Duncan v. Becerra

• Citation: 265 F.Supp.3d 1106
• Decision Date: 29 June 2017
• Docket Number: Case No.: 3:17–cv–1017–BEN
• Court: U.S. District Court — Southern District of California
• Parties: Virginia DUNCAN, Richard Lewis, Patrick Lovette, David Marguglio, Christopher Waddell, California Rifle & Pistol Association, Inc., Plaintiffs, v. Xavier BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

265 F.Supp.3d 1106

Virginia DUNCAN, Richard Lewis, Patrick Lovette, David Marguglio, Christopher Waddell, California Rifle & Pistol Association, Inc., Plaintiffs,

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

Case No.: 3:17–cv–1017–BEN

United States District Court, S.D. California.

Signed June 29, 2017

Carl D. Michel, Anna M. Barvir, Sean Brady, Michel & Associates, P.C., Long Beach, CA, for Plaintiffs.

Attorney General, State of California Office of the Attorney General, San Diego, CA, Alexandra Robert Gordon, Dept. of Justice, Attorney General's Office, San Francisco, CA, Anthony P. O'Brien, California Office of Attorney General, Sacramento, CA, for Defendant.

ORDER GRANTING PRELIMINARY INJUNCTION

Hon. Roger T. Benitez, United States District Judge

I. INTRODUCTION

On July 1, 2017, any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin their new life of crime. That is because California Penal Code § 32310 was amended last fall by the passage of a California ballot initiative, Proposition 63. With this change, § 32310(c) requires persons who lawfully possess these magazines today to dispossess them or face criminal penalties of up to one year in a county jail and a fine of $100 per magazine, or both.¹ Section 32310(d) provides three options for dispossession. First, a person may "remove the large-capacity magazine from the State." § 32310(d)(1). Second, a person may "sell the large-capacity magazine to a licensed firearm dealer." § 32310(d)(2). Third, a person may "surrender the large-capacity magazine to a law enforcement agency for destruction." § 32310(d)(3). Naturally, there are statutory exceptions for some individuals such as active and retired law enforcement officers (§§ 32400, 32405, and § 32406). There are also exceptions for employees of armored vehicle businesses (§ 32435) and for movie and television actors when magazines are used as a prop (§ 32445). While there are other exceptions for licensed firearm dealers, manufacturers, and gunsmiths, there are no exceptions made for members of the Armed Forces, or those honorably discharged or retired. Likewise, there are no exceptions for civilian firearms instructors, concealed weapon permit holders, or families who live far from timely help by local law enforcement agencies and who must be self-reliant for their own defense, defense of their families, or of home and property. Finally, there are no exceptions made for citizens who, should the need ever arise, may be called upon to form a militia for the protection of the state from either foreign or domestic enemies.

A. Complexity

California's gun laws are complicated. See Peruta v. County of San Diego , 824 F.3d 919, 925 (9th Cir. 2016) (en banc ), cert. denied , 2017 WL 176580, ––– U.S. ––––, 137 S.Ct. 1995, 198 L.Ed.2d 746 (June 26, 2017) ("California has a multifaceted statutory scheme regulating firearms.").

