B.L.U.F. The 2008 Heller case was a huge win for us. Yet somehow it didn’t result in the changes in infringements we expected. This is one of the cases we lost which was used to keep infringing regulations in place.

In this interlocutory appeal, Leonard Fyock, William Douglas, Scott Hochstetler, David Pearson, Brad Seifers, and Ron Swanson (collectively “Fyock”) challenge an order denying their request to preliminarily enjoin an ordinance recently enacted by the City of Sunnyvale, California (“Sunnyvale”), restricting the possession of “large-capacity magazines”—statutorily defined as a detachable ammunition feeding device capable of accepting more than ten rounds. Fyock claims that Sunnyvale’s ordinance, part of a ballot measure known as Measure C, violates his Second Amendment right to keep and bear arms and will irreparably harm him if not immediately enjoined.
Fyock v. Sunnyvale, 779 F. 3d 991 – Court of Appeals, 9th Circuit 2015

Why is this case important?

This case is important because this is one of the circuit level cases cited in multiple Second Amendment cases to support the use of intermediate scrutiny. The other commonly cited case is Kolbe v Hogan which was decided in the 4th circuit court.

These two cases came post Heller. As discussed multiple times in previous articles, when a case is decided that puts the brakes on for some sort of infringement, the infringers read through those opinions with a fine tooth comb looking for something to hang their infringements on.

Prior to Heller cases were heard and dismissed for lack of standing. Those same cases, post Heller came back through the courts and the state had new arguments to support their infringements that fit within the framework set out in Heller.

We’ve all had this type of argument. They say something you disagree with. You counter with your argument. They bring up supporting evidence and you counter. You win because you have a better grasp of the facts and reality. They immediately tell you that they didn’t have the position they had because of the reasons they just argued unsuccessfully with you, no it is this other reason.

I’m a numbers guy. My brain hears numbers and they just make sense. When we were dissolving a LLC the other people in the LLC were buying us out. They offered a sum. They justified it with a set of numbers. I pointed out their numbers were bogus. At the next arbitration they offered exactly the same sum but with an entirely different set of justification numbers.

Those were just as bogus. I shot them down. At the next arbitration they offered the same amount yet again with still a third set of numbers to justify. I showed how those numbers were bogus as well. I then asked “All you have for the buy out is that sum, right?” They looked at each other and nodded.

“Ok, then stop trying to justify that offer with bogus numbers. It is what you have and there isn’t any more.”

Sometimes these court cases feel like that. The state has but a single position and they will argue that position a dozen different ways, all as bogus as the last.

LCM in Sunnyvale California

After Heller the states didn’t have the same knee jerk reaction at the legislative level that they did after Bruen, instead the issues were fought in court. In court the state through plate after plate of spaghetti at the wall to see what would stick. As soon as one piece stuck, the rest of the infringing states incorporated that argument into their own building up case law to the point where the Heller opinion had been all but neutered.

Fyock v. Sunnyvale came about because the city of Sunnyvale decided to “do something” and passed an ordinance banning Large Capacity Magazines.

The history of LCM bans in California started with the federal “Crime Control Act” of 1994. Part of the CCA was the AWB. There was also a LCM ban as part of that. In 2000 California put into place a ban on the manufacture, sale, purchase, transfer, and receipt of LCMs. They did not ban the possession of LCMs.

They didn’t feel the need to for some reason.

In 2004, the CCA sunset ending the federal AWB and LCM ban.

The state and the Ninth Circus court declared that this created a “loophole” where people in California could possess LCMs even if they couldn’t get new ones.

In 2013, the city of Sunnyvale had a citizen driven initiative on the ballot to ban the possession of LCMs. It passed.

The city justified this ban based on “recent mass shootings” and in recognition of the “violence and harm caused by and resulting from the intentional and accidental misuse of guns.”.

The Courts starting position and “the question”

The ordinance provides:

No person may possess a large-capacity magazine in the city of Sunnyvale whether assembled or disassembled. For purposes of this section, “large-capacity magazine” means any detachable ammunition feeding device with the capacity to accept more than ten (10) rounds, but shall not include any of the following:

  1. A feeding device that has been permanently altered so that it cannot accommodate more than ten (10) rounds; or
  2. A .22 caliber tubular ammunition feeding device; or
  3. A tubular magazine that is contained in a lever action firearm.


The court acknowledges that there are exceptions for certain classes of people. I’m sure there is a lawyer out there that can find the part of US Code that prohibits discrimination based on what job you have but I don’t have the google foo to find it.

With this ordnance going into effect on 2013-12-06 the residents of Sunnyvale had until 2014-03-06 to divest themselves of their LCMs.

Here the Ninth Circuit court dodges the question and puts responsibility back on the district court for the determination of the merits of the case. Instead they rule on how the district court made its determination.

