Doe v. Bonta

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 SOUTHERN DISTRICT OF CALIFORNIA 9 JANE DOE, et al. CASE NO. 22-cv-10-LAB (DEB)

10 Plaintiffs, ORDER: 11 vs. 1) DENYING APPLICATION FOR 12 ROB BONTA, in his capacity as Attorney TEMPORARY RESTRAINING ORDER General of the State of California, et al. [Dkt. 9]; 13 Defendants. 14 2) CONDITIONALLY GRANTING MOTION TO PROCEED 15 PSEUDONYMOUSLY [Dkt. 11];

16 3) SETTING BRIEFING SCHEDULE 17 FOR MOTION FOR PRELIMINARY INJUNCTION; and 18 4) SETTING BRIEFING SCHEDULE 19 FOR MOTION TO DISMISS 20 Plaintiffs Jane Doe and John Doe Nos. 1 through 4 filed an ex parte Application 21 for a Temporary Restraining Order and an Order to Show Cause Re: Preliminary 22 Injunction (“TRO Application”) and an ex parte Motion for a Protective Order and to 23 Proceed Using Pseudonyms. Defendant Rob Bonta, in his capacity as Attorney General 24 of the State of California, filed briefs in opposition to both motions. For the reasons stated 25 at the hearing and summarized in this Order, the Court DENIES the TRO Application and 26 CONDITIONALLY GRANTS the Motion for a Protective Order and to Proceed Using 27 Pseudonyms. 28 1 BACKGROUND 2 California Assembly Bill 173 went into effect on September 23, 2021. The statute 3 permits the California Department of Justice (“DOJ”) to disclose data from the Automated 4 Firearms System (“AFS”) and the Dealer Record of Sale System (“DROS,” and together 5 with “AFS,” the “Databases”) to the California Firearm Violence Research Center and 6 other “nonprofit bona fide research institution[s] accredited by the United States 7 Department of Education or the Counsel for Higher Education Accreditation for the study 8 of the prevention of violence.” Cal. Penal Code § 11106(c). The Databases, which 9 predate AB 173’s enactment, include information on applicants for concealed carry 10 permits, firearm purchasers, and ammunition purchasers, including names, addresses, 11 places and dates of birth, state driver’s license or other identification numbers, telephone 12 numbers, sex, occupations, and physical descriptions.1 13 Plaintiffs contend that the disclosure of their personal information, which they were 14 compelled to furnish in order to purchase and register firearms, purchase ammunition, or 15 obtain a permit to carry a concealed firearm, violates their Fourteenth Amendment right 16 to information privacy, chills their Second Amendment activity, directly violates their 17 Second Amendment rights, and infringes on their privacy rights under California’s 18 constitution and statutes.2 19 20 1 The parties dispute whether AFS includes social security numbers. Those numbers are disclosed on concealed carry permit applications, one source from which the AFS system 21 is populated. (Plaintiffs’ Request for Judicial Notice, Ex. 6, Dkt. 9-7). Nevertheless, the statute establishing AFS does not call for inclusion of social security numbers and the 22 Attorney General has presented evidence that “social security information is not generally 23 recorded in [AFS].” See Cal. Penal Code § 11106; (Decl. of Trent Simmons, Dkt. 19-2 ¶ 17). 24 2 The parties dispute whether AFS includes social security numbers. Those numbers are 25 disclosed on concealed carry permit applications, one source from which the AFS system is populated. (Plaintiffs’ Request for Judicial Notice, Ex. 6, Dkt. 9-7). Nevertheless, the 26 statute establishing AFS does not call for inclusion of social security numbers and the Attorney General has presented evidence that “social security information is not generally 27 recorded in [AFS].” See Cal. Penal Code § 11106; (Decl. of Trent Simmons, Dkt. 19-2 28 ¶ 17). 1 ANALYSIS 2 The standard for obtaining a temporary restraining order is identical to the standard 3 for obtaining a preliminary injunction, with the primary difference being duration: 4 preliminary injunctions remain in force throughout the litigation, while TROs, which are 5 traditionally entered on an ex parte basis, are limited to 14 days. See Fed. R. Civ. Pro. 6 65(b)(2). To obtain either form of relief, Plaintiffs must establish “that [they are] likely to 7 succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of 8 preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is 9 in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) 10 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 11 249 (2008)). Temporary restraining orders “are emergency measures, intended to 12 preserve the status quo pending a fuller hearing on the injunctive relief requested, and 13 the irreparable harm must therefore be clearly immediate.” Givens v. Newsom, 459 F. 14 Supp. 3d 1302, 1309 (E.D. Cal. 2020), citing Reno Air Racing Ass’n, Inc. v. McCord, 452 15 F.3d 1126, 1131 (9th Cir. 2006). 