Mark Baird v. Rob BontaMark Baird v. Rob Bonta
Second Amendment/Preliminary Injunctions
The panel reversed the district court‘s denial of Appellants’ motion for a preliminary injunction seeking to enjoin enforcement of California Penal Code sections that impose criminal penalties for the unlicensed open carry of a handgun, and remanded with instructions.
The panel held that the district court abused its discretion by applying an incorrect legal standard to deny Appellants’ motion for a preliminary injunction. Instead of analyzing the first factor set forth in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)—whether Appellants were likely to succeed on the merits of their claim—the district court erroneously determined that because the public interest and balance of harms disfavored the issuance of a preliminary injunction, it was not necessary to assess Appellants’ likelihood of success on the merits. Analysis of the first Winter factor is centrally important where a plaintiff alleges a violation of a constitutional right, including the individual‘s right to carry a handgun for self-defense outside the home under the Second Amendment. Pursuant to N.Y. State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111 (2022), a government may regulate the manner of that carry only if it demonstrates that the regulation is identical or closely analogous to a firearm regulation broadly in effect when the Second or Fourteenth Amendment was ratified.
- The district court‘s analysis of the first Winter factor must include consideration of whether the conduct that California‘s general open-carry ban regulates is covered by the text of the Second Amendment. If it is, California bears the burden to identify a well-established and representative historical analogue to its open-carry ban that was in force when the Second or Fourteenth Amendment was ratified.
- Noting that it has been more than four years since Appellants first moved for a preliminary injunction and more than fourteen months since Bruen was decided, the panel directed the district court to complete its preliminary injunction review expeditiously.
- If the district court determines that Appellants showed that they are likely to succeed on the merits of their claim, the district court must account for the impact that determination has on the remaining Winter factors when it analyzes each of them. This means recognizing that, in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm, and strongly tips the balance of equities and public interest in favor of granting a preliminary injunction.
VANDYKE, Circuit Judge:
Appellants Mark Baird and Richard Gallardo wish to openly carry handguns in California for self-protection, but California‘s current licensing regime effectively establishes a statewide ban on open carry by ordinary law-abiding Californians. With narrow exceptions, those Californians who reside in counties with more than 200,000 residents—roughly 95% of state residents—may not apply for an open-carry license.
I. BACKGROUND
Appellants reside in counties with fewer than 200,000 inhabitants but have been unable to obtain an open-carry license, so they cannot legally openly carry a handgun. They argue that this prohibits conduct covered by the Second Amendment, has no historical analogue, and therefore infringes their Second Amendment right to bear arms for self-defense. They sued the Attorney General of California in his official capacity and thrice moved the district court to preliminarily enjoin enforcement of
After a hearing, the district court denied the instant preliminary injunction motion without analyzing whether Appellants were likely to succeed on the merits of their claim or likely to suffer irreparable injury. They now appeal the district court‘s order, arguing that the district court abused its discretion by (1) conducting an incomplete preliminary injunction analysis (2) that was flawed even on its own terms because it consisted solely of a speculative or even impermissible public safety analysis of the effects of issuing a preliminary injunction. Appellants ask this court to reverse
II. STANDARD OF REVIEW
We review a district court‘s denial of a preliminary injunction motion for abuse of discretion. Olson v. California, 62 F.4th 1206, 1218 (9th Cir. 2023). A district court abuses its discretion if it bases its decision “on an erroneous legal standard or on clearly erroneous factual findings.” Cal. Chamber of Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 475 (9th Cir. 2022) (quoting Am. Beverage Ass‘n v. City & Cnty. of San Francisco, 916 F.3d 749, 754 (9th Cir. 2019) (en banc)). A district court bases its decision on an erroneous legal standard if it fails to “employ the appropriate legal standards that govern the issuance of a preliminary injunction,” or if it applies the appropriate standards but “misapprehend[s] the law with respect to the underlying issues in the litigation.” Id. (quoting Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1096 (9th Cir. 2008)).
The appropriate legal standard to analyze a preliminary injunction motion requires a district court to determine whether a movant has established that (1) he is likely to succeed on the merits of his claim, (2) he is likely to suffer irreparable harm absent the preliminary injunction, (3) the balance of equities tips in his favor, and (4) a preliminary injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); accord Chamber of Com. of the U.S. v. Bonta, 62 F.4th 473, 481 (9th Cir. 2023). As a general matter, district courts ”must consider” all four Winter factors. Vivid Ent., LLC v. Fielding, 774 F.3d 566, 577 (9th Cir. 2014) (emphasis added). The first factor “is a threshold inquiry and is the most important factor.”
