On April 23, 2020, a federal district court issued a preliminary injunction against California’s law requiring background checks for ammunition purchases. See our post, Federal Court Strikes Down California Law Requiring Ammunition Purchase Background Checks for background on the law and the district court ruling.

We stated that the district court order was a reason to stand up and cheer:

The Order (pdf.) has some really interesting language, kind of ‘stand up and cheer’ stuff. Here are some excerpts:

The experiment has been tried. The casualties have been counted. California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. In this action, Plaintiffs seek a preliminary injunction enjoining California’s onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws. For the reasons that follow, the motion for preliminary injunction is granted.

Cheering yet? Keep reading.

We noted that California Attorney General Xavier Becerra sought a stay of the injunction pending appeal, but that the district court judge denied the motion:

Is it over? It’s never over. The California files an ex parte emergency motion for a stay pending appeal, which the judge rejected.

Here the Attorney General focuses on the possibility that a prohibited person may acquire ammunition. Buying ammunition is something that prohibited persons have managed to accomplish for 170 years and these new laws show little likelihood of success of preventing prohibited persons from unlawfully possessing future acquisitions. This Court’s focus is on the 101,047 + law-abiding, responsible citizens who have been completely blocked by the operation of these laws. Without an injunction, these law-abiding individuals have no legal way to acquire the ammunition which they enjoy the constitutional right of possession. These law-abiding individuals whose numbers are vast have no way to lawfully acquire ammunition to defend themselves, their families and their homes. The injunction restores that right.

California now has filed an interlocutory appeal, so expect a motion for a stay in the 9th Circuit.

Early in the evening of April 24, Becerra filed an Emergency Motion to stay the preliminary injunction pending appeal:

Time is of the essence here because the district court’s order, entered April 23, 2020, was effective upon issuance. More than ten months after they took effect—and more than eight months after plaintiffs in this case filed their motion for a preliminary injunction—the district court facially enjoined California’s ammunition background check laws, concluding that they likely violate the Second Amendment and the dormant Commerce Clause. The court below entered that injunction despite the fact that no plaintiff in this case has shown that the laws have prevented them from purchasing ammunition (or even substantially delayed their ability to do so), and despite the fact that the evidence in this case shows that the average purchaser need only wait anywhere between a matter of minutes to a few days to undergo the background check, depending on which type of check they choose.

There was no basis for the district court’s order enjoining the continued enforcement of these vital public-safety measures during the pendency of the case and made its injunction effective immediately. That decision will result, and may have already resulted, in prohibited persons purchasing ammunition from ammunition stores—potentially hundreds of them in the months it might take to litigate the preliminary injunction appeal. Within hours of the decision, at least one ammunition dealer had already begun advertising that the district court’s judgment allowed customer to “again purchase ammo without a background check and order ammo online!”1  And in the court below, the Attorney General submitted evidence showing that, from the time the ammunition background check laws went into effect on July 1, 2019, through January 31, 2020, over 750 prohibited persons had been prevented from purchasing ammunition. At the very least, the decision below makes removes a substantial barrier for individuals like these to purchase ammunition.

Preserving the status quo will thus prevent prohibited people from acquiring ammunition, and will not prevent the individual plaintiffs—or any similarly situated purchasers—from doing so.

Late Friday evening, two 9th Circuit Judges granted an “administrative stay.” One of the Judges, Mark J. Bennett, is a recent Trump appointee, the other, Mary H. Murguia, is a Clinton appointee to the District Court and an Obama appointee to the 9th Circuit.

The court has received appellant’s emergency motion for a stay. The request for an immediate administrative stay is granted. The district court’s April 23, 2020 preliminary injunction order is temporarily stayed pending further court order. The court will address the emergency stay motion by separate order.

An administrative stay is not a ruling on the merits. It’s a way of a judge or judge’s putting an emergency situation on hold temporarily, until briefing on a full motion for a stay can be held. Otherwise, judges would have to dig quickly into the merits over a weekend!

So expect that the 9th Circuit will issue a scheduling order for a relatively quick briefing on the motion for a stay, pending a full appeal.

 

 
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