FILED
NOT FOR PUBLICATION DEC 09 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
VIDEO GAMING TECHNOLOGIES, No. 09-16092
INC., a Tennessee corporation; JOAN
SEBASTIANI, an individual, D.C. No. 2:08-cv-01241-JAM-
EFB
Plaintiff,
and MEMORANDUM *
UNITED CEREBRAL PALSY OF
GREATER SACRAMENTO, a California
non-profit corporation; WIND YOUTH
SERVICES, a California non-profit
corporation; ROBERT FOSS, an
individual,
Plaintiffs - Appellees,
v.
BUREAU OF GAMBLING CONTROL, a
law enforcement division of the California
Department of Justice; MATHEW J.
CAMPOY, in his official capacity as the
Acting Chief of the Bureau of Gambling
Control,
Defendants - Appellants,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
HAGGIN GRANT POST NO. 521, THE
AMERICAN LEGION, DEPARTMENT
OF CALIFORNIA; CASA ROBLE HIGH
SCHOOL RAMSMEN, INC.; MARY
BROWN, an individual; EL CAMINO
ATHLETIC BOOSTER CLUB, a
California non-profit corporation;
CAPITAL BINGO, INC.,
Plaintiff-intervenors -
Appellees.
VIDEO GAMING TECHNOLOGIES, No. 09-16165
INC., a Tennessee corporation,
D.C. No. 2:08-cv-01241-JAM-
Plaintiff, EFB
JOAN SEBASTIANI, an individual,
Plaintiff,
and
UNITED CEREBRAL PALSY OF
GREATER SACRAMENTO, a California
non-profit corporation; WIND YOUTH
SERVICES, a California non-profit
corporation; ROBERT FOSS, an
individual,
Plaintiffs - Appellees,
v.
BUREAU OF GAMBLING CONTROL, a
law enforcement division of the California
Department of Justice; MATHEW J.
CAMPOY, in his official capacity as the
Acting Chief of the Bureau of Gambling
Control,
Defendants,
and
JOHN MCGINNESS, in his official
capacity as Sacramento County Sheriff,
Defendant - Appellant,
v.
HAGGIN GRANT POST NO. 521, THE
AMERICAN LEGION, DEPARTMENT
OF CALIFORNIA; CASA ROBLE HIGH
SCHOOL RAMSMEN, INC.; CAPITAL
BINGO, INC.; MARY BROWN, an
individual; EL CAMINO ATHLETIC
BOOSTER CLUB, a California non-profit
corporation,
Plaintiff-intervenors -
Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted October 8, 2009
San Francisco, California
Before: WALLACE, THOMAS and BYBEE, Circuit Judges.
The California Bureau of Gambling Control and the Sacramento County
Sheriff bring this appeal from the entry of a preliminary injunction. The appellees
- individuals with disabilities, not-for-profit organizations that raise funds by
offering bingo, and a manufacturer of certain electronic bingo games - allege that a
recently-enacted California law expressly banning certain electronic bingo
machines, 2008 Senate Bill 1369, amending Cal. Pen. Code y 326.5 et seq.,1 runs
afoul of Title II of the Americans with Disabilities Act, 42 U.S.C. yy 12131-34.
The district court granted a preliminary injunction prohibiting California state and
local law enforcement, including appellants the California Bureau of Gambling
Control and the Sacramento County Sheriff, 'from taµing any enforcement action
against and/or interfering with the play of charitable bingo on electronic machines
in any way.' We hold that the district court abused its discretion in granting the
injunction and therefore reverse.2
I
1
Senate Bill 1369 amended the California Penal Code in two ways: (1) it
specifically outlawed most electronic bingo machines, Cal. Pen. Code y 326.5(o),
and (2) it specifically allowed certain electronic accommodations for the play of
live call bingo, id. y 326.5(p) et seq.
2
As the parties are familiar with the facts and proceedings, we will not
repeat them here except as necessary to explain our reasoning.
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'A plaintiff seeµing a preliminary injunction must establish [1] that he is
liµely to succeed on the merits, [2] that he is liµely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities tips in his favor, and
[4] that an injunction is in the public interest.' Winter v. Natural Res. Def.
Council, Inc., 129 S. Ct. 365, 374 (2008). In each case in which a party seeµs a
preliminary injunction, 'courts must balance the competing claims of injury and
must consider the effect on each party of the granting or withholding of the
requested relief.' Id. at 376 (internal quotation marµs and citation omitted). 'A
preliminary injunction is an extraordinary remedy never awarded as of right,' id. at
376, and where the party seeµing a preliminary injunction fails to satisfy any one
of the Winter factors, the preliminary injunction must be denied. Id. at 375-76.
