Jones et al v. Becerra et al, No. 3:2019cv01226 - Document 66 (S.D. Cal. 2020)
Court Description: ORDER denying 21 Motion for Preliminary Injunction. Signed by Judge M. James Lorenz on 11/03/2020. (jpp)
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Jones et al v. Becerra et al Doc. 66 Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8187 Page 1 of 19 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 Case No.: 19-cv-1226-L-AHG MATTHEW JONES, et al., Plaintiffs, 13 14 v. 15 XAVIER BECERRA, in his official capacity as Attorney General of California, et al., 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION Plaintiffs in this Second Amendment rights case have filed a motion for declaratory and injunctive relief. Defendants filed an Opposition and Plaintiffs filed a Reply. Both parties have filed additional recent authority which they claim supports their respective positions. I. BACKGROUND Plaintiffs argues that California Penal Code § 27510(a), as amended by Senate Bill (“SB”) 1100 and SB61, violates the Second Amendment rights of 18-20 year-old persons (“Young Adults”) because it bans them from purchasing, using, transferring, possessing, or controlling any firearm. (Motion at 1). In Plaintiffs view, the ban directly contradicts 1 19-cv-1226-L-AHG Dockets.Justia.com Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8188 Page 2 of 19 1 the holdings in District of Columbia v. Heller, 554 U.S. 570, 595 (2008) and McDonald 2 v. City of Chicago, Ill.,561 U.S. 742 (2010), which collectively held that the Second 3 Amendment’s “text, structure and history” confirm an individual’s fundamental right to 4 keep and bear arms, and that this right applies with full force to the states. (Id.) Plaintiffs 5 contend that California’s age-based gun ban cannot stand under the textual and historical 6 analysis of Heller because it abridges Young Adults’ Second Amendment right to keep 7 and bear arms in self-defense and for other lawful purposes. (Id. at 11-15). Even if the 8 Court finds that the ban does not abridge a core right of the Second Amendment, the gun 9 ban cannot pass strict or immediate scrutiny. (Id. at 17). In addition, Plaintiffs contend 10 that the gun ban’s exemptions are illusory and inapplicable because very few, if any, 11 Young Adults qualify for those exemptions. (Id. at 27). 12 Defendants counter that the Court should deny Plaintiffs request to enjoin 13 enforcement of § 27510 because Plaintiffs cannot show they are likely to succeed on the 14 merits of their claims. (Oppo. at 1). Defendants argue that §27510, as amended by SB 15 1100 and SB 61, is not an outright ban, but instead imposes limited restrictions with 16 exceptions carved out for individuals with firearm training. (Id.) The restrictions allow 17 Young Adults to obtain long guns under certain circumstances, and ensure that “only 18 those Young Adults with adequate training are able to purchase from federally licensed 19 firearm dealers (“FFL”) semi-automatic centerfire rifles capable of inflicting serious 20 injury.”1 (Id.) Defendants argue that Plaintiffs cannot meet their burden to establish the 21 other preliminary injunction factors. Specifically, Defendants suggest that the balance of 22 equities and public interest weigh against enjoining enforcement of a law that promotes 23 24 25 26 27 28 1 Semi-automatic centerfire rifles are “able to fire repeatedly through an automatic reloading process but requiring release and another pressure of the trigger for each successive shot” using “centerfire” ammunition in which a primer is located in the center of the cartridge case head, rather than in the rim. See https://www.merriam-webster.com/dictionary/semiautomatics; https://en.wikipedia.org/wiki/Centerfire_ammunition. 2 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8189 Page 3 of 19 1 firearm safety education and limits access to dangerous semi-automatic weapons to 2 individuals in an age group prone to impulsive or reckless behavior. (Id. 1-2). 3 California Penal Code § 27510 prohibits FFL’s from selling a firearm to a person 4 under 21 years of age: “A person licensed under Sections 26700 to 26915, inclusive, shall 5 not sell, supply, deliver, or give possession or control of a firearm to any person who is 6 under 21 years of age.” Cal. Penal Code §27510(a). 7 Section 27510 was amended by Senate Bill 1100 (SB 1100) and Senate Bill 61 (SB 8 61) which imposed age-based restrictions on the sale, supply, delivery, possession, or 9 control of a firearm. See Id.; 2017 California Senate Bill No. 1100; 2019 California 10 Senate Bill No. 61. Notably, SB 1100 restricts the sale, rental, delivery, or transfer of 11 long guns2 to any person under the age of 21 unless the individual has a valid, unexpired 12 hunting license issued by the Department of Fish and Wildlife, is an active duty member 13 of the Armed Forces, is an active duty peace officer, or honorably discharged member of 14 the Armed Forces. See Cal. Penal Code §27510 (b)(1)-(2). In 2019, the Legislature 15 passed SB 61 which limited the sale to individuals under age 21 of semi-automatic 16 centerfire rifles by FFL’s to active duty or reserve law enforcement officers who are 17 authorized to carry a firearm in the course of their employment, or active duty members 18 of the Armed Forces. Cal. Penal Code. §27510(3). 