Duncan v. Bonta

83 F.4th 803

Virginia DUNCAN; Patrick Lovette; David Marguglio; Christopher Waddell;California Rifle & Pistol Association, Inc., a California corporation, Plaintiffs-Appellees, v. Rob BONTA, in his official capacity as Attorney General of the State of California, Defendant-Appellant.

No. 23-55805

United States Court of Appeals, Ninth Circuit

Filed October 10, 2023

D.C. No. 3:17-cv-01017-BEN-JLB

Anna Barvir, Sean Anthony Brady, Attorneys, Carl D. Michel, Esquire, Senior Attorney, Michel & Associates, PC, Long Beach, CA, for Plaintiffs-Appellees.

John Darrow Echeverria, Attorney, California Department of Justice, San Francisco, CA, Robert Meyerhoff, California Department of Justice, Business & Tax, Los Angeles, CA, Mica Moore, AGCA-Office of the California Attorney General, Los Angeles, CA, for Defendant-Appellant.

Before: MURGUIA, Chief Judge, and S.R. THOMAS, GRABER, WARDLAW, PAEZ, BERZON, IKUTA, HURWITZ, R. NELSON, BUMATAY and VANDYKE, Circuit Judges.

Order;

Dissent by Judge R. Nelson;

Dissent by Judge Bumatay

ORDER

California Penal Code section 32310(a) creates criminal liability for "any person . . . who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives" a large-capacity magazine ("LCM"), which is defined as "any ammunition feeding device with the capacity to accept more than 10 rounds". Cal. Penal Code § 16740. Plaintiffs—five individuals and the California Rifle & Pistol Association, Inc.—filed this action in the Southern District of California challenging the constitutionality of Section 32310 under the Second Amendment. On September 22, 2023, the district court issued an order declaring Section 32310 "unconstitutional in its entirety" and enjoining California officials from enforcing the law. Duncan v. Bonta, No. 17-CV-1017-BEN (JLB), 2023 WL 6180472, at *35-36 (S.D. Cal. Sept. 22, 2023). On September 26, Defendant Rob Bonta, the Attorney General of California, filed an emergency motion for a partial stay pending appeal. The Attorney General seeks to stay "all portions of the order except those regarding Sections 32310(c) and (d), which relate to large-capacity magazines that were acquired and possessed lawfully prior to the district court's order granting a permanent injunction." Mot. at 2. We grant the motion.

When deciding whether to grant a stay pending appeal, "a court considers four factors: '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.' " Nken v. Holder, 556 U.S. 418, 425-26, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). Here, a stay is appropriate.

First, we conclude that the Attorney General is likely to succeed on the merits.¹ In New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court reiterated that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." — U.S. —, 142 S. Ct. 2111, 2128, 213 L.Ed.2d 387 (2022) (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)). The Attorney General makes strong arguments that Section 32310 comports with the Second Amendment under Bruen. Notably, ten other federal district courts have considered a Second Amendment challenge to large-capacity magazine restrictions since Bruen was decided. Yet only one of those courts—the Southern District of Illinois—granted a preliminary injunction, finding that the challenge was likely to succeed on the merits. See Barnett v. Raoul, — F.Supp.3d —, 2023 WL 3160285 (S.D. Ill. Apr. 28, 2023) (granting plaintiffs' preliminary injunction); Or. Firearms Fed'n v. Kotek, — F.Supp.3d —, 2023 WL 4541027 (D. Or. July 14, 2023) (holding that the state's restriction on large-capacity magazines did not violate the Second Amendment); Brumback v. Ferguson, 2023 WL 6221425 (E.D. Wash. Sept. 25, 2023) (denying plaintiffs' motion for a preliminary injunction); Nat'l Ass'n for Gun Rights v. Lamont, — F.Supp.3d —, 2023 WL 4975979 (D. Conn. Aug. 3, 2023) (same); Herrera v. Raoul, — F.Supp.3d —, 2023 WL 3074799 (N.D. Ill. Apr. 25, 2023) (same); Hanson v. Dist. of Columbia, — F.Supp.3d —, 2023 WL 3019777 (D.D.C. Apr. 20, 2023) (same); Del. State Sportsmen's Ass'n v. Del. Dep't of Safety & Homeland Sec., — F.Supp.3d —, 2023 WL 2655150 (D. Del. Mar. 27, 2023) (same); Bevis v. City of Naperville, Ill., — F.Supp.3d —, 2023 WL 2077392 (N.D. Ill. Feb. 17, 2023) (same); Ocean State Tactical, LLC v. Rhode Island, 646 F. Supp. 3d 368 (D.R.I. 2022) (same); Or. Firearms Fed'n, Inc. v. Brown, 644 F. Supp. 3d 782 (D. Or. 2022) (same). In that case, the Seventh Circuit subsequently stayed the district court's order pending appeal—the very relief the Attorney General seeks here. Herrera v. Raoul, No. 23-1793 (7th Cir. May 12, 2023) (order).

