Wiese et al., v. Becerra, et al.,
Filing
52
MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 6/29/2017 DENYING #28 Plaintiffs' Renewed Motion for Issuance of Preliminary Injunction. (Kirksey Smith, K)
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 1 of 23
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo----
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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
MEMORANDUM AND ORDER RE:
MOTION FOR PRELIMINARY
INJUNCTION
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.
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28
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Before the court is plaintiffs’ Motion for Issuance of
3
Preliminary Injunction.
(Docket No. 28.)
The court held a
4
hearing on the request for a preliminary injunction on June 29,
5
2017.
6
I.
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 (“LCM”).1
10
Although California had banned the purchase, sale, transfer,
11
receipt, or manufacture of such magazines since 2000, it did not
12
ban the possession of these magazines.
13
Sunnyvale, 779 F.3d 991, 994 (9th Cir. 2015).
14
Californians were allowed to keep large capacity magazines they
15
had obtained prior to 2000, but no one, with a few exceptions
16
such as law enforcement officers, has been allowed to obtain new
17
large capacity magazines since 2000.
18
Fyock v. City of
In effect,
On July 1, 2016, however, California enacted Senate
19
Bill 1446 (“SB 1446”), which amended California Penal Code §
20
32310, criminalizing the possession of large capacity magazines
21
as of July 1, 2017, regardless of when the magazines were
22
obtained.
23
approved Proposition 63, which largely mirrors SB 1446.
24
amended version of Section 32310 enacted by Proposition 63
25
requires that anyone possessing a large capacity magazine either
Then, on November 8, 2016, the California electorate
The
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 ten rounds.
2
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1
remove the magazine from the state, sell the magazine to a
2
licensed firearms dealer, or surrender the magazine to a law
3
enforcement agency for its destruction prior to July 1, 2017.
4
Cal. Penal Code § 32310(d).
5
also provides that possession of a large capacity magazine as of
6
July 1, 2017 constitutes an infraction or a misdemeanor
7
punishable by a fine not exceed $100 per large capacity magazine
8
and/or imprisonment in a county jail not to exceed one year.
9
§ 32310(c).
10
The amended version of Section 32310
Id.
On April 28, 2017, plaintiffs filed the instant action
11
alleging that Section 32310 is unconstitutional.
12
their complaint, plaintiffs filed a motion for a temporary
13
restraining order and preliminary injunction on June 12, 2017 and
14
a renewed motion on June 14, 2017.
15
for a temporary restraining order after a hearing on June 16,
16
2017 based on an insufficient showing of irreparable harm, given
17
plaintiffs’ delay in filing suit and the fact that the court
18
would hold a hearing on plaintiffs’ request for a preliminary
19
injunction before the large capacity magazine ban took effect on
20
July 1, 2017.
21
supplemental briefs regarding plaintiffs’ request for a
22
preliminary injunction on June 23, 2017.
23
II. Discussion
24
(Docket No. 45.)
After amending
The court denied the request
The parties then filed
Injunctive relief is “an extraordinary and drastic
25
remedy, one that should not be granted unless the movant, by a
26
clear showing, carries the burden of persuasion.”
27
Armstrong, 520 U.S. 968, 972 (1997) (citation omitted).
28
to obtain a preliminary injunction, the moving party must
3
Mazurek v.
In order
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 4 of 23
1
establish (1) it is likely to succeed on the merits, (2) it is
2
likely to suffer irreparable harm in the absence of preliminary
3
relief, (3) the balance of equities tips in its favor, and (4) an
4
injunction is in the public interest.
5
Council, Inc., 555 U.S. 7, 20 (2008); Fyock, 779 F.3d at 995-96.
6
Winter v. Nat. Res. Def.
Plaintiffs contend that California’s large capacity
7
magazine ban violates the Second Amendment, is an
8
unconstitutional taking under the Fifth and Fourteenth
9
Amendments, is void for vagueness, and is overbroad.
The court
10
proceeds to examine plaintiffs’ showing with respect to each
11
claim below.
12
A.
Second Amendment Challenge
13
1.
Likelihood of Success on the Merits
14
To evaluate a Second Amendment claim, the court asks
15
whether the challenged law burdens conduct protected by the
16
Second Amendment, and if so, what level of scrutiny should be
17
applied.
18
735 F.3d 1127, 1136 (9th Cir. 2013)).
19
20
21
Fyock, 779 F.3d at 996 (citing United States v. Chovan,
a.
