Fitz v. Rosenblum

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARK FITZ¸ GREYGUNS, INC., G4 Case No. 3:22-cv-01859-IM

ARCHERY, LLC, SECOND

AMENDMENT FOUNDATION; and ORDER

FIREARMS POLICY COALITION, INC.,

Plaintiffs,

v.

ELLEN ROSENBLUM, in her official

capacity as Attorney General of the State of

Oregon; and TERRIE DAVIE, in her official

capacity as Superintendent of the Oregon

State Police,

Defendants.

IMMERGUT, District Judge.

Before this Court is a Motion for Temporary Restraining Order (“TRO”) brought by

Plaintiffs Mark Fitz, Grayguns, Inc., G4 Archery, LLC, the Second Amendment Foundation, and

the Firearms Policy Coalition, Inc. (collectively “Plaintiffs”). ECF 6. Plaintiffs ask this Court for

an order enjoining Ballot Measure 114 (“Measure 114”), which amends Oregon law to require

individuals to obtain a permit before purchasing a firearm and by prohibiting the manufacture,

transfer, sale, possession, and use of large-capacity magazines, defined as magazines that can

accept more than ten rounds of ammunition, subject to certain exceptions. Measure 114 §§ 4, 11.

Measure 114 is scheduled to take effect on December 8, 2022. See Or. Const. Art. IV, § 1(4)(d).

Plaintiffs in this case challenge only Measure 114’s restrictions on large-capacity

magazines and claim these restrictions violate their rights under the Second and Fourteenth

Amendments. Plaintiffs do not challenge Measure 114’s permit-to-purchase provision, the

implementation of which this Court has stayed for thirty days following a request by Defendants.

ECF 25. For the reasons stated below, Plaintiffs’ Motion for a TRO is DENIED.

BACKGROUND

This case, along with three other related cases pending before this Court, see Oregon

Firearms Federation et al. v. Brown et al., 2:22-cv-01815-IM; Eyre et al. v. Rosenblum et al.,

3:22-cv-01862-IM; Azzopardi et al. v. Rosenblum et al., 3:22-cv-01869-IM, challenge the

constitutionality of Measure 114, which was approved by a majority of Oregon voters in

November of 2022. Measure 114, OREGON SECRETARY OF STATE,

https://results.oregonvotes.gov/resultsSW.aspx?type=MEASURE&map=CTY (last visited Dec.

3, 2022). In the instant case, Plaintiffs challenge Measure 114’s restrictions on large-capacity

magazines as violating the Second and Fourteenth Amendments. ECF 1 at ¶¶ 57–63; ECF 6 at 2.

Plaintiffs submitted five declarations in support of their Motion for a TRO. ECF 7; ECF

8; ECF 9; ECF 10; ECF 11. Plaintiff Brandon Combs, President of Firearms Policy Coalition,

Inc. (“FPC”), alleges that FPC members in Oregon own and possess ammunition magazines

capable of holding more than ten rounds and are thereby impacted by Measure 114’s regulation

of the purchase, possession, production, and sale of such magazines. ECF 7 at ¶¶ 2, 10. Plaintiff

Alan Gottlieb, Executive Vice President of the Second Amendment Foundation (“SAF”), alleges

that SAF’s membership includes numerous individuals and businesses who will be harmed by

the enforcement of Measure 114’s regulation of the purchase, possession, production, sale, and

transfer of magazines capable of holding more than ten rounds of ammunition. ECF 8 at ¶¶ 2, 8.

Plaintiff Mark Fitz, a member of FPC and SAF, alleges that Measure 114 will harm him by

making it so that he is no longer able to purchase large-capacity magazines in Oregon and by

limiting how he can use his existing large-capacity magazines. ECF 9 at ¶¶ 3, 5–6. Plaintiff

Bruce Gray, owner of Grayguns, Inc., a federally licensed firearm dealer, firearm parts

manufacturer, and custom gunsmithing company located in Douglass County, Oregon, alleges

that Measure 114 will inflict economic injury on his business by prohibiting the sale of large-

capacity magazines to civilians. ECF 10 at ¶¶ 2, 7. Similarly, Plaintiff Jessica Harris, owner of

G4 Archery, LLC, a federally licensed firearm dealer located in Washington County, Oregon,

alleges that Measure 114 will inflict economic injury to her business by prohibiting the sale of

large-capacity magazines to civilians. ECF 11 at ¶ 2, 7.

This Court heard argument on Plaintiffs’ Motion on December 2, 2022. At that hearing,

this Court also heard argument in a related case, Oregon Firearms Federation et al. v. Brown et

al., 2:22-cv-01815-IM.