Second, the Attorney General has shown that California will be irreparably harmed absent a stay pending appeal by presenting evidence that large-capacity magazines pose significant threats to public safety. If a stay is denied, California indisputably will face an influx of large-capacity magazines like those used in mass shootings in California and elsewhere. As Plaintiffs concede, "[i]n 2019, when the district court first enjoined section 32310, decades of pent-up demand unleashed and Californians bought millions of magazines over ten rounds, essentially buying the nation's entire stock of them in less than one week." Resp. at 10-11.

Third, it does not appear that staying portions of the district court's order while the merits of this appeal are pending will substantially injure other parties interested in the proceedings. This stay does not interfere with the public's ability "to purchase and possess a wide range of firearms, as much ammunition as they want, and an unlimited number of magazines containing ten rounds or fewer." Mot. at 12. Section 32310 has no effect on these activities.

Finally, we conclude that the public interest tips in favor of a stay. The public has a compelling interest in promoting public safety, as mass shootings nearly always involve large-capacity magazines, and, although the public has an interest in possessing firearms and ammunition for self-defense, that interest is hardly affected by this stay.

In sum, we conclude that a stay pending appeal is warranted. We emphasize that at this stage of the litigation, we decide only whether to stay, in part, the district court's order while this appeal is pending.

Some of our colleagues have raised procedural questions regarding the propriety, under circuit rules and practices, of the en banc panel's decision to accept this appeal as a comeback case. These contentions are without merit. The Supreme Court has held that the governing statute leaves it to each Court of Appeals "to establish the procedure for exercise of the [en banc] power." Western Pac. R.R. Corp. v. Western Pac. R.R. Co., 345 U.S. 247, 257, 73 S.Ct. 656, 97 L.Ed. 986 (1953). In this circuit, "matters arising after remand" are directed to the en banc court, which "will decide whether to keep the case or to refer it to the three judge panel." Ninth Cir. Gen. Order 3.6(b). Here, the en banc panel has exercised its discretion to keep the comeback appeal, as our rules contemplate. "[W]hen a case is heard or reheard en banc, the en banc panel assumes jurisdiction over the entire case, see 28 U.S.C. § 46(c) . . . ." Summerlin v. Stewart, 309 F.3d 1193, 1193 (9th Cir. 2002) (Mem.). General Order 6.4, moreover, provides that emergency motions in potential comeback cases are directed to the previous panel that heard the case, which in this case, is the en banc court. Ninth Cir. Gen. Order 6.4(a). Thus, both this appeal and the motion for an emergency stay are properly before the en banc panel.

One of our colleagues raises novel questions about whether our rules are consistent with 28 U.S.C. § 46(c). We have asked the parties to brief these issues and will address them in due course.

The Attorney General's emergency motion for a partial stay pending appeal (Doc. 2) is GRANTED.

R. NELSON, Circuit Judge, dissenting:

I join Judge Bumatay's dissent, as the majority's decision to stay the district court's order pending appeal cannot be squared with New York State Rifle & Pistol Association, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).

But I have a more fundamental concern with the majority's decision to proceed with this new appeal en banc in the first instance. No other circuit court would allow a prior en banc panel to hear a comeback case without an intervening majority vote of the active judges.

In 2022, this panel remanded the prior appeal to the district court and the mandate issued. When this new appeal was filed, the appeal could have been sent to a three-judge panel; or a new en banc vote could have been requested from "all circuit judges in regular active service," 28 U.S.C. § 46(c). Both those options are firmly rooted in § 46's statutory text and consistent with our General Orders. Moreover, either option would avoid disenfranchising seven new active judges (a full quarter of the court's active judges) from participating in this new appeal. Our General Orders do not require this. And we have never followed this process in such circumstances.

The majority, however, chose a third option—one that raises serious questions about this panel's statutory authority under § 46(c) that we must now address. And these statutory concerns are determinative, as five of the seven judges in the majority (more than 70 percent) are senior judges. Complying with statutory requirements is not voluntary. See, e.g., Am.-Foreign S.S. Corp., 363 U.S. 685, 685-86, 80 S.Ct. 1336...