B & L Prods., Inc. v. Newsom

104 F.4th 108

B & L PRODUCTIONS, INC., dba Crossroads of the West; Barry Bardack;

Ronald J. Diaz, Sr.; John Dupree; Christopher Irick; Robert Solis;

Lawrence Michael Walsh; Captain Jon's Lockers, LLC;

L.A.X. Firing Range, Inc., dba Lax Ammo; California Rifle & Pistol Association, Inc.;

South Bay Rod and Gun Club, Inc.; Second Amendment Foundation, Plaintiffs-Appellants, v. Gavin NEWSOM, in his official capacity as Governor of the State of California and in his personal capacity;

Rob Bonta, in his official capacity as Attorney General of the State of California and in his personal capacity;

Karen Ross, in her official capacity as Secretary of California Department of Food & Agriculture and

in her personal capacity; 22nd District Agricultural Association; Summer Stephan,

in her official capacity as District Attorney of San Diego County; Lonnie J. Eldridge, in his official capacity as County Counsel of San Diego County; Does, 1-50, Defendants-Appellees.

B & L Productions, Inc., dba Crossroads of the West; California Rifle & Pistol Association; Gerald Clark;

Eric Johnson; Chad Littrell; Jan Steven Merson; Asian Pacific American Gun Owner Association;

Second Amendment Law Center, Inc.; Second Amendment Foundation, Plaintiffs-Appellees, v. Gavin Newsom, in his official capacity as Governor of the State of California; Rob Bonta,in his official capacity as Attorney General of the State of California; Karen Ross,

in her official capacity as Secretary of California Department of Food & Agriculture and in her personal capacity;

32nd District Agricultural Association, Defendants-Appellants,

Todd Spitzer, in his official capacity as District Attorney of Orange County, Does, 1-10, Defendants.

No. 23-55431

No. 23-3793

United States Court of Appeals, Ninth Circuit

Argued and Submitted March 6, 2024 Pasadena, California

Filed June 11, 2024

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding, D.C. No. 3:21-cv-01718-AJB-DDL

Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding, D.C. No. 8:22-cv-01518-JWH-JDE

Anna M. Barvir (argued), Tiffany D. Cheuvront, C.D. Michel, and Alexander A. Frank, Michel & Associates PC, Long Beach, California; Donald Kilmer, Law Offices of Donald Kilmer APC, Caldwell, Idaho; for Plaintiffs-Appellants.

Charles J. Sarosy (argued), and Nicole J. Kau, Deputy Attorneys General; Anthony R. Hakl, Lara Haddad, and R. Matthew Wise, Supervising Deputy Attorneys General; Thomas S. Patterson, Senior Assistant Attorney General; Rob Bonta, California Attorney General; Office of the California Attorney General, Los Angeles, California; Katie A. Richardson and Timothy M. White, Office of County Counsel, County of San Diego, San Diego, California; for Defendants-Appellees.

Joseph Greenlee, Greenlee Law PLLC, McCall, Idaho; David B. Kopel, Independence Institute, Denver, Colorado; for Amici Curiae Citizens Committee for the Right to Keep and Bear Arms and Independence Institute.

Before: Richard R. Clifton, Holly A. Thomas, and Roopali H. Desai, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

These cases involve challenges brought by B&L Productions, Inc., and associated stakeholders ("B&L") against state officeholders tasked with enforcing various California statutes (the "Challenged Statutes") that bar the sale of guns on state property. In both cases, B&L asserts that the Challenged Statutes restrict protected speech in violation of the First and Fourteenth Amendments and infringe on the right to keep and bear arms under the Second Amendment.

In Case No. 23-55431, which concerns B&L's challenge to a ban on firearm sales at the Del Mar Fairgrounds, the district court dismissed B&L's lawsuit under Federal Rule of Civil Procedure 12(b)(6), holding that B&L had failed to state a claim that the ban violates its constitutional rights. Conversely, in Case No. 23-3793, which concerns B&L's challenge to bans on firearm sales (1) at the Orange County Fairgrounds and (2) on all state property, the district court granted B&L's motion for a preliminary injunction, holding that B&L was likely to succeed on the merits of all its claims.

We conclude that the Challenged Statutes do not infringe on B&L's constitutional rights. Because the statutes solely restrict nonexpressive conduct—contracting for the sale of firearms—they are not subject to First Amendment scrutiny. As well, B&L essentially concedes that the Challenged Statutes do not "meaningfully constrain" any individual's ability to keep and bear arms. The Challenged Statutes therefore do not implicate the plain text of the Second Amendment.

