Pizzo v. Lee et al, No. 4:2009cv04493 - Document 112 (N.D. Cal. 2012)

Court Description: ORDER DENYING PLAINTIFFS 60 MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS ( 71 and 90 ) CROSS MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 12/5/2012. (ndr, COURT STAFF) (Filed on 12/5/2012) Modified on 12/5/2012 (ndr, COURT STAFF).

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Pizzo v. Lee et al Doc. 112 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 THERESE MARIE PIZZO, 5 Plaintiff, 6 7 8 9 United States District Court For the Northern District of California 10 11 12 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Docket No. 60) AND GRANTING DEFENDANTS’ CROSSMOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 71 and 90) v. CITY & COUNTY OF SAN FRANCISCO; KAMALA HARRIS, in her official capacity as California Attorney General; EDWIN LEE, in his official capacity as Mayor of the City & County of San Francisco; GREG SUHR, in his official capacity as San Francisco Police Chief; and ROSS MIRKARIMI, in his official capacity as the Sheriff of San Francisco, 13 14 No. C 09-4493 CW Defendants. ________________________________/ 15 Plaintiff Therese Marie Pizzo moves for summary judgment on 16 her claims against Defendants Edwin Lee in his official capacity 17 as the Mayor of the City and County of San Francisco, Greg Suhr in 18 his official capacity as the San Francisco Police Chief, Ross 19 Mirkarimi in his official capacity as the San Francisco Sheriff 20 (collectively, the City) and Kamala Harris in her official 21 capacity as California Attorney General.1 22 Plaintiff’s motion and have filed cross-motions for summary 23 judgment, which Plaintiff has opposed. 24 Against Violence (LCAV) has filed a brief in support of 25 Defendants’ cross-motions. Defendants oppose Amicus Legal Community Amicus National Rifle Association, 26 27 28 1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court SUBSTITUTES Sheriff Mirkarimi in place of former Acting Sheriff Vicki Hennessy. Dockets.Justia.com 1 Inc. (NRA) has filed a brief supporting none of the parties. 2 Having considered the papers filed by the parties and the amici, 3 and their arguments at the hearing on these motions, the Court 4 GRANTS Defendants’ motions and DENIES Plaintiff’s motion. 5 6 7 BACKGROUND I. Regulation of firearms and ammunition in San Francisco The carrying of weapons, including firearms, in California is 8 governed by the Deadly Weapons Recodification Act of 2010. 9 Penal Code § 16000, et seq. Cal. This law, along with several other United States District Court For the Northern District of California 10 state statutes, prohibit certain categories of people from 11 possessing firearms, including people convicted of certain crimes, 12 people subject to a temporary restraining order and people 13 receiving inpatient mental health treatment and determined to be a 14 danger to themselves or others. 15 §§ 29800(a) (persons convicted of certain felonies or addicted to 16 narcotic drugs), 29825 (persons subject to a protective order or 17 temporary restraining order); Cal. Wel. & Inst. Code § 8100(a) 18 (certain patients receiving mental health treatment). 19 who do not fall into these excluded categories, state law 20 provides, 21 22 23 24 25 26 See, e.g., Cal. Penal Code For people No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, . . . to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident. Cal. Penal Code § 25605(b). 27 Although state law does not restrict the open or concealed 28 possession of a firearm on private property, various state laws 2 1 restrict the carrying of firearms in public. 2 prohibits carrying a concealed weapon in public without a license. 3 Cal. Penal Code §§ 25400, 25655. 4 prohibits carrying a loaded firearm in public. 5 § 25850. 6 possession of a loaded firearm. 7 “any person from having a loaded weapon, if it is otherwise 8 lawful, at the person’s place of residence, including any 9 temporary residence or campsite.” State law generally State law also generally Cal. Penal Code There are a number of exceptions to this prohibition of For example, it does not prohibit Cal. Penal Code § 26055. It United States District Court For the Northern District of California 10 also does not apply to, among others, 11 to carry a concealed weapon or people who reasonably believe that 12 either they or their property are in immediate, grave danger and 13 that carrying a weapon is necessary for the preservation of their 14 person or property. 15 law also generally restricts the open carrying of an unloaded 16 firearm in public. 17 also has exceptions, including for holders of a license to carry 18 concealed weapons and for individuals in a residence or place of 19 business or on private property, if done with the permission of 20 the owner or lawful possessor. 