CCWs, remarking:
“AB 173 does not regulate the conduct of persons. The law is directed at DOJ and requires it to share data from its databases with researchers. Thus, AB 173 does not regulate conduct protected by the plain text of the Second Amendment or impede plaintiffs’ ability to purchase, keep, carry, or utilize firearms.”
Chilling Effect
Schoeder noted that the plaintiffs alternatively argued that AB 173 creates a chilling effect on the exercise of their Second Amendment rights. She said:
The plaintiffs—a licensed vocational nurse, a retired officer in the California Department of Corrections and Rehabilitation, a retired San Bernardino County sheriff’s deputy, a service technician, and a retiree who worked in construction management—contend that AB 173 creates a chilling effect on the exercise of their Second Amendment rights. Their complaint alleges that each believes that public disclosure of their “Personal Information and status as a handgun owner will subject” him or her “to unwanted public attention, harassment, threats, and physical violence by individuals and groups including persons in the community who are hostile to guns and gun owners.”
Dismissing the argument as “speculative and lacking in empirical foundation,” Schoeder commented: “AB 173 authorizes disclosure of biographical information only to accredited research institutions, and…research institutions are prohibited from publicly disseminating personal information….The record reflects that DOJ also requires researchers to abide by strict data security precautions to prevent disclosure.”
She continued:
“There is no allegation that approved research institutions have violated the restrictions imposed on them, that the institutions have been responsible for any public leak of information, or that the institutions have been the victims of hacking. In sum, neither plaintiffs’ subjective fears of possible future harm nor their choice to refrain from exercising their Second Amendment rights is a concrete injury.”
Fourteenth Amendment Challenge
Schoeder observed that “[o]ur court has recognized a right to informational privacy under the Fourteenth Amendment stemming from an individual’s interest in avoiding disclosure of personal matters.”
She explained that a person’s expectation of privacy in personal information depends on the nature of the information being disclosed, saying “the cases suggest that there is no legitimate expectation of privacy in information that is not highly personal, even where the government assures confidentiality” and that “the reasonableness of the expectation depends on the intimate nature of the information.”
Looking at the information at stake in the case at hand, she drew the conclusion that the DOJ databases “contain only identifying information that is not intimate personal information that would implicate the right to privacy under our decisions.”
The judge acknowledged that “[o]ur court has indicated that [social security numbers] may implicate the right to privacy in some situations where the government has no legitimate reason to require their disclosure.”
The plaintiffs pointed out that the CCW application had at one point asked for an applicant’s social security number (“SSN”) and that the Firearm Violence Research Center admitted that researchers at the institute have received those applications. However, Schoeder opined:
“In this case, we do not need to decide whether the State had a legitimate reason for disseminating SSNs because plaintiffs cannot show that AB 173 resulted in any disclosure of their SSNs….Even if…SSNs were transmitted to researchers, that transmission was not made pursuant to any relevant statutory authority….None of the challenged statutes require that SSNs be included in the AFS database or disseminated to researchers.”
A preemption argument based on the federal Privacy Act found at 5 U.S.C. 552a(e)(3), requiring state agencies to communicate certain information when they request SSNs from individuals, was also rejected by Schoeder who wrote:
“A prior version of the State’s CCW application form did request applicants’ SSNs, but the State’s current form no longer does so….There is no conflict with the Privacy Act.”
She similarly disposed of plaintiffs’ assertion that AB 173 is unconstitutionally retroactive by requiring the DOJ to disclose information provided before the law went into effect, pointing out that “changes in the law affecting prior events can violate due process only where they attach ‘new legal consequences’ to those events” and the bill in question here “creates no new cause of action, remedy, or liability for past conduct.”
The case is Doe v. Bonta, 23-55133.
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