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

Filing 74

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 2/6/2018 GRANTING #61 Defendants' Motion to Dismiss; Plaintiffs have twenty days from the date this Order is signed to file a Third Amended Complaint, if they can do so consistent with this Order. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 15 16 17 18 19 WILLIAM WIESE, an individual; JEERMIAH MORRIS, an individual; LANCE COWLEY, an individual; SHERMAN MACASTON, an individual; 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, 22 23 24 25 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. 26 27 2:17-903 WBS KJN MEMORANDUM & ORDER RE: MOTION TO DISMISS Plaintiffs, 20 21 Civ. No. ----oo0oo---- 28 1 1 Before the court is defendants’ Motion to dismiss 2 plaintiffs’ Second Amended Complaint. (Docket No. 61.) 3 court held a hearing on the Motion on February 5, 2018. 4 I. The Factual and Procedural History 5 This case concerns a challenge to California’s 6 prohibition on the possession of gun magazines that can hold more 7 than ten bullets, or “large capacity” magazines (“LCM”).1 8 Although California had banned the purchase, sale, transfer, 9 receipt, or manufacture of such magazines since 2000, it did not 10 ban the possession of these magazines. 11 Sunnyvale, 779 F.3d 991, 994 (9th Cir. 2015). 12 Californians were allowed to keep large capacity magazines they 13 had obtained prior to 2000, but no one, with a few exceptions 14 such as law enforcement officers, has been allowed to obtain new 15 large capacity magazines since 2000. 16 Fyock v. City of In effect, On July 1, 2016, California enacted Senate Bill 1446 17 (“SB 1446”), which amended California Penal Code § 32310, 18 criminalizing the possession of large capacity magazines as of 19 July 1, 2017, regardless of when the magazines were obtained. 20 Then, on November 8, 2016, the California electorate approved 21 Proposition 63, which largely mirrors SB 1446. 22 version of Section 32310 enacted by Proposition 63 requires that 23 anyone possessing a large capacity magazine either remove the 24 magazine from the state, sell the magazine to a licensed firearms 25 26 27 28 1 The amended Large capacity magazines are defined under California Penal Code § 16740 as any ammunition-feeding device with the capacity to accept more than ten rounds, though this section specifically excludes from this definition any “ammunition feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds.” 2 1 dealer, or surrender the magazine to a law enforcement agency for 2 its destruction prior to July 1, 2017. 3 32310(d). 4 Proposition 63 also provides that possession of a large capacity 5 magazine as of July 1, 2017 constitutes an infraction or a 6 misdemeanor punishable by a fine not to exceed $100 per large 7 capacity magazine and/or imprisonment in a county jail not to 8 exceed one year. 9 Cal. Penal Code § The amended version of Section 32310 enacted by Id. at § 32310(c). On April 28, 2017, plaintiffs filed the instant action 10 alleging that Section 32310 is unconstitutional. After the 11 original Complaint was amended, the court denied plaintiffs’ 12 request for a temporary restraining order and then denied 13 plaintiffs’ request for a preliminary injunction. 14 45, 52.) 15 that injunctive relief was not warranted because, among other 16 things, (1) the ban survived intermediate scrutiny under the 17 Second Amendment; (2) a complete ban on personal property deemed 18 by the state to be harmful to the public is likely not a taking 19 for public use requiring compensation; (3) the ban was not void 20 for vagueness because the version of the ban enacted by 21 Proposition 63 controlled, as it was enacted after the passage of 22 SB 1446; (4) the ban was not void for vagueness because it is not 23 paradoxical to exempt possession of large capacity magazines for 24 certain individuals while not allowing these individuals to 25 manufacture, import, sell, transfer, or receive the magazines; 26 and (5) the ban was not unconstitutionally overbroad because the 27 overbreadth doctrine does not apply in the Second Amendment 28 context and the law does not prohibit a substantial amount of (Docket Nos. In denying a preliminary injunction, the court held 3 1 constitutionally protected conduct. 2 injunctive relief is generally not available for takings claims 3 and that plaintiffs had not shown that the balance of hardships 4 or public interest weighed in favor of injunctive relief.2 The court further noted that 5 Plaintiffs then filed their Second Amended Complaint 6 (“SAC”), which expands on their previously asserted claims and 7 which adds (1) an Equal Protection claim under the U.S. and 8 California Constitutions, based on the exemption for large 9 capacity magazines used as props in movies and television; (2) an 10 allegation that the ban operates as a taking under the California 11 Constitution; and (3) allegations regarding SB 1446’s alleged 12 “preamendment” of Proposition 63 in support of their claim that 13 the ban is void for vagueness because of the differences in the 14 two versions of the ban. 15 II. Discussion 16 A. 17 (Docket No. 59.) Second Amendment Challenge To evaluate a Second Amendment claim, the court asks 18 whether the challenged law burdens conduct protected by the 19 Second Amendment, and if so, what level of scrutiny should be 20 applied. 