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9th Circuit Grants ‘Administrative Stay’ of Injunction Against California Ammunition Background Check Law

9th Circuit Grants ‘Administrative Stay’ of Injunction Against California Ammunition Background Check Law

Just a temporary administrative procedure to allow time for briefing and argument of the motion for a stay pending appeal. California AG: “Preserving the status quo will thus prevent prohibited people from acquiring ammunition”

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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It’s past time that these baloney infringements are shot down hard and finally.

    Oregon Mike in reply to 4fun. | April 27, 2020 at 9:54 pm

    I agree 100%. But so long as Roberts is Chief Justice rendering matters moot, you’ll find lower courts doing whatever they can to avoid shooting them down.

    dystopia in reply to 4fun. | April 28, 2020 at 6:41 am

    Wont’ happen with Roberts at the helm of the United States Supreme Court. He’ll find a technical issue to deny any appeal.

    JohnH in reply to 4fun. | May 1, 2020 at 6:18 am

    I also agree to this comment,thanks.

I live in California. One way or another, the order will be overturned.
The only people permitted to possess firearms in this state are the Nomenklatura.

    MikeInCA in reply to lichau. | April 28, 2020 at 5:26 am

    I live in California. That’s not true. California has a very large and enthusiastic gun culture

One is allowed only one purchase of ammunition every month at the site where there was an eligibility check. So your favorite store can only make one sale per month to you. To get an ammunition transaction number you must have made a firearm purchase on file with the Ca DOJ or apply for a number. All of your physical and residence information must be on file.

All of this stopped.. maybe… 750 people from buying ammo in a six month time frame.

“No complaints” by the people of the state. How about through their clubs and associations? Hubris writ large again in the unrine colored state.

    puhiawa in reply to alaskabob. | April 28, 2020 at 12:02 am

    And the purchase informs the authorities of your weapons, which will then be used to make sure all are registered, and that you are computerized, and can be searched at any time if they find a “discrepancy”….and you will be lucky to survive such a “search”. In all likelihood, there will be a few “examples” publicized in the LA Times, “man arrested for having 5,000 rounds of unregistered ammunition” and then a few deaths as SWAT teams set about killing a few citizens to make it clear what really is happening. Of course the State will encourage that all ammunition be turned over to authorities to prevent anymore violence.
    And then laws will be enacted against knives and sticks.

    DaveGinOly in reply to alaskabob. | April 28, 2020 at 10:43 pm

    Background checks do not stop criminals from acquiring firearms (or ammunition). When somebody makes this claim within your hearing, bitch slap that person. Background checks can prevent criminals from acquiring firearms and ammunition from legitimate sources. Once defeated at such a source, the criminal knows he can no longer acquire what he needs from those sources, and resorts to other outlets, where he can, and will, make his acquisitions. Background checks are merely stumbling blocks for criminals, from which they can quickly regain their footing.

And don’t think about buying that 16 pound bespoke $200,000 Holland and Holland 700 Nitro Express double rifle… the caliber is banned.
That is just the start of things as within the next few years virtually all semi-automatic handguns will not be available for purchase due to state demanded design requirements.

The price to pay for living in a workers’ paradise.

“It is the common fate of the indolent [those who might complain but won’t take action] to see their rights become a prey to the active [you’ll notice that the left has a never-ending list of stupid, freedom-depriving ideas, oh, say, like removing the 2d Am by court order]. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.” John Curran Philpot (1750- 1817).

In other words, you better fight or all those hard-earned rights will be taken in a moment’s notice. And as recent evidence, look at how governors and their staffs acted during the COVID-19 lookdown. You can “Let George Do It” (a post-WWII detective radio show), but what if George has no intent of doing it?

Typical democrat BS. The AG swore and Oath to Protect and Defend the Constitution of the United States. That includes The Bill of RIGHTS. This idiot bacerra is supposed to advise the governor to veto un-Constitutional legislation. He isn’t supposed to be the governors lackey. He isn’t supposed to be a democrat party lackey. But here we are, another lawless democrat spewing dnc talking points while engaged in lawfare against our Constitutional Republic. We need to send all of California’s illegal gun laws up to the SCOTUS for definitive rulings.

Go buy stump remover while you still can.

When the Democrats steal the election with mail in voting they will make the entire country a leftist crap hole like Commiefornia.

The scary thing to me is that these highly placed public officials are so naive or dense to actually think they’re doing something good. Criminals don’t obey the law.

    puhiawa in reply to JimWoo. | April 27, 2020 at 11:53 pm

    You misplace the legislature’s emphasis and purpose. They care not about a criminal and his business. They seek to disarm the law biding so that the legislature may impose its will without fear, so the criminal may terrorize and kill, and thus cause the citizen to demand an ever greater police presence in their lives. It is much like free speech and Antifa…Antifa has free speech in these States…you do not.

    redc1c4 in reply to JimWoo. | April 28, 2020 at 1:32 am

    honest citizens are the only criminals they recognize.

    thugs, illegals, etc, are their core constituency.

The courts have been on a 50 year streak to destroy the US constitution.Just as they tried over slavery. Now they are cornered. They have come close to rewording every Amendment and the meaning of the actual text. Destroying The Federalist Papers, the letters, the minutes of the convention.
And refusing to take cases that directly challenge these abominations.
However this case may be a bridge too far, even for the coward Roberts.

read it all here (unless you have PACER ? access):

it was April 2019 when Judge Benetiz stayed in part his injunction against the illegal magazine ban here in #Failifornia.

it wasn’t until April 2020 that the 9th Circus heard arguments on the matter, and G*d alone knows when, or how, they will rule… (but i can guess)

somehow, i doubt that the Frisco Fascists in Black will interpret “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.” the way The Professor does. (i’d love to be wrong, but i am experienced)

and i doubt even more that they will not tie themselves into whatever dishonest knots they need to to overturn Judge Benitez’s ruling, or that our Invertebrate Chief “justice” will not agree with them, most likely by refusing to take the case at SCOTUS.

we are NOT voting our way out of this, which is why the push is on to disarm the populace.

The number 101,047 is what ?

Move out of California but leave your politics behind. Don’t infect your new neighborhood with whatever prompted you to leave.

    JusticeDelivered in reply to DSHornet. | April 28, 2020 at 9:26 am

    Infecting neighborhoods with what drove someone to move is so common, it happens in our cities where projects or section 8 housing always leads to decline, it happens wherever Muslims move, with illegals we see MS13, recreating the same kind of shit hole here that they came from.

“Preserving the status quo will thus prevent prohibited people from acquiring ammunition”

The current Wuhan virus situation reminds me of background checks – government locks down everybody instead of just the sick; the vast majority of background checks are conducted on the law-abiding who buy their firearms through legal outlets and through (lawful) personal sales.

The criminal class it too small for government to have any gain in power by controlling it. OTOH, power is to be had by controlling the law-abiding, because that class encompasses nearly the entire population.

It all will boil down to the standard of review that SCOTUS finally adopts for 2nd amendment cases. If it is rational basis (otherwise known as irrational basis) then kiss the 2nd amendment goodbye for now. But if intermediate scrutiny (or dare I hope, heightened scrutiny) apply, and the government has to actually show evidence that their worthless gun control laws actually produce a positive result, then all will be well. There isn’t any credible evidence that any of the countless gun control laws inflicted upon us actually achieve their stated purpose of reducing violent crime. If they have to prove that in court, then they will always lose.