Burden on Conduct Protected by the Second
Amendment
There appears to be no dispute in this case that many
22
people inside and outside of California up to this point have
23
lawfully possessed large capacity magazines for lawful purposes.
24
See Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C.
25
Cir. 2011) (“Heller II”) (finding that magazines holding more
26
than ten rounds were in “common use”).
27
that large capacity magazines are commonly possessed by law-
28
abiding citizens for lawful purposes and have been legally
4
Indeed, there is evidence
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 5 of 23
1
possessed by many Californians for many years, notwithstanding
2
California’s ban on the transfer of such magazines since 2000.
3
(See Curcuruto Decl. ¶¶ 6-8 (citing estimate that 114 million
4
magazines with eleven or more rounds were in consumer possession
5
between 1990 and 2015, just under half of the overall 230 million
6
pistol and rifle magazines owned during that time); Pls.’ Request
7
for Judicial Notice, Ex. A (Cal. Dep’t of Justice Finding of
8
Emergency at 1) (“There are likely hundreds of thousands of
9
large-capacity magazines in California at this time . . . . The
10
Department therefore expects many gun owners to be affected by
11
the new ban.”); Youngman Decl. ¶ 9 (large capacity magazines are
12
commonly owned by millions of persons in the United States for
13
lawful purposes including target shooting, competition, home
14
defense, collecting, and hunting).)
15
Thus, notwithstanding California’s existing ban on the
16
transfer of large capacity magazines, it appears that
17
California’s ban on large capacity magazines burdens conduct
18
protected by the Second Amendment.
19
(district court did not clearly err in finding that a regulation
20
on large capacity magazines burdens conduct falling with the
21
scope of the Second Amendment).
22
114, 135-37 (4th Cir. 2017) (en banc) (large capacity magazines
23
are not protected by the Second Amendment because they are
24
weapons most useful in military service).2
25
26
27
28
2
See Fyock, 779 F.3d at 998
But see Kolbe v. Hogan, 849 F.3d
Because the court holds that California’s large
capacity magazine ban burdens conduct protected by the Second
Amendment because these magazines are commonly possessed by lawabiding citizens for lawful purposes, the court does not examine
whether the ban resembles longstanding provisions historically
exempted from the Second Amendment. See Fyock, 779 F.3d at 997.
5
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b.
2
Appropriate Level of Scrutiny
In determining what level of scrutiny applies to the
3
ban on large capacity magazines, the court considers (1) how
4
closely the law comes to the core of the Second Amendment right,
5
which is self-defense, and (2) how severely, if at all, the law
6
burdens that right.
7
735 F.3d at 1138).
8
regulation does not implicate the core Second Amendment right or
9
if the regulation does not place a substantial burden on that
Fyock, 779 F.3d at 998-99 (citing Chovan,
Intermediate scrutiny is appropriate if the
10
right.
11
Francisco, 746 F.3d 953, 964 (9th Cir. 2014)).
12
Id. at 998-99 (citing Jackson v. City & County of San
Here, the court finds that intermediate scrutiny is
13
appropriate because “the prohibition of . . . large capacity
14
magazines does not effectively disarm individuals or
15
substantially affect their ability to defend themselves.”
16
v. District of Columbia, 670 F.3d 1244, 1262 (D.C. Cir. 2011)
17
(“Heller II”); Fyock, 779 F.3d at 999 (quoting Heller II).
18
ban may implicate the core of the Second Amendment because it
19
restricts the ability of law-abiding citizens to possess large
20
capacity magazines within their homes for self-defense.
21
Fyock, 779 F.3d at 999.
22
ability of law-abiding citizens to possess the ‘quintessential
23
self-defense weapon’-–the handgun.
24
possession of only a subset of magazines that are over a certain
25
capacity.”
26
570, 629 (2008) (“Heller I”)).
Heller
The
See
However, the ban “does not affect the
Rather, [it] restricts
Id. (quoting District of Columbia v. Heller, 554 U.S.
27
Indeed, it appears that virtually every other court to
28
examine large capacity magazine bans has found that intermediate
6
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1
scrutiny is appropriate, assuming these magazines are protected
2
by the Second Amendment.
3
F.3d at 138-139; N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo,
4
804 F.3d 242, 258-60 (2d Cir. 2015); Heller II, 670 F.3d at 1261-
5
62; S.F. Veteran Police Officers Ass’n v. City & County of San
6
Francisco, 18 F. Supp. 3d 997, 1002-04 (N.D. Cal. 2014).