21 735 F.3d 1127, 1136 (9th Cir. 2013)). 22 Fyock, 779 F.3d at 996 (citing United States v. Chovan, a. 23 Burden on Conduct Protected by the Second Amendment 24 Plaintiffs have alleged, and there is no dispute in 25 26 27 28 2 Soon after the court’s order, the ban on possession of grandfathered large capacity magazines was enjoined by Judge Roger T. Benitez in Duncan v. Becerra, 265 F. Supp. 3d 1106 (S.D. Cal. 2017). Judge Benitez’s injunction remains in effect as of the date of this Order. 4 1 this case, that many people inside and outside of California have 2 for many years lawfully possessed large capacity magazines for 3 purposes such as self-defense, target shooting, and hunting. 4 (See SAC ¶¶ 32-34, 46, 48-49, 57; see also Heller v. District of 5 Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011) (“Heller II”) 6 (finding that magazines holding more than ten rounds were in 7 “common use”)). 8 on the purchase, sale, transfer, receipt, or manufacture of such 9 magazines since 2000, plaintiffs have alleged that California’s 10 ban on large capacity magazines burdens conduct protected by the 11 Second Amendment. 12 not clearly err in finding that a regulation on large capacity 13 magazines burdens conduct falling within the scope of the Second 14 Amendment). 15 Cir. 2017) (en banc), cert. denied, 138 S. Ct. 469 (2017) (large 16 capacity magazines are not protected by the Second Amendment 17 because they are weapons most useful in military service).3 18 Thus, notwithstanding California’s existing ban But see Kolbe v. Hogan, 849 F.3d 114, 135-37 (4th b. 19 See Fyock, 779 F.3d at 998 (district court did Appropriate Level of Scrutiny In determining what level of scrutiny applies to the 20 ban on large capacity magazines, the court considers (1) how 21 closely the law comes to the core of the Second Amendment right, 22 which is self-defense, and (2) how severely, if at all, the law 23 burdens that right. 24 735 F.3d at 1138). 25 26 27 28 3 Fyock, 779 F.3d at 998-99 (citing Chovan, Intermediate scrutiny is appropriate if the 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 1 regulation does not implicate the core Second Amendment right or 2 if the regulation does not place a substantial burden on that 3 right. 4 Francisco, 746 F.3d 953, 964 (9th Cir. 2014)). 5 Id. at 998-99 (citing Jackson v. City & County of San Here, as discussed in the court’s prior order, 6 intermediate scrutiny is appropriate because “the prohibition of 7 . . . large capacity magazines does not effectively disarm 8 individuals or substantially affect their ability to defend 9 themselves.” See Heller II, 670 F.3d at 1262; Fyock, 779 F.3d at 10 999 (quoting Heller II). The ban may implicate the core of the 11 Second Amendment because it restricts the ability of law-abiding 12 citizens to possess large capacity magazines within their homes 13 for self-defense. 14 “does not affect the ability of law-abiding citizens to possess 15 the ‘quintessential self-defense weapon’-–the handgun. 16 [it] restricts possession of only a subset of magazines that are 17 over a certain capacity.” 18 Heller, 554 U.S. 570, 629 (2008) (“Heller I”)). See Fyock, 779 F.3d at 999. However, the ban Rather, Id. (quoting District of Columbia v. 19 Indeed, virtually every other court to examine large 20 capacity magazine bans has found that intermediate scrutiny is 21 appropriate, assuming these magazines are protected by the Second 22 Amendment. 23 139; N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 24 242, 258-60 (2d Cir. 2015); Heller II, 670 F.3d at 1261-62; S.F. 25 Veteran Police Officers Ass’n v. City & County of San Francisco, 26 18 F. Supp. 3d 997, 1002-04 (N.D. Cal. 2014). 27 v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) (upholding 28 municipal ban on assault weapons and large capacity magazines but See Fyock, 779 F.3d at 999; Kolbe, 849 F.3d at 138- 6 But see Friedman 1 declining to determine what level of scrutiny applied).4 2 Accordingly, because California’s ban does not 3 substantially burden individuals’ ability to defend themselves, 4 intermediate scrutiny is appropriate. 5 c. Application of Intermediate Scrutiny 6 Intermediate scrutiny requires “(1) the government’s 7 stated objective to be significant, substantial, or important; 8 and (2) a reasonable fit between the challenged regulation and 9 the asserted objective.” Fyock, 779 F.3d at 1000 (quoting 10 Chovan, 735 F.3d at 1139). This test does not require that the 11 government’s regulation is the least restrictive means of 12 achieving its interests. 13 that the regulation “promotes a substantial government interest 14 that would be achieved less effectively absent the regulation.” 15 Id. (citation omitted). 