                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                              JUL 17 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
VIRGINIA DUNCAN; et al.,                         No.    17-56081

              Plaintiffs-Appellees,              D.C. No.
                                                 3:17-cv-01017-BEN-JLB
 v.

XAVIER BECERRA, in his official                  MEMORANDUM*
capacity as Attorney General of the State
of California,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                        Argued and Submitted May 14, 2018
                             San Francisco, California

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,** District
Judge.

      The State of California (“California”), through its Attorney General, Xavier

Becerra, appeals the district court’s grant of a preliminary injunction enjoining

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
California from enforcing California Penal Code §§ 32310(c) & (d). “We review a

district court’s decision to grant or deny a preliminary injunction for abuse of

discretion.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011).

We do not “determine the ultimate merits,” but rather “determine only whether the

district court correctly distilled the applicable rules of law and exercised

permissible discretion in applying those rules to the facts at hand.” Fyock v.

Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015). We have jurisdiction under 28

U.S.C. § 1292(a)(1), and we affirm.1

                                           I.

      The district court did not abuse its discretion by granting a preliminary

injunction on Second Amendment grounds. Thalheimer, 645 F.3d 1109 at 1115.




      1
        “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. Nat. Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). California makes only a cursory argument that the latter three
elements are unmet if we find the district court did not abuse its discretion
regarding the first element. Because we find the district court did not abuse its
discretion, we only address the first element of the preliminary injunction standard
for each constitutional question. Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (“We review only issues which are argued specifically and distinctly in a
party’s opening brief. . . . [A] bare assertion does not preserve a claim, particularly
when, as here, a host of other issues are presented for review.” (citation omitted)).
                                           2
      1. The district court did not abuse its discretion by concluding that

magazines for a weapon likely fall within the scope of the Second Amendment.

First, the district court identified the applicable law, citing United States v. Miller,

307 U.S. 174 (1939), District of Columbia v. Heller, 554 U.S. 570 (2008), Caetano

v. Massachusetts, 136 S. Ct. 1027 (2016) (per curiam), and Jackson v. City and

County of San Francisco, 746 F.3d 953 (9th Cir. 2014). Second, it did not exceed

its permissible discretion by concluding, based on those cases, that (1) some part of

the Second Amendment right likely includes the right to bear a weapon “that has

some reasonable relationship to the preservation or efficiency of a well regulated

militia,” Miller, 307 U.S. at 178; see also Heller, 554 U.S. at 583, 627-28;

Caetano, 136 S. Ct. at 1028; and (2) the ammunition for a weapon is similar to the

magazine for a weapon, Jackson 746 F.3d at 967 (“‘[T]he right to possess firearms

for protection implies a corresponding right’ to obtain the bullets necessary to use

them.” (quoting Ezell v. City of Chicago, 61 F.3d 684, 704 (7th Cir. 2011))).

      2. The district court did not abuse its discretion by applying the incorrect

level of scrutiny. The district court applied both intermediate scrutiny and what it

coined the “simple test” of Heller. The district court found Plaintiffs were likely to

succeed under either analysis. Although the district court applied two different

tests, there is no reversible error if one of those tests follows the applicable legal


                                            3
principles and the district court ultimately reaches the same conclusion in both

analyses.

      Here, in its intermediate scrutiny analysis, the district court correctly applied

the two-part test outlined in Jackson. The district court concluded that a ban on

ammunition magazines is not a presumptively lawful regulation and that the

prohibition did not have a “historical pedigree.” Next, the district court concluded,

citing Fyock, that section 32310 infringed on the core of the Second Amendment

right, but, citing Silvester v. Harris, 843 F.3d 816, 823 (9th Cir. 2016), Fyock, 779

F.3d at 999, Jackson, 746 F.3d at 965, 968, and Chovan, 735 F.3d at 1138, that

intermediate scrutiny was the appropriate scrutiny level. The district court

concluded that California had identified four “important” interests and reasoned

that the proper question was “whether the dispossession and criminalization

components of [section] 32310’s ban on firearm magazines holding any more than

10 rounds is a reasonable fit for achieving these important goals.”

      3. The district court did not abuse its discretion by concluding that sections

32310(c) and (d) did not survive intermediate scrutiny. The district court’s review

of the evidence included numerous judgment calls regarding the quality, type, and

reliability of the evidence, as well as repeated credibility determinations.

Ultimately, the district court concluded that section 32310 is “not likely to be a


                                           4
reasonable fit.” California articulates no actual error made by the district court, but,

rather, multiple instances where it disagrees with the district court’s conclusion or

analysis regarding certain pieces of evidence. This is insufficient to establish that

the district court’s findings of fact and its application of the legal standard to those

facts were “illogical, implausible, or without support in inferences that may be

drawn from facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1251

(9th Cir. 2009) (en banc). In reviewing the district court’s grant of a preliminary

injunction, we cannot “re-weigh the evidence and overturn the district court’s




                                            5
evidentiary determinations—in effect, to substitute our discretion for that of the

district court.” Fyock, 779 F.3d at 1000.2

                                             II.