7
Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015)
8
(upholding municipal ban on assault weapons and large capacity
9
magazines but declining to determine what level of scrutiny
10
11
See Fyock, 779 F.3d at 999; Kolbe, 849
But see
applied).
Accordingly, because California’s ban does not
12
substantially burden individuals’ ability to defend themselves,
13
intermediate scrutiny is appropriate.
14
c.
Application of Intermediate Scrutiny
15
Intermediate scrutiny requires “(1) the government’s
16
stated objective to be significant, substantial, or important;
17
and (2) a reasonable fit between the challenged regulation and
18
the asserted objective.”
19
Chovan, 735 F.3d at 1139).
20
government’s regulation is the least restrictive means of
21
achieving its interests.
22
that the regulation “promotes a substantial government interest
23
that would be achieved less effectively absent the regulation.”
24
Id. (citation omitted).
25
government’s stated objective and the regulation, the court may
26
consider legislative history as well as studies in the record or
27
applicable case law.
28
support” the state’s rationale, and in making this determination,
Fyock, 779 F.3d at 1000 (quoting
This test does not require that the
Rather, the government need only show
In reviewing the fit between the
Id.
The evidence need only “fairly
7
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courts “afford substantial deference to the predictive judgments
2
of the legislature.”
3
(citations omitted); see also Kolbe, 849 F.3d at 140 (court must
4
give substantial deference to the legislature, because “it is the
5
legislature’s job, not ours, to weigh conflicting evidence and
6
make policy judgments”) (citations omitted).
7
N.Y. State Rifle, 804 F.3d at 261
One stated objective of California’s large capacity
8
magazine ban is to reduce the incidence and harm of mass
9
shootings.
(Gordon Decl., Ex. 50 § 2, ¶ 11; § 3, ¶ 8.)
There
10
can be no serious argument that this is not a substantial
11
government interest, especially in light of several recent high
12
profile mass shootings involving large capacity magazines,
13
including the 2016 Orlando Pulse nightclub shooting, the 2015 San
14
Bernardino shooting, the 2012 Aurora movie theater shooting, the
15
2012 Sandy Hook school shooting, the 2011 Arizona shooting
16
involving then-U.S. Representative Gabrielle Giffords, and the
17
2007 Virginia Tech shooting, all of which resulted in multiple
18
deaths and injuries.
19
Donohue Decl. ¶ 29.)
20
(See Webster Decl. ¶ 10; Graham Decl. ¶ 19;
Further, defendants have provided studies and expert
21
analyses supporting their conclusion that California’s ban would
22
further these objectives.
23
97; Webster Decl. ¶¶ 12, 21, 25-26; Donohue Decl. ¶¶ 21, 29;
24
Gordon Decl., Ex. 54 at 2; Gordon Decl., Ex. 62 at 10.)
25
courts have found a reasonable fit between similar bans with
26
similar stated objectives.
27
(reasonable fit between assault weapon and LCM ban and interest
28
in reducing harm caused by criminals and preventing unintentional
(See Gordon Decl., Ex. 34 at 87, 89,
Multiple
See Kolbe, 849 F.3d at 139-41
8
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misuse by otherwise law-abiding citizens); Fyock, 779 F.3d at
2
1000-01 (reasonable fit between LCM ban and interests in reducing
3
the harm of intentional and accidental gun use and reducing
4
violent crime); N.Y. State Rifle, 804 F.3d at 263-64 (reasonable
5
fit between assault weapon and LCM ban and interest in
6
controlling crime); Heller II, 670 F.3d at 1262-64 (reasonable
7
fit between assault weapon and large capacity magazine ban and
8
interest in protecting police officers and controlling crime);
9
S.F. Veteran Police Officers, 18 F. Supp. 3d at 1003-04
10
(reasonable fit between LCM ban and goals of protecting public
11
safety and reducing injuries from criminal use of LCMs).
12
Reasonable minds will always differ on such questions
13
as the best way to reduce the incidence and harm of mass
14
shootings, or whether that can even be accomplished at all.
15
order for there to be a reasonable fit between the objective
16
sought to be achieved and the proposed solution, however, the
17
solution need not be the best possible means of achieving the
18
objective.
19
only a reasonable fit, between the ban and the important
20
objective of easing enforcement of California’s existing ban on
21
the purchase, sale, transfer, or importation of large capacity
22
magazines.
23
In
Defendants are not required to show a perfect fit,
The prior ban did not prohibit possession, and there
24
was no way for law enforcement to determine which magazines were
25
“grandfathered” and which were illegally transferred or modified
26
to accept more than ten rounds after January 1, 2000.