19 II. 20 Preliminary injunctive relief is “an extraordinary remedy that may only be awarded PRELIMINARY INJUNCTION STANDARD 21 upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. 22 Def. Council, Inc., 555 U.S. 7, 22 (2008). A party seeking such relief under Federal Rule 23 of Civil Procedure 65 must show “that he is likely to succeed on the merits, that he is 24 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 25 equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking 26 27 28 2 A long-gun is “a handheld firearm with a long barrel, as a rifle, designed to be fired when braced against the shoulder.” https://www.dictionary.com/browse/long-gun 3 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8190 Page 4 of 19 1 Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009)(quoting Winter, 555 2 U.S. at 20). The Ninth Circuit applies a sliding scale approach to the showing of 3 likelihood of success on the merits. See Alliance for Wild Rockies v. Cottrell, 632 F.3d 4 1127, 1131 (9th Cir. 2011). Under this approach, the elements of the preliminary 5 injunction test are balanced and, where a plaintiff can make a stronger showing of one 6 element, it may offset a weaker showing of another. Id. at 1131, 1134-35. “Therefore, 7 ‘serious questions going to the merits’ and a hardship balance that tips sharply towards 8 the plaintiff can support issuance of an injunction, so long as the plaintiff also shows a 9 likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 10 1134-35. 11 III. 12 The Second Amendment states: “A well regulated Militia, being necessary to the SECOND AMENDMENT 13 security of a free state, the right of the people to keep and bear Arms, shall not be 14 infringed.” U.S. Const. amend. II. An individual’s right to possess a handgun in the 15 home for self-defense is protected by the Second Amendment. Heller, 554 U.S. 595. In 16 Heller, the Supreme Court struck down a series of laws in the District of Columbia which 17 banned handgun possession within the home along with requirements that all firearms 18 within the home be “unloaded and disassembled or bound by a trigger lock or similar 19 device,” Id. at 575. The Court found that the core of the Second Amendment right is to 20 allow “law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. 21 at 635. However, the Court noted that this right is “not unlimited” and that individuals 22 may not “keep and carry any weapon whatsoever in any manner whatsoever and for 23 whatever purpose.” Id. at 626. Importantly, the Court stated that “nothing in our opinion 24 should be taken to cast doubt on longstanding prohibitions on the possession of firearms 25 by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive 26 places such as schools and government buildings, or laws imposing conditions and 27 qualifications on the commercial sale of arms.” Id. at 626-27. 28 4 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8191 Page 5 of 19 1 In 2010, the Supreme Court incorporated the Second Amendment to the states via 2 the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chicago, 561 3 U.S. 742, 767 (2010). The McDonald Court found that the right of law-abiding citizens 4 to keep and bear arms for self-defense is “deeply rooted in this Nation's history and 5 tradition.” Id. at 768 (internal quotation marks omitted). In sum, the Court held that 6 “[s]elf-defense is a basic right, recognized by many legal systems from ancient times to 7 the present day.” Id. at 767. 8 The Ninth Circuit has adopted a two-part test when considering the 9 constitutionality of a firearm regulation which: “(1) asks whether the challenged law 10 burdens conduct protected by the Second Amendment and (2) if so, directs courts to 11 apply an appropriate level of scrutiny.” United States v. Chovan, 735 F.3d 1127, 1138 12 (9th Cir. 2013). When determining whether a regulation creates a burden on protected 13 Second Amendment conduct, the Ninth Circuit recently announced that it appears to ask 14 four questions: 15 21 First, as a threshold matter, we determine whether the law regulates ‘arms’ for purposes of the Second Amendment. Second, we ask whether the law regulates an arm that is both dangerous and unusual. If the regulated arm is both dangerous and unusual, then the regulation does not burden protected conduct and the inquiry ends. Third, we assess whether the regulation is longstanding and thus presumptively lawful. And fourth, we inquire whether there is any persuasive historical evidence in the record showing that the regulation affects rights that fall outside the scope of the Second Amendment. Duncan v. Becerra, 970 F.3d 1133, 1145 (9th Cir. 2020)(internal citations omitted). 22 IV. 16 17 18 19 20 23 24 ANALYSIS A. Likelihood of Success on the Merits Plaintiffs must show that they are likely to succeed on the merits of the claim that § 25 27510 is unconstitutional. In accordance with the Chovan two-part test, the Court first 26 asks whether the challenged law burdens conduct protected by the Second Amendment. 