Rhodes 2019-07-22 Memo of Ps As ISO Plaintiffs MPI

Case 3:18-cv-00802-BEN-JLB Document 32-1 Filed 07/22/19 PageID.
441 Page 1 of 34
1 C.D. Michel – SBN 144258

Sean A. Brady – SBN 262007
2 Matthew D. Cubeiro – SBN 291519
MICHEL & ASSOCIATES, P.C.
3 180 E. Ocean Boulevard, Suite 200
4 Long Beach, CA 90802
Telephone: (562) 216-4444
5 Facsimile: (562) 216-4445
Email: [email protected]
6
7 Attorneys for Plaintiffs
8
9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
11
KIM RHODE, et al., Case No.: 3:18-cv-00802-BEN-JLB
12
Plaintiffs, MEMORANDUM OF POINTS AND
13 AUTHORITIES IN SUPPORT OF
v. PLAINTIFFS’ MOTION FOR
14 PRELIMINARY INJUNCTION
15 XAVIER BECERRA, in his official
capacity as Attorney General of the State Hearing Date: August 19, 2019
16 of California, Hearing Time: 10:30 a.m.
Courtroom: 5A
17 Defendant. Judge: Hon. Roger T. Benitez
18
[Filed concurrently with Notice of Motion
19 and Motion for Preliminary Injunction,
Request for Judicial Notice, Declarations
20 Sean A. Brady, Richard Travis, James
Gilhousen, Dan Wolgin, Denise Welvang,
21 Scott Lindemuth, Bill Ortiz, David
22 Burwell, Chris Puehse, Travis Morgan,
Ethan Bartel, Myra Lowder, Daniel Gray,
23 Christina McNab, and George Dodd]
24
25
26
27
28
MEMO. OF POINTS & AUTHORITIES ISO MOT. FOR PRELIM. INJUNCTION

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Case 3:18-cv-00802-BEN-JLB Document 32-1 Filed 07/22/19 PageID.442 Page 2 of 34
1 TABLE OF CONTENTS
2 Page
3 Table of Contents .................................................................................................................. i
4 Table of Authorities ............................................................................................................iii
Introduction .......................................................................................................................... 1
5
Factual Background ............................................................................................................. 1
6
I. California’s Ammunition Scheme ............................................................................. 1
7
II. DOJ’s Ammunition Purchase and Transfer Regulations .......................................... 3
8
A. Standard Ammunition Eligibility Check (AFS Match) .................................. 4
9 B. Basic Ammunition Eligibility Check (Single Transaction or Purchase) ........ 5
10 C. Firearms Eligibility Check .............................................................................. 6
11 D. COE Verification Process ............................................................................... 6
12 III. DOJ’s Emergency Regulations Regarding Identification Requirements for
Firearms and Ammunition Eligibility Checks........................................................... 7
13
IV. Implementation of DOJ’s Ammunition Regulations................................................. 8
14
V. Implementation of DOJ’s Federally Compliant ID Regulations ............................. 10
15
A. Obtaining a U.S. Passport or U.S. Birth Certificate ...................................... 10
16
B. Impact on out-of-state vendors ...................................................................... 11
17 Legal Standard ................................................................................................................... 11
18 Argument............................................................................................................................ 11
19 I. Plaintiffs Are Likely to Succeed on the Merits ....................................................... 11
20 A. California’s Ammunition Scheme Violates the Second Amendment........... 11
21 1. California’s Ammunition Scheme Plainly Implicates Second
Amendment Conduct .......................................................................... 12
22
2. California’s Ammunition Scheme Fails Heightened Scrutiny ........... 13
23
a. California’s ammunition scheme is not “substantially
24 related” to any public safety interest. ....................................... 14
25 b. California’s ammunition scheme lacks a reasonable “fit”
with the State’s interest in preventing criminal misuse. ........... 16
26
B. California’s Ammunition Scheme Also Violates the Dormant
27 Commerce Clause.......................................................................................... 20
28 II. The Remaining Preliminary Injunction Factors Warrant Relief ............................. 23
i
TABLE OF CONTENTS
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1 A. Plaintiffs Will Suffer Irreparable Harm if the Court Denies Relief .............. 23
2 B. Granting Preliminary Injunctive Relief Is in the Public Interest .................. 24
3 C. The Balance of Equities Tips Sharply in Plaintiffs’ Favor ........................... 24
4 Conclusion ......................................................................................................................... 25
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
TABLE OF CONTENTS
18cv802
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Alliance for the Wild Rockies v. Cottrell,
5 632 F.3d 1127 (9th Cir. 2011) ...................................................................................... 24
6 Am. Libraries Ass’n v. Pataki,
969 F.Supp. 160 (S.D.N.Y.1997) ................................................................................. 23
7
8 Am. Trucking Ass’ns, Inc. v. City of Los Angeles,
559 F.3d 1046 (9th Cir. 2009) ...................................................................................... 11
9
Associated Indus. of Mo. v. Lohman,
10
511 U.S. 641 (1994) ...................................................................................................... 22
11
Buckley v. Valeo,
12 424 U.S. 1 (1976) .......................................................................................................... 13
13
Caetano v. Massachusetts,
14 136 S. Ct. 1027 (2016) .................................................................................................. 12
15 Chalk v. U.S. Dist. Ct. (Orange Cty. Superin. of Schs.),
16 840 F.2d 701 (9th Cir. 1998) .................................................................................. 11, 24
17 Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ...................................................................................................... 17
18
19 District of Columbia v. Heller,
554 U.S. 570 (2008) .......................................................................................... 11, 12, 14
20
Duncan v. Becerra,
21
265 F. Supp. 3d 1106 (S.D. Cal. 2017)......................................................................... 12
22
Edenfield v. Fane,
23 507 U.S. 761 (1993) ...................................................................................................... 13
24
Elrod v. Burns,
25 427 U.S. 347 (1976) ...................................................................................................... 23
26 Ezell v. City of Chicago,
27 651 F.3d 684 (7th Cir. 2011) ............................................................................ 13, 17, 23
28
iii
TABLE OF AUTHORITIES
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1 Granholm v. Heald,
544 U.S. 460 (2005) ................................................................................................ 20, 22
2
3 Healy v. Beer Instit.,
491 U.S. 324 (1989) ...................................................................................................... 20
4
Heller v. District of Columbia (Heller III),
5
801 F.3d 264 (D.C. Cir. 2015) .................................................................................. 7, 14
6
Klein v. City of San Clemente,
7 584 F.3d 1196 (9th Cir. 2009) ...................................................................................... 24
8
Luis v. United States,
9 136 S. Ct. 1083 (2016) .................................................................................................. 12
10 Maine v. Taylor,
11 477 U.S. 131 (1986) ................................................................................................ 21, 22
12 McCutcheon v. FEC,
134 S. Ct. 1434 (2014) ............................................................................................ 13, 17
13
14 McDonald v. City of Chicago,
561 U.S. 742 (2010) .......................................................................................... 11, 12, 23
15
Melendres v. Arpaio,
16
695 F.3d 990 (9th Cir. 2012) ........................................................................................ 23
17
Monterey Mech. Co. v. Wilson,
18 125 F.3d 702 (9th Cir. 1997) ........................................................................................ 23
19
N.C. State Conf. of NAACP v. McCrory,
20 831 F.3d 204 (4th Cir. 2016) ........................................................................................ 15
21 Nationwide Biweekly Admin., Inc. v. Owen,
22 873 F.3d 716 (9th Cir. 2017) .................................................................................. 20, 22
23 Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n,

460 U.S. 37 (1983) ........................................................................................................ 13
24
25 Preminger v. Principi,
422 F.3d 815 (9th Cir. 2005) ........................................................................................ 24
26
R.A.V. v. City of St. Paul,
27
505 U.S. 377 (1992) ...................................................................................................... 13
28
iv
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1 Rocky Mountain Farmers Union v. Corey,

730 F.3d 1070 (9th Cir. 2013) ...................................................................................... 23
2
3 Rocky Mountain Farmers Union v. Goldstene,
843 F. Supp. 2d 1071 (E.D. Cal. 2011) ........................................................................ 23
4
Rodde v. Bonta,
5
357 F.3d 988 (9th Cir. 2004) ........................................................................................ 25
6
Rodriguez v. Robbins,
7 715 F.3d 1127 (9th Cir. 2013) ...................................................................................... 24
8
Silvester v. Becerra,
9 No. 17-342, 2018 WL 943032 (U.S. Sup. Ct. Feb. 20, 2018) ................................ 12, 16
10 Tenn. Wine & Spirits Retailers Ass’n v. Thomas,
11 __ U.S. __, 139 S. Ct. 2449 (2019)............................................................................... 20
12 Tucson Woman’s Clinic v. Eden,

