Tracy Rifle & Pistol LLC v. Harris

• Decision Date: 15 July 2015
• Docket Number: No. 2:14–cv–02626–TLN–DAD.,2:14–cv–02626–TLN–DAD.
• Citation: 118 F.Supp.3d 1182
• Court: U.S. District Court — Eastern District of California
• Parties: TRACY RIFLE AND PISTOL LLC ; Michael Baryla; Ten Percent Firearms ; Wesley Morris; Sacramento Black Rifle, Inc.; Robert Adams; PRK Arms, Inc. ; Jeffrey Mullen ; Imbert & Smithers, Inc. ; Alex Rolsky, Plaintiffs, v. Kamala D. HARRIS, in her official capacity as Attorney General of California; and Stephen J. Lindley, in his official capacity as Chief of the California Department of Justice Bureau of Firearms, Defendants.

118 F.Supp.3d 1182

TRACY RIFLE AND PISTOL LLC ; Michael Baryla; Ten Percent Firearms ; Wesley Morris; Sacramento Black Rifle, Inc.; Robert Adams; PRK Arms, Inc. ; Jeffrey Mullen ; Imbert & Smithers, Inc. ; Alex Rolsky, Plaintiffs,

v.Kamala D. HARRIS, in her official capacity as Attorney General of California; and Stephen J. Lindley, in his official capacity as Chief of the California Department of Justice Bureau of Firearms, Defendants.

No. 2:14–cv–02626–TLN–DAD.

United States District Court, E.D. California.

Signed July 15, 2015.

Filed July 16, 2015.

Bradley A. Benbrook, Stephen M. Duvernay, Benbrook Law Group, Sacramento, CA, for Plaintiffs.

Emmanuelle S. Soichet, California Attorney General's Office, San Francisco, CA, Nelson Ryan Richards, California Attorney General's Office, Fresno, CA, for Defendants.

ORDER

TROY L. NUNLEY, District Judge.

The matter is before the Court on Plaintiffs Tracy Rifle and Pistol LLC ("Tracy Rifle"), Michael Baryla, Ten Percent Firearms ("Ten Percent"), Wesley Morris, Sacramento Black Rifle, Inc., Robert Adams, PRK Arms, Inc., Jeffrey Mullen, Imbert & Smithers, Inc. ("Imbert & Smithers"), and Alex Rolsky's Motion for a Preliminary Injunction. (ECF No. 5.) Defendants Kamala D. Harris and Stephen J. Lindley, acting in their official capacities, oppose the motion. (ECF No. 18.) The Court has carefully considered the arguments raised in the parties' filings, and for the reasons discussed below, DENIES the motion for a preliminary injunction.

BACKGROUND

Plaintiffs—retail firearms dealers—argue that California Penal Code § 26820 violates their free speech rights under the First Amendment of the U.S. Constitution, and therefore seek to preliminarily enjoin Defendants from enforcing the section. Section 26820 provides: "No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside."

Specifically, on September 12, 2014, the California Department of Justice Bureau of Firearms ("DOJ") inspected Tracy Rifle and Pistol LLC. At the time of the inspection, four of Tracy Rifle's exterior windows were covered with vinyl decals depicting firearms: three handguns and a rifle. The firearms could be purchased in California and were carried by Tracy Rifle. The DOJ issued a "Notification of Inspection Findings" because of the handgun decals and required Tracy Rifle and Michael Baryla to take corrective action by February 11, 2015. (ECF No. 5–1 at 3–4.)

On or about February 23, 2010, the DOJ inspected Ten Percent Firearms in Taft, California. Displayed on a post in Ten Percent's parking lot was a three-foot by two-foot metal sign shaped like a revolver, hung approximately nine feet off the ground. The DOJ inspector informed Plaintiff Morris that the sign violated the handgun advertising restriction, and Ten Percent Firearms took the sign down. The DOJ then issued a "Notification of Inspection Findings" citing Ten Percent and Morris for violating the ban. (ECF No. 5–1 at 4.)

