Amendment

WASHINGTON  — The Supreme Court agreed Monday to decide if “habitual drug users” lose their gun rights under the 2nd Amendment.

The Trump administration is defending a federal gun control law dating to 1968 and challenging the rulings of two conservative appeals court that struck down the ban on gun possession by any “unlawful user” of illegal drugs, including marijuana.

Trump’s lawyers say this limit on gun rights comports with early American history when “common drunkards” were prohibited from having guns.

And they argue this “modest, modern” limit make sense because well-armed drug addicts “present unique dangers to society — especially because they pose a grave risk of armed, hostile encounters with police officers while impaired.”

The government says the ban applies only to addicts and “habitual users of illegal drugs,” not to all those who have used drugs on occasion or in the past.

Under this interpretation, the law “imposes a limited, inherently temporary restriction — one which the individual can remove at any time simply by ceasing his unlawful drug use,” the administration’s attorneys told the court.

The appeal noted that California and 31 other states have laws restricting gun possession by drug users and drug addicts, all of which could be nullified by a broad reading of the 2nd Amendment

The court said it will hear the case of a Texas man and a Pakistani native who came under investigation by the FBI for allegedly working with the Iranian Revolutionary Guard Corps, a designated foreign terrorist organization.

When agents with warrant searched the home of Ali Denali Hemani, they found a Glock pistol, 60 grams of marijuana, and 4.7 grams of cocaine. He told the agents he used marijuana about every other day.

He was charged with violating the federal gun control law, but the 5th Circuit Court in New Orleans ruled this ban on gun possession violates the 2nd Amendment unless the defendant was under the influence of drugs when he was arrested.

The 8th Circuit Court based in St. Louis adopted a similar view that gun ban for drug users is unconstitutional.

The Trump administration asked the justices to hear the case of U.S. vs. Hemani and to reverse the two lower courts. Arguments are likely to be heard in January.

Last year, the justices rejected a gun rights claim in another case from Texas and ruled that a man charged with domestic violence can lose his rights to have firearms.

Historically, people who “threaten physical harm to others” have lost their legal rights to guns, Chief Justice John G. Roberts said in an 8-1 decision.

Standing behind a lectern emblazoned with the words “Cutting Utility Bills,” Gov. Gavin Newsom signed into law last month a package of energy bills that he said “reduces the burden on ratepayers.”

Tucked into one of those bills: a paragraph that could allow Southern California Edison to shift billions of dollars of Eaton fire damage costs to its customers.

Among other things, the bill allows Edison to start charging customers for any Eaton fire costs exceeding the state’s $21-billion wildfire fund.

“I was shocked to see that,” said April Maurath Sommer, executive director of the Wild Tree Foundation, which tracks state government actions on utility-sparked fires. “It’s effectively a bailout.”

Other amendments in the 231-page bill known as SB 254 helped not just Edison, but all three of the state’s biggest for-profit utilities, further limiting the costs that they and their shareholders would face if the companies’ equipment ignited a catastrophic wildfire.

Previous legislation championed by Newsom, a 2019 bill known as AB 1054, already had sharply limited the utilities’ liabilities for wildfires they cause.

Staff in the governor’s office declined a request for an interview. In a statement, Daniel Villasenor, a spokesman for Newsom, called SB 254 “smart public policy, not a giveaway.”

Newsom’s staff noted that the state Public Utilities Commission would later review Eaton fire costs, determining if they were “just and reasonable.” If some costs billed to customers were rejected in that review, Edison shareholders would have to reimburse them for those amounts, the governor’s office said.

According to the legislation, that review of costs isn’t required until all Eaton claims are settled, leaving the possibility that customers would have to cover even costs found to be unreasonable for years.

“That will be expensive news to a lot of people,” said Michael Boccadoro, executive director of the Agricultural Energy Consumers Assn. “It is unfortunately what happens when major policies are done in the final hours of the Legislature with little transparency.”

Damages for the Eaton fire have been estimated to be as high as $45 billion — which could greatly exceed the $21-billion fund.