      The district court did not abuse its discretion by granting a preliminary

injunction on Takings Clause grounds. Thalheimer, 645 F.3d at 1115. First, the

district court, citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), Horne v.

Department of Agriculture, 135 S. Ct. 2419 (2015), Loretta v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982), Murr v. Wisconsin, 137 S. Ct. 1933

(2017), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992),



      2
         The dissent does re-weigh the evidence. It concludes that “California’s
evidence . . . was more than sufficient to satisfy intermediate scrutiny” and that the
“2013 Mayors Against Illegal Guns (MAIG) Survey . . . easily satisfies the
requirement that the evidence upon which the state relies be ‘reasonably believed
to be relevant’ and ‘fairly support’ the rationale for the challenged law.” These
conclusions mean the dissent is “substitut[ing] [its] discretion for that of the district
court,” which is impermissible under the applicable standard of review. Fyock, 779
F.3d at 1000-01.

       Further, disagreeing with another district court regarding a similar record is
not necessarily an abuse of discretion. Here, the district court made evidentiary
conclusions regarding the record provided by California, specifically noting that it
had provided “incomplete studies from unreliable sources upon which experts base
speculative explanation and predictions.” These conclusions are not “illogical,
implausible, or without support in inferences that may be drawn from facts in the
record.” Hinkson, 585 F.3d at 1251. As noted above, it is not our role to “re-weigh
the evidence and overturn the district court’s evidentiary determinations—in effect,
to substitute our discretion for that of the district court.” Fyock, 779 F.3d at 1000.
                                             6
outlined the correct legal principles. Second, the district court did not exceed its

discretion by concluding (1) that the three options provided in section 32310(d)

(surrender, removal, or sale) fundamentally “deprive Plaintiffs not just of the use

of their property, but of possession, one of the most essential sticks in the bundle of

property rights”; and (2) that California could not use the police power to avoid

compensation, Lucas, 505 U.S. at 1020-29; Loretto, 458 U.S. at 426 (holding “a

permanent physical occupation authorized by the government is a taking without

regard to the public interest it may serve”).3



      3
         The dissent also “re-weigh[s] the evidence” and the district court’s
conclusions on the Takings Clause question. Fyock, 779 F.3d at 1000. The district
court concluded that the three options available under section 32310(d) constituted
either a physical taking (surrender to the government for destruction) or a
regulatory taking (forced sale to a firearms dealer or removal out of state). The
dissent first takes issue with the district court’s conclusion that storage out of state
could be financially prohibitive. It is not “illogical” or “implausible” to conclude
that forcing citizens to remove property out of state effectively dispossess the
property due to the financial burden of using it again. Hinkson, 585 F.3d at 1263.
Such removal, as the district court notes, also eliminates use of the Banned
Magazines in “self defense.” See Heller, 554 U.S. at 592 (“[W]e find that [the text
of the Second Amendment] guarantee[s] the individual [a] right to possess and
carry weapons in case of confrontation.”). Second, the dissent argues the district
court incorrectly weighed the regulatory takings factors in Murr. While the cost
($20 to $50) of the magazine may seem minimal, the district court also noted that
the “character of the governmental action,” Murr, 137 S. Ct. at 1943, was such that
“California will deprive Plaintiffs not just of the use of their property, but of
possession,” Similarly, this conclusion is not “illogical,” “implausible,” or
“without support in inferences that may be drawn from the facts in the record.”
Hinkson, 585 F.3d at 1263.
                                            7
AFFIRMED.




            8
                                                                       FILED
Duncan v. Becerra, No. 17-56081
                                                                        JUL 17 2018
WALLACE, Circuit Judge, dissenting:                                MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS

      I respectfully dissent. For the reasons stated below, I conclude that the

district court abused its discretion in preliminarily enjoining California Penal Code

§§ 32310(c) & (d).

                                            I.

      In this case, we apply intermediate scrutiny because the challenged law

“does not implicate a core Second Amendment right, or . . . place a substantial

burden on the Second Amendment right.” Jackson v. City and Cty. of San

Francisco, 746 F.3d 953, 961 (9th Cir. 2014). Under this standard, a challenged

law will survive constitutional scrutiny so long as the state establishes a

“reasonable fit” between the law and an important government interest. United

States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). “When reviewing the

reasonable fit between the government’s stated objective and the regulation at

issue, the court may consider ‘the legislative history of the enactment as well as

studies in the record or cited in pertinent case law.’” Fyock v. Sunnyvale, 779 F.3d

991, 1000 (9th Cir. 2015) (quoting Jackson, 746 F.3d at 966). California may

establish a reasonable fit with “any evidence ‘reasonably believed to be relevant’

to substantiate its important interests.” Id.




