United States District Court, E.D. California
WILLIAM WIESE, an individual; JEERMIAH MORRIS, an individual; LANCE COWLEY, an individual; SHERMAN MACASTON, an individual; ADAM RICHARDS, in his capacity as Trustee of the Magazine Ban Lawsuit Trust; CLIFFORD FLORES, individually and as trustee of the Flores Family Trust; L.Q. DANG, an individual; FRANK FEDEREAU, an individual; ALAN NORMANDY, an individual; TODD NIELSEN, an individual; THE CALGUNS FOUNDATION; FIREARMS POLICY COALITION; FIREARMS POLICY FOUNDATION; and SECOND AMENDMENT FOUNDATION; Plaintiffs,
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.
ORDER RE: MOTION FOR TEMPORARY RESTRAINING
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
the court is plaintiffs' Renewed Motion for Temporary
Restraining Order, and Issuance of Preliminary Injunction.
(Docket No. 28.) The court held a hearing on the request for
a temporary restraining order on June 16, 2017.
Factual and Procedural History
case concerns a challenge to California's prohibition on
the possession of gun magazines that can hold more than ten
bullets, or “large capacity”
magazines. Although California has banned the sale or
transfer of such magazines since 2000, it did not ban the
possession of such magazines obtained prior to
1, 2016, however, California enacted Senate Bill 1446
(“SB 1446”), which amended California Penal Code
Section 32310, criminalizing the possession of large capacity
magazines as of July 1, 2017, regardless of when the
magazines were obtained. Then, on November 8, 2016, the
California electorate approved Proposition 63, which largely
mirrors SB 1446. The amended version of Section 32310
requires that anyone possessing a large capacity magazine
either remove the magazine from the state, sell the magazine
to a licensed firearms dealer, or surrender the magazine to
the state for its destruction prior to July 1, 2017. Cal.
Penal Code § 32310(d). The amended version of Section
32310 also provides that possession of a large capacity
magazine as of July 1, 2017 constitutes an infraction or a
misdemeanor punishable by a fine not to exceed $100 per large
capacity magazine and/or imprisonment in a county jail not to
exceed one year. Cal. Penal Code § 32310(c).
April 28, 2017, plaintiffs filed the instant action alleging
that Section 32310 is unconstitutional, and then an amended
complaint on June 5, 2017. Plaintiffs then filed a motion for
a temporary restraining order and preliminary injunction on
June 12, 2017 and a renewed motion on June 14, 2017. The
instant motion seeks to enjoin enforcement of this statute
relief is “an extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). In
order to obtain a temporary restraining order or preliminary
injunction, the moving party must establish (1) it is likely
to succeed on the merits, (2) it is likely to suffer
irreparable harm in the absence of preliminary relief, (3)
the balance of equities tips in its favor, and (4) an
injunction is in the public interest. Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20-21 (2008); Humane
Soc'y of the U.S. v. Gutierrez, 558 F.3d 896, 896 (9th
Cir. 2009); see Credit Bureau Connection, Inc. v. Pardini,
726 F.Supp.2d 1107, 1132 (E.D. Cal. 2010) (citations omitted)
(standards for temporary restraining orders and preliminary
injunctions are the same).
order to obtain preliminary injunctive relief, plaintiffs
must “establish that irreparable harm is likely, not
just possible, in order to obtain” injunctive relief.
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
(9th Cir. 2011) (citing Winter, 555 U.S. at 22). Here,
plaintiffs contend that they will be irreparably harmed by
having to surrender their large capacity magazines, which
they contend are irreplaceable due to California's ban on
the transfer of large capacity magazines, and because such
surrender infringes their constitutional rights.
irreparable harm is presumed if a violation of the
constitution is shown.” Bailey v. Clovis Unified Sch.
Dist., No. 08-CV-0146-AWI-GSA, 2008 WL 268830, at *1 (E.D.
Cal. Jan. 30, 2008) (citing Goldies' Bookstore, Inc. v.
Superior Court, 739 F.2d 466, 472 (9th Cir. 1984)). However,
where a federal injunction is sought against a government
entity, the party requesting relief must show a threat of
“great and immediate” irreparable harm.
Id. (citing City of Los Angeles v. Lyons, 461 U.S.
95, 112 (1983)).
a plaintiff's “long delay before seeking a
preliminary injunction implies a lack of urgency and
irreparable harm.” Oakland Tribune, Inc. v. Chronicle
Publ'g Co., 762 F.2d 1374, 1377 (9th Cir. 1985); see also
Lydo Enters. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th
Cir. 1984) (delay in seeking preliminary injunction is a
factor to be considered in weighing the propriety of relief,
because “[b]y sleeping on its rights a plaintiff
demonstrates the lack of need for speedy action”
(citations omitted)); E.D. Local Rule 231(b)(court will
consider whether applicant seeking a temporary restraining
order “could have sought relief by motion for
preliminary junction at an earlier date without the necessity
for seeking last-minute relief by motion for temporary
restraining order, ” and undue delay may constitute
grounds to deny the request).
plaintiffs' delay in filing this case and in requesting a
temporary restraining order strongly weigh against a finding
of great and immediate irreparable harm. Notwithstanding the
enactment of SB 1446 on July 1, 2016, the passage of
Proposition 63 on November 8, 2016, and the fact that both SB
1446 and Proposition 63 banned large capacity magazines as of
July 1, 2017, plaintiffs waited until almost May of this year
to file their suit, and then waited until mid-June to request
a temporary restraining order, which they ask the court to
grant before July 1, 2017.
counsel argued at the hearing on the motion that plaintiffs
delayed bringing their suit due to ambiguity regarding
whether SB 1446's version or Proposition 63's version
applied, due to the California Department of Justice's
promulgation and then rescission of proposed implementing
regulations, and due to the desire to avoid piecemeal
litigation. These excuses do not justify plaintiffs bringing
their request for a temporary restraining order at the last
minute, a month and a half after bringing suit to request
immediate injunctive relief. There is no reason why
plaintiffs could not have immediately moved for a preliminary
injunction upon filing their suit, even assuming they were
justified in waiting to until the end of April to bring the
action in the first place.
the pending motion does not require the court to make a final
determination on the merits of plaintiffs' claims, it
does require the court to assess the likelihood of success on
plaintiffs' claims, which requires a review of all the
submitted materials. It is unrealistic to expect the court to
decide the weighty and vitally important issue of the
constitutionality of a state statute, enacted by both the
California electorate and the California Legislature, on such
an extremely expedited schedule. Indeed, it would be
impossible to do so, given the submissions of the parties,
which total thousands of pages. Even ...