86nunley_0044

Regular readers may recall that four California gun dealers are suing the state on First Amendment grounds because they are prohibited by law from displaying any image of a handgun that can be seen by the public. And, of course, the nation’s best-looking attorney general is vigorously defending the suit, because any image of a firearm must be suppressed. Or something. Anyway, the plaintiffs had moved for a preliminary injunction in the case that would allow them to do something so bold as to include an outline of a revolver on their store signs. And while District Court Judge Troy L. Nunley (above) acknowledged that the store owners’ rights are most likely being violated, that they have been done actual harm by the law and and seem likely to prevail…he doesn’t want to disturb the Golden State’s regulatory status quo by allowing handgun images where frail women and little children might, you know, see them. The Calguns Foundation’s press release laying it all out is after the jump . . .

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 calgunsfoundation.org/litigation/trap-v-harris.

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.

Recommended For You

57 Responses to Federal District Court Judge to California Gun Dealers: Drop Dead

    • Except for one guy they are, but now we have to change the law again for that guy.

      I’m thinking that “L” in the middle of that Judge’s name looks EXACTLY like an assault rifle pointed dangerously up in the air with a nice loooong hyper-capacity clipazine and frankly, it makes me very nervous that he is allowed to parade around open-carrying that weapon-like letter, right in the middle of his name!
      IMPEACH

  1. My local gun store is called The Gun Shop. I’m surprised California allows this to be on their sign. Maybe Unicorns and Puppies Shop so they don’t offend? Free Hugs From OFWG Shop?

  2. This is the law. (show a picture of an egg).
    This is the law in California. (Show a picture of egg hit with frying pan).
    Any questions?

  3. So, in essence, he’s saying they’re right, they’re being harmed, their rights are being violated, and they’ll probably win. But he’ll feel better if he lets Kamala and her gang get away with it until you win.

    • Perhaps he’s thinking about future career plans and who he needs to suck up to. A non-answer doesn’t hurt him, and makes his “betters” happy.

  4. Let’s not get bent out of shape about this; it is probably the right decision. In order to get a preliminary injunction (an injunction before the case is fully litigated), one of the requirements is that the status quo will not be disturbed. It is only in an especially narrow set of circumstances that a preliminary injunction will be granted that disturbs the status quo.

    So let’s be happy that the judge says that they’ll likely prevailing the end, AND upheld the well-established rule regarding preliminary injunctions.

    • Dollup15,
      Thanks for a pragmatic response. Good to see insights presented rather than just outrage. I too am gratified by ruling’s language indicating the futility of AG’s Harris’s position. Also happy to see no record of amicus curiae filings by anti-gun groups. Looks like Harris is alone in this.

      1. Anyone know the backstory as to who sponsored CA’s language?

      2. What’s the expected date for a ruling on the 1A issue originally filed in Nov 2014?

      • I am outraged that a judge thinks it is a good idea for a person or persons to spend tens of thousands of dollars to fight for their civil rights when he has acknowledged that they were wronged by the government. If this was homoerotica art in California being suppressed in Lassen, Modoc or another rural conservative county in california this case would be over.

        • Chris,
          FWIW, I share your sense about the decision; it does seem to defy justice as you and I would apply the word.

          The Sacramento-based Federal District Court Judge who’s assigned to the case doesn’t make the rules, but has to interpret them. As Dollup15 detailed, it would be difficult for Judge Nonley to grant the motion under the circumstances. My hunch is that had Judge Nonley granted the motion, it would have been appealed and further delaying the matter plus driving up legal expenses for the plaintiffs. He would also be accused of “judicial activism” and risk a reversal – never a good outcome for a judge.

          I’ll defer to others, but would not expect a different decision elsewhere – such as Eureka (no Federal courts in the counties you mentioned. Complete list at https://en.wikipedia.org/wiki/List_of_United_States_federal_courthouses_in_California).