16 government’s stated objective and the regulation, the court may 17 consider legislative history as well as studies in the record or 18 applicable case law. 19 support” the state’s rationale, and in making this determination, 20 courts “afford substantial deference to the predictive judgments 21 of the legislature.” 22 (citations omitted); see also Kolbe, 849 F.3d at 140 (court must Rather, the government need only show In reviewing the fit between the Id. The evidence need only “fairly N.Y. State Rifle, 804 F.3d at 261 23 24 25 26 27 28 4 The court recognizes plaintiffs’ allegation that magazines are an integral part of firearms. However, the fact that plaintiffs or all Californians may not be able to use certain magazines, or even certain firearms for which large capacity magazines are the only available magazines, does not prevent residents of California from defending themselves using magazines capable of holding no more than ten rounds, and handguns compatible with these magazines. 7 1 give substantial deference to the legislature, because “it is the 2 legislature’s job, not ours, to weigh conflicting evidence and 3 make policy judgments”) (citations omitted). 4 One stated objective of California’s large capacity 5 magazine ban is to reduce the incidence and harm of mass 6 shootings.5 7 at 164 § 2, ¶¶ 11-12; § 3, ¶ 8 (Docket No. 61-3).)6 8 no serious argument that this is not a substantial government 9 interest, especially in light of the mass shootings involving (Defs.’ Request for Jud. Notice Gordon Decl., Ex. B There can be 10 large capacity magazines, including the 2012 Aurora movie theater 11 shooting and the 2012 Sandy Hook school shooting, which were 12 discussed in Proposition 63. 13 (Id.) Further, multiple courts have found a reasonable fit 14 between similar bans with similar stated objectives. 15 849 F.3d at 139-41 (reasonable fit between assault weapon and LCM 16 17 18 19 20 21 22 23 24 25 26 27 28 See Kolbe, 5 On plaintiffs’ request for a preliminary injunction, the court also considered the government’s stated objective that the ban on possession was intended to ease enforcement of California’s existing ban on the purchase, sale, transfer, receipt, or manufacture of large capacity magazines. The text of Proposition 63 does not specifically refer to this objective and the court does not consider it in deciding the instant Motion to Dismiss. 6 The court takes judicial notice of the text of Senate Bill 1446, Proposition 63, the California Official Voter Information Guide for Proposition 63, the California Department of Justice Finding of Emergency and Notice of Proposed Emergency Action regarding Proposition 63, the version of California Penal Code § 32406 enacted by SB 1446, and the version of § 32406 enacted by Proposition 63, as the text of these documents is not subject to reasonable dispute, the documents were previously attached to pleadings in this case, and the court may take judicial notice of legislative history reports when ruling on a motion to dismiss. See, e.g., In re Google, Inc. Gmail Litig., No. 13-MD-02430-LHK, 2013 WL 5423918, *6 (N.D. Cal. Sept. 26, 2013) (citations omitted). 8 1 ban and interest in reducing harm caused by criminals and 2 preventing unintentional misuse by otherwise law-abiding 3 citizens); Fyock, 779 F.3d at 1000-01 (reasonable fit between LCM 4 ban and interests in reducing the harm of intentional and 5 accidental gun use and reducing violent crime); N.Y. State Rifle, 6 804 F.3d at 263-64 (reasonable fit between assault weapon and LCM 7 ban and interest in controlling crime); Heller II, 670 F.3d at 8 1262-64 (reasonable fit between assault weapon and LCM ban and 9 interest in protecting police officers and controlling crime); 10 S.F. Veteran Police Officers, 18 F. Supp. 3d at 1003-04 11 (reasonable fit between LCM ban and goals of protecting public 12 safety and reducing injuries from criminal use of LCMs). 13 As discussed in the court’s order denying a preliminary 14 injunction, reasonable minds will differ as to the best way to 15 reduce the incidence and harm of mass shootings. 16 defendants are only required to show a reasonable fit between the 17 ban and this important objective, and courts give substantial 18 deference to the predictive judgments of the voters that passed 19 Proposition 63. 20 804 F.3d at 261 (citations omitted); Kolbe, 849 F.3d at 140. 21 Thus, notwithstanding plaintiffs’ allegations that the ban will 22 not in fact reduce the incidence and harm of mass shootings, 23 California’s stated interest of reducing the incidence and harm 24 of mass shootings “would be achieved less effectively absent the 25 regulation,” Fyock, 779 F.3d at 1000, and there is a reasonable 26 fit between the ban and California’s important objectives. 27 Because of this reasonable fit, plaintiffs have not sufficiently 28 alleged that the large capacity magazine ban fails intermediate However, See Fyock, 779 F.3d at 1000; N.Y. State Rifle, 9 1 scrutiny, and the court will dismiss the Second Amendment claim. 2 See, e.g., Mahoney v. Sessions, 871 F.3d 873, 883 (9th Cir. 2017) 3 (affirming dismissal of Second Amendment claim because the policy 4 at issue survived intermediate scrutiny and was therefore 5 constitutional). 