Gun advocates can no longer depend on drawing their favorite judge

Gun rights groups that challenged state firearms laws long had a favorite California district judge: Senior U.S. District Judge Roger T. Benitez of San Diego.

The veteran jurist, an appointee of President George W. Bush, has struck down several California gun laws – including the state’s ban on large capacity magazines and semi-automatic rifles – as unconstitutional, and similar complaints were reassigned to him as related cases.

But new challenges in the Southern District of California are not going to Benitez, in part due to changes adopted by judges last summer.

“It became clear to us that there was confusion to the public about how this process was working,” said Southern District Chief Judge Dana M. Sabraw, a Bush appointee who has led the court since 2021, who said judges adopted the changes in June 2023.

The new local rule was an effort to change a practice that allowed plaintiffs to try to relate their lawsuits to previous complaints under what was known as the “low number rule.”

“I think some parties were attempting to forum shop by using the low number rule to relate cases that weren’t actually related,” he said in a phone interview Tuesday.

The new rules also added a provision allowing defendants to object to assertions that the new case was related within seven days.

While several of Benitez’s rulings are on appeal before the 9th U.S. Circuit Court of Appeals, more recent lawsuits by gun rights groups have been less successful before other Southern District judges – and plaintiffs are not trying to get their cases before Benitez under the new rules.

In January, Senior U.S. District Judge Larry A. Burns, a Bush appointee, dismissed a federal lawsuit by five registered gun owners against Attorney General Rob Bonta seeking to prevent enforcement of a state law, AB 173, that allows disclosure of their identifying information to research institutions studying gun violence and shooting accidents. That ruling is on appeal before the 9th U.S. Circuit Court of Appeals.

On Thursday, a lawsuit by several non-California residents challenging a state law barring them from carrying loaded firearms in public while in the state was filed in the Southern District and assigned not to Benitez but to U.S. District Judge Cathy Ann Bencivengo, an appointee of President Barack Obama. Hoffman et al. v. Bonta, 24-CV-00664 (S.D. Cal., filed April 11, 2024).

Sabraw denied that the rule change was aimed at getting Second Amendment cases away from Benitez, saying the issue also came up in other hot-button issues involving churches, COVID-19 and immigration.

“It’s not isolated to the Second Amendment,” he said. “The local rule was not implemented to address forum shopping for [Judge] Roger Benitez.”

Under the old system, a lawsuit challenging California’s law requiring background checks on ammunition purchases, filed a year after a 2017 complaint testing the large capacity magazine ban, was transferred to Benitez under a court rule after attorneys for the gun groups identified it as related. Rhode et al. v. Becerra, 18-CV-00802 (S.D. Cal., filed April 26, 2018).

The case was transferred to Benitez before the state attorney general’s office filed an objection, according to court records.

The old rule allowed a transfer in Rhode because the cases “involve the same parties or property, or ... call for determination of the same or substantially identical questions of law, or ... for other reasons [that] would entail unnecessary duplication of labor if heard by different judges.”

Under the new local rule, that rule was modified. Transfers to judges handling an older case would only occur if both the transferee judge and the judge to whom the related case would be transferred both agreed. “If any of the two judges don’t agree it should be transferred, it isn’t,” Sabraw said.

Judge shopping has become a nationwide issue this year. The Judicial Conference of the United States adopted a policy last month designed to make it more difficult for plaintiffs to engage in the practice by filing lawsuits in single-judge divisions.

But after an outcry from Senate Minority Leader Mitch McConnell, R-KY, and other Republicans, the judicial conference clarified that the policy was advisory. The chief judge of the Northern District of Texas, a common venue for Texas challenges to Biden administration policies, sent a letter to Senate Majority Leader Chuck Schumer, D-TX, that it was rejecting the recommendation.

The Western District of Texas did make a successful effort in 2022 to limit the number of new patent infringement lawsuits being filed before U.S. District Judge Alan D. Albright by adopting a system that would assign new cases at random.

Single-judge divisions are not an issue in California, where new cases are assigned by lot within the entire district. But Sabraw favors a system that discourages litigants from choosing judges by identifying related cases. The local rules “address, as best we can, forum-shopping.”