DISCUSSION

For the purposes of this Order, this Court adopts its reasoning as stated in the Court’s

Opinion and Order in Oregon Firearms Federation et al., 2:22-cv-01815-IM, ECF 39.

Accordingly, Plaintiffs’ Motion for a Temporary Restraining Order, ECF 6, is DENIED. This

Court finds that, at this stage, Plaintiffs have failed to carry their burden to show that the

“extraordinary remedy” of a TRO is warranted at this time. Lopez v. Brewer, 680 F.3d 1068,

1072 (9th Cir. 2012). Specifically, Plaintiffs have failed to show that they are likely to succeed

on the merits of their claim and that they would suffer immediate and non-speculative irreparable

harm absent a TRO.

This Court briefly supplements its reasoning from Oregon Firearms Federation et al.,

2:22-cv-01815-IM, ECF 39, to address evidence cited by Plaintiffs in this case. As this Court

held in Oregon Firearms Federation, Plaintiffs have failed to submit evidence, at this stage, to

show that large-capacity magazines are “‘in common use’ . . . for lawful purposes like self-

defense” such that they are protected by the Second Amendment. Heller v. District of Columbia,

554 U.S. 570, 624 (2008). Plaintiffs in the instant case rely largely on the 2021 National

Firearms Survey, in which 48% of respondents stated that they owned magazines capable of

accepting more than ten rounds of ammunition. ECF 6 at 11–12. These owners self-reported the

following reasons for owning these large-capacity magazines: target shooting (64.3%), home

defense (62.4%), hunting (47%), and defense outside the home (41.7%). Id. at 13. However, as

discussed in depth in this Court’s Opinion and Order in Oregon Firearms Federation,

Defendants have presented substantial conflicting evidence to support the claim that large-

capacity magazines are rarely used in practice in self-defense situations. Oregon Firearms

Federation et al., 2:22-cv-01815-IM, ECF 39. At this stage, this Court finds that Plaintiffs’ have

not met their burden to show a likelihood of success on their claim that Measure 114’s large-

capacity magazine restrictions are unconstitutional.

Likewise, Plaintiffs have failed, at this stage, to show an immediate threat of irreparable

harm absent a TRO. Plaintiffs allege two main sources of harm: that Plaintiffs will not be able to

purchase large-capacity magazines due to Measure 114’s restrictions, and that businesses will

suffer economic harm due to Measure 114’s prohibition on selling large-capacity magazines to

civilians in Oregon. See, e.g., ECF 9 at ¶¶ 5, 6; ECF 10 at ¶ 7. Plaintiffs have not submitted

evidence to show that these harms are immediate, rather than speculative. City of Los Angeles v.

Lyons, 461 U.S. 95, 111 (1982) (the requirement of irreparable injury “cannot be met where

there is no showing of any real or immediate threat that the plaintiff will be wronged. . .”); see

also Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (holding

that a “speculative” injury does not constitute irreparable harm); L.A. Mem’l Coliseum Comm’n

v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980) (holding that plaintiffs bear the

“burden of demonstrating immediate threatened injury as a prerequisite to preliminary injunctive

relief.”). Plaintiffs’ conclusory statements that they wish to purchase large-capacity magazines at

some point in the future are speculative and insufficient to support a finding of irreparable harm.

This Court recognizes that Measure 114 does not prohibit Plaintiffs from continuing to purchase

or possess magazines capable of accepting ten or fewer rounds and to keep the large-capacity

magazines they already own for the purposes articulated in Measure 114.

Moreover, Plaintiffs have failed to demonstrate at this stage that they are likely to suffer

immediate and irreparable harm that cannot be addressed by monetary awards in the future

should they prevail in this litigation. See Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at

1202 (“[M]onetary injury is not normally considered irreparable.”). It is not ordinarily

considered irreparable harm for a plaintiff to suffer an injury that can later be remedied with

damages. See Rent–A–Ctr., Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597,

603 (9th Cir. 1991) (“It is true that economic injury alone does not support a finding of

irreparable harm, because such injury can be remedied by a damage award.”).

CONCLUSION

For the reasons stated in this Court’s Opinion and Order in Oregon Firearms Federation

et al., 2:22-cv-01815-IM, ECF 39, and supplemented briefly above, Plaintiffs’ Emergency

Motion for a TRO, ECF 6, is DENIED. Nevertheless, Plaintiffs are entitled to a prompt hearing

to determine whether a preliminary injunction should issue based on a more complete

evidentiary record addressing whether there is a likelihood of success on the merits under the

Second and Fourteenth Amendments. The parties are ordered to confer and propose a briefing

schedule to this Court by December 7, 2022.

IT IS SO ORDERED.

DATED this 6th day of December, 2022.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge