Wiese et al., v. Becerra, et al.,

Filing 45

ORDER signed by Senior Judge William B. Shubb on 6/16/2017 re #28 Plaintiffs' Motion for Temporary Restraining: IT IS HEREBY ORDERED that plaintiffs' Renewed Motion for Temporary Restraining Order (Docket No. 28) be, and the same hereby is, DENIED. This matter is set for hearing on plaintiffs' request for a preliminary injunction on 6/29/2017 at 09:00 AM in Courtroom 5 (WBS) before Senior Judge William B. Shubb. The parties shall file simultaneous supplemental briefs by 12:00 p.m. on 6/23/2017. [See document for further details.] (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM WIESE, an individual;
JEERMIAH MORRIS, an individual;
LANCE COWLEY, an individual;
SHERMAN MACASTON, an individual;
ADAM RICHARDS, in his capacity
as Trustee of the Magazine Ban
Lawsuit Trust; CLIFFORD FLORES,
individually and as trustee of
the Flores Family Trust; L.Q.
DANG, an individual; FRANK
FEDEREAU, an individual; ALAN
NORMANDY, an individual; TODD
NIELSEN, an individual; THE
CALGUNS FOUNDATION; FIREARMS
POLICY COALITION; FIREARMS
POLICY FOUNDATION; and SECOND
AMENDMENT FOUNDATION;

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2:17-903 WBS KJN

ORDER RE: MOTION FOR
TEMPORARY RESTRAINING ORDER

Plaintiffs,

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Civ. No.

v.
XAVIER BECERRA, in his official
capacity as Attorney General of
California; and MARTHA SUPERNOR,
in her official capacity as
Acting Chief of the Department
of Justice Bureau of Firearms;
Defendants.

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Before the court is plaintiffs’ Renewed Motion for

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Temporary Restraining Order, and Issuance of Preliminary

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Injunction.

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request for a temporary restraining order on June 16, 2017.

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I.

(Docket No. 28.)

The court held a hearing on the

Factual and Procedural History

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This case concerns a challenge to California’s

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prohibition on the possession of gun magazines that can hold more

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than ten bullets, or “large capacity” magazines.1

Although

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California has banned the sale or transfer of such magazines

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since 2000, it did not ban the possession of such magazines

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obtained prior to 2000.2

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On July 1, 2016, however, California enacted Senate

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Bill 1446 (“SB 1446”), which amended California Penal Code

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Section 32310, criminalizing the possession of large capacity

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magazines as of July 1, 2017, regardless of when the magazines

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were obtained.

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electorate approved Proposition 63, which largely mirrors SB

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1446.

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possessing a large capacity magazine either remove the magazine

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from the state, sell the magazine to a licensed firearms dealer,

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or surrender the magazine to the state for its destruction prior

Then, on November 8, 2016, the California

The amended version of Section 32310 requires that anyone

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Large capacity magazines are defined under California
Penal Code § 16740 as any ammunition-feeding device with the
capacity to accept more than 10 rounds.
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Federal law also banned possession of large capacity
magazines from 1994 until the sunset of the law in 2004. Fyock
v. Sunnyvale, 779 F.3d 991, 994 (9th Cir. 2015).
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to July 1, 2017.

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version of Section 32310 also provides that possession of a large

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capacity magazine as of July 1, 2017 constitutes an infraction or

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a misdemeanor punishable by a fine not to exceed $100 per large

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capacity magazine and/or imprisonment in a county jail not to

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exceed one year.

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Cal. Penal Code § 32310(d).

The amended

Cal. Penal Code § 32310(c).

On April 28, 2017, plaintiffs filed the instant action

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alleging that Section 32310 is unconstitutional, and then an

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amended complaint on June 5, 2017.

Plaintiffs then filed a

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motion for a temporary restraining order and preliminary

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injunction on June 12, 2017 and a renewed motion on June 14,

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2017.

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statute statewide.

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II. Discussion

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The instant motion seeks to enjoin enforcement of this

Injunctive relief is “an extraordinary and drastic

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remedy, one that should not be granted unless the movant, by a

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clear showing, carries the burden of persuasion.”

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Armstrong, 520 U.S. 968, 972 (1997) (citation omitted).

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to obtain a temporary restraining order or preliminary

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injunction, the moving party must establish (1) it is likely to

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succeed on the merits, (2) it is likely to suffer irreparable

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harm in the absence of preliminary relief, (3) the balance of

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equities tips in its favor, and (4) an injunction is in the

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public interest.

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U.S. 7, 20-21 (2008); Humane Soc’y of the U.S. v. Gutierrez, 558

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F.3d 896, 896 (9th Cir. 2009); see Credit Bureau Connection, Inc.

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v. Pardini, 726 F. Supp. 2d 1107, 1132 (E.D. Cal. 2010)

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(citations omitted) (standards for temporary restraining orders

Mazurek v.
In order

Winter v. Nat. Res. Def. Council, Inc., 555

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and preliminary injunctions are the same).

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In order to obtain preliminary injunctive relief,

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plaintiffs must “establish that irreparable harm is likely, not

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just possible, in order to obtain” injunctive relief.

