Fyock v. City of Sunnyvale

25 F.Supp.3d 1267

Leonard Fyock, Scott Hochstetler, William Douglas, David Pearson, Brad Seifers, and Rod Swanson, Plaintiffs

v.The City of Sunnyvale, The Mayor of Sunnyvale, Anthony Spitaleri, in his official capacity, and the Chief of the Sunnyvale Department of Public Safety, Frank Grgurina, in his official capacity, Defendants.

Case No. C–13–5807–RMW

United States District Court, N.D. California, San Jose Division.

Signed March 5, 2014

Anna Marie Barvir, Carl Dawson Michel, Clinton Barnwell Monfort, Sean Anthony Brady, Michel and Associates, P.C., Long Beach, CA, for Plaintiffs.

Roderick Manley Thompson, Anthony Paul Schoenberg, Evan Michael Engstrom, James H. Baker, Rochelle L. Woods, Farella Braun & Martel LLP, San Francisco, CA, for Defendants.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

[Re: Docket No. 10]

RONALD M. WHYTE, United States District Judge

The issue before the court is whether Sunnyvale's ordinance outlawing the possession of firearm magazines having a capacity to accept more than ten rounds should be preliminarily enjoined for infringing individuals' Second Amendment rights. The core of the Second Amendment right to bear arms is self-defense, especially within the home. District of Columbia v. Heller, 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; Peruta v. Cnty. of San Diego, 10–56971, 742 F.3d 1144, 1166–67, 2014 WL 555862, at *18 (9th Cir. Feb. 13, 2014). With this right in mind, courts have found unconstitutional a law that forbids handguns, Heller, 554 U.S. at 635, 128 S.Ct. 2783, and a registration scheme that effectively eliminates the average law-abiding citizen's right to bear a gun, Peruta, 742 F.3d at 1170–71, 2014 WL 555862, at *22. The law challenged here prohibits the possession of certain protected arms anywhere in Sunnyvale. However, the banned arms—magazines having a capacity to accept more than ten rounds—are hardly central to self-defense. The right to possess magazines having a capacity to accept more than ten rounds lies on the periphery of the Second Amendment right, and proscribing such magazines is, at bare minimum, substantially related to an important government interest. No court has yet entered a preliminary injunction against a law criminalizing the possession of magazines having a capacity to accept more than ten rounds, nor has any court yet found that such a law infringes the Second Amendment. Upon the present record, this court declines to be the first. Plaintiffs' Motion for Preliminary Injunction is DENIED.

I. BACKGROUND

In early 2013, concerned about gun crime, then-current Mayor of Sunnyvale Anthony Spitaleri proposed a gun control ballot initiative called Measure C. Dkt. No. 40, Spitaleri Decl. ¶¶ 4–8, Ex. 1. Measure C was put to a vote and, on November 5, 2013, the citizens of Sunnyvale passed Measure C with 66.55% of the vote. Dkt. No. 42–9, Thompson Decl., Ex. 9, at 3. Measure C was subsequently codified as Sunnyvale Municipal Code § 9.44.030–60.

Plaintiffs Leonard Fyock, William Douglas, David Pearsons, Brad Seifers, and Rod Swanson (collectively “Plaintiffs”), challenge only one provision of Measure C in this case, § 9.44.050. Section 9.44.050 reads:

No person may possess a large-capacity magazine in the city of Sunnyvale whether assembled or disassembled. For purposes of this section, “large-capacity magazine” means any detachable ammunition feeding device with the capacity to accept more than ten (10) rounds, but shall not be construed to include any of the following:

(1) A feeding device that has been permanently altered so that it cannot accommodate more than ten (10) rounds; or

(2) A .22 caliber tubular ammunition feeding device; or

(3) A tubular magazine that is contained in a lever-action firearm.