379 F.3d 531 (9th Cir. 2004) ........................................................................................ 13
13
14 Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997) ...................................................................................................... 17
15
U. Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth.,
16
550 U.S. 330 (2007) ...................................................................................................... 20
17
United States v. Chovan,
18 735 F.3d 1127 (9th Cir. 2013) .......................................................................... 12, 13, 17
19
Valle Del Sol Inc. v. Whiting,
20 709 F.3d 808 (9th Cir. 2013) ........................................................................................ 17
21 Valle del Sol Inc. v. Whiting,
22 732 F.3d 1006 (9th Cir. 2013) ...................................................................................... 24
23 Valley Bank of Nev. v. Plus Sys., Inc.,

914 F.2d 1186 (9th Cir. 1990) ...................................................................................... 20
24
25 W. Lynn Creamery v. Healy,
512 U.S. 186 (1994) .......................................................................................... 20, 21, 22
26
Ward v. Rock Against Racism,
27
491 U.S. 781 (1989) ...................................................................................................... 17
28
v
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1 Winter v. Nat. Res. Def. Council, Inc.,

55 U.S. 7 (2008) ............................................................................................................ 11
2
3 Statutes
4 Cal. Code Regs. tit. 11, § 4045.1 ................................................................................... 7, 15
5 Cal. Code Regs. tit. 11, § 4260 ............................................................................................ 2
6
Cal. Code Regs. tit. 11, § 4261 ............................................................................................ 2
7
Cal. Code Regs. tit. 11, § 4262 ............................................................................................ 2
8
Cal. Code Regs. tit. 11, § 4263 ...................................................................................... 2, 21
9
10 Cal. Code Regs. tit. 11, § 4300 ............................................................................................ 3
11 Cal. Code Regs. tit. 11, § 4301 ............................................................................................ 3

12 Cal. Code Regs. tit. 11, § 4302 .................................................................................... 3, 4, 5
13
Cal. Code Regs. tit. 11, § 4303 ................................................................................... passim
14
Cal. Code Regs. tit. 11, § 4304 .................................................................................... 3, 4, 6
15
Cal. Code Regs. tit. 11, § 4305 .................................................................................... 3, 4, 6
16
17 Cal. Code Regs. tit. 11, § 4306 ...................................................................................... 3, 21
18 Cal. Code Regs. tit. 11, § 4307 ............................................................................................ 3

19 Cal. Code Regs. tit. 11, § 4308 ...................................................................................... 3, 16
20
Cal. Code Regs. tit. 11, § 4309 ............................................................................................ 3
21
Cal. Code Regs. tit. 11, § 4350 ............................................................................................ 5
22
Cal. Code Regs. tit. 11, § 4351 ............................................................................................ 5
23
24 Cal. Code Regs. tit. 11, § 4352 ............................................................................................ 5
25 Cal. Code Regs. tit. 11, § 4353 ............................................................................................ 5

26 Cal. Pen. Code § 3031........................................................................................................ 21
27 Cal. Pen. Code § 28180................................................................................................ 4, 5, 6
28
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1 Cal. Pen. Code § 28180........................................................................................................ 4

2 Cal. Pen. Code § 30312............................................................................................... passim
3
Cal. Pen. Code § 30314............................................................................................ 3, 21, 25
4
Cal. Pen. Code § 30352............................................................................................ 3, 16, 25
5
Cal. Pen. Code § 30355.................................................................................................. 9, 16
6
7 Cal. Pen. Code § 30370...................................................................................................... 25
8 Other Authorities
9 27 C.F.R. § 478.11 ............................................................................................................. 15
10
11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1
11 (2d ed. 1995) ................................................................................................................. 23
12 Senate Bill No. 1235 ............................................................................................................ 1
13
Teri Weaver, Cuomo Agrees to Changes to ...................................................................... 14
14
U.S. Const., amend. I ................................................................................................... 13, 23
15
U.S. Const., amend. II ................................................................................................. passim
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 INTRODUCTION
2 California has enacted unprecedented restraints on the acquisition and transfer of
3 ammunition. The scheme purports to funnel everyone seeking to exercise their Second
4 Amendment right to acquire ammunition into a single, controlled source, an in-state
5 licensed vendor, for the purpose of confirming purchasers’ legal eligibility to possess
6 ammunition and to keep track of all purchases. While making sure dangerous people do
7 not obtain weapons is a laudable goal for government, California’s scheme goes too far
8 and must be enjoined. California ammunition vendors have reported as high as 60% of
9 people who undergo California’s background check do not pass. And California has
10 placed the additional, absurd requirement that the very identification it issues is
11 insufficient to undergo the background check, resulting in countless other eligible people
12 being unable to exercise their rights. These two phenomena alone are enough to justify a
13 preliminary injunction to stop the irreparable harm to the public. But there are even more
14 burdens caused by California’s scheme that make it undeniable. What’s more, these laws
15 unlawfully burden interstate commerce, resulting in out-of-state vendors being wholly
16 precluded from the California ammunition market. For these reasons, the Court should
17 return California to the status quo of two years ago, along with the rest of the country,
18 while the parties litigate the merits.
19 FACTUAL BACKGROUND
20 I. CALIFORNIA’S AMMUNITION SCHEME
21 California’s new ammunition restrictions are the product of Senate Bill No. 1235,
22 enacted July 1, 2016, and Proposition 63, approved by voters during the November 2016
23 General Election. As a result, with few exceptions, “the sale of ammunition by any party
24 must be conducted by or processed through a licensed ammunition vendor.” Cal. Penal
25 Code § 30312(a)(1). All persons wishing to sell ammunition must either have an
26 “ammunition vendor license” from the California Department of Justice, or already be
27 California licensed firearm dealers (“Vendors”). Id. §§ 16151, 30342, 30385(d). Vendors
28 cannot display ammunition in a manner that allows it to be accessible to a prospective
1
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1 purchaser. Id. § 30350; see also Cal. Code Regs. tit. 11, §§ 4260-4262.
2 When neither party to an ammunition sale is a Vendor, the seller must first “deliver
3 the ammunition to a [V]endor to process the transaction,” who will then “promptly and
4 properly deliver the ammunition to the purchaser, if the sale is not prohibited, as if the
5 ammunition were the [V]endor’s own merchandise.” Id. § 30312(a)(2). Any person who
6 wishes to sell more than 500 rounds of ammunition in a 30-day period, however, cannot
7 process the transfer through a Vendor, but rather must become one. Id. § 30342(a).
8 Vendors may charge purchasers a fee to process private party transactions. Id. §
9 30312(c). “If the purchaser will be present for immediate delivery of the ammunition, the
10 fee shall not exceed five dollars ($5).” Cal. Code Regs. tit. 11 § 4263(a). “If the purchaser
11 will not be present for immediate delivery of the ammunition, the vendor may charge an
12 additional storage fee as agreed upon with the purchaser prior to the vendor receiving the
13 ammunition.” Id. § 4263(b). In other words, there is no cap on what a Vendor can charge
14 a private party purchaser who is not present for immediate delivery, which, as a practical
15 matter, includes all transactions originating from out-of-state. What’s more, DOJ has
16 taken the position that Vendors are not required to process private-party transactions,
17 including from out-of-state vendors selling to California consumers. Decl. Sean A. Brady
18 Supp. Mot. Prelim. Inj. (“Brady Decl.”) ¶ 9. Thus, ammunition vendors that do not have a
19 physical presence in California operate at the whim of Vendors that do.
20 With few exceptions, all ammunition transactions must occur “face-to-face” with
21 the seller and buyer physically present. Cal. Penal Code § 30312(b). Ammunition may
22 still be “acquired over the internet or through other means of remote ordering if a
23 licensed ammunition vendor initially receives the ammunition and processes the
24 transaction.” Id. Other than sales to law enforcement and certain firearm related
25 businesses, exceptions to the vendor processing and “face-to-face” requirements include
26 (1) persons who purchase or receive ammunition at a target facility holding a business or
27 other regulatory license, provided the ammunition stays on the facility’s premises; or (2)
28 persons who purchase or receive ammunition from a spouse, registered domestic partner,
2
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1 or immediate family member. Id. §§ 30312(c)(6), 30312(c)(9)-(10). DOJ has taken the
2 position that federally licensed collectors who possess a Certificate of Eligibility
3 (“COE”) are not exempt. Brady Decl. ¶ 8; but see Cal. Penal Code § 30312(c)(6).
4 And subject to some narrow exemptions, a resident of California may not bring
5 into California any ammunition acquired outside of the state, unless it is first shipped to a
6 licensed vendor in California to process the transaction. Cal. Penal Code § 30314(a)-(b).
7 This transaction would also be completely subject to the in-state vendor’s discretion to
8 charge the purchaser a fee in any amount or to simply refuse to process it. Id. § 30312(a).
9 DOJ must electronically approve all ammunition sales processed by a Vendor in a
10 manner proscribed by DOJ regulations before a transferee may take possession of any
11 ammunition as of July 1, 2019. Id. § 30370(a). DOJ can “recover the reasonable cost of
12 regulatory and enforcement activities” related to this electronic approval requirement by
13 charging ammunition transferees a per transaction fee not to exceed $1 for the first two
14 options, and up to “the fee charged for the department’s Dealers’ Record of Sale (DROS)
15 process” ($19) for the third option. Id. § 30370(c), (e).
16 Once approved, all ammunition sales are also electronically recorded with DOJ at
17 the time of delivery, including: (1) the date of transfer, (2) the transferee’s driver’s
18 license or other identification number and the state in which it was issued, residential
19 address and telephone number, date of birth, full name and signature; (3) the brand, type,
20 and amount of ammunition being sold or transferred; and (4) the name of the salesperson.
21 Id. § 30352(a)(1)-(7). The only exception for this requirement is for persons who receive
22 ammunition at a target facility holding a business or other regulatory license, provided
23 the ammunition stays on the facility’s premises. Id. § 30352(e)(3).
24 II. DOJ’S AMMUNITION PURCHASE AND TRANSFER REGULATIONS
25 On June 24, 2019, a mere week before they took effect, DOJ adopted regulations
26 establishing the procedures for obtaining the required electronic DOJ approval and
27 record-keeping requirements (the “System”). See Cal. Code Regs. tit. 11, §§ 4300-4309.
28 The regulations provide four methods Vendors can use to obtain electronic approval:
3
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1 1. A check of the transferee’s information to ensure it matches an entry in the

