B & L Productions, Inc. v. Gavin Newsom

O

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

B&L PRODUCTIONS, INC., d/b/a Case No. 8:22-cv-01518-JWH-JDE

CROSSROADS OF THE WEST;

GERALD CLARK;

ERIC JOHNSON; ORDER GRANTING PLAINTIFFS’

CHAD LITTRELL; MOTION FOR PRELIMINARY

JAN STEVEN MERSON; INJUNCTION [ECF No. 21]

CALIFORNIA RIFLE & PISTOL

ASSOCIATION,

INCORPORATED;

ASIAN PACIFIC AMERICAN GUN

OWNERS ASSOCIATION;

SECOND AMENDMENT LAW

CENTER, INC.; and

SECOND AMENDMENT

FOUNDATION,

Plaintiffs,

v.

GAVIN NEWSOM, in his official

capacity as Governor of the State of

California;

ROB BONTA, in his official capacity as

Attorney General of the State of

California;

KAREN ROSS, in her official capacity

as Secretary of California

Department of Food & Agriculture

and in her personal capacity;

TODD SPITZER, in his official

capacity as District Attorney of

Orange County;

32nd DISTRICT AGRICULTURAL

ASSOCIATION; and

DOES 1-10,

Defendants.

I. SUMMARY OF DECISION

The California legislature recently enacted two statutes that effectively ban gun

shows at the Orange County Fairgrounds and, more broadly, on state-owned property.

Plaintiffs, a group of gun show proprietors and enthusiasts, sued the Governor of

California and other state officials and agencies in an effort to invalidate those two state

statutes.

Plaintiffs moved for a preliminary injunction. Plaintiffs argue that the statutes at

issue infringe both their First Amendment freedom-of-speech rights in a public forum and

their Second Amendment rights to keep and bear arms. After reviewing the parties’

extensive briefing and conducting a hearing on the motion, the Court concludes that

Plaintiffs have established that they are likely to succeed on the merits of their

constitutional claims and that they have satisfied the other requirements for injunctive

relief. Accordingly, Plaintiffs’ motion is GRANTED. Defendants are preliminarily

ENJOINED and RESTRAINED from enforcing the two state statues at issue.

II. BACKGROUND

Before the Court is the motion of Plaintiffs B&L Productions, Inc.; Gerald Clark;

Eric Johnson; Chad Littrell; Jan Steven Merson; California Rifle & Pistol Association,

Incorporated; Asian Pacific American Gun Owners Association; Second Amendment

Law Center, Inc.; and Second Amendment Foundation for a preliminary injunction

against Defendants Gavin Newsom, in his official capacity as Governor of the State of

California; Rob Bonta, in his official capacity as Attorney General of the State of

California; Karen Ross, in her official capacity as Secretary of California Department of

Food & Agriculture and in her personal capacity; Todd Spitzer, in his official capacity as

District Attorney of Orange County; and 32nd District Agricultural Association.1

Specifically, Plaintiffs seek to enjoin Defendants from enforcing two statutes—California

Penal Code §§ 27573 and 27575—during the pendency of this action.

The Court conducted a hearing on the Motion in April 2023. After considering

the many papers filed in support and in opposition,2 as well as the argument of counsel at

1 Pls.’ Mot. for Prelim. Inj. (the “Motion”) [ECF No. 21].

2 The Court considered the documents of record in this action, including the following

papers: (1) First Am. Compl. (the “Amended Complaint”) (including its attachments) [ECF

No. 19]; (2) Motion (including its attachments); (3) Defs.’ Opp’n to the Motion (the

“Opposition”) [ECF No. 22]; (4) Pls.’ Reply in Supp. of the Motion (the “Reply”) [ECF

No. 23]; (5) State Defs.’ Suppl. Brief in Opp’n to the Motion (“Defendants’ Supplemental

the hearing, the Court orders that the Motion is GRANTED, for the reasons set forth

below.

A. Facts

Plaintiff B&L Productions, Inc., operating as Crossroads of the West

(“Crossroads”), has hosted gun shows at the Orange County Fair & Event Center (the

“Orange County Fairgrounds”) every year for the past 30 years.3 During that period,

Crossroads was the largest vendor of gun show events in California and at the Orange

County Fairgrounds.4 Crossroads claims that it “operated popular, safe, heavily

regulated, legal, and family-friendly gun shows” at the Orange County Fairgrounds,

“where like-minded individuals gather to engage in commerce related to, and necessary

for, the lawful and regulated exercise of Second Amendment rights.”5 Although the sales

of firearms were a major factor driving the popularity and profitability of the gun shows,

participants also exchanged information regarding hunting, target practice, firearm

training and safety, gunsmithing, and political advocacy.6 While fewer than 40% of the

vendors at Crossroads’ gun shows offer firearms or ammunition for sale, the principal

draw of gun shows is the sale of firearms and ammunition, as well as the demonstration of

firearms by knowledgeable dealers.

1. Firearm Regulations at Gun Shows

Plaintiffs contend that “California has the most rigorous regulatory regime for

commerce in firearms and ammunition in the United States” and that those regulations

apply to all gun shows throughout California.7 Only state-approved, licensed gun show

producers may operate gun shows in California; a “producer” is defined as one who

holds a Certificate of Eligibility issued by the California Department of Justice.8 Gun

Brief”) [ECF No. 26]; (6) Pls.’ Suppl. Brief in Supp. of the Motion [ECF No. 27]; (7) State

Defs.’ Second Suppl. Brief in Opp’n to the Motion (“Defendants’ Second Supplemental Brief”)

[ECF No. 31]; (8) Pls.’ Response to Defendants’ Second Supplemental Brief [ECF No. 32];

(9) Pls.’ Obj. to State Defs.’ Expert Decl. (“Plaintiffs’ Evidentiary Objections”) [ECF No. 33];

(10) State Defs.’ Reply in Supp. of Suppl. Brief in Opp’n to the Motion (“Defendants’

Supplemental Reply”) [ECF No. 34]; (11) State Defs.’ Response to Plaintiffs’ Evidentiary

Objections [ECF No. 35]; (12) Pls.’ Notice of Suppl. Authority [ECF No. 36]; and (13) Pls.’

[Second] Notice of Suppl. Authority [ECF No. 42].

3 Amended Complaint ¶ 11.

4 Id.

5 Id. at ¶¶ 1 &2.

6 Id. at ¶ 4.

7 Id. at ¶ 43.

8 Id. at ¶¶ 44 & 45.

show producers must certify that they are familiar with all California laws and regulations

regarding gun shows; they must possess a minimum of $1,000,000 in liability insurance;

they must provide an annual list of such shows or events to the California Department of

Justice; and they must provide law enforcement with a list of all vendors that will

participate in the gun show to sell, lease, or transfer firearms. Cal. Penal Code § 27200 &

27205.9 Vendors must also provide an annual event and security plan to the California

Department of Justice and to local law enforcement agencies.10

All gun show vendors must comply with all California state laws, and gun show

producers must post signage stating that participants must comply with state law and that

each firearm carried onto the premises will be checked, cleared, and secured before its

owner is admitted to the gun show.11 Additionally, those signs must state that “[a]ll

firearm transfers between private parties at the show shall be conducted through a

licensed dealer in accordance with applicable state and federal laws.”12 Gun show

producers must also post signs stating that “[t]he transfer of firearms on the parking lot of

this facility is a crime.”13

Furthermore, except in limited circumstances that are unique to law enforcement,

actual firearm transfers are prohibited from taking place at any gun show in California.14

Firearm sales may be initiated through an on-site licensed “transfer dealer,” but delivery

of the firearm cannot be completed at the gun show. Instead, purchasers must pick up

their purchased firearm at a licensed retailer at a different location, following a 10-day

waiting period and successful background check. Plaintiffs claim that, as a result, there is

“no gun show loophole” at gun shows in California, which must operate in accordance

with state law.15 Gun shows must also follow California’s Gun Show Act of 2000,

Cal. Penal Code §§ 27200-27245, which places many additional regulations on gun shows

in California.16

9 Id. at ¶ 46.

10 Id. at ¶ 47.

11 Id. at ¶¶ 49 & 52.

12 Id. at ¶ 52.

13 Id. at ¶ 53.

14 Id. at ¶ 55.

15 Id.

16 Id. at ¶ 56.

2. SB 264

California State Senator Dave Min, acting upon his campaign promise that “in my

first 100 days in office, I promise to author legislation for a ban on these gun shows at the

OC Fair and Events Center once and for all,” sponsored Senate Bill 264 (“SB 264”).17

The bill, which took effect on January 1, 2022, modified Cal. Penal Code § 27575,18 and it

bars any “officer, employee, operator, lessee, or licensee of the [District]” from

“contract[ing] for, authoriz[ing], or allow[ing] the sale of any firearm, firearm precursor

part, or ammunition on the property or in the building that promise the OC Fair and

Events Center.”19 SB 264 does not bar the possession of firearms at the Orange County

Fairgrounds, and it contains exceptions for law enforcement and gun buyback programs.20

In his comments on March 16, 2021, to the Senate Public Safety Committee,

Senator Min stated that “SB 264 will ensure that the state is not profiting from the sale of

firearms and ammunition on state property or facilitating gun shows that would

undermine California’s strong firearm regulations.”21 He went on to explain that even if

no unlawful activities occurred at gun shows, “there is a principal [sic] that taxpayers

17 Id. at ¶ 131.

18 The entire text of Cal. Penal Code § 27575 is as follows:

(a) Notwithstanding any other law, an officer, employee, operator, lessee, or

licensee of the 32nd District Agricultural Association, as defined in Section 3884 of

the Food and Agricultural Code, shall not contract for, authorize, or allow the sale

of any firearm, firearm precursor part, or ammunition on the property or in the

buildings that comprise the OC Fair and Event Center, in the County of Orange,

the City of Costa Mesa, or any successor or additional property owned, leased, or

otherwise occupied or operated by the district.

(b) This section does not apply to any of the following:

(1) A gun buyback event held by a law enforcement agency.

(2) The sale of a firearm by a public administrator, public conservator,

or public guardian within the course of their duties.

(3) The sale of a firearm, firearm precursor part, or ammunition on state

property that occurs pursuant to a contract that was entered into before

January 1, 2022.

(4) The purchase of ammunition on state property by a law enforcement

agency in the course of its regular duties.

19 Amended Complaint ¶ 133.

20 Id. at ¶ 134.

21 Id. at ¶ 141.

should not be utilized, and taxpayer venues should not be utilized to promulgate the

distribution of more guns into our communities.”22

3. SB 915

Building upon SB 264’s ban on sales of firearms at the Orange County

Fairgrounds, Senator Min next introduced SB 915 added Cal. Penal Code § 2757323

barring any “state officer or employee, or operator, lessee, or licensee of any state

property” from “contract[ing] for, authoriz[ing], or allow[ing] the sale of any firearm,

firearm precursor part, or ammunition on state property or in the buildings that sit on

state property or property otherwise owned, leased, occupied, or operated by the state.”24

Although SB 915 did not take effect until January 1, 2023, Plaintiffs claim that,

even before that date, state officials had stopped entering into contracts with gun show

promoters.25 Senator Min issued a press release declaring that “[l]ast year we laid the

foundation for this moment with a ban on gun shows at the Orange County Fairgrounds.

Today, I am proud to announce that California will become the first in the nation to enact

a total ban statewide.”26

22 Id. at ¶ 142.

23 The entire text of Cal. Penal Code § 27573 is as follows:

(a) A state officer or employee, or operator, lessee, or licensee of any state

property, shall not contract for, authorize, or allow the sale of any firearm, firearm

precursor part, or ammunition on state property or in the buildings that sit on state

property or property otherwise owned, leased, occupied, or operated by the state.

(b) This section does not apply to any of the following:

(1) A gun buyback event held by a law enforcement agency.

(2) The sale of a firearm by a public administrator, public conservator,

or public guardian within the course of their duties.

(3) The sale of a firearm, firearm precursor part, or ammunition on state

property that occurs pursuant to a contract that was entered into before

January 1, 2023.

(4) The purchase of firearms, firearm precursor parts, or ammunition

on state property by a law enforcement agency in the course of its regular

duties.

(5) The sale or purchase of a firearm pursuant to subdivision (b) or (c)

of Section 10334 of the Public Contract Code.

24 Amended Complaint ¶ 146.

25 Id. at ¶ 148.

26 Id. at ¶ 149.

Crossroads was unable to contract for a gun show for 2021. Instead, Defendant

32nd District Agricultural Association (the “32nd DAA”) informed Plaintiffs that it

would revisit the issue again in January 2022, after SB 264 went into effect.27 Since the

passage of SB 264, Plaintiffs have been unable to use the Orange County Fairgrounds as a

venue for gun shows, even though Crossroads claims that it offered to hold events

without the sale of firearms, ammunition, or precursor parts.28 SB 915 has similarly

prevented Plaintiffs from holding gun shows at any other state-owned facilities in

California.29

B. Procedural History

Plaintiffs filed their initial Complaint in August 2022 and amended their pleading

November 2022, asserting the following seven claims for relief:

 Violation of Right to Free Speech Under U.S. Const., amend. I, 42 U.S.C. § 1983;

 Violation of Right to Free Speech Under U.S. Const., amend. I, Mixed Political—

Commercial, 42 U.S.C. § 1983;

 Violation of Right to Commercial Speech Under U.S. Const., amend. I, 42 U.S.C.

§ 1983;

 Prior Restraint on Right of Free Speech Under U.S. Const., amend. I, 42 U.S.C.

§ 1983;

 Violation of Right to Assembly and Association Under U.S. Const., amend. I, 42

U.S.C. § 1983;

 Violation of the Right to Equal Protection Under U.S. Const., amend. XIV, 42

U.S.C. § 1983;

 Violation of Right to Keep and Bear Arms Under U.S. Const., amend. II, 42

U.S.C. § 1983.30

That same month, Plaintiffs filed the instant Motion for a preliminary injunction.

After reviewing the parties’ initial papers, the Court ordered two rounds of supplemental

briefing concerning Plaintiffs’ Second Amendment claim.31

27 Id. at ¶ 162.

28 Id. at ¶¶ 165 & 166.

29 Id. at ¶ 166.

30 See id.

31 See Order for Suppl. Briefing Regarding the Motion [ECF No. 25]; Order for Add’l

Suppl. Briefing Regarding the Motion [ECF No. 28].

III. LEGAL STANDARD

“A preliminary injunction is an extraordinary and drastic remedy. . .; it is never

awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted).

An injunction is binding only on parties to the action, their officers, agents, servants,

employees, and attorneys and those “in active concert or participation” with them.

Fed. R. Civ. P. 65(d)(2).

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In

the Ninth Circuit, “serious questions going to the merits and a balance of hardships that

tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long

as the plaintiff also shows that there is a likelihood of irreparable injury and that the

injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,

1135 (9th Cir. 2011) (internal quotations omitted).

IV. ANALYSIS

A. Request for Judicial Notice

Plaintiffs and Defendants submit separate requests for judicial notice with their

respective papers. Plaintiffs request judicial notice of 25 public documents, consisting of

legislative history pertaining to the two state bills, as well as both federal and state

government studies concerning gun violence.32 Defendants request judicial notice of four

publicly filed documents relating to a case styled as B&L Prods. v. Newsom, Case

No. 21-cv-1718, which is pending in the Southern District of California.33

Rule 201 of the Federal Rules of Evidence permits judicial notice of facts that are

“not subject to reasonable dispute” because they “can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.”

Fed. R. Evid. 201(b). Such facts include “matters of public record.” Intri-Plex Techs.,

Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). Additionally, “[t]he court

may judicially notice a fact that is not subject to reasonable dispute because it . . . can be

accurately and readily determined from sources whose accuracy cannot reasonably be

32 See Pls.’ Request for Judicial Notice in Supp. of the Motion (“Plaintiffs’ RJN”) [ECF

No. 21-2].

33 See State Defs.’ Request for Judicial Notice in Supp. of Opp’n to the Motion [ECF

No. 22-2].

questioned.” Fed. R. Evid. 201(b)(c). In the Ninth Circuit, “court filings and other

matters of public record” are sources whose accuracy cannot reasonably be questioned

for the purposes of Rule 201. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,

746 n.6 (9th Cir. 2006). “The court . . . must take judicial notice if a party requests it and

the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2).

Accordingly, to the extent that the Court relies upon the documents provided by Plaintiffs

and Defendants, both parties’ requests for judicial notice are GRANTED.34

B. Preliminary Injunction Factors

1. Likelihood of Success on the Merits

a. Plaintiffs’ First Amendment Claims

Plaintiffs move for a preliminary injunction based upon several theories under the

First Amendment. First, Plaintiffs assert that California’s ban on the sale of firearms at

state-owned fairgrounds is “a thinly veiled” pretextual attack on the gun shows

themselves and that the laws are an unconstitutional censorship of content and

viewpoints.35 Second, Plaintiffs claim that the Orange County Fairgrounds is a public

forum and that the state’s restriction on gun sales at gun shows acts as a content-based

speech prohibition.36 Finally, Plaintiffs argue that the ban on gun sales at the Orange

County Fairgrounds serves as a restriction on commercial speech and that, even with

diminished First Amendment protections, the enforcement of the state statutes in

question should still be enjoined.

