Wiese v. Becerra, Civ. No. 2:17–903 WBS KJN

• Decision Date: 06 February 2018
• Docket Number: Civ. No. 2:17–903 WBS KJN
• Citation: 306 F.Supp.3d 1190
• Court: U.S. District Court — Eastern District of California
• Parties: William WIESE, an individual; Jeermiah Morris, an individual; Lance Cowley, an individual; Sherman Macaston, an individual; 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, v. 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.

306 F.Supp.3d 1190

William WIESE, an individual; Jeermiah Morris, an individual; Lance Cowley, an individual; Sherman Macaston, an individual; 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,

v.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.

Civ. No. 2:17–903 WBS KJN

United States District Court, E.D. California.

Signed February 6, 2018

Filed February 7, 2018

George M. Lee, Douglas Allen Applegate, Seiler Epstein Ziegler & Applegate LLP, San Francisco, CA, Raymond Mark DiGuiseppe, Law Offices of Raymond Mark DiGuiseppe, PLLC, Wilmington, NC, for Plaintiffs

Alexandra Robert Gordon, CA. Dept. of Justice Office of the Attorney General, San Francisco, CA, John Darrow Echeverria, Office of the California Attorney General, Los Angeles, CA, for Defendants

MEMORANDUM & ORDER RE: MOTION TO DISMISS

WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

Before the court is defendants' Motion to dismiss plaintiffs' Second Amended Complaint. (Docket No. 61.) The court held a hearing on the Motion on February 5, 2018.

I. Factual and Procedural History

This 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 ("LCM").¹ Although California had banned the purchase, sale, transfer, receipt, or manufacture of such magazines since 2000, it did not ban the possession of these magazines. Fyock v. City of Sunnyvale, 779 F.3d 991, 994 (9th Cir. 2015). In effect, Californians were allowed to keep large capacity magazines they had obtained prior to 2000, but no one, with a few exceptions such as law enforcement officers, has been allowed to obtain new large capacity magazines since 2000.

On July 1, 2016, California enacted Senate Bill 1446 ("SB 1446"), which amended California Penal Code § 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 enacted by Proposition 63 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 a law enforcement agency for its destruction prior to July 1, 2017. Cal. Penal Code § 32310(d). The amended version of Section 32310 enacted by Proposition 63 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. Id. at § 32310(c).

On April 28, 2017, plaintiffs filed the instant action alleging that Section 32310 is unconstitutional. After the original Complaint was amended, the court denied plaintiffs' request for a temporary restraining order and then denied plaintiffs' request for a preliminary injunction. (Docket Nos. 45, 52.) In denying a preliminary injunction, the court held that injunctive relief was not warranted because, among other things, (1) the ban survived intermediate scrutiny under the Second Amendment; (2) a complete ban on personal property deemed by the state to be harmful to the public is likely not a taking for public use requiring compensation; (3) the ban was not void for vagueness because the version of the ban enacted by Proposition 63 controlled, as it was enacted after the passage of SB 1446; (4) the ban was not void for vagueness because it is not paradoxical to exempt possession of large capacity magazines for certain individuals while not allowing these individuals to manufacture, import, sell, transfer, or receive the magazines; and (5) the ban was not unconstitutionally overbroad because the overbreadth doctrine does not apply in the Second Amendment context and the law does not prohibit a substantial amount of constitutionally protected conduct. The court further noted that injunctive relief is generally not available for takings claims and that plaintiffs had not shown that the balance of hardships or public interest weighed in favor of injunctive relief.²

Plaintiffs then filed their Second Amended Complaint ("SAC"), which expands on their previously asserted claims and which adds (1) an Equal Protection claim under the U.S. and California Constitutions, based on the exemption for large capacity magazines used as props in movies and television; (2) an allegation that the ban operates as a taking under the California Constitution; and (3) allegations regarding SB 1446's alleged "preamendment" of Proposition 63 in support of their claim that the ban is void for vagueness because of the differences in the two versions of the ban. (Docket No. 59.)