Homes in Altadena lay in ruins after the Eaton fire.

(Robert Gauthier / Los Angeles Times)

Sheri Scott, an actuary at Milliman, told state officials in July that insured losses alone range from $13.7 billion to $22.8 billion. That estimate doesn’t include payments to families who were uninsured or underinsured, or compensation for pain and suffering.

The bill allows Edison to issue bonds secured by new payments from its electric customers for Eaton fire costs that can’t be covered by the $21-billion fund.

Kathleen Dunleavy, an Edison spokeswoman, said the company supported the bill’s language because the bonds secured by customer payments provide a lower cost of borrowing than if the company used traditional financing. “Every dollar counts for our customers,” Dunleavy said.

“There are a lot of variables here,” Dunleavy added. “The investigation is ongoing and there is not an estimate of the total cost of the Eaton fire.”

Newsom’s office noted that under the amendments the utilities won’t get to earn a profit on $6 billion of wildfire prevention expenditures. Customers will still have to pay for the costs, but they won’t be charged extra for shareholders’ profit.

Since early this year, Edison, Pacific Gas & Electric and San Diego Gas & Electric had been lobbying Newsom and state legislative leaders, urging them to bolster the $21-billion fund because of concerns it could be exhausted by the Eaton fire’s extraordinary cost.

Videos captured the Jan. 7 inferno igniting under a century-old transmission line that Edison had not used for 50 years. The wildfire swept through Altadena, destroying 9,400 homes and other structures and killing at least 19 people.

Edison now faces hundreds of lawsuits filed by victims. The suits accuse Edison of negligence, claiming it failed to safely maintain its equipment and left in place the unused transmission line, which lawyers say Edison knew posed a fire risk.

“We’ll respond to the allegations in the litigation,” Dunleavy said, adding that the company inspects and maintains idle lines in the same way as its energized lines.

Even though the government’s investigation into the cause has not been released, Edison announced in July that it was starting a program to directly pay victims for damages.

The company has also begun settling with insurance companies that paid out claims for properties they insured in Altadena that were destroyed or damaged.

Limiting Edison’s liability for Eaton fire

The utility is expecting to be reimbursed for most or all of the settlements and the costs of the fire by the $21-billion wildfire fund that Newsom and lawmakers created through the 2019 legislation, according to a July update Edison gave to its investors.

The first $1 billion of damages is covered by an insurance policy paid by its customers.

After state officials warned that the Eaton fire could deplete the state fund, Newsom said in July he was working on a plan to create an additional fund of $18 billion.

Two days before the Legislature was scheduled to recess for the year, three lawmakers added complex language to SB 254 to create what Newsom called the new $18-billion wildfire “continuation account.” Before the bill was amended, consumer groups had been supporting it because it aimed to save electric customers money.

The late amendments required the Legislature to extend its session by a day to meet a state constitutional rule that says proposed legislation must be public for 72 hours before a final vote.

“It’s impossible to believe that legislators could have understood all of this in 72 hours,” Maurath Sommer said. She noted that Newsom’s 2019 law, AB 1054, was introduced and quickly passed in a similar manner. “And it is clear now how poorly that effort fared in achieving the claimed objective of protecting public safety.”

Boccadoro said he believed the amendments were added to a bill favored by consumer groups to give it “some political cover.”

Assemblymember Cottie Petrie-Norris (D-Irvine), one of bill’s authors, said she believed utilities needed protection from wildfire liabilities because of a legal doctrine in California known as inverse condemnation, which makes them responsible for damages even if they weren’t negligent in starting it.

“This is the best possible deal for ratepayers as we navigate the truly devastating impacts of the climate crisis,” Petrie-Norris said of the legislation. The other two authors — state Sens. Josh Becker (D-Menlo Park) and Aisha Wahab (D-Hayward) — did not respond to requests for interviews.

After the bill passed, both Edison and PG&E praised its provisions in presentations for investors.

Edison called the bill “a key action” that demonstrated lawmakers’ support of its “financial stability.”