II
Here, plaintiffs failed to show that they were liµely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tipped in their
favor, and that an injunction was in the public interest.3 The district court therefore
abused its discretion in granting plaintiffs' motion for a preliminary injunction.
3
Because we hold that plaintiffs failed to satisfy the irreparable harm,
balance of equities, and public interest prongs of the Winter test, we do not address
plaintiffs' liµelihood of success on the merits of their claims. See Winter, 129 S.
Ct. at 381.
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A
We have held 'that a state suffers irreparable injury whenever an enactment
of its people or their representatives is enjoined.' Coal. for Econ. Equity v. Wilson,
122 F.3d 718, 719 (9th Cir. 1997). Whatever qualms the district court may have
had about the swiftness of its enactment, Senate Bill 1369 was passed by the
California Legislature and signed into law by the state's governor. It is therefore
'an enactment of . . . [California's] representatives,' the injunction of which
irreparably harms appellants under this court's precedent.
As to the harm the plaintiffs must show, the Supreme Court has emphasized
that 'recognition of the need for a proper balance between state and federal
authority counsels restraint in the issuance of injunctions against state officers
engaged in the administration of the states' criminal laws in the absence of
irreparable injury which is both great and immediate.' City of Los Angeles v.
Lyons, 461 U.S. 95, 112 (1983). Here, neither the charitable organization plaintiffs
nor the disabled plaintiffs demonstrated that they would suffer any 'great and
immediate' irreparable injury in the absence of a preliminary injunction.
The charitable organization plaintiffs assert that not having electronic bingo
machines will significantly hinder their fundraising ability, but monetary injuries to
these plaintiffs are not irreparable. It is true that this circuit has held that, in some
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circumstances, monetary injuries may be irreparable if Eleventh Amendment
sovereign immunity will bar a party from ever recovering those damages in federal
court, California Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d 847, 851-52 (9th
Cir. 2009), but we need not delve into that issue here. Senate Bill 1369 created a
Charity Bingo Mitigation Fund, from which funds are made available to charitable
organizations for the very purpose of mitigating the financial impact of the law.
Cal. Pen. Code y 326.4 et seq. We conclude that the charitable association
plaintiffs have not shown that they face 'great and immediate' irreparable harm.
By contrast, the disabled plaintiffs maintain that, in the absence of a
preliminary injunction, they (liµe everyone else in California) will be prevented
from playing electronic bingo. That may be true, but they (liµe everyone else in
California) will still be able to play live call bingo, and they will be able to use the
electronic and non-electronic aids expressly available under state and local law.
The temporary inability of the disabled plaintiffs to play a game illegal to all other
individuals in California cannot be deemed a 'great and immediate' harm.
Moreover, plaintiffs have not explained why such harm could not meaningfully be
remedied in a subsequent claim for damages.
B
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A party seeµing injunctive relief 'must establish . . . that the balance of
equities tips in his favor.' Winter, 129 F.3d at 374. In assessing whether a party
has met this burden, the district court has a 'duty . . . to balance the interests of all
parties and weigh the damage to each.' L.A. Mem'l Coliseum Comm'n v. Nat'l
Football League, 634 F.2d 1197, 1203 (9th Cir. 1980).
Here, the balance of equities does not favor injunctive relief. The State of
California and Sacramento County have strong interests in regulating gambling
and in enforcing their criminal laws, and the damage to these interests from the
preliminary injunction is quite serious. By contrast, the disabled plaintiffs seeµ to
gamble using electronic machines that are unavailable under state law to everyone
else in California, and the charitable organization plaintiffs seeµ to raise money
through the use of these illegal machines. Had the district court correctly
'balance[d] the interests of all parties and weigh[ed] the damage to each,' id., it
could not have held that the balance of equities favored granting the injunction.
C
Finally, the district court also abused its discretion in holding that a
preliminary injunction was in the public interest. 'In exercising their sound
discretion, courts of equity should pay particular regard for the public
consequences in employing the extraordinary remedy of injunction.' Winter, 129
-8-
S. Ct. at 376-77 (quotation marµs and citation omitted). But in this case, as in
Winter itself, '[t]he district court did not give serious consideration to the public
interest factor.' Id. at 378 (quotation marµs and citation omitted; alteration in
original).
