Rhode v. Becerra

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 KIM RHODE, et al., Case No.: 18-cv-802-BEN 8 Plaintiffs, ORDER DENYING EX PARTE 9 v. MOTION FOR STAY 10 ATTORNEY GENERAL XAVIER BECERRA, 11 Defendant, 12 13 Defendant Xavier Becerra moves ex parte to stay this Court’s April 23, 2020 Order 14 granting Plaintiffs’ Motion for a Preliminary Injunction. To determine whether a stay is 15 warranted, the Court considers four factors: “(1) whether the stay applicant has made a 16 strong showing that he is likely to succeed on the merits; (2) whether the applicant will be 17 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure 18 the other parties interested in the proceeding; and (4) where the public interest lies.” Nken 19 v. Holder, 556 U.S. 418, 433 (2009). “Each factor, however, need not be given equal 20 weight.” Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 2018 WL 4928041, at 21 *3 (S.D. Cal. Oct. 18, 2018) (citations omitted). Rather, “[t]he first two factors . . . are the 22 most critical.” Nken, 556 U.S. at 434. 23 As to the first factor, “It is not enough that the chance of success on the merits be 24 better than negligible.” Id. at 444 (internal quotation marks and citations omitted). The 25 Attorney General has conceded that the right to purchase and acquire ammunition is a right 26 protected by the Second Amendment. That is an understanding consistent with Ninth 27 Circuit decisions. Furthermore, as discussed in its preliminary injunction order, this Court 28 1 found Plaintiffs showed a likelihood of success on the merits. Accordingly, the first factor 2 does not weigh in favor of a stay. 3 The second factor requires irreparable harm to the movant absent a stay. Here the 4 Attorney General focuses on the possibility that a prohibited person may acquire 5 ammunition. Buying ammunition is something that prohibited persons have managed to 6 accomplish for 170 years and these new laws show little likelihood of success of preventing 7 prohibited persons from unlawfully possessing future acquisitions. This Court’s focus is 8 on the 101,047 + law-abiding, responsible citizens who have been completely blocked by 9 the operation of these laws. Without an injunction, these law-abiding individuals have no 10 legal way to acquire the ammunition which they enjoy the constitutional right of 11 possession. These law-abiding individuals whose numbers are vast have no way to 12 lawfully acquire ammunition to defend themselves, their families and their homes. The 13 injunction restores that right. 14 Concerning the remaining two factors, in granting Plaintiffs’ motions for a 15 preliminary injunction, the Court found the background check and anti-importation laws 16 to severely burden Plaintiffs and all law-abiding citizen-residents of California who want 17 to acquire ammunition. The Attorney General does not point to any change in 18 circumstances or new evidence to undermine that conclusion. That the laws have been in 19 effect for 10 months reflects this Court’s patient consideration, not its constitutional 20 approval. Any delay was occasioned by judicial optimism that the high erroneous denial 21 rate of early Standard background checks might significantly improve. It did not. Instead, 22 the constitutional impingements on Second Amendment rights that began immediately, 23 will continue if a stay is granted. Thus, the Court cannot find the remaining two factors tip 24 the scales in favor of a stay. A 16.4% error rate that deprives citizens the enjoyment of any 25 constitutional right is offensive and unacceptable. 26 /// 27 /// 28 1 For the previous reasons, the Nken factors do not weigh in favor of granting a stay, 2 ||and Defendant’s ex parte motion is DENIED. 3 IT IS SO ORDERED. 4 || Date: April 24, 2020 5 H IN. ROGER T. BENITEZ United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28