We saw this in Antonyuk II when the Supreme Court denied cert. until the Second Circuit Court has heard the appeal. The opinion written by Alito with Thomas concurring said as much. The Supreme Court declined to hear the appeal until such time as the lower courts had finished their work.

To wit:

We review the denial of a preliminary injunction for abuse of discretion and the underlying legal principles de novo. DISH Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir.2011). As a result, we are not called upon today to determine the ultimate merits of Fyock’s claims. Instead, we are called upon to determine whether the district court relied on an erroneous legal premise or abused its discretion in denying Fyock’s motion seeking preliminary injunctive relief. See Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir.2010). In making this determination, we consider “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” DISH Network Corp., 653 F.3d at 776 (quoting Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir.1982)).

The Court then explains that they intentionally do not address the merits of cases being appealed at this stage because they don’t want to clue the parties into what they believe the merits are prior to the case being heard and evidence being given.

What needs to happen to get a preliminary injunction

The Court defines what it required to obtain a preliminary injunction:

To obtain a preliminary injunction, Fyock was required to show (1) he is likely to succeed on the merits of his claim, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of hardships tips in his favor, and (4) a preliminary injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Because we determine that the district court did not abuse its discretion in finding Fyock failed to demonstrate the first element for a preliminary injunction, we need not reach the remaining elements. See Jackson v. City and Cnty. of San Francisco, 746 F.3d 953, 970 (9th Cir.2014); DISH Network Corp., 653 F.3d at 776-77.

Per normal, the court stops its analysis as soon as it can. They do not analyze how much harm the plaintiff will suffer, whether the hardships tip in his favor, nor if the preliminary injunction is in the public’s interest. The party asking for the preliminary injunction has to meet all four parts in order to prevail.

In many Second Amendment cases prior to Bruen the court would find for the plaintiffs(good guys) for the first 3 and then decided that the public interest precluded them from granting the preliminary injunction.

Since this is a post Heller decision, where the Supreme Court confirmed Second Amendment has “the core lawful purpose of self-defense” and “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. quoting Heller the inferior courts must determine if the infringement is within the scope of the Second Amendment and regulation of the right in keeping with the text and history of the Second Amendment is permissible.Id.

Here the court confirms what we knew, that Second Amendment cases needed to be judged by text and history.

The court then goes on to reference another case to justify intermediate scrutiny. Again, self references seem to abound in law. We decided this once before so we won’t look at this issue again sort of thing.

US. v. Chovan as support for Fyock v. Sunnyvale

We rejected Brailey’s argument, concluding that his civil rights had never been “lost” because his misdemeanor conviction had not taken away his “core civil rights”: the right to vote, to sit as a juror, or to hold public office. Id. at 613. Because Brailey’s civil rights had never been lost, we reasoned that they could not have been restored. We noted that most other circuits had also concluded that, “where civil rights are not divested for misdemeanor convictions, a person convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception.” Id. at 612 (citing United States v. Jennings, 323 F.3d 263 (4th Cir.2003); United States v. Barnes, 295 F.3d 1354 (D.C.Cir.2002); United States v. Smith, 171 F.3d 617 (8th Cir.1999)); see also Logan v. United States, 552 U.S. 23, 37, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007) (holding that a different “civil rights restored” exception did not apply to “an offender who lost no civil rights”). Thus, we concluded that Brailey failed to meet § 922(g)(9)’s civil rights restored exception.
US v. Chovan, 735 F. 3d 1127 – Court of Appeals, 9th Circuit 2013

Here the Ninth Circuit court states that the right to keep and bear arms is not part of his core civil rights. Note that all of the cases the cite are prior to Heller. This means that anything they had to say about core civil rights and the Second Amendment are moot.

The Court attempts to downplay the strength of the Heller opinion The Heller Court suggested that the core of the Second Amendment right is to allow “law-abiding, responsible citizens to use arms in defense of hearth and home.”Id. The Supreme Court more than “suggested” that the core Second Amendment right was the right to self-defense, they explicitly stated it, as quoted by the Ninth Circuit.

The Ninth then says this: Finally, the Court established that “weapons not typically possessed by law-abiding citizens for lawful purposes” are not protected by the Second AmendmentId. quoting Heller They fail to discuss that “typically possessed” is defined by the Supreme Court to mean “in common use”.

And then the Ninth justifies the infringement they are about to indorse with longstanding prohibitions are presumptively lawful regulatory measuresId.

How to sound like you support the Second Amendment

The state argued that §922(g)(9) does fall within the scope of the Second Amendment but assume that it is constitutional on its face. They reason that since å922(g)(9) was not mentioned in Heller that it is one of the presumptively lawful regulatory measures. Even though §922(g) didn’t come into effect until 1968 and §922(g)(9) didn’t come into effect until 1986(?) that it is part of a long standing prohibitions against people perceived as dangerous or violentId.

