California Judge Issued Stay on Magazine Ban to Protect Gun Owners

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California Judge Issued Stay on Magazine Ban to Protect Gun Owners

California, U.S.A.-(Ammoland.com)- The Honorable Roger T. Benitez issued a stay on his own ruling to protect the hundreds of thousands of people who imported magazines into California while his ruling stood. He did that as a preemptive strike against the Ninth Circuit issuing a stay without the protection for those who had purchased magazines while it was in effect.

He had a choice, issue the stay under his conditions, or have the Ninth Circuit issue the stay under their conditions. He chose wisely.

The Summary Judgment ruling on Duncan v. Becerra was made on on 29 March, 2019. At that point it became legal to own, possess, manufacture, buy and sell magazines.  Three days later, the defendants asked for a stay. Application for Stay pending Appeal on 1 April, 2019

Good cause exists for the ex parte relief requested. If the Court’s Judgment is reversed on appeal, absent a stay of the Judgment pending appeal, the State of California will be irreparably harmed by the influx of large-capacity magazines during the appeal.

On 2 April, 2019, the Plaintiffs opposed a temporary stay.

Plaintiffs oppose the State’s request for a temporary stay of the judgment while the Court considers the State’s Ex Parte Application to Stay Judgment Pending Appeal of this Court’s Order Granting Plaintiffs’ Motion for Summary Judgment. Plaintiffs understand the State’s concerns, but should the judgment be stayed immediately, even if only temporarily, 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.See Cal. Penal Code § 32310(a); see alsoCal. Penal Code § 1170(h). Therefore, unless the Court can unequivocally protect those individuals in an order granting the State’s temporary stay request, that request should be denied.

On 4 April, 2019, at 2:48 p.m. AG Becerra gave notice of his intent to appeal to the Ninth Circuit for a temporary Stay of the Summary Judgment finding the Magazine ban unconstitutional.

PLEASE TAKE NOTICE that Defendant Xavier Becerra, in his official capacity as the Attorney General of the State of California, hereby appeals to the United States Court of Appeals for the Ninth Circuit from this Court’s final judgment, entered on March 29, 2019 (Dkt. No. 88), including the Court’s Order Granting Plaintiffs’ Motion for Summary Judgment, Declaring California Penal Code § 32310 Unconstitutional and Enjoining Enforcement, issued on March 29,2019 (Dkt. No. 87).

Later on 4 April, Judge Roger T. Benitez issued a temporary stay of the Summary Judgment, thus rendering the appeal to the Ninth Circuit moot.  Judge Benitez wisely issued the Stay before the Ninth Circuit could issue a Stay. Below, Judge Benitez notes that a Stay will harm all those who purchased magazines in a good faith belief the law was struck down as unconsitutional:

Without question, entering a stay pending appeal will harm the Plaintiffs, and all others like the Plaintiffs (who are many), who would choose to acquire and possess a firearm magazine holding more than 10 rounds for self-defense. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”

Then Judge Benitez issues the order to Stay the Summary Judgment. Note that it protects all those people who exercised their Second Amendment rights up to the effective time and date of the Stay, which was an additional day after the Stay was issued.

IT IS HEREBY FURTHER ORDERED that the permanent injunction enjoining enforcement of California Penal Code §32310 (a) and (b)shall remain in effect for those persons and business entities who have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019and 5:00 p.m., Friday, April 5, 2019.Dated: April 4, 2019

I have no doubt that Judge Benitez knew full well the Ninth Circuit would issue a stay if he did not. Reasonable people believe that the stay from a Ninth Circuit panel would not protect those who purchased magazines in the interval from 29 March to 5 April, 2019.

From the comments on an Ammoland article that I wrote, Randy A opined:

He didn’t, “strike it down”, he merely put a stay on it giving the State time to pull something else out of their ass to justify the ban. He wrote his stay in such a way that anyone who had purchased any standard capacity mags during that week could keep them without repercussions. It was a Great move.

 From a reddit.com discussion of the Stay:

This is probably the best outcome (at this stage) that we could have gotten. If Judge Benitez denied the stay, one written by the 9th Circuit could have let the ban on possession go into effect.