Sunnyvale, Cal., Mun. Code § 9.44.050(a). In short, the Sunnyvale ordinance prohibits the possession of magazines having the capacity to accept more than ten rounds. The ordinance carves out nine exceptions:

(1) Any federal, state, county, or city agency that is charged with the enforcement of any law, for use by agency employees in the discharge of their official duties;

(2) Any government officer, agent, or employee, member of the armed forces of the United States, or peace officer, to the extent that such person is otherwise authorized to possess a large-capacity magazine and does so while acting within the course and scope of his or her duties;

(3) A forensic laboratory or any authorized agent or employee thereof in the course and scope of his or her duties;

(4) Any entity that operates an armored vehicle business pursuant to the laws of the state, and an authorized employee of such entity, while in the course and scope of his or her employment for purposes that pertain to the entity's armored vehicle business;

(5) Any person who has been issued a license or permit by the California Department of Justice pursuant to Penal Code Sections 18900, 26500 –26915, 31000, 32315, 32650, 32700 –32720, or 33300, when the possession of a large-capacity magazine is in accordance with that license or permit;

(6) A licensed gunsmith for purposes of maintenance, repair or modification of the large-capacity magazine;

(7) Any person who finds a large-capacity magazine, if the person is not prohibited from possessing firearms or ammunition pursuant to federal or state law, and the person possesses the large-capacity magazine no longer than is reasonably necessary to deliver or transport the same to a law enforcement agency;

(8) Any person lawfully in possession of a firearm that the person obtained prior to January 1, 2000, if no magazine that holds fewer than 10 rounds of ammunition is compatible with the firearm and the person possesses the large-capacity magazine solely for use with that firearm.

(9) Any retired peace officer holding a valid, current Carry Concealed Weapons (CCW) permit issued pursuant to California Penal Code. (Ord. 3027–13 § 1).

Sunnyvale, Cal., Mun. Code § 9.44.050(c). The ordinance took effect on December 6, 2013, and it gives persons ninety days to dispossess themselves of their now-prohibited magazines. Thus, to avoid prosecution for their possession of magazines having the capacity to accept more than ten rounds, by March 6, 2014 persons must:

(1) Remove the large-capacity magazine from the city of Sunnyvale; or

(2) Surrender the large-capacity magazine to the Sunnyvale Department of Public Safety for destruction; or

(3) Lawfully sell or transfer the large-capacity magazine in accordance with Penal Code Section 12020.

Sunnyvale, Cal., Mun. Code § 9.44.050(b).

On December 16, 2013, Plaintiffs filed the instant suit against the City of Sunnyvale, Anthony Spitaleri (in his official capacity as Mayor of Sunnyvale), and Frank Grgurina (in his official capacity as Chief of the Sunnyvale Department of Public Safety) (collectively “Sunnyvale) alleging that Sunnyvale Municipal Code § 9.44.050 violates their right to keep and bear arms under the Second Amendment to the United States Constitution. See Dkt. No. 1, Complaint. Plaintiffs now bring the present motion to enjoin Sunnyvale “from enforcing Sunnyvale Police Code section 9.44.050 pending resolution of the merits of this case or further order of this Court.” Dkt. No. 21, (Proposed) Order Granting Motion for Preliminary Injunction; see also Dkt. No. 10, Motion for Preliminary Injunction (“Motion”). Sunnyvale filed an opposition, Dkt. No. 35 (“Opp.”), Plaintiffs filed a reply, Dkt. No. 45 (“Reply”), and the motion was argued before the court on February 21, 2014.

II. ANALYSIS

Preliminary injunctions are intended to “preserve the relative positions of the parties until a trial on the merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). It is an “extraordinary and drastic remedy,” requiring the movant to clearly carry the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). A movant must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

The Ninth Circuit has also held that “serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir.2011). “Serious questions” refers to questions “which cannot be resolved one way or the other at the hearing on the injunction and as to which the court perceives a need to preserve the status quo lest one side prevent resolution of the questions or execution of any judgment by altering the status quo.” Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.1991).

A. Likelihood of Success on the Merits

The Second Amendment methodology adopted by the Ninth Circuit “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013) ; see also Peruta v. Cnty. of San Diego, No. 10–56971, 742 F.3d 1144, 1150, 2014 WL 555862, at *3 (9th Cir. Feb. 13, 2014) (“To resolve the challenge to the D.C. restrictions, the Heller majority described and applied a certain methodology: it addressed, first, whether having operable handguns in the home amounted to ‘keep[ing] and bear[ing] Arms' within the meaning of the Second Amendment and, next, whether the challenged laws, if they indeed did burden constitutionally protected conduct, ‘infringed’ the right.”). The court now applies that test here.

1. Burden on conduct protected by the Second Amendment

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free...