It is well-established that the first factor is especially important when a plaintiff alleges a constitutional violation and injury. If a plaintiff in such a case shows he is likely to prevail on the merits, that showing usually demonstrates he is suffering irreparable harm no matter how brief the violation. See Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014), abrogated on other grounds by Dobbs v. Jackson Women‘s Health Org., 142 S. Ct. 2228 (2022). And his likelihood of succeeding on the merits also tips the public interest sharply in his favor because it is “always in the public interest to prevent the violation of a party‘s constitutional rights.” Riley‘s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 731 (9th Cir. 2022) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)).
An “individual‘s right to carry a handgun for self-defense outside the home” under the Second Amendment is one such constitutional right. N.Y. State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111, 2122 (2022). A government may regulate the manner of that carry only if it demonstrates that the regulation is identical or closely analogous to a firearm regulation broadly in effect when the Second or Fourteenth Amendment was ratified. Id. at 2129–30, 2133. A district court should not try to help the government carry its burden by “sift[ing] … historical materials” to find an analogue. Id.
If a movant makes a sufficient demonstration on all four Winter factors (three when as here the third and fourth factors are merged), a court “must not shrink from [its] obligation to enforce [his] constitutional rights,” regardless of the constitutional right at issue. Porretti v. Dzurenda, 11 F.4th 1037, 1047 (9th Cir. 2021) (quoting Brown v. Plata, 563 U.S. 493, 511 (2011)). It may not deny a preliminary injunction motion and thereby “allow constitutional violations to continue simply because a remedy would involve intrusion into” an agency‘s administration of state law. Id. (quoting Brown, 563 U.S. at 511).
III. DISCUSSION
This appeal presents the question whether, in a case in which a plaintiff alleges a constitutional violation, a district court can deny a motion for a preliminary injunction without analyzing the plaintiff‘s likelihood of success on the merits. The answer to that question is clear: a district court may not do so. Because of how a finding that a plaintiff is likely to succeed on the merits of a constitutional claim impacts the other Winter factors, a district court necessarily abuses its discretion when it skips analyzing the likelihood of success factor in a case involving such a claim. This rule of course applies to claims alleging a violation of the Second Amendment right to bear arms, which the Supreme Court has repeatedly emphasized is not a “second-class right,
The district court here declined to undertake any analysis of Appellants’ likelihood of success on the merits of their claim. Instead, it conducted only an analysis of the last two merged Winter factors, on the theory that the public interest disfavoring a preliminary injunction can outweigh a plaintiff‘s showing that a law likely infringes his constitutional rights and causes him irreparable harm.1 This was an abuse of discretion. We reverse with instructions to guide the district court‘s preliminary injunction analysis on remand.
A. The district court abused its discretion by improperly applying the preliminary injunction standard.
As noted above, proper analysis of a preliminary injunction motion requires a district court to examine the Winter factors. The first factor—likelihood of success on the merits—is the most important (and usually decisive) one in cases where a plaintiff brings a constitutional claim, including a Second Amendment claim. Bruen did not change this multifactor preliminary injunction test, and the district court therefore abused its discretion when it deliberately skipped any analysis of the first Winter factor.
We begin with the relevant preliminary injunction principles. The first Winter factor, likelihood of success, “is a threshold inquiry and is the most important factor” in any motion for a preliminary injunction. Env‘t Prot. Info. Ctr., 968 F.3d at 989. That holds especially true for cases where a plaintiff seeks a preliminary injunction because of an alleged constitutional violation. If a plaintiff bringing such a claim shows he is likely to prevail on the merits, that showing will almost always demonstrate he is suffering irreparable harm as well. See Humble, 753 F.3d at 911; Melendres, 695 F.3d at 1002 (“[T]he deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.‘” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion))); Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (holding that a finding of irreparable harm “follows inexorably” from a “conclusion that the government‘s current policies are likely unconstitutional“). Accordingly, “[w]hen an alleged deprivation of a constitutional right is involved, … most courts hold that no further showing of irreparable injury is necessary.” 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1 (3d ed. 1998).
A plaintiff‘s likelihood of success on the merits of a constitutional claim also tips the merged third and fourth factors decisively in his favor. Because “public interest concerns are implicated when a constitutional right has been violated, … all citizens have a stake in upholding the Constitution,” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005), meaning “it is always in the public interest to prevent the violation of a party‘s constitutional rights,”
In sum, because of the importance of the first Winter factor in cases where a plaintiff alleges a constitutional injury, it is no surprise that “our caselaw clearly favors granting preliminary injunctions to a plaintiff … who is likely to succeed on the merits of his [constitutional] claim.” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).
