The Times: Essential news from the L.A. Times

The judge who likes to overturn gun laws

Episode Summary

U.S. District Judge Roger Benitez is known for overturning gun bans. Derided and hailed in equal measures, he's now presiding over a case with far-reaching consequences

Episode Notes

U.S. District Judge Roger Benitez is known for overturning gun bans. Derided and hailed in equal measures, he’s now presiding over a case with far-reaching consequences.

Today, we talk about his history and impact. Read the full transcript here.

Host: Gustavo Arellano

Guests: L.A. Times enterprise reporter Laura J. Nelson

More reading:

The judge upending California’s gun laws: ‘Blessed’ jurist or ‘stone-cold ideologue’?


Thanks to the Supreme Court, California gun cases hinge more on history than modern threats

War on California gun laws revs up after Supreme Court’s ‘right to carry’ decision

Episode Transcription

Gustavo Arellano: With mass shootings increasing like never before, calls have gotten louder for a national assault weapons ban. 

Clip: President Biden raised the idea of trying to pass an assault weapons ban after two mass shootings in a week, but he'll likely face an uphill battle in Congress.

Gustavo: California is way ahead of the curve. Back in 1989, the state adopted the country's first assault weapons ban. With a few exceptions, it made the sale, transfer, manufacturing and importation of all semi-automatic rifles illegal. But after the recent mass shootings in Monterey Park and Half Moon Bay, California's ban is facing renewed scrutiny by a federal judge who's tried to overturn the law. 

Clip: In his ruling, the U.S. district judge wrote “like the Swiss Army knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment.”

Gustavo: For years. Judge Roger T. Benitez has been at the center of challenges and appeals to the state's assault weapons ban. And now he could issue another major blow to California's landmark gun law.

I'm Gustavo Arellano. You're listening to “The Times: Essential News from the L.A. Times.” It’s Wednesday, March 15, 2023. Today: How one judge has usurped California's efforts to restrict guns, and how recent challenges to California's assault weapons ban could potentially weaken national efforts at gun control.

Gustavo: My L.A. Times colleague Laura J. Nelson is an investigative and enterprise reporter who profiled Judge Benitez in 2021, along with Kristina Davis, who’s currently the enterprise editor at the San Diego Union-Tribune. Laura, welcome to The Times.

Laura: Thanks for having me.

Gustavo: Okay, so this judge, who is he?

Laura: So Roger Benitez grew up in Havana, Cuba, in an upper-middle-class family, and he came to the U.S. through Operation Peter Pan, which was this U.S.-backed effort to get children out of Cuba after Fidel Castro came to power. And Benitez’s family eventually followed him to the U.S., and they settled in the Imperial Valley in California.

He went to high school in El Centro and then he went to night school at San Diego State University while driving a tractor on his father-in-law's farm. He became a lawyer, then he became a federal magistrate, and then, under President George W. Bush, he was nominated to the Southern District of California bench, the federal bench, in the early 2000s.

During that nomination process in 2003, the American Bar Assn. gave Benitez a not-qualified rating. It's very rare: Since 1989, the group has only found about 1% of its candidates for the federal judiciary to be unqualified.

Gustavo: What were their issues with him?

Laura: So the ABA, uh, investigates, basically does a profile of every candidate for the federal judiciary.

Gustavo: Yeah, the American Bar Assn.

Laura: They take this very seriously because the judiciary is a lifetime appointment, and when the ABA investigated Benitez, they found that the California legal community – so, lawyers – had deep concerns about Benitez's judicial temperament and his courtroom demeanor.

The California lawyer who conducted the investigation told the Senate Judiciary Committee in 2004 that, quote, “All too frequently while on the bench, Judge Benitez is arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean, and altogether lacking in people skills.

End quote.

Gustavo: Wow. And yet he was confirmed?

Laura: He was confirmed, so he got over that hurdle. He was confirmed by the Senate and after that happened, I think after that kind of brush with notoriety, he kept a really low profile for more than a decade. Handling just kind of routine drug and immigration cases, which are the types of cases that the San Diego federal court typically deals with.

