No. 23-3793
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________
GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF
CALIFORNIA AND IN HIS PERSONAL CAPACITY, ET AL.,
Defendants-Appellants,
V.
B&L PRODUCTIONS, D/B/A CROSSROADS OF THE WEST, ET AL.,
Plaintiffs-Appellees.
____________________
On Appeal from the United States District Court
for the Central District of California
No. 8:22-cv-01518 JWH (JDEx)
The Honorable John W. Holcomb, Judge
____________________
STATE APPELLANTS’ EXCERPTS OF RECORD
VOLUME 1 of 2
___________________
R
OB
B
ONTA
Attorney General
of California
T
HOMAS S. PATTERSON
Senior Assistant Attorney General
R.
MATTHEW WISE
L
ARA HADDAD
Supervising Deputies
Attorney
General
N
ICOLE
J.
K
AU
Deputy Attorney General
State Bar No. 292026
300 South Spring Street, Suite 1702
Los Angeles, CA 90013-1230
Telephone: (213) 269-6220
Fax: (916) 731-2119
Email: Nicole[email protected].gov
Attorneys for Defendants-Appellants
Governor Gavin Newsom, Attorney
General Rob Bonta, Secretary Karen
Ross, and 32nd District Agricultural
Association
January 16, 2024
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VOLUME 1
Date Filed
No.
Description
ER Pages
10/30/23
Order Granting Plaintiffs’ Motion
for Preliminary Injunction
1-ER-004
VOLUME 2
Date Filed
No.
Description
ER Pages
5/14/23
Transcript of Oral Argument
2-ER-038
2/24/23
Declaration of Saul Cornell in
support of State Defendants’
Second Supplemental Brief
2-ER-127
2/24/23
Declaration of Patrick Charles in
support of State Defendants’
Second Supplemental Brief
2-ER-175
1/27/23
Declaration of Elene McGee in
support of State Defendants’
Supplemental Brief
2-ER-195
12/9/22
Declaration of Jennifer Olvera in
support of State Defendant’s
Opposition to Motion for
Preliminary Injunction
2-ER-199
11/16/21
Plaintiffs’ Request for Judicial
Notice in support of Motion for
Preliminary Injunction
Ex. 2 (893)
Ex. 4 (893)
Ex. 10 (264)
Ex. 17 (915)
2-ER-203
2-ER-212
2-ER-220
2-ER-228
2-ER-235
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11/14/22
First Amended Complaint
2-ER-242
11/27/23
Notice of Appeal
2-ER-304
Docket Sheet
2-ER-309
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O
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
B&L PRODUCTIONS, INC., d/b/a
CROSSROADS OF THE WEST;
GERALD CLARK;
ERIC JOHNSON;
CHAD LITTRELL;
J
AN STEVEN MERSON;
CALIFORNIA RIFLE & PISTOL
ASSOCIATION,
INCORPORATED;
ASIAN PACIFIC AMERICAN GUN
OWNERS ASSOCIATION;
SECOND AMENDMENT LAW
CENTER, INC.; and
SECOND AMENDMENT
FOUNDATION,
Plaintiffs,
v.
GAVIN NEWSOM, in his official
capacity as Governor of the State of
California;
ROB BONTA, in his official capacity as
Attorney General of the State of
California;
KAREN ROSS, in her official capacity
as Secretary of California
Department of Food & Agriculture
and in her personal capacity;
TODD SPITZER, in his official
capacity as District Attorney of
Orange County;
32nd DISTRICT AGRICULTURAL
ASSOCIATION; and
DOES 1-10,
Defendants.
Case No. 8:22-cv-01518-JWH-JDE
ORDER GRANTING PLAINTIFFS’
MOTION FOR PRELIMINARY
INJUNCTION [ECF No. 21]
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I. SUMMARY OF DECISION
The California legislature recently enacted two statutes that effectively ban gun
shows at the Orange County Fairgrounds and, more broadly, on state-owned property.
Plaintiffs, a group of gun show proprietors and enthusiasts, sued the Governor of
California and other state officials and agencies in an effort to invalidate those two state
statutes.
Plaintiffs moved for a preliminary injunction. Plaintiffs argue that the statutes at
issue infringe both their First Amendment freedom-of-speech rights in a public forum and
their Second Amendment rights to keep and bear arms. After reviewing the parties’
extensive briefing and conducting a hearing on the motion, the Court concludes that
Plaintiffs have established that they are likely to succeed on the merits of their
constitutional claims and that they have satisfied the other requirements for injunctive
relief. Accordingly, Plaintiffs’ motion is GRANTED. Defendants are preliminarily
ENJOINED and RESTRAINED from enforcing the two state statues at issue.
II. BACKGROUND
Before the Court is the motion of Plaintiffs B&L Productions, Inc.; Gerald Clark;
Eric Johnson; Chad Littrell; Jan Steven Merson; California Rifle & Pistol Association,
Incorporated; Asian Pacific American Gun Owners Association; Second Amendment
Law Center, Inc.; and Second Amendment Foundation for a preliminary injunction
against Defendants Gavin Newsom, in his official capacity as Governor of the State of
California; Rob Bonta, in his official capacity as Attorney General of the State of
California; Karen Ross, in her official capacity as Secretary of California Department of
Food & Agriculture and in her personal capacity; Todd Spitzer, in his official capacity as
District Attorney of Orange County; and 32nd District Agricultural Association.
1
Specifically, Plaintiffs seek to enjoin Defendants from enforcing two statutes—California
Penal Code §§ 27573 and 27575—during the pendency of this action.
The Court conducted a hearing on the Motion in April 2023. After considering
the many papers filed in support and in opposition,
2
as well as the argument of counsel at
1
Pls.’ Mot. for Prelim. Inj. (the “Motion”) [ECF No. 21].
2
The Court considered the documents of record in this action, including the following
papers: (1) First Am. Compl. (the “Amended Complaint”) (including its attachments) [ECF
No. 19]; (2) Motion (including its attachments); (3) Defs.’ Opp’n to the Motion (the
“Opposition”) [ECF No. 22]; (4) Pls.’ Reply in Supp. of the Motion (the “Reply”) [ECF
No. 23]; (5) State Defs.’ Suppl. Brief in Opp’n to the Motion (“Defendants’ Supplemental
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the hearing, the Court orders that the Motion is GRANTED, for the reasons set forth
below.
A. Facts
Plaintiff B&L Productions, Inc., operating as Crossroads of the West
(“Crossroads”), has hosted gun shows at the Orange County Fair & Event Center (the
“Orange County Fairgrounds”) every year for the past 30 years.
3
During that period,
Crossroads was the largest vendor of gun show events in California and at the Orange
County Fairgrounds.
4
Crossroads claims that it “operated popular, safe, heavily
regulated, legal, and family-friendly gun shows” at the Orange County Fairgrounds,
“where like-minded individuals gather to engage in commerce related to, and necessary
for, the lawful and regulated exercise of Second Amendment rights.”
5
Although the sales
of firearms were a major factor driving the popularity and profitability of the gun shows,
participants also exchanged information regarding hunting, target practice, firearm
training and safety, gunsmithing, and political advocacy.
6
While fewer than 40% of the
vendors at Crossroads’ gun shows offer firearms or ammunition for sale, the principal
draw of gun shows is the sale of firearms and ammunition, as well as the demonstration of
firearms by knowledgeable dealers.
1. Firearm Regulations at Gun Shows
Plaintiffs contend that “California has the most rigorous regulatory regime for
commerce in firearms and ammunition in the United States” and that those regulations
apply to all gun shows throughout California.
7
Only state-approved, licensed gun show
producers may operate gun shows in California; a “producer” is defined as one who
holds a Certificate of Eligibility issued by the California Department of Justice.
8
Gun
Brief”) [ECF No. 26]; (6) Pls.’ Suppl. Brief in Supp. of the Motion [ECF No. 27]; (7) State
Defs.’ Second Suppl. Brief in Opp’n to the Motion (“Defendants’ Second Supplemental Brief”)
[ECF No. 31]; (8) Pls.’ Response to Defendants’ Second Supplemental Brief [ECF No. 32];
(9) Pls.’ Obj. to State Defs.’ Expert Decl. (“Plaintiffs’ Evidentiary Objections”) [ECF No. 33];
(10) State Defs.’ Reply in Supp. of Suppl. Brief in Opp’n to the Motion (“Defendants’
Supplemental Reply”) [ECF No. 34]; (11) State Defs.’ Response to Plaintiffs’ Evidentiary
Objections [ECF No. 35]; (12) Pls.’ Notice of Suppl. Authority [ECF No. 36]; and (13) Pls.’
[Second] Notice of Suppl. Authority [ECF No. 42].
3
Amended Complaint ¶ 11.
4
Id.
5
Id. at ¶¶ 1 &2.
6
Id. at ¶ 4.
7
Id. at ¶ 43.
