months law enforcement agencies within the state of california have been prevented from enforcing california's ban on the possession of large capacity magazines which are defined by statute as firearm magazines capable of holding more than ten rounds of ammunition i mean i mean i ask you a question which is somewhat important to me if i understand the last friday summary judgment arguments were made in this case it was last thursday or last honor the district court held a hearing for about four hours of argument on the plaintiff's motion for summary judgment and at the conclusion of the hearing the court ordered supplemental briefing so supplemental briefing was devoted solely to the second amendment claim will be due on june eleventh and then a simultaneous response will be due ten days thereafter and it's my understanding that the court will then take the matter under submission and there's also a hearing in september dealing with the trial itself that's correct that's the final plea to pretrial conference and when i must compliment counsel on both sides we've finally paid attention to cases we've been trying to get across to you for the last thirty years to let this plymouth anything really mean plymouth get ready for the main act but having said that it seems to me that i just don't know why the government is appealing here we're going to have an entirely different standard of review for there will be nothing favorable to the government the steel may be much better off after the trial so is there some reason this doesn't have any to do the case but i mean i don't understand why you're pursuing it because you're going to have one arm tied behind you today which you won't have perhaps if you lose the next time around yeah understand that your honor the state does have very strong grounds in challenging the preliminary injunction even though it's an inter utory appeal the district court didn't use its discretion ok fine if you understand it best we can't give you an answer of what the law will be after the permanent injunction issue we're not asking for the court's advisory opinion on what the law should be we want to make shook counseling understand that it is only invite as rental have nothing to do with the case that we have ultimately see on the permanent but if the court does for verse the order o preliminary injunction on a finding that the district court did not correctly apply intermediate scrutiny which is the attorney general's position that an action that actually could provide guidance to the district court as the case proceeds through the merits  stage i would also like to note that for just a minute extra it's my understanding that when we got this case what happened was that the district court said right up front that i'm not ruling on the merits i'm just make changes the record develops may well be that they're on a more robust and i'm trying to read have an entry showing made after greater time and testimony is taken that the state will be able to establish a reasonable fit but not yet so it seemed to me that what the district court was saying there was this is just status quo until a merits decision is made does not want this court to say the district court did say that but in the butler and in effect then my only questions i have in front of me are did the district court apply the correct law which i don't find any big problem about that the law i think is correct and where the findings of fact in its application those fanned the findings of fact to the correct legal standard illogical implausible or without support in other words an abuse of discretion so i'm at an abuse of discretion basis summary judgment could be here in two months this case could last two months and yet it's important for us to do it is important for the court to intervene at this stage your honor even though the district court said that the court's view may change in light of the evidence at trial or on summary judgment much of the same evidence has been presented on the merits in opposing the plaintiff's motion for summary judgment and that is because the evidence that was submitted in opposition to the motion for a preliminary injunction and in opposition to their to the plaintiff's motion for summary judgment is substantially the same evidence that was submitted in the vs sunnyvale case that this court held as a matter of law is precisely the type of evidence that the state can rely upon and in substantiating it's important government interests and also in demonstrating a reasonable fit it's the same evidence and at the preliminary injunction stage the district court ignored large swaths of the evidence submitted by the attorney general and that was an abuse of discretion instead the district court focused on one empirical study which was an empirical study also submitted in the case and that was the mayors against illegal guns study which showed that when large capacity magazines are used in a public mass shooting they result in one hundred fifty one percent increase in injuries and a sixty three percent increase in the in the number of fatalities and the district court is even though the district court stated that it was applying intermediate scrutiny in actuality it was not it was it was subjecting california statute the people's statute to something more akin to strict scrutiny by devoting twelve pages of the court's order to a microscopic dissection of one empirical study and in dissecting that study the court did commit air it assumed that all the public mass shootings in which magazine capacity was unknown did not involve large large capacity magazines and that's not easy that's not a reasonable assumption especially where the plaintiffs have submitted evidence that many standard handguns are sold with large capacity magazines and if those if those firearms were used in a public mass shooting it's unreasonable assume that a large capacity magazine just was not used in trying to in trying to use to set aside a prior maybe their record was different from ours i thought that was a very i didn't understand what he was saying what was the difference that he depended upon it was also evidence that was submitted by the attorney general in this case shows that these there's even a more compelling reason now to ban the possession of large capacity magazines the so so your position your position is is that the district court was wrong factual error to conclude that the two records were different he stated that the record before him in this