Gustavo:  Your profile showed how Judge Benitez, though, became a favorite of lawyers who wanted less restrictions when it came to firearms, and so they would try to get their cases argued before him. How did that reputation happen?

Laura: So Benitez has a pretty expansive view of the 2nd Amendment.  

He really came to the fore of the gun debate in the last couple of years. In three cases, in three years, he has made really, like, seismic rulings that have upended California's longtime gun laws. That started in 2019, when he blocked a ban on magazines that hold more than 10 bullets.

The following year, in 2020, he knocked down a law that had been approved by California voters, that required background checks to buy ammunition.

And in 2021 – this is perhaps his best-known decision – he overturned California's long-standing ban on assault weapons. He called the law, which had been signed into law in 1989 by Republican Gov. George Deukmejian, a, quote, “failed experiment.”

That case started when a group of gun owners in San Diego sued over the state's assault weapon ban, saying it violated their 2nd Amendment rights. In that case, which is often called Miller vs. Bonta, Benitez compared the AR-15 rifle to a Swiss Army knife, calling it good for both home and battle.

Gustavo: Uh, wait. A Swiss Army knife?

Laura: That's right. He's basically arguing that the AR-15 is the ideal gun because it can be used for anything you need it to be used for: home defense, homeland defense, militia use, it fits in all those cases.

Gustavo: As opposed to say the Colt .45? All right. I guess?

Laura: I mean, it was probably the thing that many listeners will remember hearing about this decision when it was released. It's the opening paragraphs of his decision and it's really a salvo for kind of the laws that California has held dear in terms of gun control, a really kind of an in-your-face type of decision.

Gustavo: And while Judge Benitez was issuing all these rulings, like the first time he overturned California's assault weapons ban in 2021, what was happening at the national level?

Laura: So last summer, the Supreme Court, which now has a 6 to 3 conservative majority, struck down New York's concealed-carry law, which required that people show, quote, “proper cause” in order to receive a permit to carry a concealed weapon. And the court said that that restriction was unconstitutional.

AP clip: The Supreme Court's so-called Bruen decision in a New York case has changed the test that lower courts had used for evaluating challenges to firearm restrictions. Judges should no longer consider whether the law serves public interest, such as the enhancement of public safety. Legal experts say there is so much confusion right now, they expect the Supreme Court will have to step in again.

Laura: So after that ruling, which is called the Bruen decision, uh, the 9th Circuit vacated Benitez's decision on the assault weapon ban writing at that time that their decision was quote, “consistent with the United States Supreme Court's decision.” That ruling may come any day now.

Gustavo: Coming up after the break, how the Supreme Court decision about New York's gun laws created national ramifications, including here in California.

To understand this new landscape of gun laws, we spoke to attorney Margaret J. Finerty, who wrote about the decision's impact for the New York State Bar Assn. News Center and Journal. Margaret, welcome to the Times.

Margaret: Thank you. Good to be here.

Gustavo: What was the New York concealed-carry law that was at the center of the Supreme Court Bruen decision?

Margaret: Well, it was a law, interestingly, that had been on the books for well over 100 years, and it said that in order for an individual to be able to carry a concealed weapon on their person in New York state they had to prove that there was proper cause in order for them to have a license issued. They really needed to show a very specific need that just went beyond the desire to have  a weapon for personal safety.

And as a result it was difficult for many people to get this license, and not very many people in the state compared to other states were allowed to actually carry a concealed weapon on their person in New York.

Gustavo: A law that's over 100 years old, wow. So the Supreme Court overturned this law in what’s known as the Bruen decision. What ramifications did it have for how judges should interpret the 2nd Amendment?

Margaret: So the Supreme Court said that this requirement, that an individual must prove  proper cause in order to get a concealed-carry license, was unconstitutional and it violated the United States 2nd Amendment in our Constitution. They said that this was just too subjective and it was too restrictive, and it prevented a law-abiding citizen who would have an ordinary self-defense need from exercising their 2nd Amendment right to keep and bear arms.