“In recognition of the longstanding principle that courts should avoid ‘passing on

questions of constitutionality . . . unless such adjudication is unavoidable,’” City & Cnty.

of San Francisco v. Garland, 42 F.4th 1078, 1089 (9th Cir. 2022) (citing Spector Motor Serv.

v. McLaughlin, 323 U.S. 101, 105 (1944)), the Court will begin by addressing Plaintiffs’

First Amendment claims on the narrower commercial speech restriction. See also

Ashwander v. TVA, 297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring) (counseling

that a court should neither “anticipate a question of constitutional law in advance of the

necessity of deciding it” nor “formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied”).

34 Plaintiffs object to Defendants’ expert declarations in their Second Supplemental Brief.

See Plaintiffs’ Evidentiary Objections. Because those expert declarations are relevant to the

supplemental briefing that the Court requested, Plaintiffs’ objections are OVERRULED, and

Plaintiffs’ accompanying motion to strike is DENIED.

35 Motion 7:5-10.

36 Id. at 10:25-11:10.

i. Commercial Speech

“The Fourteenth Amendment, by incorporating the First Amendment and

applying it to the States, precludes state and local governments from ‘abridging the

freedom of speech.’” Nordyke v. Santa Clara Cnty., 110 F.3d 707, 710 (9th Cir. 1997)

(“Nordyke 1997”). Defendants claim that SB 264 and SB 915 do not abridge anyone’s

freedom of speech, because those laws “prohibit the sale of firearms, firearm precursor

parts, and ammunition at the Fairgrounds and state property, respectively, and thus an

offer to make such sales, assuming that it does not concern a lawful activity, is not

protected commercial speech.”37

Commercial speech is defined as speech that “does no more than propose a

commercial transaction.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748, 762 (1976) (Stewart, J., concurring); see also Hunt v. City of Los

Angeles, 638 F.3d 703 (9th Cir. 2011) (holding that when “speech is directed to [a seller’s]

products and why a consumer should buy them,” that speech “clearly propose[s] a

commercial transaction”). Additionally, when evaluating the sale of firearms within the

gun show context, the Ninth Circuit has held that “[a]n offer to sell firearms or

ammunition is speech that ‘does no more than propose a commercial transaction.’ Such

an offer is, therefore, commercial speech within the meaning of the First Amendment.”

Nordyke 1997, 110 F.3d at 710.

First Amendment protections for commercial speech are not unlimited, however;

they are governed by the test that the Supreme Court articulated in Cent. Hudson Gas &

Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980):

In commercial speech cases, then, a four-part analysis has developed. At the

outset, we must determine whether the expression is protected by the First

Amendment. For commercial speech to come within that provision, it at

least must concern lawful activity and not be misleading. Next, we ask

whether the asserted governmental interest is substantial. If both inquiries

yield positive answers, we must determine whether the regulation directly

advances the governmental interest asserted, and whether it is not more

extensive than is necessary to serve that interest.

Id. at 566.

The Ninth Circuit has previously analyzed commercial speech protections for gun

shows. In Nordyke 1997, the Ninth Circuit heard an appeal from a preliminary injunction

preventing the enforcement of an addendum to the lease between the Santa Clara County

37 Opposition 16:2-6.

Fairgrounds Management Corporation (the “SCCFMC”) and the owner of the

Fairgrounds, Santa Clara County. The addendum to the lease prohibited any gun shows

from being held on the fairgrounds. Nordyke 1997, 110 F.3d at 708. Similar to the instant

action, there Santa Clara County informed the SCCFMC that the county did not intend

to ban the “exchange of information or ideas about guns, gun safety, or the display of

guns for historical or educational purposes,” but it prohibited only the “selling, offering

for sale, supplying, delivering, or giving possession or control of firearms or ammunition

to any other person at a gun show at the fairgrounds.” Id. at 708-09. The ban extended

to “any act initiating any of the foregoing transactions with the intent of completing them

at a later date.” Id. at 709.

The Nordykes—plaintiffs/appellees in Nordyke 1997—were gun show promoters

who had previously operated at the Santa Clara Fairgrounds. The Northern District of

California granted the Nordykes’ request for a preliminary injunction because the

addendum to the lease violated the Nordykes’ First Amendment rights. See id. The

Ninth Circuit concluded that “the sale of firearms at a gun show at the Fairgrounds,

which is not proscribed by federal or state law, is ‘lawful activity,’ because the County has

not enacted an ordinance to prohibit such sales.” Id. at 710. In a footnote, the Ninth

Circuit explained that “we are assuming, without deciding, for the purposes of this

analysis, that the County has the power to enact such an ordinance. However, we

acknowledge that, under established preemption principles, the County may in fact lack

that power.” Id. at 710 n.3.

The Nordykes’ legal saga continued over the next two decades, when those

plaintiffs subsequently challenged an Alameda County ordinance that prohibited the

possession of firearms on county property, which would make gun shows unprofitable.

See Nordyke v. King, 319 F.3d 1185, 1188 (9th Cir. 2003) (“Nordyke 2003”); see also

Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) (detailing the action’s 12-year history

involving Alameda County). In Nordyke 2003, the Ninth Circuit reaffirmed that the lease

addendum in Nordyke 1997 was “an unconstitutional infringement of commercial free

speech rights” because it “prohibited offers to sell guns,” and the Ninth Circuit

instructed that “[in] cases such as Nordyke [1997], what renders the law unconstitutional

is the interference with speech itself, not the hindering of actions (e.g., sales) that are not

speech.” Nordyke 2003, 319 F.3d at 1191. The Ninth Circuit upheld Alameda County’s

ban on firearm possession because “possession itself is not commercial speech,” and, as

such, the ordinance did “not infringe Nordyke’s right to free commercial speech.” Id.

Defendants here maintain that the instant action is distinguishable from Nordyke

1997 because SB 264 and SB 915 statutorily ban gun sales on state fairgrounds, as opposed

to the addendum in Nordyke 1997, which modified the county’s lease. Whereas the

underlying gun sales were a lawful activity in Nordyke 1997—and they were therefore

protected as commercial speech—now the State of California has passed laws prohibiting

those sales as unlawful, thereby justifying the commercial speech restriction under

Central Hudson.38 This circular reasoning is illogical and disingenuous, however, because

a law’s existence cannot be the only source of its constitutional validity. See Friedman v.

City of Highland Park, Illinois, 784 F.3d 406, 409 (7th Cir. 2015) (“[I]t would be absurd to

say that the reason why a particular weapon can be banned is that there is a statute

banning it.”).

In order to withstand Plaintiffs’ instant challenge, the statutes at issue must stand

on their own constitutional soundness. To assess whether those statutes infringe

Plaintiffs’ First Amendment rights, the Court must begin by examining the text of SB 264

and SB 915. See Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1749 (2020) (“This

Court has explained many times over many years that, when the meaning of the statute’s

terms is plain, our job is at an end.”).

(a) Textual Analysis of SB 264 and SB 915

SB 264 amended California law to provide that “an officer, employee, operator,

lessee, or licensee of the” 32nd DAA “shall not contract for, authorize, or allow the sale

of any firearm, firearm precursor part, or ammunition on the property” of the Orange

County Fairgrounds. Cal. Penal Code § 27575 (emphasis added). Additionally, SB 915

amended California law so that “a state officer or employee, or operator, lessee, or

licensee of any state property, shall not contract for, authorize, or allow the sale of any

firearm, firearm precursor part, or ammunition on state property.” Cal. Penal Code

§ 27573 (emphasis added).

In both statutes, the operative term “sale” controls whether commercial speech

protections apply to Plaintiffs’ gun shows. Webster’s Dictionary defines “sale” as “the

act of selling; specifically: the transfer of ownership of and title to property from one

person to another for a price.”39 Black’s Law Dictionary defines “sale” as:

1. The transfer of property or title for a price. See UCC

§ 2-106(1).

2. The agreement by which such a transfer takes place. • The

four elements are (1) parties competent to contract, (2) mutual assent, (3) a

thing capable of being transferred, and (4) a price in money paid or

promised.40

38 Id. at 16:2-6.

39 “Sale.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-

webster.com/dictionary/sale. Accessed Oct. 23, 2023.

40 SALE, Black’s Law Dictionary (11th ed. 2019).

For a sale to occur, the participants must engage in commercial speech in which

the seller informs the buyer about its product, the participants engage in a negotiation,

and they set a price and other terms for the exchange. See Hunt, 638 F.3d at 716. Because

“[c]ommercial speech is ‘usually defined as speech that does not more than propose a

commercial transaction,’” legislation that restricts sales also restricts commercial speech.

Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021) (citing United States v.