8
Id. at ¶¶ 44 & 45.
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show producers must certify that they are familiar with all California laws and regulations
regarding gun shows; they must possess a minimum of $1,000,000 in liability insurance;
they must provide an annual list of such shows or events to the California Department of
Justice; and they must provide law enforcement with a list of all vendors that will
participate in the gun show to sell, lease, or transfer firearms. Cal. Penal Code § 27200 &
27205.
9
Vendors must also provide an annual event and security plan to the California
Department of Justice and to local law enforcement agencies.
10
All gun show vendors must comply with all California state laws, and gun show
producers must post signage stating that participants must comply with state law and that
each firearm carried onto the premises will be checked, cleared, and secured before its
owner is admitted to the gun show.
11
Additionally, those signs must state that “[a]ll
firearm transfers between private parties at the show shall be conducted through a
licensed dealer in accordance with applicable state and federal laws.”
12
Gun show
producers must also post signs stating that “[t]he transfer of firearms on the parking lot of
this facility is a crime.”
13
Furthermore, except in limited circumstances that are unique to law enforcement,
actual firearm transfers are prohibited from taking place at any gun show in California.
14
Firearm sales may be initiated through an on-site licensed “transfer dealer,” but delivery
of the firearm cannot be completed at the gun show. Instead, purchasers must pick up
their purchased firearm at a licensed retailer at a different location, following a 10-day
waiting period and successful background check. Plaintiffs claim that, as a result, there is
“no gun show loophole” at gun shows in California, which must operate in accordance
with state law.
15
Gun shows must also follow California’s Gun Show Act of 2000,
Cal. Penal Code §§ 27200-27245, which places many additional regulations on gun shows
in California.
16
9
Id. at ¶ 46.
10
Id. at ¶ 47.
11
Id. at ¶¶ 49 & 52.
12
Id. at ¶ 52.
13
Id. at ¶ 53.
14
Id. at ¶ 55.
15
Id.
16
Id. at ¶ 56.
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2. SB 264
California State Senator Dave Min, acting upon his campaign promise that “in my
first 100 days in office, I promise to author legislation for a ban on these gun shows at the
OC Fair and Events Center once and for all,” sponsored Senate Bill 264 (“SB 264”).
17
The bill, which took effect on January 1, 2022, modified Cal. Penal Code § 27575,
18
and it
bars any “officer, employee, operator, lessee, or licensee of the [District]” from
“contract[ing] for, authoriz[ing], or allow[ing] the sale of any firearm, firearm precursor
part, or ammunition on the property or in the building that promise the OC Fair and
Events Center.”
19
SB 264 does not bar the possession of firearms at the Orange County
Fairgrounds, and it contains exceptions for law enforcement and gun buyback programs.
20
In his comments on March 16, 2021, to the Senate Public Safety Committee,
Senator Min stated that “SB 264 will ensure that the state is not profiting from the sale of
firearms and ammunition on state property or facilitating gun shows that would
undermine California’s strong firearm regulations.”
21
He went on to explain that even if
no unlawful activities occurred at gun shows, “there is a principal [sic] that taxpayers
17
Id. at ¶ 131.
18
The entire text of Cal. Penal Code § 27575 is as follows:
(a) Notwithstanding any other law, an officer, employee, operator, lessee, or
licensee of the 32nd District Agricultural Association, as defined in Section 3884 of
the Food and Agricultural Code, shall not contract for, authorize, or allow the sale
of any firearm, firearm precursor part, or ammunition on the property or in the
buildings that comprise the OC Fair and Event Center, in the County of Orange,
the City of Costa Mesa, or any successor or additional property owned, leased, or
otherwise occupied or operated by the district.
(b) This section does not apply to any of the following:
(1) A gun buyback event held by a law enforcement agency.
(2) The sale of a firearm by a public administrator, public conservator,
or public guardian within the course of their duties.
(3) The sale of a firearm, firearm precursor part, or ammunition on state
property that occurs pursuant to a contract that was entered into before
January 1, 2022.
(4) The purchase of ammunition on state property by a law enforcement
agency in the course of its regular duties.
19
Amended Complaint ¶ 133.
20
Id. at ¶ 134.
21
Id. at ¶ 141.
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should not be utilized, and taxpayer venues should not be utilized to promulgate the
distribution of more guns into our communities.”
22
3. SB 915
Building upon SB 264’s ban on sales of firearms at the Orange County
Fairgrounds, Senator Min next introduced SB 915 added Cal. Penal Code § 27573
23
barring any “state officer or employee, or operator, lessee, or licensee of any state
property” from “contract[ing] for, authoriz[ing], or allow[ing] the sale of any firearm,
firearm precursor part, or ammunition on state property or in the buildings that sit on
state property or property otherwise owned, leased, occupied, or operated by the state.”
24
Although SB 915 did not take effect until January 1, 2023, Plaintiffs claim that,
even before that date, state officials had stopped entering into contracts with gun show
promoters.
25
Senator Min issued a press release declaring that “[l]ast year we laid the
foundation for this moment with a ban on gun shows at the Orange County Fairgrounds.
Today, I am proud to announce that California will become the first in the nation to enact
a total ban statewide.”
26
22
Id. at ¶ 142.
23
The entire text of Cal. Penal Code § 27573 is as follows:
(a) A state officer or employee, or operator, lessee, or licensee of any state
property, shall not contract for, authorize, or allow the sale of any firearm, firearm
precursor part, or ammunition on state property or in the buildings that sit on state
property or property otherwise owned, leased, occupied, or operated by the state.
(b) This section does not apply to any of the following:
(1) A gun buyback event held by a law enforcement agency.
(2) The sale of a firearm by a public administrator, public conservator,
or public guardian within the course of their duties.
(3) The sale of a firearm, firearm precursor part, or ammunition on state
property that occurs pursuant to a contract that was entered into before
January 1, 2023.
(4) The purchase of firearms, firearm precursor parts, or ammunition
on state property by a law enforcement agency in the course of its regular
duties.
(5) The sale or purchase of a firearm pursuant to subdivision (b) or (c)
of Section 10334 of the Public Contract Code.
24
Amended Complaint ¶ 146.
25
Id. at ¶ 148.
26
Id. at ¶ 149.
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Crossroads was unable to contract for a gun show for 2021. Instead, Defendant
32nd District Agricultural Association (the “32nd DAA”) informed Plaintiffs that it
would revisit the issue again in January 2022, after SB 264 went into effect.
27
Since the
passage of SB 264, Plaintiffs have been unable to use the Orange County Fairgrounds as a
venue for gun shows, even though Crossroads claims that it offered to hold events
without the sale of firearms, ammunition, or precursor parts.
28
SB 915 has similarly
prevented Plaintiffs from holding gun shows at any other state-owned facilities in
California.
29
B. Procedural History
Plaintiffs filed their initial Complaint in August 2022 and amended their pleading
November 2022, asserting the following seven claims for relief:
Violation of Right to Free Speech Under U.S. Const., amend. I, 42 U.S.C. § 1983;
Violation of Right to Free Speech Under U.S. Const., amend. I, Mixed Political—
Commercial, 42 U.S.C. § 1983;
Violation of Right to Commercial Speech Under U.S. Const., amend. I, 42 U.S.C.
§ 1983;
Prior Restraint on Right of Free Speech Under U.S. Const., amend. I, 42 U.S.C.
§ 1983;
Violation of Right to Assembly and Association Under U.S. Const., amend. I, 42
U.S.C. § 1983;
Violation of the Right to Equal Protection Under U.S. Const., amend. XIV, 42
U.S.C. § 1983;
Violation of Right to Keep and Bear Arms Under U.S. Const., amend. II, 42
U.S.C. § 1983.
30
That same month, Plaintiffs filed the instant Motion for a preliminary injunction.
After reviewing the parties’ initial papers, the Court ordered two rounds of supplemental
briefing concerning Plaintiffs’ Second Amendment claim.
31
27
Id. at ¶ 162.
28
Id. at ¶¶ 165 & 166.
29
Id. at ¶ 166.
30
See id.
31
See Order for Suppl. Briefing Regarding the Motion [ECF No. 25]; Order for Add’l
Suppl. Briefing Regarding the Motion [ECF No. 28].
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III. LEGAL STANDARD
“A preliminary injunction is an extraordinary and drastic remedy. . .; it is never
awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted).
An injunction is binding only on parties to the action, their officers, agents, servants,
employees, and attorneys and those “in active concert or participation” with them.
Fed. R. Civ. P. 65(d)(2).
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In
the Ninth Circuit, “serious questions going to the merits and a balance of hardships that
tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long
as the plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,
1135 (9th Cir. 2011) (internal quotations omitted).
IV. ANALYSIS
A. Request for Judicial Notice
Plaintiffs and Defendants submit separate requests for judicial notice with their
respective papers. Plaintiffs request judicial notice of 25 public documents, consisting of
legislative history pertaining to the two state bills, as well as both federal and state
government studies concerning gun violence.
