9th Circuit Issues Stay In Rhode

The 9th Circuit Court of Appeals granted an administrative stay of Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra late on Friday, April 24th. Judge Benitez had earlier that day denied an ex parte motion by Attorney General Xavier Becerra requesting a stay of his injunction.

In dismissing it he said, in part:

The Attorney General does not point to any change in circumstances or new evidence to undermine that conclusion. That the laws have been in effect for 10 months reflects this Court’s patient consideration, not its constitutional approval. Any delay was occasioned by judicial optimism that the high erroneous denial rate of early Standard background checks might significantly improve. It did not. Instead, the constitutional impingements on Second Amendment rights that began immediately, will continue if a stay is granted. Thus, the Court cannot find the remaining two factors tip the scales in favor of a stay. A 16.4% error rate that deprives citizens the enjoyment of any constitutional right is offensive and unacceptable.

The Attorney General’s Office then filed an emergency motion with the 9th Circuit to stay the injunction pending appeal and requested immediate relief. They argued that a stay would be in the public interest and would prevent prohibited persons from purchasing ammunition. They went on to say the plaintiffs were not prevented from purchasing ammunition. Of course, this ignores the 16.4% error rate referenced by Judge Benitez.

It should be noted that the stay granted by the 9th Circuit is an administrative stay and does not address the merits of Becerra’s argument. They will rule on that later.

The stay was issued at 9:45pm local time on the 24th. Ammunition orders in the system prior to that could be processed according to what I’m reading.

Freedom Munitions and Brownells both said they would be honoring orders made prior to that time and would be shipping directly to the purchaser.

A Partial Loss In California Mag Ban Case

The opinion and ruling by US District Court Judge Roger Benitez in the California magazine ban case – Duncan et al v. Becerra – has garnered lots of attention this past week. His ruling was a permanent injunction on California’s ban on the sale of standard capacity magazines. The result has been that the major online retailers such as Palmetto State Armory, AIM Surplus, Brownells, and Midway USA have been inundated with orders for magazines by California residents.

As you might imagine, the State of California and Attorney General Xavier Becerra are not happy campers. They requested an immediate stay on the ruling while they appeal to the 9th Circuit Court of Appeals. This afternoon, Judge Benitez granted a partial stay after weighing the arguments of both sides and trying to satisfy both sides.

From his order:

In layman’s terms, the State of California and the law enforcement agencies
therein will be free to re-start the enforcement of Calif. Penal Code § 32310 (a) and
(b) which currently prohibits, among other things, any person in the state from
manufacturing, importing into the state, offering for sale, giving, lending, buying,
or receiving a firearm magazine able to hold more than 10 rounds (as defined by
Calif. Penal Code § 16740). This will continue until the appeal proceedings
conclude or the stay is modified or lifted.

At the same time, the State of California and the law enforcement agencies
therein will remain enjoined (or prevented) from enforcing Calif. Penal Code
§ 32310 (c) and (d) which would have criminalized the simple possession of a
firearm magazine able to hold more than 10 rounds and required disposing of such magazines. This will also continue until the appeal proceedings conclude or the
stay is modified or lifted.

Both parties indicate in briefing that persons and business entities in California
may have manufactured, imported, sold, or bought magazines able to hold more
than 10 rounds since the entry of this Court’s injunction on March 29, 2019 and in
reliance on the injunction. Indeed, it is the reason that the Attorney General seeks
urgent relief in the form of a stay pending appeal. Both parties suggest that it is
appropriate to fashion protection for these law-abiding persons.


THEREFORE, IT IS HEREBY ORDERED
that the Judgment is stayed in part
pending final resolution of the appeal from the Judgment. The permanent
injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) is
hereby stayed, effective 5:00 p.m., Friday, April 5, 2019.


IT IS HEREBY FURTHER ORDERED
that the preliminary injunction issued
on June 29, 2017, enjoining enforcement of California Penal Code § 32310 (c) and
(d) shall remain in effect.


IT IS HEREBY FURTHER ORDERED
that the permanent injunction
enjoining enforcement of California Penal Code § 32310 (a) and (b) shall remain in
effect for those persons and business entities who have manufactured, imported,
sold, or bought magazines able to hold more than 10 rounds between the entry of
this Court’s injunction on March 29, 2019 and 5:00 p.m., Friday, April 5, 2019.

Dated: April 4, 2019

Translated this means that standard capacity magazines can’t be sold, made, imported, or given away after tomorrow, Friday, April 5, 2019 at 5:00pm PDT. However, if you bought a magazine, sold a magazine, or otherwise transferred one into California between March 29th and April 5th at 5:00pm, you are still covered by the permanent injunction against the ban. This means you have until 5:00pm tomorrow to receive it. Or take a quick trip out of state – Nevada, Arizona, etc – and be back by 5:00pm with your new standard capacity magazines.

Moreover, further translating, the preliminary injunction prevents prosecution of those who possessed a standard capacity magazine prior to July 1, 2017. They will not be forced to dispose of their magazines to comply with subsection (d).

You can read the relevant penal code here.