6 B. 7 Takings Clause/Due Process Challenge The Fifth Amendment prohibits the taking of private 8 property for public use without just compensation. 9 amend. V. U.S. Const. The Takings Clause prohibits both “physical” takings 10 and “regulatory” takings. Lingle v. Chevron U.S.A. Inc., 544 11 U.S. 528, 537-38 (2005). A per se physical taking occurs where 12 the government physically invades or takes title to property 13 either directly or by authorizing someone else to do so, while a 14 per se regulatory taking occurs where a regulation of private 15 property is “so onerous that its effect is tantamount to a direct 16 appropriation or ouster.” 17 Corp., 458 U.S. 419, 426 (1982); Lingle, 544 U.S. at 537-38. Loretto v. Teleprompter Manhattan CATV 18 While the Takings Clause of the California Constitution 19 does “protect[] a somewhat broader range of property values than” 20 its federal counterpart, the two clauses have generally been 21 interpreted the same by the California Supreme Court. 22 Remo Hotel, L.P. v. City & County of San Francisco, 27 Cal. 4th 23 643, 664 (2002) (noting that art. I § 19 of the California 24 Constitution includes damage to property, but that aside from 25 this difference, “we appear to have construed the clauses 26 congruently”) (citations and internal punctuation omitted); 27 Customer Co. v. City of Sacramento, 10 Cal. 4th 368, 379–80 28 (1995) (“It seems apparent that the addition of the words ‘or 10 See San 1 damaged’ to the 1879 [California] Constitution was intended to 2 clarify that application of the just compensation provision . . . 3 encompasses special and direct damage to adjacent property 4 resulting from the construction of public improvements” and 5 “[t]here is nothing that indicates the provision was intended to 6 expand compensation outside the traditional realm of eminent 7 domain . . . .”). 8 9 Plaintiffs argue that the magazine ban operates as an unconstitutional taking under the Fifth and Fourteenth Amendments 10 and the California Constitution because they will have to 11 physically turn over their magazines for destruction or, in the 12 alternative, they will be completely deprived of all beneficial 13 use of their magazines, without just compensation. 14 Notwithstanding plaintiffs’ allegations, California’s 15 large capacity magazine ban does not operate as a physical 16 taking. 17 magazines to law enforcement – they may alternatively sell the 18 magazines to licensed gun dealers, remove them from the state, or 19 permanently modify the magazines so that they no longer accept 20 more than 10 rounds. 21 option, such as the alleged lack of a market for these magazines, 22 the burden in removing these magazines from the state, or the 23 lack of guidance on what constitutes a permissible permanent 24 modification does not transform the regulation into a physical 25 taking. 26 permanently modifying a magazine to accept no more than ten 27 rounds “destroys the functionality” of the magazine, given that 28 plaintiffs do not allege that owners of these magazines will not The ban does not require that owners turn over their The impracticality of any particular Nor does the court accept plaintiffs’ assertion that 11 1 be able to use their modified magazines, which would then simply 2 have a lower capacity than before the modification.7 3 these alternatives to turning the magazines over to law 4 enforcement, plaintiffs do not plausibly allege that the ban 5 operates as government appropriation of private property for 6 government or public use. 7 Because of Nor does the large capacity magazine ban operate as a 8 regulatory taking, for similar reasons. In the context of real 9 property, the Supreme Court has explained that a regulation does 10 not operate as a compensable taking unless the regulation 11 “completely deprive[s] an owner of all economically beneficial 12 use of her property.” 13 S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)) (internal 14 punctuation omitted).8 Lingle, 544 U.S. at 528 (citing Lucas v. Because owners may sell their magazines 15 7 16 17 18 19 20 21 22 23 24 25 26 27 28 The court similarly rejects plaintiffs’ assertion that requiring large capacity magazines owners to modify the magazine to allow fewer than 11 rounds constitutes “damage” within the meaning of the California Constitution’s taking clause, given the California Supreme Court’s pronouncements that takings under the United States Constitution and the California Constitution are generally equivalent, notwithstanding the addition of the word “damage” in the California Constitution, which was intended to cover damage to adjacent property resulting from the construction of public improvements. See San Remo Hotel, 27 Cal. 4th at 664; Customer Co., 10 Cal. 4th at 379–80. 8 Contrary to plaintiffs’ assertion, it is not clear that this rule applies in the context of personal property. See Lucas, 505 U.S. at 1027-28 (“[I]n the case of personal property, by reason of the State’s traditionally high degree of control over commercial dealings, [o]ne ought to be aware of the possibility that a new regulation might even render his property economically worthless (at least if the property’s only economically productive use is sale or manufacture for sale).”). For the purposes of this motion, however, the court assumes, without deciding, that the Lucas court’s “beneficial use” test applies in the context of personal property. 