Automated Firearms System (“AFS”) and matches no entry in the Prohibited
2 Armed Persons File (called the “Standard Ammunition Eligibility Checks
(AFS Match)”);
3
4 2. A check to ensure the transferee is not prohibited from purchasing or
possessing ammunition (called the “Basic Ammunition Eligibility Check
5 (Single Transaction or Purchase)”);
6 3. A purchase or transfer of ammunition as part of a firearm transaction (called
7 the “Firearms Eligibility Check”); or,
8 4. Verification of the transferee’s current COE (called the “COE Verification

Process”).
9
Cal. Code Regs. tit. 11, §§ 4302-4305.
10
11 A. Standard Ammunition Eligibility Check (AFS Match)
12 To submit a Standard Ammunition Eligibility Check, the System requires Vendors
13 to collect a transferee’s “name, date of birth, current address, and driver’s license or other
14 government identification number in the manner described in Penal Code section
15 28180,”1 as well as a telephone number. Cal. Code Regs. tit. 11, § 4302(c); see also Decl.
16 David Burwell Supp. Pls.’ Mot. Prelim. Inj. (“Burwell Decl.”) ¶ 3; Decl. Chris Puehse
17 Supp. Pls.’ Mot. Prelim. Inj. (“Puehse Decl.”) ¶ 5; Decl. Travis Morgan Supp. Pls.’ Mot.
18 Prelim. Inj. (“Morgan Decl.”) ¶ 3; Decl. Ethan Bartel Supp. Pls.’ Mot. Prelim. Inj.
19 (“Bartel Decl.”) ¶ 3; Decl. Myra Lowder Supp. Pls.’ Mot. Prelim. Inj. (“Lowder Decl.”) ¶
20 3; Decl. Daniel Gray Supp. Pls.’ Mot. Prelim. Inj. (“Gray Decl.”) ¶ 3; Decl. Bill Ortiz
21 Supp. Pls.’ Mot. Prelim. Inj. (“Ortiz Decl.”) ¶ 5. This information must be uploaded to
22 DOJ’s Dealer Record of Sale Entry System (“DES”). Id.; see also Decl. Christy McNab
23
24
25
1
Penal Code section 28180 requires the purchaser’s name, date of birth, and
driver’s license or identification number to “be obtained electronically from the magnetic
26 strip on the purchaser’s driver’s license or identification and shall not be supplied by any
other means except as authorized by the department.” The only exceptions are when the
27 purchaser’s identification consists of a military identification card or, because of
technical limitations, the magnetic strip reader cannot obtain the required information (in
28 which case the vendor must “obtain a photocopy of the identification as proof of
compliance”). Cal. Penal Code § 28180(a),(b).
4
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1 Supp. Pls.’ Mot. Prelim. Inj. (“McNab Decl.”) ¶ 4. Upon completion of the check, DOJ
2 will update the submitted DES record to instruct the Vendor to either approve or reject
3 the transaction. Cal. Code Regs. tit. 11, § 4302(d). The fee for this option is $1. Cal. Code
4 Regs. tit. 11, § 4302(b). On its website, DOJ states that a determination can be made by
5 DOJ in about 2 minutes. Ex 26. And in a bulletin released only to Vendors, DOJ states
6 that an approval for this option is only valid for a period of 18 hours. Ex. 22.
7 DOJ also created a means to update AFS records so that purchasers may submit a
8 Standard Ammunition Eligibility Check. See Cal. Code Regs. tit. 11, §§ 4350-4353. But
9 to update an AFS record, individuals must provide their personal information “as it was,
10 at the time when a firearm was purchased or transferred into his or her ownership, as
11 reported to” DOJ. Cal. Code Regs. tit. 11, § 4353(c). Failing to provide this or other
12 required information will result in a rejection for the requested change. See Cal. Code
13 Regs. tit. 11, § 4353(i). In practice, this means the information must match exactly what
14 was submitted to DOJ as part of the original transaction. Individuals lacking it must
15 request a copy of their existing AFS records by submitting an “Automated Firearms
16 System (AFS) Request for Firearm Records Form.”2 In addition to the notarization
17 requirement, DOJ’s processing time for this form has been reported to be as long as four
18 months. Decl. Rick Travis Supp. Pls.’ Mot. Prelim. Inj. (“Travis Decl.”) ¶ 13.
19 B. Basic Ammunition Eligibility Check (Single Transaction or Purchase)
20 To submit a Basic Ammunition Eligibility Check, the System requires Vendors to
21 collect the transferee’s “name, date of birth, current address, gender, hair color, eye color,
22 height, weight, and driver’s license or other government identification number in the
23 manner described in Penal Code section 28180, and telephone number, United States
24 citizenship status, federal Alien Registration Number or I-94 (if applicable), place of
25 birth, alias name(s), and race.” Cal. Code Regs. tit. 11, § 4303(c). This information must
26
27
2
28 See Ex. 28. A copy of this form is available at
https://oag.ca.gov/sites/all/files/agweb/pdfs/ firearms/forms/AFSPrivateCitizen.pdf.
5
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1 be uploaded to DES and the Vendor must provide the transferee with an Ammunition
2 Transaction Number “to monitor the status” of the check. Cal. Code Regs. tit. 11, §
3 4303(c)-(d); see also McNab Decl. ¶ 12. Once the check is complete, DOJ will update the
4 submitted DES record instructing the Vendor to either approve or reject the transaction.
5 Cal. Code Regs. tit. 11, § 4303(e). The fee is $19 and any approval expires 30 calendar
6 days from when it is issued. Cal. Code Regs. tit. 11, § 4303(b), (d)(1). On its website,
7 DOJ states that a determination “may take days to complete.” Ex 26.
8 C. Firearms Eligibility Check
9 The System also establishes a procedure for individuals who are purchasing a
10 firearm from a California licensed firearm dealer to also purchase ammunition at the
11 same time. Cal. Code Regs. tit. 11, § 4304. For this option, a transferee “shall only pay
12 the fee for the firearms eligibility check.” Cal. Code Regs. tit. 11, § 4304(b). But if trying
13 to take possession of ammunition before completion of the firearms eligibility check, the
14 transferee must conduct a separate transaction using one of the other available options to
15 obtain the necessary electronic DOJ approval. Cal. Code Regs. tit. 11, § 4304(c).
16 D. COE Verification Process
17 To submit a COE Verification, the System requires Vendors to collect the
18 transferee’s “name, date of birth, current address, and driver’s license or other
19 government identification number in the manner described in Penal Code section 28180,
20 telephone number, and COE number” and upload this information to DES. Cal. Code
21 Regs. tit. 11, § 4305(c). Id.; see also McNab Decl. ¶ 4. DOJ will then update the
22 submitted DES record instructing the Vendor to either approve or reject the transaction.
23 Cal. Code Regs. tit. 11, § 4305(d). The fee for this option is $1. Cal. Code Regs. tit. 11, §
24 4305(b). On its website, DOJ states that a COE verification can be made by DOJ in about
25 2 minutes. Ex 26. And in a bulletin released only to Vendors, DOJ states that an approval
26 for the COE verification is only valid for 18 hours. Ex. 22. A COE can only be obtained
27 by applying to DOJ via the California Firearms Application Reporting System. Ex. 32.
28 The initial application process “includes a firearms eligibility criminal background
6
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1 check” following the submission of the applicant’s fingerprints through a Live Scan. Id.
2 Initial applications require a $71 fee be paid to DOJ, as well as any fee charged by the
3 Live Scan Operator during the required fingerprint submission. Id. Once issued, a COE is
4 valid for one year and must be renewed annually for a $22 fee. Id.
5 III. DOJ’S EMERGENCY REGULATIONS REGARDING IDENTIFICATION
REQUIREMENTS FOR FIREARMS AND AMMUNITION ELIGIBILITY CHECKS
6
7 DOJ now requires individuals undergoing any firearm or ammunition eligibility
8 check—which includes both ammunition purchases and COE applications—to present
9 federally compliant identification or supplemental proof of lawful U.S. presence. Cal.
10 Code Regs. tit. 11, § 4045.1.3 All California residents are issued a driver license or
11 identification card with the notation “FEDERAL LIMITS APPLY” (“FLA ID”), unless
12 the individual expressly requests a REAL ID and meets the requirements for one. See Ex.
13 29. If the proof of lawful U.S. presence differs from the person’s name, individuals must
14 also provide a certified legal document supporting the reasons for the name change. Id.
15 Under DOJ’s regulation, a California driver license or identification card with the
16 notation “FEDERAL LIMITS APPLY” is sufficient for virtually all other purposes, yet
17 not to acquire ammunition. Cal. Code Regs. tit. 11, § 4045.1. While this form of ID is
18 issued by the State itself, as proof of both identity and residence, individuals possessing
19 this state-issued ID must nonetheless present additional documentation (such as a valid
20 U.S. passport or certified copy of a U.S. birth certificate) to purchase ammunition. Cal.
21 Code Regs. tit. 11, § 4045.1(b). Should this additional proof not match precisely the
22 name appearing on the California ID, additional documentation must be provided
23 explaining the reason for the name change. Cal. Code Regs. tit. 11, § 4045.1(c).
24 ///
25
26
27
3
In general, “federally compliant identification” in California consists of a REAL
ID issued by the California Department of Motor Vehicles. See Ex. 34. Driver’s licenses
28 or identification cards with the notation “FEDERAL LIMITS APPLY” do not constitute
“federally compliant identification.” Id.
7
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1 IV. IMPLEMENTATION OF DOJ’S AMMUNITION REGULATIONS

