By Alex Riggins
The San Diego Union-Tribune
SAN DIEGO — A federal judge in San Diego has struck down a California law banning possession of club-like weapons, reversing his previous ruling from 2021 that reluctantly upheld the prohibition on billy clubs, batons and similar blunt objects.
U.S. District Judge Roger Benitez declared Friday that the prohibition “unconstitutionally infringes the Second Amendment rights of American citizens” and enjoined the state from enforcing the law.
Weapons such as billy clubs have been outlawed in some form or other in California since at least 1917, with exceptions for law enforcement officers and some state-licensed security guards.
Benitez ruled in September 2021 that California’s roughly 100-year-old ban on such weapons qualified as “longstanding” and therefore did not violate the Second Amendment. But while that ruling was under appeal, the U.S. Supreme Court in 2022 issued a decision in New York State Rifle & Pistol Association v. Bruen that changed the analysis for Second Amendment regulations, placing nearly singular importance on laws that date back to the time period around when the Second Amendment was ratified.
The billy club case was sent back to Benitez to review under the new Bruen analysis. He ruled that Attorney General Rob Bonta’s office, which is defending the case, failed to provide evidence of any historically similar prohibitions.
“What is different today is that a statute enacted in 1923 is no longer given a pass for being ‘longstanding,’ ” Benitez explained of the change in his rulings before and after the Bruen decision. “For this case, changing the relevant time period changes the outcome.”
Attorney Alan Beck, who along with co-counsel Stephen Stamboulieh is representing the two military veterans challenging the billy club ban, welcomed Benitez’s ruling.
“I thought it was a straightforward application of Supreme Court precedent,” Beck said Monday.
The challenged California law bans the possession, manufacture, importation or sale of “any leaded cane, or any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot.” Courts have defined a billy as any kind of stick, bat or baton that is intended to be used as a weapon — even common items like a baseball bat or table leg could qualify if it is meant to hurt someone else.
“Essentially any stick can be construed as a billy club — it doesn’t make sense, not just for constitutional reasons, but for public policy,” Beck said. “If people have the right to own and carry a handgun, it makes very little public policy sense that they can’t carry a billy club.”
Beck has also litigated several other Second Amendment cases around the nation centered on less-lethal weapons such as stun guns and knives. He said that in conversations with public defenders, the ban on billy clubs “disproportionately impacts low-income Californians” and is selectively enforced.
“The language of such laws is so vague, especially for billy clubs, that it’s ripe for abuse,” Beck said.
Bonta’s office filed a notice Monday that it will appeal the ruling to the 9th U.S. Circuit Court of Appeals. The office did not respond Monday to a request for comment on the judge’s ruling.
The lawsuit at the center of the decision was filed in 2019 on behalf of Russell Fouts, a Marine veteran who wished to carry a police-style baton for both home self-defense and for his security contractor job, and Tan Miguel Tolentino, an Air Force veteran who had carried a baton as a military law enforcement officer. The suit challenges only the prohibition on the billy and not the other weapons listed in the same statute.
“Both my clients received training in how to use batons,” Beck said. “There is no reason two people who are fully qualified to use these for self-defense shouldn’t be able to, especially in their own homes.”
Benitez, a President George W. Bush appointee known as “St. Benitez” among firearms enthusiasts for his friendly rulings in previous Second Amendment cases, seemed to agree with the plaintiffs’ arguments when he first ruled on the case in 2021. But at the time the analysis was different, and Benitez said he was bound by legal precedent to dismiss the lawsuit because he deemed the billy club prohibition to be longstanding.
The plaintiffs appealed his ruling, and the 9th U.S. Circuit Court of Appeals was considering the case when the Supreme Court issued its Bruen opinion. The court’s decision in that case established a new legal framework that has come to be known as the “text, history and tradition” standard. Courts must now analyze Second Amendment regulations based on the “Second Amendment’s plain text” and must ensure weapons laws are “consistent with the nation’s historical tradition of firearm regulation.”
The new standard has forced government entities attempting to regulate modern weapons to look for closely comparable laws from a period more than 230 years ago — when Philadelphia was still the nation’s capitol and New York City had a smaller population than modern-day Poway.
When the 9th Circuit sent the case back to Benitez, he asked both sides to put together a list of historically similar laws. He ruled Friday that the Attorney General’s Office had not identified any historical analogues.
“During the time the Founders were alive and all of the way up to the end of the Civil War in 1865, there were no state restrictions in any of the states or territories on possessing or carrying a billy,” Benitez wrote in his ruling. “This is the most persuasive evidence that the original understanding of the Second Amendment protects a person’s right to keep and carry a billy.”
Benitez ruled that historical laws banning other non-firearm weapons, such as knives and swords, were not relevant to the constitutionality of billy clubs.
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