The amendments added to the protections that utilities gained in 2019 through Newsom’s AB 1054. At that time, PG&E was in bankruptcy proceedings. It had filed for protection after its transmission line was found to have ignited the 2018 Camp fire, which killed 85 people and destroyed most of the town of Paradise.

PG&E explained in a September presentation that before Newsom and lawmakers changed the law in 2019, utilities that wanted to pass fire damage costs to customers “bore the burden of proving” that their conduct related to the blaze was reasonable and prudent.

Newsom’s 2019 law changed that standard, PG&E said, so that the utility’s conduct was automatically deemed reasonable if state regulators had granted the company what the law called a safety certificate.

Since 2019, the state has regularly issued the companies these certificates — even when regulators find maintenance and safety problems.

Edison received a safety certificate less than a month before the Eaton fire, even though it had thousands of open work orders, including some on the transmission lines in the canyon where the fire started.

To get a certificate, the utilities must submit a plan to state regulators for preventing their equipment from sparking fires. They also must tie executive pay to the company’s safety performance, with bonuses expected to take a hit when more fires are sparked or people are killed.

Even though Edison failed at key safety measures last year, The Times found that cash bonuses for four of its top five executives rose. The company said that was because of their performance on responsibilities beyond safety.

With a safety certificate in hand, Edison told investors in July that the maximum it would pay for the Eaton fire under the law’s limit was $3.9 billion, a fraction of the expected costs. The utility said the wildfire fund would reimburse it for all the costs, unless an outside party can raise “serious doubt” that it had not acted reasonably before the fire.

The SB 254 amendments also clarified key language in the 2019 law — clarifications that Edison told investors in September were “constructive for potential Eaton fire losses.”

That language allows utilities that cause repeated major wildfires within a period of three years to reduce what they must pay back to the fund for a second fire if they are found to have acted imprudently.

“This certainly does not seem to encourage utilities to stop causing fires,” Maurath Sommer said of the provision.

Edison’s Dunleavy dismissed concern about the provision. “Safety remains our top priority,” she said.

Campaign contributions to Newsom

The three utilities have long been generous political donors to both Democrats and Republicans in California, including to Newsom and current legislative leaders in Sacramento.

Edison, for example, gave $100,000 to Newsom’s campaign last year to pass the mental health initiative known as Proposition 1.

This summer Edison gave $190,000 to the state Democratic Party, which is helping Newsom campaign for Proposition 50, which would redraw congressional districts.

Newsom’s staff didn’t respond to questions about the contributions.

Dunleavy said that the company’s political donations are not charged to customers. She said Edison gives contributions to politicians who share its commitment to “safely serve our customers.”

Newsom said in 2019 that the bill capping utilities’ fire liabilities would “move our state toward a safer, affordable and reliable energy future.”

He and lawmakers said the law would make the public safer by requiring the utilities to do more to prevent fires, including aggressive tree trimming and the installation of more insulated wires.

Even though the utilities have raised electric rates to charge customers for billions of dollars of fire prevention work, their electrical equipment continues to spark blazes.

According to Cal Fire statistics, if the Eaton fire is confirmed to have been ignited by Edison’s transmission line, at least seven of the state’s 20 most destructive wildfires would have been caused by the three utilities’ power lines. Two of those utility-sparked fires happened after the 2019 law passed.

Edison’s lines ignited 178 fires last year — 45% more compared with 2019. The company attributed last year’s increase to weather conditions that created more dry vegetation.

The governor’s staff said they disagreed with claims that the legislation reduced utilities’ accountability. They pointed to a measure in the 2019 law that requires a utility to reimburse the wildfire fund for all damages from a fire if its actions are found to constitute “conscious or willful disregard of the rights and safety of others.”

Advocates for utility customers have repeatedly said they believe that standard is too high to keep California utilities from causing more fires.

“Instances of utility mismanagement could easily fall short of the ‘conscious or willful disregard’ standard yet nonetheless cause a series of catastrophic wildfire events,” wrote the commission’s Public Advocates Office in a filing soon after the 2019 law passed.

