FILED

NOT FOR PUBLICATION DEC 09 2009

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

VIDEO GAMING TECHNOLOGIES, No. 09-16092 INC., a Tennessee corporation; JOAN SEBASTIANI, an individual, D.C. No. 2:08-cv-01241-JAM-

EFB

Plaintiff,

and MEMORANDUM *

UNITED CEREBRAL PALSY OF

GREATER SACRAMENTO, a California non-profit corporation; WIND YOUTH SERVICES, a California non-profit corporation; ROBERT FOSS, an individual,

Plaintiffs - Appellees,

v.

BUREAU OF GAMBLING CONTROL, a law enforcement division of the California Department of Justice; MATHEW J. CAMPOY, in his official capacity as the Acting Chief of the Bureau of Gambling Control,

Defendants - Appellants,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. v.

HAGGIN GRANT POST NO. 521, THE

AMERICAN LEGION, DEPARTMENT

OF CALIFORNIA; CASA ROBLE HIGH

SCHOOL RAMSMEN, INC.; MARY

BROWN, an individual; EL CAMINO ATHLETIC BOOSTER CLUB, a California non-profit corporation;

CAPITAL BINGO, INC.,

Plaintiff-intervenors - Appellees.

VIDEO GAMING TECHNOLOGIES, No. 09-16165 INC., a Tennessee corporation, D.C. No. 2:08-cv-01241-JAM- Plaintiff, EFB

JOAN SEBASTIANI, an individual,

Plaintiff,

and

UNITED CEREBRAL PALSY OF

GREATER SACRAMENTO, a California non-profit corporation; WIND YOUTH SERVICES, a California non-profit corporation; ROBERT FOSS, an individual,

Plaintiffs - Appellees,

v.

BUREAU OF GAMBLING CONTROL, a law enforcement division of the California Department of Justice; MATHEW J. CAMPOY, in his official capacity as the Acting Chief of the Bureau of Gambling Control,

Defendants,

and

JOHN MCGINNESS, in his official capacity as Sacramento County Sheriff,

Defendant - Appellant,

v.

HAGGIN GRANT POST NO. 521, THE

AMERICAN LEGION, DEPARTMENT

OF CALIFORNIA; CASA ROBLE HIGH

SCHOOL RAMSMEN, INC.; CAPITAL

BINGO, INC.; MARY BROWN, an individual; EL CAMINO ATHLETIC BOOSTER CLUB, a California non-profit corporation,

Plaintiff-intervenors - Appellees.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted October 8, 2009 San Francisco, California

Before: WALLACE, THOMAS and BYBEE, Circuit Judges. The California Bureau of Gambling Control and the Sacramento County

Sheriff bring this appeal from the entry of a preliminary injunction. The appellees

- individuals with disabilities, not-for-profit organizations that raise funds by

offering bingo, and a manufacturer of certain electronic bingo games - allege that a

recently-enacted California law expressly banning certain electronic bingo

machines, 2008 Senate Bill 1369, amending Cal. Pen. Code y 326.5 et seq.,1 runs

afoul of Title II of the Americans with Disabilities Act, 42 U.S.C. yy 12131-34.

The district court granted a preliminary injunction prohibiting California state and

local law enforcement, including appellants the California Bureau of Gambling

Control and the Sacramento County Sheriff, 'from taµing any enforcement action

against and/or interfering with the play of charitable bingo on electronic machines

in any way.' We hold that the district court abused its discretion in granting the

injunction and therefore reverse.2

I

1 Senate Bill 1369 amended the California Penal Code in two ways: (1) it specifically outlawed most electronic bingo machines, Cal. Pen. Code y 326.5(o), and (2) it specifically allowed certain electronic accommodations for the play of live call bingo, id. y 326.5(p) et seq. 2 As the parties are familiar with the facts and proceedings, we will not repeat them here except as necessary to explain our reasoning.

-4- 'A plaintiff seeµing a preliminary injunction must establish [1] that he is

liµely to succeed on the merits, [2] that he is liµely to suffer irreparable harm in the

absence of preliminary relief, [3] that the balance of equities tips in his favor, and

[4] that an injunction is in the public interest.' Winter v. Natural Res. Def.

Council, Inc., 129 S. Ct. 365, 374 (2008). In each case in which a party seeµs a

preliminary injunction, 'courts must balance the competing claims of injury and

must consider the effect on each party of the granting or withholding of the

requested relief.' Id. at 376 (internal quotation marµs and citation omitted). 'A

preliminary injunction is an extraordinary remedy never awarded as of right,' id. at

376, and where the party seeµing a preliminary injunction fails to satisfy any one

of the Winter factors, the preliminary injunction must be denied. Id. at 375-76.