On January 28, 2015, the DOJ inspected Imbert & Smithers. At the time of inspection the building's exterior displayed the dealership's logo, which incorporates the outline of a single-action revolver. The DOJ issued a "Notification of Inspection Findings" citing Imbert & Smithers and Alex Rolsky for, among other things, violating the handgun advertising restriction, and requiring them to take corrective action by July 28, 2015. (ECF No. 17 at 1.)

Plaintiffs Sacramento Black Rifle, Inc. and its owner Robert Adams, and Plaintiffs PRK Arms, Inc. and its owner Jeffrey Mullen, state they desire to display on-site handgun advertising at these stores. (ECF No. 22 ¶ 32.)

On November 10, 2014, Plaintiffs filed a complaint in this Court, claiming section 26820 deprived Plaintiffs of rights secured by the First Amendment, in violation of 42 U.S.C. § 1983, and seeking declaratory and injunctive relief. (ECF No. 1.) On November 17, 2014, Plaintiffs filed the instant motion for a preliminary injunction.¹ (ECF No. 5.) On February 23, 2015, Defendants filed an opposition. (ECF No. 18.) On March 4, 2015, Plaintiffs filed their reply. (ECF No. 26.)

STATUTORY FRAMEWORK

I. Injunctive Relief

Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) ).

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555 U.S. at 20, 129 S.Ct. 365.

The Ninth Circuit also permits analysis via a sliding scale approach, such that " ‘serious questions going to the merits' and a balance of hardships that tips sharply toward the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Arc of California v. Douglas, 757 F.3d 975, 983 (9th Cir.2014) (citing Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011) ).

II. First Amendment Principles

The First Amendment principles at issue in this case mostly relate to the "likelihood of success on the merits" prong of the Winter test. However, given the underlying importance of the aforementioned principles to all four prongs, and the fact that the Government has the burden to justify its speech restrictions, the Court notes some relevant principles at the outset.

As a starting point for review, the Court uses the test set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) :

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

The parties agree that the speech at issue—advertisements made on the premises of firearms stores—concerns lawful activity and is not misleading, and so is commercial speech protected by the First Amendment. Therefore only the final three factors are disputed in this case.

Courts are to "review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy ... in recent years [the Supreme Court] has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity." Central Hudson, 447 U.S. at 566 n. 9, 100 S.Ct. 2343.

It is error to "conclude[ ] that all commercial speech regulations are subject to a similar form of constitutional review simply because they target a similar category of expression. The mere fact that messages propose commercial transactions does not in and of itself dictate the constitutional analysis that should apply to decisions to suppress them." 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). "[W]hen a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands." Id.

Further, "[t]he First Amendment requires heightened scrutiny whenever the government creates ‘a regulation of speech because of disagreement with the message it conveys.’ " Sorrell v. IMS Health Inc., ––– U.S. ––––, 131 S.Ct. 2653, 2664, 180 L.Ed.2d 544 (2011) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ). " ‘[T]he fear that people would make bad decisions if given truthful information’ cannot justify content-based burdens on speech." Id. at 2658 (citing Thompson v. Western States Medical Center, 535 U.S. 357, 374, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002) ).

ANALYSIS

I. Likelihood of Success on the Merits

For a preliminary injunction to issue, it is Plaintiffs' burden to show a likelihood of success on their challenge to the constitutionality of section 26820. However, because the Government is restricting protected speech it has the burden to show that section 26820 passes scrutiny. See Burkow v. City of Los Angeles, 119 F.Supp.2d 1076 (C.D.Cal.2000) ; Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061 (10th Cir.2001) (holding that even on appeal of a denial of a preliminary injunction, which favored the Government, the burden remained on the Government to justify the speech restrictions). The Court follows the analysis done in Burkow and Utah Licensed and finds that if the Government does not meet its burden under Central Hudson, then for the purposes of the preliminary junction Plaintiff has shown a likelihood of success on the merits.²

The parties do not dispute that the speech at issue is protected by the First Amendment. Thus, the first part of the Central Hudson test is met. Plaintiffs argue that Defendants cannot meet their burden of establishing one or more of the other three prongs: (1) that the restriction at issue seek to further a substantial government interest; (2) that the restriction directly advance the government's interest; and (3) the restriction be no more extensive than is...