          The decision also gives Calguns an opportunity to solicit more money for the case. See http://us2.campaign-archive1.com/?u=812c9186a81db6434329bda16&id=e9714b4faf&e=be73f7d2c9 They cast the decision as unfair, but I’m pretty confident that they are OK with the decision. Judge Nonley’s telegraphed how he will likely rule in the case and no reason to annoy him off over an injunction decision in my view.

          Were I one of the gun store plaintiffs, I’d be tempted to display a huge banner of a banana or Spud Gun (R) (do a Google image search) with KAMALA HARRIS WASTES YOUR TAXES ON SPEECH CENSORSHIP. A banana / Spud gun isn’t a “handgun” and therefore signage is not prohibited.

          That’s just for starters. I’d do everything that’s legal to ruin her career and paralyze her effectiveness in the mean time. Ridicule is effective as is the Streisand Effect ( https://en.wikipedia.org/wiki/Streisand_effect ). I’d like to think most would be deeply troubled over absurd censorship and ineffective regulations were they made aware of it.

          Now before someone says, “That’s unfair – she’s just upholding the law” – stop and think. Harris declined to contest litigation that overturned CA’s Prop 8 (gay marriage ban). While I was disappointed that Prop 8 passed, I vehemently disagree that someone charged with upholding our laws should selectively ignore ones s/he doesn’t agree with.

          Although contrary to my getting hitched in CA, I believe Harris should have fought to preserve Prop 8 because that’s what the voters approved. IMO she’s just another opportunistic politician.

    • I get it… but it seems a little ridiculous at face value.

      “This is probably wrong, and probably illegal, and it probably violates some of the most important covenants between Government and The Governed, and it’s within my power to do something, but let’s just leave it be and see what happens, hmm?”

      • There are four stages to a lawsuit:

        1. Pleadings – initial paperwork is filed with the court where both sides make accusations, but little or no evidence is presented.

        2. Discovery – each side essentially engages in an investigation, and are required to disclose information to each other.

        3. Trial – each side’s evidence is presented to the court, and legal arguments are made.

        4. Judgment – the court, after hearing all of the evidence, makes a decision.

        When seeking a preliminary injunction, the lawsuit is only at stage 1. There has been no trial, and no discovery. The judge is making his decision based only on each side’s accusations and little to no actual evidence.

        Think of it this way:

        You have a driveway near the side of your property, and it’s been there a decade. One day you neighbor decides the driveway is actually on his side of the line, and sues you to have it removed. The neighbor wants a preliminary injunction to force its removal even before trial. Based on the accusations, the judge decides the neighbor is probably right, but he doesn’t issue the injunction because it would disrupt the status quo. This only makes sense, because, although the judge tends to agree with the neighbor, the remedy of an injunction is so drastic, it would be unfair to you to have to dig up the driveway without having a full opportunity to defend yourself at a trial.

        • ” This only makes sense, because, although the judge tends to agree with the neighbor, the remedy of an injunction is so drastic, it would be unfair to you to have to dig up the driveway without having a full opportunity to defend yourself at a trial.”

          Only in this case the remedy is trivial. The individual gun shops could decide just how much they wanted to invest in images of handguns visible from outside their stores they chose to display. This could range from none to a gimme poster from HK or SIG to a full neon sign of a pistol. In all cases the risk and expense is assumed by the plaintiff, not the defendant.

        • Further, the lack of a preliminary injunction now allows Kamala Harris, and her almost unlimited budget, to drag the suit out for years in an attempt to bankrupt the plaintiffs with massive legal fees. Injunctive relief would encourage Harris to proceed to trial as rapidly as possible. Lack of injunctive relief encourages her to drag her feet as long as possible.

        • Maybe – will defer to others that are more knowledgable. But fairly common to stay (delay) an order pending the appeal. NetNet: no change; more delay; more expense.

          What interests me is the overall strategy. It seems limited to wrangling at the lowest level of the 9th circuit (which I believe the 9th has the worst record of decisions being upheld by the supreme court).