case was not on point not reliable even though under intermediate scrutiny the government can rely on any evidence reasonably believed to be relevant to the issue and then he said in five dock it was on point and it was relevant the state submitted much of the same evidence that was submitted in a file including the declaration of dr christopher koper we actually submitted the declaration from the action in which dr cooper explained how the federal the federal assault weapons ban which was in place from one thousand nine hundred four to two thousand and four was hampered because it didn't have a ban on possession it was actually less effective than california's existing ban because individuals could transfer grandfathered large capacity magazines under the federal ban and dr cooper concluded that sunny bales municipal ordinance ordinance which close the possession loophole increases the likelihood that large a pass the magazines will be removed from circulation and that the number of large capacity magazines used in the killing of law enforcement and public mass shootings will be reduced the end that did just to charge make an analysis when he decided that the case didn't apply because must have been a different record you're arguing the record was not only the same it's better before the current district judge did he make an analysis of the record no there's no side by side comparison of the evidence i did you find is either i've read his his opinion as carefully as i could it seems to me that that when we make a statement  in our court we would expect more and distinguishing the case and i take it that that's a flaw that you find in your approach to this case absolutely it's one of the most glaring flaws in my opinion seems to me we've got the law set and the district court is applying the law but nobody's arguing on any one of these issues that the wrong law was applied in fact if we go back through the district court has applied the same law that i would have applied in these kind of similar cases and it gets down through goes through each one of the steps applying the law that needs to be applied it just seems to me that what you're suggesting is that when and when we finally get down to whether we're going to try strict scrutiny or inner minarik scrutiny or otherwise that you think you'd come out  abuse of discretion there should be no evidence totally illogical him plausible what the district court did and we're on flim unary injunction i understand i understand your owner's concern but as i was just discussing with judge wallace there is in your logic that is fundamentally tainting this court's order by ignoring the attorney general's evidence and even though the court did eventually come around enact in proposition proposition sixty three was given instead the district court started with the proposition that california's possession ban is presumptively unconstitutional that's not the starting point under intermediate scrutiny the district court also reweigh the evidence which under intermediates rooney the district court is not entitled to do so long as the state has presented facially plausible evidence and rational inferences from that evidence so even though the court did say that it was applying intermediate scrutiny it was not it was applying something much higher if you look at how the court was examining the mayors against illegal guns study you can see how the court was not applying intermediate scrutiny the court was effectively requiring the attorney general to present evidence of grandfathered large capacity magazines those would be magazines that were own and before the year two thousand before the original restrictions went to place that the attorney general would have to present evidence that those magazines were used in public mass shootings because the court when mass shooting by mass shooting saying well the possession ban wouldn't have prevented that shooting the possession ban wouldn't prevented that shooting and that's not the burden of the attorney general at this now at this stage but at the merits the attorney general can present evidence that large capacity magazines are exceedingly dangerous he has done so and the attorney general can show that there is an inference that these magazines even if they are grandfathered and lawfully own and even if they haven't been used in any public mass shooting or murder of law enforcement these magazines can be stolen in seventy six percent of public mass shootings the guns in the firearm accessories were were legally acquired so even if they were owned legally they can still be used in a public mass shooting but also in many of the public mass shootings the firearms were stolen that was the case in the tragic sand hook shooting so there is an interest in making sure that even grandfather large capacity magazines are removed from circulation so that's why are the state of california gone further than the national that's  precisely the reason your honor and the attorney general also submitted evidence with the declaration of blake graham that shows that california's existing large capacity magazine restrictions were very difficult to enforce without a possession then and that's because unlike firearms which bear unique serial numbers large capacity magazines don't it is very difficult for law enforcement when they encounter these magazines to determine that the that a magazine was properly grandfather know apparently be my last point on the second amendment that every single court to examined a large capacity mag bad including four circuit courts have uniformly concluded that even if they are protected by the second intermediate scrutiny applies with the exception of the second circuit seventh circuit which applied to say what are you going to do it seven yet in freedman there was a different standard but every other circuit in every other district court has applied intermediate scrutiny and is upheld magazine restrictions on substantially the same evidence that the attorney general has presented here and the district court abused its discretion in finding otherwise but often the problem that i have with that argument is that if it's an abuse of discretion one could come down a different way me but i understand your honor maybe and i'm happy it's my last point but the district court did not examine a lot of the evidence that was submitted by the attorney general because the court concluded it had time constraints so could only look at one piece of empirical evidence