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)

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Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 1 of 23 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 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. 27 28 1 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 2 of 23 1 ----oo0oo---- 2 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 3 of 23 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 6 of 23 1 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 7 of 23 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 8 of 23 1 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 9 of 23 1 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 10 of 23 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 11 of 23 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 12 of 23 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 13 of 23 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 14 of 23 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 Case 2:17-cv-00903-WBS-KJN Document 52 Filed 06/29/17 Page 15 of 23 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 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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