Metropolitan News-Enterprise


Friday, September 8, 2023


Page 1


Ninth Circuit:

Wrong Standard Used in Declining to Block Firearms Laws

VanDyke Says District Court Erred in Bypassing Any Analysis of ‘Likelihood of Success’ Before Denying Preliminary Injunction in Challenge to California’s Ban on Openly Carrying Firearms;  


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed an order denying a preliminary injunction in a case challenging the constitutionality of California laws that bar openly carrying firearms for protection, saying that the District Court judge employed the wrong standard. Judge Lawrence VanDyke wrote the opinion, in which Judge Kenneth Kiyul Lee and Senior Judge N. Randy Smith joined. It reverses a decision of District Court Judge Kimberly J. Mueller of the Eastern District of California.

VanDyke wrote:

“This appeal presents the question whether, in a case in which a plaintiff alleges a constitutional violation, a district court can deny a motion for a preliminary injunction without analyzing the plaintiff s likelihood of success on the merits. The answer to that question is clear: a district court may not do so.”

But Mueller did, he said.

Four Factors

The four factors to consider in ruling on a request for a preliminary injunction, under the U.S. Supreme Court’s 2008 decision in Winter v. Natural Resources Defense Council, Inc., VanDyke recited, are likelihood of success, if irreparable harm will be suffered absent relief, whether equities tip in favor of the movant, and the public interest. The third and fourth factors merge, he noted, where the government would be enjoined.

“The district court here declined to undertake any analysis of Appellants’ likelihood of success on the merits of their claim,” VanDyke said. “Instead, it conducted only an analysis of the last two merged Winter factors, on the theory that the public interest disfavoring a preliminary injunction can outweigh a plaintiffs showing that a law likely infringes his constitutional rights and causes him irreparable harm.”

That, the jurist declared, “was an abuse of discretion.”

Particular Importance

He commented that “the likelihood of success on the merits is a particularly important consideration in the preliminary injunction analysis of a constitutional claim, because a finding that the plaintiff is likely to succeed on the merits of such a claim sharply tilts in the plaintiffs favor both the irreparable harm factor…and the merged public interest and balance of harms factors….”

VanDyke made note of the U.S. Supreme Court’s June 23, 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen. There, it was held that New York’s requirement of showing “good cause” to obtain a permit to carry a concealed firearm violates the Second Amendment right to bear arms.

The jurist quoted that decision as saying that a regulation on carrying firearms will stand only if the government can “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

California’s Burden

He said that in order to show a likelihood of success in the present case, “California must identify a historical analogue that curtails the right to peaceably carry handguns openly for self-defense to a comparable degree, with a comparable severity, and with a comparable blanket enforcement to California’s open-carry ban.”

VanDyke pointed out that it has been four years since the appellants, Mark Baird and Richard Gallardo, moved for a preliminary injunction. His opinion directs the District Court “to complete its reevaluation of the requested preliminary injunction and issue a decision expeditiously.”

California law authorizes permits to carry unconcealed firearms only in counties with less than 200,000 residents—residents of which make up about five percent of the state’s population—and, VanDyke said, “California has provided no evidence that any such license has ever been issued.”

The case is Baird v. Bonta, 23-15016.


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