II

Here, plaintiffs failed to show that they were liµely to suffer irreparable

harm in the absence of preliminary relief, that the balance of equities tipped in their

favor, and that an injunction was in the public interest.3 The district court therefore

abused its discretion in granting plaintiffs' motion for a preliminary injunction.

3 Because we hold that plaintiffs failed to satisfy the irreparable harm, balance of equities, and public interest prongs of the Winter test, we do not address plaintiffs' liµelihood of success on the merits of their claims. See Winter, 129 S. Ct. at 381.

-5- A

We have held 'that a state suffers irreparable injury whenever an enactment

of its people or their representatives is enjoined.' Coal. for Econ. Equity v. Wilson,

122 F.3d 718, 719 (9th Cir. 1997). Whatever qualms the district court may have

had about the swiftness of its enactment, Senate Bill 1369 was passed by the

California Legislature and signed into law by the state's governor. It is therefore

'an enactment of . . . [California's] representatives,' the injunction of which

irreparably harms appellants under this court's precedent.

As to the harm the plaintiffs must show, the Supreme Court has emphasized

that 'recognition of the need for a proper balance between state and federal

authority counsels restraint in the issuance of injunctions against state officers

engaged in the administration of the states' criminal laws in the absence of

irreparable injury which is both great and immediate.' City of Los Angeles v.

Lyons, 461 U.S. 95, 112 (1983). Here, neither the charitable organization plaintiffs

nor the disabled plaintiffs demonstrated that they would suffer any 'great and

immediate' irreparable injury in the absence of a preliminary injunction.

The charitable organization plaintiffs assert that not having electronic bingo

machines will significantly hinder their fundraising ability, but monetary injuries to

these plaintiffs are not irreparable. It is true that this circuit has held that, in some

-6- circumstances, monetary injuries may be irreparable if Eleventh Amendment

sovereign immunity will bar a party from ever recovering those damages in federal

court, California Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d 847, 851-52 (9th

Cir. 2009), but we need not delve into that issue here. Senate Bill 1369 created a

Charity Bingo Mitigation Fund, from which funds are made available to charitable

organizations for the very purpose of mitigating the financial impact of the law.

Cal. Pen. Code y 326.4 et seq. We conclude that the charitable association

plaintiffs have not shown that they face 'great and immediate' irreparable harm.

By contrast, the disabled plaintiffs maintain that, in the absence of a

preliminary injunction, they (liµe everyone else in California) will be prevented

from playing electronic bingo. That may be true, but they (liµe everyone else in

California) will still be able to play live call bingo, and they will be able to use the

electronic and non-electronic aids expressly available under state and local law.

The temporary inability of the disabled plaintiffs to play a game illegal to all other

individuals in California cannot be deemed a 'great and immediate' harm.

Moreover, plaintiffs have not explained why such harm could not meaningfully be

remedied in a subsequent claim for damages.

B

-7- A party seeµing injunctive relief 'must establish . . . that the balance of

equities tips in his favor.' Winter, 129 F.3d at 374. In assessing whether a party

has met this burden, the district court has a 'duty . . . to balance the interests of all

parties and weigh the damage to each.' L.A. Mem'l Coliseum Comm'n v. Nat'l

Football League, 634 F.2d 1197, 1203 (9th Cir. 1980).

Here, the balance of equities does not favor injunctive relief. The State of

California and Sacramento County have strong interests in regulating gambling

and in enforcing their criminal laws, and the damage to these interests from the

preliminary injunction is quite serious. By contrast, the disabled plaintiffs seeµ to

gamble using electronic machines that are unavailable under state law to everyone

else in California, and the charitable organization plaintiffs seeµ to raise money

through the use of these illegal machines. Had the district court correctly

'balance[d] the interests of all parties and weigh[ed] the damage to each,' id., it

could not have held that the balance of equities favored granting the injunction.

C

Finally, the district court also abused its discretion in holding that a

preliminary injunction was in the public interest. 'In exercising their sound

discretion, courts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.' Winter, 129

-8- S. Ct. at 376-77 (quotation marµs and citation omitted). But in this case, as in

Winter itself, '[t]he district court did not give serious consideration to the public

interest factor.' Id. at 378 (quotation marµs and citation omitted; alteration in

original).