27 See 735 F.3d at 1138. To answer this question, the Court applies the Ninth Circuit’s four 28 prong inquiry, beginning with whether Section 27510 regulates “arms.” Jackson v. City 5 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8192 Page 6 of 19 1 of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014)(“The Second Amendment protects 2 ‘arms,’ ‘weapons,’ and ‘firearms.’”) At issue here are regulations limiting who may 3 obtain or use “semi-automatic centerfire rifles” and “long-guns.” These firearms 4 constitute “arms” under the National Firearms Act (Act), 26 U.S.C. §§ 5801–5872, 5 satisfying the first prong. 6 Next, the Court considers whether long-guns and semi-automatic centerfire rifles 7 are considered “dangerous and unusual” to determine whether they fall outside the 8 protections of the Second Amendment. Duncan, 970 F.3d at 1146. A firearm is not 9 unusual if it is “typically possessed by law-abiding citizens for lawful purposes.” Heller, 10 554 U.S. at 627. Whether a firearm is “common” is generally a question of statistics. 11 Duncan, 970 F.3d at 1147. Hand grenades, sawed-off shotguns and fully automatic “M– 12 16 rifles and the like,” are not in common use or typically possessed by the citizenry, 13 making them unusual weapons that fall outside of the Second Amendment. Heller, 554 14 U.S. at 627; U.S. v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008) (“Machine guns are not in 15 common use by law-abiding citizens for lawful purposes and therefore fall within the 16 category of dangerous and unusual weapons that the government can prohibit for 17 individual use.”). Both long-guns and semi-automatic centerfire rifles are commonly used 18 by law abiding citizens for lawful purposes such as hunting, target practice, and self- 19 defense. Because these weapons are not considered “unusual,” the Court does not need 20 to determine whether they are also “dangerous.” Duncan, 970 F.3d n.8 at 1149. 21 The final inquiry requires that the Court assess whether the regulation is 22 longstanding and thus presumptively lawful. In addition, if text, history, and tradition, 23 demonstrate that the challenged law does not impose a burden on conduct falling within 24 the protections of the Second Amendment, the law “passes constitutional muster” and the 25 Court’s inquiry “is complete.” See Teixeira v. County of Alameda, 873 F.3d 670, 682 (9th 26 Cir. 2017) (internal quotations omitted). If, however, the challenged law burdens the 27 Second Amendment, the court must next determine whether to apply intermediate or 28 strict scrutiny. Chovan, 735 F.3d at 1138. 6 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8193 Page 7 of 19 1 2 1. Longstanding Regulation, History and Tradition The inquiry as to whether a regulation is longstanding necessarily requires the 3 Court to examine the history of the law. When analyzed through the lens of history and 4 tradition, it is apparent that a number of gun regulations have co-existed with the Second 5 Amendment right. Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1274 6 (U.S.App. D.C. 2011). The exceptions to the Second Amendment include “laws 7 imposing conditions and qualifications on the commercial sale of arms” and some 8 “longstanding prohibitions on the possession of firearms.” Heller, 554 U.S. at 626-27 & 9 n. 26. Although the term “longstanding” is somewhat ambiguous, “Heller demonstrates 10 that a regulation can be deemed ‘longstanding’ even if it cannot boast a precise founding- 11 era analogue.” National Rifle Ass’n of America, Inc., v. Bureau of Alcohol and Tobacco, 12 Firearms, and Explosives, 700 F.3d 185, 196 (5th Cir. 2012)(“NRA”); see also United 13 States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (“[W]e do take from Heller the 14 message that exclusions need not mirror limits that were on the books in 1791.”) As an 15 example, the Court drew an analogy between long recognized rights such as freedom of 16 speech and libel afforded by the First Amendment, and the regulation of firearms under 17 the Second Amendment, noting that simply because those First Amendment rights were 18 not established by the Court for almost 150 to 200 years from the ratification of the 19 Amendment they nonetheless are considered longstanding rights. See Heller, 554 U.S. at 20 625 (citing Near v. Minnesota ex.rel. Olson, 283 U.S. 697 (1931); New York Times Co. v. 21 Sullivan, 376 U.S. 254 (1964).) 22 The Ninth Circuit has yet to weigh in on the constitutionality of age-based 23 restrictions on the possession and use of specific firearms, but the Fifth Circuit 24 determined that a federal prohibition against the sale of handguns to those under age 21 25 by FFL’s passed constitutional muster because it was “consistent with a longstanding 26 historical tradition” and therefore the regulation did not burden the Second Amendment’s 27 protections. NRA, 700 F.3d at 203. In so finding, the Fifth Circuit looked as far back as 28 the Founding Era when concluding that various gun safety regulations, including laws 7 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8194 Page 8 of 19 1 that restricted the ability of persons under 21 to purchase or use particular firearms, were 2 longstanding and served public safety purposes. Id. 700 F.3d 200-203. 