Regina v. State of California

Filed 3/17/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

PETER PAUL REGINA, B316404

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV09546)

STATE OF CALIFORNIA et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, John P. Doyle, Judge. Affirmed.
Daniels Law, William A. Daniels, Jr., William A. Daniels;
Klass Helman & Ross and Robert R. Ross for Plaintiff and
Appellant.
Rob Bonta, Attorney General, Thomas S. Patterson,
Assistant Attorney General, P. Patty Li and Megan A.S.
Richards, Deputy Attorneys General, for Defendants and
Respondents.
______________
 Before a federally licensed firearms dealer may sell or
transfer a firearm in California, the dealer must submit certain
purchaser information to the California Department of Justice for
the Department to conduct a background check to determine
whether the individual is prohibited by federal or state law from
1
purchasing a firearm. If the background check reveals an arrest
or criminal charge, the Department has 30 days from the date of
submission to investigate whether that arrest or charge resulted
in a disqualifying conviction. Pursuant to Penal Code
2
section 28220, subdivision (f)(4), if the Department is unable
within the 30-day period to ascertain the final disposition of the
arrest or charge, the Department must notify the dealer of that
fact in writing and inform the dealer it may immediately transfer
the firearm to the purchaser.
Peter Paul Regina sued the State of California and Rob
Bonta and Xavier Becerra in their capacities as the current and
former Attorney General after a federally licensed firearms
dealer refused to complete Regina’s purchase of an antique
shotgun. Regina alleged the dealer had received a letter from the
Department pursuant to section 28220, subdivision (f)(4),
advising it that the Department had been unable within the
statutory period to ascertain Regina’s eligibility to purchase the
firearm. Although the Department’s letter in accordance with

1
Penal Code section 28150, subdivision (a), defines
“purchase” for purpose of the background-check requirement as
“purchase, loan, or transfer of a firearm,” and subdivision (b)
defines “purchaser” as “the purchaser or transferee of a firearm
or the person being loaned a firearm.”
2
Statutory references are to this code unless otherwise
stated.

2
section 28220, subdivision (f)(4), authorized the immediate
transfer of the firearm to Regina at the dealer’s discretion, the
dealer elected not to do so, telling Regina it was unwilling to
“take the risk.”
In his operative second amended complaint Regina alleged
a federal civil rights claim (42 U.S.C. § 1983) and requested
declaratory relief, asserting in both causes of action that
section 28220, subdivision (f)(4), was unconstitutional because it
burdened, or at the very least chilled, a purchaser’s exercise of
Second Amendment rights. In addition, as part of his declaratory
relief cause of action, Regina alleged the statute was in conflict
with, and preempted by, the Brady Handgun Violence Prevention
Act (Brady Act) (18 U.S.C. § 922).
The trial court sustained without leave to amend the
demurrer of the State and the Attorneys General to the second
amended complaint. On appeal from the judgment dismissing
the action, Regina contends the trial court erred in concluding as
a matter of law that section 28220, subdivision (f)(4), did not
violate the Second Amendment on its face or as applied and was
not preempted by the Brady Act. Alternatively, he insists we
must at least reverse and remand for the parties to brief, and the
trial court to consider in the first instance, his constitutional
challenges to section 28220, subdivision (f)(4), in accordance with
the United States Supreme Court’s recent decision in New York
Rifle & Pistol Assn. v. Bruen (2022) __ U.S. __ [142 S.Ct. 2111]
(Bruen).
The Department’s notice to a firearms dealer pursuant to
section 28220, subdivision (f)(4), does not prevent a prospective
purchaser from owning or possessing a firearm or restrict an
individual’s ability to acquire a firearm. Nor did it do so here.

3
The statutory scheme challenged by Regina lies beyond “the
outer bounds of the right to keep and bear arms.” (Bruen, supra,
142 S.Ct. at p. 2127.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Regina’s Attempt To Purchase a Firearm from a
Federally Licensed Firearms Dealer
As alleged in the operative second amended complaint, on
August 8, 2019 Regina entered into a firearm transfer agreement
with a federally licensed firearms dealer for the sale of a William
Moore & Co. double barrel antique shotgun. Regina, a California
resident, purchased the firearm in another state; and the firearm
was shipped to a federally licensed firearms dealer in California
to initiate Regina’s background check as a precondition to
3
transferring the firearm.
On August 14, 2019 the the Department advised Regina in
writing his background check had identified “state and/or federal
records matching your identifying information” that “if confirmed
would prohibit the purchase.” The Department told Regina that,
if the Department was unable to make an eligibility
determination within the statutory 30-day time period, “the
dealer will be notified and may deliver the firearm(s) to you at
his/her discretion.” Although the letter did not identify the
potentially disqualifying information, according to Regina’s
pleading the FBI reported Regina’s 1967 arrest for burglary,
which would have made him ineligible to purchase the firearm
only if it had resulted in a felony conviction.

