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.

Big Win In California

Olympian Kim Rhode and the California Rifle & Pistol Association won a preliminary injunction against enforcement of California’s ammunition background checks and importation ban yesterday.

US District Court Judge Roger T. Benitez opened his 120 page opinion granting the preliminary injunction by saying:

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.

This is a big win for the CRPA, attorney Chuck Michel, and especially the gun owners, new and old, of California.

Judge Benitez went on to conclude:

Together, the background check requirement for all ammunition purchases in California and the anti-importation provisions that prohibit direct sales to residents often effect a complete statutory barrier to the lawful purchase of ammunition. Moreover, the provisions are interlocking and derive from the same section of Proposition 63. See §§ 8.1 through 8.16. The anti-importation provisions are not severable from the ammunition background check requirements. Even if only one part was unconstitutional both parts would need to be enjoined. But severability does not matter here, as both parts fail constitutional muster and require injunctive relief….

It is not the Court’s role to dictate to a state how it should go about attempting to accomplish its goal. If the state objective is to make it extremely difficult, if not impossible, for its law-abiding citizens to purchase protected ammunition, then this law appears to be well-drafted. However, if the genuine object is to keep ammunition out of the hands of those who should not be able to buy it, perhaps the State could create a database (that would include persons prohibited, i.e., aliens
unlawfully present, felons, and others) and simply make that information available to sellers by cross-checking with the magnetic strip on a standard driver’s license and by allowing out-of-state vendors the same ability to engage in commerce as it does California vendors.

I would wager house money that California Attorney General Xavier Becerra will appeal this ruling. As of this morning, he has not nor has he published a press release indicating any acknowledgement of the Judge Benitez’s ruling. If the state does appeal, the question then becomes will they be granted a stay to the preliminary injunction while they appeal the ruling. We will see.

In the meantime, Californians are free of an onerous and unconstitutional burden on their Second Amendment rights.