II. Discussion

A. Second Amendment Challenge

To evaluate a Second Amendment claim, the court asks whether the challenged law burdens conduct protected by the Second Amendment, and if so, what level of scrutiny should be applied. Fyock, 779 F.3d at 996 (citing United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) ).

a. Burden on Conduct Protected by the Second Amendment

Plaintiffs have alleged, and there is no dispute in this case, that many people inside and outside of California have for many years lawfully possessed large capacity magazines for purposes such as self-defense, target shooting, and hunting. (See SAC ¶¶ 32–34, 46, 48–49, 57; see also Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011) (" Heller II") (finding that magazines holding more than ten rounds were in "common use") ). Thus, notwithstanding California's existing ban on the purchase, sale, transfer, receipt, or manufacture of such magazines since 2000, plaintiffs have alleged that California's ban on large capacity magazines burdens conduct protected by the Second Amendment. See Fyock, 779 F.3d at 998 (district court did not clearly err in finding that a regulation on large capacity magazines burdens conduct falling within the scope of the Second Amendment). But see Kolbe v. Hogan, 849 F.3d 114, 135–37 (4th Cir. 2017) (en banc), cert. denied, ––– U.S. ––––, 138 S.Ct. 469, 199 L.Ed.2d 374 (2017) (large capacity magazines are not protected by the Second Amendment because they are weapons most useful in military service).³

b. Appropriate Level of Scrutiny

In determining what level of scrutiny applies to the ban on large capacity magazines, the court considers (1) how closely the law comes to the core of the Second Amendment right, which is self-defense, and (2) how severely, if at all, the law burdens that right. Fyock, 779 F.3d at 998–99 (citing Chovan, 735 F.3d at 1138 ). Intermediate scrutiny is appropriate if the regulation does not implicate the core Second Amendment right or if the regulation does not place a substantial burden on that right. Id. at 998–99 (citing Jackson v. City & County of San Francisco, 746 F.3d 953, 964 (9th Cir. 2014) ).

Here, as discussed in the court's prior order, intermediate scrutiny is appropriate because "the prohibition of ...large capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves." See Heller II, 670 F.3d at 1262 ; Fyock, 779 F.3d at 999 (quoting Heller II ). The ban may implicate the core of the Second Amendment because it restricts the ability of law-abiding citizens to possess large capacity magazines within their homes for self-defense. See Fyock, 779 F.3d at 999. However, the ban "does not affect the ability of law-abiding citizens to possess the ‘quintessential self-defense weapon’—the handgun. Rather, [it] restricts possession of only a subset of magazines that are over a certain capacity." Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 629, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (" Heller I") ).

Indeed, virtually every other court to examine large capacity magazine bans has found that intermediate scrutiny is appropriate, assuming these magazines are protected by the Second Amendment. See Fyock, 779 F.3d at 999 ; Kolbe, 849 F.3d at 138–139 ; N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 258–60 (2d Cir. 2015) ; Heller II, 670 F.3d at 1261–62 ; S.F. Veteran Police Officers Ass'n v. City & County of San Francisco, 18 F.Supp.3d 997, 1002–04 (N.D. Cal. 2014). But see Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) (upholding municipal ban on assault weapons and large capacity magazines but declining to determine what level of scrutiny applied).⁴

Accordingly, because California's ban does not substantially burden individuals' ability to defend themselves, intermediate scrutiny is appropriate.

c. Application of Intermediate Scrutiny

Intermediate scrutiny requires "(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective." Fyock, 779 F.3d at 1000 (quoting Chovan, 735 F.3d at 1139 ). This test does not require that the government's regulation is the least restrictive means of achieving its interests. Rather, the government need only show that the regulation "promotes a substantial government interest that would be achieved less effectively absent the regulation." Id. (citation omitted). In reviewing the fit between the government's stated objective and the regulation, the court may consider legislative history as well as studies in the record or applicable case law. Id. The evidence need only "fairly support" the state's rationale, and in making this determination, c...