Proposition 63 adds one more layer of complexity. Perhaps too much complexity. See id. at 953 (Callahan, J., dissenting) ("The counties and California have chipped away at the Plaintiffs' right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban. Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining constitutionality."). In California, the State has enacted, over the span of two decades, an incrementally more burdensome web of restrictions on the rights of law-abiding responsible gun owners to buy, borrow, acquire, modify, use, or possess ammunition magazines able to hold more than 10 rounds. The language used, the internally-referenced provisions, the interplay among them, and the plethora of other gun regulations, have made the State's magazine laws difficult to understand for all but the most learned experts. See e.g. , Cal. Pen. Code § 32310(a) (criminalizing manufacturing, importing, keeping for sale, offering for sale, giving, lending, buying or receiving a large capacity magazine while excepting "as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2"); § 32310(b) (defining "manufacturing" as fabricating or assembling a magazine from a combination of parts); § 32415(b) ( § 32310 prohibition on lending does not apply to the loan when it "occurs at a place or location where the possession of the large capacity magazine remains in the accessible vicinity of the person to whom the large capacity magazine is loaned"); § 32406(b) (excepting museums and institutional collections open to the public if securely housed and protected from unauthorized handling); § 32406(f) (excepting a "person lawfully in possession of a firearm that the person obtained prior to January 1, 2000, if no magazine that holds 10 or fewer rounds of ammunition is compatible with that firearm and the person possesses the large-capacity magazine solely for use with the firearm"); § 16470 (defining "large capacity magazine" to include an ammunition feeding device with the capacity to accept more than 10 rounds but not including a feeding device "that has been permanently altered so that it cannot accommodate more than 10 rounds," and a .22 caliber tube feeding device and a tubular magazine that is contained in a lever-action firearm); § 32311 (criminalizing manufacturing, importing, keeping for sale, offering for sale, giving, lending, buying, or receiving "any large capacity magazine conversion kit"); § 32390 (declaring any large capacity magazine to be a nuisance); § 18010 (destroying nuisance large capacity magazines). Too much complexity fails to give fair notice and violates due process. "[A] penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties ... consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Const. Co. , 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) ; see also United States v. Lanier , 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting Connally ).

At the preliminary injunction hearing, the attorney for the Attorney General, although well prepared, was not able to describe all of the various exceptions to the dispossession and criminalization components of § 32310. Who could blame her? The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law. Statutes must be sufficiently well-defined so that reasonably intelligent citizens can know what conduct is against the law. The plaintiffs, who are law-abiding responsible residents of California, want to keep pistols and rifles and the magazines that are commonly used with their firearms without running afoul of California's gun control statutes. But these statutes are too complicated to give fair notice.

B. Magazines Able to Hold More than 10 Rounds Are Popular

Ammunition magazines that hold more than 10 rounds are popular. Some estimate that as many as 100,000,000 such magazines are currently owned by citizens of the United States. Under federal law, they may be bought, sold, lent, used, and possessed. However, unlike citizens and residents of 43 other states, and hundreds if not thousands of local jurisdictions, after June 30, 2017, all law-abiding citizens of California will be deemed criminals if they simply possess a lawfully acquired magazine capable of holding more than 10 rounds of ammunition.

C. Plaintiffs

Plaintiffs are a group of California residents who either already own magazines holding more than 10 rounds or who want to own magazines holding more than 10 rounds for their defense of self and state. Plaintiff Richard Lewis is a law-abiding citizen and an honorably discharged 22–year United States Marine Corps veteran. For more than 20 years, Lewis has lawfully possessed and continues to possess large capacity magazines. Plaintiff Patrick Lovette is a law-abiding citizen and an honorably retired 22–year United States Navy veteran. For more than 20 years, Lewis has lawfully possessed and continues to possess large capacity magazines. Plaintiffs allege they lawfully possess large capacity magazines for self-defense and other lawful purposes. Plaintiff California Rifle and Pistol Association, Inc., is a membership organization almost as old as the State of California. The organization represents tens of thousands of its California members.

D. Constitutional Challenge and Motion for Preliminary Injunction

Plaintiffs bring facial and as-applied challenges through 42 U.S.C. § 1983 seeking a declaratory judgment that California Penal Code § 32310 (the ban on magazines holding more than 10 rounds) impermissibly infringes on California citizens' federal constitutional right to keep and bear arms, a right protected by the Second Amendment to the United States Constitution. By this motion for preliminary injunction, Plaintiffs seek only to maintain the status quo until a final determination is made on the merits of their constitutional claims, by temporarily restraining the State from enforcing the dispossession requirement and criminal penalties associated with § 32310 (c) & (d).

E. Two Questions

Ultimately, this case asks two questions. "Does a law-abiding responsible citizen have a right to defend his home from criminals...