3 Other courts have agreed that prohibitions on the acquisition and possession of 4 certain firearms by those under the age of 21 are longstanding and fall outside the ambit 5 of Second Amendment protections. See Hirschfeld v. Bureau of Alcohol, Tobacco, 6 Firearms and Explosives, 417 F.Supp.3d 747, 755 (W.D. Virginia 2019)(federal criminal 7 statutes prohibiting FFL’s from selling handguns to those under 21 reflect 8 “’longstanding’ prohibitions on the use or possession of handguns by those of a given 9 age”). Though not binding on this Court, the reasoning of Mitchell v. Atkins, from the 10 Western District of Washington, another district court within the Ninth Circuit, is 11 instructive. Mitchell v. Atkins, --F.Supp.3d --, 2020 WL 5106723 (W.D. Wash. Aug. 12 2020). The Plaintiffs there challenged the constitutionality of I-1639, a Washington 13 initiative that prohibits individuals under the age of 21 from purchasing semiautomatic 14 assault rifles (“SARs”). Id. at 1. The district court noted that “at common law and at the 15 time of the adoption of the Constitution, the age of majority was 21 years,” and that “by 16 1923, over half the states then in the union had set 21 as the minimum age for purchase or 17 use of a particular firearm.” Id. at 4. Age-based restrictions for firearm possession and 18 use continue into the modern age, with federal law prohibiting FFL’s from selling 19 handguns to persons under 21 starting in 1968 under 18 U.S.C. § 922(b)(1), and five 20 states prohibit the sale of all long-guns to persons under age 21. Id. In conclusion, the 21 court held that the “authorities demonstrate that reasonable age restrictions on the sale, 22 possession, or use of firearms have an established history in this country,” therefore the 23 Washington initiative did not burden Second Amendment rights, and the plaintiffs 24 challenge failed at the first step of the inquiry. Id. at 5. 25 The Ninth Circuit has noted that, even “early twentieth century regulations might . 26 . . demonstrate a history of longstanding regulation if their historical prevalence and 27 significance is properly developed in the record.” Fyock v. Sunnyvale, 779 F.3d 991, 997 28 (9th Cir. 2015); see also Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016). Courts may 8 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8195 Page 9 of 19 1 look to a “variety of legal and other sources” when attempting to determine whether a 2 regulation burdens Second Amendment protections or is a longstanding exclusion. 3 Heller, 554 U.S. at 605. 4 Plaintiffs argue that extensive historical analysis demonstrates there were no age- 5 based restrictions on the acquisition, purchase, or possession of firearms during the 6 Colonial and Founding Era, and that in fact all male citizens over the age of 18 were 7 required to use their own arms “to help enforce the law” by participating in the militia. 8 (Reply at 4-5). Defendants counter that Section 27510’s age-based restrictions on FFL 9 sales and transfers are consistent with historical prohibitions and are presumptively 10 11 lawful regulations that do not implicate the Second Amendment. (Oppo. at 7). Though the Fifth Circuit’s reasoning in NRA is not controlling, it sheds light on the 12 extensive historical background of firearm regulations, the reasoning behind such 13 regulations, and militia requirements to ensure members complied with accountability 14 rules. Although the regulations in question in NRA and §27510 involve the prohibition of 15 different weapons, the historical backdrop of age-based restrictions is the same. They 16 support the conclusion that age-based restrictions like the one in section 27510 are 17 longstanding, and presumptively Constitutional. 18 Plaintiffs take issue with comparisons between Young Adults and “dubious laws 19 disarming and prohibiting sales of arms to certain groups” of individuals such as felons, 20 the mentally unstable, Loyalists, and slaves, as the Court in NRA did. (Mot. at 16-17.) 21 This decision does not rest on such comparisons. Individuals under the age of 21 were 22 considered minors or “infants” for most of our country’s history without the rights 23 afforded adults. It is therefore, not surprising that Young Adults were included along 24 with others believed unfit of responsible firearm possession and use. See e.g. 1 25 Commentaries on the Laws of England 55 (1769) William Blackstone, (“So that full age 26 in male or female, is twenty-one years …, who till that time is an infant, and so styled in 27 law.”) Indeed, Black’s Law Dictionary defines an “infant” under the law as “a person 28 under the age of twenty-one years, and at that period . . . he or she is said to attain 9 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8196 Page 10 of 19 1 majority.” Black's Law Dictionary (11th ed. 2019). The reasoning behind those 2 prohibitions was that these groups were considered incapable of the trust required to 3 ensure proper and safe use of firearms. See generally Powell, 926 F.Supp.2d at 387. Even 4 today, laws prohibit individuals under 21 from renting a car or purchasing alcohol, 5 indicating that age-based restrictions facilitate important public safety goals. See 6 Mitchell, 2020 5106723 at *5-6; Declaration of Combs, Ex 2 at 0012 [ECF No. 21-8.]) 7 Plaintiffs argument that in the Founding Era, Young Adults age 18 and up were 8 expected to participate in the militia and were required to have their own firearm is not at 9 odds with the regulation of Young Adults’ firearm possession. Militias were well 10 regulated by each state in the Founding Era: members of the militia were required to meet 11 regularly for weapons inspection and registration, and members who did not show up 12 with the required equipment could be fined. Saul Cornell, Nathan DeDino, A Well 13 Regulated Right: The Early America Origins of Gun Control, 73 Fordham L. Rev. 487, 14 509-511. Militia members were required to possess their own firearms if they complied 15 with accountability and maintenance regulations. The strict rules surrounding militia duty 16 demonstrate that as far back as the Founding Era, firearm regulations were considered 17 necessary and an individual’s right to firearm possession came with obligations to ensure 18 public safety. The regulations applied to militia members support the Heller court’s 19 finding that an individual may not “keep and carry any weapon whatsoever in any 20 manner whatsoever and for whatever purpose” he or she chooses. Heller, 554 U.S. at 21 626. 22 As indicated above, Plaintiffs cannot show a likelihood of success on the merits 23 when other courts, including those within the Ninth Circuit, have found that age-based 24 firearm restrictions such as California Penal code 27510 are longstanding, do not burden 25 the Second Amendment, and are therefore presumptively Constitutional. 26 // 27 // 28 // 10 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8197 Page 11 of 19 1 2 2. Intermediate or Strict Scrutiny Although the Court concludes that Plaintiffs cannot demonstrate a likelihood of 3 success on the merits because the challenged regulation does not burden the Second 4 Amendment, most courts, in an abundance of caution, also consider whether the 5 regulation in question survives strict or intermediate scrutiny. See NRA.,700 F.3d at 204- 6 205; Mitchell, 2020 WL 5106723 at *5. The level of scrutiny depends on “(1) how close 7 the law comes to the core of the Second Amendment right, and (2) the severity of the 8 law's burden on the right.” Chovan, 735 F.3d at 1138 (internal quotation marks omitted). 9 For strict scrutiny to apply, the law must (1) implicate the core Second Amendment right 10 of defense of home and hearth, and (2) severely burden that right. Pena v. Lindley, 898 11 F.3d 969, 977 (9th Cir. 2018). If the law “does not implicate the core Second 12 Amendment right or does not place a substantial burden on that right,” the court applies 13 intermediate scrutiny. See Fyock, 779 F.3d 998-99. There has been “near unanimity in 14 the post-Heller case law that, when considering regulations that fall within the scope of 15 the Second Amendment, intermediate scrutiny is appropriate.” Silvester, 843 F.3d at 823. 16 Plaintiffs argue that strict scrutiny is the proper test, citing the recent Ninth Circuit 17 decision in Duncan v. Becerra. There, the appellate court addressed a California law 18 banning possession of large capacity magazines (LCM) that carried more than ten rounds 19 of ammunition, finding that “any law that comes close to categorically banning the 20 possession of arms that are commonly used for self-defense imposes a substantial burden 21 on the Second Amendment” requiring strict scrutiny. Duncan, 970 F.3d at 1152. 22 Defendants counter that intermediate scrutiny is the proper test because § 27510 is 23 limited in scope to the category of individuals affected, allows alternative channels for 24 self-defense, and proscribes only commercial conduct outside the home. (Oppo. at 10.) 25 Contrary to Plaintiffs’ assertions, the California law in question is not a complete 26 ban on the sale, transfer or supply by a federally licensed firearms dealer of all firearms 27 for persons 18 to 20 years old. Instead, a careful reading of the provision shows that 28 FFL’s may sell, deliver, transfer any firearm that is not a handgun or semiautomatic 11 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8198 Page 12 of 19 1 centerfire rifle to Young Adults who have a valid, unexpired hunting license, or who have 2 been honorably discharged from the armed forces, or National Guard.3 Cal. Pen. Code § 3 27510(b)(1)-(2). The only complete ban is for any FFA to sell, deliver, or supply a 4 handgun to a Young Adult. Under the SB61 amendments, individuals between the ages 5 of 18 and 20 may possess semi-automatic centerfire rifles if they are members of law 6 enforcement, active duty members of the Armed Forces, National Guard, Air National 7 Guard, or active reserve components of the United States. Cal. Pen. Code 27510 8 (b)(3)(A)-(D). Section 27510 also allows Young Adults to purchase long guns for self- 9 defense from FFL’s or receive otherwise prohibited firearms via transfer from immediate 10 family. The exemptions in §27510 arguably ensure that access to these weapons is 11 restricted to mature individuals who have successfully completed safety training, 12 furthering the public safety objectives and ensuring that the Founding Era balancing of 13 Second Amendment rights with safety concerns continues today. Chovin, 735 F.3d at 14 1138 (If a law creates exceptions to the regulation of a core Second Amendment right, the 15 impact of the burden on that right may be alleviated.) 