27
Decl., Ex. 46 at 3; Graham Decl. ¶ 30; Gordon Decl., Ex. 62 at
28
10.)
(Gordon
The evidence indicates that a ban on the possession of
9
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1
large capacity magazines will help address this enforcement
2
issue.
3
2004 federal ban on large capacity magazines was lifted, the
4
illegal importation of LCMs into California increased, giving
5
further impetus to California’s efforts to ease enforcement of
6
its existing ban.
7
The proposed ban will facilitate that effort.
8
9
(See Gordon Decl., Ex. 62 at 10.)
Further, after the
(See Graham Decl. ¶ 23; Gordon Decl., Ex. 63.)
The court recognizes plaintiffs’ evidence that few
California shootings have involved large capacity magazines, that
10
there is no evidence that any of these shootings involved
11
grandfathered large capacity magazines, and that violent
12
criminals might still be capable of inflicting great harm after
13
the enactment of a ban.
14
Decl. ¶¶ 8-12.)
15
show, or for the court to find, that the proposed ban will
16
eliminate all gun violence in California, or that it would have
17
prevented any of the past incidents of gun violence.
18
the role of this court to judge the wisdom of the California
19
legislature in enacting the statutes at issue here.
20
for this court to determine whether those duly enacted statutes
21
pass constitutional muster under the test which the decisions of
22
higher courts require this court to apply.
23
804 F.3d at 261 (citations omitted); Kolbe, 849 F.3d at 140.
24
(See, e.g., Moody Decl. ¶¶ 9-17; Ayoob
However, it is not necessary for defendants to
Nor is it
It is only
See N.Y. State Rifle,
Overall, it appears that California’s stated interests
25
of reducing the incidence and harm of mass shootings and easing
26
enforcement of the state’s existing ban “would be achieved less
27
effectively absent the regulation,” Fyock, 779 F.3d at 1000, and
28
thus there is a reasonable fit between the ban and California’s
10
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1
important objectives.
2
have not shown that the large capacity magazine ban fails
3
intermediate scrutiny and have not shown a likelihood of success
4
on the merits on their Second Amendment claim.
5
2.
6
Because of this reasonable fit, plaintiffs
Irreparable Injury, Balance of Hardships, and the
Public Interest
7
Because plaintiffs have not met their burden of showing
8
the likelihood of success on the merits of their Second Amendment
9
claim, preliminary injunctive relief must be denied,
10
notwithstanding the court’s findings with respect to irreparable
11
injury, balance of hardships or the public interest.
12
555 U.S. at 20 (“A plaintiff seeking a preliminary injunction
13
just establish that he is likely to succeed on the merits, that
14
he is likely to suffer irreparable harm in the absence of
15
preliminary relief, that the balance of equities tips in his
16
favor, and that an injunction is in the public interest.”)
17
(emphasis added).
18
See Winter,
That said, if plaintiffs are correct that the large
19
capacity magazine ban violates the Second Amendment, it appears
20
that plaintiffs will likely suffer irreparable injury by having
21
to surrender their large capacity magazines, which are
22
irreplaceable due to California’s ban on the transfer of large
23
capacity magazines, in violation of their Second Amendment
24
rights.
25
remedied through damages and therefore generally constitute
26
irreparable harm.”
27
559 F.3d 1046, 1059 (9th Cir. 2009) (citation omitted); see also
28
Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[T]he
“[C]onstitutional violations cannot be adequately
Am. Trucking Ass’ns v. City of Los Angeles,
11
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1
deprivation of constitutional rights ‘unquestionably constitutes
2
irreparable injury.’”) (quoting Elrod v. Burns, 427 U.S. 347, 373
3
(1976)).
4
While defendants claim there is no irreparable harm
5
because plaintiffs may store their magazines out of state, sell
6
them to licensed dealers, or permanently modify their magazines,
7
there is little evidence as to whether these are in fact viable
8
options for plaintiffs or Californians generally.
9
if plaintiffs were able to show a likelihood of success on the
Accordingly,
10
merits of their Second Amendment claim, this factor would weigh
11
in favor of granting a preliminary injunction.
12
The other Winter factors, however, do not weigh in
13
favor of granting preliminary injunctive relief.
14
injunction may result in the violation of plaintiffs’ Second
15
Amendment rights and the unlawful forced loss of their personal
16
property, but granting an injunction would also result in a
17
substantial hardship to defendants.