United Foods, Inc., 533 U.S. 405, 409 (2001)). Although Defendants are correct that the

mere “act of exchanging money for a gun is not ‘speech’ within the meaning of the First

Amendment,” Nordyke 1997, 110 F.3d at 710, the challenged statutes implicate

commercial speech by restricting the sale of otherwise legal firearms at the Orange

County Fairgrounds.41 More specifically, at the hearing Defendants stated that SB 264

and SB 915 prevent the “consummation” of sales at gun shows and that offers and

acceptances of firearm sales at gun shows were prohibited under the statues—all of which

directly implicate commercial speech.42

Even assuming that merely exchanging money for a firearm is not speech, the sales

regulated by those statutes do not involve the physical exchange of a weapon. Before the

enactment of SB 264 and SB 915, customers at gun shows in California could negotiate

and contract for a sale with firearm vendors, but those customers were still required to

comply with California’s 10-day waiting period and to retrieve the purchased firearm at a

physical store not located on the fairgrounds.43 See Cal. Penal Code § 26805. Because

sales made at California gun shows must be completed both temporally and physically

removed from the show itself, SB 264 and SB 915 exceed the mere prohibition of

“exchanging money for a gun.” Instead, the Court concludes that the challenged statutes

unmistakably regulate commercial speech.

Further, the statutes in question do not merely regulate the sale of firearms; they

also prohibit state officers, employees, operators, lessees, or licensees from

“contract[ing], authoriz[ing], or allow[ing]” the sale of firearms at the Orange County

Fairgrounds or on state property. Webster’s Dictionary defines “contract” as “a binding

agreement between two or more persons or parties; especially: one legally enforceable”;44

“authorize” is defined as “to endorse, empower, justify, or permit by or as if by some

recognized or proper authority (such as custom, evidence, personal right, or regulating

41 Opposition 10:18-24.

42 April 6, 2023, Hr’g Tr. (the “Hearing Transcript”) [ECF No. 40] 6:5-6 & 9:21-10:1.

43 Amended Complaint ¶ 55.

44 “Contract.” Merriam-Webster.com Dictionary, Merriam-Webster,

https://www.merriam-webster.com/dictionary/contract. Accessed Oct. 23, 2023.

power));45 and “allow” is defined as “permit” or “to fail to restrain or prevent.”46 The

common thread behind these three words is that they require actions beyond “the act of

exchanging money for a gun,” Nordyke 1997, 110 F.3d at 710, and implicate commercial

speech when they prohibit the sale of all firearm-related goods on state property.

(b) Central Hudson Test

Having concluded that SB 264 and SB 915 restrict commercial speech, the Court

now applies intermediate scrutiny under the Supreme Court’s test in Central Hudson. See

Retail Digital Network, LLC v. Prieto, 861 F.3d 839 (9th Cir. 2017) (upholding application

of intermediate scrutiny through the Central Hudson test). As described above, the sale of

lawful firearms involves commercial speech protected by the First Amendment, thereby

implicating the “lawful” portion of the Central Hudson test. See Nordyke 1997, 110 F.3d

at 712 (“The ‘lawful’ portion of the Central Hudson test presents no difficulty in this

case.”). Here, much like in Nordyke 1997, the Court will not address whether it is within

the power of the state to restrict the sale of certain classes or types of weapons at gun

shows. Assuming that the weapons that Plaintiffs sell conform with state and federal law,

the sale of those weapons constitutes a lawful activity for the purposes of commercial

speech. See id. at 710 n.3.

Next, the Court concludes that Defendants’ “asserted governmental interest is

substantial.” Central Hudson, 447 U.S. at 566. In their Opposition, Defendants argue

that “there is a ‘substantial interest in protecting the people from those who acquire guns

illegally and use them to commit crimes resulting in injury or death of their victims.’”47

Although Defendants acknowledge that the state interest pertains only to illegally

acquired firearms, California firearm regulations aimed at addressing illegal sales apply

equally to gun shows and to brick-and-mortar stores.48 See Cal. Penal Code § 26805.

Under Central Hudson, then, the question before the Court is whether SB 264 and SB 915

address the state’s interest in prohibiting illegal firearm sales.

Because SB 264 and SB 915 prohibit all sales of otherwise lawful firearms at the

Orange County Fairgrounds and at other gun shows held on state-owned property, the

statutes do not “directly advance[] the governmental interest asserted.” Central Hudson,

447 U.S. at 556. “By banning gun sales only at the Fairgrounds,” California “achieves

45 “Authorize.” Merriam-Webster.com Dictionary, Merriam-Webster,

https://www.merriam-webster.com/dictionary/authorize. Accessed Oct. 23, 2023.

46 “Allow.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-

webster.com/dictionary/allow. Accessed Oct. 23, 2023.

47 Opposition 16:9-11 (citing Nordyke 1997, 110 F.3d at 713) (emphasis added).

48 Amended Complaint ¶ 55.

nothing in the way of curtailing the overall possession of guns in the County,” let alone

illegal firearms. Nordyke 1997, 110 F.3d at 713 (citing Nordyke v. Cnty. of Santa Clara, 933

F. Supp. 903, 909 (N.D. Cal. 1996)).

Even if the Court were to conclude that banning lawful firearm sales at the Orange

County Fairgrounds directly advances California’s interest in stopping illegal weapon

sales, the regulation would still be “more extensive than is necessary to serve that

interest.” Central Hudson, 447 U.S. at 566. California’s interest in stopping crimes

committed with illegal weapons, “as important as it is, cannot justify” prohibiting the

complete sale of lawful firearms at gun shows, id. at 570, especially when those same

firearms are available for purchase at regular gun stores—and, in fact, the firearms

purchased at gun shows must be retrieved at brick-and-mortar gun stores. See

Cal. Penal Code § 26805.

Plaintiffs contend that Defendants enacted SB 264 and SB 915 because of a

pretextual animus toward “gun culture” and those who attend gun shows,49 but the

Court does not need to infer bad faith by Defendants to issue a preliminary injunction.

Although “[t]here is no doubt that the City has a substantial interest in safeguarding its

citizens against violence,” Edwards v. City of Coeur d’Alene, 262 F.3d 856, 863 (9th Cir.

2001), “even the most legitimate goal may not be advanced in a constitutionally

impermissible manner,” Carey v. Brown, 447 U.S. 455, 464–65 (1980).

A previous case in the Southern District of California is instructive. In B&L

Prods., Inc. v. 22nd Dist. Agric. Ass’n, 394 F. Supp. 3d 1226 (S.D. Cal. 2019), the same

Crossroads Plaintiff in the instant action commenced a case against the 22nd District

Agricultural Association (the “22nd DAA”) because of a one-year moratorium on gun

shows at the Del Mar Fairgrounds. Although the gun show moratorium at the Del Mar

Fairgrounds was broader than the prohibition on gun sales at issue here, the court held

that “[a] general fear that people attending gun shows will violate state and local laws

about gun possession or even commit acts of gun violence in the community upon leaving

the show cannot justify the Moratorium.” Id. at 1248.

Similar to the action involving the 22nd DAA, Defendants’ attempt here to use the

legislative history of SB 264 and SB 915 in support of California’s asserted interest in

stopping illegal firearm sales fails to survive intermediate scrutiny.50 The legislative

findings of SB 264 do not identify any specific harms at the Orange County Fairgrounds,

nor do they indicate that gun shows present any particular risk that exceeds those of

49 Motion 16:9-11.

50 Opposition 16:12-16.

lawful gun sales accomplished at brick-and-mortar stores.51 Likewise, the legislative

findings of SB 915 do not examine the Orange County Fairgrounds—or any other

California gun shows—but, instead, they generalize the risks from other gun shows

conducted across the United States, even though the legislative findings acknowledge that

existing California law applies equally to all gun shows in the state.52 Further

demonstrating the disconnect between the challenged statutes and the state’s purported

goals, one of the studies upon which the legislative history relies states that “in

California, where both gun shows themselves and gun commerce generally are regulated,

sales at gun shows are not a risk factor among licensed retailers for disproportionate sales

of crime guns.”53 Accordingly, under intermediate scrutiny and the Central Hudson test,

SB 264 and SB 915 act an as unconstitutional infringement on commercial speech. The

Court therefore concludes that Plaintiffs will likely prevail on that First Amendment

claim.

ii. Limited Public Forum

In addition to their commercial speech argument, Plaintiffs claim that Defendants

have unlawfully curtailed Plaintiffs’ First Amended rights by prohibiting Plaintiffs’ access

to a public forum.54

The Orange County Fairgrounds is a state-owned property maintained for public

use, and it hosts all manner of expressive events, including concerts, festivals, and fairs.55

The 32nd DAA actively promotes public use of the property, which hosts more than 150

events that attract approximately 4.3 million visitors annually.56

Plaintiffs further allege that the 32nd DAA has refused to contract with Plaintiffs,

even if Plaintiffs agree to exclude firearm vendors.57 Plaintiffs claim that they offered to

host the 2022 gun show without the sale of firearms, ammunition, or precursor parts—in

compliance with SB 264—but that the 32nd DAA nevertheless refused to contract with

Plaintiffs. Discovery may be necessary for Plaintiffs to establish why the 32nd DAA

refused to allow Plaintiffs to use the Orange County Fairgrounds, but, in any event,

51 Amended Complaint, Ex. 11 [ECF No. 19-11] 3.

52 Id., Ex. 16 [ECF No. 19-16] 2-4.

53 Decl. of Anna Barvir in Supp. of the Motion (the “Barvir Declaration”) [ECF No. 21-3],

Ex. 33 at 33 (emphasis added).

54 Motion 10:21-24.

55 Id. at 10:26-28; Barvir Declaration, Ex. 28.

56 Barvir Declaration, Ex. 29 at 2.

57 Motion 10:13-20; Decl. of Tracy Olcott in Supp. of the Motion (the “Olcott

Declaration”) [ECF No. 21-5] ¶¶ 7-10.

Plaintiffs’ allegations exceed mere commercial speech concerns and extend to expressive

conduct.

The Ninth Circuit instructs that in assessing a First Amendment claim for speech

on government property, “we must identify the nature of the forum, because the extent

to which the Government may limit access depends on whether the forum is public or

nonpublic.” Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (citing Cornelius

v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797 (1985)). “[T]he two main

categories of fora are public (where strict scrutiny applies) and non-public (where a more

lenient ‘reasonableness’ standard governs).” Id.

Specific to the Ninth Circuit, “a limited public forum is a sub-category of a

designated public forum that ‘refer[s] to a type of nonpublic forum that the government

has intentionally opened to certain groups or to certain topics.’” Id. (citing DiLoreto v.

Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999)). “In a limited

public forum, restrictions that are viewpoint neutral and reasonable in light of the purpose

served by the forum are permissible.” Id. (citing Rosenberger v. Rector & Visitors of the

Univ. of Virginia, 515 U.S. 819, 829 (1995)).

Here, the parties agree that the Orange County Fairgrounds is at least a limited

public forum.58 See also Heffron v. Int’l Soc. For Krishna Consciousness, Inc., 452 U.S. 640

(1981) (holding that “[t]he Minnesota State Fair is a limited public forum in that it exists

to provide a means for a great number of exhibitors temporarily to present their products

or views, be they commercial, religious, or political, to a large number of people in an

efficient fashion”). In a limited public forum, any restrictions on participants “must be

reasonable and viewpoint neutral.” Christian Legal Soc. v. Martinez, 561 U.S. 661, 679

(2010).

(a) Reasonableness Standard

“A subject-matter or speaker-based exclusion must meet two requirements to be

reasonable in a limited public forum.” Seattle Mideast Awareness Campaign v. King Cnty.,

781 F.3d 489, 499 (9th Cir. 2015). “First, it must be ‘reasonable in light of the purpose

served by the forum.’” Id. (citing Cornelius, 473 U.S. at 806). “This requirement

focuses on whether the exclusion is consistent with ‘limiting [the] forum to activities

compatible with the intended purpose of the property.’” Id. (citing Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)). “Second, exclusions must be based

on a standard that is definite and objective. That requirement has been developed most

prominently in the context of time, place, and manner restrictions in traditional public

58 Opposition 13:27-14:1; Reply 4:22-23.

forums, . . . but it applies with equal force in this context.” Id. (internal citations

omitted).

Insofar as SB 264 and SB 915 impose restrictions on commercial speech by banning

the sale of firearms, those restrictions are unreasonable in the context of the Orange

County Fairgrounds. Until California’s legislature enacted SB 264 and SB 915,

Crossroads had continually, for the past three decades, promoted gun shows at the

Orange County Fairgrounds.59 Additionally, as a limited public forum, the Orange

County Fairgrounds has hosted a wide variety of vendors for other events, including auto

shows, home shows, and beer and wine shows, all of which are consistent with

commercial activities and similar to the events in which Plaintiffs are interested.60 While

limited public forums may restrict the type of hosted events to those “consistent with

preserving the property for the purpose to which it is dedicated,” DiLoreto v. Downey

Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 967 (9th Cir. 1999), Defendants cannot rely

on this exception because of the long history of gun shows at the Orange County

Fairgrounds. See Martinez, 561 U.S. at 685 (“Once it has opened a limited public forum,

. . . the State must respect the lawful boundaries it has itself set.”) (internal quotation

marks and brackets omitted).

Defendants contend that SB 264 and SB 915 are sufficiently “definite and

objective” within the framework of a limited public forum analysis, because those

regulations “enact a reasonable restriction on illegal firearm, firearm precursor part, and

ammunition transactions at gun shows for the purpose of mitigating gun violence.”61 As

previously stated in the Court’s analysis of commercial speech, however, the statutes are

overly broad, and they do not reasonably achieve California’s interest in restricting illegal

firearm-related crime, because the statutes ban lawful firearm sales that would otherwise

be allowed at brick-and-mortar gun stores. The Ninth Circuit also instructs that

reasonable speech restrictions must be supported by an independent review of the record,

Amalgamated Transit Union Loc. 1015 v. Spokane Transit Auth., 929 F.3d 643, 651 (9th Cir.

2019), and the challenged statutes fail on that point because their legislative histories do

not evaluate the risk of illegal firearm sales at the Orange County Fairgrounds or at

California-based gun shows, but, instead, they generalize harms from gun shows

conducted in other states.62 As such, SB 264 and SB 915 do not enact reasonable subject-

59 Amended Complaint ¶ 11.

60 Motion 14:5-8.

61 Opposition 15:6-8 (emphasis added).

62 Plaintiffs’ RJN, Ex. 2 at 3; see also Barvir Declaration, Ex. 34 at 33.

matter restrictions consistent with the First Amendment protections afforded to limited

public forums.

(b) Viewpoint Neutral Standard

“In addition to being reasonable, the [state]’s exclusion of speech from a limited

public forum must be viewpoint neutral.” Seattle Mideast Awareness Campaign, 781 F.3d

at 501. “Discrimination against speech because of its message is presumed to be

unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828

(1995). In their Opposition to the Motion, Defendants claim that SB 264 and SB 915 are

viewpoint neutral because “they apply to any event on the Fairgrounds and all state

property, not just to gun shows. Cal. Penal Code §§ 27573, 27575.”63

“Despite the neutral content of a statute on its face, however, a statute as-applied

may be constitutionally infirm if its enforcement is based on viewpoint discrimination.”

Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d 1142, 1158 (9th Cir. 2007). During

the hearing on the Motion, Defendants conceded that only Plaintiffs and similarly

situated gun show vendors are affected by the challenged statutes, because no other

tradeshows deal in firearms.64 Although a regulation may be deemed neutral “even if it

has an incidental effect on some speakers or messages but not others,” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989), “‘viewpoint discrimination’ occurs when the

government prohibits ‘speech by particular speakers,’ thereby suppressing a particular

view about a subject.” Rosenbaum, 484 F.3d at 1158 (citing Giebel v. Sylvester, 244 F.3d

1182, 1188 (9th Cir. 2001)).

Here, the Court finds sufficient evidence that SB 264 and SB 915 have a viewpoint-

discriminatory purpose. Legislative history shows that the goal of the two statutes is to

end gun shows in California,65 and, while the opinions and statements of legislators are

not dispositive of viewpoint discrimination, see Dobbs v. Jackson Women’s Heath Org., 142

S. Ct. 2228, 2255 (2022) (“This Court has long disfavored arguments based on alleged

legislative motives.”), those statements are circumstantial evidence that the statutes

disfavor the lawful commercial speech of firearm vendors. See Perry, 460 U.S. at 46

(holding that governments may not “suppress expression merely because public officials

oppose the speaker’s view”). In view of the above authorities and evidence, as well as the

Orange County Fairgrounds’ status as a limited public forum, the Court concludes that

63 Opposition 15:4-6.

64 Hearing Transcript 25:15-26:12.

65 See Amended Complaint ¶¶ 131, 137, 138, 141-144, 149, & 152.

Defendants are engaging in viewpoint discrimination by prohibiting otherwise-lawful gun

shows.

iii. Expressive Conduct

The Court must evaluate Plaintiffs’ allegation that the 32nd DAA has refused to

permit gun shows that exclude firearm-related sales.66 Plaintiffs assert not only that

Defendants have used SB 264 and SB 915 to ban the sale of firearms, but also that

California legislators have threatened the 32nd DAA’s board members with personal

liability if any future gun shows are approved.67 The statutes at issue prohibit only the

sale of firearms, but Plaintiffs contend that those laws serve as a pretextual means for

banning all aspects of “gun culture” practiced and exhibited at gun shows.68

Expressive conduct “is constitutionally protected only if it is ‘sufficiently imbued

with elements of communication[,]’” meaning “‘[a]n intent to convey a particularized

message [is] present, and . . . the likelihood [is] great that the message w[ill] be

understood by those who view [ ] it[.]’” Anderson v. City of Hermosa Beach, 621 F.3d

1051, 1058 (9th Cir. 2010) (citing Spence v. Washington, 418 U.S. 405, 409-11 (1974)).

Defendants fail to address in their Opposition why the 32nd DAA refused to contract

with Plaintiffs to use the Orange County Fairgrounds, or whether groups that exclude

firearm vendors would be eligible to host gun shows. See Hartranft v. Encore Cap. Grp.,

Inc., 543 3d 893, 913 (S.D. Cal. 2021) (“where a non-moving party fails to address an

argument raised by the moving party in the opposition brief, the Court may consider any

arguments unaddressed by the non-moving party as waived”). Accordingly, the Court

concludes that Plaintiffs will likely succeed on the merits by showing that the 32nd

DAA’s actions infringe upon speech and expressive conduct by refusing to permit gun

shows that exclude firearm vendors and sales.

b. Plaintiffs’ Second Amendment Claim

Plaintiffs contend that California’s prohibition on firearm sales at the Orange

County Fairgrounds infringes their Second Amendment rights and that “the State’s ban

on selling firearms, ammunition, and firearm parts implicates keeping and bearing arms

under the Second Amendment.”69 Defendants oppose the Motion by arguing that

66 Motion 10:13-17; Amended Complaint ¶ 166.

67 Amended Complaint ¶ 161, 163, & 164.

68 Motion 7:3-9.

69 Id. at 22:23-28.

SB 264 and SB 915 do not meaningfully restrict Plaintiffs’ access to firearms, and,

therefore, those statutes do not infringe Plaintiffs’ Second Amendment rights.70

The Second Amendment provides: “A well regulated Militia, being necessary to

the security of a free State, the right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. The Supreme Court has repeatedly held that “the

Second and Fourteenth Amendments protect an individual right to keep and bear arms

for self-defense.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2125

(2022); see also McDonald v. City of Chicago, Ill., 561 U.S. 742, 778 (2010) (“[I]t is clear

that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep

and bear arms among those fundamental rights necessary to our system of ordered

liberty.”); District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (“There seems to us no

doubt, on the basis of both text and history, that the Second Amendment conferred an

individual right to keep and bear arms.”).

In Bruen, the Supreme Court instructed lower courts to employ a two-step analysis

when considering Second Amendment claims. First, “when the Second Amendment’s

plain text covers an individual’s conduct, the Constitution presumptively protects that

conduct.” Bruen, 142 S. Ct. at 2126. When government regulation implicates an

individual’s Second Amendment rights, “the government may not simply posit that the

regulation promotes an important interest,” but, instead, “the government must

demonstrate that the regulation is consistent with this Nation’s historical tradition of

firearm regulation.” Id. The Court will address each step in turn.

i. Bruen Step-One Analysis

As a preliminary matter, evolving Supreme Court jurisprudence regarding the

Second Amendment has overturned much of the Ninth Circuit’s precedent relating to

restrictions on gun shows. Whereas the Nordyke line of cases may be instructive

regarding gun shows and commercial speech, the Ninth Circuit’s previous interpretation

of the Second Amendment—as guaranteeing only “a collective right for the states to

maintain an armed militia” and “offer[ing] no protection for the individual’s right to bear

arms,” Nordyke 2003, 319 F.3d at 1191 (emphasis in original)—has been unambiguously

overturned by Heller and its progeny.

After the decisions in Heller and McDonald, Alameda County was compelled in

Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) (“Nordyke 2012”), to revise its

interpretation of the ordinance at issue there; instead of prohibiting the possession of

firearms at gun shows, vendors were required to secure firearms “to prevent

70 Opposition 21:13-24.

unauthorized use” and to attach cables to firearm fixtures to display tables—“much as

cell phones, cameras, and other attractive items routinely are displayed for sale.” Id. at

1044.

The question now before the Court is whether banning the sale of firearms at gun

shows at the Orange County Fairgrounds, and state-wide, restricts an individual’s rights

under the Second Amendment. Bruen, 142 S. Ct. at 2126. Because the Second

Amendment protects the individual’s right to keep and bear arms in self-defense, it also

must protect the attendant rights of gun ownership that make keeping and bearing arms

meaningful. See Heller, 554 U.S. at 629 (striking down a ban on handguns, even though

the statute at issue permitted the ownership of other types of firearms); Jackson v. City &

Cnty. of San Francisco, 746 F.3d 953, 697 (9th Cir. 2014) (extending Second Amendment

rights to the purchase of ammunition, because “without bullets, the right to bear arms

would be meaningless”); Teixeira v. Cnty. of Alameda, 873 F.3d 670, 677 (9th Cir. 2017)

(en banc) (“[T]he core Second Amendment right to keep and bear arms for self-defense

‘wouldn’t mean much’ without the ability to acquire arms.”) (citing Heller, 554 U.S. at

617–18); Boland v. Bonta, 2023 WL 2588565, at *4 (C.D. Cal. Mar. 20, 2023) (granting a

preliminary injunction against a California law preventing plaintiffs from “purchas[ing]

state-of-the-art handguns for self-defense” because the restriction infringed Second

Amendment rights); Renna v. Bonta, 2023 WL 2846937 (S.D. Cal. April 3, 2023) (also

enjoining California laws imposing onerous safety regulations on the sale of new handgun

models).

Defendants’ main contention in their Opposition is that SB 264 and SB 915 do not

infringe Second Amendment rights because those statutes do not meaningfully restrict an

individual’s ability to acquire firearms.71 Defendants highlight Teixeira as controlling, in

which the Ninth Circuit held that “gun buyers have no right to have a gun store in a

particular location, at least as long as their access is not meaningfully constrained.”

Teixeira, 873 F.3d at 680.

In Teixeira, the Ninth Circuit heard an appeal from plaintiffs who wanted to open a

gun store in Alameda County, but who were denied a permit by the county because of

zoning restrictions. Id. at 673. Plaintiffs filed a Second Amendment action against the

county, and the Ninth Circuit held that a plaintiff “cannot state a Second Amendment

claim based solely on the ordinance’s restriction on his ability to sell firearms.” Id.

(emphasis in original). Although the Ninth Circuit declared that “[w]e need not define

the precise scope of any such acquisition right under the Second Amendment to resolve

71 Id. at 21:13-24.

this case”; “[w]hatever the scope of that right, Teixeira has failed to state a claim that the

ordinance impedes Alameda County residents from acquiring firearms.” Id. at 678.

Examining the Second Amendment’s protections for the acquisition of firearms,

the Teixeira court held that the plaintiffs did not adequately allege that “residents cannot

purchase firearms within the County as a whole, or within the unincorporated areas of the

County in particular.” Id. The Ninth Circuit reached that conclusion because there were

several other gun stores within the county at which residents could purchase firearms and

ammunition, including one gun store that was “600 feet away from the proposed site of

Teixeira’s planned store.” Id. at 679.

Teixeira did not provide a precise standard for what regulation of this type would

infringe an individual’s Second Amendment rights, but the Ninth Circuit did note that:

The closest Teixeira comes to stating a claim that his potential customers’

Second Amendment rights have been, or will be, infringed is his allegation

that the ordinance places “a restriction on convenient access to a

neighborhood gun store and the corollary burden of having to travel to other,

more remote locations to exercise their rights to acquire firearms and

ammunition in compliance with the state and federal laws.”

Id. (emphasis added). Although “the Second Amendment does not elevate convenience

and preference over all other considerations,” id. at 680, analyzing an individual’s ability

to acquire firearms is a starting point for assessing whether a prohibition on gun sales

infringes the Second Amendment.

In the instant action, Plaintiffs claim that before the enactment of SB 264 and

SB 915, Crossroads “was the largest vendor of gun show events in California and at the

Fairgrounds.”72 Those gun shows served as a “modern bazaar” and a “convention-like

setting” that, according to Plaintiffs, was an “incalculable benefit to the gun-buying

consumer”; gun shows “promote[d] public safety.”73

Furthermore, Plaintiffs maintain that gun shows are distinct from gun stores

because “[g]un shows are designed so that people will congregate, take their time, engage

each other and the vendors, and learn in a way that they do not otherwise engage.”74 In

addition to selling firearms and ammunition, gun shows “are a cultural marketplace[]”

where customers can not only learn about firearms and weapon safety, but also celebrate

72 Amended Complaint ¶ 11.

73 Id. at ¶ 61.

74 Id. at ¶ 65.

“gun culture” and the Second Amendment.75 Plaintiffs claim that gun show customers

are able to interact with experienced dealers in a way that “that they cannot get anywhere

else.” Although Defendants argue that plenty of brick-and-mortar gun stores exist

throughout both California and Orange County that sell firearms and ammunition,

Defendants fail to identify how the general experience of Plaintiffs’ gun shows can be

replicated by alternative forums in the area.76

At the hearing on the Motion, the parties agreed that there was no alternative gun

show in Orange County on private property and that Crossroads’ gun shows at the

Orange County Fairgrounds were the largest in the county.77 Plaintiffs also stated at the

hearing that no other suitable venue exists in Orange County for hosting a gun show at the

scale of Crossroads’ gun shows at the Orange County Fairgrounds.78 Therefore, the

instant action is distinct because there is no alternative gun show in Orange County, let

alone within “600 feet” of the Orange County Fairgrounds. Teixeira, 873 F.3d at 679.

Because SB 264 and SB 915 sufficiently implicate individual rights under the Second

Amendment, the Court will proceed to the second step of Bruen.

ii. Bruen Step-Two Analysis

In view of the Court’s determination that SB 264 and SB 915 burden conduct

protected by the Second Amendment, “the government must affirmatively prove that its

firearms regulation is part of the historical tradition that delimits the outer bounds of the

right to keep and bear arms.” Bruen, 142 S. Ct. at 2127. To satisfy that burden, the state

must show that “historical regulations impose a comparable burden on the right of armed

self-defense” and that “that burden is comparably justified” while “engaging in an

analogical inquiry.” Id. at 2133 (citing McDonald, 561 U.S. at 767).

Bruen instructs that “analogical reasoning under the Second Amendment is

neither a regulatory straightjacket nor a regulatory blank check” and that a “well-

established and representative historical analogue” need not be a “historical twin.” Id.

(emphasis in original). Furthermore, the Supreme Court directed that the “job of judges

is not to resolves historical questions in the abstract,” but to “resolve legal questions

presented in particular cases or controversies.” Id. at 2131 n.6 (emphasis in original).

“Courts are thus entitled to decide a case based on the historical record compiled by the

parties.” Id.

75 Id. at ¶¶ 66, 67, & 70.

76 Defendants’ Supplemental Brief 4:18-5:2.

77 Hearing Transcript 27:21-28:23.

78 Id. at 36:20-37:10.

Here, Defendants are unable to identify a historical analog to SB 264 or SB 915.

Although Defendants chose not to explore the history of gun shows in their papers, the

absence of a historical analog is unsurprising given the more modern appearance of gun

shows in the United States. Instead, Defendants identify general laws in which

governments regulated firearm-related possession and trade, and they reiterate their

argument that Plaintiffs did not have a “freestanding right to engage in firearms

commerce divorced from the citizenry’s ability to obtain and use guns.”79 Teixeira, 874

F.3d at 684. The Court will examine these arguments in turn.

(a) Laws Prohibiting Firearms on Public Property and

Sensitive Places

First, Defendants assert that “the challenged statutes were enacted under the

government’s well-established authority to set limits on the use of its property when it is

acting as a proprietor.”80 While Defendants are correct that the government possesses

rights that are similar to those of a private property owner when the government is acting

as proprietor of its land—and Defendants identify out-of-circuit authorities holding the

same,81 see GeorgiaCarry.org, Inc. v. U.S. Army Corps of Engineers, 212 F. Supp. 3d 1348,

1363 (N.D. Ga. 2016) (upholding the prohibition of firearms on U.S. Army Corps of

Engineers property)—Defendants miss the proverbial forest for the trees. Because

SB 264 and SB 915 concern the sale of firearms and firearm-related goods—and not the

possession of those items—that analysis collapses into the First Amendment’s limited

public forum doctrine and acceptable regulations of commercial speech. See Martinez,

561 U.S. at 685. Once the state has opened a public forum to gun shows and other

similarly situated vendors, the state may impose only restrictions that are viewpoint

neutral and reasonable. Id. at 679.

Looking next to historical restrictions on the right to possess firearms, Defendants

contend that “laws forbidding the carrying of firearms in sensitive places” are

“presumptively lawful” and outside the “scope of the Second Amendment.”82 Heller,

554 U.S. at 626-27 & n.26. Those same restrictions extend to some public spaces and

large public gatherings, and Defendants cite several laws from the 1800s that included

ballrooms, parks, and universities.83 Although Defendants concede that “these historical

79 Defendants’ Supplemental Brief 7:4-16.

80 Defendants’ Supplemental Reply 3:16-18.

81 Id. at 4:4-17.

82 Defendants’ Supplemental Brief 11:15-17.

83 Id. at 11:26-28, 12:2-3, 12:5-7, & 12:26-27.

analogues regulated the carrying, not the sale, of firearms in sensitive places,”84

Defendants posit that “if anything, that means that such laws were more, not less,

restrictive than SB 264 and SB915.”85 In further supplemental briefing, Defendants also

highlight historical firearm prohibitions at state legislatures, courthouses, places of

worship, and public schools.86

Those historical analogues are unhelpful, though, because there is no historical

basis for a public space such as the Orange County Fairgrounds to be designated as a

sensitive space. To the contrary, Plaintiffs hosted gun shows at the Orange County

Fairgrounds for the past 30 years, and the Orange County Fairgrounds advertises itself as

a commercial forum for a wide variety of vendors.87 Furthermore, Defendants attempt to

flip Bruen on its head by asserting that “there is no historical right under the Second

Amendment to sell firearms and related products on state property.”88 While that may

be true, government defendants may not shift the burden to plaintiffs under Bruen when

attempting to identify historical analogs for firearm regulations. See Bruen, 142 S. Ct. at

2130. Instead, it is the state that bears the burden of identifying a historical analog to its

proposed firearm regulation. Here, Defendants fail to satisfy that burden.

(b) Government Regulation of Commerce to Promote

Public Safety

Next, Defendants declare that “[f]irearms and ammunition . . . have been

regulated ‘from the dawn of American history’” and that, dating back to colonial times,

the states used formal and informal means to regulate the gun trade.89 In support of their

contention that SB 264 and SB 915 are merely a continuation of that tradition, Defendants

identify several laws dating back to the 1800s that regulated the sale and storage of

gunpowder, the manufacture of firearms and magazines, the fire inspection of arms

depots, and the establishment of shooting galleries and gun ranges.90

Although those examples may show that states exercised regulatory power over the

possession and sale of firearms and ammunition, Defendants cannot properly analogize

those regulations to a complete prohibition of the sale of otherwise-lawful firearms at the

84 Id. at 13:13-14.

85 Id. at 13:14-16.

86 Defendants’ Second Supplemental Brief 4:23-5:12.

87 Motion 14:5-8.

88 Defendants’ Supplemental Reply 3:22-23.

89 Defendants Second Supplemental Brief 7:16-17 & 7:22-8:3.

90 Id. at 8:13-10:18.

Orange County Fairgrounds or at other gun shows held on state property. Regulations

governing the safety of firearms and gunpowder in the 1800s cannot act as a self-serving

carveout for states to ban the sale of firearms, or otherwise to infringe Second

Amendment rights that are concomitant with First Amendment protections for

commercial speech.

Moreover, “[i]n analyzing possible analogues, one of the aspects of the laws the

Court must consider is whether the historical ‘restrictions imposed a substantial burden

on [the Second Amendment right] analogous to the burden created by’ the current law.”

Boland, 2023 WL 2588565, at *8 (citing Bruen, 142 S. Ct. at 2145)). Throughout their

papers, Defendants repeatedly recite that the purposes behind the challenged statutes are

to prevent illegal firearm sales and to stop the crimes associated with those illegal sales.91

None of the laws that Defendants identify as historical analogs banned the sale of

otherwise-legal firearms, nor did those laws regulate any limited public forum analogous

to gun shows like those held at the Orange County Fairgrounds.