Here, the preliminary injunction conflicted with the public interest in two

ways: first, by frustrating the public's interest in strictly regulating gambling,

including charitable bingo, and second, by frustrating the public's interest in the

enforcement of state and local criminal laws. The State of California has strictly

regulated gambling in general, and bingo in particular, for decades, not only by

statute but by its Constitution. See C AL. C ONST. art. IV, y 19(c). In the past year,

California's legislature and its governor - the public's elected representatives -

approved a law both proscribing the precise electronic bingo machines at issue in

this case and providing for accommodations for disabled persons wishing to play

live call bingo. The people of California have thus repeatedly expressed, and

recently reaffirmed, their interest in strictly regulating gambling in their state,

including charitable bingo. As for the public's interest in the enforcement of state

and local criminal laws, no further explication is necessary.

III

-9- In sum, the district court abused its discretion in granting the preliminary

injunction, as plaintiffs failed to satisfy the irreparable harm, balance of equities,

and public interest prongs of the Winter test. The judgment is reversed and the

case remanded to the district court.

The panel will retain jurisdiction in this case.

REVERSED.

-10-

FILED

DEC 09 2009

United Cerebral Palsy v. Bureau of Gambling, Nos. 09-16092 and 09-16165

MOLLY C. DWYER, CLERK

BYBEE, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS

I fully agree with the majority that the district court abused its discretion in

granting the preliminary injunction. However, I write separately to emphasize that,

although the majority declined to reach the issue, in my view the plaintiffs plainly

have not demonstrated any liµelihood of success on the merits of their claims under

Title II of the Americans with Disabilities Act (ADA). Electronic slot machines

are not a reasonable accommodation for disabled persons who wish to play live

call bingo, and the ADA does not require California to permit such slot machines

just because they have been titled 'electronic bingo.'

Title II of the ADA, 42 U.S.C. yy 12131-34, requires that where the

government provides a service to non-disabled persons, reasonable

accommodations must be available for disabled persons to use the service offered

to non-disabled persons. Here, plaintiffs' Title II claims are infirm for two

reasons: (1) reasonable accommodations exist that allow disabled persons to play

live call bingo, the only bingo 'service' that may lawfully be offered to non-

disabled persons in California; and (2) the electronic gaming machines at issue in

this case do not offer live call bingo, but rather a completely different casino-style

game virtually indistinguishable from a run-of-the-mill slot machine, and thus do not qualify as an accommodation to any service offered to non-disabled persons by

the State of California.

Under Title II, 'no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination

by any such entity.' 42 U.S.C. y 12132; see also McGary v. City of Portland, 386

F.3d 1259, 1265 (9th Cir. 2004) (describing the elements of a Title II claim).

Where a disabled plaintiff demonstrates that she is denied meaningful access to a

service provided by a public entity by virtue of her disability, Title II requires only

'reasonable modifications that would not fundamentally alter the nature of the

service provided.' Tennessee v. Lane, 541 U.S. 509, 532 (2004) (internal

quotation marµs omitted); see also 28 C.F.R. y 35.130(b)(7). In the instant case, it

is clear that plaintiffs cannot prevail on their Title II claims.

As an initial matter, Title II applies only where a disabled individual is

'excluded from participation in or denied the benefits of [a] public entity's

services, programs, or activities, or [i]s otherwise discriminated against by [a]

public entity.' McGary, 386 F.3d at 1265. Since charitable bingo is provided in

California only by private entities, any denial of meaningful access to traditional

live call bingo attributable to bingo parlors is not cognizable under Title II. The

-2- only possible Title II claim plaintiffs can maµe out must be premised on legal

impediments imposed by California on plaintiffs' play of live call bingo. To put it

another way, if state and local law allows reasonable modifications that assist

plaintiffs in the play of live call bingo, plaintiffs have no claim under Title II.

Here, the Bureau and the Sheriff proffered credible, admissible evidence

showing that reasonable accommodations to assist disabled individuals in the play

of live call bingo were available under state and local law at the time of the hearing

on the preliminary injunction.1 For example, one declarant attested that there were

'numerous electronic bingo monitoring devices available that assist disabled bingo

patrons in the play of traditional live call bingo' by 'notif[ying] the individuals of

the existence of a winning bingo card and assist[ing] in daubing, but not taµ[ing]

the place of participation in the live-call bingo game.' Another described

'[e]lectronic bingo monitors . . . [that] allow patrons participating in a live bingo

game to µeep tracµ of the calls for a larger number of bingo cards than they

1 Shortly after the injunction was granted, California promulgated regulations specifically addressing the availability of accommodations for the disabled in live call bingo. See Cal. Admin. Code tit. 4, y 12482 et seq. These new regulations should put the matter beyond any doubt. Indeed, after the enactment of S.B. 1369 and the promulgation of these regulations, even VGT - an original plaintiff in this action and the manufacturer of most of the electronic bingo games subject to the preliminary injunction - concedes that plaintiffs' Title II claims have no legal merit.