16 There is no emergency here. AB 173 was enacted on September 23, 2021, and 17 Plaintiffs didn’t seek a temporary restraining order until January 10, 2022, 108 days later. 18 Before Plaintiffs filed their TRO Motion, the California Department of Justice implemented 19 disclosure procedures and disclosed the Databases to researchers at two research 20 institutions. (Dkt. 19-2 ¶¶ 15, 20).3 While Plaintiffs contend that AB 173 made a series of 21 amendments to a tangled web of California statutes, and this complexity played a part in 22 the delay, at least one prominent interest group was decrying the bill’s effects on 23 September 7, 2021, sixteen days before its enactment. See National Rifle Association 24 Institute for Legislative Action (“NRA-ILA”), California: Your Privacy is at Stake!, 25 September 7, 2021, available at https://www.nraila.org/articles/20210907/california-your- 26 27 28 3 One such disclosure was made in part before AB 173’s passage. (Dkt. 19-2 ¶ 20). 1 privacy-is-at-stake.4 2 Moreover, no irreparable harm is likely to occur in the next fourteen days. There 3 are currently no applications for new extractions of data from the Databases, and given 4 that two such extractions have already occurred, the harm represented by the pending 5 application to allow additional users at one of the institutions that already possesses data 6 is de minimis. (See Dkt. 19-2 ¶ 22). Moreover, recipients are barred from public 7 dissemination of personal information, and must submit any research based on the data 8 to DOJ for pre-publication review to ensure that the manuscripts don’t contain any 9 information identifying specific individuals. (Id. ¶ 12). In reaching this determination, the 10 Court relies on counsel’s assurance at the hearing that the California DOJ will prevent 11 publication of any manuscript containing such personal biographical information. 12 Because Plaintiffs haven’t shown the need for immediate injunctive relief, the TRO 13 Motion is DENIED. 14 The Motion for a Protective Order and to Proceed Using Pseudonyms is 15 CONDITIONALLY GRANTED. Protection of the Plaintiffs’ identities is at the core of this 16 case, and so the Court will not require them to disclose their names as a condition of 17 seeking relief. But because it would put Defendant at an unfair disadvantage if Plaintiffs’ 18 identities and personal information were shielded completely, the Court ORDERS 19 Plaintiffs, in consultation with Defendant, to submit a proposed protective order on or 20 before January 26, 2022. That proposed order must establish confidentiality provisions 21 covering Plaintiffs’ personal information and directing disclosure of Plaintiffs’ identities 22 only to Defendant. 23 24 4 While the NRA has claime d credit for the filing of this litigation, that organization is not 25 a party. See NRA-ILA, “NRA-ILA Asks Court for Temporary Restraining Order to Protect California Gun Owners’ Privacy,” January 11, 2022, available at 26 https://www.nraila.org/articles/20220111/nra-ila-asks-court-for-temporary-restraining- order-to-protect-california-gun-owners-privacy. The Court does not treat this document 27 as an admission that the harm was known to plaintiffs, only that it was reasonably 28 knowable far sooner than three-and-a-half months after AB 173’s passage. 1 Any motion for preliminary injunction must be filed on or before February 8, 2022, 2 and will be heard on March 8, 2022 at 10:00 a.m. Any brief in opposition must be filed 3 on or before February 22, 2022, and any reply must be filed on or before March 1, 2022. 4 Defendant’s time to respond to the Complaint is EXTENDED to February 9, 2022. 5 If Defendant moves to dismiss the Complaint, any response must be filed on or before 6 February 25, 2022, and any reply must be filed on or before March 4, 2022. Any such 7 motion will also be heard on March 8, 2022 at 10:00 a.m. 8 IT IS SO ORDERED. 9 Dated: January 20, 2022 10 HON. LARRY ALAN BURNS United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28