18
interest in preventing and limiting gun violence, as well as in
19
enforcing validly enacted statutes.
20
Ct. 1, 3 (2012) (“Any time a State is enjoined by a court from
21
effectuating statutes enacted by representatives of its people,
22
it suffers a form of irreparable injury.”).
23
especially strong here, where the ban was enacted first by the
24
state legislature and then through a state-wide proposition
25
approved by a majority of voters.
26
Withholding an
The State has a substantial
See Maryland v. King, 133 S.
Such interest is
Further, while the public’s interest is furthered by
27
the protection of individuals’ Second Amendment rights, assuming
28
the ban infringes those rights, the public interest is also
12
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1
furthered by preventing and minimizing the harm of gun violence,
2
and in making it easier to enforce California’s existing ban on
3
the sale, purchase, transfer, or importation of large capacity
4
magazines, pursuant to a bill enacted by the California
5
Legislature and a proposition approved by the California
6
electorate.
7
Given the substantial hardships that may result to both
8
sides in this litigation based on the granting or withholding of
9
a preliminary injunction, and the dueling substantial public
10
interests, plaintiffs have not shown that the balance of
11
hardships or the public interest favor granting a preliminary
12
injunction.
13
shown a likelihood of success on the merits of their Second
14
Amendment claim.
15
request for a preliminary injunction based on their Second
16
Amendment claim.
17
B.
Further, as discussed above, plaintiffs have not
Accordingly, the court will deny plaintiffs’
Takings Clause/Due Process Challenge
18
The Fifth Amendment prohibits the taking of private
19
property for public use without just compensation.
20
amend. V.
21
unconstitutional taking under the Fifth and Fourteenth Amendments
22
because they will have to physically turn over their magazines
23
for destruction or, in the alternative, they will be completely
24
deprived of all beneficial use of their magazines, without just
25
compensation.
26
U.S. Const.
Plaintiffs argue that the magazine ban operates as an
Preliminarily, the court is not persuaded that
27
plaintiffs will likely succeed on the merits of their takings
28
claim.
Plaintiffs have not cited, and the court is unaware of,
13
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1
any case holding that a complete ban on personal property deemed
2
harmful to the public by the state is a taking for public use
3
which requires compensation.
4
decision in Heller I said nothing which could be interpreted as
5
suggesting that a city or state’s ban of a previously lawful
6
firearm or firearm component would require compensation to
7
existing owners of those firearms or components.
8
554 U.S. at 626-27 (stating that reasonable gun regulations were
9
permissible and implying that a complete ban on machine guns, for
10
11
Further, the Supreme Court’s
See Heller I,
example, was permissible).
A long line of federal cases has authorized the taking
12
or destruction of private property in the exercise of the state’s
13
police power without compensation.
14
U.S. 623, 669 (1887) (“The exercise of the police power by the
15
destruction of property which is itself a public nuisance . . .
16
is very different from taking property for public use . . . . In
17
the one case, a nuisance only is abated; in the other,
18
unoffending property is taken away from an innocent owner.”);
19
Akins v. United States, 82 Fed. Cl. 619, 622-23 (2008) (“Property
20
seized and retained pursuant to the police power is not taken for
21
a ‘public use’ in the context of the Takings Clause” and thus no
22
compensation was due where a federal agency ordered, pursuant to
23
federal law, an inventor to surrender a device later classified
24
by the agency as a machine gun) (quoting AmeriSource Corp. v.
25
United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008)); Fesjian v.
26
Jefferson, 399 A.2d 861 (D.C. Ct. App. 1979) (no compensation is
27
due where a municipality bans machine guns or semi-automatic
28
weapons capable of firing more than twelve rounds without manual
14
See Mugler v. Kansas, 123
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1
reloading); accord Wilkins v. Daniels, 744 F.3d 409, 419 (6th
2
Cir. 2014) (law banning wild animals unless they were implanted
3
with microchips did not operate as a physical taking because
4
owners retained the ability to use and possess their animals and
5
the implanted microchips, and the act was “close kin to the
6
general welfare regulations that the Supreme Court ensured were
7
not constitutionally suspect”).
8
9
More importantly, even assuming, without deciding, that
the large capacity magazine ban operates as a taking requiring
10
just compensation, injunctive relief is generally not available
11
for takings claims.
12
the governmental interference with property rights per se, but
13
rather to secure compensation in the event of [an] otherwise
14
proper interference amounting to a taking.”