If anything, the fact that gun shows in California must fully comply with all laws

applicable to brick-and-mortar stores makes the above comparators inapposite, because

the examples that Defendants cite were equally applied to all firearm vendors and

gunowners. No law that Defendants cite permitted the state arbitrarily to ban firearm

sales in disfavored forums, nor did those laws discriminate between gun vendors based

upon whether the sales took place on public or private land. Statements by the challenged

bills’ author highlight the difficulty that Defendants face in finding a historical analog;

California State Senator Min declared that “California will become the first in the nation

to enact a total ban statewide” on gun shows.92 The right to sell firearms is neither

freestanding nor unlimited, Teixeira, 873 F.3d at 684, but neither is the state’s ability to

impose restrictions on firearms that are inconsistent “with the Second Amendment’s text

and historical understanding.” Bruen, 142 S. Ct. at 2131. In sum, the Court concludes

that Plaintiffs will likely succeed on the merits of their Second Amendment claim.

c. Plaintiffs’ Equal Protection Claim

Plaintiffs assert that because Defendants have violated their First Amendment

rights through the challenged statutes, they also violate Plaintiffs’ rights under the Equal

Protection Clause of the Fourteenth Amendment.93 U.S. Const. amend. XIV. “[U]nder

the Equal Protection Clause, not to mention the First Amendment itself, government may

not grant the use of a forum to people whose views it finds acceptable, but deny use to

91 Opposition 16:9-11.

92 Amended Complaint ¶ 149.

93 Motion 20:9-21:4.

those wishing to express less favored or more controversial views.” Police Dep’t of City of

Chicago v. Mosley, 408 U.S. 92, 96 (1972). “Once a forum is opened up to assembly or

speaking by some groups, government may not prohibit others from assembling or

speaking on the basis of what they intend to say. Selective exclusions from a public forum

may not be based on content alone, and may not be justified by reference to content

alone.” Id.

As Defendants admit in their Opposition, Plaintiffs’ Equal Protection claim

“rise[s] and fall[s] with the First Amendment claims.” OSU Student Alliance v. Ray, 699

F.3d 1053, 1067 (9th Cir. 2012). Similar to the court in OSU Student Alliance, because the

Court concludes that Plaintiffs are likely to prevail on their First Amendment claims that

Defendants are “engaging in viewpoint discrimination,” it concludes that Plaintiffs are

also likely to prevail on their Equal Protection claim “for differential treatment that

trenched upon a fundamental right.” Id. (citing A.C.L.U. of Nevada v. City of Las Vegas,

466 F.3d 784, 798 (9th Cir. 2006)). As such, it is unnecessary for the Court to reach the

question of whether Plaintiffs can prevail under a “class-of-one” theory under their Equal

Protection claim. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

2. Remaining Preliminary Injunction Factors

Having examined Plaintiffs’ likelihood of success on the merits of the

constitutional claims, the Court will next analyze the remaining preliminary injunction

factors under Winter, 555 U.S. at 20.

a. Irreparable Harm

When a court evaluates a motion for a preliminary injunction, “[i]t is well

established that the deprivation of constitutional rights ‘unquestionably constitutes

irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citing Elrod

v. Burns, 427 U.S. 347, 373 (1976)). Because Plaintiffs are likely to prevail on their First,

Second, and Fourteenth Amendment claims, this element of the preliminary injunction

test is satisfied.

b. Balance of the Equities and Public Interest

“Once an applicant satisfies the first two factors, the traditional stay inquiry calls

for assessing the harm to the opposing party and weighing the public interest.” Nken v.

Holder, 556 U.S. 418, 435 (2009). “These factors merge when the Government is the

opposing party.” Id. The Ninth Circuit directs that “[i]t is always in the public interest

to prevent the violation of a party’s constitutional rights.” Index Newspapers LLC v.

United States Marshals Serv., 977 F.3d 817, 838 (9th Cir. 2020) (internal citation and

quotation omitted). Additionally, “courts have ‘consistently recognized the significant

public interest in upholding First Amendment principles.’” Id. (citing Associated Press v.

Otter, 682 F.3d 821, 826 (9th Cir. 2012)).

Defendants assert that the balance of the equities and the public interest weigh

against granting a preliminary injunction because, given the rationale for the statutes,

“[t]he costs of being mistaken[] on the issue of whether the injunction would have a

detrimental effect on []gun crime, violence . . . would be grave.”94 Tracy Rifle & Pistol

LLC v. Harris, 118 F. Supp. 3d 1182, 1193 (E.D. Cal. 2015), aff’d, 637 F. App’x 401 (9th

Cir. 2016). Defendants cite examples from the legislative history of the challenged

statutes in support of their contention,95 but, as detailed above, none of the studies that

Defendants cite evaluates the harms and risks associated with gun shows at the Orange

County Fairgrounds or in California in general. To the contrary, the studies that the

legislative history cites list California as an exception to legal loopholes associated with

gun shows elsewhere in the United States.96 Accordingly, those preliminary injunction

factors weigh in favor of Plaintiffs.

C. Bond

Defendants did not request, in their briefing or during the hearing, that Plaintiffs

post a bond or other security. See Fed. R. Civ. P. 65(d). Indeed, “[c]ourts routinely

impose either no bond or a minimal bond in public interest environmental cases.” City of

South Pasadena v. Slater, 56 F. Supp. 2d 1106, 1148 (C.D. Cal. 1999) (citing People ex rel.

Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325 (9th Cir.), modified on

other grounds, 775 F.2d 998 (9th Cir. 1985)); see also Renna, 2023 WL 2588565, at *15

(same, with respect to public interest cases). Accordingly, this requirement is waived and

no bond will be required.

D. Defendants’ Request for Stay of Preliminary Injunction Pending Appeal

At the hearing on the Motion, Defendants made for the first time a request that the

Court stay any preliminary injunction until Defendants could file an appeal.97 “A stay is

not a matter of right, even if irreparable injury might otherwise result to the appellant.”

Index Newspapers, 977 F.3d at 824 (citing Virginian Ry. Co. v. United States, 272 U.S. 658,

672 (1926)). “The party requesting a stay bears the burden of showing that the

94 Opposition 25:5-9.

95 See Plaintiffs’ RJN, Ex. 2 at 3; id., Ex. 10 at 2-3; id., Ex. 17 at 2 & 4.

96 Barvir Declaration, Ex. 33 at 33.

97 Hearing Transcript 72:15-16.

circumstances justify an exercise of that discretion.” Id. (citing Nken, 556 U.S. at 433–

34).

A court deciding whether to grant a stay of an injunction pending appeal must

weigh the following: (1) whether the movants have made a strong showing that they are

likely to succeed on the merits; (2) whether the movants will be irreparably injured absent

a stay; (3) whether the issuance of the stay will substantially injure the other parties

interested in the proceeding; and (4) where the public interest lies. See id. (citing Nken,

556 U.S. at 426). Additionally, “[t]he bar for obtaining a stay of a preliminary injunction

is higher than the Winter standard for obtaining injunctive relief.” Id. at 824 (citing

Winter, 555 U.S. at 20). The Ninth Circuit directs that “the first two Nken factors are the

most critical, and that the second two factors are only considered if the first two factors

are satisfied.” Id. Defendants “must show a strong likelihood of success on the merits.”

Id. (emphasis in original). “And ‘simply showing some possibility of irreparable injury

fails to satisfy the second factor.’” Id. (citing Nken, 556 U.S. at 434-35). Furthermore,

“the demanding standard applicable here requires that the [defendants] show ‘that

irreparable injury is likely to occur during the period before the appeal is decided.’” Id.

(citing Doe #1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020)).

Here, Defendants’ oral motion to stay fails because Defendants satisfy none of the

requirements established by the Ninth Circuit in Index Newspapers. As discussed above,

Plaintiffs—not Defendants—have shown a likelihood of success on the merits of

Plaintiffs’ constitutional claims. Defendants also have not demonstrated irreparable

injury. Although crimes committed with illegal firearms are unquestionably a serious

concern, Defendants have not shown that there is an appreciably higher risk of illegal gun

sales occurring at gun shows than there is at brick-and-mortar stores in California.

Furthermore, given that Plaintiffs aver that the 32nd DAA will negotiate event dates only

for the following calendar year,98 it is unlikely that any gun sales will take place at the

Orange County Fairgrounds before Defendants have appealed the preliminary injunction.

Accordingly, Defendants’ oral request to stay this Court’s Order pending appeal is

DENIED.

V. DISPOSITION

For the foregoing reasons, the Court hereby ORDERS as follows:

1. Plaintiffs’ instant Motion for a preliminary injunction is GRANTED.

98 Amended Complaint ¶ 90.

2. Defendants, their employees, agents, successors in office, and all District

Attorneys, County Counsel, and City Attorneys holding office in the State of California,

as well as their successors in office, are preliminarily ENJOINED and RESTRAINED

from engaging in, committing, or performing, directly or indirectly, by any means

whatsoever, any enforcement of California Penal Code sections 27573 or 27575.

3. Upon request by Plaintiffs, Defendant 32nd DAA must make available the

next available date for a gun show and must allow Plaintiff Crossroads to reserve dates for

gun show events (and to hold such events) at the Orange County Fairgrounds as the

32nd DAA would any other event promoter who has previously held events at the Orange

County Fairgrounds.

4, Defendants’ request to stay this Order pending appeal is DENIED.

IT ISSO ORDERED.

Dated: October 30, 2023

John NYolcomb

NITED*STATES DISTRICT JUDGE

Ad