32
Defendants request judicial notice of four
publicly filed documents relating to a case styled as B&L Prods. v. Newsom, Case
No. 21-cv-1718, which is pending in the Southern District of California.
33
Rule 201 of the Federal Rules of Evidence permits judicial notice of facts that are
“not subject to reasonable dispute” because they “can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b). Such facts include “matters of public record.” Intri-Plex Techs.,
Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). Additionally, “[t]he court
may judicially notice a fact that is not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy cannot reasonably be
32
See Pls.’ Request for Judicial Notice in Supp. of the Motion (“Plaintiffs’ RJN”) [ECF
No. 21-2].
33
See State Defs.’ Request for Judicial Notice in Supp. of Opp’n to the Motion [ECF
No. 22-2].
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questioned.” Fed. R. Evid. 201(b)(c). In the Ninth Circuit, “court filings and other
matters of public record” are sources whose accuracy cannot reasonably be questioned
for the purposes of Rule 201. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,
746 n.6 (9th Cir. 2006). “The court . . . must take judicial notice if a party requests it and
the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2).
Accordingly, to the extent that the Court relies upon the documents provided by Plaintiffs
and Defendants, both parties’ requests for judicial notice are GRANTED.
34
B. Preliminary Injunction Factors
1. Likelihood of Success on the Merits
a. Plaintiffs’ First Amendment Claims
Plaintiffs move for a preliminary injunction based upon several theories under the
First Amendment. First, Plaintiffs assert that California’s ban on the sale of firearms at
state-owned fairgrounds is “a thinly veiled” pretextual attack on the gun shows
themselves and that the laws are an unconstitutional censorship of content and
viewpoints.
35
Second, Plaintiffs claim that the Orange County Fairgrounds is a public
forum and that the state’s restriction on gun sales at gun shows acts as a content-based
speech prohibition.
36
Finally, Plaintiffs argue that the ban on gun sales at the Orange
County Fairgrounds serves as a restriction on commercial speech and that, even with
diminished First Amendment protections, the enforcement of the state statutes in
question should still be enjoined.
“In recognition of the longstanding principle that courts should avoid ‘passing on
questions of constitutionality . . . unless such adjudication is unavoidable,’” City & Cnty.
of San Francisco v. Garland, 42 F.4th 1078, 1089 (9th Cir. 2022) (citing Spector Motor Serv.
v. McLaughlin, 323 U.S. 101, 105 (1944)), the Court will begin by addressing Plaintiffs’
First Amendment claims on the narrower commercial speech restriction. See also
Ashwander v. TVA, 297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring) (counseling
that a court should neither “anticipate a question of constitutional law in advance of the
necessity of deciding it” nor “formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied”).
34
Plaintiffs object to Defendants’ expert declarations in their Second Supplemental Brief.
See Plaintiffs’ Evidentiary Objections. Because those expert declarations are relevant to the
supplemental briefing that the Court requested, Plaintiffs’ objections are OVERRULED, and
Plaintiffs’ accompanying motion to strike is DENIED.
35
Motion 7:5-10.
36
Id. at 10:25-11:10.
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i. Commercial Speech
“The Fourteenth Amendment, by incorporating the First Amendment and
applying it to the States, precludes state and local governments from ‘abridging the
freedom of speech.’” Nordyke v. Santa Clara Cnty., 110 F.3d 707, 710 (9th Cir. 1997)
(“Nordyke 1997”). Defendants claim that SB 264 and SB 915 do not abridge anyone’s
freedom of speech, because those laws “prohibit the sale of firearms, firearm precursor
parts, and ammunition at the Fairgrounds and state property, respectively, and thus an
offer to make such sales, assuming that it does not concern a lawful activity, is not
protected commercial speech.”
37
Commercial speech is defined as speech that “does no more than propose a
commercial transaction.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748, 762 (1976) (Stewart, J., concurring); see also Hunt v. City of Los
Angeles, 638 F.3d 703 (9th Cir. 2011) (holding that when “speech is directed to [a seller’s]
products and why a consumer should buy them,” that speech “clearly propose[s] a
commercial transaction”). Additionally, when evaluating the sale of firearms within the
gun show context, the Ninth Circuit has held that “[a]n offer to sell firearms or
ammunition is speech that ‘does no more than propose a commercial transaction.’ Such
an offer is, therefore, commercial speech within the meaning of the First Amendment.”
Nordyke 1997, 110 F.3d at 710.
First Amendment protections for commercial speech are not unlimited, however;
they are governed by the test that the Supreme Court articulated in Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980):
In commercial speech cases, then, a four-part analysis has developed. At the
outset, we must determine whether the expression is protected by the First
Amendment. For commercial speech to come within that provision, it at
least must concern lawful activity and not be misleading. Next, we ask
whether the asserted governmental interest is substantial. If both inquiries
yield positive answers, we must determine whether the regulation directly
advances the governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest.
Id. at 566.
The Ninth Circuit has previously analyzed commercial speech protections for gun
shows. In Nordyke 1997, the Ninth Circuit heard an appeal from a preliminary injunction
preventing the enforcement of an addendum to the lease between the Santa Clara County
37
Opposition 16:2-6.
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Fairgrounds Management Corporation (the “SCCFMC”) and the owner of the
Fairgrounds, Santa Clara County. The addendum to the lease prohibited any gun shows
from being held on the fairgrounds. Nordyke 1997, 110 F.3d at 708. Similar to the instant
action, there Santa Clara County informed the SCCFMC that the county did not intend
to ban the “exchange of information or ideas about guns, gun safety, or the display of
guns for historical or educational purposes,” but it prohibited only the “selling, offering
for sale, supplying, delivering, or giving possession or control of firearms or ammunition
to any other person at a gun show at the fairgrounds.” Id. at 708-09. The ban extended
to “any act initiating any of the foregoing transactions with the intent of completing them
at a later date.” Id. at 709.
The Nordykes—plaintiffs/appellees in Nordyke 1997—were gun show promoters
who had previously operated at the Santa Clara Fairgrounds. The Northern District of
California granted the Nordykes’ request for a preliminary injunction because the
addendum to the lease violated the Nordykes’ First Amendment rights. See id. The
Ninth Circuit concluded that “the sale of firearms at a gun show at the Fairgrounds,
which is not proscribed by federal or state law, is ‘lawful activity,’ because the County has
not enacted an ordinance to prohibit such sales.” Id. at 710. In a footnote, the Ninth
Circuit explained that “we are assuming, without deciding, for the purposes of this
analysis, that the County has the power to enact such an ordinance. However, we
acknowledge that, under established preemption principles, the County may in fact lack
that power.” Id. at 710 n.3.
The Nordykes’ legal saga continued over the next two decades, when those
plaintiffs subsequently challenged an Alameda County ordinance that prohibited the
possession of firearms on county property, which would make gun shows unprofitable.
See Nordyke v. King, 319 F.3d 1185, 1188 (9th Cir. 2003) (“Nordyke 2003”); see also
Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) (detailing the action’s 12-year history
involving Alameda County). In Nordyke 2003, the Ninth Circuit reaffirmed that the lease
addendum in Nordyke 1997 was “an unconstitutional infringement of commercial free
speech rights” because it “prohibited offers to sell guns,” and the Ninth Circuit
instructed that “[in] cases such as Nordyke [1997], what renders the law unconstitutional
is the interference with speech itself, not the hindering of actions (e.g., sales) that are not
speech.” Nordyke 2003, 319 F.3d at 1191. The Ninth Circuit upheld Alameda County’s
ban on firearm possession because “possession itself is not commercial speech,” and, as
such, the ordinance did “not infringe Nordyke’s right to free commercial speech.” Id.
Defendants here maintain that the instant action is distinguishable from Nordyke
1997 because SB 264 and SB 915 statutorily ban gun sales on state fairgrounds, as opposed
to the addendum in Nordyke 1997, which modified the county’s lease. Whereas the
underlying gun sales were a lawful activity in Nordyke 1997—and they were therefore
protected as commercial speech—now the State of California has passed laws prohibiting
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those sales as unlawful, thereby justifying the commercial speech restriction under
Central Hudson.
38
This circular reasoning is illogical and disingenuous, however, because
a law’s existence cannot be the only source of its constitutional validity. See Friedman v.
City of Highland Park, Illinois, 784 F.3d 406, 409 (7th Cir. 2015) (“[I]t would be absurd to
say that the reason why a particular weapon can be banned is that there is a statute
banning it.”).
In order to withstand Plaintiffs’ instant challenge, the statutes at issue must stand
on their own constitutional soundness. To assess whether those statutes infringe
Plaintiffs’ First Amendment rights, the Court must begin by examining the text of SB 264
and SB 915. See Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1749 (2020) (“This
Court has explained many times over many years that, when the meaning of the statute’s
terms is plain, our job is at an end.”).
