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,

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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’ Motion for Issuance of

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Preliminary Injunction.

(Docket No. 28.)

The court held a

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hearing on the request for a preliminary injunction on June 29,

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2017.

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I.

Factual and Procedural History

7

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 (“LCM”).1

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Although California had banned the purchase, sale, transfer,

11

receipt, or manufacture of such magazines since 2000, it did not

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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

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such as law enforcement officers, has been allowed to obtain new

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large capacity magazines since 2000.

18

Fyock v. City of
In effect,

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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32310, criminalizing the possession of large capacity magazines

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

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obtained.

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approved Proposition 63, which largely mirrors SB 1446.

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amended version of Section 32310 enacted by Proposition 63

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requires that anyone possessing a large capacity magazine either

Then, on November 8, 2016, the California electorate
The

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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 ten rounds.
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remove the magazine from the state, sell the magazine to a

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licensed firearms dealer, or surrender the magazine to a law

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enforcement agency for its destruction prior to July 1, 2017.

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Cal. Penal Code § 32310(d).

5

also provides that possession of a large capacity magazine as of

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July 1, 2017 constitutes an infraction or a misdemeanor

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punishable by a fine not exceed $100 per large capacity magazine

8

and/or imprisonment in a county jail not to exceed one year.

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§ 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.

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their complaint, plaintiffs filed a motion for a temporary

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restraining order and preliminary injunction on June 12, 2017 and

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a renewed motion on June 14, 2017.

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for a temporary restraining order after a hearing on June 16,

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2017 based on an insufficient showing of irreparable harm, given

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plaintiffs’ delay in filing suit and the fact that the court

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would hold a hearing on plaintiffs’ request for a preliminary

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injunction before the large capacity magazine ban took effect on

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July 1, 2017.

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supplemental briefs regarding plaintiffs’ request for a

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preliminary injunction on June 23, 2017.

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II. Discussion

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(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.”

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

28

to obtain a preliminary injunction, the moving party must
3

Mazurek v.
In order

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establish (1) it is likely to succeed on the merits, (2) it is

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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

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unconstitutional taking under the Fifth and Fourteenth

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Amendments, is void for vagueness, and is overbroad.

The court

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proceeds to examine plaintiffs’ showing with respect to each

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claim below.

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A.

Second Amendment Challenge

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1.

Likelihood of Success on the Merits

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To evaluate a Second Amendment claim, the court asks

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whether the challenged law burdens conduct protected by the

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Second Amendment, and if so, what level of scrutiny should be

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applied.

18

735 F.3d 1127, 1136 (9th Cir. 2013)).

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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

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people inside and outside of California up to this point have

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lawfully possessed large capacity magazines for lawful purposes.

24

See Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C.

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Cir. 2011) (“Heller II”) (finding that magazines holding more

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than ten rounds were in “common use”).

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that large capacity magazines are commonly possessed by law-

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abiding citizens for lawful purposes and have been legally
4

Indeed, there is evidence

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possessed by many Californians for many years, notwithstanding

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California’s ban on the transfer of such magazines since 2000.

3

(See Curcuruto Decl. ¶¶ 6-8 (citing estimate that 114 million

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magazines with eleven or more rounds were in consumer possession

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between 1990 and 2015, just under half of the overall 230 million

6

pistol and rifle magazines owned during that time); Pls.’ Request

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for Judicial Notice, Ex. A (Cal. Dep’t of Justice Finding of

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Emergency at 1) (“There are likely hundreds of thousands of

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large-capacity magazines in California at this time . . . . The

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Department therefore expects many gun owners to be affected by

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the new ban.”); Youngman Decl. ¶ 9 (large capacity magazines are

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commonly owned by millions of persons in the United States for

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lawful purposes including target shooting, competition, home

14

defense, collecting, and hunting).)

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Thus, notwithstanding California’s existing ban on the

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transfer of large capacity magazines, it appears that

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California’s ban on large capacity magazines burdens conduct

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protected by the Second Amendment.

19

(district court did not clearly err in finding that a regulation

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on large capacity magazines burdens conduct falling with the

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scope of the Second Amendment).

22

114, 135-37 (4th Cir. 2017) (en banc) (large capacity magazines

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are not protected by the Second Amendment because they are

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weapons most useful in military service).2

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26
27
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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.
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b.

2

Appropriate Level of Scrutiny

In determining what level of scrutiny applies to the

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ban on large capacity magazines, the court considers (1) how

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closely the law comes to the core of the Second Amendment right,

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which is self-defense, and (2) how severely, if at all, the law

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burdens that right.

7

735 F.3d at 1138).

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regulation does not implicate the core Second Amendment right or

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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

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right.

11

Francisco, 746 F.3d 953, 964 (9th Cir. 2014)).

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Id. at 998-99 (citing Jackson v. City & County of San

Here, the court finds that intermediate scrutiny is

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appropriate because “the prohibition of . . . large capacity

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magazines does not effectively disarm individuals or

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substantially affect their ability to defend themselves.”

