MARK BAIRD, ET AL V. ROB BONTA, No. 23-15016 (9th Cir. 2023)
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Appellants wish to openly carry handguns in California for self-protection, but California’s current licensing regime effectively establishes a statewide ban on open carry by ordinary law-abiding Californians. Appellants brought a Second Amendment suit against the Attorney General of California in his official capacity and sought a preliminary injunction enjoining the enforcement of California Penal Code sections that impose criminal penalties for unlicensed open carry. The district court denied the preliminary injunction.
The Ninth Circuit reversed the district court’s denial of Appellants’ motion. The panel held that the district court abused its discretion by applying an incorrect legal standard to deny Appellants’ motion for a preliminary injunction. Instead of analyzing the first factor set forth in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)—whether Appellants were likely to succeed on the merits of their claim—the district court erroneously determined that because the public interest and balance of harms disfavored the issuance of a preliminary injunction, it was not necessary to assess Appellants’ likelihood of success on the merits. The panel set forth three requirements to guide the district court’s preliminary injunction analysis on remand.
Court Description: Second Amendment/Preliminary Injunctions. The panel reversed the district court’s denial of Appellants’ motion for a preliminary injunction seeking to enjoin enforcement of California Penal Code sections that impose criminal penalties for the unlicensed open carry of a handgun, and remanded with instructions.
The panel held that the district court abused its discretion by applying an incorrect legal standard to deny Appellants’ motion for a preliminary injunction. Instead of analyzing the first factor set forth in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)—whether Appellants were likely to succeed on the merits of their claim—the district court erroneously determined that because the public interest and balance of harms disfavored the issuance of a preliminary injunction, it was not necessary to assess Appellants’ likelihood of success on the merits. Analysis of the first Winter factor is centrally important where a plaintiff alleges a violation of a constitutional right, including the individual’s right to carry a handgun for self-defense outside the home under the Second Amendment. Pursuant to N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), a government may regulate the manner of that carry only if it demonstrates that the regulation is identical or closely analogous to a firearm regulation broadly in effect when the Second or Fourteenth Amendment was ratified. The panel set forth three requirements to guide the district court’s preliminary injunction analysis on remand: • The district court’s analysis of the first Winter factor must include consideration of whether the conduct that California’s general open-carry ban regulates is covered by the text of the Second Amendment. If it is, California bears the burden to identify a well- established and representative historical analogue to its open-carry ban that was in force when the Second or Fourteenth Amendment was ratified.
• Noting that it has been more than four years since Appellants first moved for a preliminary injunction and more than fourteen months since Bruen was decided, the panel directed the district court to complete its preliminary injunction review expeditiously.
• If the district court determines that Appellants showed that they are likely to succeed on the merits of their claim, the district court must account for the impact that determination has on the remaining Winter factors when it analyzes each of them. This means recognizing that, in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm, and strongly tips the balance of equities and public interest in favor of granting a preliminary injunction.
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