3
Federal law prohibits federally licensed firearms dealers
from selling a firearm to a person who is not a resident of the
state where the dealer is located. (18 U.S.C § 922(a)(3), (b)(3).)

4
 On August 31, 2019, in response to Regina’s request, the
Department advised Regina in writing his fingerprints did not
identify any criminal history record maintained by its Bureau of
Criminal Information and Analysis. However, the Department
continued, “[T]his response does not constitute a complete
firearms eligibility clearance.”
On September 5, 2019, in response to the Department’s
request for information, the Los Angeles County Superior Court
provided the Department with court records that Regina alleged
disclosed the charge had been “reduced to a misdemeanor
pursuant to section 17” and dismissed. According to Regina,
these court records confirmed he was not prohibited under state
or federal law from obtaining a firearm.
Despite having the court records in its possession, the
Department sent the dealer a letter on September 8, 2019
pursuant to section 28220, subdivision (f)(4), stating 30 days had
elapsed and it had been unable to determine Regina’s eligibility
to own or possess firearms. Accordingly, “in compliance with
Penal Code section 28220, subdivision (f)(4), you may release the
firearm to the purchaser/transferee at your discretion.” The
dealer, however, refused to complete the sale, telling Regina it
did not want to take the risk of transferring the weapon to him.
On December 10, 2020 Regina made a second attempt to
purchase the firearm. According to Regina, “[e]ven though [the
Department] had in its possession clear evidence that Plaintiff
was qualified to obtain a firearm, it issued ‘undetermined
eligibility’ letters on December 12, 2020 and after and so
prevented Plaintiff from obtaining a firearm.” The dealer
ultimately sold the firearm to someone else.

5
 In April 2021 at Regina’s request the Department issued a
4
letter to Regina pursuant to section 30105 declaring him eligible
to possess and purchase firearms and ammunition.
2. Regina’s Lawsuit
Regina filed this lawsuit in March 2021. In his operative
second amended complaint Regina asserted a cause of action for
violation of his civil rights (42 U.S.C. § 1983), alleging Penal Code
section 28220, subdivision (f)(4), was unconstitutional on its face
because advising a firearms dealer the government has been
unable to verify eligibility has a pronounced chilling effect on an
individual’s Second Amendment rights. He also alleged the
statute was unconstitutional as applied because it delegated to
the dealer the right to prohibit him from purchasing a gun even
though he was not ineligible, particularly when the Department
knew at the time he was not disqualified from obtaining a
firearm. Regina also sought a judicial declaration section 28220,
subdivision (f)(4), violated the Second Amendment on its face and
5
as applied and was preempted by the Brady Act.

4
Section 30105 permits an individual for a fee to directly
request the Department perform a firearms eligibility check “for
that individual.”
5
In addition to these two causes of action, Regina’s second
amended complaint asserted a third cause of action for injunctive
relief and a fourth for attorney fees under title 42 United States
Code section 1988(b). Regina does not dispute these purported
causes of action are remedies for his civil rights cause of action,
not separate legal claims.

6
 3. The State’s Demurrer and the Trial Court’s Ruling
The State (including the current and former Attorneys
General) demurred, arguing Regina’s pleading failed to state
facts sufficient to constitute a cause of action. The State argued
section 28220, subdivision (f)(4), did not violate the Second
Amendment on its face or as applied to Regina because the
statute did not prohibit him from obtaining the firearm. To the
contrary, it expressly authorized the dealer to complete the sale.
The State also argued the statute was not in conflict with, and
6
thus not preempted by, federal law.
The trial court agreed with the State that section 28220,
subdivision (f)(4), did not implicate Second Amendment rights
and sustained the demurrer to the second amended complaint
without leave to amend. The court entered judgment on
September 30, 2021. Regina filed a timely notice of appeal.

6
Together with its demurrer, the State requested the trial
court take judicial notice of the records from the Los Angeles
County Superior Court relating to Regina’s conviction in 1968 for
receipt of stolen property. Those records, which it attached to its
request, included an information filed in 1967 charging Regina
with grand theft and receipt of stolen property; a 1968 minute
order stating Regina had been found guilty of receipt of stolen
property and sentenced to probation; and an October 1969 order
reducing Regina’s conviction to a misdemeanor pursuant to
section 17 and dismissing the case. In footnote 4 of its brief in
support of its demurrer, the State cited these records to support
its assertion it had complied with section 28220,
subdivision (f)(4), because nothing in the court record
conclusively established the final disposition of Regina’s 1967
arrest for burglary.

