The San Diego judge trying to upend California gun laws

By LAURA J. NELSON, KRISTINA DAVIS

Aug. 8, 2021 6 AM PT

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"

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.”