21 individuals with a license See Cal. Penal Code §§ 26010, 26045. Cal. Penal Code § 26350(a). State This prohibition Cal. Penal Code §§ 26362, 26383. The City and County of San Francisco also has ordinances that 22 regulate the sale, possession and use of firearms and ammunition 23 within its boundaries. 24 At the time that Plaintiff filed her complaint, San Francisco 25 had two ordinances related to the discharge of firearms. 26 first, Police Code section 1290, provided in relevant part, “No 27 person or persons, firm, company, corporation or association shall 28 fire or discharge any firearms or fireworks of any kind or 3 The 1 description within the limits of the City and County of San 2 Francisco.” 3 provided that, “It shall be unlawful for any person to at any time 4 fire or discharge, or cause to be fired or discharged, any firearm 5 or any projectile weapon on or into any street, highway or other 6 public place within the City and County of San Francisco.” 7 Police Code § 4502 (2009). 8 an exception, stating that the “provisions of Section 4502 shall 9 not apply . . . to persons using said firearms or projectile S.F. Police Code § 1290 (2009). S.F. At the time, the latter ordinance had 10 United States District Court For the Northern District of California The second ordinance weapons in necessary self defense.” 11 (2009). S.F. Police Code § 4506(a) 12 In 2011, these ordinances were amended. Section 1290 was 13 amended to remove any reference to firearms. S.F. Police Code 14 § 1290 (2011). 15 Id. 16 the exceptions in Section 4506.” 17 Section 4506 was amended to provide that the By its terms, it now prohibits only fireworks. Section 4502 was amended to note that it was “[s]ubject to S.F. Police Code § 4502 (2011). 18 provisions of Section 4502 shall not apply to or affect: 19 . . . 20 (2) Persons in lawful possession of a handgun who discharge said handgun in necessary and lawful defense of self or others while in a personal residence; or 21 22 23 24 25 26 (3) Persons in lawful possession of a firearm or projectile weapon who are expressly and specifically authorized by federal or state law to discharge said firearm or projectile weapon under the circumstances present at the time of discharge. App. A-15, S.F. Police Code § 4506(a) (2011). In 2007, San Francisco enacted Police Code section 4512 (the 27 storage ordinance) mandating, “No person shall keep a handgun 28 within a residence owned or controlled by that person unless the 4 handgun is stored in a locked container or disabled with a trigger 2 lock that has been approved by the California Department of 3 Justice.” 4 stating that it does not apply if the “handgun is carried on the 5 person of an individual over the age of 18.” 6 § 4512(c)(1). 7 in support of its storage ordinance, which are set forth in Police 8 Code section 4511. 9 provide in part that “[h]aving a loaded or unlocked gun in the 10 United States District Court For the Northern District of California 1 home is associated with an increased risk of gun-related injury 11 and death,” guns kept in the home are most often used in suicides, 12 against family and friends and in an unintentional shootings, 13 rather than in self-defense, and that using “trigger locks or 14 using lock boxes when storing firearms in the home reduces the 15 risk of firearm injury and death.” 16 App. A-2-6, A20-21. This section includes an exception S.F. Police Code In 2011, San Francisco adopted legislative findings See App. A-16-19. The legislative findings S.F. Police Code § 4511. San Francisco regulates the sale of firearms and ammunitions 17 and requires that any person selling firearms or ammunitions be 18 licensed and adhere to certain restrictions. 19 10, S.F. Police Code §§ 613, 613.2, 613.9. 20 restrictions on licensees is a prohibition on the sale, lease or 21 transfer of ammunition that See, e.g., App. A-7- Among these 22 (1) Serves no sporting purpose; 23 (2) Is designed to expand upon impact and utilize the jacket, shot or materials embedded within the jacket or shot to project or disperse barbs or other objects that are intended to increase the damage to a human body or other target (including, but not limited to, Winchester Black Talon, Speer Gold Dot, Federal Hydra-Shok, Homady XTP, Eldorado Starfire, Hollow Point Ammunition and Remington Golden Sabre ammunition[)]; or 24 25 26 27 28 5 1 2 3 4 5 6 (3) Is designed to fragment upon impact (including, but not limited to, Black Rhino bullets and Glaser Safety Slugs). This subsection does not apply to conventional hollowpoint ammunition with a solid lead core when the purchase is made for official law enforcement purposes and the purchaser is authorized to make such a purchase by the director of a public law enforcement agency such as the Chief of the San Francisco Police Department or the Sheriff of the City and County of San Francisco. S.F. Police Code § 613.10(g) (the ammunition ordinance). In 2011, 7 San Francisco adopted legislative findings in support of its 8 ammunitions ordinance, which are set forth in Police Code section 9 613.9.5. App. A-11. The legislative findings explain in part 10 United States District Court For the Northern District of California that “enhanced-lethality ammunition is more likely to cause severe 11 injury and death than is conventional ammunition that does not 12 flatten or fragment upon impact” and that the City has an interest 13 “in reducing the likelihood that shooting victims in San Francisco 14 will die of their injuries by reducing the lethality of the 15 ammunition sold and used in the City and County of San Francisco.” 