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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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,

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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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2:17-903 WBS KJN

MEMORANDUM & ORDER RE: MOTION
TO DISMISS

Plaintiffs,

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Civ. No.

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Before the court is defendants’ Motion to dismiss

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plaintiffs’ Second Amended Complaint.

(Docket No. 61.)

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court held a hearing on the Motion on February 5, 2018.

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I.

The

Factual and Procedural History

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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,

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

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ban the possession of these magazines.

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Sunnyvale, 779 F.3d 991, 994 (9th Cir. 2015).

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Californians were allowed to keep large capacity magazines they

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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.

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Fyock v. City of
In effect,

On July 1, 2016, California enacted Senate Bill 1446

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(“SB 1446”), which amended California Penal Code § 32310,

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criminalizing the possession of large capacity magazines as of

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July 1, 2017, regardless of when the magazines were obtained.

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

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Proposition 63, which largely mirrors SB 1446.

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version of Section 32310 enacted by Proposition 63 requires that

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anyone possessing a large capacity magazine either remove the

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magazine from the state, sell the magazine to a licensed firearms

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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.”
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dealer, or surrender the magazine to a law enforcement agency for

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its destruction prior to July 1, 2017.

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32310(d).

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Proposition 63 also provides that possession of a large capacity

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magazine as of July 1, 2017 constitutes an infraction or a

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misdemeanor punishable by a fine not to exceed $100 per large

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capacity magazine and/or imprisonment in a county jail not to

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exceed one year.

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Cal. Penal Code §

The amended version of Section 32310 enacted by

Id. at § 32310(c).

On April 28, 2017, plaintiffs filed the instant action

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alleging that Section 32310 is unconstitutional.

After the

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original Complaint was amended, the court denied plaintiffs’

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request for a temporary restraining order and then denied

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plaintiffs’ request for a preliminary injunction.

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45, 52.)

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that injunctive relief was not warranted because, among other

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things, (1) the ban survived intermediate scrutiny under the

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Second Amendment; (2) a complete ban on personal property deemed

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by the state to be harmful to the public is likely not a taking

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for public use requiring compensation; (3) the ban was not void

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for vagueness because the version of the ban enacted by

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Proposition 63 controlled, as it was enacted after the passage of

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SB 1446; (4) the ban was not void for vagueness because it is not

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paradoxical to exempt possession of large capacity magazines for

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certain individuals while not allowing these individuals to

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manufacture, import, sell, transfer, or receive the magazines;

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and (5) the ban was not unconstitutionally overbroad because the

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overbreadth doctrine does not apply in the Second Amendment

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context and the law does not prohibit a substantial amount of

(Docket Nos.

In denying a preliminary injunction, the court held

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constitutionally protected conduct.

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injunctive relief is generally not available for takings claims

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and that plaintiffs had not shown that the balance of hardships

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or public interest weighed in favor of injunctive relief.2

The court further noted that

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Plaintiffs then filed their Second Amended Complaint

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(“SAC”), which expands on their previously asserted claims and

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which adds (1) an Equal Protection claim under the U.S. and

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California Constitutions, based on the exemption for large

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capacity magazines used as props in movies and television; (2) an

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allegation that the ban operates as a taking under the California

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Constitution; and (3) allegations regarding SB 1446’s alleged

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“preamendment” of Proposition 63 in support of their claim that

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the ban is void for vagueness because of the differences in the

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two versions of the ban.

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II. Discussion

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A.

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(Docket No. 59.)

Second Amendment Challenge
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.

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

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Fyock, 779 F.3d at 996 (citing United States v. Chovan,

a.

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Burden on Conduct Protected by the Second
Amendment

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Plaintiffs have alleged, and there is no dispute in

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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.
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this case, that many people inside and outside of California have

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for many years lawfully possessed large capacity magazines for

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purposes such as self-defense, target shooting, and hunting.

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(See SAC ¶¶ 32-34, 46, 48-49, 57; see also Heller v. District of

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Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011) (“Heller II”)

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(finding that magazines holding more than ten rounds were in

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“common use”)).

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on the purchase, sale, transfer, receipt, or manufacture of such

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magazines since 2000, plaintiffs have alleged that California’s

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ban on large capacity magazines burdens conduct protected by the

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Second Amendment.

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not clearly err in finding that a regulation on large capacity

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magazines burdens conduct falling within the scope of the Second

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Amendment).

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Cir. 2017) (en banc), cert. denied, 138 S. Ct. 469 (2017) (large

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capacity magazines are not protected by the Second Amendment

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because they are weapons most useful in military service).3

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Thus, notwithstanding California’s existing ban

But see Kolbe v. Hogan, 849 F.3d 114, 135-37 (4th

b.

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See Fyock, 779 F.3d at 998 (district court did

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.

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735 F.3d at 1138).

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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.
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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

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right.

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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, as discussed in the court’s prior order,

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intermediate scrutiny is appropriate because “the prohibition of

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. . . large capacity magazines does not effectively disarm

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individuals or substantially affect their ability to defend

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themselves.”

