Ruling Gave Short Shrift To Microstamping Evidence

Daily Journal
August 9, 2018
By: Ara Jabagchourian

Last week, the 9th U.S. Circuit Court of Appeals upheld the constitutionality of California’s Unsafe Handgun Act. Handgun purchasers challenged the constitutionality of the law, claiming it violated the equal protection clause of the Fourteenth Amendment by making irrational exceptions. A divided three-judge panel granted summary judgment in favor of the state of California. Pena v. Lindley, 2018 DJDAR 7675 (Aug. 3, 2018).

The law was promulgated to reduce firearm deaths in the state. Since 2007, the law has required new handguns to have a “chamber load indicator,” which shows when there is a live round in the chamber. It was then amended in 2013 to require all handguns to have a “microstamping” feature, a technology that imprints microscopic characters onto a bullet casing to identify the handgun from which the bullet is fired. The purpose is to help law enforcement solve crimes.

Although there are several exceptions to the microstamping provision, the one that is relevant here relates to handguns already on the Department of Justice’s Roster of Handguns Certified for Sale. If the handgun was on the roster prior to 2013 and is renewed, it does not have to have the new microstamping feature.

To qualify for sale in California, a new handgun must go through several tests. The microstamping-exception test requires three model handguns be submitted and a lab to fire over 600 rounds from each gun. The first two and last two rounds from each handgun must have two visible imprints on the cartridge casings visible by a “stereo zoom microscope.” The lab can certify the results only when all 12 rounds have the visible imprints.

The majority applied intermediate scrutiny because of the “longstanding distinction between laws that regulate the manner in which individuals may exercise their Second Amendment right, and laws that amount to a total prohibition of the right.” Ultimately, the court held that despite not being able to purchase the majority of Smith & Wesson’s handguns, two of Ruger’s most popular guns, and fourth-generation Glocks, purchasers are free to purchase guns that are operable and on the list.

Intermediate scrutiny requires the state to demonstrate “(1) a significant, substantial or important government objective, and (2) a ‘reasonable fit’ between the challenged law and the asserted objective.” The majority gave great deference to legislative judgment regarding prong one. On prong two, the court broke apart the chamber load indicator requirement and microstamping requirement analyses. As for the chamber load indicator, the court held that gun safety and the indicator are a reasonable fit. As for microstamping, the court held that crime prevention and unsolved homicides and microstamping are also a reasonable fit — relying on language from the 3rd U.S. Circuit Court of Appeals’ decision in United States v. Marzzarella, 614 F.3d 85 (3d. Cir. 2010), a case dealing with serial numbers on guns themselves.

The Pena court noted that no other state has a microstamping requirement, nor has any gun manufacturer implemented microstamping. Yet, it said, California is entitled to “a reasonable opportunity to experiment with solutions to admittedly serious problems.”

The Dissent

Judge Jay Scott Bybee wrote separately concurring in part, but systematically departing from the majority on microstamping. Bybee said the majority ignored an important argument raised by the plaintiffs — that the testing protocol adopted by the California Department of Justice is so demanding that no manufacturer can meet it. The plaintiffs presented evidence that no new handguns sold in the United States can satisfy the microstamping testing protocol; that microstamping technology is incapable of legibly imprinting casing on a consistent basis. They also argued that no handgun can satisfy the requirement that each casing be imprinted in at least two places. The plaintiffs submitted numerous declarations in support of their position. These included declarations from gun manufacturers indicating that the technology cannot be practically implemented.

California claimed the technology is available but that manufacturers are just unwilling to comply. The only evidence the state provided was a nine-page declaration of the inventor of microstamping technology, who ran a stress test off of a Smith & Wesson .40 caliber handgun. Based on a 2,500-round test, he found that microstamping digits from the firing pin were visible 97 percent of the time and from the breech face markings 96 percent of the time. The imprints in this stress test were visible using both “optical microscopy and scanning electron microscopy techniques.” However, the regulations require that the markings be visible by a “stereo zoom microscope.” The state provided no evidence that microstamping is visible under the method required by the law.

The majority did not attempt to tackle the discrepancy in the evidence. Rather, the majority stated, “[t]he reality is” that gun manufacturers are merely unwilling to comply with the microstamping requirement. Bybee retorted bluntly: “I do not see how the majority gets to decide at summary judgment what ‘the reality is’ when there is conflicting evidence in the record.” He questioned the wisdom of the majority and the arguments from the state, indicating how no one has attempted to explain why gun manufacturers would forego the opportunity of selling new guns in a “major market like California.” Maybe California has an antitrust case on its hands? Bybee argued that the case should be remanded to develop a richer record.
Bybee also noted that deferring to legislative judgement is problematic in this case: The legislative history never mentioned a dual imprint requirement. Nor did the Legislature ever examine the viability of manufacturers complying with the testing standards, which were adopted by the California Department of Justice after the law was amended to include the microstamping requirement.

He also turned to the issue of the proper standard of review. Microstamping is not akin to a time, place or manner restriction on the sale of handguns, as employed in First Amendment jurisprudence. Rather, he said, the law imposes restrictions on the type of handguns Californians may purchase requiring heightened scrutiny since it now impacts the Second Amendment — thus requiring strict scrutiny.


Two points come out of the dissent. First, the “reasonable fit” argument swallows itself. If the purpose of microstamping is to help solve crime, and no new guns have been sold in California since 2013 with the microstamping feature, the law has effectively eliminated the safety features required by the chamber load indicator.
Second, it is interesting to see how Rule 56 is applied in the constitutional analysis in this case. Where the line is drawn between the power to grant summary judgment and the Seventh Amendment right to a jury, especially in the situation of conflicting evidence, is one that confounds many litigators in all practice areas. Whether that line moves in this case is an open question.