Tracy Rifle & Pistol LLC v. Harris

339 F.Supp.3d 1007

TRACY RIFLE AND PISTOL LLC, et al., Plaintiffs,

v.Kamala D. HARRIS, in Her Official Capacity as Attorney General of California; and Stephen J. Lindley, in His Official Capacity as Chief of the California Department of Justice Bureau of Firearms, Defendants.

No. 2:14-cv-02626-TLN-DB

United States District Court, E.D. California.

Signed September 10, 2018

Filed September 11, 2018

Bradley A. Benbrook, Stephen Duvernay, Benbrook Law Group, Sacramento, CA, for Plaintiffs.

Emmanuelle S. Soichet, California Attorney General's Office, San Francisco, CA, Nelson Ryan Richards, California Attorney General's Office, Fresno, CA, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Troy L. Nunley, United States District Judge

This matter is before the Court pursuant to Plaintiffs' and Defendants' Cross-Motions for Summary Judgment. (ECF Nos. 51 and 52.) Plaintiffs Tracy Rifle and Pistol LLC ("Tracy Rifle"), Michael Baryla ("Baryla"), Ten Percent Firearms ("Ten Percent"), Wesley Morris ("Morris"), Sacramento Black Rifle, Inc., Robert Adams, PRK Arms, Inc., Jeffrey Mullen, Imbert & Smithers, Inc. ("Imbert & Smithers"), and Alex Rolsky ("Rolsky") (collectively, "Plaintiffs") oppose Defendants' Motion. (ECF No. 55.) Defendants Kamala D. Harris, in her official capacity as Attorney General, and Stephen J. Lindley, in his official capacity of Chief of California Department of Justice Bureau of Firearms ("DOJ"), (collectively, the "Government") oppose Plaintiffs' Motion. (ECF No. 56.) For the reasons set forth below, the Court GRANTS Plaintiffs' Motion for Summary Judgment, (ECF No. 51), and DENIES Defendants' Motion for Summary Judgment, (ECF No. 52).

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, retail firearms dealerships and their owners, argue that California Penal Code § 26820 is unconstitutional under the First Amendment of the United States Constitution and therefore seek declaratory and injunctive relief. (ECF No. 22.) Section 26820 provides: "No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside." Cal. Penal Code § 26820. Several Plaintiffs have been cited for violations of § 26820, and several more would engage in speech prohibited by the statute but for the enforcement of it. (ECF No. 55-2 at 2–3.) The parties do not dispute the following facts.

On or about February 23, 2010, the DOJ inspected Ten Percent and discovered a metal sign shaped like a revolver in its parking lot. (ECF No. 55-2 at 2.) The DOJ inspector informed Morris, Ten Percent's owner, that the sign violated the handgun restriction, and Ten Percent removed the sign. (ECF No. 55-2 at 2–3; ECF No. 51-4 at 16.) The DOJ then issued a citation to Ten Percent and Morris for violating the handgun advertising ban. (ECF No. 55-2 at 3.) On September 12, 2014, the DOJ inspected Tracy Rifle. (ECF No. 55-2 at 2.) At the time of the inspection, Tracy Rifle's exterior windows were covered with large vinyl decals depicting four firearms—three handguns and a rifle. (ECF No. 55-2 at 2.) The DOJ cited Tracy Rifle and Baryla, Tracy Rifle's owner, for violating § 26820 and required them to take corrective action by February 11, 2015. (ECF No. 55-2 at 2; ECF No. 51-4 at 6.) On January 28, 2015, the DOJ inspected Imbert & Smithers and found a logo depicting an outline of a single-action revolver displayed on the building's exterior. (ECF No. 55-2 at 3.) The DOJ cited Imbert & Smithers and Rolsky, Imbert & Smithers's owner, for violating § 26820 and required them to take corrective action by July 28, 2015. (ECF No. 55-2 at 3; ECF No. 51-4 at 37.) All Plaintiffs wish to display truthful, nonmisleading on-site handgun advertising that is visible from the outside of their dealerships, and would do so, but for § 26820 and the threat of losing their dealer's licenses. (ECF No. 56-1 at 2.)

Plaintiffs request this Court enter a declaratory judgment stating § 26820 violates the First Amendment and enter an injunction enjoining the enforcement of § 26820. (ECF No. 22 at 8–9.) Plaintiffs and the Government each move for summary judgment. (ECF Nos. 51 and 52).

II. STANDARD OF LAW

Summary judgment is appropriate when the moving party demonstrates no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). Indeed, summary judgment should be entered against a party who does not make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 585–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288–89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251–52, 106 S.Ct. 2505.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank , 391 U.S. at 288–89, 88 S.Ct. 1575. Thus, the "purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed. R. Civ. P. 56(c) ; SEC v. Seaboard Corp. , 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts pleaded before the court must be drawn in favor of the opposing party.

Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines , 602 F.Supp. 1224, 1244–45 (E.D. Cal. 1985), aff'd , 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita , 475 U.S. at 586, 106 S.Ct. 1348. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ " Id. at 587, 106 S.Ct. 1348.

III. ANALYSIS

Plaintiffs challenge § 26820 as unconstitutional under the First Amendment, both on its face and as applied. (ECF No. 22 ¶ 37.) To succeed in a facial challenge, "the challenger must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Government, conversely, argues the law survives intermediate scrutiny and therefore is not unconstitutional. (ECF No. 52 at 16–17.) The Supreme Court has set out a four-part test to guide the constitutional analysis of commercial speech.

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y. , 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). If the Court finds that the affected speech is not misleading or related to unlawful activity, "the government bears the burden of showing that it has a substantial interest, that the restriction directly advances that interest and...