The San Diego judge trying to upend California gun laws

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The San Diego judge trying to upend California gun laws - Los Angeles
Times
Laura J. Nelson, Kristina Davis

For nearly two decades, U.S. District Judge Roger T. Benitez was a
low-profile jurist handling routine immigration and drug cases in San
Diego federal court.

Then, in three consecutive years, the 70-year-old judge made a trio of
rulings that have upended California's gun laws and launched him into
the intensifying national debate over guns.

In 2019, he blocked a ban on magazines that hold more than 10 bullets.
The next year, he knocked down a voter-approved law that required
background checks for ammunition purchases. And this summer, he
overturned California's long-standing ban on assault weapons.

To many gun control advocates and victims of gun violence, the last
decision in particular provoked anger and incredulity. Benitez
compared the AR-15 rifle to a Swiss Army knife, describing it as "a
perfect combination of home defense weapon and homeland defense
equipment." He released the decision on Gun Violence Awareness Day.

A bespectacled man who fled Cuba as a child, Benitez serves on the
board of a local law school, holds a prestigious position on the
national Judicial Panel on Multidistrict Litigation and is
well-respected in some corners of the San Diego legal community.
Fellow judges say he has been an ethical, conscientious worker and a
team player.

But Benitez, who once called himself "tough all the time," stands
apart from most other judges in the Southern District of California
for doling out the toughest sentences, according to a review of his
court record.

Some attorneys say he is a prickly jurist, especially toward defense
attorneys who've overturned his rulings on appeal. The Los Angeles
Times and San Diego Union-Tribune interviewed 30 attorneys and judges
and reviewed court transcripts, appellate records, congressional
testimony and published interviews. Benitez declined to be
interviewed.

In 2003, the American Bar Assn. gave Benitez a rare "not qualified"
rating when President George W. Bush nominated him for the lifetime
district court position.

In an era of fierce polarization, Benitez seems a perfect fit, an
object of rage and adoration. His likeness as "St. Benitez" -- with
robes and a halo, sometimes holding an AR-15 or a box of bullets -- is
plastered on T-shirts, prayer candles and even gun magazines for sale
online. One meme reads, "Blessed are thee among jurists and blessed
the fruit of your gavel."
A sticker of a man labeled "Saint Benitez"

A sticker depicting U.S. District Judge Roger Benitez as a saint is
sold at Hiram's Guns/Firearms Unknown in El Cajon.

(Kristian Carreon / For the San Diego Union-Tribune)

His rhetorical flourishes, dramatic anecdotes and a tendency toward
gun-related puns seem at times designed to troll gun-safety advocates,
who view his rulings and his expansive view of the 2nd Amendment with
a mixture of outrage and alarm.

"His opinions suggest a very inflated view of the right to guns and a
very deflated view of the right of Americans to live," said Jonathan
Lowy, the chief counsel of Brady, the nonprofit against gun violence.
"His decisions are simply wrong -- and in some cases, read like they
were written for Fox News, rather than for a judicial opinion."

But U.S. District Court Chief Judge Dana Sabraw described his
colleague as "a man of unquestioned integrity."

"We may not agree on rulings, whatever the case is, but they're not
based on a political agenda or ideology. He's really faithful with his
obligation to follow the law wherever it leads."

::

After his family fled Cuba, Benitez spent his teen years in El Centro
in California's Imperial Valley. He went to night school at San Diego
State University while driving a tractor at his father-in-law's farm.
After law school, he set up shop as a lawyer while raising two kids
with his wife, Kitty. He was appointed to the Imperial County Superior
Court in 1997 and became a federal magistrate in 2001.

In 2002, Bush approved five new federal judgeships for the Southern
District of California. Benitez was nominated, but he was far from a
shoo-in.

An investigation by the ABA found that the California legal community
had deep concerns about Benitez's judicial temperament and courtroom
demeanor.

"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,"
said Richard Macias, the California lawyer who conducted the
investigation, in testimony before the Senate Judiciary Committee in
February 2004.

Macias said his investigation, which included confidential
conversations with 23 judges and 44 lawyers, yielded "more negative
comments" than any of his 60 previous investigations.

Benitez was deemed not qualified for the job by a substantial majority
of the ABA's committee on the federal judiciary -- an exceedingly rare
circumstance; since 1989, the group has found only about 1% of more
than 1,600 candidates to be not qualified.

Benitez responded at the time that he was El Centro's sole magistrate
judge, handling more cases than 10 of his peers in Northern
California. Sometimes, he said, "we don't have the liberty to perhaps
be as relaxed or … as accommodating as we might be if we had a lighter
calendar. … I certainly strive to be fair, and I strive to be
courteous. … I try my best to be the best person that I can be, and
sometimes, that may not be good enough."