So if you live in California, this may be your last chance to buy >10 round magazines for the foreseeable future. Because even if we win at the 9th Circuit, it could be years before the case is over.

The Honorable Roger T. Benitez knows the system. He has been in it for many years. Do not mistake his efforts at supporting the Constitution and the rule of law for treachery or stupidity.


About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

  • 37 thoughts on “California Judge Issued Stay on Magazine Ban to Protect Gun Owners

    1. So, for a few days they could legally buy and own. Now if they own them(high cap mags) they might be criminals for owning if this stay is over written?

    2. The simple fact comes down to criminals who intend to acquire and use firearms in illegaly do not care about any of laws. So why do those of us who practice safety and responsible gun ownership need to have out rights taken? As much as we all support and respect our local law enforcement, they simply can not be everywhere all the time, and we as citizens should have the right to protect ourselves and families. This is a fundamental right we should always fight to retain n my humble opinion.

    3. It’s still not about guns .. It’s about control..
      California’s government is a testing ground for sosialist take over.. look at your history..
      It’s bull to say – That could never happen in this day and age.. its happening all over the world (Right Now) the first , second and fourteenth amendment’s are in place to keep tyrants from taking over.. isn’t it just convenient these are the rights Democrats are trying to abolish first..
      Gun Control works great for those who control all the guns..

    4. What’s the purpose of any court ruling if it can easily be overturned by another? In the case of California, the attorney general doesn’t like the outcome he essentially invalidates the ruling and takes it to a higher court. State government should not be able to challenge the will of the people if any court rules in favor of them.
      This shows that the government is not interested what the public wants, but is following an agenda of what they want.
      California is notorious for overturning the voters on numerous occasions. They simply challenge what they don’t like and the people’s will are overturned.

      1. Seems it is now time for the dead-beat Californians to get off their asses and start yanking people out of office and off of benches that are either a using their powers or otherwise haven’t a damn clue what The Constitution of the United States is all about? REMOVE THESE IMBICILES NOW! DO NOT WAIT FOR AN ELECTION! There are far too many worthy personnel available to fill these positions!

        1. Not easy to do. Californians DID get off their posteriors, get out the vote, and win about six or eight GOP seats in close races, only to see them “flip” Democrat weeks after the election, and initial (valid, legal) vote count, due to “ballot harvesting”. (Ballot harvesting is where the CA government sends out mail to anyone who applied for a license at the DMV, whether citizen, felon, or illegal alien, dead or alive”, and then sent around paid canvassers to those address to pick up “completed ballots”, and submit them in bulk AFTER the election, and AFTER the Democrats knew exactly how many votes they need to win. We’re not talking about a few hundred votes in a close race, but races that were decided decisively (e.g. 13,000 -20,000 votes) in favor of the GOP candidate.

          Nationwide, the Democrats were able to “flip” something in the neighborhood of 22 Congressional seats and 2-3 Senate seats, again, ALL after election day. That’s like 25-0, with NONE flipping the other way, to the GOP (Or other political party). It was caused either an extraterrestrial event/miracle or by massive voter fraud, i.e. 25-0 is a statistical anomaly too large to attribute to “a divided, motivated directorate” and “just a few close races”.

          I am not making this up. I kid you not, it happened, and NO ONE (in particular the US Justice Department civil rights division) is investigation. It’s not just a local issue either: those flipped seats substantially changed the balance of power nationwide. Voter fraud in California cheated voters in “red states” of equal representation.

          So, the Democrats have proven that elections really don’t matter any more. They performed this magic trip with two or three seats, sort of as a successful test run in the 2016 election, 25+ seats in 2018, and the Soros sponsored (and AOC related) organizations are targeting 250 House and Senate seats for 2020.

          So, you need not bother calling people in California names, or accusing them of being lazy. After 60 years a California resident, I gave up several years ago and moved to Idaho. I was involved in elections, I was even elected on the GOP Central Committee in my county for a couple of years, I worked in referendum races, worked for school choice, against gun grabbing, and to recall a Democrat governor (replaced by a useless, Kennedy Democrat governor in GOP clothing … what a waste). I sold everything, closed my corporation, moved, built my own home, and haven’t been as FREE in America, in my entire life, as I have been in Idaho.