The Ninth said “Nope”. This does not qualify as long standing and does not meet the requirement of text, history and tradition. Good for them.

Then Ninth does their pretzel trick. In Heller the Supreme Court did not say to use strict or intermediate scrutiny, instead they mentioned in passing that “rational basis”, the lowest form of scrutiny. The Supreme Court said If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.Heller

Notice the actual grammar used, if rational basis was all that was required then the Second Amendment wouldn’t mean anything. The Ninth will then go on to say that intermediate scrutiny is all that is required. Which gets them exactly the same results as if they used rational basis.

…More specifically, the level of scrutiny should depend on (1) “how close the law comes to the core of the Second Amendment right,” and (2) “the severity of the law’s burden on the right.” Ezell, 651 F.3d at 703.

Heller tells us that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635, 128 S.Ct. 2783. Section 922(g)(9) does not implicate this core Second Amendment right because it regulates firearm possession for individuals with criminal convictions. …
US v. Chovan

We are seeing in multiple courts around the country where post Bruen that multiple parts of §922(g) are being challenged and we are winning.

The court acknowledges that while §922(g)(9) places a substantial burden on Chovan, it doesn’t put a substantial burden on the law-abiding. Because it doesn’t impact the law-abiding, the proper scrutiny, according to the court, is intermediate.

Thus the Ninth in US v. Chovan find that the proper scrutiny for Second Amendment cases (for domestic violence misdemeanors) that in Fyock v. Sunnyvale intermediate scrutiny should apply even though the plaintiffs are all law-abiding citizens.

Back to Fyock v. Sunnyvale

The Ninth says that the state has not provided any historical support for LCM bans. They go onto say that the state hasn’t presented any evidence that LCMs are “Dangerous and Unusual Weapons”. Good.

The Ninth then goes on to say that Fyock didn’t prove that LCMs are commonly possessed by law-abiding citizens for lawful purposes. They claim that Fyock relied on marketing and sales statistics.

Since Fyock v. Sunnyvale was heard in 2015 and Caetano v. Massachusetts was decided in 2016 there was no Supreme Court definition or lower limit on “commonly possessed”. Caetano established the lower limit at 200,000.

Regardless, the Ninth said that the District Court did not abuse its discretion when the district court found that LCMs were in common use.

Of note, at this point, post Bruen, this case should have gone for the plaintiffs. But we are still pre Bruen.

The Ninth Circuit court looks for decisions outside of themselves for guidance:

The D.C. Circuit is the only circuit court to date that has analyzed the constitutionality of a law prohibiting the possession of large-capacity magazines. In its well-reasoned opinion, the court explained that D.C.’s “prohibition of … large-capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves.” Heller II, 670 F.3d at 1262. Therefore, the regulation’s burden on the core Second Amendment right was not substantial and warranted intermediate scrutiny review. Id. at 1261-62.
Fyock v. Sunnyvale

The Ninth then reasons that since a LCM ban is not as sweeping as the complete handgun banId. in Heller that they don’t have to use “strict scrutiny”.

Having come to the predetermined conclusion that they should use intermediate scrutiny, all the court needs to do is find that the state had “substantial and important government issues” and the LCM ban was upheld as constituional.


This is the same process that is playing out now, post Bruen with the minor difference that the states that were are infringing decided to give the finger to the Supreme Court. All of the laws passed post Bruen that attempt to make the cost of carrying or the cost of getting a permit or the risks to carrying outside of your home are extreme.

Because they are extreme, it is much easier for the courts to slap them down. We are finding case after case where inferior courts at the lowest levels are finding for the Second Amendment. They are doing it correctly. The few that are not get laughed at.

The state, in both the creation of new laws and in the courts, are throwing everything they possibly can at the wall to see what sticks.

We need to be vigilant to the games that are played in the courts. Courts like the Ninth Circuit will make small, justifiable decisions that are only small infringements. They will then self reference to make a greater infringement constitutional. The other anti-gun courts will take up these decisions and before you know it we have a history of case law, again, that is against us.

We are going to see some places get sensitive places labels slapped on them and it is going to stick. We are going to get courts that are going to accept “reasonable training requirements”. And these will lead to still more infringements.

If you made it to the end, thank you. I’m taking a some of the feedback given and attempting to make this all work better for you all.

I’m using the “Read More” and I’ve added headers to make it easier to find different sections.

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By awa

One thought on “Cases we Lost: <i>Fyock v. Sunnyvale</i> 9th Circuit 2015”
  1. I do not know exactly why but the side note about the company only having one number to work with and trying to dress it up different ways made a lot of things “click” and was rather helpful.

    Reading these I am always amazed when a court who is given extreme authority under our social contract decides it can just make the work easier for itself and lower standards and because of that how large the disconnect is between the average joe and the people making those calls.

Only one rule: Don't be a dick.

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