With the backing of Sen. Dianne Feinstein, Benitez was confirmed on a
98-1 vote. His close friend U.S. District Court Judge Larry Burns
blamed many of the ABA findings on misunderstandings, saying Benitez
has "lots of social graces" and is "quite the gadfly. People are
attracted to him."

Flashes of the issues raised by the ABA have been on display in
Benitez's courtroom, where he is said to be testy and sometimes
punitive to attorneys arguing in front of him.

That includes his attitude at sentencing hearings at which people
convicted of crimes have the right to address the court. Benitez is
known to have little patience for those comments, said David Peterson,
a former attorney with Federal Defenders of San Diego. Benitez
sometimes warned that he could rethink a sentence based on what a
defendant said, a comment that Peterson said had a "chilling effect"
on defendants' speech.

"I've never seen someone so proactively and repeatedly encourage
defendants to say nothing, or really limit what they say," Peterson
said. "I've never seen another judge do that."

Sometimes, the impatience can veer into humiliation, say some
attorneys.

At one sentencing in 2017, attorneys entering Benitez's courtroom were
surprised to see an easel set up at the front. The hearing, for a
Mexican man convicted of sex trafficking, was necessary because judges
in the U.S. 9th Circuit Court of Appeals had repeatedly sent the case
back to Benitez for resentencing after finding errors. They first
found insufficient evidence to convict the man on some counts. On the
second and third appeals, they found that Benitez had made errors in
the sentencing process.

Benitez ordered the defense attorney, Kara Hartzler, to approach the
easel to "do a little exercise" and began to quiz her on the case, she
said in a court filing.

"The scene felt like a teacher quizzing a student at the chalkboard,"
Hartzler wrote. "At one point he quipped, 'This is kind of like
"Jeopardy!" Right?'"

As she answered, Benitez "would say in a patronizing tone 'good' or
'very good.'" But when she answered incorrectly, Benitez turned to the
two male prosecutors and asked them to answer for her, she said in the
filing.

One of the male prosecutors later described Benitez as a "paragon of
civility." Hartzler wrote that the judge's actions were a "calculated
attempt to humiliate and degrade" her because she had prevailed
repeatedly on appeal.

Benitez once compared himself to a "bit of a frustrated law professor"
who enjoys testing young lawyers in the courtroom. He told the legal
newspaper the Daily Journal in 2015 that he sometimes takes after one
of his own teachers, who "was like a pit bull" and "would destroy you
until you finally gave up trying to come up with an answer or you came
up with an answer that satisfied him."

::
Prayer candles available online contain an image of federal judge
Roger Benitez.

It was a purely random decision that led to Benitez ending up with so
many crucial gun cases.

In 2017, he was assigned the large-capacity magazine lawsuit. Then
came three more 2nd Amendment cases in the next two years, because of
a court rule that allows either side to request that their case be
heard by a judge with previous experience on the topic.

Gun control advocates have argued that gun-rights groups have used
that rule to "judge shop," filing 2nd Amendment cases in Benitez's
district in an effort to get a more favorable hearing.

The gun cases have become Benitez's calling card, turning him into a
polarizing figure: lionized by the firearms lobby as a hero unwinding
onerous regulations, and vilified by advocates for stricter gun laws
who say his interpretation of the 2nd Amendment is alarming and
extreme.

After the assault-weapon ruling, Gov. Gavin Newsom excoriated Benitez
as a "stone-cold ideologue" and a "wholly owned subsidiary of the gun
lobby and the National Rifle Assn.," comments that were criticized by
multiple bar associations as personal attacks damaging trust in the
judiciary.

Gun rights groups have hailed Benitez for what they deem an honest,
clear-eyed approach to the law and an insistence that government
lawyers prove that gun control measures actually work.

"He doesn't take their word for something," said attorney C.D. Michel,
president of the California Rifle & Pistol Assn., who has had two of
his lawsuits challenging gun laws decided favorably by Benitez. "You
can't just say, 'This makes you safer' -- which is what politicians
say in press conferences -- but not have the empirical evidence to
back it up."

A gun owner himself, Benitez has made rulings that have taken aim at
California's decades-old attempts by lawmakers and voters to toughen
gun laws. He deemed the state's assault-weapon ban -- signed into law
in 1989 by Republican Gov. George Deukmejian -- a "failed experiment."

California's assault-weapon ban violates the 2nd Amendment in part
because militias could be forced to settle for "less than ideal"
weapons rather than the "ideal" AR-15 rifle, Benitez wrote. ("That may
not be a severe burden today when the need for the militia is
improbable," he wrote. "One could say the same thing about the
improbable need for insurance policies.")