15
Evangelical Lutheran Church of Glendale v. County of Los Angeles,
16
482 U.S. 304, 315 (1987); see also Lingle v. Chevron, 544 U.S.
17
528, 543 (2005) (Due Process clause “does not bar government from
18
interfering with property rights” but only requires compensation
19
in event of interference amounting to a taking) (citing First
20
English Lutheran Church, 428 U.S. at 315).
21
The Takings Clause “is designed not to limit
First English
As explained by one legal scholar, “if a local
22
government is regulating land use to protect the community and
23
the owner has the opportunity to sue for compensation based on
24
any taking that might result, the owner cannot sue to block
25
enforcement of the regulation under the Takings Clause.”
26
Echeverria, Eschewing Anticipatory Remedies for Takings: A
27
Response to Professor Merrill, 128 Harv. L. Rev. Forum 202, 204
28
15
John D.
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 16 of 23
1
(2015).3
2
compensation precede the taking.”
3
467 U.S. 986, 1016 (1984) (citation omitted).
4
Moreover, “[t]he Fifth Amendment does not require that
Ruckelshaus v. Monsanto Co.,
Thus, an allegation that a law operates as an illegal
5
taking because there was no just compensation is not ground to
6
void the law, as “the government is not prohibited from taking
7
private property; indeed, the eminent domain clause contemplates
8
that the government will take private property as needed for
9
public purposes, so long as it pays compensation.”
Bay View,
10
Inc. v. Ahtna, Inc., 105 F.3d 1281, 1284-85 (9th Cir. 1997)
11
(citing Evangelical Lutheran Church, 482 U.S. at 314).
12
Plaintiffs’ cited cases do not establish that a
13
preliminary injunction is available for a takings claim.
14
the cases involve California courts applying California law.
15
Plaintiffs cite Lingle, 544 U.S. at 528, though as discussed
16
above, that case actually stands for the proposition that
17
injunctive relief is generally not available for an alleged
18
taking.
19
City & County of San Francisco, 836 F. Supp. 707, 709 (N.D. Cal.
20
1993), where an injunction was granted based on a takings claim,
21
but that decision was reversed by the Ninth Circuit based on a
22
statute of limitations issue, 18 F.3d 1482 (9th Cir. 1994).
23
Most of
Plaintiffs also cite Golden Gate Hotel Association v.
Plaintiffs’ supplemental brief cites Babbitt v. Youpee,
24
519 U.S. 234 (1997), where Native Americans challenged a law
25
providing that certain small interests in Indian lands would
26
27
28
3
John D. Echeverria, the author of the quoted article,
is a professor at Vermont Law School, not to be confused with
counsel for defendants with the same name.
16
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 17 of 23
1
transfer (or “escheat”) to the tribe upon the death of the owner
2
of the interest if they did not generate at least $100 in income
3
to the owner in any one of the five years before it was due to
4
escheat.
5
plaintiffs’ position, it did not involve review a preliminary
6
injunction, but rather a summary judgment.
7
While that decision provides some support for
Moreover, the Court in Babbitt did not address the rule
8
repeated in numerous cases that injunctive relief is generally
9
not available for a takings claim, or why that rule did not
10
apply.
11
appropriate there because of the speculative nature of the
12
property that was taken--a future interest in land that may or
13
may not be lost depending on future circumstances--meaning that
14
the normal remedy of filing suit to recover the value of the lost
15
property was not a realistic remedy.
16
“extraordinary character” of the regulation, which “amounted to
17
the virtual abrogation of the right to pass on a certain type of
18
property.”
19
The Court may have found that an injunction was
The Court also noted the
Id. at 239-40.
Should plaintiffs succeed on their takings claim, their
20
only remedy is money damages, or compensation for the value of
21
the magazines which they are forced to surrender to the state.4
22
Accord United States v. Riverside Bayview Homes, Inc., 474 U.S.
23
121, 129 n.6 (1985) (stating that if a federal government action
24
operated as a taking of plaintiff’s property, the proper course
25
26
27
28
4
The court expresses no opinion at this time whether
this suit would be a proper vehicle for obtaining compensation
from the State, though the court notes that the First Amended
Complaint only seeks declaratory and injunctive relief with
respect to the Fifth Amendment takings claim. (See, e.g., First
Am. Compl. ¶¶ 79-80.)
17
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 18 of 23
1
was to initiate a suit for compensation in the Court of Federal
2
Claims).
3
showing their entitlement to a preliminary injunction based on
4
their takings claim.