Here, the preliminary injunction conflicted with the public interest in two
ways: first, by frustrating the public's interest in strictly regulating gambling,
including charitable bingo, and second, by frustrating the public's interest in the
enforcement of state and local criminal laws. The State of California has strictly
regulated gambling in general, and bingo in particular, for decades, not only by
statute but by its Constitution. See C AL. C ONST. art. IV, y 19(c). In the past year,
California's legislature and its governor - the public's elected representatives -
approved a law both proscribing the precise electronic bingo machines at issue in
this case and providing for accommodations for disabled persons wishing to play
live call bingo. The people of California have thus repeatedly expressed, and
recently reaffirmed, their interest in strictly regulating gambling in their state,
including charitable bingo. As for the public's interest in the enforcement of state
and local criminal laws, no further explication is necessary.
III
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In sum, the district court abused its discretion in granting the preliminary
injunction, as plaintiffs failed to satisfy the irreparable harm, balance of equities,
and public interest prongs of the Winter test. The judgment is reversed and the
case remanded to the district court.
The panel will retain jurisdiction in this case.
REVERSED.
-10-
FILED
DEC 09 2009
United Cerebral Palsy v. Bureau of Gambling, Nos. 09-16092 and 09-16165
MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS
I fully agree with the majority that the district court abused its discretion in
granting the preliminary injunction. However, I write separately to emphasize that,
although the majority declined to reach the issue, in my view the plaintiffs plainly
have not demonstrated any liµelihood of success on the merits of their claims under
Title II of the Americans with Disabilities Act (ADA). Electronic slot machines
are not a reasonable accommodation for disabled persons who wish to play live
call bingo, and the ADA does not require California to permit such slot machines
just because they have been titled 'electronic bingo.'
Title II of the ADA, 42 U.S.C. yy 12131-34, requires that where the
government provides a service to non-disabled persons, reasonable
accommodations must be available for disabled persons to use the service offered
to non-disabled persons. Here, plaintiffs' Title II claims are infirm for two
reasons: (1) reasonable accommodations exist that allow disabled persons to play
live call bingo, the only bingo 'service' that may lawfully be offered to non-
disabled persons in California; and (2) the electronic gaming machines at issue in
this case do not offer live call bingo, but rather a completely different casino-style
game virtually indistinguishable from a run-of-the-mill slot machine, and thus do
not qualify as an accommodation to any service offered to non-disabled persons by
the State of California.
Under Title II, 'no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.' 42 U.S.C. y 12132; see also McGary v. City of Portland, 386
F.3d 1259, 1265 (9th Cir. 2004) (describing the elements of a Title II claim).
Where a disabled plaintiff demonstrates that she is denied meaningful access to a
service provided by a public entity by virtue of her disability, Title II requires only
'reasonable modifications that would not fundamentally alter the nature of the
service provided.' Tennessee v. Lane, 541 U.S. 509, 532 (2004) (internal
quotation marµs omitted); see also 28 C.F.R. y 35.130(b)(7). In the instant case, it
is clear that plaintiffs cannot prevail on their Title II claims.
As an initial matter, Title II applies only where a disabled individual is
'excluded from participation in or denied the benefits of [a] public entity's
services, programs, or activities, or [i]s otherwise discriminated against by [a]
public entity.' McGary, 386 F.3d at 1265. Since charitable bingo is provided in
California only by private entities, any denial of meaningful access to traditional
live call bingo attributable to bingo parlors is not cognizable under Title II. The
-2-
only possible Title II claim plaintiffs can maµe out must be premised on legal
impediments imposed by California on plaintiffs' play of live call bingo. To put it
another way, if state and local law allows reasonable modifications that assist
plaintiffs in the play of live call bingo, plaintiffs have no claim under Title II.
Here, the Bureau and the Sheriff proffered credible, admissible evidence
showing that reasonable accommodations to assist disabled individuals in the play
of live call bingo were available under state and local law at the time of the hearing
on the preliminary injunction.1 For example, one declarant attested that there were
'numerous electronic bingo monitoring devices available that assist disabled bingo
patrons in the play of traditional live call bingo' by 'notif[ying] the individuals of
the existence of a winning bingo card and assist[ing] in daubing, but not taµ[ing]
the place of participation in the live-call bingo game.' Another described
'[e]lectronic bingo monitors . . . [that] allow patrons participating in a live bingo
game to µeep tracµ of the calls for a larger number of bingo cards than they
1
Shortly after the injunction was granted, California promulgated regulations
specifically addressing the availability of accommodations for the disabled in live
call bingo. See Cal. Admin. Code tit. 4, y 12482 et seq. These new regulations
should put the matter beyond any doubt. Indeed, after the enactment of S.B. 1369
and the promulgation of these regulations, even VGT - an original plaintiff in this
action and the manufacturer of most of the electronic bingo games subject to the
preliminary injunction - concedes that plaintiffs' Title II claims have no legal
merit.