12 1 to licensed dealers or remove them from the state, or even retain 2 the magazines if they are permanently modified to accept fewer 3 than 11 rounds, plaintiffs have not plausibly alleged that the 4 large capacity magazine ban completely deprives them of all 5 economically beneficial use of their property.9 6 plaintiffs have not sufficiently alleged that California’s large 7 capacity magazine ban operates as a taking requiring just 8 compensation under the Fifth and Fourteenth Amendments and the 9 California Constitution, and the court will dismiss Count II of 10 11 Accordingly, the Second Amended Complaint.10 C. 12 Vagueness Claims11 The Fifth Amendment also provides that “[n]o person 13 shall . . . be deprived of life, liberty, or property, without 14 due process of law.” U.S. Const. amend. V. The government 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Further, plaintiffs have not plausibly alleged that the large capacity magazine ban operates as a partial regulatory taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978), given the alternatives for disposal or modification, the state’s substantial interest, and the Second Amended Complaint’s absence of any plausible facts that the ban interferes with plaintiffs’ distinct investment-backed expectations. 10 Because the court determines that the large capacity magazine ban does not operate as a physical or regulatory taking given the options for disposal or modification, it does not decide whether a complete ban on personal property deemed harmful by the state may be a compensable taking, notwithstanding the court’s prior discussion in its order denying a preliminary injunction. 11 Plaintiffs claim the large capacity magazine ban is void for vagueness on multiple grounds, which are alleged in Count III and Count IV. The court discusses all of plaintiffs’ vagueness contentions in this section. 13 1 violates due process when it deprives an individual of life, 2 liberty, or property pursuant to an unconstitutionally vague 3 criminal statute. 4 2556-57 (2015). 5 “fails to provide a person of ordinary intelligence fair notice 6 of what is prohibited, or is so standardless that it authorizes 7 or encourages seriously discriminatory enforcement.” 8 States v. Williams, 553 U.S. 285, 304 (2008). 9 Johnson v. United States, 135 S. Ct. 2551, A statute is unconstitutionally vague when it United Plaintiffs claim that the large capacity magazine ban 10 is void for vagueness on multiple grounds: (1) SB 1446 and 11 Proposition 63 created two different versions of California Penal 12 Code § 32406, and it is not clear which version applies;12 (2) the 13 ban exempts possession by certain individuals but does not allow 14 such individuals to give, receive, or bring these magazines into 15 the state; and (3) the options for compliance with the ban, other 16 than turning the magazine over to the state, are not practical 17 and have not been properly defined.13 18 19 20 21 22 23 24 12 SB 1446 exempts six classes of individuals/entities-(1) honorably retired law enforcement officers, (2) historical societies and museums, (3) persons who find and deliver large capacity magazines to law enforcement agencies, (4) forensic laboratories, (5) trustees and executors, and (6) persons in lawful possession of a firearm acquired prior to 2000 that is only compatible with a large capacity magazine--from the prohibition on possession of these magazines. In contrast, the Proposition 63 only exempts honorably retired law enforcement officers. 13 25 26 27 28 The Second Amended Complaint also contains a brief allegation that it is unclear whether a magazine is prohibited by the ban where the magazine accepts different types of ammunition and is capable of holding more than ten rounds of one type of ammunition, but the firearm for which the magazine is used does not accept that ammunition. However, even if the magazine holds less than 11 rounds when used with a particular firearm, as 14 1 As discussed by the court in its order denying a 2 preliminary injunction, plaintiffs do not cite, and the court is 3 unaware of, any case that has held an enactment to be void for 4 vagueness because it conflicts with another enactment and it is 5 not clear which enactment controls. 6 court is aware where that argument was made held that such 7 enactments were not void for vagueness. 8 F.3d 446, 469 (7th Cir. 1999) (holding that the question before 9 the court was whether one enactment impliedly repealed the other, The only case of which the See Karlin v. Foust, 188 10 not whether the enactments are void for vagueness). 11 under California law, where two conflicting versions of the same 12 statute are enacted at different times, the later-enacted version 13 controls. 