5
C.
6
Accordingly, plaintiffs have not met their burden of
Vagueness Claim
The Fifth Amendment also provides that “[n]o person
7
shall . . . be deprived of life, liberty, or property, without
8
due process of law.”
9
violates due process when it deprives an individual of life,
U.S. Const. amend. V.
The government
10
liberty, or property pursuant to an “unconstitutionally vague”
11
criminal statute.
12
2557 (2015).
13
“fails to provide a person of ordinary intelligence fair notice
14
of what is prohibited, or is so standardless that it authorizes
15
or encourages seriously discriminatory enforcement.”
16
States v. Williams, 553 U.S. 285, 304 (2008).
17
Johnson v. United States, 135 S. Ct. 2551,
A statute is unconstitutionally vague when it
United
First, plaintiffs claim that the ban is vague because
18
SB 1446 and Proposition 63 created two different versions of
19
California Penal Code § 32406, and it is not clear which version
20
applies.
21
(1) honorably retired law enforcement officers, (2) historical
22
societies and museums, (3) persons who find and deliver large
23
capacity magazines to law enforcement agencies, (4) forensic
24
laboratories, (5) trustees and executors, and (6) persons in
25
lawful possession of a firearm acquired prior to 2000 that is
26
only compatible with a large capacity magazines--from the
27
prohibition on possession of these magazines.
28
Proposition 63 version only exempts honorably retired law
SB 1446 exempts six classes of individuals/entities--
18
In contrast, the
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 19 of 23
1
enforcement officers.
2
C (SB 1446 Version of Cal. Penal Code § 32406), and D
3
(Proposition 63 Version of Cal. Penal Code § 32406).)
4
view, it is not clear what conduct the ban prohibits, given these
5
dual versions of section 32406.
6
(See Pls.’ Req. for Judicial Notice, Exs.
In their
However, plaintiffs do not cite, and the court is
7
unaware of, any case that has held an enactment to be void for
8
vagueness because it conflicts with another enactment and it is
9
not clear which enactment controls.
The only case of which the
10
court is aware where that argument was made held that such
11
enactments were not void for vagueness.
12
F.3d 446, 469 (7th Cir. 1999) (holding that the question before
13
the court was whether one enactment impliedly repealed the other,
14
not whether the enactments are void for vagueness).
15
See Karlin v. Foust, 188
Even if the court were to depart from Karlin and
16
consider plaintiffs’ vagueness challenge on grounds of
17
conflicting enactments, that challenge would fail.
18
California law, where two conflicting versions of the same
19
statute are enacted at different times, the later-enacted version
20
controls.
21
Dist. 1997) (citing County of Ventura v. Barry, 202 Cal. 550, 556
22
(1927) and People v. Dobbins, 73 Cal. 257, 259 (1887)).
23
not beyond the capacity of individuals with ordinary intelligence
24
to look up the enactment dates of Proposition 63 and SB 1446 and
25
see that Proposition 63 was enacted after SB 1446.
26
Proposition 63 was passed after SB 1446, its version of
27
California Penal Code § 32406 is controlling.
28
court rejects plaintiffs’ claim that the large capacity magazine
Under
People v. Bustamante, 57 Cal. App. 4th 693, 701 (2d
19
It is
As
Accordingly, the
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 20 of 23
1
ban is unconstitutionally vague on account of the passage of both
2
SB 1446 and Proposition 63.
3
Second, plaintiffs contend that the ban is vague
4
because while it exempts possession for retired law enforcement
5
officers, and in the case of SB 1446, trustees or administrators
6
of estates, it does not exempt these individuals from prosecution
7
for manufacturing, importing, keeping for sale, offering for
8
sell, giving, lending, buying, or receiving large capacity
9
magazines.5
See Cal. Penal Code § 32310(a).
According to
10
plaintiffs, this “results in a paradoxical situation that retired
11
law enforcement officers [and trustees and executors] are
12
supposedly entrusted with the right to possess large-capacity
13
magazines,” but “cannot bring into the state, nor even receive
14
these magazines.”
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Docket No. 28-1 at 42-43.)