and it discounted all junction the district court sets a very ambitious and very very in our book in our mind an excellent schedule to get this thing off its calendar once a very good at the right standard and til limits says i'm going to look at what evidence i have a chance to look at i'm going to go through what i need to do and i'm going to try to see if i can give it to you but on this i don't think again i'm going to leave it the way it is till i have the trial and you're saying looking into the evidence and how the cases applied to that evidence that's not the will review that's abuse of discretion the court does reviewed in over the court's characterization of california's possession ban as disarmament this court in firefox concluded and agreed with the d c circuit that a restriction on capacity sizes not disarmament people can have ten round magazines they can have as many ten round magazines to protect themselves or their home so the burden on any course second amendment right is very minimal in the court characterized as disarmament and care and concluded that a ban on the possession of large capacity magazines is a policy choice off the table under heller that california was asked exercising its police powers in banning dangerous magazines this is not like horn where there was a physical appropriation of property in this with a large capacity magazine ban in the possession ban owners  grandfathered large capacity magazines are not required to deliver their magazines to the government they can modify them permanently under penal code section one six seven four zero that's a point that seems to be lost in all the briefing they can maintain their magazines just so just so long good morning your honor the mayor please the court erinn murphy on behalf of the plaintiff at bally's the district court did not abuse its discretion by granting a narrow preliminary injunction to preserve the status quo while the parties litigate the constitutionality of california's the restrictions have almost all included some form of grandfathering clause as the federal government did and as california itself did for over fifteen years the district court didn't abuse its discretion in concluding that we were likely to succeed at least on the record as the district court had before it at the time on our claims that this is both a violation of the second amendment and a violation of the takings clause and it didn't abuse its discussion concluding that this is a really serious case of irreparable injury here given that the point of these provisions the only ones that were challenging in this posture is to actually require dispossession destruction of property permanent modification of property things that actually cannot be undone if this law were to go into effect before we can litigate our serious constitutional claims if i could start by talking about the fiat case because obviously i understand that that's an important thing here the first thing that's very critical to remember about that case is that it itself was a preliminary injunction appeal and it itself was on abuse of discretion review and the court could not have made clear that it was not ruling on the ultimate legal issues in that case and in the course of a fifteen page opinion the opinion uses the phrase abusive discussion more than a dozen times and applies it to every single thing that the district court did in the case abuse its discretion by concluding that these were likely covered by the second amendment to abuse its discretion by applying intermediate scrutiny did it abuse this discretion in making the determination to do it about this evidentiary record and the obvious implication of abuse of discretion review when you're dealing with evidentiary determinations credibility determinations fact findings is that it may well not be an abuse of discretion to come to a different conclusion even based on the same evidence that it is those are questions of fact i agree with you but questions of law you don't abuse question or review has to be do noval and the problem i have with it is it seems to me that that decision actually treated that is abuse of discretion question it said the district court didn't abuse its discretion by concluding that intermediate certainly likely applied on the record before it that said i don't think this is really an issue because the district court here did apply intermediate scrutiny in the court spent you know after discussing why it wasn't sure that was actually the right standard the court said but i'm going to apply that standard that's what was applied in five and that's what's been applied in most cases so that's what i'm going to apply and if you look at pages twenty and twenty one of the court's opinion that the decisions it relied upon for articulating intermediate scrutiny and then applying the reasonable fit state has throughout its opinion where this court's second amendment cases show vonne jack was how was that proven that they had a different well for one thing we have a different record in this case i mean after the state and other jurisdictions have continued to put out basically the same evidence in every case there are experts on the other side of this debate who said we're going to subject that to real scrutiny and testing you know there's a lot of hypotheses being thrown around about how these laws might impact mass shootings and we're going to study that in two thousand and sixteen a year after session our expert dr kleck put out a study that took this seriously and i'm going to look at all of these and i'm going to determine what do we even know what kind of magazines were used did it make any difference the way that they were used is there any factual basis what does exist or do with the district court do with that particular study what the district court did it was with respect to the evidence the state pointed the court to the mayor's report which i would note while the state wants to kind of fault the district for so focusing on that and that the attention to stay that state told the district court and this is our new district court took care of it but as you pointed out that the he said the evidence submitted in five was different from the evidence he has what he said what is the basis of that finding sure i mean i think that what he basically did was take what has been developed since then in terms of means of testing actually looking at the state's evidence and determining whether the state has drawn reasonable inferences