7
 DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the trial
court’s ruling on a demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. (Mathews v. Becerra (2019)
8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017)
4 Cal.5th 145, 162.) We assume the truth of the properly pleaded
factual allegations, facts that reasonably can be inferred from
those expressly pleaded and matters of which judicial notice has
been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20;
accord, Centinela Freeman Emergency Medical Associates v.
Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010;
Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
We affirm the judgment if it is correct on any ground stated
in the demurrer, regardless of the trial court’s stated reasons
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967;
Las Lomas Land Co., LLC v. City of Los Angeles (2009)
177 Cal.App.4th 837, 848), but liberally construe the pleading
with a view to substantial justice between the parties. (Code Civ.
Proc., § 452; Ivanoff v. Bank of America, N.A. (2017)
9 Cal.App.5th 719, 726; see Schifando v. City of Los Angeles,
supra, 31 Cal.4th at p. 1081.)
“‘Where the complaint is defective, “[i]n the furtherance of
justice great liberality should be exercised in permitting a
plaintiff to amend his [or her] complaint.”’” (Aubry v. Tri-City
Hospital Dist., supra, 2 Cal.4th at p. 970.) A plaintiff may
demonstrate for the first time to the reviewing court how a
complaint can be amended to cure the defect. (Code Civ. Proc.,

8
§ 472c, subd. (a) [“[w]hen any court makes an order sustaining a
demurrer without leave to amend the question as to whether or
not such court abused its discretion in making such an order is
open on appeal even though no request to amend such pleading
was made”]; see Sierra Palms Homeowners Assn. v. Metro Gold
Line Foothill Extension Construction Authority (2018)
19 Cal.App.5th 1127, 1132 [plaintiff may carry burden of proving
an amendment would cure a legal defect for the first time on
appeal].) “[L]eave to amend should not be granted where . . .
amendment would be futile.” (Vaillette v. Fireman’s Fund Ins.
Co. (1993) 18 Cal.App.4th 680, 685; see generally Ivanoff v. Bank
of America, supra, 9 Cal.App.5th at p. 726.)
2. Section 28220
Section 28220 specifies the procedures for the background
checks required before the Department authorizes a licensed
firearms dealer to sell or transfer a firearm to a prospective
purchaser. When the dealer submits firearm purchaser
information, the Department must examine its records, those
from the State Department of State Hospitals and the National
Instant Criminal Background Check System (NICS), to
determine if the purchaser is prohibited by state or federal law
from possessing, receiving, owning or purchasing a firearm.
(§ 28220, subds. (a)(1), (b).) If the initial check reveals the
purchaser is ineligible, the Department must immediately notify
the firearms dealer and law enforcement that the transaction is
denied. (§ 28220, subd. (c); Cal. Code Regs, tit. 11, § 4230,
subd. (b).) If the transaction is approved, the dealer may deliver

9
the firearm following a 10-day waiting period. (Cal. Code Regs.,
7
tit. 11, § 4230, subd. (a).)
When the background check reveals the purchaser has
been “arrested for, or charged with, a crime that would make the
purchaser, if convicted, a person who is prohibited by state or
federal law from possessing, receiving, owning, or purchasing a
firearm, and the department is unable to ascertain whether the
purchaser was convicted of that offense,” the Department must
immediately notify the dealer to delay the transfer of the firearm.
(§ 28220, subd. (f)(1)(A)(ii).) The Department is also to notify the
prospective purchaser and permit the individual to identify any
inaccuracies on an approved Department form. (§ 28220,
subd. (f)(1)(B)(2).) If within 30 days of the dealer’s original
submission of the purchaser information the Department
determines that the “final disposition” of the arrest or criminal
charge does not disqualify the individual from owning,
purchasing or possessing a firearm, it “shall immediately notify
the dealer of that fact, and the dealer may then immediately
transfer the firearm to the purchaser . . . .” (§ 28220,
subd. (f)(3)(A); see Cal. Code Regs., tit. 11, § 4230, subd. (b)(1)(B)
[“‘[a]pproval after Delay’ status shall be designated when the
Department approves an application to purchase a firearm after
identifying a ‘Delayed’ status”].)
If the Department “is unable to ascertain the final
disposition of the arrest or criminal charge . . . within 30 days of
the dealer’s original submission of purchaser information to the

7
The 10-day waiting period allows a purchaser to reconsider
an impulsive act of violence or self-harm that may be motivating
the purchase. (Silvester v. Harris (9th Cir. 2016) 843 F.3d 816,
823.)

10
department pursuant to this section, the department shall
immediately notify the dealer and the dealer may then
immediately transfer the firearm to the purchaser . . . .”
(§ 28220, subd. (f)(4); see Cal. Code Regs., tit. 11, § 4230,
subd. (b)(1)(C) [“an ‘[u]ndetermined’ status shall be designated
when 30 days have passed since the original transaction date and
the Department is unable to determine a purchaser’s eligibility”;
delivery of firearm in those circumstances shall be made “at the
8
discretion of the Dealer”].)
3. The Court Properly Sustained the State’s Demurrer to
the Second Amended Complaint
a. Governing law
To state a claim under title 42 United States Code
9
section 1983 a plaintiff must allege the violation of a right
secured by the United States Constitution or laws of the United

8
Other parts of section 28220 require the same procedures
when an initial background check reveals a person has been
hospitalized for mental health treatment or evaluation (§ 28220,
subd. (f)(1)(A)(i)) or the person is an individual described in
subdivision (a) of section 27535 (purchasing more than
one handgun or rifle within a 30-day period) (§ 28220,
subd. (f)(1)(A)(iii)).
9
Title 42 United States Code section 1983 provides, “Every
person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proceeding for
redress.”

