FILED
NOT FOR PUBLICATION
FEB 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY RIFLE AND PISTOL LLC; No. 15-16501
MICHAEL BARYLA, Managing Member,
Tracy Rifle and Pistol LLC; TEN D.C. No. 2:14-cv-02626-TLN-
PERCENT FIREARMS, a California DAD
corporation; WESLEY MORRIS, Owner,
Ten Percent Firearms; SACRAMENTO
BLACK RIFLE, INC., a California MEMORANDUM*
corporation; ROBERT ADAMS, Owner,
Sacramento Black Rifle, Inc.; PRK
ARMS, INC., a California corporation;
JEFFREY MULLEN, Owner, PRK Arms,
Inc.; IMBERT & SMITHERS, INC.;
ALEX ROLSKY,
Plaintiffs - Appellants,
v.
KAMALA D. HARRIS, Attorney General,
State of California; STEPHEN J.
LINDLEY, Chief, California Department
of Justice, Bureau of Firearms,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted February 9, 2016
San Francisco, California
Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.
Plaintiffs appeal the district court’s denial of their motion to preliminarily
enjoin the enforcement of California Penal Code Section 26820 while they
continue to litigate a First Amendment challenge. We have jurisdiction under 28
U.S.C. § 1292(a)(1), and we affirm.
We review the district court’s denial of a motion for a preliminary injunction
for abuse of discretion, and reverse only if the resolution of the motion resulted
from factual findings that were “illogical, implausible, or without support in the
inferences that may be drawn from the record.” United States v. Hinkson, 585 F.3d
1247, 1262 (9th Cir. 2009).
Here, the district court did not abuse its discretion in applying the factors
under Winter v. Natural Resources Defense Council, Inc., and concluding that on
this record Plaintiffs were not entitled to the “extraordinary remedy” of a
preliminary injunction. 555 U.S. 7, 20, 22 (2008). Applying the correct legal
framework for analyzing content-based burdens on commercial speech, the district
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court found it likely that Section 26820 did not directly advance a substantial
government interest and that the restriction was more extensive than necessary to
achieve that interest. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of
N.Y., 447 U.S. 557, 566 (1980). We cannot say that these findings were illogical,
implausible, or without support in the record. See Hinkson, 585 F.3d at 1262.
Analyzing the remaining Winter factors, the district court concluded that
while Plaintiffs are likely to suffer irreparable harm resulting from the potential
infringement of their First Amendment rights, the magnitude of this potential harm
is minimal due to the commercial nature of the speech and limited scope of the
restriction. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989)
(commercial speech holds a subordinate position in the scale of First Amendment
values). The district court further found that the balance of equities does not tip in
Plaintiffs’ favor where, as here, serious public safety risks are implicated and the
harm to Plaintiffs is relatively slight. Again, we see no abuse of discretion in the
district court’s analysis of the appropriate factors under Winter.
AFFIRMED.
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