14 Dist. 1997) (citing County of Ventura v. Barry, 202 Cal. 550, 556 15 (1927) and People v. Dobbins, 73 Cal. 257, 259 (1887)). 16 Moreover, People v. Bustamante, 57 Cal. App. 4th 693, 701 (2d Plaintiffs argue that the “later-in-time” rule is 17 merely a presumption and that California law has a seemingly 18 conflicting presumption that “absent clear evidence to the 19 contrary, the later enactment of a law is not intended to repeal 20 or supplant earlier laws on the same subject and instead both 21 statutes are intended to be enforced.” 22 No. 71) (citing People v. Carter, 131 Cal. App. 177, 181 (1933); 23 W. Mobilehome Ass’n v. County of San Diego, 16 Cal. App. 3d 941, 24 948 (4th Dist. 1971).) 25 26 27 28 (Mot. Opp’n 46 (Docket However, plaintiffs have not sufficiently alleged why stated by Cal. Penal Code § 16740, if the magazine “has a capacity to accept more than 10 rounds,” it is prohibited under the plain language of the statute, and the ban is not void for vagueness based on this alleged ambiguity. 15 1 the normal presumption that a later enacted version of a law 2 controls does not apply. 3 explain that a later enacted statute supersedes the earlier 4 statute if either (1) it is clear that the later statute is 5 intended as a complete revision or substitute for the earlier 6 statute, or (2) if the “object or purpose of the quasi-repealing 7 statute is identical with that of the statute to be so repealed” 8 or there is a “real, or at least apparent, conflict or 9 inconsistency between the two statutes.” The cases relied on by plaintiffs See Carter, 131 Cal. 10 App. at 181; W. Mobilehome, 16 Cal. App. 3d at 948. 11 Proposition 63’s omission of various exceptions for possession, 12 as well as a harsher penalty for noncompliance,14 shows that the 13 object of the two versions of the ban are identical and that the 14 versions are inconsistent, and thus the later enacted version, 15 the version enacted by Proposition 63, is controlling. 16 Here, Moreover, the Voter Information Guide attached to 17 Proposition 63 included a legislative analysis explaining that 18 “recently enacted law” beginning July 2017, which obviously 19 refers to SB 1446, exempts various individuals, and that 20 “Proposition 63 eliminates several of these exemptions,” and 21 “increases the maximum penalty for possessing large capacity 22 magazines.” 23 voters were told before they passed Proposition 63 that (Mot. Ex. B at 87.) In other words, California 24 14 25 26 27 28 SB 1446 provided that possession of a large capacity magazine in violation of the statute constituted an infraction punishable by fine, while Proposition 63 provided that possession in violation of the statute constitutes an infraction punishable by fine or a misdemeanor punishable by a fine, imprisonment in a county jail not to exceed one year, or both. 16 1 Proposition 63 would replace the version of the large capacity 2 magazine ban enacted by SB 1446, such that it is clear that 3 Proposition 63 was intended to replace SB 1446’s version of the 4 ban.15 5 sufficiently pled that the large capacity magazine ban is 6 unconstitutionally vague on account of the passage of both SB 7 1446 and Proposition 63. 8 Under these circumstances, plaintiffs have not Plaintiffs once again allege that the large capacity 9 magazine ban is vague because (1) it is an “absurdity” to exempt 10 possession for retired law enforcement officers, and in the case 11 of SB 1446, certain other individuals, while prohibiting them 12 from bringing such magazines into the state or giving or 13 receiving them, and (2) the options for disposal, with the 14 exception of turning the magazines over to the state, are 15 “illusory.” 16 of the preliminary injunction, any ambiguity on these issues are 17 at most marginal questions regarding a statute whose application (SAC ¶¶ 95-101.) As discussed in the court’s denial 18 19 20 21 22 23 24 25 26 27 28 15 Further, plaintiffs’ “preamendment” argument, that SB 1446 “preamended” Proposition 63, is not persuasive because neither the text nor the legislative history of SB 1446 discussed anything about preamending Proposition 63, notwithstanding the statement of the California Department of Justice in the Finding of Emergency, which was later withdrawn, that SB 1446 was intended to preamend Proposition 63. Notably, the California Legislature included express language in a related bill that the bill would amend the Safety for All Act of 2016 if the Act was enacted by voters. See 2016 Cal. Stats. ch. 55 (SB 1235) (preamending Proposition 63’s requirements regarding the sale of ammunition). The fact that this language was omitted from SB 1446 tends to show that while the California Legislature was aware of the possible future passage of Proposition 63, SB 1446 did not preamend Proposition 63 – the legislature intended to ban possession of large capacity firearms regardless of whether Proposition 63 passed. 17 1 is clear in the vast majority of intended applications. 2 Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1151 (9th 3 Cir. 2001) (“[U]ncertainty at a statute’s margins will not 4 warrant facial invalidation if it is clear what the statute 5 proscribes ‘in the vast majority of its intended applications.’”) 6 (quoting Hill v. Colorado, 530 U.S. 703, 733 (2000)). 7 See Cal. Further, the court once again rejects plaintiffs’ 8 contention that it is absurd to allow these individuals to 9 possess these magazines but prohibit them from manufacturing, 10 importing into the state, keeping for sale, offering for sale, 11 giving, lending, buying, or receiving them. 12 possible to possess a large capacity magazine without engaging in 13 those other activities. 14 plaintiffs have cited no authority holding, that a statute is 15 unconstitutionally vague where one or more methods of compliance 16 are impractical but another method of compliance is not 17 impractical. 18 in seeking to sell their magazines to a licensed gun dealer or 19 remove them from the state is not grounds to invalidate the ban 20 as unconstitutionally vague, when it is clear that individuals 21 may comply with the ban by surrendering them to a law enforcement 22 agency for destruction. 23 It is entirely Moreover, the court is unaware of, and Any difficulty plaintiffs or the public might have Because plaintiffs have not sufficiently alleged that 24 the large capacity magazine ban is void for vagueness, the court 25 will dismiss plaintiffs’ vagueness claims in Count III and Count 26 IV. 27 28 D. Overbreadth Claim Plaintiffs allege that the large capacity magazine ban 18 1 is unconstitutionally overbroad because there is no evidence that 2 application of the ban to current owners of large capacity 3 magazines would further the objectives of reducing mass shootings 4 and the harm inflicted during those shootings, as well as making 5 the current regulations less difficult to enforce. 6 (SAC ¶ 103.) However, as the court discussed on plaintiffs’ Motion 7 for Preliminary Injunction, the court is unaware of any cases 8 applying the overbreadth doctrine in the Second Amendment 9 context, and plaintiffs have provided no authority compelling the 10 court to expand the overbreadth doctrine to the Second Amendment. 11 See United States v. Salerno, 481 U.S. 739, 745 (1987) (“[W]e 12 have not recognized an ‘overbreadth’ doctrine outside the limited 13 context of the First Amendment.” (citation omitted)); Kachalsky 14 v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012) 15 (“Overbreadth challenges are generally limited to the First 16 Amendment context.”); United States v. Chester, 628 F.3d 673, 688 17 (4th Cir. 2010) (Davis, J., concurring) (“[I]mporting the 18 overbreadth doctrine . . . into the Second Amendment context 19 would be inappropriate.”).16 20 21 22 23 24 25 26 27 28 16 Plaintiffs’ cited cases are not to the contrary. In Powell’s Books, Inc. v. Kroger, 622 F.3d 1202, 1207 (9th Cir. 2010), a bookstore and other plaintiffs brought an overbreadth challenge to Oregon’s law criminalizing the provision of sexually explicit material to minors, where the court found the statute “swe[pt] up a host of material entitled to constitutional protection” under the First Amendment. The other two cases cited by plaintiffs involved both vagueness and overbreadth challenges but the courts addressed only the vagueness claims. While the petitioner in Phelps v. United States, 831 F.2d 897, 898 (9th Cir. 1987), brought both a vagueness and overbreadth challenge to a federal statute regarding the release of persons adjudged not guilty by reason of insanity, the court addressed only the vagueness argument, finding the statute was not unconstitutionally vague because the standard set forth in the 19 1 Moreover, challenging a law on overbreadth grounds 2 requires a showing that the law prohibits “a substantial amount” 3 of constitutionally protected conduct, Powell’s Books, Inc. v. 4 Kroger, 622 F.3d 1202, 1208 (9th Cir. 2010), and plaintiffs fail 5 to allege what constitutionally protected conduct the law 6 substantially prohibits. 7 sufficiently allege that the law violates the Second Amendment, 8 they have similarly failed to sufficiently allege that the law 9 prohibits a substantial amount of constitutionally protected 10 conduct. 11 Because plaintiffs have failed to overbreadth claim. 12 E. 13 Accordingly, the court will dismiss plaintiffs’ Equal Protection Claim Plaintiffs’ final claim is that the large capacity 14 magazine ban violates the Equal Protection Clause of the U.S. 15 Constitution and the California Constitution because it exempts 16 the use, purchase, or possession of large capacity magazines for 17 use solely as a prop for motion picture, television, or video 18 production, which favors actors and other individuals affiliated 19 with them over other California residents and visitors. 20 107-115.) 21 (SAC ¶¶ The Equal Protection Clause of the Fourteenth Amendment 22 23 24 25 26 27 28 statute was not too subjective and was applied regularly by judges in a variety of contexts. Similarly, the defendant in United States v. Rodriguez-DeHaro, 192 F. Supp. 2d 1031, 1038-39 (E.D. Cal. 2002) (Wanger, J.), challenged an indictment which was based in part on his prior conviction under a California domestic violence statute, raising both overbreadth and vagueness arguments, but the court specifically addressed only the vagueness argument, finding that the California statute’s language was “capable of being understood by a person of ordinary intelligence.” (citation omitted). 