2 On July 1, 2019, the System took effect. Before its implementation, however, the
3 only guidance DOJ provided to Vendors came in an “Important Notice” transmitted only
4 through DES on June 28, 2019, which for the first time specified the equipment Vendors
5 must possess to access the System. McNab Decl. ¶¶ 5, 9. Vendors who tried to prepare
6 for the new requirements were only able to review the “proposed” text from earlier DOJ
7 regulatory actions, as DOJ had not disclosed the adopted text to Vendors. McNab Decl. ¶
8 6. Upon logging in to the System through DES for the first time on July 1, 2019, Vendors
9 who were not already California licensed firearm dealers were forced to review and
10 acknowledge over 65 bulletins, totaling over 400 pages, before being able to access DES
11 and begin processing transactions. McNab Decl. ¶¶ 7, 10; Puehse Decl. ¶¶ 3-4.
12 For every background check option, DES requires Vendors to collect a purchaser’s
13 gender, race, eye color, hair color, height, weight, date of birth, place of birth, U.S.
14 Citizenship status, and phone number in addition to the information collected from the
15 purchaser’s ID—despite DOJ’s regulations requiring this information only for Basic
16 Ammunition Eligibility Checks. Cal. Code Regs. tit. 11, § 4303(c); see also McNab Decl.
17 ¶ 12. At least one Vendor has been unable to obtain the required personal information for
18 any one purchaser by swiping the ID through the magnetic strip reader as required by
19 DOJ—and has instead been forced to manually edit some or all of the required entries.
20 McNab Decl. ¶12. And sometimes DES provides Vendors a choice for some required
21 information where selecting the incorrect one results in a rejection. McNab Decl. ¶ 13.4
22 But this is only the first half of the process. Once a transferee’s eligibility check
23 has been approved, the Vendor must then help the customer select the ammunition to be
24 purchased and begin entering this information into DES. McNab Decl. ¶¶ 20-21. DOJ has
25 instructed all Vendors to print any pages associated with the transaction, have both the
26
27
28
4
For example, in one transaction for the customer’s residence DES listed both
“Huntington Beach” and Huntington BCH” as selectable options. Id.
8
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1 recipient and salesperson sign each page, and keep copies of the pages for up to 5 years.
2 McNab Decl. ¶¶ 23, 33; Cal. Penal Code § 30355; Ex. 22 at 13. Before the System’s
3 implementation, a typical ammunition transaction could take less than a minute to
4 complete. McNab Decl. ¶ 25. But it now can take 20 minutes—often more—just to enter
5 and process the required information through DES, in addition to the time necessary for
6 DOJ to approve or reject the transaction. McNab Decl. ¶ 26; Gray Decl. ¶ 8; Lowder
7 Decl. ¶ 8; Bartel Decl. ¶ 8; Morgan Decl. ¶ 8; Puehse Decl. ¶ 10.5 Vendors are also often
8 forced to spend time educating customers on the new requirements and background check
9 options to avoid unnecessary rejections of their transactions. McNab Decl. ¶¶ 30-31.
10 Following implementation of the System, some Vendors have reported estimated
11 losses of nearly half the daily revenues they enjoyed before the new restrictions took
12 effect. McNab Decl. ¶ 32. Some Vendors have also expressed a genuine fear that the
13 added costs to their business will result in them being unable to maintain a profitable
14 business moving forward. McNab Decl. ¶¶ 33, 38; Gray Decl. ¶ 13; Lowder Decl. ¶ 13;
15 Bartel Decl. ¶ 13; Morgan Decl. ¶ 13; Puehse Decl. ¶ 15.
16 The System has also resulted in significantly higher denials for ammunition
17 transactions when compared to that of denials for firearm purchases. Vendors have
18 experienced rejection rates between 10% and 60% for all ammunition transactions
19 submitted on or after the System took effect. Burwell Decl. ¶ 9; Puehse Decl. ¶ 11;
20 Morgan Decl. ¶ 9; Bartel Decl. ¶ 9; Lowder Decl. ¶ 9; Gray Decl. ¶ 9; McNab Decl. ¶ 31;
21 Ortiz Decl. ¶ 13. Typical rejection rates for firearm purchases, on the other hand, average
22 around 1%. Ortiz Decl. ¶ 14. In addition to these rejections, many Vendors have been
23 forced to turn away potential customers because they refused to pay for the background
24 check, were unsure if they possessed the necessary documentation, or were unsure if they
25 had records on file with DOJ to obtain the required electronic approval. Burwell Decl. ¶¶
26
27 5
Some Vendors have reported wait times as high as over a half hour before DOJ
28 responds to a Standard Check or COE Verification—significantly greater than the 2
minutes DOJ has estimated it would take. Ortiz Decl. ¶ 12; see also Ex. 26.
9
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1 10; Puehse Decl. ¶¶ 12-13; Morgan Decl. ¶¶ 10-11; Bartel Decl. ¶¶ 10-11; Lowder Decl.
2 ¶¶ 10-11; Gray Decl. ¶¶ 10-11; McNab Decl. ¶¶ 27-30; Ortiz Decl. ¶¶ 15-16.
3 V. IMPLEMENTATION OF DOJ’S FEDERALLY COMPLIANT ID REGULATIONS
4 Following implementation of DOJ’s emergency regulation requiring federally
5 compliant identification for firearm and ammunition eligibility checks, some Vendors
6 have reported that they have been forced to turn away about half of their customers in a
7 given day for lacking a federally compliant ID or supplemental documentation. McNab
8 Decl. ¶¶ 27-28. In fact, Vendors are being forced to turn away customers whose job
9 entails gun use, including some serving in the United States military and a Department of
10 Defense firearms instructor, because of issues with their ID. McNab Decl. ¶¶ 29, 34-35.6
11 Customers of Vendors are not the only victims of DOJ’s emergency regulation.
12 Employees of both California licensed firearm dealers and Vendors who lack the required
13 federally compliant ID or supplemental documentation may soon be unemployed if they
14 cannot obtain at least one. See, e.g., Ortiz Decl. ¶ 17; Decl. George Dodd Supp. Pls.’ Mot.
15 Prelim. Inj. (“Dodd Decl.”) ¶ 7-12. They are now unable to acquire ammunition or keep
16 their job, despite having already been cleared by DOJ to do both.
17 A. Obtaining a U.S. Passport or U.S. Birth Certificate
18 Those with a FLA ID only must obtain supporting documentation, e.g., a passport
19 or birth certificate. To obtain a U.S. passport, one must provide “primary evidence of
20 U.S. citizenship,” which for U.S. born individuals is generally limited to a U.S. birth
21 certificate. Ex. 30. Absent expediting costs, individuals must also pay at least $145 in
22 fees, $110 of which is non-refundable. Ex. 31. Processing times range anywhere between
23 6-8 weeks.7 Obtaining a certified copy of a U.S. birth certificate will require a search of
24
25
26
6
Other than an “Important Notice” transmitted only to Vendors, DOJ has provided
no official
7
notice to the public of its adoption. See Ex. 20.
27 See https://travel.state.gov/content/travel/en/passports/requirements/processing-
times.html. It is possible to expedite the processing of a U.S. Passport application for an
28 additional $60 fee. Ex. 31. And should the individual be unable to provide a U.S. birth
certificate, a file search will be necessary, requiring an additional $150 fee. Id.
10
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1 county records which can cost up to $34 and take up to 22 weeks to process.8
2 B. Impact on out-of-state vendors
3 While the provisions of California’s scheme that just took effect on July 1, 2019,
4 only directly affect Vendors, they have also reached out-of-state vendors. Since that time,
5 at least some have noticed an even further decrease in their business with California.
6 Decl. James Gilhousen Supp. Pls.’ Mot. Prelim. Inj. (“Gilhousen Decl.”) ¶¶ 3, 6-8; Decl.
7 Dan Wolgin Supp. Pls.’ Mot. Prelim. Inj. (“Wolgin Decl.”) ¶¶ 3-7. Plaintiff Able Ammo
8 has yet to make a single sale to California following July 1, 2019. Gilhousen Decl. ¶ 8.
9 LEGAL STANDARD
10 “The purpose of a preliminary injunction is to preserve the status quo pending a
11 determination of the action on the merits.” Chalk v. U.S. Dist. Ct. (Orange Cty. Superin.
12 of Schs.), 840 F.2d 701, 704 (9th Cir. 1998). To obtain preliminary injunctive relief, the
13 moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of
14 irreparable harm absent preliminary relief; (3) that the balance of equities tips in favor of
15 injunction; and (4) that an injunction is in the public interest. Am. Trucking Ass’ns, Inc.
16 v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res.
17 Def. Council, Inc., 55 U.S. 7, 20 (2008)).
18 ARGUMENT
19 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
20 A. California’s Ammunition Scheme Violates the Second Amendment
21 The Second Amendment provides that “the right of the people to keep and bear
22 Arms . . . shall not be infringed.” After conducting an extensive textual and historical
23 analysis, the Supreme Court confirmed in District of Columbia v. Heller, 554 U.S. 570,
24 592 (2008), that the Second Amendment protects an “individual right to possess and
25 carry weapons” for self-defense. In McDonald v. City of Chicago, 561 U.S. 742 (2010),
26
27
8
28 See https://www.vitalrecordsonline.com/state-fees-vital-records. It is possible to
expedite the search at an additional cost of up to $46.
11
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1 the Court held that the “right to keep and bear arms for the purpose of self-defense”
2 recognized in Heller is “fully applicable to the States,” id. at 750, because it is “among
3 those fundamental rights necessary to our system of ordered liberty,” id. at 778. Thus,
4 states and municipalities must protect the individual right protected by the Second
5 Amendment and may not “enact any gun control law that they deem to be reasonable.”
6 Id. at 783 (plurality opinion); see also Caetano v. Massachusetts, 136 S. Ct. 1027 (2016).
7 The Ninth Circuit has developed a multi-step framework for adjudicating Second
8 Amendment claims. A court first “asks whether the challenged law burdens conduct
9 protected by the Second Amendment,” and, if so, then analyzes the law under heightened
10 scrutiny. United States v. Chovan (9th Cir. 2013) 735 F.3d 1127, 1136. Whether strict or
11 intermediate scrutiny is applied depends on “(1) how close the law comes to the core of
12 the Second Amendment right, and (2) the severity of the law’s burden on the right.” Id. at
13 1138 (citations omitted). “The result is a sliding scale.” Silvester, 843 F.3d at 821; see
14 also Duncan v. Becerra, 265 F. Supp. 3d 1106, 1119 (S.D. Cal. 2017). If the law
15 “imposes such a severe restriction . . .that it amounts to a destruction of the Second
16 Amendment right,” it is “unconstitutional “under any level of scrutiny.” Silvester, 843
17 F.3d at 821. Under Ninth Circuit precedent, a “law that implicates the core of the Second
18 Amendment right and severely burdens that right warrants strict scrutiny.” Chovan, 735
19 F.3d at 1138. Otherwise, intermediate scrutiny applies. Silvester, 843 F.3d at 821.
20
1. California’s Ammunition Scheme Plainly Implicates Second
21 Amendment Conduct
22 The Second Amendment protects the possession and acquisition of “arms” that are
23 “typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at
24 624-25. It is settled that the Second Amendment protects rights to transfer, acquire, and
25 possess ammunition necessary to keep and bear arms for self-defense. See Jackson, 746
26 F.3d at 967-68. “Constitutional rights . . . implicitly protect those closely related acts
27 necessary to their exercise. . .. The right to bear arms, for example, ‘implies a
28 corresponding right to obtain the bullets necessary to use them.’ ” Luis v. United States,
12
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1 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (quoting Jackson, 746 F.3d at 967
2 (recognizing that “without bullets, the right to bear arms would be meaningless”)).
3 Indeed, “[a] regulation eliminating a person’s ability to obtain or use ammunition could
4 thereby make it impossible to use firearms for their core purpose.” Jackson, 746 F.3d at
5 967 (citing Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011)). The scheme,
6 which imposes a burden on the acquisition of all ammunition in California, is thus subject
7 to heightened scrutiny. Chovan, 735 F.3d at 1134.
8 2. California’s Ammunition Scheme Fails Heightened Scrutiny
9 Because California’s scheme imposes severe burdens on exercising the right to
10 acquire ammunition, including effectively barring some from acquiring ammunition
11 necessary to exercise their right to armed defense at all, the Court should apply strict
12 scrutiny. See, e.g., id. at 1284-85; Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 544
13 (9th Cir. 2004) (“[A] law is subject to strict scrutiny . . . when that law impacts a
14 fundamental right, not when it infringes it.”); Perry Educ. Ass’n v. Perry Loc. Educators’
15 Ass’n, 460 U.S. 37, 54 (1983) (similar). Ultimately, however, it matters not because, even
16 under intermediate scrutiny, the law must be presumed unconstitutional, and the
17 government bears the burden of justifying it. See, e.g., R.A.V. v. City of St. Paul, 505 U.S.
18 377, 382 (1992) (content-based speech regulations are presumptively invalid). The State
19 cannot meet that burden here. To do so, it must make two showings. First, it must prove
20 that the System is “substantially related” to an important government interest. Edenfield
21 v. Fane, 507 U.S. 761, 770-71 (1993); see Chovan, 735 F.3d at 1139-40. Second, it must
22 prove that its chosen means are “closely drawn” to achieve that end without “unnecessary
23 abridgment” of constitutionally protected conduct. McCutcheon v. FEC, 134 S. Ct. 1434,
24 1456-57 (2014) (quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976)); see Jackson, 746 F.3d
25 at 961 (noting that Second Amendment heightened scrutiny is “guided by First
26 Amendment principles”). California’s ammunition scheme is neither.
27 ///
28 ///
13
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1 a. California’s ammunition scheme is not “substantially

