Duncan et al v. Becerra et al

Filing 44

ORDER Denying #39 Motion to Stay Proceedings. Signed by Judge Roger T. Benitez on 10/10/2017. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VIRGINIA DUNCAN, et al.,

Case No.: 3:17-cv-1017-BEN
Plaintiffs,

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ORDER DENYING MOTION TO
STAY PROCEEDINGS

v.
XAVIER BECERRA, in his official
capacity as Attorney General of the State
of California,

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Defendant.

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A preliminary injunction has issued enjoining Defendant Attorney General Xavier

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Becerra from implementing or enforcing California Penal Code § 32310 (c) & (d), as

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enacted by Proposition 63, or from otherwise requiring persons to dispossess themselves

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of magazines able to hold more than 10 rounds lawfully acquired and possessed. The

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Attorney General now seeks to stay all proceedings in this Court while his appeal from

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the preliminary injunction order is heard in the Court of Appeals. Plaintiffs are opposed

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to a stay. Having considered the arguments, the motion to stay proceedings is denied.

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California Penal Code § 32310 makes it generally unlawful for a person to

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manufacture, import, keep for sale, offer or expose for sale, give, lend, buy, or receive a

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firearm magazine that has the ability to hold more than 10 rounds. Plaintiffs bring this
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action challenging the constitutionality of § 32310 on three grounds, and ask for

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declaratory and injunctive relief. While some aspects of the statute have been in effect

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for many years, Plaintiffs sought a preliminary injunction against enforcement of

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subsections (c) and (d) which criminalize mere possession as of July 1, 2017. The

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preliminary injunction order addressed only the criminalization of mere possession; it did

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not address all aspects of Plaintiff’s constitutional challenge to § 32310. The Attorney

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General has appealed the preliminary injunction order. A typical case would ordinarily

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continue proceeding through fact discovery, motions, and trial unless an appellate court

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intervenes. Rather than proceed with the case, the Attorney General moves to stay these

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regular proceedings until the preliminary injunction appeal is decided.

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The Attorney General correctly notes that a district court has discretion to stay

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proceedings incident to its power to control its own docket. See e.g., Landis v. North

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American Co., 299 U.S. 248, 256 (1936); Robinson v. De la Vega, 2008 WL 4748171, *3

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(S.D. Cal. Oct. 24, 2008). But it is not unlimited discretion. A stay of proceedings

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requires the court exercise sound discretion after considering competing interests.

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CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (“The exertion of this power calls

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for the exercise of a sound discretion. Where it is proposed that a pending proceeding be

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stayed, the competing interests which will be affected by the granting or refusal to grant a

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stay must be weighed. Among these competing interests are the possible damage which

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may result from the granting of a stay, the hardship or inequity which a party may suffer

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in being required to go forward, and the orderly course of justice measured in terms of

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the simplifying or complicating of issues, proof, and questions of law which could be

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expected to result from a stay.”) (citing Landis v. N. Am., 299 U.S. 248).1

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Both parties agree that there is some uncertainty as to the applicable test for exercising
discretion in this context. A request for a stay pending a direct appeal may follow the
standard described in Nken v. Holder, 556 U.S. 418 (2009). A stay pending resolution of
a different case may follow the standard described in Landis. Under both standards, the
moving party bears the burden of proof. See Nken, 566 U.S. at 433-34; Landis, 299 U.S.
at 256.
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The Attorney General predicts that Plaintiffs will suffer no prejudice from a stay of

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proceedings. Def.’s Mem. of P.’s and A.’s in Support, at 4. He says that a stay will

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benefit both sides by avoiding the costs of discovery on matters that may be mooted by

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the Court of Appeals’ ruling on his appeal. Id. However, the preliminary injunction and

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the interlocutory appeal concern the constitutionality of California Penal Code § 32310(c)

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& (d): the newly operative subsections that require dispossession of large capacity

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magazines and criminalize continued possession. Plaintiffs also challenge the

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constitutionality of subsections (a) & (b) which criminalize the buying, selling,

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importing, manufacturing, lending, and transferring of large capacity magazines. The

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eventual Court of Appeals decision may not address (a) & (b) and (c) & (d) could be

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decided on Takings Clause grounds rather than Second Amendment grounds. In that

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scenario, a stay will unnecessarily delay the ultimate decision on (a) & (b).

