Opinion
20-56233
01-20-2022
JONAH MARTINEZ; et al., Plaintiffs-Appellants, v. ALEX VILLANUEVA; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted October 18, 2021 Pasadena, California
Appeal from the United States District Court No. 2:20-cv-02874-AB-SK for the Central District of California Andre Birotte, Jr., District Judge, Presiding
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges. Concurrence by Judge KLEINFELD
MEMORANDUM [*]
Appellants appeal from the district court's grant of a motion for judgment on the pleadings. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for further proceedings consistent with this disposition.
The parties are familiar with the facts, so we discuss them here only as necessary.
We resolve this case for the reasons set forth in McDougall v. County of Ventura, No. 20-56220, __F.4th__(9th Cir. Jan. 20, 2022), a related case involving different parties but materially similar issues. Pursuant to McDougall, this case is not moot because Appellants sought nominal damages, which "provide the necessary redress for a completed violation of a legal right." McDougall, __F.4th at __(quoting Uzuegbunam v. Preczewski, 141 S.Ct. 792, 802 (2021)).
On the merits, the Los Angeles County Orders (Orders) both burdened conduct protected by the Second Amendment and fail strict and intermediate scrutiny. See McDougall, __F.4th at__. While the 11-day mandated closure at issue here is shorter than the 48-day closure at issue in McDougall, 11 days instantly becomes 21 days when adding California's 10-day waiting period for acquiring firearms. See Silvester v. Harris, 843 F.3d 816, 819 (9th Cir. 2016). And a 21-day delay for acquiring a firearm is more than double the delay considered in Silvester. Id. Moreover, an 11-day total ban on law-abiding citizens' ability to practice with firearms at firing ranges or acquire firearms and ammunitions at all-which the Orders clearly indicated could be perpetually extended if the County so decided- severely burdens the core of the Second Amendment right at a time of crisis, precisely when the need to exercise that right becomes most acute. See S. Bay United Pentecostal Church v. Newsom, 141 S.Ct. 716, 718 (2021) (Statement of Gorsuch, J.) ("Even in times of crisis-perhaps especially in times of crisis-we have a duty to hold governments to the Constitution.").
The district court's finding that the mandated closure of firearms retailers lasted only five days is clear error. See United States v. 2, 164 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 770 (9th Cir. 2004) (while judgment on the pleadings are reviewed de novo, factual findings are reviewed for clear error). Under the Orders' plain text, businesses not specifically identified as "Essential Businesses" were required to close beginning March 19, 2020. No party disputes that firearms retailers were not specifically identified as "Essential Businesses."
REVERSED and REMANDED.
KLEINFELD, Circuit Judge, concurring:
I concur in the result, for the reasons stated in my concurrence in McDougall v. County of Ventura, __F.4th__, __(9th Cir., Jan. 20, 2022).
[*]This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.