Duncan v. Becerra, Case No.: 3:17cv1017-BEN (JLB)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Citation366 F.Supp.3d 1131
Decision Date29 March 2019
Docket NumberCase No.: 3:17cv1017-BEN (JLB)
Parties Virginia DUNCAN, et al., Plaintiffs, v. Xavier BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

366 F.Supp.3d 1131

Virginia DUNCAN, et al., Plaintiffs,
Xavier BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

Case No.: 3:17cv1017-BEN (JLB)

United States District Court, S.D. California.

Signed March 29, 2019

366 F.Supp.3d 1133

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

Attorney General, State of California Office of the Attorney General, San Diego, CA, Alexandra Robert Gordon, CA Dept of Justice, Attorney General's Office, San Francisco, CA, Anthony P O'Brien, California Office of Attorney General, Sacramento, CA, John Darrow Echeverria, Office of the California Attorney General, Los Angeles, CA, for Defendants.


HON. ROGER T. BENITEZ, United States District Judge

366 F.Supp.3d 1134

Individual liberty and freedom are not outmoded concepts. "The judiciary is – and is often the only – protector of individual rights that are at the heart of our democracy." -- Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.1


As two masked and armed men broke in, Susan Gonzalez was shot in the chest. She made it back to her bedroom and found her husband's .22 caliber pistol. Wasting the first rounds on warning shots, she then emptied the single pistol at one attacker. Unfortunately, now out of ammunition, she was shot again by the other armed attacker. She was not able to re-load or use a second gun. Both she and her husband were shot twice. Forty-two bullets in all were fired. The gunman fled from the house—but returned. He put his gun to Susan Gonzalez's head and demanded the keys to the couple's truck.2

When three armed intruders carrying what look like semi-automatic pistols broke into the home of a single woman at 3:44 a.m., she dialed 911. No answer. Feng Zhu Chen, dressed in pajamas, held a phone in one hand and took up her pistol in the other and began shooting. She fired numerous shots. She had no place to carry an extra magazine and no way to reload because her left hand held the phone with which she was still trying to call 911. After the shooting was over and two of the armed suspects got away and one lay dead, she did get through to the police. The home security camera video is dramatic.3

A mother, Melinda Herman, and her nine-year-old twins were at home when an intruder broke in. She and her twins retreated to an upstairs crawl space and hid. Fortunately, she had a .38 caliber revolver. She would need it. The intruder worked his way upstairs, broke through a locked bedroom door and a locked bathroom door, and opened the crawl space door. The family was cornered with no place to run. He stood staring at her and her two children. The mother shot six times, hitting the intruder five times, when she ran out of ammunition. Though injured, the intruder was not incapacitated. Fortunately, he decided to flee.4

366 F.Supp.3d 1135

A. A Need for Self-Defense

In one year in California (2017), a population of 39 million people endured 56,609 robberies, 105,391 aggravated assaults, and 95,942 residential burglaries.5 There were also 423 homicides in victims' residences.6 There were no mass shootings in 2017. Nationally, the first study to assess the prevalence of defensive gun use estimated that there are 2.2 to 2.5 million defensive gun uses by civilians each year. Of those, 340,000 to 400,000 defensive gun uses were situations where defenders believed that they had almost certainly saved a life by using the gun.7 Citizens often use a gun to defend against criminal attack. A Special Report by the U.S. Department of Justice, Bureau of Justice Statistics published in 2013, reported that between 2007 and 2011 "there were 235,700 victimizations where the victim used a firearm to threaten or attack an offender."8 How many more instances are never reported to, or recorded by, authorities? According to another U.S. Department of Justice, Bureau of Justice Statistics, Special Report, for each year between 2003 and 2007, an estimated 266,560 burglaries occurred during which a person at home became a victim of a violent crime or a "home invasion."9 "Households composed of single females with children had the highest rate of burglary while someone was at home."10 Of the burglaries by a stranger where violence occurred, the assailant was armed with a firearm in 73,000 instances annually (on average).11 During a burglary, rape or sexual assault occurred 6,387 times annually (on average), while a homicide occurred approximately 430 times annually (on average).12

Fortunately, the Second Amendment protects a person's right to keep and bear firearms. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. "As interpreted in recent years by the Supreme Court, the Second Amendment protects ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’ "

366 F.Supp.3d 1136

Teixeira v. Cty. of Alameda , 873 F.3d 670, 676– 77 (9th Cir. 2017), cert. denied sub nom. Teixeira v. Alameda Cty. , ––– U.S. ––––, 138 S.Ct. 1988, 201 L.Ed.2d 249 (2018) (quoting District of Columbia v. Heller , 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ). At the core of the Second Amendment is a citizen's right to have in his and her home for self-defense common firearms. Heller , 554 U.S. at 629, 128 S.Ct. 2783. "[O]ur central holding in Heller [is] that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald v. City of Chicago , 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

As evidenced by California's own crime statistics, the need to protect one's self and family from criminals in one's home has not abated no matter how hard they try. Law enforcement cannot protect everyone. "A police force in a free state cannot provide everyone with bodyguards. Indeed, while some think guns cause violent crime, others think that wide-spread possession of guns on balance reduces violent crime. None of these policy arguments on either side affects what the Second Amendment says, that our Constitution protects ‘the right of the people to keep and bear Arms.’ " Silveira v. Lockyer , 328 F.3d 567, 588 (9th Cir. 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc ). However, California citizens, like United States citizens everywhere, enjoy the right to defend themselves with a firearm, if they so choose. To protect the home and hearth, citizens most often choose a handgun, while some choose rifles or shotguns.

B. Are 10 Rounds Always Enough?

If a law-abiding, responsible citizen in California decides that a handgun or rifle with a magazine larger than 10 rounds is the best choice for defending her hearth and home, may the State deny the choice, declare the magazine a "nuisance," and jail the citizen for the crime of possession? The Attorney General says that is what voters want in hopes of preventing a rare, but horrible, mass shooting. The plaintiffs, who are also citizens and residents of California, say that while the goal of preventing mass shootings is laudable, banning the acquisition and possession of magazines holding more than 10 rounds is an unconstitutional experiment that poorly fits the goal. From a public policy perspective, the choices are difficult and complicated. People may cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all.13 In the United States, the Second Amendment takes the legislative experiment off the table.14 Regardless of current popularity,

366 F.Supp.3d 1137

neither a legislature nor voters may trench on constitutional rights. "An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity." Silveira , 312 F.3d at 1091.

C. Mass Shooting vs. Common Crimes

When they occur, mass shootings are tragic. Innocent lives are senselessly lost while other lives are scarred forever. Communities are left shaken, frightened, and grieving. The timeline of the tragedy, the events leading up to the shooting, and the repercussions on family and friends after the incident, fill the national media news cycle for days, weeks and years. Who has not heard about the Newtown, Connecticut, mass shooting at Sandy Hook Elementary School, or the one at a high school in Parkland, Florida? But an individual victim gets little, if any, media attention, and the attention he or she gets is local and short-lived. For example, who has heard about the home invasion attack on Melinda Herman and her twin nine-year old daughters in Georgia only one month after the Sandy Hook incident?15 Who has heard of the attacks on Ms. Zhu...

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14 cases
  • State v. Misch, 19-266
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 19, 2021
    ...but at least one court has credited evidence that the shooter used only ten-round magazines, see Duncan v. Becerra, 366 F. Supp. 3d 1131, 1161 (S.D. Cal. 2019). We will not engage in fact finding as to the specifics of any given mass shooting; the available data supports a conclusion that l......
  • Fouts v. Bonta, Case No.: 19-cv-1662-BEN (JLB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 22, 2021
    ...assault weapons were lawfully manufactured, acquired, and possessed throughout the United States.").14 See Duncan v. Becerra , 366 F. Supp. 3d 1131 (S.D. Cal. 2019), aff'd , 970 F.3d 1133 (9th Cir. 2020), reh'g en banc granted, opinion vacated , 988 F.3d 1209 (9th Cir. 2021) ("The oldest st......
  • Rocky Mountain Gun Owners v. Polis, Supreme Court Case No. 18SC817
    • United States
    • Colorado Supreme Court of Colorado
    • June 29, 2020
    ...id. at ¶ 42.7 To our knowledge, only a single federal district court has endorsed the "common lawful use" test. Duncan v. Becerra , 366 F. Supp. 3d 1131 (S.D. Cal. 2019), appeal docketed , No. 19-55376 (9th Cir. Apr. 4, 2019). The court described the test as "a hardware test" that asks, "Is......
  • Yang v. Boudreaux, 1:21-cv-00148-BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 7, 2021
    ...of Douglas Wormald (Doc. No. 21-1, Exh. D; also attached to Plaintiff's Tort claim at Doc. No. 21-1 Exh. F), Duncan v. Becerra, 366 F.Supp.3d 1131 (S.D. Cal. March 29, 2019) (Doc. No. 21-1, Exh. E), and Plaintiff's tort claim filed with the County of Tulare (Doc. No. 21-1, Exh. F). As to do......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • Michigan Law Review Vol. 120 No. 4, February 2022
    • February 1, 2022
    ...handgun ban on the grounds that it was preempted by California law). (371.) Heller, 554 U.S. at 625. (372.) Eg., Duncan v. Becerra, 366 F. Supp. 3d 1131, 1143 (S.D. Cal. 2019), affd, 970 F.3d 1133 (9th Cir. 2020) (finding that a ban on large-capacity magazines fails the Heller test "because......

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