16 Plaintiffs further argue that the exemptions for individuals with hunting licenses, 17 military, or law enforcement training are illusory because requiring Young Adults to 18 enlist in the military or police force, or “feign interest” in hunting just to purchase the 19 weapons of their choice makes the exemptions prohibitive. (Reply at 2). They claim that 20 the hunting exemption is “useless and inapplicable to ordinary, law-abiding Young 21 Adults” who want to buy certain firearms for self-defense. (Id.) In addition, Plaintiffs 22 point to the fact that many police forces will not allow a candidate to apply until he or she 23 24 25 26 27 28 3 Plaintiffs claim that prior to SB 61’s passage, honorably discharged Young Adults were able to purchase firearms, but now the exemption is “gutted” because they can no longer access semiautomatic centerfire rifles. (Reply at 2). The exemption is not “gutted” because SB 61’s amendment only prohibits them from a specific kind of firearm, specifically semi-automatic centerfire rifles. Honorably discharged Young Adults may still purchase long-guns. 12 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8199 Page 13 of 19 1 is 20 years old, and some do not allow anyone to serve as a law enforcement officer until 2 he or she is 21, which means that the exemption does not assist Young Adults as it 3 appears. (Mot at 26.) 4 Contrary to Plaintiffs assertions, the hunting license course is not a severe burden 5 to Young Adults who wish to possess long-guns. The standard fee for online hunting 6 courses is $28.95, which is about the same as the $25 firearm safety certificate required 7 absent section 27510’s amendments. See Combs Decl, Ex. 6 at 0156 [ECF No. 21-8]; 8 Rosenberg Decl. Ex. 7, Cal. Dept. of Justice, Firearm Safety Certificate Program FAQs, 9 http://oag.ca.gov/fiearms/fscpfaqs). The courses are widely available and combine 10 written testing with a firearm safety demonstration follow-up class, effectuating the stated 11 intent of the legislature to allow Young Adults with proper safety training the right to 12 own long-guns. The law enforcement exemption is more limited, as it is true that some 13 agencies require individuals to be 20 years old to apply, and individuals may not join the 14 force until they are 21. It is notable that many law enforcement agencies do not allow 15 individuals under the age of 21 to become officers, and even then require extensive 16 physical, academic, and firearms training, supporting the argument that individuals under 17 the age of 21 are not ready for the responsibilities attendant with the gravity of the 18 position. 19 While the Ninth Circuit found strict scrutiny appropriate in Duncan, the reasoning 20 is distinguishable because the large capacity magazines (“LCM”) at issue there were 21 banned completely. This led the court to find that this complete prohibition struck the 22 very heart of Second Amendment protections. Duncan, 970 F.3d at 1152. Section 27510 23 does not categorically ban the possession of arms used for self-defense. It therefore, does 24 not impose a substantial burden on the Second Amendment, and allows for intermediate 25 rather than strict scrutiny. 26 Under intermediate scrutiny, “all forms of the standard require (1) the 27 government's stated objective to be significant, substantial, or important; and (2) a 28 13 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8200 Page 14 of 19 1 reasonable fit between the challenged regulation and the asserted objective.” Chovan, 2 735 F.3d at 1139. 3 Plaintiffs contend that §27510 fails intermediate scrutiny because it is not 4 substantially related to the State’s interests in reducing school shootings and gun 5 violence. (Mot. at 18-21.) In addition, Plaintiffs claim that the restriction is not a 6 reasonable fit to facilitate those interests because there is no reliable data confirming that 7 Young Adults commit more violent crimes, and therefore, restricting FFL’s from selling 8 certain weapons to Young Adults will not reduce gun related crime. (Id.) 9 Defendants counter that California has a substantial interest in increasing public 10 safety and preventing gun violence, and that section 27510 furthers those interests by 11 ensuring that Young Adults with access to certain firearms have additional safety 12 training. (Oppo. at 12). Defendants further argue that the limitations on semi-automatic 13 centerfire rifles is also a reasonable fit with the stated public safety interest in ensuring 14 that “weapons capable of quickly inflicting violence on large numbers of people remain 15 in the hands of those with proper training.” (Id.) Age-based regulations on specific 16 commercial firearm sales are also supported by scientific data that shows Young Adults 17 are disproportionately disposed to harm themselves or others in part due to the general 18 rate of cognitive development in individuals in this age group. (Id. at 14). The 19 exemptions allowed for those with firearm safety training in the military, law 20 enforcement, or through hunting licenses, are a “modest requirement.” Finally, despite 21 the restrictions imposed by §27510, sales of the allowed firearms have continued. (Id. at 22 21). 23 The stated objectives of SB 1100 and SB 61 are to increase public safety through 24 sensible firearm control and limit access to certain firearms for some Young Adults with 25 proper safety training. (Combs Decl., Ex. 2 0010-0011, Ex. 6. [ECF No. 21-8.]) The 26 Ninth Circuit has stated that “public safety is advanced by keeping guns out of the hands 27 of people who are most likely to misuse them[.]” Bauer v. Becerra, 858 F.3d 1216, 1223 28 (9th Cir. 2017). When Congress passed the Omnibus Crime Control and Safe Streets Act 14 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8201 Page 15 of 19 1 of 1968, one of the aims was to reduce crime by keeping “firearms out of the hands of 2 those not legally entitled to possess them” including those under a certain age. 3 Huddleston v. United States, 415 U.S. 814, 824 (1974) (quoting S.Rep No. 90-1501, at 4 22). In passing the Act, the legislature heard testimony from law enforcement officials, 5 including one who stated “[t]he greatest growth of crime today is in the area of young 6 people, juveniles, and young adults. The easy availability of weapons makes their 7 tendency toward wild, and sometimes irrational behavior that much more violent, that 8 much more deadly.” Federal Firearms Act: Hearings Before the Subcomm., to 9 Investigate Juvenile Delinquency of the Sen.Comm. on the Judiciary, 90th Cong. 57 10 (1967)(testimony of Sheldon S. Cohen). Similarly, courts that have considered Second 11 Amendment challenges to age-based firearm restrictions or prohibitions have noted that 12 this group “tend[s] to be relatively immature and that denying them easy access to 13 [certain firearms] would deter violent crime.” NRA, 700 F.3d at 203. The stated public 14 safety concerns and objectives of section 27510 to promote public safety through age- 15 based long-gun and semiautomatic centerfire rifle regulations is significant. 16 Plaintiffs argue that Defendants’ evidence suggesting Young Adults are more 17 prone to violence and poor judgment misrepresents or misconstrues the statistical 18 evidence, and that there is no foundation to that claim. (Plaintiffs’ Objections to 19 Defendants Evidence at 1-4.) The Court recognizes that the specific age to which the 20 Congressional delegates were referring is unclear, and that many 18-20 year olds 21 navigate those years without criminal records or engaging in reckless behavior. However, 22 it remains commonly understood that Young Adults may require additional safeguards to 23 ensure proper training and maintenance of firearms, and that § 27510 provides a 24 reasonable fit to the stated public safety aims with its enumerated exceptions. 25 As noted above, the majority of courts have applied intermediate scrutiny to 26 similar challenges to age-based firearm restrictions, finding them to pass Constitutional 27 muster. Plaintiffs, therefore, are not likely to succeed on the merits of the claim. 28 // 15 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8202 Page 16 of 19 1 B. Irreparable Harm 2 “Irreparable harm is traditionally defined as harm for which there is no adequate 3 legal remedy, such as an award of damages.” Arizona Dream Act Coal. v. Brewer, 757 4 F.3d 1053, 1068 (9th Cir. 2014). Even if Plaintiffs can show a likelihood of success on 5 the merits, they have not demonstrated irreparable harm requiring enjoining section 6 27510. 7 Plaintiffs argue they have been deprived of their Second Amendment rights, which 8 is sufficient in itself to show irreparable harm. (Mem. P. & A. at 28). Moreover, 9 Plaintiffs argue that Defendants have no plausible argument that enjoining enforcement 10 of 27510 will endanger public safety or lead to an increase in mass school shootings. 11 (Id.) Instead, Plaintiffs contend that safeguards remain in place for all firearm sales 12 including federal and state background checks, a valid firearm safety certificate, proofs of 13 age and residency, a ten-day waiting period, a safe handling demonstration of the firearm 14 being purchased, a gun safe affidavit or a firearm cable lock, and a background check to 15 purchase ammunition. (Id. at 29). Finally, Plaintiffs argue that any suggestion that the 16 prohibitions result in temporary inconvenience is “absurd” because the prohibitions on 17 Young Adults “could be deadly to them and/or their families.” (Reply at 9-10). 18 In response, Defendants argue that Plaintiffs cannot establish they will suffer any 19 irreparable harm in the absence of a preliminary injunction because they have not shown 20 that they are likely to succeed on their Second Amendment claim. (Oppo. at 26.) 21 Moreover, the purpose of a preliminary injunction is to provide speedy action to protect a 22 plaintiff’s rights, but Plaintiffs waited three months after filing their initial complaint 23 before filing the request for a preliminary injunction belying their contention that they 24 were suffering from grave and irreparable harm. (Id. at 28). Defendants note that none of 25 the named Plaintiffs alleged in the SAC stated that they wanted to acquire a semi- 26 automatic centerfire rifle or that he could not acquire the firearm he desired through a 27 parent, grandparent, or spouse. (Oppo at 27). 28 16 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8203 Page 17 of 19 1 Plaintiffs claim that a deprivation of their rights for any amount of time is 2 sufficient to demonstrate irreparable harm is contradicted by the fact that they did not 3 immediately request a preliminary injunction to stop the alleged deprivation. Instead, 4 Plaintiffs, waited two months after filing the SAC to seek this relief and did not allege 5 they were unable to acquire semi-automatic centerfire rifles. The delay is a factor in this 6 Court’s consideration of the matter. Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 7 F.2d 1374, 1377 (9th Cir. 1985)(“[L]ong delay before seeking a preliminary injunction 8 implies a lack of urgency and irreparable harm”); but see Arc of Cal. v. Douglas, 757 9 F.3d 975, 990 (9th Cir. 2014)(“delay is but a single factor to consider in evaluating 10 irreparable injury.”) 11 More importantly, Young Adults are not banned from acquiring all firearms, but 12 may qualify under an exception, or may receive transfers from parents, grandparents, and 13 spouses. They may also use firearms at shooting ranges under certain circumstances. 14 Although the Court recognizes that Plaintiffs might prefer to protect themselves with any 15 firearm of their choice, this is still possible if they comply with exemption qualifications. 16 The restrictions placed on acquisition of long-guns and semi-automatic centerfire rifles 17 from FFL’s includes exceptions allowing qualified individuals access to certain firearms 18 for self-defense and other legal purposes. The conditions placed on commercial 19 transactions from FFL’s imposes a condition or qualification on commercial transactions 20 to ensure public safety, as Plaintiffs may still access firearms if they meet the exemptions, 21 through family transfers and when they turn 21. See Hirschfield, 417 F.Supp 3d at 757. 22 For the reasons above, Plaintiffs have not shown a likelihood of success on the 23 merits of their claim that § 27510 violates Young Adults Second Amendment rights, and 24 have not shown they will suffer irreparable harm in the absence of a preliminary 25 injunction. 26 // 27 // 28 // 17 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8204 Page 18 of 19 1 C. Balancing Interests 2 Plaintiffs contends that the balance of harms sharply tips in their favor because 3 they seek to maintain the status quo while they litigate the merits of their action, and 4 prohibiting lawful sales, transfers, acquisitions, use, handling, and rentals of “any firearm 5 does not increase public safety, especially where, as here, all such purchases must comply 6 with a vast array of regulations.” (Mot. at 30.) 7 Defendants counter that the “modest inconveniences any individual Young Adult 8 may experience in procuring a hunting license in order to purchase a long-gun, or 9 lawfully securing a firearm through a non-FFL transfer, do not outweigh the public safety 10 concerns” outlined in their opposition. (Oppo. at 29-30.) 11 This Court must balance the burden that some Young Adults will experience 12 because they are deprived of their choice to purchase or use certain firearms, against the 13 enjoinment of a law designed to increase public safety. When undertaking this weighing 14 “of the public interest against a private interest, the public interest should receive greater 15 weight.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1236 (9th Cir. 1999) (internal 16 quotation marks omitted). 17 As noted above, the aim of § 27510 was to advance public safety by limiting the 18 possession and use of deadly weapons to mature individuals who have demonstrated 19 discipline through proper training to ensure public safety while honoring the Second 20 Amendment rights of these individuals. See generally NRA, 700 F.3d at 203; Mitchell, 21 2020 WL5106723 *4-5. The potential harm of enjoining a duly-enacted law designed to 22 protect public safety outweighs Young Adults’ inability to secure the firearm of their 23 choice without proper training. See, Tracy Rifle & Pistol LLC v. Harris, 118 F.Supp. 3d 24 1182, 1193 (E.D. Cal. 2015), aff'd, 637 Fed.Appx. 401 (9th Cir. 2016) (holding that 25 “[t]he costs of being mistaken, on the issue of whether the injunction would have a 26 detrimental effect on handgun crime, violence, and suicide, would be grave.”) Here, the 27 public interests outweigh the potential for private harm. 28 // 18 19-cv-1226-L-AHG Case 3:19-cv-01226-L-AHG Document 66 Filed 11/03/20 PageID.8205 Page 19 of 19 1 V. 2 For the foregoing reasons, the Court DENIES Plaintiffs motion for preliminary 3 CONCLUSION injunctive relief. 4 5 6 IT IS SO ORDERED Dated: November 3, 2020 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 19-cv-1226-L-AHG
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