11
States by a person acting under color of state law. (West v. Atkins
(1988) 487 U.S. 42, 48; Julian v. Mission Community Hospital
(2017) 11 Cal.App.5th 360, 384.) Both Regina’s section 1983
claim and his cause of action for declaratory relief are premised
on the allegation that section 28220, subdivision (f)(4), violates
10
the Second Amendment on its face and as applied to him.
The Second Amendment provides, “A well regulated
Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.” As
applied to the states through the Fourteenth Amendment, the
Second Amendment, at minimum, protects the right of ordinary,
law-abiding citizens to possess a handgun in the home for self-
defense. (See McDonald v. City of Chicago, Ill. (2010) 561 U.S.
742, 778; District of Columbia v. Heller (2008) 554 U.S. 570
(Heller).)

10
Although his prayer for relief requested an award of
damages, Regina now concedes he has no right to damages in an
action against the State or its Attorneys General in their official
capacities under title 42 United States Code section 1983
(see Howlett v. Rose (1990) 496 U.S. 356, 366 [states and state
officers sued in their official capacities are not considered persons
under section 1983 and are immune from liability under the
statute by virtue of the Eleventh Amendment and the doctrine of
sovereign immunity]). However, Regina is entitled to seek
injunctive relief against state officers acting in their official
capacities. (See Will v. Michigan Department of State Police
(1989) 491 U.S. 58, 71, fn. 10 [“a state official in his or her official
capacity, when sued for injunctive relief, would be a person under
[section] 1983 because ‘official-capacity actions for prospective
relief are not treated as actions against the State’”]; accord,
California DUI Lawyers Assn. v. Department of Motor Vehicles
(2022) 77 Cal.App.5th 517, 534.)

12
 In Bruen, supra, 142 S.Ct. 2111, decided while Regina’s
appeal was pending, the United States Supreme Court held the
Second Amendment’s guarantee is considerably broader,
extending to law-abiding citizens seeking to carry a gun outside
the home for purposes of self-defense. The Bruen Court then
found a New York law requiring a citizen show “proper cause” or
a “special need” for protection to obtain a public-carry permit
infringed that Second Amendment right. (Bruen, at pp. 2122,
11
2156.)
The Bruen Court began its analysis by describing the two-
step framework that lower appellate courts since Heller, supra,
554 U.S. 570 had employed to determine whether a law or
regulation infringed the Second Amendment: First, the court
considered whether the regulated conduct fell beyond the text of
the Second Amendment as informed by history and tradition. If
so, the regulated activity was categorically unprotected. “But, if
the historical evidence at this step is ‘inconclusive or suggests
that the regulated activity is not categorically unprotected,’” the
appellate courts moved to a second step: a means-end scrutiny.
(Bruen, supra, 142 S.Ct. at p. 2126.) A significant burden on the
core Second Amendment right required a very strong public-
interest justification and a close means-end fit. (Ibid.)
Writing for the Bruen majority, Justice Thomas
characterized the lower appellate courts’ “two-step approach” as
“one step too many.” (Bruen, supra, 142 S.Ct. at p. 2127.) “Heller
and McDonald do not support applying means-end scrutiny in the

11
New York’s Sullivan Law permitted public carry only if an
applicant could prove “good moral character” and “proper cause.”
(Bruen, supra, 142 S.Ct. at p. 2122.)

13
Second Amendment context.” (Ibid.) “When the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’” (Id. at pp. 2129-2130.)
Turning to the New York permit law requiring citizens to
prove a special need for self-defense to obtain a public carry
12
permit, the Bruen Court observed, and the parties did not
dispute, the law plainly fell within the original scope of the
Second Amendment right to bear arms. (Bruen, supra, 142 S.Ct.
at p. 2135.) The question before the Court was whether the State
could demonstrate its law restricting that right was “part of the
historical tradition that delimits the outer bounds of the right to
keep and bear arms.” (Id. at p. 2127.) Finding the State of New
York’s assertion its regulation was rooted in history and tradition
at the time the Second Amendment and Fourteenth
13
Amendment were adopted unsupported by the historical record,

12
The Bruen plaintiffs were denied public carry licenses. As
in the case at bar, the Bruen plaintiffs asserted a cause of action
under title 42 United States Code section 1983 and claims for
declaratory relief, arguing the New York statute was
unconstitutional on its face and as applied.
13
The Bruen Court described “an ongoing scholarly debate on
whether courts should primarily rely on the prevailing
understanding of an individual right when the Fourteenth
Amendment was ratified in 1868 when defining its scope” and

14
the Bruen Court found the State did not carry its burden and
held New York’s public-carry restriction unconstitutional on its
face. (Id. at p. 2152.)
b. Regina’s facial constitutional challenge fails as a
matter of law
To prevail on a claim a statute is unconstitutional on its
face, the petitioner must demonstrate that “‘no set of
circumstances exists under which the Act would be valid,’ i.e.,
that the law is unconstitutional in all its applications.”
(Washington State Grange v. Washington State Republican Party
(2008) 552 U.S. 442, 449; see also Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1084 [facial challenge to the constitutional
validity of a statute or ordinance considers only the text of the
measure itself, not its application to the particular circumstances
of an individual].)
In addressing the parties’ arguments, we emphasize the
limited nature of Regina’s constitutional challenge: Regina does
not contest the constitutionality of the statutory scheme’s
background-check requirements, the 10-day waiting period or the
30-day limit on the time the government can investigate a final
disposition after an initial background check reveals a criminal
arrest, charge or other potentially disqualifying event; nor does
he argue a finding of disqualification under section 28220,
subdivision (f)(3)(B), for a disqualifying conviction or mental

stated it need not resolve the question, explaining “the public
understanding of the right to keep and bear arms in both 1791
and 1868 was, for all relevant purposes, the same with respect to
public carry.” (Bruen, supra, 142 S.Ct. at p. 2138.)

15
 14
health evaluation would violate the Second Amendment. He
also acknowledges that section 28220, subdivision (f)(4), like
section 28220, subdivision (f)(3)(A), which he claims the
Department should have utilized, vests the dealer with discretion
to immediately release the firearm to the purchaser.
Regina’s Second Amendment challenge is restricted to the
provision in section 28220, subdivision (f)(4), that directs the
Department to advise the dealer when it has been unable to
ascertain within the statutory period whether the purchaser is
ineligible to possess a firearm. While acknowledging the
authorization to the dealer to release the firearm only in its
discretion is nearly identical in both subdivision (f)(3)(A), which
he concedes is constitutional, and (f)(4), which he argues is not,
Regina contends the difference between those two subdivisions is
manifest: According to Regina, the firearms dealer is far more
likely to exercise its discretion in favor of completing the sale
when notified by the Department a person has not been found to
be legally prohibited from obtaining a firearm than when
informed the Department has been unable to verify whether or
not a purchaser is eligible to possess a firearm. Thus, Regina

14
Regina’s tacit acceptance of those aspects of the statutory
scheme is understandable. Both Bruen and Heller emphasized
the Second Amendment right to bear arms belongs to “‘law-
abiding, responsible citizens.’” (Bruen, supra, 142 S.Ct. at
p. 2131 [“[t]he Second Amendment ‘is the very product of an
interest balancing by the people’ and it ‘surely elevates above all
other interests the right of law-abiding, responsible citizens to
use arms’ for self-defense”]; Heller, supra, 554 U.S at p. 626
[“nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill”].)

16
argues, while section 28220, subdivision (f)(4), does not prohibit
the transfer of the firearm to the purchaser, the disclosure to the
dealer that the Department has not been able to ascertain the
purchaser’s eligibility has an undeniable, if indirect, “chilling
effect” on a purchaser’s ability to exercise his or her Second
Amendment rights.
We have serious doubt whether the “chilling effect”
doctrine, a central tenet of First Amendment jurisprudence (see,
e.g., Americans for Prosperity Foundation v. Bonta (2021) __ U.S.
___, ___ [141 S.Ct. 2373, 2389] [“When it comes to the freedom of
association, the protections of the First Amendment are triggered
not only by actual restrictions on an individual’s ability to join
with others to further shared goals. The risk of a chilling effect
on association is enough, ‘[b]ecause First Amendment freedoms
need breathing space to survive’”]; Reno v. American Civil
Liberties Union (1997) 521 U.S. 844, 871-872 [a vague statute
chills rights protected by the First Amendment by creating
potential for self-censorship]), applies in the Second Amendment
context. (See United States v. Chester (4th Cir. 2010) 628 F.3d
673, 688 [importing this “‘extraordinary’ exception . . . into the
Second Amendment context would be inappropriate” because the
overbreadth, or “chilling effect,” doctrine “is the Court’s solution
to [a] speech-specific problem”]; Grendell v. Ohio Supreme Court
(6th Cir. 2001) 252 F.3d 828, 834 [“[i]t is well-settled that facial
constitutional challenges relying on the overbreadth doctrine,
and the resultant chilling effect such overbreadth has on speech,
are limited to the First Amendment sphere”]; see also Ollie v.
University of Connecticut (D.Conn. 2019) 364 F.Supp.3d 143 151
[“courts have repeatedly declined to apply the chilling doctrine
outside of the limited context of free speech and free expression