2. The right to carry a handgun for defense outside the home can be regulated only in ways closely analogous to regulations widely in effect in 1791 or 1868.
Having established the centrality of the likelihood of success on the merits factor to the preliminary injunction
The Second Amendment guarantees the right to keep and bear arms, see District of Columbia v. Heller, 554 U.S. 570, 592 (2008), including “an individual‘s right to carry a handgun for self-defense outside the home,” Bruen, 142 S. Ct. at 2122. The Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against the states. See McDonald, 561 U.S. at 791. Following Heller and McDonald, we applied “a two-step inquiry in deciding Second Amendment cases.” Silvester v. Harris, 843 F.3d 816, 820–21 (9th Cir. 2016). First, we looked to history to determine “whether the challenged law burden[ed] conduct protected by the Second Amendment,” and, if so, we then applied “the appropriate level of scrutiny,” id. at 821, depending on “the extent to which the law burden[ed] the core of the Second Amendment right” of self-defense and the severity of that burden, Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 960–61 (9th Cir. 2014).
In Bruen, the Supreme Court expressly rejected the use of such “means-end scrutiny in the Second Amendment context” and described the two-step approach as “one step too many.” 142 S. Ct. at 2127. Following Bruen, “text and history, not a means-end analysis, now define the controlling Second Amendment inquiry.” Atkinson v. Garland, 70 F.4th 1018, 1020 (7th Cir. 2023); see Bruen, 142 S. Ct. at 2131 (stating that, although “judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands” under the Second Amendment).
3. Bruen‘s effect on the Winter test for preliminary injunctions.
We next briefly address the effect of Bruen on Winter‘s four-factor preliminary injunction test. Bruen clarified the appropriate legal framework to apply when a plaintiff challenges a statute under the Second Amendment. Bruen expressly rejected the use of “means-end scrutiny,” 142 S. Ct. at 2127, and any “interest-balancing inquiry,” id. at 2129 (quoting Heller, 554 U.S. at 634), when assessing a plaintiff‘s likelihood of success on the merits of a Second Amendment challenge. Thus, Bruen obviously affects the first Winter factor—the likelihood of success on the merits
4. The district court abused its discretion when it skipped any analysis of the first and most important Winter factor in this case.
Applying these principles to the instant case, we have no trouble concluding that the district court abused its discretion when it denied Appellants’ preliminary injunction motion. A district court that skips analyzing the first Winter factor in a constitutional case cannot properly evaluate the other factors.
As noted, the likelihood of success on the merits is a particularly important consideration in the preliminary injunction analysis of a constitutional claim, because a finding that the plaintiff is likely to succeed on the merits of such a claim sharply tilts in the plaintiff‘s favor both the irreparable harm factor, see Melendres, 695 F.3d at 1002, and the merged public interest and balance of harms factors, see Elsasser, 32 F.4th at 731; Zepeda, 753 F.2d at 727. Consequently, a plaintiff who can show that a statute likely violates the Constitution will also usually show “that both the public interest and the balance of the equities favor a preliminary injunction.” Ariz. Dream Act Coal., 757 F.3d at 1069; see also Am. Beverage Ass‘n, 916 F.3d at 757–58 (recognizing that a showing of likelihood of success on the merits of a constitutional claim “compels a finding” that the balance of hardships and the public interest favor issuance of a preliminary injunction).
Notwithstanding this settled interplay between the factors, the district court here declined to undertake any inquiry into Appellants’ likelihood of success on the merits of their Second Amendment challenge to
The district court did not cite to any authority from a case involving a constitutional claim to justify its determination
Although California is correct that this court said in the first of those three cases that it “is not enough” to grant a preliminary injunction if a movant shows only that he is likely to succeed on the merits, DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir. 2011), nowhere in that case did we say that examination of the first Winter factor is unnecessary in a constitutional case. In DISH Network, the plaintiff sought to enjoin a statute that it alleged violated the First Amendment. Id. at 774. The district court “focused entirely” on whether the plaintiff was likely to succeed on the merits of its claim and denied the injunction. Id. at 775. The plaintiff argued “that in the case of a First Amendment claim, all four of the Winter factors collapse into the merits.” Id. at 776. Because we agreed with the district court that the plaintiff had not met its burden on the first factor, however, we determined that “we need not consider the remaining three.” Id. at 776–77. We therefore determined that “even if we were to determine that [the plaintiff] is likely to succeed on the merits, we would still need to consider whether it satisfied the remaining elements of the preliminary injunction test.” Id.