          Why haven’t other ardent 1A defenders (e.g., ACLU) sprung to support the case? Why no evidence of measures to neutralize Harris? Or shift the discourse from “making our communities safe” to attacking freedom of speech? Seems like she’s being allowed to define the battleground – rarely a good idea.

          Any insights?

    • Please define the status quo that will or will not be disturbed.

      If that status quo is level of criminal gun-purchase (or crime commission) activity, then I call shenanigans. Pictures of guns don’t cause criminals to buy guns, or cause people to commit crimes using guns.

      • You’re overthinking it. The status quo in this case is simply that the law is in effect (and images of handguns are banned). To overturn the law with a preliminary injunction would be to alter the status quo without the benefit of fully litigating the issue.

        To be clear here, I fully oppose this law, and expect it to be overturned once the issue is fully litigated. If it is not, then I will be the first to condemn this judge. However, at this point, the issue has not been fully litigated, and the court doesn’t have all the facts. It only makes sense that the status quo should be preserved until a full trial occurs and the plaintiff is able to prove his case.

        • The status quo in this case is simply that the law in in effect…

          To this engineer-not-lawyer, that’s tautological nonsense, which would render all requests for injunction moot. It only makes any sense whatsoever if the alleged “status quo” is expressed in terms of net public/individual good/harm.

        • I’m not sure how this is in any way unclear. The judge has essentially two option: (1) allow the law to continue to be in effect, or (2) strike down the law, in the form of a preliminary injunction. As the law has been in effect for some time, the first option changes nothing, and thus maintains the status quo, and the later makes a change, and thus disrupts the status quo.

          Change the facts and it maybe it’ll make more sense:

          You own a large tract of wooded land, and have owned it for several years without incident. One day, your neighbor claims part of the land is actually his, and says he is going to begin lumbering it. You run to court, file a complaint seeking declaratory judgment that the land is yours, and also seek a preliminary injunction to prohibit your neighbor from lumbering. In this case, the status quo is that the trees are standing, and the status quo would not be disturbed by forbidding lumbering operations. In this case, it would be appropriate to issue the preliminary injunction.

        • As far as I understand, every injunction issued against a law (i.e. not a civil injunction barring an action by a person) is a legal injunction prohibiting an agent of the state from enforcing a that law. By your logic, no such injunctions would ever be issued, because they alter the “status quo” of the law “being in effect”.

          Changing the facts (by conflating an injunction against enforcement of a law with a civil injunction against a private party) strains the analogy beyond the breaking point. Also, your alternate scenarios base the propriety of the injunction upon the net impact of benefit and harm to the parties involved.

          Please apply the same evaluation of net impact of benefit and harm to the parties involved in the extant case, and use that evaluation to justify the failure to issue the injunction. I don’t believe you can, which is why you resort to the tautological “status quo” of the law itself.

          Compare this case to another issue in California – Prop 8 (in which the courts had zero problems upending the “status quo” when they issued injunctions against enforcing Prop 8):

          http://articles.latimes.com/2013/jul/22/local/la-me-ln-prop-8-20130722

        • Chip,

          Your first problem is that you are conflating preliminary injunctions and permanent injunctions. While both have the same effect (they either command or prohibit a specific action), they are issued at different points in a lawsuit, and have different standards for whether or not they should be granted.

          A preliminary injunction is granted or denied at the very beginning of a lawsuit, when the court has little or no evidence before it, but only the parties’ allegations.

          A permanent injunction is granted or denied at the very end of lawsuit, following a trial, when the court has heard all of the relevant evidence.

          Whether or not an injunction would disrupt the status quo is ONLY a consideration for preliminary injunctions. This makes sense, because a court should not be commanding or prohibiting action that alters the established balance (the status quo) before the court has a chance to consider all of the evidence, and the defendant has a chance to present a defense.

