Federal judge sparks uproar with gun-filled YouTube dissent

A 9th U.S. Circuit Court of Appeals judge was criticized by other members of an en banc panel for including an18-minute self-recorded YouTube video dissent that included demonstrations of guns. The majority opinion on Thursday found California's large capacity magazine ban is constitutional.

The en banc panel's 7-4 opinion, written by Judge Susan P. Graber, reverses a ruling against the state from U.S. District Judge Roger T. Benitez in San Diego, who found such restrictions violated the Second Amendment.

In the video, Circuit Judge Lawrence VanDyke recorded himself handling several different handguns to explain their mechanics.

In a concurrence opinion, Judge Marsha Berzon - joined by four other 9th Circuit judges - said VanDyke's video was problematic because it included facts outside the record and provided a factual presentation that he was "egregiously" appointing himself as an expert witness in the case. Berzon called the video "wildly improper."

In his written dissent, VanDyke responded to the criticisms and said the video was within the rules of the court because it was "clearly" evidenced by a written disposition, which he claims is what most of his dissent consisted of.

He also said Berzon's accusations were misguided because his criticisms of the majority's analysis on an arms-accessory distinction was fundamentally conceptual and not rooted in any factual expertise.

"Again, the fundamental purpose of the video is to convey a conceptual point, not any particular disputable facts about guns," VanDyke wrote in his dissent.

Though the act of judges using a video to support their dissenting opinion in a case is rare, VanDyke's self-made YouTube attachment appears to be the first that's been published in a publicly accessible format.

The Daily Journal could find no other federal appellate case where similar videos were published as part of the opinion.

In the video, VanDyke said it was the first time in his judicial career he made such a video because he claimed a visual demonstration of his analysis was better suited for the topic.

In this case, the state made an oral argument that a magazine holding more than 10 rounds was an extra accessory rather than an arm protected by the Second Amendment.

Roughly 3 minutes of that court exchange was spliced into the judge's video.

"I think anyone with a basic familiarity with firearms could show you that this attempted distinction is simply inconsistent with reality," VanDyke said in the video. "I originally planned to explain all of this in writing in my opinion and why the argument didn't make sense, but it occurred to me that in this instance, showing is much more effective than telling."

In her concurrence, Berzon argued that although technology has evolved and "perhaps our written-disposition rule should be reevaluated," VanDyke's video dissent was inappropriate because of his demonstrations about various handgun components and how they are attached and replaced, for example.

Berzon, and the majority opinion, claimed such demonstrations gave the representation that VanDyke was improperly casting himself as an expert witness.

"The majority opinion thus considers the video no differently than it would any other factual source that is not in the record and not subject to judicial notice or another of the narrow exceptions: it ignores it," Berzon wrote.

The other two judges in the case who gave dissenting opinions were Ryan D. Nelson and Patrick J. Bumatay.

In the underlying Southern District case, the state will prevail after the en banc panel found the text of the Second Amendment does not encompass the right to possess large-capacity magazines because they are neither "arms" nor protected accessories. Duncan v. Bonta, 23-55805 (9th Circ., filed Sept. 25, 2023).

"Even assuming that the text ... encompasses the possession of optional accessories like large-capacity magazines, California's ban on large-capacity magazines falls within the nation's tradition of protecting innocent persons by prohibiting especially dangerous uses of weapons and by regulating components necessary to the firing of a firearm," the majority found.

A second opinion in the same case was also released on Thursday, which concerns whether the en banc panel should have heard the matter at all because the panel includes judges who assumed senior status since the appeal was initiated in 2021.

The panel, concurred with by Senior Judge Sidney S.R. Thomas, found it had statutory authority under 28 U.S.C. Section 46(c) because the status changes had no bearing on the nature of the current appeal.

"All eleven judges on the en banc court were 'in regular active service' in 2021 when the court voted to hear the cases en banc and when the en banc court was constituted," the opinion stated.

"This appeal asks the en banc court to resolve the same legal issue, between the same parties, arising from the same district court action and the same facts. This appeal is plainly part of the same case or controversy."

Nelson and Bumatay authored separate dissents, arguing the en banc panel lacked statutory jurisdiction without a new vote and active panel composition, as they interpreted Section 46 to require a fresh en banc vote after remand.

"Here, the judges did not go senior in the brief period between an en banc hearing and decision, but rather multiple judges took senior status years before the en banc hearing and decision," Bumatay wrote in his dissent.

"Regardless of whether Section 46(c) prohibits this odd situation, the court should have used better judgment and reconstituted the en banc panel before issuing this decision."