Earlier this month, the Supreme Court rendered obsolete the 4th Amendment’s prohibition on suspicionless seizures by the police. When the court stayed the district court’s decision in Noem vs. Vasquez Perdomo, it green-lighted an era of policing in which people can be stopped and seized for little more than how they look, the job they work or the language they speak.

Because the decision was issued on the Supreme Court’s “shadow docket,” the justices’ reasoning is unknown. All we have is Justice Brett M. Kavanaugh’s solo concurrence defending law enforcement’s use of race and ethnicity as a factor in deciding whom to police, while at the same time playing down the risk that comes with every stop — prolonged detention, wanton violence, wrongful deportation and sometimes even death. As Justice Sonia Sotomayor said in her impassioned dissent (joined by Justices Elena Kagan and Ketanji Brown Jackson): “We should not live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job.” But now, we do.

The practical effect of this decision is enormous. It strips away what little remained of the guardrails that prevented police (including agents of Immigration and Customs Enforcement) from indiscriminately seizing anyone with only a flimsy pretext.

Now there is no real limit on police seizures. History teaches us that people of color will bear the brunt of this policing regime, including the millions of immigrants who are already subject to police roundups, sweeps and raids.

This decision is no surprise for those of us who study the 4th Amendment. The police have long needed very little to justify a stop, and racial profiling is not new. Yet prior to the Vasquez Perdomo order in most instances, police had to at least articulate a non-race-based reason to stop someone — even if as minor as driving with a broken taillight, not stopping at a stop sign long enough, or walking away from the police too quickly.

Now, police no longer need race-neutral person-specific suspicion (pretextual or real) to seize someone. Appearing “Latino” — itself an indeterminate descriptor because it is an ethnicity, not defined by shared physical traits — along with speaking Spanish and appearing to work a low-wage job is enough, even if you have done nothing to raise suspicion.

Some might believe that if you have nothing to hide there is no reason to fear a police stop — that if you just show police your papers or offer an explanation you can go on your way. Even if that were the case, this sort of oppressive militarized police state — where anyone can be stopped for any reason — is exactly what the 4th Amendment rejected and was meant to prevent.

Moreover, ICE agents and police are not in the business of carefully examining documents (assuming people have the right ones on them) or listening to explanations. They stop, seize and detain — citizens and noncitizens alike. If lucky, some people are released, but many are not — including citizens suspected of being in the country illegally, or individuals whose only alleged crimes are often minor (and the product of poverty) or living peacefully (often for years) in the United States without legal status. And as evidenced by plaintiffs in this case, even if eventually released, a single stop can mean harassment, violence, detention or a life permanently upended.

Even if the 4th Amendment doesn’t prevent them, can’t race-based discrimination and police violence often be addressed through civil rights lawsuits? U.S. Code Section 1983 allows individuals to sue officials who violate their rights. But the reality plays out differently. In a recent decision, this Supreme Court dramatically limited class-action lawsuits, the primary vehicle that would allow widespread relief. The court has created a world in which law enforcement can largely act with impunity under the doctrine of qualified immunity. And there is likely no recourse if a federal official such as an ICE agent violates one’s constitutional rights, as the Supreme Court has sharply limited the ability to sue federal officials for money damages even if they commit a clear constitutional wrong.

The recent decision virtually declaring that the 4th Amendment allows police to engage in express racial profiling may not be the final word on the matter. We hope it isn’t. But longstanding court doctrine had already allowed racial profiling to flourish under the guise of seemingly neutral language of “reasonable suspicion” and “consent.” By allowing a further erosion of the limits on seizures, the Court entrenches a system in which the scope of one’s constitutional rights depends upon the color of one’s skin. If the 4th Amendment is to retain meaning, it must be interpreted to constrain — not enable — the racialized policing practices that have become routine in America.

Daniel Harawa and Kate Weisburd are law professors at NYU Law School and UC Law San Francisco, respectively.