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the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)

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(citing Winter, 555 U.S. at 22).

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they will be irreparably harmed by having to surrender their

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large capacity magazines, which they contend are irreplaceable

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due to California’s ban on the transfer of large capacity

All. for

Here, plaintiffs contend that

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magazines, and because such surrender infringes their

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constitutional rights.

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“Generally, irreparable harm is presumed if a violation

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of the constitution is shown.”

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Dist., No. 08-CV-0146-AWI-GSA, 2008 WL 268830, at *1 (E.D. Cal.

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Jan. 30, 2008) (citing Goldies’ Bookstore, Inc. v. Superior

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Court, 739 F.2d 466, 472 (9th Cir. 1984)).

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federal injunction is sought against a government entity, the

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party requesting relief must show a threat of “great and

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immediate” irreparable harm.

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Lyons, 461 U.S. 95, 112 (1983)).

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Bailey v. Clovis Unified Sch.

However, where a

Id. (citing City of Los Angeles v.

Further, a plaintiff’s “long delay before seeking a

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preliminary injunction implies a lack of urgency and irreparable

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harm.”

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1374, 1377 (9th Cir. 1985); see also Lydo Enters. v. City of Las

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Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (delay in seeking

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preliminary injunction is a factor to be considered in weighing

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the propriety of relief, because “[b]y sleeping on its rights a

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plaintiff demonstrates the lack of need for speedy action”

Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d

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(citations omitted)); E.D. Local Rule 231(b)(court will consider

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whether applicant seeking a temporary restraining order “could

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have sought relief by motion for preliminary junction at an

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earlier date without the necessity for seeking last-minute relief

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by motion for temporary restraining order,” and undue delay may

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constitute grounds to deny the request).

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Here, plaintiffs’ delay in filing this case and in

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requesting a temporary restraining order strongly weigh against a

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finding of great and immediate irreparable harm.

Notwithstanding

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the enactment of SB 1446 on July 1, 2016, the passage of

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Proposition 63 on November 8, 2016, and the fact that both SB

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1446 and Proposition 63 banned large capacity magazines as of

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July 1, 2017, plaintiffs waited until almost May of this year to

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file their suit, and then waited until mid-June to request a

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temporary restraining order, which they ask the court to grant

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before July 1, 2017.

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Plaintiffs’ counsel argued at the hearing on the motion

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that plaintiffs delayed bringing their suit due to ambiguity

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regarding whether SB 1446’s version or Proposition 63’s version

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applied, due to the California Department of Justice’s

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promulgation and then rescission of proposed implementing

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regulations, and due to the desire to avoid piecemeal litigation.

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These excuses do not justify plaintiffs bringing their request

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for a temporary restraining order at the last minute, a month and

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a half after bringing suit to request immediate injunctive

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relief.

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immediately moved for a preliminary injunction upon filing their

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suit, even assuming they were justified in waiting to until the

There is no reason why plaintiffs could not have

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end of April to bring the action in the first place.

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Although the pending motion does not require the court

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to make a final determination on the merits of plaintiffs’

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claims, it does require the court to assess the likelihood of

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success on plaintiffs’ claims, which requires a review of all the

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submitted materials.

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decide the weighty and vitally important issue of the

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constitutionality of a state statute, enacted by both the

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California electorate and the California Legislature, on such an

It is unrealistic to expect the court to

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extremely expedited schedule.

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do so, given the submissions of the parties, which total

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thousands of pages.

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power to drop everything else and review all the submitted

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materials, this is simply not the way justice may and should be

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done.

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Indeed, it would be impossible to

Even assuming the court had the superhuman

Most importantly, plaintiffs still may vindicate their

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rights through their request for a preliminary injunction in this

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court, which will be heard by this court on June 29, 2017, before

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the large capacity magazine ban takes effect.

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their burden of showing that a preliminary injunction is

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warranted, the court may enjoin the applicable statute and

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prevent any deprivation of plaintiffs’ rights and the

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corresponding irreparable harm.

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time, albeit not as much as the court should have had if

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plaintiffs had been diligent in bringing their motion, to study

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the materials in order to arrive at a correct decision.

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If plaintiffs meet

It will also give the court more

Based on all of the above considerations, because
plaintiffs have not established great and immediate irreparable
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harm warranting the grant of the extraordinary relief of a

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temporary restraining order,3 IT IS HEREBY ORDERED that

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plaintiffs’ Renewed Motion for Temporary Restraining Order

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(Docket No. 28) be, and the same hereby is, DENIED.

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is set for hearing on plaintiffs’ request for a preliminary

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injunction on June 29, 2017 at 9:00 a.m. in Courtroom 5.

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parties shall file simultaneous supplemental briefs by 12:00 p.m.

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on June 23, 2017.

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Dated:

This matter

The

June 16, 2017

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Because of the court’s determination that plaintiffs
have not made a sufficient showing of irreparable harm, the court
need not examine the balance of hardships or whether plaintiffs
have established a likelihood of success on the merits or that
the public interest favors injunctive relief.
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