See Heller II, 670 F.3d at 1262; Fyock, 779 F.3d at

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999 (quoting Heller II).

The ban may implicate the core of the

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Second Amendment because it restricts the ability of law-abiding

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citizens to possess large capacity magazines within their homes

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for self-defense.

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“does not affect the ability of law-abiding citizens to possess

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the ‘quintessential self-defense weapon’-–the handgun.

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[it] restricts possession of only a subset of magazines that are

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over a certain capacity.”

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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.

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Indeed, virtually every other court to examine large

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capacity magazine bans has found that intermediate scrutiny is

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appropriate, assuming these magazines are protected by the Second

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Amendment.

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139; N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d

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242, 258-60 (2d Cir. 2015); Heller II, 670 F.3d at 1261-62; S.F.

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Veteran Police Officers Ass’n v. City & County of San Francisco,

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

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

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municipal ban on assault weapons and large capacity magazines but

See Fyock, 779 F.3d at 999; Kolbe, 849 F.3d at 138-

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But see Friedman

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declining to determine what level of scrutiny applied).4

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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.”

Fyock, 779 F.3d at 1000 (quoting

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Chovan, 735 F.3d at 1139).

This test does not require that the

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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.”

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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,

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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

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

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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.
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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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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.5

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at 164 § 2, ¶¶ 11-12; § 3, ¶ 8 (Docket No. 61-3).)6

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no serious argument that this is not a substantial government

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interest, especially in light of the mass shootings involving

(Defs.’ Request for Jud. Notice Gordon Decl., Ex. B
There can be

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large capacity magazines, including the 2012 Aurora movie theater

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shooting and the 2012 Sandy Hook school shooting, which were

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discussed in Proposition 63.

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(Id.)

Further, multiple courts have found a reasonable fit

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between similar bans with similar stated objectives.

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849 F.3d at 139-41 (reasonable fit between assault weapon and LCM

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See Kolbe,

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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.
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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).
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ban and interest in reducing harm caused by criminals and

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preventing unintentional misuse by otherwise law-abiding

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citizens); Fyock, 779 F.3d at 1000-01 (reasonable fit between LCM

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ban and interests in reducing the harm of intentional and

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accidental gun use and reducing violent crime); N.Y. State Rifle,

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804 F.3d at 263-64 (reasonable fit between assault weapon and LCM

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ban and interest in controlling crime); Heller II, 670 F.3d at

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1262-64 (reasonable fit between assault weapon and LCM ban and

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interest in protecting police officers and controlling crime);

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S.F. Veteran Police Officers, 18 F. Supp. 3d at 1003-04

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(reasonable fit between LCM ban and goals of protecting public

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safety and reducing injuries from criminal use of LCMs).

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As discussed in the court’s order denying a preliminary

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injunction, reasonable minds will differ as to the best way to

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reduce the incidence and harm of mass shootings.

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defendants are only required to show a reasonable fit between the

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ban and this important objective, and courts give substantial

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deference to the predictive judgments of the voters that passed

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Proposition 63.

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804 F.3d at 261 (citations omitted); Kolbe, 849 F.3d at 140.

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Thus, notwithstanding plaintiffs’ allegations that the ban will

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not in fact reduce the incidence and harm of mass shootings,

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California’s stated interest of reducing the incidence and harm

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of mass shootings “would be achieved less effectively absent the

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regulation,” Fyock, 779 F.3d at 1000, and there is a reasonable

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fit between the ban and California’s important objectives.

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Because of this reasonable fit, plaintiffs have not sufficiently

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alleged that the large capacity magazine ban fails intermediate

However,

See Fyock, 779 F.3d at 1000; N.Y. State Rifle,

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scrutiny, and the court will dismiss the Second Amendment claim.

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See, e.g., Mahoney v. Sessions, 871 F.3d 873, 883 (9th Cir. 2017)

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(affirming dismissal of Second Amendment claim because the policy

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at issue survived intermediate scrutiny and was therefore

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constitutional).

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B.

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Takings Clause/Due Process Challenge
The Fifth Amendment prohibits the taking of private

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property for public use without just compensation.

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amend. V.

U.S. Const.

The Takings Clause prohibits both “physical” takings

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and “regulatory” takings.

Lingle v. Chevron U.S.A. Inc., 544

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U.S. 528, 537-38 (2005).

A per se physical taking occurs where

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the government physically invades or takes title to property

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either directly or by authorizing someone else to do so, while a

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per se regulatory taking occurs where a regulation of private

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property is “so onerous that its effect is tantamount to a direct

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appropriation or ouster.”

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Corp., 458 U.S. 419, 426 (1982); Lingle, 544 U.S. at 537-38.

Loretto v. Teleprompter Manhattan CATV

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While the Takings Clause of the California Constitution

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does “protect[] a somewhat broader range of property values than”

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its federal counterpart, the two clauses have generally been

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interpreted the same by the California Supreme Court.