                                            1
      The majority concludes the district court did not abuse its discretion in

concluding California’s large-capacity magazine (LCM) possession ban did not

survive intermediate scrutiny on the ground that the district court’s conclusion was

based on “numerous judgment calls regarding the quality, type, and reliability of

the evidence.” The problem, however, is that the district court’s “judgment calls”

presupposed a much too high evidentiary burden for the state. Under intermediate

scrutiny, the question is not whether the state’s evidence satisfies the district

court’s subjective standard of empiricism, but rather whether the state relies on

evidence “reasonably believed to be relevant” to substantiate its important

interests. Fyock, 779 F.3d at 1000. So long as the state’s evidence “fairly supports”

its conclusion that a ban on possession of LCMs would reduce the lethality of gun

violence and promote public safety, the ban survives intermediate scrutiny.

Jackson, 746 F.3d at 969.

      California’s evidence—which included statistical studies, expert testimony,

and surveys of mass shootings showing that the use of LCMs increases the lethality

of gun violence—was more than sufficient to satisfy intermediate scrutiny. For

example, the September 2013 Mayors Against Illegal Guns (MAIG) Survey, which

the district court writes off as inconclusive and irrelevant, easily satisfies the

requirement that the evidence upon which the state relies be “reasonably believed

to be relevant” and “fairly support” the rationale for the challenged law. The

                                            2
MAIG survey shows that assault weapons or LCMs were used in at least 15

percent of the mass shootings reported, and that in those incidents 151 percent

more people were shot, and 63 percent more people died, as compared to other

mass shootings surveyed. Even if the MAIG survey also shows that most mass

shooting incidents did not involve LCMs, California could draw a “reasonable

inference” based on the data that prohibiting possession of LCMs would reduce the

lethality of gun violence. Jackson, 746 F.3d at 966. Other evidence cited by the

state similarly supports the conclusion that mass shootings involving LCMs result

in a higher number of shots fired, a higher number of injuries, and a higher number

of fatalities than other mass shootings. The district court’s characterization of this

evidence as insufficient was based either on clearly erroneous findings of fact or an

application of intermediate scrutiny that lacked support in inferences that could be

drawn from facts in the record. In either case, it was an abuse of discretion.

      It is significant that California, in seeking to establish a reasonable fit

between §§ 32310(c) & (d) and its interest in reducing the lethality of mass

shootings, relied on much of the same evidence presented by the City of Sunnyvale

in Fyock, a case in which we affirmed the district court’s conclusion that

Sunnyvale’s LCM possession ban was likely to survive intermediate scrutiny. The

district court attempts to distinguish the two cases, stressing that an “important

difference” between this case and Fyock is that the court in Fyock “had a

                                           3
sufficiently convincing evidentiary record of a reasonable fit,” which “is not the

case here.” But the evidentiary record in Fyock included much of the same

evidence the district court here found insufficient—including the aforementioned

September 2013 MAIG survey, and expert declarations by Lucy Allen and John

Donohue, which the district court dismissed as “defective” and “biased.” The

district court did not explain why the evidentiary record in Fyock was “sufficiently

convincing,” while a substantially similar evidentiary record here was insufficient.

Given the overlap between the records, and the district court’s failure to identify

any material differences, the district court’s contention that the record here is less

credible, less reliable, and less relevant than the record in Fyock is difficult to

accept.

      The majority argues in a footnote that in concluding the district court abused

its discretion I have impermissibly re-weighed the evidence. That is not so. Our

obligation to refrain from re-weighing evidence is meant to ensure we do not

overturn a district court’s ruling simply because we would have placed more

weight on certain pieces of evidence than others. This obligation to refrain

presumes the district court has applied the correct legal standard. Here, by contrast,

my argument is that the district court did not evaluate the evidence consistent with

the applicable legal standard. This is conceptually distinct from the question

whether one piece of evidence should have been given more weight vis-à-vis

                                            4
another piece of evidence. Here, the district court was required under intermediate

scrutiny to credit evidence “reasonably believed to be relevant” to advancing the

state’s important interests. Fyock, 779 F.3d at 1000. Instead, the district court

rejected this standard for a subjective standard of undefined empirical robustness,

which it found the state did not satisfy. This it cannot do.

      In sum, I conclude the district court abused its discretion in concluding that

California had not established a “reasonable fit” between §§ 32310(c) & (d) and

the state’s important interests. On the record before the district court, California’s

LCM possession ban likely survives intermediate scrutiny. Therefore, Plaintiffs

were unlikely to succeed on the merits of their Second Amendment challenge and

were not entitled to a preliminary injunction.

                                          II.