(a) Textual Analysis of SB 264 and SB 915
SB 264 amended California law to provide that “an officer, employee, operator,
lessee, or licensee of the” 32nd DAA “shall not contract for, authorize, or allow the sale
of any firearm, firearm precursor part, or ammunition on the property” of the Orange
County Fairgrounds. Cal. Penal Code § 27575 (emphasis added). Additionally, SB 915
amended California law so that “a state officer or employee, or operator, lessee, or
licensee of any state property, shall not contract for, authorize, or allow the sale of any
firearm, firearm precursor part, or ammunition on state property.” Cal. Penal Code
§ 27573 (emphasis added).
In both statutes, the operative term “sale” controls whether commercial speech
protections apply to Plaintiffs’ gun shows. Webster’s Dictionary defines “sale” as “the
act of selling; specifically: the transfer of ownership of and title to property from one
person to another for a price.”
39
Black’s Law Dictionary defines “sale” as:
1. The transfer of property or title for a price. See UCC
§ 2-106(1).
2. The agreement by which such a transfer takes place. • The
four elements are (1) parties competent to contract, (2) mutual assent, (3) a
thing capable of being transferred, and (4) a price in money paid or
promised.
40
38
Id. at 16:2-6.
39
“Sale.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/sale. Accessed Oct. 23, 2023.
40
SALE, Black’s Law Dictionary (11th ed. 2019).
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For a sale to occur, the participants must engage in commercial speech in which
the seller informs the buyer about its product, the participants engage in a negotiation,
and they set a price and other terms for the exchange. See Hunt, 638 F.3d at 716. Because
“[c]ommercial speech is ‘usually defined as speech that does not more than propose a
commercial transaction,’” legislation that restricts sales also restricts commercial speech.
Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021) (citing United States v.
United Foods, Inc., 533 U.S. 405, 409 (2001)). Although Defendants are correct that the
mere “act of exchanging money for a gun is not ‘speech’ within the meaning of the First
Amendment,” Nordyke 1997, 110 F.3d at 710, the challenged statutes implicate
commercial speech by restricting the sale of otherwise legal firearms at the Orange
County Fairgrounds.
41
More specifically, at the hearing Defendants stated that SB 264
and SB 915 prevent the “consummation” of sales at gun shows and that offers and
acceptances of firearm sales at gun shows were prohibited under the statues—all of which
directly implicate commercial speech.
42
Even assuming that merely exchanging money for a firearm is not speech, the sales
regulated by those statutes do not involve the physical exchange of a weapon. Before the
enactment of SB 264 and SB 915, customers at gun shows in California could negotiate
and contract for a sale with firearm vendors, but those customers were still required to
comply with California’s 10-day waiting period and to retrieve the purchased firearm at a
physical store not located on the fairgrounds.
43
See Cal. Penal Code § 26805. Because
sales made at California gun shows must be completed both temporally and physically
removed from the show itself, SB 264 and SB 915 exceed the mere prohibition of
“exchanging money for a gun.” Instead, the Court concludes that the challenged statutes
unmistakably regulate commercial speech.
Further, the statutes in question do not merely regulate the sale of firearms; they
also prohibit state officers, employees, operators, lessees, or licensees from
“contract[ing], authoriz[ing], or allow[ing]” the sale of firearms at the Orange County
Fairgrounds or on state property. Webster’s Dictionary defines “contract” as “a binding
agreement between two or more persons or parties; especially: one legally enforceable”;
44
“authorize” is defined as “to endorse, empower, justify, or permit by or as if by some
recognized or proper authority (such as custom, evidence, personal right, or regulating
41
Opposition 10:18-24.
42
April 6, 2023, Hr’g Tr. (the “Hearing Transcript”) [ECF No. 40] 6:5-6 & 9:21-10:1.
43
Amended Complaint ¶ 55.
44
“Contract.” Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/contract. Accessed Oct. 23, 2023.
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power));
45
and “allow” is defined as “permit” or “to fail to restrain or prevent.”
46
The
common thread behind these three words is that they require actions beyond “the act of
exchanging money for a gun,” Nordyke 1997, 110 F.3d at 710, and implicate commercial
speech when they prohibit the sale of all firearm-related goods on state property.
(b) Central Hudson Test
Having concluded that SB 264 and SB 915 restrict commercial speech, the Court
now applies intermediate scrutiny under the Supreme Court’s test in Central Hudson. See
Retail Digital Network, LLC v. Prieto, 861 F.3d 839 (9th Cir. 2017) (upholding application
of intermediate scrutiny through the Central Hudson test). As described above, the sale of
lawful firearms involves commercial speech protected by the First Amendment, thereby
implicating the “lawful” portion of the Central Hudson test. See Nordyke 1997, 110 F.3d
at 712 (“The ‘lawful’ portion of the Central Hudson test presents no difficulty in this
case.”). Here, much like in Nordyke 1997, the Court will not address whether it is within
the power of the state to restrict the sale of certain classes or types of weapons at gun
shows. Assuming that the weapons that Plaintiffs sell conform with state and federal law,
the sale of those weapons constitutes a lawful activity for the purposes of commercial
speech. See id. at 710 n.3.
Next, the Court concludes that Defendants’ “asserted governmental interest is
substantial.” Central Hudson, 447 U.S. at 566. In their Opposition, Defendants argue
that “there is a ‘substantial interest in protecting the people from those who acquire guns
illegally and use them to commit crimes resulting in injury or death of their victims.’”
47
Although Defendants acknowledge that the state interest pertains only to illegally
acquired firearms, California firearm regulations aimed at addressing illegal sales apply
equally to gun shows and to brick-and-mortar stores.
48
See Cal. Penal Code § 26805.
Under Central Hudson, then, the question before the Court is whether SB 264 and SB 915
address the state’s interest in prohibiting illegal firearm sales.
Because SB 264 and SB 915 prohibit all sales of otherwise lawful firearms at the
Orange County Fairgrounds and at other gun shows held on state-owned property, the
statutes do not “directly advance[] the governmental interest asserted.” Central Hudson,
447 U.S. at 556. “By banning gun sales only at the Fairgrounds,” California “achieves
45
“Authorize.” Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/authorize. Accessed Oct. 23, 2023.
46
“Allow.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/allow. Accessed Oct. 23, 2023.
47
Opposition 16:9-11 (citing Nordyke 1997, 110 F.3d at 713) (emphasis added).
48
Amended Complaint ¶ 55.
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nothing in the way of curtailing the overall possession of guns in the County,” let alone
illegal firearms. Nordyke 1997, 110 F.3d at 713 (citing Nordyke v. Cnty. of Santa Clara, 933
F. Supp. 903, 909 (N.D. Cal. 1996)).
Even if the Court were to conclude that banning lawful firearm sales at the Orange
County Fairgrounds directly advances California’s interest in stopping illegal weapon
sales, the regulation would still be “more extensive than is necessary to serve that
interest.” Central Hudson, 447 U.S. at 566. California’s interest in stopping crimes
committed with illegal weapons, “as important as it is, cannot justify” prohibiting the
complete sale of lawful firearms at gun shows, id. at 570, especially when those same
firearms are available for purchase at regular gun stores—and, in fact, the firearms
purchased at gun shows must be retrieved at brick-and-mortar gun stores. See
Cal. Penal Code § 26805.
Plaintiffs contend that Defendants enacted SB 264 and SB 915 because of a
pretextual animus toward “gun culture” and those who attend gun shows,
49
but the
Court does not need to infer bad faith by Defendants to issue a preliminary injunction.
Although “[t]here is no doubt that the City has a substantial interest in safeguarding its
citizens against violence,” Edwards v. City of Coeur d’Alene, 262 F.3d 856, 863 (9th Cir.
2001), “even the most legitimate goal may not be advanced in a constitutionally
impermissible manner,” Carey v. Brown, 447 U.S. 455, 464–65 (1980).
A previous case in the Southern District of California is instructive. In B&L
Prods., Inc. v. 22nd Dist. Agric. Ass’n, 394 F. Supp. 3d 1226 (S.D. Cal. 2019), the same
Crossroads Plaintiff in the instant action commenced a case against the 22nd District
Agricultural Association (the “22nd DAA”) because of a one-year moratorium on gun
shows at the Del Mar Fairgrounds. Although the gun show moratorium at the Del Mar
Fairgrounds was broader than the prohibition on gun sales at issue here, the court held
that “[a] general fear that people attending gun shows will violate state and local laws
about gun possession or even commit acts of gun violence in the community upon leaving
the show cannot justify the Moratorium.” Id. at 1248.
Similar to the action involving the 22nd DAA, Defendants’ attempt here to use the
legislative history of SB 264 and SB 915 in support of California’s asserted interest in
stopping illegal firearm sales fails to survive intermediate scrutiny.
50
The legislative
findings of SB 264 do not identify any specific harms at the Orange County Fairgrounds,
nor do they indicate that gun shows present any particular risk that exceeds those of
49
Motion 16:9-11.