"That was a new and deeply disturbing line of thinking," said Ari
Freilich, the California policy director for the Giffords Law Center.
Benitez, he said, seemed to suggest that the 2nd Amendment protects
the right of "average people in a civilian militia to make war against
their government."

"If we take that 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," Freilich said.

In an attempt to argue that an AR-15 being used in a mass shooting is
an "infinitesimally rare event," Benitez wrote in June that "more
people have died from the COVID-19 vaccine than mass shootings in
California." The statement, with no citation, mirrors talking points
-- unproved -- about vaccine fatalities that have circulated on Tucker
Carlson's Fox News show and other right-wing news outlets.

The Centers for Disease Control and Prevention has found no "causal
link" between vaccinations and deaths.

::

Over a 10-year stretch in the middle of Benitez's career, 14% of his
decisions were reversed or vacated at the 9th Circuit, according to a
Westlaw analysis.

That is in the upper range as compared with five other Bush-nominated
judges in the Southern District, who had negative outcomes of 9% to
15%. A rate above 20% would be considered troubling to legal experts,
said Shaun Martin, a professor at University of San Diego School of
Law.

Benitez also gives the strictest sentences of the Southern District's
17 judges, according to the Transactional Records Access
Clearinghouse, a nonpartisan research center at Syracuse University.
Over a five-year period, Benitez sentenced 840 defendants and gave an
average sentence of 40.1 months, nearly 72% higher than the district
average, the analysis found.

"I don't think anybody would say that I'm soft or easy," Benitez told
the Daily Journal.

If anyone were to find Benitez merciful, it's the novice deer hunter
who started the Cedar fire in 2003. The wildfire, which killed 15
people and destroyed more than 2,000 homes in San Diego County, was at
the time the largest in state history.

Though the maximum sentence was five years in prison, Benitez gave the
hunter six months in a work-furlough program. The hunter, who lit the
fire after being lost for 11 hours in the Cleveland National Forest,
was remorseful and had done what he had been taught in a wilderness
training course, Benitez said in court.

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Since Benitez began handling a lighter caseload as a semi-retired
senior judge in 2017, he has drawn the ire of defendants by taking
months to more than a year to rule on their post-conviction motions --
or to even acknowledge and docket their filings, according to an
analysis of court files. Other judges in the Southern District deal
with similar motions within a much shorter time frame, sometimes two
weeks or less, a review of court records shows.

Many of the motions asked for compassionate release from prison during
the COVID-19 pandemic. Several defendants asked the 9th Circuit to
order Benitez to rule on their motions or to compel him to explain why
he had not.

One man in a Texas private prison asked Benitez in October to assign
an attorney to help him request compassionate release. He had a little
more than a year left to serve of his 17½-year sentence, he wrote, and
feared that his chronic health conditions placed him at risk of death.

Benitez's staff did not upload the request to the court system or
refer the inmate to a federal defender for nearly seven months, court
records show. Last month, a government attorney argued that the man
should no longer qualify for compassionate release because he was
vaccinated against COVID-19 in May, a week before his request finally
appeared in the court system.

Benitez oversaw the federal fraud and conspiracy case filed against
five architects of the infamous pension deal that nearly bankrupted
the city of San Diego. After repeatedly expressing doubts about the
case, Benitez dismissed the case entirely -- a "maverick streak" that
was "a positive development for these folks," said Mark Adams, who
represented the former head of the city's pension board.

::

In Cuba, Benitez's upper-middle-class family came under scrutiny after
Fidel Castro's rise to power in the 1959 revolution, an experience
that some say shaped his worldview.

"He has seen tyranny up close and personal," Michel, the gun rights
attorney, said. "Maybe that gives him a perspective on how important
it is to hold the government's feet to the fire."

In September 1960, Castro set up a network of "revolutionary
collective vigilance" committees in neighborhoods across the country.
Its members, covert adherents to the Communist Party, began going door
to door, asking neighbors to surrender their weapons, said Lillian
Guerra, a University of Florida history professor.

At school, Benitez and his classmates were pulled out of class and
questioned about their parents' view of the revolution. His father was
a businessman, and his mother held advanced degrees. In the Daily
Journal, Benitez recalled opening the front door one day to see two
armed people in army uniforms who took his mother away.

"We didn't see her for three days," he told the Daily Journal. "We
didn't know where she was, what happened to her, whether she was dead
or alive."

Benitez and his brother were sent to Florida as part of Operation
Peter Pan, a covert U.S.-backed effort to evacuate children from Cuba.
They were later joined by his mother, who moved the family to El
Centro for a teaching job.

"I regard him as the epitome of the American dream," Burns, his fellow
judge, said in an interview. "Someone who comes from very difficult
circumstances and rises to one of the very few federal judges in the
United States."
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