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The Attorney General says that there is an expedited briefing schedule in the Court

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of Appeals and there is no threat of significant delay. Def.’s Mem. of P.’s and A.’s in

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Support, at 4. Perhaps, but it is noted that the Attorney General has sought, and received,

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two extensions of time for briefing from that court. As of today, no briefs have been filed

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and neither party can dictate or accurately forecast when the appeal will be decided. If it

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is ultimately determined that § 32310 (a) & (b) are infringing on Plaintiffs’ Second

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Amendment rights, a question not addressed in the order appealed from, Plaintiffs will be

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irreparably harmed every day that passes. C.f. Elrod v. Burns, 427 U.S. 347, 373 (1976)

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(“The loss of First Amendment freedoms, for even minimal periods of time,

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Under Nken, courts consider whether the stay applicant has made a strong showing
that he is likely to succeed on the merits. On the other hand, likelihood of success is not
a factor in Landis, upon which CMAX rests. Landis describes three factors to consider:
(1) the “possible damage which may result from the granting of a stay;” (2) “the hardship
or inequity which a party may suffer in being required to go forward;” and (3) “the
orderly course of justice measured in terms of the simplifying or complicating of issues,
proof and questions of law which could be expected to result from a stay.” Lockyer v.
Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing Landis, 299 U.S. at 255).
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unquestionably constitutes irreparable injury.”); Ex parte Young, 209 U.S. 123, 152,

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(1908) (“But the general doctrine of Osborn v. Bank of United States, that the circuit

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courts of the United States will restrain a state officer from executing an unconstitutional

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statute of the state, when to execute it would violate rights and privileges of the

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complainant which had been guaranteed by the Constitution, and would work irreparable

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damage and injury to him, has never been departed from.”). In contrast, the Attorney

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General will not be prejudiced by moving forward with proceedings because enforcement

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§ 32310 (a) & (b) is not being enjoined. Plaintiffs may be prejudiced by a stay.

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The Attorney General argues that it is an inequitable and unfair burden to have to

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expend time and resources litigating, taking discovery, and proceeding to dispositive

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motions or trial based on standards the Court of Appeals may reject. Def.’s Mem. of P.’s

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and A.’s in Support, at 6. That, however, is a typical burden shouldered by parties in

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litigation.

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The Attorney General suggests that staying the case will permit avoidance of issues

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that may be resolved by the Court of Appeals. Def.’s Mem. of P.’s and A.’s in Support, at

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8. But a ruling on the propriety of a preliminary injunction will not necessarily decide

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the ultimate constitutional issues to be tried. For example, in another recent interlocutory

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appeal concerning Second Amendment rights and a firearm magazine ban, the Court of

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Appeals ruled on the propriety of the preliminary injunction without addressing the

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constitutionality of the challenged regulation. See Fyock v. City of Sunnyvale, 779 F.3d

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991, 998 n.5 (9th Cir. 2015) (“We do not opine today on the constitutionality of any

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regulations regarding semi-automatic handguns nor do we suggest that such a regulation

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could not pass constitutional muster. We simply recognize that based on the evidence of

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record at the time of its ruling, the district court’s [preliminary injunction] conclusions

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were not clearly erroneous.”).

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The Attorney General suggests that his interlocutory appeal has a substantial
likelihood of success on the merits. Def.’s Mem. of P.’s and A.’s in Support, at 9. That
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argument is not persuasive. The preliminary injunction order which is the subject of the

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appeal concluded that Plaintiffs’ claims were likely to succeed on the merits. That has

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not changed. Moreover, having obtained his second briefing deadline extension from the

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appellate court, the Attorney General has yet to brief his arguments.

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The Attorney General asserts that he will suffer irreparable harm in the absence of

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a stay of proceedings. Def.’s Mem. of P.’s and A.’s in Support, at 10. This is because he

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will be forced to spend resources litigating issues that may be resolved, narrowed, or

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rendered moot by an appellate review of the interlocutory appeal. As mentioned above,

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in Fyock, the Court of Appeals did not decide whether the firearm regulation was

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constitutional because of the interlocutory posture of the appeal. 779 F.3d at 998 n.5.

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This case is in a similar posture. Thus, the constitutional issues are not likely to be

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resolved, narrowed, or mooted. Fyock did address the evidentiary record required to

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support a preliminary injunction so the parties already have the benefit of the appeals

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court decision to guide their current discovery efforts. E.g. id. at 997 n.3 (“As the merits

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action proceeds and the parties develop the record, the district court will be able to

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adequately assess the historical roots and implications of firing-capacity regulations.”).

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Finally, although he does not argue it, the Attorney General and the people of

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California may be harmed by a stay. After a complete evidentiary record and trial on the

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merits, it could be decided that the enforcement of § 32310 (c) & (d) is a constitutionally

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permissible exercise of the State’s police powers. In that case, the State will be harmed

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by further litigation delay in implementing and enforcing the magazine possession ban.

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Having considered the arguments, the Court declines to stay the proceedings in this

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case. A ruling on the interlocutory appeal is not likely to resolve all of the constitutional

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issues and both parties have some guidance on their respective evidentiary burdens. The

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Attorney General is not likely to suffer irreparable injury by proceeding forth. Both

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parties, on the other hand, may suffer irreparable harm if proceedings are stayed. The

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Attorney General’s motion to stay proceedings pending appeal is hereby denied.
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IT IS SO ORDERED.

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DATED: __________________, 2017
October 10
_________________________
Hon. Roger T. Benitez
United States District Judge

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