50
Opposition 16:12-16.
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lawful gun sales accomplished at brick-and-mortar stores.
51
Likewise, the legislative
findings of SB 915 do not examine the Orange County Fairgrounds—or any other
California gun shows—but, instead, they generalize the risks from other gun shows
conducted across the United States, even though the legislative findings acknowledge that
existing California law applies equally to all gun shows in the state.
52
Further
demonstrating the disconnect between the challenged statutes and the state’s purported
goals, one of the studies upon which the legislative history relies states that “in
California, where both gun shows themselves and gun commerce generally are regulated,
sales at gun shows are not a risk factor among licensed retailers for disproportionate sales
of crime guns.”
53
Accordingly, under intermediate scrutiny and the Central Hudson test,
SB 264 and SB 915 act an as unconstitutional infringement on commercial speech. The
Court therefore concludes that Plaintiffs will likely prevail on that First Amendment
claim.
ii. Limited Public Forum
In addition to their commercial speech argument, Plaintiffs claim that Defendants
have unlawfully curtailed Plaintiffs’ First Amended rights by prohibiting Plaintiffs’ access
to a public forum.
54
The Orange County Fairgrounds is a state-owned property maintained for public
use, and it hosts all manner of expressive events, including concerts, festivals, and fairs.
55
The 32nd DAA actively promotes public use of the property, which hosts more than 150
events that attract approximately 4.3 million visitors annually.
56
Plaintiffs further allege that the 32nd DAA has refused to contract with Plaintiffs,
even if Plaintiffs agree to exclude firearm vendors.
57
Plaintiffs claim that they offered to
host the 2022 gun show without the sale of firearms, ammunition, or precursor parts—in
compliance with SB 264—but that the 32nd DAA nevertheless refused to contract with
Plaintiffs. Discovery may be necessary for Plaintiffs to establish why the 32nd DAA
refused to allow Plaintiffs to use the Orange County Fairgrounds, but, in any event,
51
Amended Complaint, Ex. 11 [ECF No. 19-11] 3.
52
Id., Ex. 16 [ECF No. 19-16] 2-4.
53
Decl. of Anna Barvir in Supp. of the Motion (the “Barvir Declaration”) [ECF No. 21-3],
Ex. 33 at 33 (emphasis added).
54
Motion 10:21-24.
55
Id. at 10:26-28; Barvir Declaration, Ex. 28.
56
Barvir Declaration, Ex. 29 at 2.
57
Motion 10:13-20; Decl. of Tracy Olcott in Supp. of the Motion (the “Olcott
Declaration”) [ECF No. 21-5] ¶¶ 7-10.
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Plaintiffs’ allegations exceed mere commercial speech concerns and extend to expressive
conduct.
The Ninth Circuit instructs that in assessing a First Amendment claim for speech
on government property, “we must identify the nature of the forum, because the extent
to which the Government may limit access depends on whether the forum is public or
nonpublic.” Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (citing Cornelius
v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797 (1985)). “[T]he two main
categories of fora are public (where strict scrutiny applies) and non-public (where a more
lenient ‘reasonableness’ standard governs).” Id.
Specific to the Ninth Circuit, “a limited public forum is a sub-category of a
designated public forum that ‘refer[s] to a type of nonpublic forum that the government
has intentionally opened to certain groups or to certain topics.’” Id. (citing DiLoreto v.
Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999)). “In a limited
public forum, restrictions that are viewpoint neutral and reasonable in light of the purpose
served by the forum are permissible.” Id. (citing Rosenberger v. Rector & Visitors of the
Univ. of Virginia, 515 U.S. 819, 829 (1995)).
Here, the parties agree that the Orange County Fairgrounds is at least a limited
public forum.
58
See also Heffron v. Int’l Soc. For Krishna Consciousness, Inc., 452 U.S. 640
(1981) (holding that “[t]he Minnesota State Fair is a limited public forum in that it exists
to provide a means for a great number of exhibitors temporarily to present their products
or views, be they commercial, religious, or political, to a large number of people in an
efficient fashion”). In a limited public forum, any restrictions on participants “must be
reasonable and viewpoint neutral.” Christian Legal Soc. v. Martinez, 561 U.S. 661, 679
(2010).
(a) Reasonableness Standard
“A subject-matter or speaker-based exclusion must meet two requirements to be
reasonable in a limited public forum.” Seattle Mideast Awareness Campaign v. King Cnty.,
781 F.3d 489, 499 (9th Cir. 2015). “First, it must be ‘reasonable in light of the purpose
served by the forum.’” Id. (citing Cornelius, 473 U.S. at 806). “This requirement
focuses on whether the exclusion is consistent with ‘limiting [the] forum to activities
compatible with the intended purpose of the property.’” Id. (citing Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)). “Second, exclusions must be based
on a standard that is definite and objective. That requirement has been developed most
prominently in the context of time, place, and manner restrictions in traditional public
58
Opposition 13:27-14:1; Reply 4:22-23.
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forums, . . . but it applies with equal force in this context.” Id. (internal citations
omitted).
Insofar as SB 264 and SB 915 impose restrictions on commercial speech by banning
the sale of firearms, those restrictions are unreasonable in the context of the Orange
County Fairgrounds. Until California’s legislature enacted SB 264 and SB 915,
Crossroads had continually, for the past three decades, promoted gun shows at the
Orange County Fairgrounds.
59
Additionally, as a limited public forum, the Orange
County Fairgrounds has hosted a wide variety of vendors for other events, including auto
shows, home shows, and beer and wine shows, all of which are consistent with
commercial activities and similar to the events in which Plaintiffs are interested.
60
While
limited public forums may restrict the type of hosted events to those “consistent with
preserving the property for the purpose to which it is dedicated,” DiLoreto v. Downey
Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 967 (9th Cir. 1999), Defendants cannot rely
on this exception because of the long history of gun shows at the Orange County
Fairgrounds. See Martinez, 561 U.S. at 685 (“Once it has opened a limited public forum,
. . . the State must respect the lawful boundaries it has itself set.”) (internal quotation
marks and brackets omitted).
Defendants contend that SB 264 and SB 915 are sufficiently “definite and
objective” within the framework of a limited public forum analysis, because those
regulations “enact a reasonable restriction on illegal firearm, firearm precursor part, and
ammunition transactions at gun shows for the purpose of mitigating gun violence.”
61
As
previously stated in the Court’s analysis of commercial speech, however, the statutes are
overly broad, and they do not reasonably achieve California’s interest in restricting illegal
firearm-related crime, because the statutes ban lawful firearm sales that would otherwise
be allowed at brick-and-mortar gun stores. The Ninth Circuit also instructs that
reasonable speech restrictions must be supported by an independent review of the record,
Amalgamated Transit Union Loc. 1015 v. Spokane Transit Auth., 929 F.3d 643, 651 (9th Cir.
2019), and the challenged statutes fail on that point because their legislative histories do
not evaluate the risk of illegal firearm sales at the Orange County Fairgrounds or at
California-based gun shows, but, instead, they generalize harms from gun shows
conducted in other states.
62
As such, SB 264 and SB 915 do not enact reasonable subject-
59
Amended Complaint ¶ 11.
60
Motion 14:5-8.
61
Opposition 15:6-8 (emphasis added).
62
Plaintiffs’ RJN, Ex. 2 at 3; see also Barvir Declaration, Ex. 34 at 33.
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matter restrictions consistent with the First Amendment protections afforded to limited
public forums.
(b) Viewpoint Neutral Standard
“In addition to being reasonable, the [state]’s exclusion of speech from a limited
public forum must be viewpoint neutral.” Seattle Mideast Awareness Campaign, 781 F.3d
at 501. “Discrimination against speech because of its message is presumed to be
unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828
(1995). In their Opposition to the Motion, Defendants claim that SB 264 and SB 915 are
viewpoint neutral because “they apply to any event on the Fairgrounds and all state
property, not just to gun shows. Cal. Penal Code §§ 27573, 27575.”
63
“Despite the neutral content of a statute on its face, however, a statute as-applied
may be constitutionally infirm if its enforcement is based on viewpoint discrimination.”
Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d 1142, 1158 (9th Cir. 2007). During
the hearing on the Motion, Defendants conceded that only Plaintiffs and similarly
situated gun show vendors are affected by the challenged statutes, because no other
tradeshows deal in firearms.
64
Although a regulation may be deemed neutral “even if it
has an incidental effect on some speakers or messages but not others,” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989), “‘viewpoint discrimination’ occurs when the
government prohibits ‘speech by particular speakers,’ thereby suppressing a particular
view about a subject.” Rosenbaum, 484 F.3d at 1158 (citing Giebel v. Sylvester, 244 F.3d
1182, 1188 (9th Cir. 2001)).