Gustavo: What is an “ordinary” self-defense need?

Margaret: Basically what Bruen said is you have the right to protect yourself, in public. So you shouldn't have to show a proper cause, which is something that, you know, is very subjective on the part of the regulators. You have the right to carry this weapon in public, states can impose restrictions, but they have to be consistent with the historical analysis of our nation's history.

Now what the judge said is “sometimes, things have changed,” so that looking back to the past, you may have to rule by analogy, you may have to use some analogical reasoning. So you've gotta look at, what is common usage in our country? And I think the court was allowing for, just because you didn't have assault weapons back when we wrote the Constitution, doesn't mean that maybe you can't have assault weapons now.

Gustavo: Yeah, that just seems interesting to me, like trying to make an analogy between, say, the muskets of the American Revolution and the AR-15s of today.

Margaret: Right, I keep going back to it because it's really hard to make sense of it sometimes: whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified. So, you know, if you say no, you can't have an assault weapon, is that comparable to the historical regulation when all we were dealing with were muskets, you know, or pistols, dueling pistols?

Gustavo: So have we already seen any more laws overturned because of the Bruen decision, or government officials pushing back against it?

Margaret: Well, I think you're seeing challenges. New York really sprang into action almost immediately.

The state Legislature and the governor enacted a law called the Concealed Carry Improvement Act, which limited the places where you could actually carry a weapon in a concealed manner. And it included houses of worship and schools and federal and state office buildings.

It also included Times Square. So New York reacted by passing several laws that would restrict the locations, and they also, interestingly, beefed up the licensing requirements to get a concealed-carry permit. You now need to have character references. They get to look at your social media. You have to take extensive training, and we're seeing other challenges as well to laws that exist such as assault weapon bans, as – I don't have to tell you in California what's happening there. 

So I think with the current makeup of the Supreme Court, a lot of people will see this as an opportunity to push back on gun regulations that exist throughout the entire country.

Gustavo: Margaret, thank you so much for this conversation.

Margaret: You're very welcome

Gustavo: Coming up after the break, the state of California's gun laws with Judge Benitez and after two horrific mass shootings.

Gustavo: Now, Laura, Judge Benitez's rulings seem to consistently overturn any gun control laws that come before him. So why and how really does he keep getting these important cases involving firearms? 

Laura: It was purely random. In 2017, Benitez was assigned randomly the lawsuit that challenged California's ban on magazines with more than 10 bullets. After that, he got three more 2nd Amendment cases in the next two years because of what's called the related case rule, which allows either side in a lawsuit to request that the case be heard by a judge with previous experience on that topic.

Gustavo: Yeah, gun control is just such a political issue in this country, so how do people on both sides of the issue see Judge Benitez?

Laura: Well, he's an object of hatred and of adoration. Gun rights groups have really hailed Benitez for what they see as an honest, clear-eyed approach to the law and his insistence in case after case that government lawyers actually prove that gun control measures work. He's very popular among gun owners who follow 2nd Amendment news.

You can buy St. Benitez T-shirts and prayer candles and stickers that show him wearing robes and a halo. There are memes with Benitez’s face on it that circle in gun groups. One of them says, “Blessed are thee among jurists and blessed the fruit of your gavel.” 

But he's far less popular with advocates for stricter gun laws. When Benitez overturned the assault weapon ban in 2021, Gov. Gavin Newsom excoriated him as a “stone cold ideologue” and a “wholly owned subsidiary of the gun lobby and the National Rifle Assn.” 

Newsom: Look, I'm a son of a judge. I am very cautious when it comes to attacking judicial decisions. But I sat back and watched decision after decision after decision with Judge Benitez. He's unserious.

Laura: Advocates who support stricter gun laws have argued that gun rights groups are judge-shopping, specifically filing these 2nd Amendment cases in Benitez's district in order to try and get their case heard by a more favorable judge.

Gustavo: Yeah, and that gets back to what you were saying, the related case rule. But it sounds like what some people call judge-shopping. Does that happen often?