17
claims under the First Amendment”].) Nevertheless, we need not
resolve that question because, even if the doctrine applied, the
statute generates no chill on the exercise of a prospective
purchaser’s rights. The dealer remains free after receiving the
subdivision (f)(4) notice to sell or not sell the firearm to the
individual in the same manner as if the Department had
determined the individual was not disqualified, no more and no
less. The Second Amendment does not guarantee that a firearms
dealer vested with discretion to sell its products will elect to
exercise that discretion in only one way.
Notwithstanding the express statutory language, Regina
contends section 28220, subdivision (f)(4)’s authorization to
complete the sale is illusory because, as this case illustrated, few
dealers will want to assume the “risk of unknowable potential
civil and criminal liability” by transferring the firearm to a
person whose eligibility (or ineligibility) cannot be determined.
According to Regina, when the final disposition of a potentially
disqualifying charge or arrest or mental health evaluation cannot
be ascertained, the government must simply notify the dealer
that it has not found the person ineligible, in accordance with
section 28220, subdivision (f)(3)(A). By informing the dealer that
eligibility could not be determined within the statutory period, he
insists, the Department has effected a “prior restraint,” all but
ensuring the dealer will not complete the transaction.
Regina’s prior restraint analysis is deeply flawed. In
contrast to statutory provisions that prohibit a dealer from
transferring a firearm to an individual barred from owing or
possessing a firearm (e.g., § 28220, subd. (f)(3)(B)), the dealer’s
discretion under section 28220, subdivision (f)(4), to sell or
transfer the firearm is real and complete. No potential liability is

18
created, or penalty imposed by the State, if a firearms dealer
transfers a gun pursuant to subdivision (f)(4), rather than under
subdivision (f)(3)(A). A dealer in both circumstances is subject to
the same risks as any other seller of a potentially dangerous
product.
Although Bruen, supra, 142 S.Ct. 2111 marks a significant
change in Second Amendment jurisprudence, Regina’s insistence
a remand is necessary for the parties to brief, and the trial court
to consider in the first instance, the State’s demurrer in light of
that decision, is misplaced. Under Bruen it would be the State’s
burden to justify section 28220, subdivision (f)(4), as a regulation
of gun ownership deeply rooted in history and tradition at the
time the Second Amendment was adopted only if the conduct
regulated by that provision fell within the original scope of the
Second Amendment—“‘the individual right [of law-abiding
citizens] to possess and carry weapons in case of confrontation’
that does not depend on service in the militia.” (Bruen, at
p. 2127.) For the reasons discussed, a letter authorizing the sale
of a firearm using the language of section 28220,
subdivision (f)(4), does not implicate the right to bear arms and
does not fall within the original scope of the Second Amendment
15
right as interpreted in Bruen. A remand is neither necessary
nor appropriate.

15
In sustaining the State’s demurrer the trial court ruled
section 28220, subdivision (f)(4), did not restrict any rights within
the original scope of the Second Amendment. It did not reach
(nor did it need to) the second step of the two-step means-end
scrutiny the Bruen Court rejected.

19
 c. Regina’s as-applied challenge also fails
Regina’s as-applied challenge fails for a similar reason. He
argues, as a result of the Department’s subdivision (f)(4) letter
informing the dealer it was unable to determine whether Regina
was ineligible to purchase the firearm, the dealer refused to
complete the sale. However, as discussed, there was no state
interference with his Second Amendment rights, even accepting
on demurrer the truth of Regina’s allegations. Far from
constituting an unconstitutional delegation to the dealer of the
decision whether to transfer the firearm, as Regina contends, the
notice under section 28220, subdivision (f)(4), authorized the
dealer to release the firearm even though a background check
revealed a potentially disqualifying event and the Department
was unable to confirm Regina’s eligibility within the 30-day
statutory period. Authorizing a transfer under these
circumstances, rather than prohibiting it or imposing a further
delay while the investigation proceeded, recognized and enforced
Regina’s Second Amendment rights; it did not restrict any of
those rights as interpreted in Bruen and Heller.
Regina argues in the alternative the Department violated
his Second Amendment rights when it told the dealer it could not
ascertain his eligibility to own a firearm even though it had
information conclusively establishing he was not ineligible. He
argues that misapplication of section 28220, subdivision (f)(4),
implicates the Second Amendment because the statute contains
no mechanism for him to challenge the Department’s statement
his eligibility could not be determined. Whatever the
Department’s error, if any, it is not of constitutional dimension.

