Kim Rhode, et al v. Xavier Becerra
| KIM RHODE, R&S FIREARMS, INC., an Arizona corporation, DBA Sam's Shooters Emporium, EDWARD JOHNSON, CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC., a California corporation, RICHARD RICKS, DENISE WELVANG, AMDEP HOLDINGS, LLC, a Florida limited liability company, DBA Ammunition Depot, CORY HENRY, SCOTT LINDEMUTH, GARY BRENNAN and ABLE'S SPORTING, INC., a Texas corporation |
| XAVIER BECERRA, in his official capacity as Attorney General of the State of California |
| 20-55437 |
| April 24, 2020 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
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| Filing 20 Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Everytown for Gun Safety Support Fund. Date of service: 06/19/2020. [11727976] [20-55437] (Sloan, Matthew) [Entered: 06/19/2020 03:21 PM] |
| Filing 19 Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Illinois, Connecticut, Delaware, the District of Columbia, Hawaii, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Virginia, and Washington. Date of service: 06/19/2020. [11727780] [20-55437] (Hunger, Sarah) [Entered: 06/19/2020 01:42 PM] |
| Filing 18 Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Brady. Date of service: 06/19/2020. [11727734] [20-55437] (Love, Stefan) [Entered: 06/19/2020 01:18 PM] |
| Filing 17 Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Giffords Law Center to Prevent Gun Violence. Date of service: 06/19/2020. [11727612] [20-55437] (Kinnaird, Stephen) [Entered: 06/19/2020 12:02 PM] |
| Filing 16 Filed clerk order: The opening brief [ # 14 ] and excerpts of record [ # 15 ] submitted by Xavier Becerra are filed. No paper copies are required at this time. [11721471] (KT) [Entered: 06/15/2020 10:34 AM] |
| Filing 15 Submitted (ECF) excerpts of record. Submitted by Appellant Xavier Becerra. Date of service: 06/12/2020. [11720840] [20-55437] (Richards, Nelson) [Entered: 06/12/2020 05:37 PM] |
| Filing 14 Submitted (ECF) Opening Brief for review. Submitted by Appellant Xavier Becerra. Date of service: 06/12/2020. [11720836] [20-55437] (Richards, Nelson) [Entered: 06/12/2020 05:33 PM] |
| Filing 13 Filed order (BARRY G. SILVERMAN, JACQUELINE H. NGUYEN and DANIEL PAUL COLLINS, dissenting): This appeal challenges the district courts preliminary injunction prohibiting the enforcement of California restrictions on the purchase of ammunition on Second Amendment and dormant Commerce Clause grounds. The California Attorney General moves for a stay of the injunction pending appeal. In evaluating a motion for stay pending appeal we consider four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Appellant satisfies the first factor because he has show[n], at a minimum, that [he] has a substantial case for relief on the merits. See Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011). As the Supreme Court recognized in Heller, Second Amendment rights are not unlimited. See District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008) ([N]othing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.); see also Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 970 (9th Cir. 2014) (Second Amendment right to purchase ammunition may be subjected to governmental restrictions which survive the appropriate level of scrutiny). The dormant Commerce Clause does not prohibit a state from enforcing a law that does not discriminate[] against or directly regulate[] interstate commerce and is not clearly excessive in relation to the putative local benefits. See Pharmaceutical Research & Mfrs. of Am. v. County of Alameda, 768 F.3d 1037, 1041-46 (9th Cir. 2014) (citations omitted). Appellant has also shown sufficient likelihood of irreparable harm absent a stay, and that the remaining factors favor a stay. The provisions of state law at issue were in effect for more than nine months before the district courts preliminary injunction. Appellees do not contend that they were unable to purchase ammunition lawfully and with minimal delay while those provisions were in effect. See, e.g., Teixeira v. County of Alameda, 873 F.3d 670, 681 (9th Cir. 2017) (en banc) ([M]issing is any allegation by [appellant] that any honest-to-God resident . . . cannot lawfully buy a gun nearby. (internal quotation marks and citation omitted)). We therefore grant appellants emergency motion (Docket Entry No. [ # 3 ]) for a stay of the district courts April 23, 2020 preliminary injunction pending appeal. (SEE ORDER FOR FULL TEXT) [11691240] (AF) [Entered: 05/14/2020 03:01 PM] |