16

v. District of Columbia, 670 F.3d 1244, 1262 (D.C. Cir. 2011)

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(“Heller II”); Fyock, 779 F.3d at 999 (quoting Heller II).

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ban may implicate the core of the Second Amendment because it

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restricts the ability of law-abiding citizens to possess large

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capacity magazines within their homes for self-defense.

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Fyock, 779 F.3d at 999.

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ability of law-abiding citizens to possess the ‘quintessential

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self-defense weapon’-–the handgun.

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possession of only a subset of magazines that are over a certain

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capacity.”

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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.

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Indeed, it appears that virtually every other court to

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examine large capacity magazine bans has found that intermediate
6

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scrutiny is appropriate, assuming these magazines are protected

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by the Second Amendment.

3

F.3d at 138-139; N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo,

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804 F.3d 242, 258-60 (2d Cir. 2015); Heller II, 670 F.3d at 1261-

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62; S.F. Veteran Police Officers Ass’n v. City & County of San

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Francisco, 18 F. Supp. 3d 997, 1002-04 (N.D. Cal. 2014).

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Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015)

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(upholding municipal ban on assault weapons and large capacity

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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

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substantially burden individuals’ ability to defend themselves,

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intermediate scrutiny is appropriate.

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c.

Application of Intermediate Scrutiny

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Intermediate scrutiny requires “(1) the government’s

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stated objective to be significant, substantial, or important;

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and (2) a reasonable fit between the challenged regulation and

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the asserted objective.”

19

Chovan, 735 F.3d at 1139).

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government’s regulation is the least restrictive means of

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achieving its interests.

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that the regulation “promotes a substantial government interest

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that would be achieved less effectively absent the regulation.”

24

Id. (citation omitted).

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government’s stated objective and the regulation, the court may

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consider legislative history as well as studies in the record or

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applicable case law.

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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

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courts “afford substantial deference to the predictive judgments

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of the legislature.”

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(citations omitted); see also Kolbe, 849 F.3d at 140 (court must

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give substantial deference to the legislature, because “it is the

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legislature’s job, not ours, to weigh conflicting evidence and

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make policy judgments”) (citations omitted).

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N.Y. State Rifle, 804 F.3d at 261

One stated objective of California’s large capacity

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magazine ban is to reduce the incidence and harm of mass

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shootings.

(Gordon Decl., Ex. 50 § 2, ¶ 11; § 3, ¶ 8.)

There

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can be no serious argument that this is not a substantial

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government interest, especially in light of several recent high

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profile mass shootings involving large capacity magazines,

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including the 2016 Orlando Pulse nightclub shooting, the 2015 San

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Bernardino shooting, the 2012 Aurora movie theater shooting, the

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2012 Sandy Hook school shooting, the 2011 Arizona shooting

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involving then-U.S. Representative Gabrielle Giffords, and the

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2007 Virginia Tech shooting, all of which resulted in multiple

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deaths and injuries.

19

Donohue Decl. ¶ 29.)

20

(See Webster Decl. ¶ 10; Graham Decl. ¶ 19;

Further, defendants have provided studies and expert

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analyses supporting their conclusion that California’s ban would

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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.)

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courts have found a reasonable fit between similar bans with

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similar stated objectives.

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(reasonable fit between assault weapon and LCM ban and interest

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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

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1000-01 (reasonable fit between LCM ban and interests in reducing

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the harm of intentional and accidental gun use and reducing

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violent crime); N.Y. State Rifle, 804 F.3d at 263-64 (reasonable

5

fit between assault weapon and LCM ban and interest in

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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

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shootings, or whether that can even be accomplished at all.

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order for there to be a reasonable fit between the objective

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sought to be achieved and the proposed solution, however, the

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solution need not be the best possible means of achieving the

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objective.

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only a reasonable fit, between the ban and the important

20

objective of easing enforcement of California’s existing ban on

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the purchase, sale, transfer, or importation of large capacity

22

magazines.

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In

Defendants are not required to show a perfect fit,

The prior ban did not prohibit possession, and there

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was no way for law enforcement to determine which magazines were

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“grandfathered” and which were illegally transferred or modified

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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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large capacity magazines will help address this enforcement

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issue.

3

2004 federal ban on large capacity magazines was lifted, the

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illegal importation of LCMs into California increased, giving

5

further impetus to California’s efforts to ease enforcement of

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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

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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

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the enactment of a ban.

14

Decl. ¶¶ 8-12.)

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show, or for the court to find, that the proposed ban will

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eliminate all gun violence in California, or that it would have

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prevented any of the past incidents of gun violence.

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the role of this court to judge the wisdom of the California

19

legislature in enacting the statutes at issue here.

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for this court to determine whether those duly enacted statutes

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pass constitutional muster under the test which the decisions of

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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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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.

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2.

6

Because of this reasonable fit, plaintiffs

Irreparable Injury, Balance of Hardships, and the
Public Interest

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Because plaintiffs have not met their burden of showing

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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

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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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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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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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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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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
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(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
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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
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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
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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
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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
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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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