Far from supporting the argument that a court can skip the first Winter factor in a case presenting a constitutional claim, DISH Network amplifies the necessity of analyzing that first factor, as there we affirmed the denial of the preliminary injunction based only on the plaintiff‘s failure to
The second case relied on by California serves its argument no better. In Klein v. City of San Clemente, our court concluded that the plaintiff had shown a likelihood of success on the merits of his free speech claim against a California anti-littering ordinance. See 584 F.3d at 1207. As California notes, we then stated that the plaintiff “must also demonstrate that he is likely to suffer irreparable injury in the absence of a preliminary injunction, and that the balance of equities and the public interest tip in his favor.” Id. But in the rest of the same paragraph, we explained that because the plaintiff had brought a free-speech claim “it is clear that these requirements are satisfied.” Id. Rather than support California‘s position that analysis of the first factor can be skipped, Klein––like DISH Network—underscores the centrality of the first factor in cases involving allegations of a violation of constitutional rights.
District courts carry heavy case dockets, thus it is understandable why they may seek to resolve cases on what may appear a simpler basis. But a court confronted with a constitutional claim may not, in short, skip over evaluating a movant‘s likelihood of success on that claim when it adjudicates a preliminary injunction motion. See Elsasser,
B. The district court must conduct a proper preliminary injunction analysis on remand.
This error necessitates reversal and remand. On remand, the district court must analyze all of the Winter preliminary injunction factors. We set forth three requirements to guide the district court‘s preliminary injunction analysis on remand.
First, the district court‘s analysis of the first Winter factor must include consideration of the question whether the conduct that California‘s general open-carry ban regulates is covered by the text of the Second Amendment. Bruen, 142 S. Ct. at 2129–30. If it is, California bears the burden to identify a “well-established and representative historical analogue” to its open-carry ban that was in force when the Second or Fourteenth Amendment was ratified. Id. at 2130–31, 2133, 2136–38 (emphasis omitted).
While California does not need to identify a “dead ringer” for its open-carry ban, id., California cannot satisfy the requirement for a closely analogous historical regulation by reference to any general firearm regulation California might unearth, id. at 2130. Because states in 1791 and 1868 also grappled with general gun violence, California must provide analogues that are “distinctly similar,” id. at 2131, to California‘s general open-carry ban in “how” and “why” they curtailed individuals’ right to carry firearms, id. at 2132–33.
Courts in our sister circuits have consistently recognized that the Bruen standard for identifying a closely analogous historical regulation is a demanding one. A proper analysis
In short, as numerous courts have correctly observed in applying Bruen, California must identify a historical analogue that curtails the right to peaceably carry handguns openly for self-defense to a comparable degree, with a comparable severity, and with a comparable blanket enforcement to California‘s open-carry ban. See Atkinson, 70 F.4th at 1021–22; Range, 69 F.4th at 105; Daniels, --- F.4th ---, 2023 WL 5091317, at *8. That is the standard the district court must apply on remand in analyzing the first Winter factor.
In circumstances like this, appellate courts have sometimes imposed strict deadlines for district courts to meet in reevaluating a remanded preliminary injunction motion. See, e.g., Mock v. Garland, 75 F.4th 563, 588 (5th Cir. 2023) (60 days to issue a ruling); New Hope Family Servs., Inc. v. Poole, 966 F.3d 145, 184 (2d Cir. 2020) (10 days after issuance of mandate to allow parties to supplement their initial preliminary injunction filings); Grace Schs. v. Burwell, 801 F.3d 788, 807–08 (7th Cir.
Third, if the district court determines that Appellants showed that they are likely to succeed on the merits of their claim, the district court must account for the impact that determination has on the remaining Winter factors when it analyzes each of them. This means recognizing that, in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm, Melendres, 695 F.3d at 1002, and strongly tips the balance of equities and public interest in favor of granting a preliminary injunction, Elsasser, 32 F.4th at 731.
CONCLUSION
We reverse the denial of a preliminary injunction if it resulted from an abuse of discretion. Olson, 62 F.4th at 1218. Here, by declining to assess Appellants’ likelihood of success on the merits of their Second Amendment claim, the district court abused its discretion by failing to apply the proper preliminary injunction standard for a case raising a constitutional challenge. See Cal. Chamber of Com., 29 F.4th at 475. We therefore reverse and remand. Recognizing that the preliminary injunction proceedings in
REVERSED AND REMANDED.