    5. Buy a lot of guns. And ammo. If commie Dems get in office in the future there will be a rev. To bad they don’t have any.

      1. I don’t think it will matter if they get back in or not. The Dems have gone from liberal, to progressive, to full blown socialism. Socialists always resort to violence when they meet resistance. There’s a storm coming. The 2020 elections will only determine how violent it is. Remember, Antifa is still out there.

      1. If the military (ordered by our government) really wanted to subdue the American populace, they could do it very quickly and easily. You do know that the military have non lethal frequency weapons that would make us slobber where we stand, right? I also understand that the majority of American soldiers would defy direct orders to hurt the American people, however it doesn’t take too many people to deploy these frequency weapons in any town or city. If the government really wanted to take over. In my opinion, firearms would be useless. The only way our guns would be effective, would be against each other.

        1. If that were the case and these weapons were effective we wouldn’t be 18 years in Afghanistan or 16 years in Iraq with still no end in sight. Besides IMOA just add mirrored sunglasses (Laser protection), high quality ear plugs (Auditory protection), aluminum foil tarps (Heat protection) and ultra-thick aluminum foil (Hats) to your BOB in case they do deploy these weapons against us.
          Besides a mass exodus of personnel from the military would hamper their efforts at controlling the populace. Just think of the weapons, ammunition and equipment they’d bring with them.

        2. Marty,
          You should not comment on military matters such as you have. Clearly you have no understanding of the ability of the US Military. Yes, against another power they could demolish infrastructure, communication, supplies and kill countless. But no country has ever had a military that could sustain domination over a sustained committed revolt against actual or perceived tyranical agression. Unless, they killed everybody. To start, every Soldier, Sailor, Airman and Marine has sworn an oath to protect the constitution of the United States against emenies foreign and domestic. Most would follow orders from above initially. Once they perceived that the threat was from those very orders, many would switch sides. Also, there are more guns in America than Americans. No sustained military act could overcome that. Please study just the recent history of military conflict of nations that kept weapons from their citizens. In these scenarios, it was extremely difficult to overcome a mostly unarmed populace.
          Americans will never allow a tyrant or tyrants to rule for long without grave repercussions.
          Consider recent armed protests over seemingly trivial matters in Nevada and Oregan. When had that happened in the history of our country? There are many who stand guard silently and observe the health and safety of our Constitution. None have ever been relieved of their solemn oath. Some have taken action, possibly prematurely. Waves of attacks will come from within to thwart freedom. Fear not, freedom and the constitution will prevail.

      2. The only reason governments want guns taken away is that they plan to do something for which they richly deserve to be shot.

    6. “Making new criminals every day” the California state motto. I always get the the heebie jeebies when I have to go there with my wife. I still carry, my white privelage and nice car will keep me from attracting unwanted attention, but man I can’t stand going there. It’s a whole other country.

    7. The funny thing here is this clown Becerra is taking a big chance on losing, and if he loses which I honestly think he will then it will open the door to eliminate these mag cap bans throughout the country. Being it is unconstitutional to begin with and just plain stupid because it only affects those that actually abide by the law it will serve him right, especially being from CA. Dumb ass liberals will never learn. Start targeting the people who need to be targeted, and that isn’t law abiding gun owners.

      1. repeat: for caliph-agnia, gun control is about protecting dhimmi-rat criminals from danger while they do business. they don’t want their constituents & relatives (vo-tuhs) shot up.

    8. “This is errr Constitutional raighttt!” Hick jokes aside, it actually feels weird that California would even allow high-capacity. One moment I was celebrating for the lifting of the ban, but it felt really uncomfortable shortly after. Perhaps we are all accustomed into this gun-free culture in California, so let it stay the way it is.

      1. It’s not about what comeyfornia wants it’s about our freedoms and liberties being attacked by liberals who coddle criminals and punish law abiding citizens. We all have the constitutional right to exercise our 2nd amendment rights, and the whiney assed liberals in comeyfornia have no right attacking anyone who does just that period. I think what we really need is a ban on liberals so that we might actually maintain a balance.

