California Judge Issued Stay on Magazine Ban to Protect Gun Owners

The Honorable Roger T. Benitez issued a stay on his own ruling to protect the hundreds of thousands of people who imported magazines into California while his ruling stood. He did that as a preemptive strike against the Ninth Circuit issuing a stay without the protection for those who had purchased magazines while it was in effect.

He had a choice, issue the stay under his conditions, or have the Ninth Circuit issue the stay under their conditions. He chose wisely.

The Summary Judgment ruling on Duncan v. Becerra was made on on 29 March, 2019. At that point it became legal to own, possess, manufacture, buy and sell magazines.  Three days later, the defendants asked for a stay. Application for Stay pending Appeal on 1 April, 2019

Good cause exists for the ex parte relief requested. If the Court’s Judgment is reversed on appeal, absent a stay of the Judgment pending appeal, the State of California will be irreparably harmed by the influx of large-capacity magazines during the appeal.

On 2 April, 2019, the Plaintiffs opposed a temporary stay.

Plaintiffs oppose the State’s request for a temporary stay of the judgment while the Court considers the State’s Ex Parte Application to Stay Judgment Pending Appeal of this Court’s Order Granting Plaintiffs’ Motion for Summary Judgment. Plaintiffs understand the State’s concerns, but should the judgment be stayed immediately, even if only temporarily, countless otherwise law-abiding Californians who have already ordered LCMs in reliance on the Court’s order but have not received them would unjustly be subjected to severe criminal penalties without notice.See Cal. Penal Code § 32310(a); see alsoCal. Penal Code § 1170(h). Therefore, unless the Court can unequivocally protect those individuals in an order granting the State’s temporary stay request, that request should be denied.

On 4 April, 2019, at 2:48 p.m. AG Becerra gave notice of his intent to appeal to the Ninth Circuit for a temporary Stay of the Summary Judgment finding the Magazine ban unconstitutional.

PLEASE TAKE NOTICEthat Defendant Xavier Becerra, in his official capacity as the Attorney General of the State of California, hereby appeals to the United States Court of Appeals for the Ninth Circuit from this Court’s final judgment, entered on March 29, 2019 (Dkt. No. 88), including the Court’s Order Granting Plaintiffs’ Motion for Summary Judgment, Declaring California Penal Code § 32310 Unconstitutional and Enjoining Enforcement, issued on March 29,2019 (Dkt. No. 87).

Later on 4 April, Judge Roger T. Benitez issued a temporary stay of the Summary Judgment, thus rendering the appeal to the Ninth Circuit moot.  Judge Benitez wisely issued the Stay before the Ninth Circuit could issue a Stay. Below, Judge Benitez notes that a Stay will harm all those who purchased magazines in a good faith belief the law was struck down as unconsitutional:

Without question, entering a stay pending appeal will harm the Plaintiffs, and all others like the Plaintiffs (who are many), who would choose to acquire and possess a firearm magazine holding more than 10 rounds for self-defense. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”

Then Judge Benitez issues the order to Stay the Summary Judgment. Note that it protects all those people who exercised their Second Amendment rights up to the effective time and date of the Stay, which was an additional day after the Stay was issued.

IT IS HEREBY FURTHER ORDERED that the permanent injunction enjoining enforcement of California Penal Code §32310 (a) and (b)shall remain in effect for those persons and business entities who have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019and 5:00 p.m., Friday, April 5, 2019.Dated: April 4, 2019

I have no doubt that Judge Benitez knew full well the Ninth Circuit would issue a stay if he did not. Reasonable people believe that the stay from a Ninth Circuit panel would not protect those who purchased magazines in the interval from 29 March to 5 April, 2019.

From the comments on an Ammoland article that I wrote, Randy A opined:

He didn’t, “strike it down”, he merely put a stay on it giving the State time to pull something else out of their ass to justify the ban. He wrote his stay in such a way that anyone who had purchased any standard capacity mags during that week could keep them without repercussions. It was a Great move.

From a discussion of the Stay:

This is probably the best outcome (at this stage) that we could have gotten. If Judge Benitez denied the stay, one written by the 9th Circuit could have let the ban on possession go into effect.


So if you live in California, this may be your last chance to buy >10 round magazines for the foreseeable future. Because even if we win at the 9th Circuit, it could be years before the case is over.

The Honorable Roger T. Benitez knows the system. He has been in it for many years. Do not mistake his efforts at supporting the Constitution and the rule of law for treachery or stupidity.

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