Friday, July 17, 2015

No Preliminary Injunction In California 1st Amendment Gun Store Case

California law prohibits a gun store from having advertising on the building indicating that they have handguns for sale. Obviously, this is a clear violation of the First Amendment rights of the store owners and it was for that reason that they sued California Attorney General Kamala Harris last November.

The judge hearing the case, US District Court Judge Troy L. Nunley, an appointee of President Obama, agreed that the First Amendment rights of the plaintiffs were being violated. Nonetheless, he refused to issue a preliminary injunction as it "would alter the status quo" and he found that this was a greater harm than the damage to the plaintiffs' Constitutional rights.

Say what?

Please tell me what harm there is to the public by allowing a store to put a Team Glock sign or a S&W logo on their front display window.

I'll let the CalGuns Foundation continue the story.
July 16, 2015 (SACRAMENTO, CA) – The State of California’s ban on handgun-related speech by licensed gun dealers likely violates their First Amendment speech rights, held a federal judge in Sacramento earlier this morning. The order, issued by District Court Judge Troy L. Nunley, found that the ban is probably unconstitutional, likely doesn’t materially reduce crime, and likely irreparably harms plaintiffs’ First Amendment right to express themselves the way they wish to. Nonetheless, the judge allowed the restriction to temporarily stand, while the case progresses further.

The gun dealers argued that California Penal Code section 26820—first enacted in 1923—prevents them from displaying any “handgun or imitation handgun, or [a] placard advertising the sale or other transfer thereof” anywhere that can be seen outside their stores and “unconstitutionally prevents firearms dealers from advertising even the most basic commercial information—‘Handguns for Sale’—at their places of business.”

In today’s order, Judge Nunley said that the State “does not meet its burden of showing that the Central Hudson elements, in tandem with the additional First Amendment principles discussed above, are met. Therefore, Plaintiffs raise serious questions going to the merits of their First Amendment challenge to section 26820.

“On balance – based on the arguments and evidence currently before the Court – the Court also finds it is more likely than not that Plaintiffs will succeed on the merits of their First Amendment claim.”

While California Attorney General Kamala Harris had argued that the law was useful in preventing handgun-related crime, the Court held that “there is not adequate evidence produced by the Government showing how, specifically, limiting impulse buys from passersby helps to manage handgun crime and violence….the Government has not shown that the ban is narrowly tailored to achieve the desired objective of managing handgun crime and violence.”

Drawing an inference that most prospective gun store customers would believe the dealers sell handguns in addition to other types of firearms, the Court said that common-sense understanding “perhaps shows the pointlessness of section 26820.”

In spite of the fact that the firearm dealer plaintiffs showed a “likelihood of irreparable harm” to their First Amendment rights, and Judge Nunley’s finding that Harris failed to show how the law actually advanced public safety, the Court said that the public interest is best served by allowing the California Department of Justice to continue enforcing the challenged law during the course of the lawsuit.

“Granting the injunction would alter the status quo by requiring California to alter its regulatory scheme and practices as they pertain to firearms. Therefore, the Court takes the requisite caution in deciding against altering the status quo. With due consideration to the free speech considerations raised by Plaintiffs, which are also of public interest, a cautionary approach that favors denial greater serves the public interest than granting the injunction.”

The gun dealers noted that judge’s arguments for a “cautionary approach” in denying the preliminary injunction are undermined by his conclusion that the law likely isn’t really reducing crime.

In response to today’s ruling, California Association of Federal Firearm Licensees (CAL-FFL) President Brandon Combs said that the firearm dealers are reviewing the decision and considering their options.

“While we are pleased that Judge Nunley agrees with us on the law’s likely unconstitutionality, it’s disappointing that he would allow the State of California to continue enforcing it during the balance of litigation.

“If this were a speech case about abortion providers rather than gun dealers, I doubt very seriously that the Court would have allowed the law to stand while it was being litigated. For that matter, it’s hard to imagine that Attorney General Harris would have bothered defending it.

“We look forward to the plaintiffs’ next steps and will continue to support the case until the law is overturned and our dealers’ First Amendment rights are restored.”

Today’s order in Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. and other case documents can be viewed at

The lawsuit is supported by CAL-FFL, California’s firearm industry association, as well as Second Amendment rights groups The Calguns Foundation and Second Amendment Foundation.  

UPDATE: Professor Eugene Volokh discusses the case at the Washington Post. He advised on the case and thinks the judge got it wrong here.
As we noted in our reply, the “impulse buying” rationale for the law rests thus on a rather far-fetched argument. It imagines a person who is in the grip of some emotion (presumably anger, jealousy or depression). He “otherwise might not enter [a] store” (to quote the state) to buy a handgun — even though he is seized by an emotion that presumably makes him contemplate violence, and even though everyone knows that handguns are commercially available.

That the store is free to have a sign saying “Guns” and has signs depicting rifles or shotguns does not influence him at all. But when he sees the word “handguns” or a picture of a handgun, he “respond[s] on impulse,” and then waits 10 days to get a handgun that he otherwise wouldn’t buy. After those 10 days are up, he then proceeds to commit a handgun crime (or commit suicide). His rage or depression is thus strong enough to last 10 days — but so weak that they wouldn’t drive him to get a handgun, were it not for an ad that specifically depicts or mentions a handgun (as opposed to some other gun).

The court agrees that this sort of argument isn’t reason enough to justify a restriction on speech promoting handguns. I think it likewise can’t justify keeping in place a restriction that the court has recognized likely violates the First Amendment; instead, as is normal for such likely unconstitutional speech restrictions, the restriction should be preliminarily enjoined while the litigation proceeds.