Laura: So I don't think that lawyers on either side would agree with the characterization of it as judge-shopping. That's very much seen as kind of a derogatory description of what lawyers do, but it is very much part of the legal game for lawyers to try to get their cases in front of judges who they think will give them a more favorable hearing.

I mean, that's really just part of the process when it comes to shepherding your client and the case through the court system. So in this case gun groups are being criticized for judge shopping in front of Judge Benitez, they’re trying to get 2nd Amendment rights cases heard by him. But honestly, it's something that happens all the time at all levels of the judiciary.

Gustavo: Do we know how Judge Benitez feels about the 2nd Amendment? Because obviously he's overturning these laws, but has he ever said anything to the effect, I'm just following the letter of the law, or, I love guns, everyone should have guns?

Laura: Well, we don't know a lot about Benitez's personal views. This is true of many federal judges; even though they have, you know, a big influence on U.S. policy, many of them are really quite behind the scenes, and that's been the case with Benitez as well. So we know that he himself is a gun owner, like millions of other Americans. But what we know about his view on guns in the 2nd Amendment specifically, that comes from his rulings issued from the bench.

In his decision that overturned the assault weapons ban, he called that law a failed experiment. He also tried to argue that an AR-15 being used in a mass shooting is a, quote, “infinitesimally rare event“ saying that more people have died from the COVID vaccine than mass shootings in California.

Which is a talking point that mirrors what circulated widely in right-wing media, including on Fox News. He also wrote, as we talked about earlier, that the ban violates the 2nd Amendment because it could force militias, both citizen militias and state-run militias, to settle for less than ideal weapons rather than the “ideal” AR-15 rifle.

He said, “That may not be a severe burden today when the need for the militia is improbable, One could say the same thing about the improbable need for insurance policies.” 

The California policy director for the Giffords Law Center described that line as “a new and deeply disturbing line of thinking,” He told me that if we take that line of thinking seriously, then there's no limiting principle on the types of firearms that people should be allowed to possess, including tanks, anti-aircraft missiles and machine guns.

Gustavo: So is there any expectation that Judge Benitez this is going to uphold California's assault weapons bans, given his previous record?

Laura: Given his track record, I think it's most likely that he will overturn the law again.

Gustavo: And that decision might come any day now, but finally, this decision will come in a year where we had back-to-back mass shootings in California. How does your reporting on Judge Benitez inform the strategies that gun rights and gun control proponents take in changing the laws?

Laura: So gun rights proponents in California say those recent mass shootings are proof that California's strategy on gun control has not worked.

Ted Cruz: Democrats don't want to address the consistent, proven empirical failure of gun control laws. They don't work and they make crime worse. But they also wanna scapegoat law-abiding citizens.

Laura: Gun safety groups, meanwhile, have already begun mobilizing to get more laws and better enforcement on the books.

Newsom: We're saving lives, but we have more work to do, and this is part of this effort.

Laura: And as my colleague Kevin Rector has reported, even in the first month alone after the Bruen decision, the war on California's gun laws has really gotten a shot in the arm from the Bruen decision and has forced lower courts, including Benitez's court, to reconsider a whole host of legal challenges that a couple of years ago might not have stood muster. 

Gustavo: Laura J. Nelson, thank you so much for this conversation.

Laura: Thanks for having me.

Gustavo: And that’s it for this episode of “The Times: Essential News from the L.A. Times.”

Denise Guerra, Kasia Broussalian and David Toledo were the jefes on this episode. It was edited by Jazmín Aguilera and Heba Elorbany, and Mike Heflin mixed and mastered it.  

Our show is produced by Denise Guerra, Kasia Broussalian, David Toledo and Ashlea Brown. Our editorial assistants are Roberto Reyes and Nicolas Perez. Our fellow is Helen Li. Our engineers are Mario Diaz, Mark Nieto and Mike Heflin. Our executive producers are Jazmín Aguilera, Shani Hilton and Heba Elorbany. And our theme music is by Andrew Eapen. 

I'm Gustavo Arellano. We'll be back Friday with all the news and desmadre. Gracias.