-3- otherwise might' and that 'enable . . . persons with disabilities that prevent them

from immediately daubing their bingo cards in response to live calls, to µeep up

with the game and accurately daub their winning combinations on their bingo cards

as they occur.'

Critically, at the time of the district court's order, California law explicitly

permitted '[p]layers who are physically present at a bingo game [to] use hand-held,

portable card-minding devices, as described in this subdivision, to assist in

monitoring the numbers or symbols announced by a live caller as those numbers or

symbols are called in a live game.' Cal. Pen. Code y 326.5(p)(1). Non-electronic

accommodations - for example, Braille cards - would also have been permissible

under California law. See Cal. Pen. Code y 326(o). By contrast, plaintiffs offered

no evidence that electronic aids such as card-minding devices could not effectively

assist disabled persons in the play of live call bingo, and the evidence plaintiffs did

offer indicated that legally-permissible aids such as card-minders could have

accommodated the precise difficulties plaintiffs faced in the play of live call bingo.

The district court also abused its discretion with respect to another

prerequisite of a Title II claim under the ADA. Even if California had failed to

provide for any accommodations so that disabled plaintiffs were denied

'meaningful access' to live call bingo, Title II would require only 'reasonable

-4- modifications that would not fundamentally alter the nature of the service

provided.' Lane, 541 U.S. at 532 (internal quotation marµs omitted). Yet the

casino-style electronic gaming machines at issue in this case fundamentally alter

the nature of live call bingo - the only type of bingo legally available to any

individual in California, and thus the only government 'service' possibly

implicated in this case - and are therefore simply not reasonable accommodations

within the meaning of the ADA.

The electronic devices at issue in this litigation are, by any measure, slot

machines. They bear no resemblance to true electronic aids such as card minding

devices that actually assist disabled persons in the play of live call bingo. The

VGT bingo machines pictured in the record feature buttons for 'BET' and 'BET

MAÈ' as well as three spinning reels adorned with colorful 7s, SPINs, BARs, and

cherries, all alongside a 'payout schedule' explaining how many credits are

awarded when various icons on the spinning reels align. As with a slot machine, a

player on one of the electronic bingo machines deposits a sum of money and is

assigned a corresponding number of credits, with each credit having a monetary

equivalent. The player chooses the size of his or her bet, and a game is completed

within a matter of seconds. The game is utterly passive, as it does not require the

player to do anything at all except bet. At the conclusion of each game, a graphic

-5- interface of slot machine-style reels accompanied by audio informs the player

whether he or she has won. The player wins proportionately more money by

achieving particular patterns, with some unusually rare patterns apparently paying

out at rates hundreds of times the size of the player's bet. In contrast to live call

bingo, a player on one of VGT's machines can 'sleep' a bingo pattern for several

minutes without the threat of losing his or her winnings.

While appellees occasionally refer to the video bingo devices at issue here as

'electronic bingo aids,' this is not a case in which a disabled plaintiff seeµs to use

a device to assist him in joining an existing, legal game. Rather, appellees demand

that California permit a different game that operates independently of the live call

games permitted by state law. The distinction between electronic aid in the play of

an existing game and a wholly distinct electronic game is a critical one under the

ADA. By way of analogy, while the ADA requires that a disabled golfer who

qualifies for the PGA Tour be allowed the use of a cart, see PGA Tour, Inc. v.

Martin, 532 U.S. 661 (2001), it cannot seriously be argued that the ADA requires

the PGA to allow qualification for, and competition in, its events on electronic

simulators or on arcade machines, regardless of the verisimilitude between

Augusta National's actual fairways and their electronic analogues.

While I agree with the majority that the district court abused its discretion

-6- with respect to the irreparable harm, balance of equities, and public interest prongs

of the preliminary injunction test, I would also reverse the district court's judgment

on the grounds that plaintiffs had demonstrated no liµelihood of success on the

merits of their ADA claims.

-7-