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Remo Hotel, L.P. v. City & County of San Francisco, 27 Cal. 4th

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643, 664 (2002) (noting that art. I § 19 of the California

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Constitution includes damage to property, but that aside from

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this difference, “we appear to have construed the clauses

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congruently”) (citations and internal punctuation omitted);

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Customer Co. v. City of Sacramento, 10 Cal. 4th 368, 379–80

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(1995) (“It seems apparent that the addition of the words ‘or
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See San

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damaged’ to the 1879 [California] Constitution was intended to

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clarify that application of the just compensation provision . . .

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encompasses special and direct damage to adjacent property

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resulting from the construction of public improvements” and

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“[t]here is nothing that indicates the provision was intended to

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expand compensation outside the traditional realm of eminent

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domain . . . .”).

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Plaintiffs argue that the magazine ban operates as an
unconstitutional taking under the Fifth and Fourteenth Amendments

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and the California Constitution because they will have to

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physically turn over their magazines for destruction or, in the

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alternative, they will be completely deprived of all beneficial

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use of their magazines, without just compensation.

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Notwithstanding plaintiffs’ allegations, California’s

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large capacity magazine ban does not operate as a physical

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taking.

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magazines to law enforcement – they may alternatively sell the

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magazines to licensed gun dealers, remove them from the state, or

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permanently modify the magazines so that they no longer accept

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more than 10 rounds.

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option, such as the alleged lack of a market for these magazines,

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the burden in removing these magazines from the state, or the

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lack of guidance on what constitutes a permissible permanent

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modification does not transform the regulation into a physical

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taking.

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permanently modifying a magazine to accept no more than ten

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rounds “destroys the functionality” of the magazine, given that

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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

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be able to use their modified magazines, which would then simply

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have a lower capacity than before the modification.7

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these alternatives to turning the magazines over to law

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enforcement, plaintiffs do not plausibly allege that the ban

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operates as government appropriation of private property for

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government or public use.

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Because of

Nor does the large capacity magazine ban operate as a

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regulatory taking, for similar reasons.

In the context of real

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property, the Supreme Court has explained that a regulation does

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not operate as a compensable taking unless the regulation

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“completely deprive[s] an owner of all economically beneficial

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use of her property.”

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S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)) (internal

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punctuation omitted).8

Lingle, 544 U.S. at 528 (citing Lucas v.

Because owners may sell their magazines

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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.
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to licensed dealers or remove them from the state, or even retain

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the magazines if they are permanently modified to accept fewer

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than 11 rounds, plaintiffs have not plausibly alleged that the

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large capacity magazine ban completely deprives them of all

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economically beneficial use of their property.9

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plaintiffs have not sufficiently alleged that California’s large

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capacity magazine ban operates as a taking requiring just

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compensation under the Fifth and Fourteenth Amendments and the

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California Constitution, and the court will dismiss Count II of

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Accordingly,

the Second Amended Complaint.10
C.

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Vagueness Claims11
The Fifth Amendment also provides that “[n]o person

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shall . . . be deprived of life, liberty, or property, without

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due process of law.”

U.S. Const. amend. V.

The government

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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.
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violates due process when it deprives an individual of life,

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liberty, or property pursuant to an unconstitutionally vague

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criminal statute.

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2556-57 (2015).

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“fails to provide a person of ordinary intelligence fair notice

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of what is prohibited, or is so standardless that it authorizes

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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

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is void for vagueness on multiple grounds: (1) SB 1446 and

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Proposition 63 created two different versions of California Penal

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Code § 32406, and it is not clear which version applies;12 (2) the

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ban exempts possession by certain individuals but does not allow

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such individuals to give, receive, or bring these magazines into

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the state; and (3) the options for compliance with the ban, other

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than turning the magazine over to the state, are not practical

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and have not been properly defined.13

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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.
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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

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preliminary injunction, plaintiffs do not cite, and the court is

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unaware of, any case that has held an enactment to be void for

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vagueness because it conflicts with another enactment and it is

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not clear which enactment controls.

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court is aware where that argument was made held that such

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enactments were not void for vagueness.

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F.3d 446, 469 (7th Cir. 1999) (holding that the question before

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the court was whether one enactment impliedly repealed the other,

The only case of which the

See Karlin v. Foust, 188

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not whether the enactments are void for vagueness).

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under California law, where two conflicting versions of the same

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statute are enacted at different times, the later-enacted version

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controls.

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Dist. 1997) (citing County of Ventura v. Barry, 202 Cal. 550, 556

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(1927) and People v. Dobbins, 73 Cal. 257, 259 (1887)).

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Moreover,

People v. Bustamante, 57 Cal. App. 4th 693, 701 (2d

Plaintiffs argue that the “later-in-time” rule is

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merely a presumption and that California law has a seemingly

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conflicting presumption that “absent clear evidence to the

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contrary, the later enactment of a law is not intended to repeal

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or supplant earlier laws on the same subject and instead both

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statutes are intended to be enforced.”

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No. 71) (citing People v. Carter, 131 Cal. App. 177, 181 (1933);

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W. Mobilehome Ass’n v. County of San Diego, 16 Cal. App. 3d 941,

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948 (4th Dist. 1971).)

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(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

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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

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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

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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

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