related” to any public safety interest.
2
The State will no doubt argue that its scheme furthers public safety by keeping
3
ammunition away from dangerous people, see Def.’s Mot. Dismiss First Am. Compl. 1;
4
see also Prop 63 sec. 3; SB 1235 Sec. 19—a valid interest, to be sure. But, “it would be
5
hard to persuasively say that the government has an interest sufficiently weighty to justify
6
a regulation that infringes constitutionally guaranteed Second Amendment rights if the
7
Federal Government and the states have not traditionally imposed—and even now do not
8
commonly impose—such a regulation.” Heller II, 670 F.3d at 1294 (Kavanaugh, J.,
9
dissenting). As explained above, that is precisely the case here: only one other state in the
10
country has adopted an ammunition scheme even remotely comparable to California’s,
11
and that law was never even implemented because it was infeasible.9 Surely more states
12
would have adopted such a scheme if it even appeared to work or could be feasibly
13
implemented.
14
Even accepting that certain ammunition background check and registration systems
15
may substantially further public safety, the question is whether this one does. See Heller
16
v. District of Columbia (Heller III), 801 F.3d 264, 297 (D.C. Cir. 2015) (upholding
17
firearm registration but striking specific registration requirements because the District
18
failed to provide “substantial evidence” that they would promote public safety). More
19
specifically, the question is whether the particulars of the System’s excessive burdens on
20
purchasers and Vendors are substantially related to the State’s interest. Id. They are not.
21
Currently, anyone possessing a FLA ID cannot even undergo a background check
22
to purchase ammunition without first providing the additional documentation required
23
24
25
9
26 See Teri Weaver, Cuomo Agrees to Changes to NY Safe Act Regarding
Ammunition Sales,
27 https://www.syracuse.com/state/2015/07/cuomo_agrees_to_changes_to_ny_safe_act_reg
arding_ammunition_sales.html (July 10, 2015) (noting that the “ammunition sales
28 database will not be prematurely introduced until the technology is ready and it does not
create an undue burden for business owners” (emphasis added)).
14
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1 under Cal. Code Regs. tit. 11, § 4045.1. In other words, the State contends that the
2 identification that California issues as a default and thus implicitly deems sufficient for
3 all other purposes is insufficient for purchasing ammunition—a constitutional right! No
4 court would ever uphold a state law requiring that some form of identification be
5 presented to vote but that the form standard supplied by the state itself is somehow
6 insufficient. See N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 236 (4th Cir.
7 2016), cert. denied, North Carolina v. N.C. State Conf. of NAACP, 137 S. Ct. 1399
8 (2017). Making matters worse, the State does not even have the excuse here that federal
9 law compels its extra identification requirement because the federal government accepts
10 FLA IDs as sufficient for its own purposes—including to pass background checks to
11 purchase a firearm. See 27 C.F.R. § 478.11; Brady Decl. ¶ 4. There is simply no plausible
12 basis on which a state can claim that an ID issued by the state itself, and accepted as
13 sufficient by the federal government, is nonetheless insufficient even to allow an
14 individual to undergo a background check to determine whether he may exercise his
15 Second Amendment rights.
16 Compounding these threshold problems, would-be ammunition purchasers with
17 adequate identification are being denied passage of the AFS Match background checks at
18 an alarming rate—in some cases as high as 60 percent. Burwell Decl. ¶ 9; Puehse Decl. ¶
19 11; Morgan Decl. ¶ 9; Bartel Decl. ¶ 9; Lowder Decl. ¶ 9; Gray Decl. ¶ 9; McNab Decl. ¶
20 31; Ortiz Decl. ¶ 13. Whatever the general denial rate actually is, it is certainly many
21 times that of denials for firearm background checks, according to licensed firearm dealers
22 who have been in business for decades. Ortiz Decl. ¶ 14 (noting firearm denial rates are
23 less than 1%). Such a high (and disproportionate) denial rate cannot accurately reflect the
24 number of persons who are prohibited from possessing a firearm, meaning that many
25 law-abiding people are being unjustifiably denied the ability to obtain ammunition for the
26 firearms that they are constitutionally entitled to keep and bear.
27 For those successful in overcoming the identification and background check
28 hurdles, the System requires a Vendor to record details of ammunition purchases that
15
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1 must then be uploaded to a DOJ database. Cal. Penal Code § 30352(a)(1-7); Cal. Code
2 Regs. tit. 11, § 4308(c)(2). DOJ also requires Vendors to print the details of each
3 transaction, sign the printout, have the purchaser sign it, and retain the signed documents
4 in some format for a period of five years. McNab Decl. ¶ 23; Gray Decl. ¶¶ 6-7; Lowder
5 Decl. ¶¶ 6-7; Bartel Decl. ¶¶ 6-7; Morgan Decl. ¶¶ 6-7 Puehse Decl. ¶¶ 8-9; Burwell
6 Decl. ¶¶ 6-7; Decl. Denise Welvang Supp. Pls.’ Mot. Prelim. Inj. (“Welvang Decl.”) ¶ 4.;
7 Ex. 22; Cal. Pen. Code § 30355. To Plaintiffs’ knowledge, the State has identified no
8 interest in its maintaining records about what ammunition people purchase. Indeed, the
9 State has failed to connect the time-consuming and costly task for Vendors of compiling
10 details for every single ammunition purchase to any law enforcement function; especially
11 when such records cannot even be relied on as accurate. See, e.g., McNab Decl. ¶¶ 13, 15
12 (DES providing different options for the same city and DOJ instructing Vendors to
13 manually edit a purchaser’s personal information); Ortiz Decl. ¶¶ 18-19 (DES unable to
14 match existing Firearm Safety Certificate (“FSC”) records because of purchaser’s suffix).
15 And given that such records are already being recorded in the “Ammunition
16 Purchase Records File” maintained by DOJ, it is hard to imagine any interest at all in
17 burdening vendors by requiring that they also keep those records. See Cal. Pen. Code §
18 30352(b). Indeed, Congress repealed a federal law requiring ammunition vendors to
19 maintain copies of transactions after the BATFE Director testified to Congress that those
20 “recordkeeping requirements for ammunition have no substantial law enforcement
21 value.” Legislation to Modify the 1968 Gun Control Act, Hearing Report, Committee on
22 the Judiciary, U.S. House of Representatives, October 38, 30, Nov. 8, 1985, and February
23 19 and 27, 1986. The State has made no findings to the contrary.
24 b. California’s ammunition scheme lacks a reasonable “fit”
with the State’s interest in preventing criminal misuse.
25
26 Even assuming this scheme did substantially further the State’s interests,
27 “intermediate scrutiny requires a ‘reasonable fit’ between the law’s ends and means.”
28 Silvester v. Becerra, No. 17-342, 2018 WL 943032 *4 (U.S. Sup. Ct. Feb. 20, 2018)
16
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1 (Thomas, J., dissenting from denial of certiorari) (quoting Cincinnati v. Discovery

