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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 15 16 17 18 19 20 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; 23 24 25 26 2:17-903 WBS KJN ORDER RE: MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiffs, 21 22 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. 27 28 1 1 ----oo0oo---- 2 Before the court is plaintiffs’ Renewed Motion for 3 Temporary Restraining Order, and Issuance of Preliminary 4 Injunction. 5 request for a temporary restraining order on June 16, 2017. 6 I. (Docket No. 28.) The court held a hearing on the Factual and Procedural History 7 This case concerns a challenge to California’s 8 prohibition on the possession of gun magazines that can hold more 9 than ten bullets, or “large capacity” magazines.1 Although 10 California has banned the sale or transfer of such magazines 11 since 2000, it did not ban the possession of such magazines 12 obtained prior to 2000.2 13 On July 1, 2016, however, California enacted Senate 14 Bill 1446 (“SB 1446”), which amended California Penal Code 15 Section 32310, criminalizing the possession of large capacity 16 magazines as of July 1, 2017, regardless of when the magazines 17 were obtained. 18 electorate approved Proposition 63, which largely mirrors SB 19 1446. 20 possessing a large capacity magazine either remove the magazine 21 from the state, sell the magazine to a licensed firearms dealer, 22 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 23 24 25 26 27 28 1 Large capacity magazines are defined under California Penal Code § 16740 as any ammunition-feeding device with the capacity to accept more than 10 rounds. 2 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). 2 1 to July 1, 2017. 2 version of Section 32310 also provides that possession of a large 3 capacity magazine as of July 1, 2017 constitutes an infraction or 4 a misdemeanor punishable by a fine not to exceed $100 per large 5 capacity magazine and/or imprisonment in a county jail not to 6 exceed one year. 7 Cal. Penal Code § 32310(d). The amended Cal. Penal Code § 32310(c). On April 28, 2017, plaintiffs filed the instant action 8 alleging that Section 32310 is unconstitutional, and then an 9 amended complaint on June 5, 2017. Plaintiffs then filed a 10 motion for a temporary restraining order and preliminary 11 injunction on June 12, 2017 and a renewed motion on June 14, 12 2017. 13 statute statewide. 14 II. Discussion 15 The instant motion seeks to enjoin enforcement of this Injunctive relief is “an extraordinary and drastic 16 remedy, one that should not be granted unless the movant, by a 17 clear showing, carries the burden of persuasion.” 18 Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). 19 to obtain a temporary restraining order or preliminary 20 injunction, the moving party must establish (1) it is likely to 21 succeed on the merits, (2) it is likely to suffer irreparable 22 harm in the absence of preliminary relief, (3) the balance of 23 equities tips in its favor, and (4) an injunction is in the 24 public interest. 25 U.S. 7, 20-21 (2008); Humane Soc’y of the U.S. v. Gutierrez, 558 26 F.3d 896, 896 (9th Cir. 2009); see Credit Bureau Connection, Inc. 27 v. Pardini, 726 F. Supp. 2d 1107, 1132 (E.D. Cal. 2010) 28 (citations omitted) (standards for temporary restraining orders Mazurek v. In order Winter v. Nat. Res. Def. Council, Inc., 555 3 1 and preliminary injunctions are the same). 2 In order to obtain preliminary injunctive relief, 3 plaintiffs must “establish that irreparable harm is likely, not 4 just possible, in order to obtain” injunctive relief. 5 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) 6 (citing Winter, 555 U.S. at 22). 7 they will be irreparably harmed by having to surrender their 8 large capacity magazines, which they contend are irreplaceable 9 due to California’s ban on the transfer of large capacity All. for Here, plaintiffs contend that 10 magazines, and because such surrender infringes their 11 constitutional rights. 12 “Generally, irreparable harm is presumed if a violation 13 of the constitution is shown.” 14 Dist., No. 08-CV-0146-AWI-GSA, 2008 WL 268830, at *1 (E.D. Cal. 15 Jan. 30, 2008) (citing Goldies’ Bookstore, Inc. v. Superior 16 Court, 739 F.2d 466, 472 (9th Cir. 1984)). 17 federal injunction is sought against a government entity, the 18 party requesting relief must show a threat of “great and 19 immediate” irreparable harm. 20 Lyons, 461 U.S. 95, 112 (1983)). 