20
And the issue of Regina’s remedy for a statutory violation is not
16
before us in this appeal.
4. The Trial Court Properly Ruled as a Matter of Law
Section 28220, Subdivision (f)(4), Was Not Preempted by
the Brady Act
a. Preemption principles
“‘The Supremacy Clause provides that “the Laws of the
United States” (as well as treaties and the Constitution itself)
“shall be the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any state to the Contrary
notwithstanding.” [U.S. Const.] Art. VI, cl. 2. Congress may
consequently pre-empt, i.e., invalidate, a state law through
federal legislation. It may do so through express language in a

16
The State explains, when inaccurate information is used in
connection with a background check, an individual may petition
the Department to correct or consider additional records (Pen.
Code, § 11126), obtain a personal firearms eligibility check under
Penal Code section 30105 (which Regina has since done), or
petition for a writ of mandate under Government Code section
1085. In addition, the Brady Act expressly authorizes any one
unlawfully denied a firearm under its provisions to “bring an
action against the State or political subdivision” responsible for
providing erroneous information or denying the transfer.
(18 U.S.C. § 925a.)
Regina, however, alleged the Department intentionally or
negligently disregarded accurate information in its possession,
not that it based its decision on inaccurate information. Whether
Government Code section 1085 or any other procedural vehicle
was available to challenge the statutory violation Regina alleged
is immaterial to the constitutional challenge underlying his
title 42 United States Code section 1983 cause of action and
request for declaratory relief.

21
statute. But even where . . . a statute does not refer expressly to
pre-emption, Congress may implicitly pre-empt a state law, rule,
or other state action.’” (County of Butte v. Department of Water
Resources (2022) 13 Cal.5th 612, 628 (County of Butte); accord,
Oneok, Inc. v. Learjet, Inc. (2015) 575 U.S. 373, 376-377.)
“There are ‘three different types of preemption—“conflict,”
“express,” and “field,” [citation]—but all of them work in the same
way: Congress enacts a law that imposes restrictions or confers
rights on private actors; a state law confers rights or imposes
restrictions that conflict with the federal law; and therefore the
federal law takes precedence and the state law is preempted.’”
(County of Butte, supra, 13 Cal.5th at p. 628.) Acknowledging
that Congress specifically declared in the Brady Act its intent not
17
to occupy the field and the absence of any express preemption of
section 28220, subdivision (f)(4), by the Brady Act, Regina focuses
on conflict preemption.
“Conflict preemption ‘exists where “compliance with both
state and federal law is impossible,” or where “the state law
‘stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.’”’ [Citation.] ‘[T]he
threshold for establishing’ such an obstacle ‘is demanding: “It
requires proof Congress had particular purposes and objectives in
mind[ and] a demonstration that leaving state law in place would

17
Congress declared, “No provision of this chapter shall be
construed as indicating an intent on the part of Congress to
occupy the field in which such provision operates to the exclusion
of the law of any State on the same subject matter, unless there
is a direct and positive conflict between such provision and the
law of the State so that the two cannot be reconciled or
consistently stand together.” (18 U.S.C. § 927.)

22
compromise those objectives . . . .”’ [Citations.] ‘“[P]reemption
analysis is not ‘[a] freewheeling judicial inquiry into whether a
state statute is in tension with federal objectives’”’ [citation] but a
focused inquiry into ‘whether there exists an irreconcilable
conflict between the federal and state regulatory schemes.’
[Citation.] ‘The existence of a hypothetical or potential conflict is
insufficient to warrant the pre-emption of the state statute.’”
(County of Butte, supra, 13 Cal.5th at pp. 628-629;
accord, Chamber of Commerce of the United States of America v.
Whiting (2011) 563 U.S. 582, 607 (plur. opn. of Roberts, C. J.)
[a “‘high threshold must be met if a state law is to be pre-empted
for conflicting with the purposes of a federal Act’”].)
b. The Brady Act
Congress enacted the Brady Act in 1993, as an amendment
to the Gun Control Act of 1968. (Pub.L. No. 103-159 (Nov. 30,
1993) 107 Stat. 1536.) The Brady Act, which established the
NICS, prohibits a federally licensed firearms dealer from
transferring a firearm to anyone not licensed under the
Brady Act unless the licensee contacts the NICS and the NICS
either provides the licensee with a unique identification number
for the purchase or the licensee has not been notified within three
business days of contacting NICS that the receipt of the firearm
by the prospective transferee would violate provisions of the
18
Brady Act or federal, state, local or tribal law. (18 U.S.C.
§ 922(t)(2)(A), (t)(2)(B)(i)-(ii).)

18
Title 18 United States Code section 922(g)(1) identifies a
variety of enumerated circumstances under which it is unlawful
to possess a firearm, including when a person has been convicted
of any felony.