2 Network, Inc., 507 U.S. 410, 416 (1993)); see also Chovan, 735 F.3d at 1136, 1139. The
3 fit requirement seeks to ensure that the encroachment on constitutional rights is “not
4 more extensive than necessary” to serve the government’s interest. Valle Del Sol Inc. v.
5 Whiting, 709 F.3d 808, 816 (9th Cir. 2013). The government thus bears the burden of
6 establishing that the law is “closely drawn to avoid unnecessary abridgment” of
7 constitutional rights, McCutcheon, 572 U.S. at 197; see Ward v. Rock Against Racism,
8 491 U.S. 781, 782-83 (1989). Government is entitled to no deference when assessing the
9 fit between its purported interests and the means selected to advance them. See Turner
10 Broad. Sys., Inc. v. FCC, 520 U.S. 180, 214 (1997). Instead, it must prove that those
11 means do not burden “substantially more” constitutionally protected conduct than
12 “necessary to further [its important] interest.” Id.
13 Here, the System results in countless people being unable to even begin the State-
14 mandated process for exercising the constitutional right to acquire ammunition, simply
15 because they only have the ID that California itself issued them! “This ‘prophylaxis-
16 upon-prophylaxis approach’ requires that [the Court] be particularly diligent in
17 scrutinizing the law’s fit.” McCutcheon, 572 U.S. at 221. The State cannot require that an
18 ammunition purchaser present a California ID, and then reject the very ID that California
19 itself standardly issues and accepts for virtually all other purposes. See Ezell, 651 F.3d
20 690 (city ordinance that mandated firing-range training as prerequisite to permit to own a
21 firearm yet prohibited all shooting ranges in city violated the Second Amendment). And
22 the State certainly cannot do so when the federal government accepts the very same state-
23 issued ID for purposes of running background checks on firearm purchasers. Simply put,
24 the State cannot deem the same ID that both the state and federal government accept as
25 sufficient for virtually all other purposes somehow insufficient when it comes to the
26 exercise of Second Amendment rights.
27 Worse still is that residents of other states are barred from acquiring ammunition
28 while within the state at all, unless they have a valid COE. It is unreasonable to expect a
17
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1 non-resident of California to have a COE or even know that a COE will be needed to
2 acquire ammunition once in the state—particularly when obtaining a COE is about a
3 month-long process and around $90 in fees. This is effectively a ban on non-California-
4 residents acquiring ammunition. That is the opposite of tailoring.
5 Further, the System results in prospective ammunition purchasers being denied
6 clearance under the AFS Match form of background check up to 60% of the time.
7 Burwell Decl. ¶ 9; Puehse Decl. ¶ 11; Morgan Decl. ¶ 9; Bartel Decl. ¶ 9; Lowder Decl. ¶
8 9; Gray Decl. ¶ 9; McNab Decl. ¶ 31; Ortiz Decl. ¶ 13. It is inconceivable that such a
9 high number of purchasers are legitimately failing because they are actually prohibited
10 persons. Recall, the average denial rate for firearms according to at least some Vendors is
11 less than 1%. Ortiz Decl. ¶ 14. That such a large number of people are improperly denied
12 ammunition under the System is unacceptable for a system that acts as a gatekeeper to the
13 exercise of a fundamental right. Even if these purchasers are ultimately able to acquire
14 ammunition at a later time by remedying any discrepancy, that the State precludes them
15 from doing so indefinitely until the purchaser can prove that they are not prohibited
16 persons, flips constitutional order on its head. The State has the burden to prove that a
17 person is not entitled to exercise a right—not the other way around. This background
18 check is the polar opposite of sufficiently tailored.
19 Finally, the State cannot justify the System’s time-consuming nature. There must
20 be a way of conducting a background check that does not require a Vendor to regularly
21 dedicate a half hour to each customer. See, e.g., McNab Decl. ¶ 26; Gray Decl. ¶ 8;
22 Lowder Decl. ¶ 8; Bartel Decl. ¶ 8; Morgan Decl. ¶ 8; Puehse Decl. ¶ 10; Ortiz Decl. ¶¶
23 10-12. Purchasers are foregoing the process because of the time commitment or
24 uncertainty about their records with DOJ. Burwell Decl. ¶¶ 10; Puehse Decl. ¶¶ 12-13;
25 Morgan Decl. ¶¶ 10-11; Bartel Decl. ¶¶ 10-11; Lowder Decl. ¶¶ 10-11; Gray Decl. ¶¶ 10-
26 11; McNab Decl. ¶¶ 27-30; Ortiz Decl. ¶¶ 15-16. The System is also a significant barrier
27 to entry for those newly exercising their Second Amendment rights. It requires people to
28 either purchase a firearm and register it in AFS or pay $19 just to be able to purchase a
18
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1 box of ammunition that may cost only $5. Some are opting to do neither. Id.
2 Several Vendors have explained that these delays result in significant lost business.
3 McNab Decl. ¶¶ 32-33, 37-38. This is in addition to all of the other costs Vendors must
4 incur under the scheme, including the fee to acquire a vendor license, wages for
5 additional employees necessary to serve customers by being the intermediary between
6 them and the product, the cost of a COE for each of their employees, and the costs of
7 creating and storing the required records of each transaction. McNab Decl. ¶¶ 3, 9, 23,
8 33, 37. In aggregate, these restrictions result in a severe burden not only on those seeking
9 to exercise their right, but on Vendors, the purveyors of the right. Some Vendors have
10 even expressed fear that these burdens could result in shutting their business down.
11 Burwell Decl. ¶ 12; Puehse Decl. ¶ 15; Morgan Decl. ¶ 13; Bartel Decl. ¶ 13; Lowder
12 Decl. ¶ 13; Gray Decl. ¶ 13; McNab Decl. ¶ 38. Doing so would mean they would be
13 unable to provide the public the means to exercise their rights. When Vendors are saying
14 they may close their doors because of this scheme, something is wrong, the law cannot be
15 sufficiently tailored.
16 In sum, the State has created a screening system that: (1) prevents a significant
17 portion of people from even undergoing the screen because California does not recognize
18 the very ID it issues residents as sufficient to even underdo a background check under
19 this system; (2) results in a significant number of people being denied exercise of their
20 right without cause; and (3) imposes time-consuming, costly burdens on Vendors and
21 purchasers that could easily be avoided. A system that is so hyper-technical and sensitive
22 to common variables is unacceptable as a gatekeeper to exercising constitutional rights.
23 Finally, California’s restrictions on acquiring ammunition directly from out-of-
24 state vendors or importing it also imposes a constitutionally impermissibly burden
25 because it eliminates a significant source of ammunition for California purchasers,
26 especially those people far away from any Vendor. Decl. Scott Lindemuth Supp. Pls.’
27 Mot. Prelim. Inj. (“Lindemuth Decl.”) ¶ 3. In any event, if the Court finds it appropriate
28 to enjoin the System, it should also enjoin the face-to-face requirement and importation
19
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1 restriction as well, for the only interest the State has articulated in enforcing those
2 provisions is that they further its professed interest in conducting background checks.
3 Accordingly, if the State is enjoined from requiring individuals to engage in a distinct,
4 and largely inaccurate, background check system to purchase ammunition, then no
5 purpose would be served by requiring individuals to engage in face-to-face transactions
6 that the State has defended only as a means to facilitating its background check scheme.
7 B. California’s Ammunition Scheme Also Violates the Dormant Commerce
Clause
8 The Commerce Clause limits states’ ability to regulate interstate commerce, even
9 where federal law is silent on the issue. U. Haulers Ass’n v. Oneida-Herkimer Solid
10 Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). The Supreme Court recently affirmed its
11 commitment to this “dormant” aspect of the Commerce Clause as a tool to “preserve[] a
12 national market for goods and services.” Tenn. Wine & Spirits Retailers Ass’n v. Thomas,
13 __ U.S. __, 139 S. Ct. 2449, 2459 (2019). It prohibits a state from regulating commercial
14 transactions that take place wholly outside of the state’s border, “whether or not the
15 commerce has effects within the State.” Healy v. Beer Instit., 491 U.S. 324, 336 (1989);
16 see also W. Lynn Creamery v. Healy, 512 U.S. 186, 194-95 (1994). “[W]hen a state law
17 directly affects transactions that ‘take place across state lines’ or entirely outside of the
18 state’s borders,” the law is “invalid per se.” Valley Bank of Nev. v. Plus Sys., Inc., 914 F.
19 2d 1186, 1189-90 (9th Cir. 1990) (citations omitted). What’s more, as this Court has
20 noted, the Supreme Court has held “time and again” that, “in all but the narrowest
21 circumstances, state laws violate the Commerce Clause if they mandate differential
22 treatment of in-state and out-of-state economic interests that benefits the former and
23 burdens the latter.” Order Re: Defendant’s Motion to Dismiss (“Order”) 3 (quoting
24 Granholm v. Heald, 544 U.S. 460, 472 (2005)). “State laws that directly discriminate
25 against out-of-state entities can survive only if the state demonstrates both that the statute
26 serves a legitimate local purpose, and that this purpose could not be served as well by
27 available nondiscriminatory means.” Nationwide Biweekly Admin., Inc. v. Owen, 873
28 F.3d 716, 736 (9th Cir. 2017), cert. denied sub nom., Nationwide Biweekly Admin., Inc. v.
20
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1 Hubanks, 138 S. Ct. 1698 (2018) (citing Maine v. Taylor, 477 U.S. 131, 138 (1986)).10
2 California’s ammunition scheme violates both of these precepts.
3 As this Court observed in denying the State’s motion to dismiss Plaintiffs’
4 Dormant Commerce Clause claim, California generally “prohibits a seller of ammunition
5 physically located outside of the state from selling directly to customers in California.”
6 Order 4; see Cal. Penal Code § 30312(b); Brady Decl. ¶ 8. As a result, out-of-state
7 vendors seeking to sell ammunition to California residents can do so only if they first
8 ship it to an in-state vendor who then completes the transfer to the purchaser—with the
9 limited exception of California law enforcement purchasers and other firearm and
10 ammunition businesses. Cal. Pen. Code §§ 30312(a),(b), (e)(1)-(11), 30314(a); Cal. Code