      The district court also concluded that Plaintiffs were likely to succeed on the

merits of their claim under the Takings Clause on the ground that §§ 32310(c) &

(d) was both a physical appropriation of property and a regulatory taking. In my

view, the district court’s application of relevant takings doctrine was without

support in inferences that could be drawn from facts in the record, and therefore

constituted an abuse of discretion.

      The district court is correct that a physical appropriation of personal property

gives rise to a per se taking. Horne v. Department of Agriculture, 135 S. Ct. 2419,

                                           5
2427 (2015). But here, LCM owners can comply with § 32310 without the state

physically appropriating their magazines. Under § 32310(d)(1), an LCM owner

may “[r]emove the large-capacity magazine from the state,” retaining ownership of

the LCM, as well as rights to possess and use the magazines out of state. The

district court hypothesized that LCM owners may find removal to be more costly

than it is worth, but such speculation, while theoretically relevant to the regulatory

takings inquiry, does not turn the compulsory removal of LCMs from the state into

a “physical appropriation” by the state. See Tahoe-Sierra Pres. Council v. Tahoe

Reg’l Planning Agency, 535 U.S. 302, 323 (2002) (explaining that it is

“inappropriate to treat cases involving physical takings as controlling precedents

for the evaluation of a claim that there has been a ‘regulatory taking,’ and vice

versa”) (footnote omitted). Given that Plaintiffs do not specify whether they intend

to surrender or sell their LCMs, as opposed to remove them from the state and

retain ownership, the availability of the removal option means Plaintiffs are

unlikely to succeed on their claim that the LCM possession ban is unconstitutional

as a physical taking. See Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1175 (9th

Cir. 2018) (explaining that to succeed on a facial challenge, plaintiffs must show

either that “no set of circumstances exists under which the challenged law would

be valid,” or that the law lacks any “plainly legitimate sweep”); cf. Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) (“In

                                          6
determining whether a law is facially invalid, we must be careful not to go beyond

the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’

cases.”).

      Nor was the district court within its discretion to conclude that § 32310

likely constituted a regulatory taking. Under the relevant Penn Central balancing

test, a regulatory taking may be found based on “a complex of factors,” including

“(1) the economic impact of the regulation on the claimant; (2) the extent to which

the regulation has interfered with distinct investment-backed expectations; and (3)

the character of the government action.” Murr v. Wisconsin, 137 S. Ct. 1933, 1943

(2017); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).

Here, the district court speculated that because the typical retail cost of an LCM is

“between $20 and $50,” LCM owners may find “the associated costs of removal

and storage and retrieval” to be too high to justify retaining their magazines. In my

view, this speculation is insufficient to conclude that plaintiffs are likely to succeed

on the merits of their regulatory takings claim. Even accepting the district court’s

finding on the “typical retail cost” of an LCM, there are no facts in the record from

which to draw an inference regarding the overall economic impact of §§ 32310(c)

& (d) on Plaintiffs, particularly as it relates to Plaintiffs’ “distinct investment-

backed expectations” for their LCMs. Without this foundation, the district court

could not plausibly draw the inference that requiring the removal of LCMs from

                                            7
California was “functionally equivalent” to a direct appropriation and thus

constituted a regulatory taking. Lingle v. Chevron USA Inc., 544 U.S. 528, 539

(2005).

                                          III.

      “Abuse-of-discretion review is highly deferential to the district court.”

Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 881 (9th Cir. 2012). In this case,

however, I do not consider it a close call to conclude the district court abused its

discretion in finding Plaintiffs were likely to succeed on the merits of their

constitutional challenges to California’s LCM ban. As to Plaintiffs’ Second

Amendment challenge, the district court clearly misapplied intermediate scrutiny

by refusing to credit relevant evidence that fairly supports the state’s rationale for

its LCM ban. As to Plaintiffs’ Takings Clause challenge, the district court offered

only speculation on the economic impact of the challenged law and did not assess

Plaintiffs’ distinct investment-backed expectations for their LCMs. Therefore, I

would conclude the district court exceeded the broad range of permissible

conclusions it could have drawn from the record. The proper course is to reverse

the district court’s order granting the preliminary injunction and remand for further

proceedings. Accordingly, I dissent.

      As a final note, I realize the end result of the district court’s rulings are

temporary. The district court is to be commended for following our constant

                                           8
admonition not to delay trial preparation awaiting an interim ruling on the

preliminary injunction. See Caribbean Marine Servs. Co., Inc. v. Baldrige, 844

F.2d 668, 673 (9th Cir. 1988). The district court has properly proceeded with

deliberate speed towards a trial, which will allow it to decide this case with a full

and complete record and a new review. Thus, although I would reverse the district

court’s order and remand for further proceedings, I credit the district court for

ensuring the case did not stall awaiting disposition of this appeal.




                                           9