          Once the trial is over, and the court is considering whether or not to issue a permanent injunction, it no longer has to consider whether or not the status quo will be disrupted, because it has all of the evidence in front of it, and can make a clear judgment one way or the other.

          Your second problem is that, while you ignore the distinction between preliminary and permanent injunctions, you are also making up another distinction that does not exist in law. There is no procedural difference between two neighbors suing each other over a property dispute, and an individual suing the government to prohibit enforcement of a law. Both are civil actions, and both are governmened by the same rules and procedures.

          In both of these lawsuits, the standard of whether or not to issue a preliminary injunction is the same, and it includes an analysis of whether or not the status quo will be disrupted. So, you are right; a preliminary injunction will rarely be issued prohibiting enforcement of law. However, after a trial has been conducted, the status quo is no longer a concern of the court, and a permanent injunction may be issued without regard to disruptions to it. That is what happen in the Proposition 8 case; a permanent injunction was issued following a trial. Because a preliminary injunction was not at issue, neither was the status quo.

          What this all boils down to is: BE PATIENT. The lawsuit is not over, in fact it has barely begun. A trial will occur, and once it does, the only question before the judge will be whether or not the law is constitutional. the status quo won’t be considered.

        • Chip,

          To help you better understand, here is a list of the different required elements for the issuance of the two types of injunctions. All elements must be present, and the plaintiff must prove them. If even one element is missing, the injunction will not be granted. The elements are the same for cases against individuals, or against the government.

          For a preliminary injunction to be issued (that is, an injunction before a trial has occurred, and before the court has much evidence before it), the plaintiff must show:

          1. The injunction is necessary to prevent immediate and irreparable harm to the plaintiff
          2. Money damages would not fully compensate the plaintiff
          3. Greater injury would result from not issuing the injunction that from granting it
          4. The status quo would not be disturbed by the granting of the injunction
          5. The defendant’s conduct is actionable, and the injunction would abate the conduct
          6. The plaintiff’s right is clear, and the plaintiff is likely to succeed

          For a permanent (or final) injunction to be issued (that is, an injunction after a trial has occurred, and once the court has all of the evidence before it), the plaintiff must show:

          1. The injunction is necessary to prevent a legal wrong
          2. Money damages would not fully compensate the plaintiff
          3. The defendant’s conduct is actionable, and the injunction would abate the conduct

          As you can see the standard is much lower for permanent injunctions, and rightfully so. Once the court has reached the point of deciding whether or not to issue a permanent injunction, it has all the evidence before it. It has heard testimony, weighed credibility, viewed exhibits, and heard from experts. In other words, the court can make an informed decision. Such an informed decision is impossible at the preliminary injunction stage because the evidence has not been presented. Therefore, it is only right that the plaintiff’s burden be much higher, and that the status quo be preserved at the preliminary injunction stage. Otherwise, it would be far too easy for a defendant to be railroaded, and for a court to order what could be a very drastic remedy without having all of the evidence or the defendant having the opportunity to put on a defense.

        • Thank you. That helped clarify things for me.

          Would it perhaps been easier to say that preliminary injunctions are almost never issued, and would require truly extenuating circumstances – in which case, there is simply nothing unusual about a preliminary injunction not being issued in this case?

          (Though, I still wonder how a preliminary injunction against enforcement of a(n existing) law would ever be granted, since the “status quo” burden cannot possibly be met?)

        • Chip,

          I think it is fair to say that preliminary injunctions are rarely issued, and that there is nothing unusual about this case. Preliminary injunctions were designed for scenarios like the one I detailed before, where the defendant is either preparing to, or has begun, a course of wrongful conduct that, if completed, would bring disastrous consequences for the plaintiff, and the defendant’s conduct is something that significantly alters the established balance (the status quo).

