Penal Code § 25100 (California's Gun Storage Statute) is Unconstitutional
It is a crime in California to store a loaded gun in any premise where a child is likely to gain access if the child then uses the gun and harms or kills someone. This is a crime where the conduct of the adult is criminal or not criminal depending upon choices later made by a child.
We argue that this is unconstitutional and violates the 2nd Amendment.
Penal Code § 25100 states that a person commits the crime of “criminal storage of a firearm” if he or she “keeps any loaded firearm within any premises that are under the person's custody or control,” and “knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian”. It then adds to roulette wheel elements as it also requires that “[t]he child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person.” (Penal Code, § 25100, subd. (a).)
Penal Code, § 25100(a) is unconstitutional for two reasons. First the luck element violates is void for vagueness and violates state and federal due process. Second, the statute violates the Second Amendment.
UNCONSTITUTIONAL - VOID FOR VAGUENESS
“The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution, each guarantee that no person shall be deprived of life, liberty, or property without due process of law. This constitutional command requires “a reasonable degree of certainty in legislation, especially in the criminal law....” [Citation.]”
(People v. Maciel (2003) 113 Cal.App.4th 679, 683)
PC 25100 REQUIRES SOMEONE TO GUESS AT WHAT IS OR IS NOT A CRIME
Penal Code § 25100(a) defines bad luck instead of conduct that is criminal. The gun has to be found by a child, used by a child and cause serious harm. If one intends for a child to find a gun, use the gun and cause great bodily harm we have a far more serious crime than a § 25100(a) violation. On the other hand, if the storage is legal except when wild and crazy things happen, this is non intent crime and becomes unconstitutional vague as the only conduct it controls is whether crazy things happen. A statute is unconstitutionally vague on its face if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304 (2008).
1. 25100 is Unconstitutionally Vague
"Vague statutes are invalidated for three reasons: (1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of laws based on 'arbitrary and discriminatory enforcement' by government officers; and (3) to avoid any chilling effect on the exercise of [constitutional] freedoms." Humanitarian Law Project v. Mukasey, 552 F.3d 916, 928 (9th Cir. 2009) as modified, (quoting Foti v. City of Menlo Park, 146 F.3d 629,638 (9th Cir. 1998) ) (internal quotation marks omitted).
2. 25100 Does Not Give Fair Warning
"The rule of fair warning consists of 'the due process concepts of preventing arbitrary law
enforcement and providing adequate notice to potential offenders' [citation], protections that are
'embodied in the due process clauses of the federal and California Constitutions. [Citations.]'
[Citation.] The vagueness doctrine bars enforcement of' "a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application." [Citation.]' [Citation.] ... " In re Sheena K.
(2007) 40 Cal.4th 875, 890.)
3. The Rule of Lenity Requires Dismissal
The rule of lenity is applied in "those situations in which a reasonable doubt persists
about a statute's intended scope even after resort to the 'language and structure, legislative
history and motivating policies' of the statute." Moskal v. United States, 498 U.S. 103, 108
(1990) (quoting Bifulco v. United States, 447 U.S. 381,387 (1980)
PC 25100a VIOLATES THE 2ND AMENDMENT
N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen
The Second Amendment right to own a firearm also includes the right to transport the firearm and store it. In imposing limits a court must “assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding.” N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2131 (2022). Penal Code § 25100 does not define a single limit.
Instead in creates a modern gun storage restriction that is unprecedented. It creates strict liability should a gun be misused by a child and harm is caused. Strict liability for the misuse of one’s gun by another has never been a restriction historically in place and that is what § 25100 imposes. The actual conduct that leads to this chance liability is not defined. Therefore this is a classic statute which violates due process “because it fails to provide a proper definition of the crime intended to be established.” (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 219)
The right to possess and store firearms is clearly covered by the Second Amendment's plain text. Hence the court must “assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding.” N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2131 (2022). To do this, this Court must engage in analogical reasoning; it must compare a historical regulation to a modern firearm regulation to determine if the two are “relevantly similar.” Id 2132 This requires the Government to “identify a well-established and representative historical analogue, not a historical twin.... [E]ven if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id 2133 If a historical regulation imposed a similar “burden [on] a law-abiding citizen's right to armed self-defense” as a modern regulation and had a similar justification, it is a proper historical analogue. Id.
Historically people always kept guns in their home. If a truck is a premise, the history is still against the statute. Historically people who used their horses as a premise also kept their guns on the horse, loaded and not locked. No one rode their horse with a gun safe or gun locks. Premises in the old days included guns which were kept at home where children could use them. Children often used guns to shoot snakes, squirrels and intruders.
Bruen directed lower courts to consider: (1) the lack of a “distinctly similar historical regulation addressing” a “general societal problem” that has existed since the 18th century; (2) historical attempts to address the problem but through “materially different means”; and (3) rejection of or failure to enact “analogous regulations” to control this problem based on constitutional grounds. Id 2131
There are laws that do not implicate the 2nd Amendment that prevent putting a loaded gun in the hands of a child when this creates danger. But 25100 is a storage statute. It is conduct related but the conduct ultimately relates to storage. There is no historical precedent for outlawing any storage that allows a child potential access to a weapon. Since the danger element is a roll of the dice, this statute does not bypass the Second Amendment.
Recent cases finding parental liability for school shooters will push against this legal analysis. We are presented with the core issue of whether the storage itself can be criminalized by child conduct vs. in school shooter cases where more than questionable storage is at issue. School shooter parental liability focuses more on the knowing placement of a gun in the hands of someone known to be likely to use it to do harm.