      2. Ken, you are not doing a good job maintaining your “spine” for your constitutional freedoms. You are right: the subjugated get used to being coddled, and nanny’d under the facade of security. Your “comfort” is a fantasy that has been sold to you by leadership who is keen to build dependence on the cycle of big government reliance. You will see criminals use whatever they can steal, and fabricate to predate on society: make no mistake in that bans will never slow crime, it will only allow the law abiding to be subjugated by violent crime and criminal leadership (tyrants). While your fears beg you to question the fact that CA residents can now purchase big bad 100rd magazines: your fear and feelings are not backed up by statistical data nor science that says big bad magazines are even a threat to society. Fact show that big mags are not statistically used in crime, nor that gun crime is even a probable threat, given the fact that 1300% of gun use in the USA is used to stop crimes and protect life per gun crime. This is just what we can quantify: imagine the deterrence of guns by citizens? Police, home owners, business owners, even armed schools? Imagine the deterrence? We also know gun free zones are places where we can go to become victims, and we know criminals and madmen target these gun free zones. Please Ken don’t be so cavalier about your right to bear arms, because history proves to us that tyrants will not stop and eventually they will come not just for your guns and magazines but also your freedoms of privacy, freedom of expression, freedom of religion, freedom to assemble, freedom. Ask the German’s and the Jews, who lived through the Nazi era. They came for the homosexuals, then the professors, then the unsavory characters, then the mentally ill, then the Jews, then the Pols, but they didn’t come for me… Tyrants are tyrants Ken, and they will ban, and regulate, and tax with zero regard for representation: and by banning magazines they are already infringing on your right to bear arms. If this makes you feel safe, enjoy your blissful life of subjugation!

    9. I really don’t care what immoral and illegal laws Kalifornia dreams up against guns. I will own whatever type I want. It is my God given right to decide how I choose to protect myself and my family. Not some liberal with a mental disorder.

    10. Criminals don’t care about laws you can make all you want and they will still do what they want please leave law abiding citizens alone

    11. He did it to prevent the Leftist 9 th. circus from overruling him thus protecting the citizens,check mate the v9 th. circus.

    12. I still cannot understand the hypocrisy of the commie left.
      You can murder a baby in the birthing process, but as far as protecting yourself against a violent home invader, firearms cannot be in the equation.
      More deaths are caused by drunk drivers than by legally owned firearms every year.
      I don’t see our elected commie representatives closing down any breweries or distilleries.
      And why aren’t the automakers being sued for building vehicles that will allow themselves to be driven by the inebriated?
      Why I ask you are our elected so afraid of a legally armed public?
      Inquiring minds want to know.
      One other little matter that bothers me.
      All of our elected officials take an oath to uphold and defend our constitution when they are sworn in.
      Why then aren’t the ones attacking our constitutional right to own and bear arms not being arrested, tried and executed for TREASON, or at the very least impeached?

      1. I Could not have said it any better. It’s nice to know that there are other like minded and logical persons still left in this corrupt state. I feel that the real issues aren’t being tabled because they have no idea with which to correct the true cause of gun violence. Meaning the criminal elements and the criminally Insane.

        1. White Supremacists, is a love group?? What are the Muslims hate groups in America? Is Blue Isis, a hate group, because they seem to kill allot of people in America, with no consequences!!

    13. Sad when someone abuses their firearms rights to harm others, but that does not weaken my Constitutional rights. With three enlistments, Infantry during a war, then SF & MP, it grinds me when the Hillaries and Bernies of the world try to rob me of what I personally sacrificed to uphold.

      The Democratic body are like the pigs in Animal Farm who try to change the writing on the wall to suit their anti-Constitutional, Socialist experiment.

      I’m neither a big fan of Trump, but he’s a better choice for many reasons than the Commie I’ll we’re assaulted with as of late.

      1. Mr. Johnson, firstly thank you for your Service and sacrifice. I sincerely am grateful for your insight And perspective. Godspeed

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