Here, the Court finds sufficient evidence that SB 264 and SB 915 have a viewpoint-
discriminatory purpose. Legislative history shows that the goal of the two statutes is to
end gun shows in California,
65
and, while the opinions and statements of legislators are
not dispositive of viewpoint discrimination, see Dobbs v. Jackson Women’s Heath Org., 142
S. Ct. 2228, 2255 (2022) (“This Court has long disfavored arguments based on alleged
legislative motives.”), those statements are circumstantial evidence that the statutes
disfavor the lawful commercial speech of firearm vendors. See Perry, 460 U.S. at 46
(holding that governments may not “suppress expression merely because public officials
oppose the speaker’s view”). In view of the above authorities and evidence, as well as the
Orange County Fairgrounds’ status as a limited public forum, the Court concludes that
63
Opposition 15:4-6.
64
Hearing Transcript 25:15-26:12.
65
See Amended Complaint ¶¶ 131, 137, 138, 141-144, 149, & 152.
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Defendants are engaging in viewpoint discrimination by prohibiting otherwise-lawful gun
shows.
iii. Expressive Conduct
The Court must evaluate Plaintiffs’ allegation that the 32nd DAA has refused to
permit gun shows that exclude firearm-related sales.
66
Plaintiffs assert not only that
Defendants have used SB 264 and SB 915 to ban the sale of firearms, but also that
California legislators have threatened the 32nd DAA’s board members with personal
liability if any future gun shows are approved.
67
The statutes at issue prohibit only the
sale of firearms, but Plaintiffs contend that those laws serve as a pretextual means for
banning all aspects of “gun culture” practiced and exhibited at gun shows.
68
Expressive conduct “is constitutionally protected only if it is ‘sufficiently imbued
with elements of communication[,]’” meaning “‘[a]n intent to convey a particularized
message [is] present, and . . . the likelihood [is] great that the message w[ill] be
understood by those who view [ ] it[.]’” Anderson v. City of Hermosa Beach, 621 F.3d
1051, 1058 (9th Cir. 2010) (citing Spence v. Washington, 418 U.S. 405, 409-11 (1974)).
Defendants fail to address in their Opposition why the 32nd DAA refused to contract
with Plaintiffs to use the Orange County Fairgrounds, or whether groups that exclude
firearm vendors would be eligible to host gun shows. See Hartranft v. Encore Cap. Grp.,
Inc., 543 3d 893, 913 (S.D. Cal. 2021) (“where a non-moving party fails to address an
argument raised by the moving party in the opposition brief, the Court may consider any
arguments unaddressed by the non-moving party as waived”). Accordingly, the Court
concludes that Plaintiffs will likely succeed on the merits by showing that the 32nd
DAA’s actions infringe upon speech and expressive conduct by refusing to permit gun
shows that exclude firearm vendors and sales.
b. Plaintiffs’ Second Amendment Claim
Plaintiffs contend that California’s prohibition on firearm sales at the Orange
County Fairgrounds infringes their Second Amendment rights and that “the State’s ban
on selling firearms, ammunition, and firearm parts implicates keeping and bearing arms
under the Second Amendment.”
69
Defendants oppose the Motion by arguing that
66
Motion 10:13-17; Amended Complaint ¶ 166.
67
Amended Complaint ¶ 161, 163, & 164.
68
Motion 7:3-9.
69
Id. at 22:23-28.
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SB 264 and SB 915 do not meaningfully restrict Plaintiffs’ access to firearms, and,
therefore, those statutes do not infringe Plaintiffs’ Second Amendment rights.
70
The Second Amendment provides: “A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. The Supreme Court has repeatedly held that “the
Second and Fourteenth Amendments protect an individual right to keep and bear arms
for self-defense.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2125
(2022); see also McDonald v. City of Chicago, Ill., 561 U.S. 742, 778 (2010) (“[I]t is clear
that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep
and bear arms among those fundamental rights necessary to our system of ordered
liberty.”); District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (“There seems to us no
doubt, on the basis of both text and history, that the Second Amendment conferred an
individual right to keep and bear arms.”).
In Bruen, the Supreme Court instructed lower courts to employ a two-step analysis
when considering Second Amendment claims. First, “when the Second Amendment’s
plain text covers an individual’s conduct, the Constitution presumptively protects that
conduct.” Bruen, 142 S. Ct. at 2126. When government regulation implicates an
individual’s Second Amendment rights, “the government may not simply posit that the
regulation promotes an important interest,” but, instead, “the government must
demonstrate that the regulation is consistent with this Nation’s historical tradition of
firearm regulation.” Id. The Court will address each step in turn.
i. Bruen Step-One Analysis
As a preliminary matter, evolving Supreme Court jurisprudence regarding the
Second Amendment has overturned much of the Ninth Circuit’s precedent relating to
restrictions on gun shows. Whereas the Nordyke line of cases may be instructive
regarding gun shows and commercial speech, the Ninth Circuit’s previous interpretation
of the Second Amendment—as guaranteeing only “a collective right for the states to
maintain an armed militia” and “offer[ing] no protection for the individual’s right to bear
arms,” Nordyke 2003, 319 F.3d at 1191 (emphasis in original)—has been unambiguously
overturned by Heller and its progeny.
After the decisions in Heller and McDonald, Alameda County was compelled in
Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) (“Nordyke 2012”), to revise its
interpretation of the ordinance at issue there; instead of prohibiting the possession of
firearms at gun shows, vendors were required to secure firearms “to prevent
70
Opposition 21:13-24.
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unauthorized use” and to attach cables to firearm fixtures to display tables—“much as
cell phones, cameras, and other attractive items routinely are displayed for sale.” Id. at
1044.
The question now before the Court is whether banning the sale of firearms at gun
shows at the Orange County Fairgrounds, and state-wide, restricts an individual’s rights
under the Second Amendment. Bruen, 142 S. Ct. at 2126. Because the Second
Amendment protects the individual’s right to keep and bear arms in self-defense, it also
must protect the attendant rights of gun ownership that make keeping and bearing arms
meaningful. See Heller, 554 U.S. at 629 (striking down a ban on handguns, even though
the statute at issue permitted the ownership of other types of firearms); Jackson v. City &
Cnty. of San Francisco, 746 F.3d 953, 697 (9th Cir. 2014) (extending Second Amendment
rights to the purchase of ammunition, because “without bullets, the right to bear arms
would be meaningless”); Teixeira v. Cnty. of Alameda, 873 F.3d 670, 677 (9th Cir. 2017)
(en banc) (“[T]he core Second Amendment right to keep and bear arms for self-defense
‘wouldn’t mean much’ without the ability to acquire arms.”) (citing Heller, 554 U.S. at
617–18); Boland v. Bonta, 2023 WL 2588565, at *4 (C.D. Cal. Mar. 20, 2023) (granting a
preliminary injunction against a California law preventing plaintiffs from “purchas[ing]
state-of-the-art handguns for self-defense” because the restriction infringed Second
Amendment rights); Renna v. Bonta, 2023 WL 2846937 (S.D. Cal. April 3, 2023) (also
enjoining California laws imposing onerous safety regulations on the sale of new handgun
models).
Defendants’ main contention in their Opposition is that SB 264 and SB 915 do not
infringe Second Amendment rights because those statutes do not meaningfully restrict an
individual’s ability to acquire firearms.
71
Defendants highlight Teixeira as controlling, in
which the Ninth Circuit held that “gun buyers have no right to have a gun store in a
particular location, at least as long as their access is not meaningfully constrained.”
Teixeira, 873 F.3d at 680.
In Teixeira, the Ninth Circuit heard an appeal from plaintiffs who wanted to open a
gun store in Alameda County, but who were denied a permit by the county because of
zoning restrictions. Id. at 673. Plaintiffs filed a Second Amendment action against the
county, and the Ninth Circuit held that a plaintiff “cannot state a Second Amendment
claim based solely on the ordinance’s restriction on his ability to sell firearms.” Id.
(emphasis in original). Although the Ninth Circuit declared that “[w]e need not define
the precise scope of any such acquisition right under the Second Amendment to resolve
71
Id. at 21:13-24.
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this case”; “[w]hatever the scope of that right, Teixeira has failed to state a claim that the
ordinance impedes Alameda County residents from acquiring firearms.” Id. at 678.
Examining the Second Amendment’s protections for the acquisition of firearms,
the Teixeira court held that the plaintiffs did not adequately allege that “residents cannot
purchase firearms within the County as a whole, or within the unincorporated areas of the
County in particular.” Id. The Ninth Circuit reached that conclusion because there were
several other gun stores within the county at which residents could purchase firearms and
ammunition, including one gun store that was “600 feet away from the proposed site of
Teixeira’s planned store.” Id. at 679.
Teixeira did not provide a precise standard for what regulation of this type would
infringe an individual’s Second Amendment rights, but the Ninth Circuit did note that:
The closest Teixeira comes to stating a claim that his potential customers’
Second Amendment rights have been, or will be, infringed is his allegation
that the ordinance places “a restriction on convenient access to a
neighborhood gun store and the corollary burden of having to travel to other,
more remote locations to exercise their rights to acquire firearms and
ammunition in compliance with the state and federal laws.”
