As we recently reported, on March 29, 2019, Judge Benitez of the U.S. District Court for the Southern District of California issued a decision in the case of Duncan v. Becerra holding that California’s ban on the possession of magazines with a capacity of more than ten rounds (“LCM”) violates the Second Amendment and issued a permanent injunction against the continued enforcement of the ban. On April 1, 2019, California filed a motion requesting that Judge Benitez stay his order pending an appeal. California stated that it intends to appeal the decision to the U.S. Court of Appeals for the Ninth Circuit. California further argues that a stay should be issued because the decision is likely to be reversed on appeal because every US Court of Appeals to have addressed the issue, including the Second, Third, Fourth, Seventh and District of Columbia Circuits, have held that it is constitutional to ban LCMs.
Plaintiffs filed a brief preliminary response to the motion to stay on April 2, 2019, in which they argued that the stay should be denied. Plaintiffs’ argument against a stay in their short preliminary response was that if the judgment were stayed, “countless otherwise law-abiding Californians who have already ordered LCMs in reliance on the Court’s order but have not received them would unjustly be subjected to severe criminal penalties without notice.” California responded that plaintiffs “offer no evidence that there are any Californians who have either ordered or are currently in possession of LCMs in reliance on the Court’s ruling,” and that an immediate stay is necessary to, among other things, “avoid potential harm to individuals acting in reliance on the Judgment.”
It is anticipated that plaintiffs will soon file a more substantive opposition to California’s request for a stay. We expect that Judge Benitez will stay his decision that California Penal Code § 32310 is unconstitutional pending an appeal by California, and that if he does not, the Ninth Circuit Court of Appeals will do so. The deadline for California to file a notice of appeal is April 29, 2019.
Renzulli Law Firm will continue to keep you apprised of the status of California Penal Code § 32310 and the Duncan v. Becerra case. For additional information or recommendations on California’s ban on LCMs, please contact John Renzulli or Christopher Renzulli.