Given the court’s determination that the Proposition 63
5
In addition to this concern, plaintiffs contend that
absence of clarification from the California Department of
Justice as to a number of questions having to do with application
of the magazine ban—those having to do with disposal of
magazines, modification of magazines, and magazines which may
accommodate different size shells—raise additional “vagueness
concerns.” (See Docket No. 47 at 23-24.) The court declines to
consider such concerns in deciding plaintiffs’ request for a
preliminary injunction because the concerns were not raised in
plaintiffs’ moving papers. See Zamani v. Carnes, 491 F.3d 990,
997 (9th Cir. 2007) (“The district court need not consider
arguments raised for the first time in a reply brief.”) (citation
omitted). Even if the court were inclined to consider such
concerns, it is not persuaded that the concerns amount to
anything more than marginal questions existing alongside a
statute whose application is clear in the vast majority of
intended applications. See Cal. Teachers Ass’n v. State Bd. of
Educ., 271 F.3d 1141, 1151 (9th Cir. 2001) (“[U]ncertainty at a
statute’s margins will not warrant facial invalidation if it is
clear what the statute proscribes ‘in the vast majority of its
intended applications.’”) (quoting Hill v. Colorado, 530 U.S.
703, 733 (2000)).
20
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 21 of 23
1
version of the statute is controlling, SB 1446’s exemption for
2
possession of large capacity magazines by trustees or
3
administrators of estates is no longer in effect.
4
ban’s exemption for possession by retired law enforcement
5
officers, the court rejects plaintiffs’ contention that it is
6
“paradoxical” to allow these individuals to possess these
7
magazines but prohibit them from manufacturing, importing into
8
the state, keeping for sale, offering for sale, giving, lending,
9
buying, or receiving them.
Looking to the
It is entirely possible to possess a
10
large capacity magazine without engaging in those other
11
activities.
12
the ‘retired officer’ exemption to California Penal Code section
13
32310(a), this exemption does not support plaintiffs’ vagueness
14
claim.
15
Because there is no “paradox” in the application of
In sum, plaintiffs have not shown a likelihood of
16
success on the merits as to their vagueness claim.
17
the same reasons discussed above in connection with the Second
18
Amendment claim, plaintiffs have not shown that the balance of
19
hardships or public interest weigh in favor of granting a
20
preliminary injunction.
21
plaintiffs’ request for a preliminary injunction as to their
22
vagueness claim.
23
24
D.
Moreover, for
Accordingly, the court will deny
Overbreadth Claim
Plaintiffs argue that the large capacity magazine ban
25
is unconstitutionally overbroad because there is no evidence that
26
application of the ban to current owners of large capacity
27
magazines would further the objectives of reducing mass shootings
28
and the harm inflicted during those shootings.
21
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 22 of 23
1
First, the court is unaware of any cases applying the
2
overbreadth doctrine in the Second Amendment context.
3
States v. Chester, 628 F.3d 673, 688 (4th Cir. 2010) (Davis, J.,
4
concurring) (“[I]mporting the overbreadth doctrine . . . into the
5
Second Amendment context would be inappropriate.”); cf. United
6
States v. Salerno, 481 U.S. 739, 745 (1987) (“[W]e have not
7
recognized an ‘overbreadth’ doctrine outside the limited context
8
of the First Amendment.” (citation omitted)).
9
no reason for the court to expand the overbreadth doctrine to the
10
See United
Plaintiffs provide
Second Amendment.
11
Second, challenging a law on overbreadth grounds
12
requires a showing that the law prohibits “a substantial amount”
13
of constitutionally protected conduct.
14
Kroger, 622 F.3d 1202, 1208 (9th Cir. 2010).
15
show what constitutionally protected conduct the law
16
substantially prohibits.
17
overbroad because there is no evidence that current owners of
18
large capacity magazines “have ever been involved in mass
19
shootings, gun crimes, or in anything other than purely lawful
20
activities,” (Pls.’ Mot. 44).
21
not shown a likelihood of success on their Second Amendment claim
22
they are similarly unlikely to succeed on their claim that the
23
law prohibits a substantial amount of constitutionally protected
24
conduct.
25
Powell’s Books, Inc. v.
Plaintiffs fail to
Plaintiffs argue that the law is
However, because plaintiffs have
Further, for the reasons discussed above in connection
26
with the Second Amendment claim, plaintiffs have not shown that
27
the balance of hardships or public interest weigh in favor of
28
granting a preliminary injunction. Accordingly, the court will
22
Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 23 of 23
1
deny plaintiffs’ request for a preliminary injunction as to their
2
overbreadth claim.
3
IT IS THEREFORE ORDERED that plaintiffs’ Renewed Motion
4
for Issuance of Preliminary Injunction (Docket No. 28) be, and
5
the same hereby is, DENIED.
6
Dated:
June 29, 2017
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