based on a substantial evidence which the state itself concedes a page thirty three of its brief is the test that applies here and he said you know i'm going to look at this i mean to look at what you put forward and it mean i think that's what the court was saying when the court said you know they made credibility determinations there and i don't find the record before me credible page the language about not finding it credible that would be no i want his that was credible reliable and on point the district court here looked at everything from that is on page twenty to twenty three of the district court's opinion and then the district court looked at the evidence before it some of which i regret it was the same evidence and said you know i get to decide if i think it's credible and reliable evidence because that is what this court is no i don't know he didn't say that he said maybe five had a different record he didn't say it had the same record he said maybe they had a different record from what's before sure and with all due respect i mean i don't think the district court was bound to examine whether the record was the same as in fired because this court didn't hold in fy i'm not saying you did and i'm saying this is what he said sure i was saying he had to i mean i just i take him to be saying look you know maybe it was different maybe it wasn't the point is i don't have a record before me and i'm looking at that record i'm not bound to her rule in the state's favor by fired because that was an abuse of discretion polluter injunction case so my obligation is to determine whether the record before me is the record where i find that the state is credible and reliable and this court certainly did not hold in  bound to conclude that the record before the fire out court was credible and riot reliable i mean to the contrary this court specifically said that it would not really weigh the evidence and reconsider their i i understand all that my my point is that i don't understand where the judge said the district judge said there's a different record in five so therefore i'm going a different route i can go a different direction i just don't understand the state i mean i think he said that the record was different as he said they had a different record than i have before me must have had a different and it is a different record because we submitted evidence that post dates  think you can find that the district court erred by stating something that is as a factual matter true i mean the evidence we submitted in support of our case to demonstrate that the state's evidence is not actually based in substantial evidence and not based on reasonable inferences that doesn't satisfy intermediate scrutiny which by the way intermediate scrutiny plainly does put the burden on the government to prove that a law is constitutional it may not be as high of a burden in strict scrutiny but that's the whole point of intermediate scrutiny i think based on a no that record the district court was saying this is my obligation this issue is not answered i have a record before me and i need to look at that record and make my own determination at preliminary determination he said at least four times in his opinion this is a preliminary determination he focused on the particular evidence that the state brought to his attention during the new evidence the new doctor the mayor's report is what the state focused on the mayor's report i mean if you go look at the transcript of the plan or injunction hearing that's the only report they brought to his attention when he asked about statistics about mass shootings so i hardly think they can fault the district court for saying well if you told me that's your best evidence that's the evidence i'm going to look the most carefully at i mean you know i appreciate that the state put forward a lot of evidence here but it's a lot to ask a district court to in a preliminary injunction posture in a review in excruciating detail thirty three hundred pages or whatever it was that they put forward and then particularly when their position is that you know the district or it's actually not allowed to look at the evidence at all and is bound to just accept what they say and defer to it no matter what i mean that's not the standard clearly under intermediate scrutiny yet if you're agreeing with that yes no i think both parties are looking at this is a case in which you now much of the question about the remaining factors depends a lot on whether you think there's constitutional rights at stake here or not that's what i mean i do think that there is a concrete irreparable harm here in a way that may differentiate it a bit from some other cases given that we're dealing with a dispossession statute where that's the government saying you know we want to destroy your property or force you to physically alter it or give it away in a way where you may never get it back that all you know it seems to me that you're going to where i want to go so i want to show on the second amendment and you heard what a counsel says in these argument he only took a couple minutes of with what i take the state's principle argument to be here is that there just is no police power exception to the taking scott's that's the law of this circuit it's the law of the supreme court it's very clear that the state even in the context where a state is invoking the police power to protect the public rather than for a public benefit it still must come in station if you look back in particular at the nine hundred ninety two lucas case from the supreme court this is exactly the distinction that the court rejected the court confronted its cases about noxious use and nuisances and kind of things that are designed to protect the public from harm and said that's not a relevant distinction under the taking matters under the takings clause is whether the government is physically occupying your real property or taking possession or forcing you to give up possession of your person to the government or  you don't give up your position at all yeah and that's an argument that the supreme court squarely rejected as recently as the horn case when the federal government said well if they don't want to turn over their raisins they should take their grapes and make wine and the supreme court said you know let them make wine has never been a very effective argument it isn't here either and it pointed back to the loreto case where it had rejected the argument that if the rental building owner