From the DA’s Desk  
By Robert Phillips  
Deputy District Attorney (ret.) 

Second Amendment Update
Your Personal Information as a Firearms or Ammunition Purchaser, or CCW Applicant  

Are you aware that every time you purchase a new firearm or ammunition or if you apply for a concealed weapons permit that data and some of your personal identification information, is given to the state’s Department of Justice for use at the California Firearm Violence Research Center at the University of California-Davis? [See P.C. §§ 11106(d) & 30352(b)(2]].  

The center is a state institution the legislature created to conduct research and provide information on firearm violence to help the legislature create an informed statewide policy to enact appropriate legislation with the goal of curbing gun violence. (P.C. § 14231.)  

The personal information turned over to the center includes your name, address, identification, place of birth, telephone number, occupation, sex, physical description and legal aliases. [P.C. §§ 11106(b)(2)(A) & 30352(a)(b)(1)]. The statutes also permit the DOJ to share the information with other accredited, non-profit research institutions studying firearm violence. (P.C. §§ 11106(d), 30352(b)(2)). Currently, Stanford University houses the only other institution so authorized.  

California’s DOJ maintains two databases relevant to this issue. The first relates to purchasers of firearms and applicants for concealed weapons permits and is referred to as Automated Firearm System (AFS) [P.C. § 11106(b)]. The second relates to purchasers of ammunition and is known as the Ammunition Purchase Records File. (APRF) [P.C. § 30352(b)(1)].  

The disclosure of this information is nothing new. California has long permitted disclosure of information from these databases to a wide range of public officials, primarily for law enforcement purposes. [See P.C. §§ 11105(b) (c), 11106(c)(1), & 30352(b)(1)]. 

Five plaintiffs – Jane Doe and four John Does, all registered California gun owners – objected to this release of their personal information, filing a federal lawsuit against the state pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the release of their personal information as described above.  

The legislation at issue in this case, Assembly Bill (AB) 173, became effective in September 2021, although it is retroactive in its application. It amended existing statutes to require DOJ to disclose data from these databases to researchers, as noted above. [See 2021 Cal. Stat., chapter 253; and P.C. §§ 11106(d) & 30352(b)(1)]. The plaintiffs’ complaint asked the federal district (trial) court to enjoin DOJ from enforcing this legislation and to declare it unconstitutional as infringing on their Fourteenth Amendment right to informational privacy and Second Amendment right to keep and bear arms. The plaintiffs claimed an additional due-process violation in the alleged retroactive expansion of access to their identifying information. The district court granted the civil defendant’s motion for summary judgment, dismissing the lawsuit. (See Doe v. Bonta (S.D. Cal. 2023) 650 F. Supp.3rd 1062.) The plaintiffs appealed. 

The Ninth Circuit affirmed the district court’s decision in Doe v. Bonta (9th Cir. May 8, 2024) 101 F.4th 633. As noted by the court, there is in fact such a thing as a right to “informational privacy,” recognized under the Fourteenth Amendment. This right stems from an individual’s interest in avoiding disclosure of highly sensitive personal matters. (See Endy v. County of Los Angeles  However, in order to invoke this right, the plaintiff must show that the information to be released is in fact “highly sensitive” personal information.  An example given of such sensitive information is a woman’s medical records relating to an abortion.  (See Doe v. Garland (9th Cir. 2021) 17 F. 4th 941, 947.)  Less sensitive information, such as one’s name, age, and employment history, and even criminal charges filed against a person, have been held not to be similarly sensitive and thus does not implicate the right to informational privacy.  (Id., at 944, 947.)  to invoke this right, a plaintiff must show that the information to be released is in fact “highly sensitive” personal information. An example given of such sensitive information is a woman’s medical records relating to abortion. (See Doe v. Garland (9th Cir. 2021) 17 F. 4th 941, 947.) Less sensitive information, such as one’s name, age and employment history, and even criminal charges filed against a person, have been held not to be similarly sensitive and thus does not implicate the right to informational privacy. (Id., at 944, 947.)  

Here, the Ninth Circuit held that the personal information that is contained in DOJ’s databases related to the purchase of a firearm or ammunition, or in applying for a CCW permit, is not highly sensitive. To the contrary, it consists largely of biographical data only, which the court has recently observed does not imply the right to informational privacy. (See A.C. By and Through Park v. Cortez (9th Cir. 2022) 34 F.4th 783, 787-788.) The court also held that the fact that the plaintiffs may have had a subjective expectation that their personal information would remain private is irrelevant. 

The Ninth Circuit further rejected the plaintiffs’ argument that the release of the information, such as in issue here, violated their Second Amendment rights. The court first noted that the legal standards that govern a court’s decision when considering an alleged violation of the Second Amendment was laid down by the U.S. Supreme Court in New York Rifle and Pistol Assn, Inc. v. Bruen (2022) 597 U.S. 1. Recognizing that the Second Amendment appears to cover one’s right to keep and bear arms, AB 173 has nothing to do with this right. All AB 173 does is direct DOJ to share data from its databases with researchers.  

The plaintiffs, however, argued that the release of their personal information “chills” them from exercising their Second Amendment rights, such fear precipitating from the increased risk of public exposure and harassment, discouraging them from purchasing firearms, ammunition, or from applying for a CCW permit. The court noted, however, that all of this is merely speculative, with plaintiffs being unable to cite any instances where any of this alleged “chilling” has in fact occurred. To the contrary, AB 173 authorizes disclosure of biographical information only to accredited research institutions while imposing strict prohibitions on these institutions on publicly disseminating personal information. As such, AB 173 does not violate the Second Amendment.  

The court further noted that the fact that AB 173 requires information be released that was gathered prior to the new sections’ enactment does not create “retroactive” issues, that there is no attachment of any new legal consequences to such earlier conduct. The court also held that because the requirement that the plaintiffs’ social security number be released has been deleted from the relevant statutes, whether there is a privacy right to one’s SSN is irrelevant.  

For all the above reasons, the court found that the Second Amendment is not violated by the release of personal information by DOJ to university researchers, as required by the statutes. So, like it or not, if you’ve ever purchased a firearm or ammunition, or applied for a CCW permit, you are now a bit of data in some university level intellectual nerd’s research into gun violence. The fact that this research may someday lead to new legislation or a “statewide policy” on firearm safety that might impact your Second Amendment rights was not discussed.