Id. (emphasis added). Although “the Second Amendment does not elevate convenience
and preference over all other considerations,” id. at 680, analyzing an individual’s ability
to acquire firearms is a starting point for assessing whether a prohibition on gun sales
infringes the Second Amendment.
In the instant action, Plaintiffs claim that before the enactment of SB 264 and
SB 915, Crossroads “was the largest vendor of gun show events in California and at the
Fairgrounds.”
72
Those gun shows served as a “modern bazaar” and a “convention-like
setting” that, according to Plaintiffs, was an “incalculable benefit to the gun-buying
consumer”; gun shows “promote[d] public safety.”
73
Furthermore, Plaintiffs maintain that gun shows are distinct from gun stores
because “[g]un shows are designed so that people will congregate, take their time, engage
each other and the vendors, and learn in a way that they do not otherwise engage.”
74
In
addition to selling firearms and ammunition, gun shows “are a cultural marketplace[]”
where customers can not only learn about firearms and weapon safety, but also celebrate
72
Amended Complaint ¶ 11.
73
Id. at ¶ 61.
74
Id. at ¶ 65.
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“gun culture” and the Second Amendment.
75
Plaintiffs claim that gun show customers
are able to interact with experienced dealers in a way that “that they cannot get anywhere
else.” Although Defendants argue that plenty of brick-and-mortar gun stores exist
throughout both California and Orange County that sell firearms and ammunition,
Defendants fail to identify how the general experience of Plaintiffs’ gun shows can be
replicated by alternative forums in the area.
76
At the hearing on the Motion, the parties agreed that there was no alternative gun
show in Orange County on private property and that Crossroads’ gun shows at the
Orange County Fairgrounds were the largest in the county.
77
Plaintiffs also stated at the
hearing that no other suitable venue exists in Orange County for hosting a gun show at the
scale of Crossroads’ gun shows at the Orange County Fairgrounds.
78
Therefore, the
instant action is distinct because there is no alternative gun show in Orange County, let
alone within “600 feet” of the Orange County Fairgrounds. Teixeira, 873 F.3d at 679.
Because SB 264 and SB 915 sufficiently implicate individual rights under the Second
Amendment, the Court will proceed to the second step of Bruen.
ii. Bruen Step-Two Analysis
In view of the Court’s determination that SB 264 and SB 915 burden conduct
protected by the Second Amendment, “the government must 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.” Bruen, 142 S. Ct. at 2127. To satisfy that burden, the state
must show that “historical regulations impose a comparable burden on the right of armed
self-defense” and that “that burden is comparably justified” while “engaging in an
analogical inquiry.” Id. at 2133 (citing McDonald, 561 U.S. at 767).
Bruen instructs that “analogical reasoning under the Second Amendment is
neither a regulatory straightjacket nor a regulatory blank check” and that a “well-
established and representative historical analogue” need not be a “historical twin.” Id.
(emphasis in original). Furthermore, the Supreme Court directed that the “job of judges
is not to resolves historical questions in the abstract,” but to “resolve legal questions
presented in particular cases or controversies.” Id. at 2131 n.6 (emphasis in original).
“Courts are thus entitled to decide a case based on the historical record compiled by the
parties.” Id.
75
Id. at ¶¶ 66, 67, & 70.
76
Defendants’ Supplemental Brief 4:18-5:2.
77
Hearing Transcript 27:21-28:23.
78
Id. at 36:20-37:10.
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Here, Defendants are unable to identify a historical analog to SB 264 or SB 915.
Although Defendants chose not to explore the history of gun shows in their papers, the
absence of a historical analog is unsurprising given the more modern appearance of gun
shows in the United States. Instead, Defendants identify general laws in which
governments regulated firearm-related possession and trade, and they reiterate their
argument that Plaintiffs did not have a “freestanding right to engage in firearms
commerce divorced from the citizenry’s ability to obtain and use guns.”
79
Teixeira, 874
F.3d at 684. The Court will examine these arguments in turn.
(a) Laws Prohibiting Firearms on Public Property and
Sensitive Places
First, Defendants assert that “the challenged statutes were enacted under the
government’s well-established authority to set limits on the use of its property when it is
acting as a proprietor.”
80
While Defendants are correct that the government possesses
rights that are similar to those of a private property owner when the government is acting
as proprietor of its land—and Defendants identify out-of-circuit authorities holding the
same,
81
see GeorgiaCarry.org, Inc. v. U.S. Army Corps of Engineers, 212 F. Supp. 3d 1348,
1363 (N.D. Ga. 2016) (upholding the prohibition of firearms on U.S. Army Corps of
Engineers property)—Defendants miss the proverbial forest for the trees. Because
SB 264 and SB 915 concern the sale of firearms and firearm-related goods—and not the
possession of those items—that analysis collapses into the First Amendment’s limited
public forum doctrine and acceptable regulations of commercial speech. See Martinez,
561 U.S. at 685. Once the state has opened a public forum to gun shows and other
similarly situated vendors, the state may impose only restrictions that are viewpoint
neutral and reasonable. Id. at 679.
Looking next to historical restrictions on the right to possess firearms, Defendants
contend that “laws forbidding the carrying of firearms in sensitive places” are
“presumptively lawful” and outside the “scope of the Second Amendment.”
82
Heller,
554 U.S. at 626-27 & n.26. Those same restrictions extend to some public spaces and
large public gatherings, and Defendants cite several laws from the 1800s that included
ballrooms, parks, and universities.
83
Although Defendants concede that “these historical
79
Defendants’ Supplemental Brief 7:4-16.
80
Defendants’ Supplemental Reply 3:16-18.
81
Id. at 4:4-17.
82
Defendants’ Supplemental Brief 11:15-17.
83
Id. at 11:26-28, 12:2-3, 12:5-7, & 12:26-27.
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analogues regulated the carrying, not the sale, of firearms in sensitive places,”
84
Defendants posit that “if anything, that means that such laws were more, not less,
restrictive than SB 264 and SB915.”
85
In further supplemental briefing, Defendants also
highlight historical firearm prohibitions at state legislatures, courthouses, places of
worship, and public schools.
86
Those historical analogues are unhelpful, though, because there is no historical
basis for a public space such as the Orange County Fairgrounds to be designated as a
sensitive space. To the contrary, Plaintiffs hosted gun shows at the Orange County
Fairgrounds for the past 30 years, and the Orange County Fairgrounds advertises itself as
a commercial forum for a wide variety of vendors.
87
Furthermore, Defendants attempt to
flip Bruen on its head by asserting that “there is no historical right under the Second
Amendment to sell firearms and related products on state property.”
88
While that may
be true, government defendants may not shift the burden to plaintiffs under Bruen when
attempting to identify historical analogs for firearm regulations. See Bruen, 142 S. Ct. at
2130. Instead, it is the state that bears the burden of identifying a historical analog to its
proposed firearm regulation. Here, Defendants fail to satisfy that burden.
(b) Government Regulation of Commerce to Promote
Public Safety
Next, Defendants declare that “[f]irearms and ammunition . . . have been
regulated ‘from the dawn of American history’” and that, dating back to colonial times,
the states used formal and informal means to regulate the gun trade.
89
In support of their
contention that SB 264 and SB 915 are merely a continuation of that tradition, Defendants
identify several laws dating back to the 1800s that regulated the sale and storage of
gunpowder, the manufacture of firearms and magazines, the fire inspection of arms
depots, and the establishment of shooting galleries and gun ranges.
90
Although those examples may show that states exercised regulatory power over the
possession and sale of firearms and ammunition, Defendants cannot properly analogize
those regulations to a complete prohibition of the sale of otherwise-lawful firearms at the
84
Id. at 13:13-14.
85
Id. at 13:14-16.
86
Defendants’ Second Supplemental Brief 4:23-5:12.
87
Motion 14:5-8.
88
Defendants’ Supplemental Reply 3:22-23.
89
Defendants Second Supplemental Brief 7:16-17 & 7:22-8:3.
90
Id. at 8:13-10:18.
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Orange County Fairgrounds or at other gun shows held on state property. Regulations
governing the safety of firearms and gunpowder in the 1800s cannot act as a self-serving
carveout for states to ban the sale of firearms, or otherwise to infringe Second
Amendment rights that are concomitant with First Amendment protections for
commercial speech.
Moreover, “[i]n analyzing possible analogues, one of the aspects of the laws the
Court must consider is whether the historical ‘restrictions imposed a substantial burden
on [the Second Amendment right] analogous to the burden created by’ the current law.”
Boland, 2023 WL 2588565, at *8 (citing Bruen, 142 S. Ct. at 2145)). Throughout their
papers, Defendants repeatedly recite that the purposes behind the challenged statutes are
to prevent illegal firearm sales and to stop the crimes associated with those illegal sales.
