Will the Ninth Circuit Put a Halt to the Magazine Purchase Frenzy?

Yesterday passed without a requested ruling by the California Department of Justice on a stay of Judge Roger T. Benitez's ruling striking down the state's ban on the importation, manufacture or acquisition of "large-capacity magazines (LCMs)." According to the CalDOJ's request, it appears as they're willing to give Benitez until Friday, April 5, to issue a stay on his own, before they attempt to go over his head to the Ninth Circuit.

Tuesday's Developments

Early afternoon Tuesday, Michel & Associates, the lawyers representing the plaintiffs filed a brief, three-page document in opposition to CalDOJ's stay request. The main point of opposition is the fact that if a stay were issued at this point, there are potentially countless Californians who have purchased, manufactured or imported large-capacity magazines in the days following last Friday's ruling who would be exposed to potential felony charges.

Therefore, unless the Court can unequivocally protect those individuals in an order granting the State’s temporary stay request, that request should be denied.

Shortly before the courts closed for the day, CalDOJ filed a response containing a concession that should give some solace to those Californians who have ordered LCMs in recent days. After suggesting that there is no evidence that any California resident has purchased, manufactured or otherwise acquired LCMs in recent days—a position quickly quashed by visiting any number of threads on the CalGuns.net message board—CalDOJ nevertheless offers:

Plaintiffs urge that the request be denied “unless the Court can unequivocally protect those individuals in an order granting the State’s temporary stay request.” (Opp’n at 2:9-10.) Nothing prevents this Court from fashioning appropriate interim relief for persons who take possession of LCMs purchased between the issuance of the Judgment and an order staying the effect of that Judgment, if there are any such individuals. And a temporary stay will limit the number of people who might find themselves in that situation. For that reason, a temporary stay, issued immediately, is an appropriate remedy to protect both the State and law-abiding citizens acting in reliance on the Judgment. [emphasis added]

This concession by CalDOJ may actually be enough to get Benitez to issue a stay, since there is no guarantee that, should he refuse, the Ninth Circuit panel would be willing to craft a similar safe haven for those who purchased LCMs in good faith.

The Ninth Circuit's Motions Panel

If CalDOJ doesn't get what they want from Benitez, then the next step is the Ninth Circuit's Motions Panel. The three judges who are assigned to hear motions like the stay requested by CalDOJ are Diarmuid O'Scannlain, William A. Fletcher, and Paul J. Watford. For 2nd Amendment supporters, this doesn't look like a group that is likely to let LCMs to continue to come into the state while awaiting an appeal on the merits.

Diarmuid O'Scannlain

Longtime gun rights supporters will recognize Diarmuid O'Scannlain as the lead author on the 2-1 Ninth Circuit ruling in Peruta v. San Diego which ever so briefly made California a "shall-issue" state when it comes to concealed carry permits. O'Scannlain's opinion was ultimately overturned by a full-panel of the Ninth Circuit, but his original analysis of the law at issue has been persuasive and cited by other judges in other circuits.

O'Scannlain also authored the more recent opinion in Young v. Hawaii, which said, since the Ninth Circuit said in overruling his Peruta decision that concealed carry of a firearm was not constitutionally protected, then open-carry of a firearm must be constitutionally protected. Otherwise the Ninth Circuit will have effectively deleted the word "bear" from the 2nd Amendment's guarantee of the people to "keep and bear arms."

O'Scannlain's Young decision is currently on hold. The Ninth Circuit decided (again) to review his decision en banc, likely to do more legalistic contortions, but has put a halt to all proceedings as the Supreme Court this term took its first 2nd Amendment-related case in nearly a decade in New York State Rifle & Pistol Association, Inc. v. City of New York.

Nominated to the court in 1986 by President Ronald Reagan, gun rights supporters couldn't ask for a better advocate on the motions panel.

William A. Fletcher

And then there's William A. Fletcher, a Bill Clinton appointee, who wrote the en banc decision in Peruta overturning O'Scannlain's panel decision. The issue in Peruta was that the state of California had made it illegal to openly carry a firearm, and the San Diego County Sheriff refused to issue common citizens a permit to carry concealed, that there was a de facto ban on the right to bear arms as protected by the 2nd Amendment.

Fletcher and his cohort narrowed the issue to whether there was a constitutional right to carry a concealed weapon, ignoring the underlying issue altogether.

Fletcher was also featured in a National Review Bench Memos blog post about "This Day in Liberal Judicial Activism" for a decision he rendered back in 2000.

In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

It is safe to expect that Fletcher would continue with his results-oriented jurisprudence and anti-2nd Amendment tilt should he consider a stay in the Duncan case.

Paul J. Watford

The final member of the motions panel is Paul J. Watford, an Obama appointee, and someone who was on the short list to replace late Supreme Court Justice Antonin Scalia, a nomination which eventually went to Merrick Garland.

On the court since 2011, Watford has a far shorter record than his other two colleagues. The left-wing Alliance for Justice provided these two brief summaries of some of Watford's more notable opinions:

Judge Watford has authored a number of decisions that were appealed to the Supreme Court. In an en banc Ninth Circuit opinion, Judge Watford wrote that a Los Angeles law that required hotels to present guest records to police violated the Fourth Amendment. The plaintiff hotel owners did not challenge their obligation to keep the records, but argued that they could not be required to turn them over to police without any justification and without an opportunity for judicial review. Judge Watford held that the lack of procedural safeguards rendered the law facially unconstitutional. The case was appealed to the Supreme Court which affirmed the opinion written by Judge Watford.

The Supreme Court has also adopted reasoning that Judge Watford set forth in dissent. In Reed v. Town of Gilbert, Judge Watford dissented and argued that a city’s sign ordinance that established different restrictions for different types of signs—including ideological signs, political signs, and temporary directional signs (like the plaintiff’s church meeting signs), among other categories—was an unconstitutional content-based regulation that failed to withstand strict scrutiny. Upon appeal to the Supreme Court, the Court unanimously agreed with Judge Watford and struck down the ordinance.

While both of these opinions show a small "l" liberal tendency when it comes to First and Fourth Amendment rights, color us skeptical that someone Barack Obama considered for the highest court in the land harbors secret pro-2nd Amendment biases.

Maybe we want Benitez to stay his decision Friday

If Judge Benitez can craft a stay of his decision that protects Californians who purchased large-capacity magazines in good faith the last few days, then that might be the best outcome for those of us living in under the soft tyranny of Attorney General Xavier Becerra. Becerra has basically announced in his filings that if Benitez does not act by Friday, April 5, then at that point he will go to the Ninth Circuit. Waiting until Friday would give maximum time for gun owners to legally acquire these magazines.

Should Benitez refuse to issue a stay, it is unlikely that the Ninth Circuit's Motions Panel for this month would create a legal safe haven for those who relied on Benitez's opinion to purchase or manufacture large-capacity magazines.

It is even more unlikely that they would deny the stay request from CalDOJ altogether.