11 Regs. tit. 11 § 4306. But DOJ has taken the view that Vendors may refuse to receive and
12 process third-party ammunition transfers. Brady Decl. ¶ 9. And various California
13 Vendors are, in fact, refusing to process these transactions from out-of-state vendors.
14 Gilhousen Decl. ¶¶ 3-4; Wolgin Decl. ¶ 9. For those out-of-sate vendors fortunate enough
15 to find a California Vendor willing to process the transaction, the Vendor may charge the
16 California resident any fee amount it wishes to do so. See Cal. Penal Code § 3031(b);
17 Cal. Code Regs. tit. 11, § 4263. A California resident seeking to acquire ammunition
18 from an out-of-state vendor cannot even escape the reach of in-state Vendors’ control by
19 physically leaving the state. To bring the ammunition home, the California resident
20 would have to, while out-of-state, ship it to a Vendor and retrieve it once back in-state.
21 Just as with businesses shipping into California, however, the in-state Vendor may refuse
22 to accept the shipment or charge excessively to accept it.
23 In sum, California’s ammunition scheme not only prevents out-of-state vendors,
24 like Plaintiffs Able’s Sporting, Inc. and AMDEP Holdings, LLC, from accessing
25 California customers in a particular manner, but it authorizes, and has in fact resulted in,
26
27 10
A state law that regulates even-handedly still violates the Commerce Clause if it
28 impermissibly burdens interstate commerce in relation to local interest. See Healy, 512
U.S. at 194-95. Plaintiffs do not, at this time, assert such a claim, pending discovery.
21
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1 in-state Vendors completely excluding them from accessing the California market.
2 Gilhousen Decl. ¶¶ 3-4; Wolgin Decl. ¶ 9; Brady Decl. ¶¶ 8-9. It renders out-of-state
3 vendors’ ability to do business in California entirely dependent on the discretion of their
4 in-state competitors. The “practical effect” is to nullify, or at least control the terms of,
5 transactions occurring wholly out of state, i.e., extraterritorially, which the Commerce
6 Clause absolutely forbids. See Healy, 512 U.S. at 339.
7 California’s scheme, at minimum, impermissibly discriminates against out-of-state
8 ammunition commerce. It is just like the constraints on interstate commerce struck down
9 in Nationwide Biweekly, 873 F.3d at 736-37. Order 5. There, the Ninth Circuit held that a
10 California statute does precisely what the Supreme Court says cannot be done except in
11 the “narrowest circumstances”—i.e., requiring anyone wanting to engage in a certain
12 kind of business within the state to become a resident. Nationwide Biweekly, 873 F.3d at
13 736-37 (citing Heald, 544 U.S. at 472). The effect of California’s scheme is to force
14 companies located out-of-state to have a physical in-state presence as a condition to
15 having secure and equal access to its ammunition market. Such a dynamic, by definition,
16 favors in-state economic interests over out-of-state interests. It thus also necessarily
17 “deprive[s] citizens of their right to have access to the markets of other states on equal
18 terms,” Granholm, 544 U.S. at 473, violating the dormant Commerce Clause.
19 A court “need not inquire into the purpose or motivation behind a law to determine
20 that in actuality it impermissibly discriminates against interstate commerce.” Associated
21 Indus. of Mo. v. Lohman, 511 U.S. 641, 653 (1994). Even if California does not intend to
22 benefit its in-state economic interests, it does in fact broadly discriminate against
23 interstate commerce. Given the law’s sweeping discriminatory impact, the State cannot
24 meet its heavy burden to establish that it falls within the “narrowest [of] circumstances”
25 where the discrimination should be allowed to persist. Granholm, 544 U.S. at 472. To do
26 so, the State would have to show that the law both “ ‘serves a legitimate local purpose,’
27 and that this purpose could not be served as well by available nondiscriminatory means.”
28 Nationwide Biweekly, 873 F.3d at 736 (citing Maine v. Taylor, 477 U.S. 131, 138
22
18cv802
1 (1986)). The State has failed to explain why it is necessary for vendors located out-of-
2 state to use an in-state Vendor as an intermediary to access the California ammunition
3 market. Because the State cannot meet its burden to justify California’s extraterritorial
4 effects and discrimination against out-of-state vendors, Plaintiffs are likely to succeed on
5 the merits of their Dormant Commerce Clause challenge.
6 II. THE REMAINING PRELIMINARY INJUNCTION FACTORS WARRANT RELIEF
7 A. Plaintiffs Will Suffer Irreparable Harm if the Court Denies Relief
8 If this Court concludes that Plaintiffs are likely to succeed on one or both of their
9 alleged constitutional violations, the remaining preliminary injunction factors follow
10 readily. “It is well established that the deprivation of constitutional rights ‘unquestionably
11 constitutes irreparable injury.’ ” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
12 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); 11A Charles Alan Wright et al.,
13 Federal Practice and Procedure § 2948.1 (2d ed. 1995) (“When an alleged deprivation
14 of a constitutional right is involved, most courts hold that no further showing of
15 irreparable injury is necessary.”). The Ninth Circuit has imported the First Amendment
16 “irreparable-if-only-for-a-minute” rule to other rights and, in doing so, has held
17 deprivation of those rights is irreparable harm per se. Monterey Mech. Co. v. Wilson, 125
18 F.3d 702, 715 (9th Cir. 1997). The Second Amendment should be treated no differently.
19 See McDonald, 561 U.S. at 780; see also Ezell, 651 F.3d at 700 (a deprivation of the right
20 to arms is “irreparable and having no adequate remedy at law”). The same is true for
21 Commerce Clause violations. See Rocky Mountain Farmers Union v. Goldstene, 843 F.
22 Supp. 2d 1071 (E.D. Cal. 2011) (citing Am. Libraries Ass’n v. Pataki, 969 F.Supp. 160,
23 168 (S.D.N.Y.1997)), Rev’d on other grounds sub nom., Rocky Mountain Farmers Union
24 v. Corey, 730 F.3d 1070 (9th Cir. 2013).
25 The constitutional violations alone are enough to satisfy the irreparable harm
26 factor, but the circumstances here make the irreparable harm unmistakable. Because
27 continued enforcement of the scheme not only unjustly denies individuals their Second
28 Amendment rights, but also jeopardizes the existence of some Vendors, who are the
23
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1 purveyors of those rights, the need to “preserve the status quo pending a determination of
2 the action on the merits”—the fundamental purpose of a preliminary injunction—is
3 particularly strong. Chalk, 840 F.2d at 704.
4 B. Granting Preliminary Injunctive Relief Is in the Public Interest
5 For similar reasons, granting preliminary injunctive relief is clearly in the public
6 interest. When challenging government action that affects the exercise of constitutional
7 rights, “[t]he public interest . . . tip[s] sharply in favor of enjoining the” law. Klein v. City
8 of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009). Here, Plaintiffs seek to vindicate
9 their fundamental Second Amendment rights, as well as their rights under the Commerce
10 Clause. As the Ninth Circuit has made clear, “all citizens have a stake in upholding the
11 Constitution” and have “concerns [that] are implicated when a constitutional right has
12 been violated.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). Thus, not only
13 Plaintiffs’ rights are at stake, but so are the rights of any law-abiding Californian who is
14 unduly burdened by the State’s ammunition scheme. The public interest thus tips sharply
15 in Plaintiffs’ favor. Klein, 584 F.3d at 1208. Moreover, the State has no plausible
16 argument that enjoining enforcement of its ammunition scheme will unduly endanger
17 public safety. After all, doing so would merely return California to the status quo, which
18 is the same for every other state in the union.
19 C. The Balance of Equities Tips Sharply in Plaintiffs’ Favor
20 Finally, the balance of hardships tips sharply in Plaintiffs’ favor. This factor
21 considers “the balance of hardships between the parties.” Alliance for the Wild Rockies v.
22 Cottrell, 632 F.3d 1127, 1137 (9th Cir. 2011). In contrast to Plaintiffs’ and the public’s
23 many injuries, the State will suffer no concrete harm from a preliminary injunction. The
24 State “cannot suffer harm from an injunction that merely ends an unlawful practice or
25 reads a statute as required to avoid constitutional concerns.” Rodriguez v. Robbins, 715
26 F.3d 1127, 1145 (9th Cir. 2013); see Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029
27 (9th Cir. 2013) (“[I]t is clear that it would not be equitable . . . to allow the state . . . to
28 violate the requirements of federal law.” (citations omitted)). Even absent the
24
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1 constitutional dimension of this lawsuit, the balance of harms tips in Plaintiffs’ favor.
2 Denying or severely hindering law-abiding people from acquiring ammunition cannot
3 plausibly be understood to serve any public safety interest. To the contrary, California’s
4 ammunition scheme makes the public less secure by making it more difficult for
5 Plaintiffs and the law-abiding public to defend themselves.
6 The balance of equities also favors litigants seeking only “to preserve, rather than
7 alter, the status quo while they litigate the merits of th[eir] action.” Rodde v. Bonta, 357
8 F.3d 988, 999 n.14 (9th Cir. 2004). Granting the relief Plaintiffs seek will merely
9 preserve the over century-long status quo from before the scheme took effect, while the
10 case moves forward on the merits. This further “strengthens [Plaintiffs’] position” in the
11 analysis of the equitable injunction factors. Id. On the other hand, granting an injunction
12 will end the ongoing violation of Plaintiffs’ rights, allowing them and the public the
13 freedom to exercise those rights without fear of prosecution.
14 CONCLUSION
15 For all these reasons, the Court should grant Plaintiffs’ motion and enjoin
16 enforcement of California Penal Code sections 30312(a), 30312(b), 30314(a), 30370, and
17 30352(a-d) while this case goes on to resolution on the merits.
18
19 Dated: July 22, 2019 MICHEL & ASSOCIATES, P.C.
20
21 s/ Sean A. Brady
Sean A. Brady
22 Email: [email protected]
Attorneys for Plaintiffs
23
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1 CERTIFICATE OF SERVICE
UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF CALIFORNIA
3 Case Name: Rhode, et al. v. Becerra
4 Case No.: 3:18-cv-00802-JM-JMA
5 IT IS HEREBY CERTIFIED THAT:

6 I, the undersigned, declare under penalty of perjury that I am a citizen of the
7 United States over 18 years of age. My business address is 180 East Ocean Boulevard,
Suite 200 Long Beach, CA 90802. I am not a party to the above-entitled action.
8
I have caused service of the following documents, described as:
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
10 PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
11
on the following parties by electronically filing the foregoing on July 22, 2019, with the
12 Clerk of the District Court using its ECF System, which electronically notifies them.
13 Nelson R. Richards Attorneys for Defendant Attorney General
Deputy Attorney General Xavier Becerra
14 [email protected]
15 2550 Mariposa Mall, Room 5090
Fresno, CA 93721
16
17
18 I declare under penalty of perjury that the foregoing is true and correct. Executed
on July 22, 2019, at Long Beach, CA.
19
20 s/ Laura Palmerin
Laura Palmerin
21
22
23
24
25
26
27
28
CERTIFICATE OF SERVICE
18cv802

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Case 3:18-cv-00802-BEN-JLB Document 32-1 Filed 07/22/19 PageID.

1 C.D. Michel – SBN 144258

MEMO. OF POINTS & AUTHORITIES ISO MOT. FOR PRELIM. INJUNCTION

17 Cincinnati v. Discovery Network, Inc.,

23 Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n,

1 Rocky Mountain Farmers Union v. Corey,

12 Tucson Woman’s Clinic v. Eden,

23 Valley Bank of Nev. v. Plus Sys., Inc.,

1 Winter v. Nat. Res. Def. Council, Inc.,

11 Cal. Code Regs. tit. 11, § 4301 ............................................................................................ 3

18 Cal. Code Regs. tit. 11, § 4307 ............................................................................................ 3

25 Cal. Code Regs. tit. 11, § 4353 ............................................................................................ 5

1 Cal. Pen. Code § 28180........................................................................................................ 4

1 1. A check of the transferee’s information to ensure it matches an entry in the

8 4. Verification of the transferee’s current COE (called the “COE Verification

1 IV. IMPLEMENTATION OF DOJ’S AMMUNITION REGULATIONS

20 A. California’s Ammunition Scheme Violates the Second Amendment

1 a. California’s ammunition scheme is not “substantially

1 (Thomas, J., dissenting from denial of certiorari) (quoting Cincinnati v. Discovery

5 IT IS HEREBY CERTIFIED THAT:

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