20 1 “directs that all persons similarly circumstanced shall be 2 treated alike.” 3 and internal punctuation omitted). 4 scrutiny where a law “targets a suspect class or burdens the 5 exercise of a fundamental right,” but if the law “does not 6 concern a suspect or semi-suspect class or a fundamental right,” 7 the court applies rational basis review, asking whether the law 8 “is rationally-related to a legitimate government interest.” 9 Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir. Plyer v. Doe, 457 U.S. 202, 216 (1982) (citation The court applies strict 10 2002) (citations omitted). 11 burden the Second Amendment, that law is subject to rational 12 basis review under the Equal Protection Clause. 13 681 F.3d 1041, 1043 n.2 (9th Cir. 2012) (rational basis review 14 applied to plaintiffs’ equal protection challenge to county 15 ordinance prohibiting possession of firearms on county property, 16 “because the ordinance does not classify shows or events on the 17 basis of a suspect class, and because we hold that the ordinance 18 does not violate either the First or Second Amendment”). 19 Where a law does not impermissibly Nordyke v. King, Under rational basis review, the court asks whether the 20 ordinance is rationally related to a legitimate government 21 interest, and statutes are generally presumed valid. 22 Weekly, 298 F.3d at 1047; Fields v. Legacy Health Sys., 413 F.3d 23 943, 955 (9th Cir. 2005). 24 legislative arrangement to negative every conceivable basis which 25 might support it,” and the classification “must be upheld against 26 equal protection challenge if there is any reasonably conceivable 27 state of facts that could provide a rational basis for the 28 classification.” Honolulu The burden is on the one attacking the Heller v. Doe, 509 U.S. 312, 319-20 (1993) 21 1 (internal punctuation omitted). 2 Equal protection claims under the U.S. Constitution are 3 generally analyzed the same as equal protection claims under the 4 California Constitution, and the rational basis test under 5 California law is no more rigorous than under federal law. 6 Walgreen Co. v. City and County of San Francisco, 185 Cal. App. 7 4th 424, 434 n.7 (1st Dist. 2010); Serrano v. Priest, 18 Cal.3d 8 728, 763 (1976). 9 See California’s exemption for use of large capacity 10 magazines as props for motion picture, television, or video 11 production does not involve a suspect class, and the court has 12 already determined that California’s ban survives intermediate 13 scrutiny under the Second Amendment. 14 applies. 15 723 F.3d 160, 170 n.19 (2d Cir. 2013) (“[P]laintiffs should not 16 be allowed to use the Equal Protection Clause ‘to obtain review 17 under a more stringent standard’ than the standard applicable to 18 their Second Amendment claim. . . . Put another way, an Equal 19 Protection claim that is based on the alleged burdening of one’s 20 Second Amendment rights should not be reviewed in isolation; 21 whether one’s Second Amendment rights are impermissibly 22 ‘burdened’ is necessarily informed by the underlying Second 23 Amendment analysis.”) (citation omitted); Nat’l Rifle Ass’n of 24 Am. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 25 F.3d 185, 211-12 (5th Cir. 2012) (federal laws banning handgun 26 sales to individuals under 21 were subject to rational basis 27 review because the laws did not impermissibly interfere with 28 Second Amendment rights and because age was not a suspect Accordingly, rational basis See Nordyke, 681 F.3d at 1043 n.2; Kwong v. Bloomberg, 22 1 classification); Hightower v. City of Boston, 693 F.3d 61, 83 2 (1st Cir. 2012) (“Given that the Second Amendment challenge 3 fails, the equal protection claim is subject to rational basis 4 review.”). 5 Applying rational basis review, plaintiffs have not 6 shown that there is no rational basis for California’s exemption 7 for television, video, and movie props. 8 for certain why this exemption was included. 9 California electorate could have rationally believed that large The court cannot know Nevertheless, the 10 capacity magazines used solely as props were not at risk of being 11 used in mass shootings and that such an exception would benefit 12 an important sector of the California economy. 13 exemption survives rational basis review, and plaintiffs have not 14 sufficiently alleged that the exemption violates the Equal 15 Protection Clause of either the U.S. or California Constitution. 16 The court will therefore dismiss Count V. Thus, the 17 IT IS THEREFORE ORDERED that defendants’ Motion to 18 Dismiss (Docket No. 61) be, and the same hereby is, GRANTED. 19 Plaintiffs have twenty days from the date this Order is signed to 20 file a Third Amended Complaint, if they can do so consistent with 21 this Order. 22 Dated: February 6, 2018 23 24 25 26 27 28 23

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