23
 The Brady Act’s implementing regulations specify the
manner in which the FBI NICS Operations Center is to provide
the results of the background check to the federally authorized
firearms dealer: The Operations Center must issue a “‘Proceed’
response” when the NICS background check discovers no
disqualifying information. (28 C.F.R. § 25.6 (c)(1)(iv)(A).) It is to
issue a “‘Delayed’ response” if the background check “finds a
record that requires more research to determine whether the
prospective transferee is disqualified from possessing a firearm
by Federal or state law. A ‘Delayed’ response . . . indicates that
the firearm transfer should not proceed pending receipt of a
follow-up ‘Proceed’ response from the NICS or the expiration of
three business days (exclusive of the day on which the query is
made), whichever occurs first.” (28 C.F.R § 25.6 (c)(1)(iv)(B).)
Finally, a “‘Denied’ response” must issue if the background check
reveals that transfer of the firearm would violate the Brady Act
or state law. (28 C.F.R. § 25.6 (c)(1)(iv)(C).)
The implementing regulations define “Proceed” as a “NICS
response indicating that the information available to the system
at the time of the response did not demonstrate that transfer of
the firearm would violate federal or state law. A ‘Proceed’
response would not relieve [a federally licensed firearms dealer]
from compliance with other provisions of Federal or state law
that may be applicable to firearms transfers. For example, under
18 U.S.C. 922(d), [a federally licensed firearms dealer] may not
lawfully transfer a firearm if he or she knows or has reasonable
cause to believe that the prospective recipient is prohibited by
law from receiving or possessing a firearm.” (28 C.F.R. § 25.2.)

24
 c. No conflict preemption exists as a matter of law
Regina contends that section 28220, subdivision (f)(4), is
irreconcilable with, and thus preempted by, the Brady Act.
According to Regina, federal regulations require that a federally
licensed firearms dealer receive from the government after a
background check either a “proceed” response, thereby giving the
dealer some measure of comfort in completing the transaction, or
a “denied” response, removing the dealer’s discretion to complete
the transfer entirely. In this way, he submits, the Brady Act
closely resembles section 28220, subdivision (f)(3)(A), authorizing
release of the firearm, and subdivision (f)(3)(B), prohibiting it.
Section 28220, subdivision (f)(4), Regina argues, creates an
irreconcilable third option: an inconclusive “we-can’t-tell
response” that provides no measure of comfort to the dealer who
will, as Regina claims this case demonstrates, predictably decline
to complete the transfer. Accordingly, he argues, section 28220,
subdivision (f)(4), imposes on the dealer all the risk the Brady Act
was designed to remove.
Regina presents no authority for the assertion the purpose
of the Brady Act was to remove from licensed firearms dealers
any risk in transferring firearms as opposed to reducing gun
violence, as its full name—the Brady Handgun Violence
Prevention Act—denotes. Nor do the provisions of the Brady Act
or its implementing regulations contain any such suggestion. In
any event, Regina fundamentally mischaracterizes the Brady Act
and its governing regulations. Contrary to Regina’s contention,
the Brady Act does not require a licensed dealer to await an
explicit “proceed” response to complete the transfer. When a
dealer receives a “delayed” response after something is found
during a background check, the dealer must wait three business

25
days and then, if no further communication is forthcoming, it
may, if it wishes, complete the sale without receiving a proceed
response. (28 C.F.R § 25.6 (c)(1)(iv)(B).) While the Brady Act,
like California’s statutory scheme and implementing regulations,
prohibits the transfer when the person seeking the firearm is
disqualified from possessing a firearm, nothing in the Brady Act
mandates the dealer to complete a sale upon a proceed response
or after three days upon receiving a delayed response. Apart
from different time provisions (three business days from
completion of the NICS check under federal law and 30 days from
the initial submission of purchaser information under
section 28220, subdivision (f)(4)), which Regina does not
challenge, section 28220, subdivision (f)(4), effectively tells the
dealer the same thing as 28 Code of Federal Regulations
part 25.6(c)(1)(iv)(B) when an initial background check reveals
something that causes a delay and no explicit authorization to
proceed is forthcoming within the statutory time limit:
Potentially disqualifying information was discovered but could
not be verified or refuted within the statutory time limit;
accordingly, you may proceed with the transfer. There is no
irreconcilable conflict and no preemption.
5. Conclusion
Regina’s causes of action are premised on the contention
that section 28220, subdivision (f)(4), violates the Second
Amendment or is preempted by federal law. Both arguments are
wrong as a matter of law. Because Regina has not demonstrated
how his complaint could be amended to state viable claims, the

26
trial court did not err in sustaining the State’s demurrer to the
19
second amended complaint without leave to amend.
DISPOSITION
The judgment is affirmed. The State is to recover its costs
on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

19
“Strictly speaking, a general demurrer is not an
appropriate means of testing the merits of the controversy in a
declaratory relief action because plaintiff is entitled to a
declaration of his rights even if it be adverse. However, where
the issue is purely one of law, if the reviewing court agreed with
the trial court’s resolution of the issue it would be an idle act to
reverse the judgment of dismissal for a trial on the merits. In
such cases the merits of the legal controversy may be considered
on an appeal from a judgment of dismissal following an order
sustaining a demurrer without leave to amend and the opinion of
the reviewing court will constitute the declaration of the legal
rights and duties of the parties concerning the matter in
controversy.” (Levi v. O’Connell (2006) 144 Cal.App.4th 700, 706
[cleaned up]; accord, Nede Mgmt. Inc. v. Aspen American Ins. Co.
(2021) 68 Cal.App.5th 1121, 1131.)

27