didn't want the cable box on her roof she should stop renting out her property and what the court said in both cases is property rights just aren't that you know manipulable all and if you're really saying you have to permanently i mean and the word in the statute here is permanently alter the property so that it is no longer what it was that you purchased it as the court rejected the notion that the existence of that option is sufficient to eliminate the taking and i think it's particularly notable that the court did so in laredo and horn because those are both per se takings cases so even with those options on the table the court didn't say you know well that's not enough to eliminate it but it's enough to put us in regulatory takings land it said that's not enough to eliminate even the per se taking it is still a physical person taking to say take your grapes and don't make raisins so i don't think argument is any more persuasive here and you know i don't really think that there's any authority for this proposition is there any evidence in the record that possession of banned magazines was ever illegal was ever illegal like at the time that these were obtained yes i don't think it was ever i mean in california it wasn't illegal t two thousand and the federal ban was in place in one thousand nine hundred four but it had a grandfather clause so it was never a legal in california to my knowledge before two thousand and it wasn't illegal as a matter of federal law ever as to people who had  grandfathering you know who would have qualified for a grandfather clause which is the only people we're talking about for purposes of this appeal because we only saw our preliminary injunction and you know as applied to the taking of magazines from people who lawfully obtained them before it was illegal to do contains not a physical how is that the physical taking number one and number two why does and why is that a fair interpretation of police power that they can do so without it being a confiscation sure so so first it's a physical taking because it's a  dispossession i mean the one option that is not available under this statute is continuing to possess your property there are options to give it to a third party but the supreme court made very clear in kilo and the hawaii authority case before it in a whole number of cases it doesn't matter if you have to surrender your property to a third party instead of the government it's still a taking if you can no longer physically possess your property and under this statute within the confines of the state of california there is no way for my clients to continue to physically possess their property unless they are centrally destroy it and convert it into some sort of completely different properties so we do think this is a physical takings case and there is no police power exception in the cases that they rely upon are really criminal and civil cases and the civil and criminal forfeiture cases rely on a very different theory the basic you know what's going on in forfeiture cases is either what you possess you it was contraband when you obtained it you know i mean if someone illegally buys something today that is that they know it's contraband they don't have a reasonable expectation in possessing it and of course the government can confiscate that contraband for them from the other contexts in which civil forfeiture and criminal law applies is a property was used in the commission of a crime and that's again not the government's theory here they're not confiscating i mean to the contrary their congress skating these even though they haven't been using a crime they're saying we we know this law is going to apply to people that lawfully possess them and have long lawfully possess them but we're taking them anyway because we're over night declaring what was lawful yesterday to be contraband today would that be true wouldn't that be true of any new law that would in any way interfere with the possession of weapons i mean that's why if you look at the federal laws i assume that the machine gun ban and the assault weapons ban both had grandfather and clauses and why most of these weapons laws throughout the country have grandfather in closets i don't i don't think that's kind of just out of the the goodness of the hearts of all of these legislatures they have all understood as california itself to it for fifteen years that there isn't takings trouble when you take property that was unlawful as a matter of your own law to acquire and just decide the next day we're going to declare it contraband and i think it's a really slippery slope to accept the proposition that the state can just to clear anything that it thinks it is you know harmful to the public and health and safety contraband and confiscated from the people even if they lawfully obtained it yesterday because you can think of all manner of things well outside the context of second amendment rights and firearms that the state could deem to be harmful to the people and that's why in lucas the supreme court squarely rejected the argument that the takings clause doesn't apply so long as the government says oh we're protecting against the harm instead of providing some sort of benefit to the public it's like what matters is if you're taking the property and here you're that is what you're doing and so in this case i think that applies with full force and at with enough force that at the preliminary injunction stage the court clearly didn't abuse its discretion by saying you know we're not going to require you to surrender your property for destruction or require you to permanently physically alter it before we can even this very serious constitutional concern there's no further questions i ask the court to affirm thank you very much ok i'll try to be fair i'll give you a minute and if there is no police power exception then just compensation must be paid to the owners of these large capacity magazines just compensation is a legal remedy where there is a legal remedy available and equitable remedy will not issue and that's bounds in what happened here and as it goes to taking i'm afraid lucas is your biggest problem you've got so lucas was a case involving real property i know and as horn made clear it did horn did extend the per se physical takings rule to apply to private possessions but it made clear that with respect to personal property regulatory takings a regular regular asians can diminish the value in personal property it can reduce in restrict the