Sunnyvale’s Large Capacity Magazine Ban Survives Appeal – Preliminary Injunction Denied

In 2013, the voters of the City of Sunnyvale (“City”) approved a measure restricting high capacity magazines. The measure was contested, and in Fyock v. City of Sunnyvale (9th Cir. 2015) ___ F.3d ___, the 9th Circuit upheld the ordinance, by affirming the trial court's denial of a preliminary injunction that would have prevented Measure C from going into effect.


In November 2013, in the wake of some high profile mass shootings, the voters of Sunnyvale passed Measure C. Measure C restricts the possession of magazines that hold 10 or more rounds. Measure C, however, contains certain exceptions, including an exception for weapons that cannot operate with magazines of fewer than 10 rounds.

Claiming that it violated their Second Amendment right to keep and bear arms, a group of individuals sought a preliminary injunction against the enforcement of Measure C. The district court denied the preliminary injunction, holding that the City presented sufficient evidence showing that ordinance was likely to survive constitutional scrutiny. The plaintiffs filed an interlocutory appeal challenging the decision.

The Decision

The 9th Circuit held that the district court did not abuse its discretion in refusing to enjoin the enforcement of Measure C.

The 9th Circuit discussed the proper legal standard to evaluate Measure C. First, a court should evaluate whether the proposed regulation burdens activity protected by the Second Amendment. Next, the court should determine the proper level of “scrutiny” by analyzing how much the regulation impacts the “core” Second Amendment right of the lawful use of firearms for self-defense. The level of scrutiny determines how much a court will defer to the government’s justification for the regulation. For example, “intermediate” scrutiny requires the government to show that the prohibition on high capacity magazines is a reasonable regulation to accomplish the government’s objective (i.e., the promotion of public safety).

Applying intermediate scrutiny, the district court relied on the City's evidence showing the danger of large capacity magazines. The 9th Circuit found that the district court's legal reasoning and reliance on such evidence was acceptable. The 9th Circuit also found that the exceptions contained within Measure C enhanced the law’s reasonableness. As a result, the 9th Circuit affirmed the district court’s denial of the plaintiffs’ request for a preliminary injunction.

What This Means To You

The constitutionality of many local firearm regulations has been questioned since the Supreme Court’s landmark decision in District of Columbia v. Heller (2008) 554 U.S. 570. The Court’s decision and Fyock suggests that local restrictions on high capacity magazines may be constitutionally permissible, particularly if they contain exceptions for the most legitimate uses of such magazines. However, Second Amendment jurisprudence is in a relatively early stage of development, and the line between constitutional and unconstitutional firearm restrictions has not been clearly defined. As such, cities and counties should work closely with counsel in drafting any firearm restrictions.


If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Anthony Bento or Maggie Stern | 916.321.4500