LEONARD FYOCK; SCOTT HOCHSTETLER; WILLIAM DOUGLAS; DAVID PEARSON; BRAD SEIFERS; ROD SWANSON, Plaintiffs-Appellants,
CITY OF SUNNYVALE; THE MAYOR OF SUNNYVALE; ANTHONY SPITALERI, in his official capacity; THE CHIEF OF THE SUNNYVALE DEPARTMENT OF PUBLIC SAFETY; FRANK GRGURINA, in his official capacity, Defendants-Appellees
Argued and Submitted, San Francisco, California:
November 17, 2014.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of California. D.C. No. 5:13-cv-05807-RMW. Ronald M. Whyte, District Judge, Presiding.
Civil Rights/Second Amendment
The panel affirmed the district court's denial of a request to preliminarily enjoin an ordinance enacted by the City of Sunnyvale, California, restricting the possession of " large-capacity magazines" --statutorily defined as a detachable ammunition feeding device capable of accepting more than ten rounds.
The panel held that the district court applied the appropriate legal principles and did not clearly err in finding, based on the record before it, that a regulation restricting possession of certain types of magazines burdened conduct falling within the scope of the Second Amendment. The panel further agreed with the district court that intermediate scrutiny was appropriate. The panel held that Sunnyvale's interests in promoting public safety and reducing violent crime were substantial and important government interests. So, too, were Sunnyvale's interests in reducing the harm and lethality of gun injuries in general, and in particular as against law enforcement officers. The panel held that the evidence identified by the district court was precisely the type of evidence that Sunnyvale was permitted to rely upon to substantiate its interest. The panel concluded that the district court did not abuse its discretion in determining, on the record before it, that Sunnyvale presented sufficient evidence to show that the ordinance was likely to survive intermediate scrutiny and that plaintiffs failed to demonstrate that they would likely succeed on the merits of their claim.
Erin E. Murphy (argued), Bancroft PLLC, Washington, D.C.; C. D. Michel, Glenn S. McRoberts, Clinton B. Monfort, Sean A. Brady and Anna M. Barvir, Michel & Associates, P.C., Long Beach, California, for Plaintiffs-Appellants.
Roderick M. Thompson (argued), Anthony P. Schoenberg and Rochelle L. Woods, Farella Braun Martel LLP, San Francisco, California, for Defendants-Appellees.
Robert C. Wright and Andrew E. Schouten, Wright & L'Estrange, San Diego, California; Lawrence G. Keane, General Counsel, The National Shooting Sports Foundation, Inc., Newtown, Connecticut, for Amicus Curiae The National Shooting Sports Foundation, Inc.
Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, Virginia, for Amici Curiae International Law Enforcement Trainers and Educators Association, California Reserve Peace Officers Association, Law Enforcement Legal Defense Fund, Law Enforcement Action Network, CRPA Foundation, Law Enforcement Alliance of America, Inc., San Francisco Veteran Police Officers' Association, California County Sheriffs Bosenko, Christianson, D'Agostini, Downey, Durfor, Growdon, Hencraft, L. Jones, S. Jones, Lopey, McMahon, Mele, Mims, Parker, Poindexter, Wilson and Youngblood, and District Attorney Egan.
David B. Kopel, Independence Institute, Denver, Colorado; John Parker Sweeney, T. Sky Woodward and James W. Porter, III, Bradley Arant Boult Cummings, LLP, Washington, D.C., for Amici Curiae The Center for Constitutional Jurisprudence and Gun Owners of California.
Brian S. Koukoutchos, Mandeville, Louisiana, for Amicus Curiae Pink Pistols.
Gregory Silbert and Vanessa W. Chandis, Weil, Gotshal & Manges, LLP, New York, New York, for Amicus Curiae Everytown for Gun Safety.
Shannon S. Broome and Julia A. Miller, Katten Muchin Roseman, LLP, Oakland, California; Jonathan K. Baum, Katten Muchin Roseman LLP, Chicago, Illinois, for Amici Curiae Law Center to Prevent Gun Violence and Cleveland School Remembers.
Michael N. Feuer, City Attorney of Los Angeles, James P. Clark, Chief Deputy City Attorney, Debra L. Gonzales, Assistant City Attorney, Los Angeles, California, for Amicus Curiae City of Los Angeles; Dennis J. Herrera, City Attorney of San Francisco, Wayne Snodgrass and Christine Van Aken, Deputy City Attorneys, San Francisco, California, for Amicus Curiae City and County of San Francisco.
Foster C. Johnson, Mayer Brown LLP, Palo Alto, California; Jonathan Lowy and Robert Wilcox, Brady Center to Prevent Gun Violence, Washington, D.C., for Amici Curiae Brady Center To Prevent Gun Violence, the Major Chiefs Association, and the International Brotherhood of Police Officers.
Before: Michael Daly Hawkins and Johnnie B. Rawlinson, Circuit Judges, and Barbara M. G. Lynn, District Judge.[*]
Michael Daly Hawkins, Circuit Judge:
In this interlocutory appeal, Leonard Fyock, William Douglas, Scott Hochstetler, David Pearson, Brad Seifers, and Ron Swanson (collectively " Fyock" ) challenge an order denying their request to preliminarily enjoin an ordinance recently enacted by the City of Sunnyvale, California (" Sunnyvale" ), restricting the possession of " large-capacity magazines" --statutorily defined as a detachable ammunition feeding device capable of accepting more than ten rounds. Fyock claims that Sunnyvale's ordinance, part of a ballot measure known as Measure C, violates his Second Amendment right to keep and bear arms and will irreparably harm him if not immediately enjoined.
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Because we find that the district court did not abuse its discretion in deciding Fyock's likelihood of success on the merits of his constitutional challenge, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The manufacture, sale, purchase, and possession of large-capacity magazines has been regulated in California for approximately twenty years through a combination of federal and state laws. In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act (" Crime Control Act" ), which proscribed, among other things, the possession of " large capacity ammunition feeding devices" --also defined as any magazine capable of accepting more than ten rounds of ammunition. See Pub. L. 103-322, Sept. 13, 1994, 108 Stat. 1796, 1998-2000 (formerly codified at 18 U.S.C. § 922 (w)); see also San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1124 (9th Cir. 1996). Beginning in 2000, California criminalized the manufacture, sale, purchase, transfer, and receipt of large-capacity magazines within the state, but did not specifically criminalize the possession of large-capacity magazines, which was covered at the time by federal law. See Cal. Penal Code § § 32310, 16740. In 2004, the Crime Control Act lapsed, leaving a " loophole" permitting the possession of large-capacity magazines in California.
In the wake of recent mass shootings and in recognition of the " violence and harm caused by and resulting from both the intentional and accidental misuse of guns," Sunnyvale sought to enhance public safety by enacting further gun safety measures. In part, Sunnyvale sought to close the " loophole" created by the expiration of the Crime Control Act. In November 2013, Sunnyvale voters passed Measure C, thereby amending the ...