91
None of the laws that Defendants identify as historical analogs banned the sale of
otherwise-legal firearms, nor did those laws regulate any limited public forum analogous
to gun shows like those held at the Orange County Fairgrounds.
If anything, the fact that gun shows in California must fully comply with all laws
applicable to brick-and-mortar stores makes the above comparators inapposite, because
the examples that Defendants cite were equally applied to all firearm vendors and
gunowners. No law that Defendants cite permitted the state arbitrarily to ban firearm
sales in disfavored forums, nor did those laws discriminate between gun vendors based
upon whether the sales took place on public or private land. Statements by the challenged
bills’ author highlight the difficulty that Defendants face in finding a historical analog;
California State Senator Min declared that “California will become the first in the nation
to enact a total ban statewide” on gun shows.
92
The right to sell firearms is neither
freestanding nor unlimited, Teixeira, 873 F.3d at 684, but neither is the state’s ability to
impose restrictions on firearms that are inconsistent “with the Second Amendment’s text
and historical understanding.” Bruen, 142 S. Ct. at 2131. In sum, the Court concludes
that Plaintiffs will likely succeed on the merits of their Second Amendment claim.
c. Plaintiffs’ Equal Protection Claim
Plaintiffs assert that because Defendants have violated their First Amendment
rights through the challenged statutes, they also violate Plaintiffs’ rights under the Equal
Protection Clause of the Fourteenth Amendment.
93
U.S. Const. amend. XIV. “[U]nder
the Equal Protection Clause, not to mention the First Amendment itself, government may
not grant the use of a forum to people whose views it finds acceptable, but deny use to
91
Opposition 16:9-11.
92
Amended Complaint ¶ 149.
93
Motion 20:9-21:4.
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those wishing to express less favored or more controversial views.” Police Dep’t of City of
Chicago v. Mosley, 408 U.S. 92, 96 (1972). “Once a forum is opened up to assembly or
speaking by some groups, government may not prohibit others from assembling or
speaking on the basis of what they intend to say. Selective exclusions from a public forum
may not be based on content alone, and may not be justified by reference to content
alone.” Id.
As Defendants admit in their Opposition, Plaintiffs’ Equal Protection claim
“rise[s] and fall[s] with the First Amendment claims.” OSU Student Alliance v. Ray, 699
F.3d 1053, 1067 (9th Cir. 2012). Similar to the court in OSU Student Alliance, because the
Court concludes that Plaintiffs are likely to prevail on their First Amendment claims that
Defendants are “engaging in viewpoint discrimination,” it concludes that Plaintiffs are
also likely to prevail on their Equal Protection claim “for differential treatment that
trenched upon a fundamental right.” Id. (citing A.C.L.U. of Nevada v. City of Las Vegas,
466 F.3d 784, 798 (9th Cir. 2006)). As such, it is unnecessary for the Court to reach the
question of whether Plaintiffs can prevail under a “class-of-one” theory under their Equal
Protection claim. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
2. Remaining Preliminary Injunction Factors
Having examined Plaintiffs’ likelihood of success on the merits of the
constitutional claims, the Court will next analyze the remaining preliminary injunction
factors under Winter, 555 U.S. at 20.
a. Irreparable Harm
When a court evaluates a motion for a preliminary injunction, “[i]t is well
established that the deprivation of constitutional rights ‘unquestionably constitutes
irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citing Elrod
v. Burns, 427 U.S. 347, 373 (1976)). Because Plaintiffs are likely to prevail on their First,
Second, and Fourteenth Amendment claims, this element of the preliminary injunction
test is satisfied.
b. Balance of the Equities and Public Interest
“Once an applicant satisfies the first two factors, the traditional stay inquiry calls
for assessing the harm to the opposing party and weighing the public interest.” Nken v.
Holder, 556 U.S. 418, 435 (2009). “These factors merge when the Government is the
opposing party.” Id. The Ninth Circuit directs that “[i]t is always in the public interest
to prevent the violation of a party’s constitutional rights.” Index Newspapers LLC v.
United States Marshals Serv., 977 F.3d 817, 838 (9th Cir. 2020) (internal citation and
quotation omitted). Additionally, “courts have ‘consistently recognized the significant
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public interest in upholding First Amendment principles.’” Id. (citing Associated Press v.
Otter, 682 F.3d 821, 826 (9th Cir. 2012)).
Defendants assert that the balance of the equities and the public interest weigh
against granting a preliminary injunction because, given the rationale for the statutes,
“[t]he costs of being mistaken[] on the issue of whether the injunction would have a
detrimental effect on []gun crime, violence . . . would be grave.”
94
Tracy Rifle & Pistol
LLC v. Harris, 118 F. Supp. 3d 1182, 1193 (E.D. Cal. 2015), aff’d, 637 F. App’x 401 (9th
Cir. 2016). Defendants cite examples from the legislative history of the challenged
statutes in support of their contention,
95
but, as detailed above, none of the studies that
Defendants cite evaluates the harms and risks associated with gun shows at the Orange
County Fairgrounds or in California in general. To the contrary, the studies that the
legislative history cites list California as an exception to legal loopholes associated with
gun shows elsewhere in the United States.
96
Accordingly, those preliminary injunction
factors weigh in favor of Plaintiffs.
C. Bond
Defendants did not request, in their briefing or during the hearing, that Plaintiffs
post a bond or other security. See Fed. R. Civ. P. 65(d). Indeed, “[c]ourts routinely
impose either no bond or a minimal bond in public interest environmental cases.” City of
South Pasadena v. Slater, 56 F. Supp. 2d 1106, 1148 (C.D. Cal. 1999) (citing People ex rel.
Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325 (9th Cir.), modified on
other grounds, 775 F.2d 998 (9th Cir. 1985)); see also Renna, 2023 WL 2588565, at *15
(same, with respect to public interest cases). Accordingly, this requirement is waived and
no bond will be required.
D. Defendants’ Request for Stay of Preliminary Injunction Pending Appeal
At the hearing on the Motion, Defendants made for the first time a request that the
Court stay any preliminary injunction until Defendants could file an appeal.
97
“A stay is
not a matter of right, even if irreparable injury might otherwise result to the appellant.”
Index Newspapers, 977 F.3d at 824 (citing Virginian Ry. Co. v. United States, 272 U.S. 658,
672 (1926)). “The party requesting a stay bears the burden of showing that the
94
Opposition 25:5-9.
95
See Plaintiffs’ RJN, Ex. 2 at 3; id., Ex. 10 at 2-3; id., Ex. 17 at 2 & 4.
96
Barvir Declaration, Ex. 33 at 33.
97
Hearing Transcript 72:15-16.
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circumstances justify an exercise of that discretion.” Id. (citing Nken, 556 U.S. at 433–
34).
A court deciding whether to grant a stay of an injunction pending appeal must
weigh the following: (1) whether the movants have made a strong showing that they are
likely to succeed on the merits; (2) whether the movants will be irreparably injured absent
a stay; (3) whether the issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies. See id. (citing Nken,
556 U.S. at 426). Additionally, “[t]he bar for obtaining a stay of a preliminary injunction
is higher than the Winter standard for obtaining injunctive relief.” Id. at 824 (citing
Winter, 555 U.S. at 20). The Ninth Circuit directs that “the first two Nken factors are the
most critical, and that the second two factors are only considered if the first two factors
are satisfied.” Id. Defendants “must show a strong likelihood of success on the merits.”
Id. (emphasis in original). “And ‘simply showing some possibility of irreparable injury
fails to satisfy the second factor.’” Id. (citing Nken, 556 U.S. at 434-35). Furthermore,
“the demanding standard applicable here requires that the [defendants] show ‘that
irreparable injury is likely to occur during the period before the appeal is decided.’” Id.
(citing Doe #1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020)).
Here, Defendants’ oral motion to stay fails because Defendants satisfy none of the
requirements established by the Ninth Circuit in Index Newspapers. As discussed above,
Plaintiffs—not Defendants—have shown a likelihood of success on the merits of
Plaintiffs’ constitutional claims. Defendants also have not demonstrated irreparable
injury. Although crimes committed with illegal firearms are unquestionably a serious
concern, Defendants have not shown that there is an appreciably higher risk of illegal gun
sales occurring at gun shows than there is at brick-and-mortar stores in California.
Furthermore, given that Plaintiffs aver that the 32nd DAA will negotiate event dates only
for the following calendar year,
98
it is unlikely that any gun sales will take place at the
Orange County Fairgrounds before Defendants have appealed the preliminary injunction.
Accordingly, Defendants’ oral request to stay this Court’s Order pending appeal is
DENIED.
V. DISPOSITION
For the foregoing reasons, the Court hereby ORDERS as follows:
1. Plaintiffs’ instant Motion for a preliminary injunction is GRANTED.
98
Amended Complaint ¶ 90.
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