-3-
otherwise might' and that 'enable . . . persons with disabilities that prevent them
from immediately daubing their bingo cards in response to live calls, to µeep up
with the game and accurately daub their winning combinations on their bingo cards
as they occur.'
Critically, at the time of the district court's order, California law explicitly
permitted '[p]layers who are physically present at a bingo game [to] use hand-held,
portable card-minding devices, as described in this subdivision, to assist in
monitoring the numbers or symbols announced by a live caller as those numbers or
symbols are called in a live game.' Cal. Pen. Code y 326.5(p)(1). Non-electronic
accommodations - for example, Braille cards - would also have been permissible
under California law. See Cal. Pen. Code y 326(o). By contrast, plaintiffs offered
no evidence that electronic aids such as card-minding devices could not effectively
assist disabled persons in the play of live call bingo, and the evidence plaintiffs did
offer indicated that legally-permissible aids such as card-minders could have
accommodated the precise difficulties plaintiffs faced in the play of live call bingo.
The district court also abused its discretion with respect to another
prerequisite of a Title II claim under the ADA. Even if California had failed to
provide for any accommodations so that disabled plaintiffs were denied
'meaningful access' to live call bingo, Title II would require only 'reasonable
-4-
modifications that would not fundamentally alter the nature of the service
provided.' Lane, 541 U.S. at 532 (internal quotation marµs omitted). Yet the
casino-style electronic gaming machines at issue in this case fundamentally alter
the nature of live call bingo - the only type of bingo legally available to any
individual in California, and thus the only government 'service' possibly
implicated in this case - and are therefore simply not reasonable accommodations
within the meaning of the ADA.
The electronic devices at issue in this litigation are, by any measure, slot
machines. They bear no resemblance to true electronic aids such as card minding
devices that actually assist disabled persons in the play of live call bingo. The
VGT bingo machines pictured in the record feature buttons for 'BET' and 'BET
MAÈ' as well as three spinning reels adorned with colorful 7s, SPINs, BARs, and
cherries, all alongside a 'payout schedule' explaining how many credits are
awarded when various icons on the spinning reels align. As with a slot machine, a
player on one of the electronic bingo machines deposits a sum of money and is
assigned a corresponding number of credits, with each credit having a monetary
equivalent. The player chooses the size of his or her bet, and a game is completed
within a matter of seconds. The game is utterly passive, as it does not require the
player to do anything at all except bet. At the conclusion of each game, a graphic
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interface of slot machine-style reels accompanied by audio informs the player
whether he or she has won. The player wins proportionately more money by
achieving particular patterns, with some unusually rare patterns apparently paying
out at rates hundreds of times the size of the player's bet. In contrast to live call
bingo, a player on one of VGT's machines can 'sleep' a bingo pattern for several
minutes without the threat of losing his or her winnings.
While appellees occasionally refer to the video bingo devices at issue here as
'electronic bingo aids,' this is not a case in which a disabled plaintiff seeµs to use
a device to assist him in joining an existing, legal game. Rather, appellees demand
that California permit a different game that operates independently of the live call
games permitted by state law. The distinction between electronic aid in the play of
an existing game and a wholly distinct electronic game is a critical one under the
ADA. By way of analogy, while the ADA requires that a disabled golfer who
qualifies for the PGA Tour be allowed the use of a cart, see PGA Tour, Inc. v.
Martin, 532 U.S. 661 (2001), it cannot seriously be argued that the ADA requires
the PGA to allow qualification for, and competition in, its events on electronic
simulators or on arcade machines, regardless of the verisimilitude between
Augusta National's actual fairways and their electronic analogues.
While I agree with the majority that the district court abused its discretion
-6-
with respect to the irreparable harm, balance of equities, and public interest prongs
of the preliminary injunction test, I would also reverse the district court's judgment
on the grounds that plaintiffs had demonstrated no liµelihood of success on the
merits of their ADA claims.
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