We affirm the district court's dismissal of B&L's claims in Case No. 23-55431. We vacate the grant of a preliminary injunction in Case No. 23-3793.

I. Background

Plaintiff B&L Productions, Inc., operates gun shows in California under the name Crossroads of the West. Its gun shows are centered on the sale of firearms, but they also involve lectures, classes, and the sale of other goods. B&L hosts gun shows at the Del Mar Fairgrounds in San Diego County and the Orange County Fair & Event Center ("Orange County Fairgrounds"), which are owned by the State of California and operated by the 22nd and 32nd District Agricultural Associations (singularly, "DAA"), respectively.

In 2018, the 22nd DAA imposed a one-year moratorium on gun shows at the Del Mar Fairgrounds. After B&L filed suit, a district court held that an explicit ban on gun shows likely violates the First and Fourteenth Amendments. B & L Prods., Inc. v. 22nd Dist. Agric. Ass'n, 394 F. Supp. 3d 1226, 1236, 1243-50 (S.D. Cal. 2019). In April 2020, the parties reached a settlement, allowing B&L to book gun shows but reserving the right for the 22nd DAA to change its policies in the future.

In October 2019, while that litigation was underway, California passed AB 893, which bars any "officer, employee, operator, lessee, or licensee" of the 22nd DAA from "contract[ing] for, authoriz[ing], or allow[ing] the sale of any firearm or ammunition on the property or in the buildings that comprise the Del Mar Fairgrounds." The law on its face does not prohibit gun show vendors from advertising the firearms they are offering for sale. It also does not prevent attendees from taking immediate possession of a gun purchased at a gun show,¹ which B&L concedes was already banned by other California statutes that it does not challenge here.² Instead, AB 893 prevents vendors and gun show attendees from consummating a contract to purchase firearms or ammunition while at the Del Mar Fairgrounds. Whereas visitors to the Fairgrounds could previously agree to purchase firearms and immediately begin the background check process, Cal. Penal Code § 26805(b)(1), AB 893 bars attendees from completing those preliminary steps until they have left the Fairgrounds.

The April 2020 settlement had acknowledged the passage of AB 893 and noted that the agreement's terms were subject to the statute's requirements. Based on AB 893, the 22nd DAA subsequently refused to contract with B&L to host any gun show at which firearms and ammunition were to be sold.

B&L filed suit in the Southern District of California against Governor Gavin Newsom and other state officials³ (the "State Defendants") on October 4, 2021, asserting that AB 893 violated its rights under the First and Fourteenth Amendments. Alleging that its gun shows are not economically viable without firearm sales, B&L asserted that AB 893 therefore has "the intention and effect of shuttering gun show events altogether," along with their attendant pro-gun speech. The district court dismissed the complaint with leave to amend, concluding that AB 893 does not ban gun shows but instead simply prohibits the sale of guns on state property.

B&L filed an amended complaint on August 31, 2022, in which it added a Second Amendment claim based on the Supreme Court's opinion in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). The district court dismissed the amended complaint in its entirety, holding that B&L had failed to state any claim upon which relief could be granted. B&L appealed that decision.

Meanwhile, in 2021, California passed SB 264, which imposes the same restrictions as AB 893 on the Orange County Fairgrounds. The next year, the state passed SB 915, which expanded the ban on firearm sales to all state property. B&L sued the State Defendants⁴ in the Central District of California on August 12, 2022, challenging SB 264 and SB 915 under the same legal theories as in the Del Mar case. The district court granted B&L's motion for a preliminary injunction on October 30, 2023, holding that B&L was likely to succeed on the merits of its claims under the First and Second Amendments. After the State Defendants appealed that order, we coordinated the two cases for oral argument and ultimately consolidated them for decision.

II. Discussion

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district courts' legal determinations. Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021) (motion to dismiss); Puente Ariz. v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016) (preliminary injunction).⁵ In each case, B&L argues that the Challenged Statutes impermissibly infringe on protected speech⁶ and that a ban on firearm sales on state property violates the plain text of the Second Amendment.

A. First Amendment

B&L contends that the Challenged Statutes violate its rights under the First Amendment. As the party asserting such a claim, B&L bears the burden "to demonstrate that the First Amendment even applies." Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). To meet this burden, B&L raises two separate arguments. First, it asserts that the Challenged Statutes are an attempt to ban gun shows and the pro-gun "pure speech"...