21 Bailey v. Clovis Unified Sch. However, where a Id. (citing City of Los Angeles v. Further, a plaintiff’s “long delay before seeking a 22 preliminary injunction implies a lack of urgency and irreparable 23 harm.” 24 1374, 1377 (9th Cir. 1985); see also Lydo Enters. v. City of Las 25 Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (delay in seeking 26 preliminary injunction is a factor to be considered in weighing 27 the propriety of relief, because “[b]y sleeping on its rights a 28 plaintiff demonstrates the lack of need for speedy action” Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 4 1 (citations omitted)); E.D. Local Rule 231(b)(court will consider 2 whether applicant seeking a temporary restraining order “could 3 have sought relief by motion for preliminary junction at an 4 earlier date without the necessity for seeking last-minute relief 5 by motion for temporary restraining order,” and undue delay may 6 constitute grounds to deny the request). 7 Here, plaintiffs’ delay in filing this case and in 8 requesting a temporary restraining order strongly weigh against a 9 finding of great and immediate irreparable harm. Notwithstanding 10 the enactment of SB 1446 on July 1, 2016, the passage of 11 Proposition 63 on November 8, 2016, and the fact that both SB 12 1446 and Proposition 63 banned large capacity magazines as of 13 July 1, 2017, plaintiffs waited until almost May of this year to 14 file their suit, and then waited until mid-June to request a 15 temporary restraining order, which they ask the court to grant 16 before July 1, 2017. 17 Plaintiffs’ counsel argued at the hearing on the motion 18 that plaintiffs delayed bringing their suit due to ambiguity 19 regarding whether SB 1446’s version or Proposition 63’s version 20 applied, due to the California Department of Justice’s 21 promulgation and then rescission of proposed implementing 22 regulations, and due to the desire to avoid piecemeal litigation. 23 These excuses do not justify plaintiffs bringing their request 24 for a temporary restraining order at the last minute, a month and 25 a half after bringing suit to request immediate injunctive 26 relief. 27 immediately moved for a preliminary injunction upon filing their 28 suit, even assuming they were justified in waiting to until the There is no reason why plaintiffs could not have 5 1 end of April to bring the action in the first place. 2 Although the pending motion does not require the court 3 to make a final determination on the merits of plaintiffs’ 4 claims, it does require the court to assess the likelihood of 5 success on plaintiffs’ claims, which requires a review of all the 6 submitted materials. 7 decide the weighty and vitally important issue of the 8 constitutionality of a state statute, enacted by both the 9 California electorate and the California Legislature, on such an It is unrealistic to expect the court to 10 extremely expedited schedule. 11 do so, given the submissions of the parties, which total 12 thousands of pages. 13 power to drop everything else and review all the submitted 14 materials, this is simply not the way justice may and should be 15 done. 16 Indeed, it would be impossible to Even assuming the court had the superhuman Most importantly, plaintiffs still may vindicate their 17 rights through their request for a preliminary injunction in this 18 court, which will be heard by this court on June 29, 2017, before 19 the large capacity magazine ban takes effect. 20 their burden of showing that a preliminary injunction is 21 warranted, the court may enjoin the applicable statute and 22 prevent any deprivation of plaintiffs’ rights and the 23 corresponding irreparable harm. 24 time, albeit not as much as the court should have had if 25 plaintiffs had been diligent in bringing their motion, to study 26 the materials in order to arrive at a correct decision. 27 28 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 6 1 harm warranting the grant of the extraordinary relief of a 2 temporary restraining order,3 IT IS HEREBY ORDERED that 3 plaintiffs’ Renewed Motion for Temporary Restraining Order 4 (Docket No. 28) be, and the same hereby is, DENIED. 5 is set for hearing on plaintiffs’ request for a preliminary 6 injunction on June 29, 2017 at 9:00 a.m. in Courtroom 5. 7 parties shall file simultaneous supplemental briefs by 12:00 p.m. 8 on June 23, 2017. 9 Dated: This matter The June 16, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 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. 7

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