          There are some, uncommon, situations where a preliminary injunction could issue against the enforcement of an existing law. Such a situation may be where a law has just been passed, and its effects are so egregious that a court would say that the passage of the law itself disrupted the status quo. Using an extreme example: a law is passed ordering the closure of all Methodist churches. Such a law would clearly violate several constitutional provisions, and I have no doubt a court would issue a preliminary injunction, reasoning that the injunction would in fact maintain long-term the status quo. In our situation, on the other hand, the law at issue has been around for a while, so it has become the status quo.

  5. Here is a life lesson. If you depend on lawyers, judges and politicians you get legally screwed without extreme prejudice. I think something like this was mentioned in our Independence Declaration.

  6. Meanwhile a large Blythes gun shop sign can be seen from I-80 near Highland,Indiana…sorry for anyone stuck in commiefornia…

  7. “You have been found guilty of eight counts of murder, so I have no choice but to let you go”

    Yes, the judge should not issue an injunction since status quo is changed, but his findings of harm and infringement of rights instead indicate he should strike the law down as unconstitutional on its face.

  8. Nunley is another fine Obama appointee. Wait until his final decision and order, and then we’ll know how bad he’s fvcking us.

  9. What do you expect

    Sacramento County Superior Court Judge Troy L. Nunley was nominated by President Barack Obama in June to serve as U.S. District Court Judge for the Eastern District of California.

    Now you now why he ruled that way….

    Please Support https://www.firearmspolicy.org/

    • Thanks Johnny. Wasn’t aware of them and just joined for $20. Gave a donation to SAF yesterday based on recommendations from TTAG commentators. Very much appreciate knowing about groups that defend our interests.

  10. “And, of course, the nation’s best-looking attorney general is vigorously defending the suit,”

    Hey, Dan –

    Could you please change that to read “allegedly the nation’s best-looking attorney general”

    Florida’s Pam Bondi is way hotter than ‘Camel Toe Harris’.

  11. This idiot has only one job: to determine if the law is Constitutional or not. None of this ‘kinda, sorta, maybe, but not really’ nonsense. That’s exactly how Obamacare aka SCOTUScare passed.

    • Your entire comment was spot on, and isn’t kind of sad when you have to accept that the Constitution was written as a protection from what OUR current society has already become. The tyranny is just not overt as dragging a family off to camps, now the state just takes your finances.

    • This was a decision on whether or not to grant a preliminary injunction, NOT a final decision on whether or not the law is constitutional. By definition, a preliminary injunction is issued before a final order. They are rarely granted precisely because they can only be based on “kinda sorta” feelings because the case hasn’t been fully litigated yet, and the judge doesn’t have all of the
      information, just initial paperwork.

  12. … 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.

    So, allowing the state of California to blatantly violate the First Amendment is the best way to serve the public interest. Got it.

    I don’t know what is more incredible: the Judge’s ridiculous statement or the fact that no has already tarred and feathered him.

  13. Constitutional Amendments are mostly just suggestions if they are politically incorrect.

    Welcome to California

  14. Surely there must be some shops located next to a gun store that could show handgun signage in support of their fellow local business.

    • Adam, Exactly!

      I’d expect local business groups (e.g., Chamber of Commerce) to publicly condemn CA’s position too.

      As an aside, went to 2 gun stores yesterday. None displayed or promoted any public service announcement type material, yet our local NRA chapter is sponsoring a fundraising dinner in a few weeks to promote shooting sports for youth.

      I see more social cause support at home improvement stores. Little to no effort to change public opinion about guns or gun owners. Very sad and baffling.

  15. To one of the earlier comments, this law is essentially unchanged since it was introduced in 1917. Basically, they didn’t want blacks and Chinamen (seriously) getting all hot and bothered by the sight of a gun in the window. Because, you know, racism.

  16. I would make the biggest sign I could afford and post it outside my shop. It would simply say, “Easily concealable pieces of metal and plastic that go BOOM sold and transferred here!”.

  17. Why not turn their own law against them? I.E. A glock (brand) glock, with a forward grip, aka, a short-barrelled rifle? Perhaps in glowing neon?

Leave a Reply

Your email address will not be published. Required fields are marked *