| Filing 12 Filed order (BARRY G. SILVERMAN, JACQUELINE H. NGUYEN and DANIEL PAUL COLLINS) The opposed motion for an extension of time to file the opening brief and excerpts of record (Docket Entry No. [ # 9 ]) is granted. The opening brief and excerpts of record are due June 12, 2020. The answering brief is due within 28 days after service of the opening brief. The optional reply brief is due within 21 days after service of the answering brief. See 9th Cir. R. 3-3(b). [11689976] (WL) [Entered: 05/13/2020 03:01 PM] |
| Filing 11 Filed (ECF) Appellant Xavier Becerra reply to response (). Date of service: 05/07/2020. [11684266] [20-55437] (Richards, Nelson) [Entered: 05/07/2020 04:37 PM] |
| Filing 10 Filed (ECF) Appellees Able's Sporting, Inc., AMDEP Holdings, LLC, Gary Brennan, California Rifle & Pistol Association, Inc., Cory Henry, Edward Johnson, Scott Lindemuth, R&S Firearms, Inc., Kim Rhode, Richard Ricks and Denise Welvang response opposing motion ([ # 9 ] Motion (ECF Filing), [ # 9 ] Motion (ECF Filing) motion to extend time to file brief). Date of service: 05/06/2020. [11682437] [20-55437] (Brady, Sean) [Entered: 05/06/2020 12:32 PM] |
| Filing 9 Filed (ECF) Appellant Xavier Becerra Motion to extend time to file Opening brief until 06/12/2020. Date of service: 05/04/2020. [11679860] [20-55437] (Richards, Nelson) [Entered: 05/04/2020 02:56 PM] |
| Filing 8 Filed (ECF) Appellees Able's Sporting, Inc., AMDEP Holdings, LLC, Gary Brennan, California Rifle & Pistol Association, Inc., Cory Henry, Edward Johnson, Scott Lindemuth, R&S Firearms, Inc., Kim Rhode, Richard Ricks and Denise Welvang response opposing motion ([ # 3 ] Motion (ECF Filing), [ # 3 ] Motion (ECF Filing)). Date of service: 04/30/2020. [11676613] [20-55437] (Brady, Sean) [Entered: 04/30/2020 10:46 AM] |
| Filing 7 MEDIATION ORDER FILED: This case is NOT SELECTED for inclusion in the Mediation Program. Counsel may contact circuit mediator to discuss services available through the court's mediation program, to request a settlement assessment conf, or circumstances develop that might warrant settlement discussions. Info regarding the mediation program may be found at www.ca9.uscourts.gov/mediation. [11675370] (VS) [Entered: 04/29/2020 10:21 AM] |
| Filing 6 The Mediation Questionnaire for this case was filed on 04/27/2020. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11673645]. [20-55437] (AD) [Entered: 04/28/2020 06:44 AM] |
| Filing 5 Filed (ECF) Appellant Xavier Becerra Mediation Questionnaire. Date of service: 04/27/2020. [11673572] [20-55437] (Richards, Nelson) [Entered: 04/27/2020 08:17 PM] |
| Filing 4 Filed order (MARY H. MURGUIA and MARK J. BENNETT): The court has received appellants emergency motion for a stay. The request for an immediate administrative stay is granted. The district courts April 23, 2020 preliminary injunction order is temporarily stayed pending further court order. The court will address the emergency stay motion by separate order. [11671654] (AF) [Entered: 04/24/2020 09:46 PM] |
| Filing 3 Filed (ECF) Appellant Xavier Becerra EMERGENCY Motion to stay lower court action. Date of service: 04/24/2020. [11671626] [20-55437] (Richards, Nelson) [Entered: 04/24/2020 06:32 PM] |
| Filing 2 Filed clerk order (Deputy Clerk: MCD): The appeal filed April 24, 2020 is a preliminary injunction appeal. Accordingly, Ninth Circuit Rule 3-3 shall apply. The mediation questionnaire is due three days after the date of this order. If they have not already done so, within 7 calendar days after the filing date of this order, the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court that will be included in the record on appeal. The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due not later than May 22, 2020; the answering brief is due June 19, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. See 9th Cir. R. 3-3(b). No streamlined extensions of time will be approved. See 9th Cir. R. 31- 2.2(a)(3). Any request for an extension of time to file a brief must be made by written motion under Ninth Circuit Rule 31-2.2(b). Failure to file timely the opening brief shall result in the automatic dismissal of this appeal by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. [11671567] (ME) [Entered: 04/24/2020 05:15 PM] |
| Filing 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: To be set. Preliminary Injunction Appeal, C.R. 3-3. [11671478] (JBS) [Entered: 04/24/2020 04:20 PM] |
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