16 S.F. Police Code § 613.9.5(2),(6). The findings also state that 17 the City believes that banning such sales “does not substantially 18 burden the right of self defense” because the “right to use 19 firearms in self defense can be fully exercised using 20 conventional, non-collapsing, non-fragmenting ammunition.” S.F. 21 Police Code § 613.9.5(4). 22 State law provides that only a police chief or county sheriff 23 “may” issue a license to carry a concealed weapon (a CCW license), 24 but does not require that they do so. Cal. Penal Code §§ 26150, 25 26155. A police chief or county sheriff may issue a CCW license 26 to a person only upon a showing that the applicant is of good 27 moral character, good cause exists for the issuance of the 28 6 1 license, the applicant resides in the jurisdiction of the police 2 chief or county sheriff and the applicant has completed a firearm 3 safety course. 4 Each police chief or county sheriff is required to publish and 5 make available a written policy summarizing these requirements. 6 Cal. Penal Code § 26160. 7 Cal. Penal Code §§ 26150(a), 26155(a), 26165. State law sets forth various procedural requirements for 8 applications for CCW licenses. 9 must have his or her fingerprints taken and sent to the California An applicant for a CCW license United States District Court For the Northern District of California 10 Department of Justice. 11 receiving the fingerprints, the California Department of Justice 12 is required to provide the relevant police chief or county sheriff 13 with a report of the person’s record, including whether the 14 applicant is prohibited by state or federal law from possessing a 15 firearm. 16 sheriff must receive this report from the California Department of 17 Justice before he or she is allowed to issue a CCW permit. 18 Penal Code § 26185(a)(3). 19 established by the California Department of Justice when applying 20 for a CCW permit, to cover the costs of furnishing this report. 21 Cal. Penal Code § 26190(a)(1). 22 sheriff requires psychological testing for someone who is applying 23 for a CCW license, the testing must be done by the same licensed 24 psychologist used by the police chief or county sheriff for the 25 psychological testing of his or her own employees. 26 Code § 26190(f)(1). 27 28 Cal. Penal Code § 26185(a)(1). Cal. Penal Code § 26185(a)(2). After A police chief or county Cal. Applicants must submit a filing fee If a police chief or county Cal. Penal Active duty and honorably retired peace officers are generally exempt from the state law prohibitions on carrying 7 1 concealed and loaded weapons in public. 2 §§ 25450, 25900, 26300. 3 retiring peace officers are issued an identification certificate 4 by the agency that employed them, stamped with an endorsement 5 stating that the issuing agency approves of their carrying a 6 concealed firearm. 7 Officers who retire due to a psychological disability are not 8 eligible for such an endorsement. 9 The issuing agency may, at initial retirement or any time See Cal. Penal Code At the time of retirement, honorably See Cal. Penal Code §§ 25455, 25460, 25905. Cal. Penal Code § 26305(a). United States District Court For the Northern District of California 10 thereafter, revoke for good cause a retired peace officer’s 11 privilege to carry a concealed firearm. 12 25920. 13 Cal. Penal Code § 25475(a). 14 Cal. Penal Code §§ 25470, A retired officer must qualify with the firearm annually. In conjunction with a committee of representatives from the 15 California State Sheriffs’ Association, the California Police 16 Chiefs Association and the Department of Justice, the California 17 Attorney General is responsible for creating and revising a 18 standard form for CCW license applications, which must be used 19 uniformly throughout the state. 20 California Attorney General has created such a form. 21 McEachern Decl. ¶ 6, Ex. 3.0.2 22 “[f]ill out, read, and sign Section 1 through 5, as directed,” but Cal. Penal Code § 26175. The See The form directs applicants to 23 24 2 25 26 27 28 Defendants object to certain evidence presented by Plaintiff and Plaintiff objects to certain evidence presented by Defendants. The Court has reviewed these evidentiary objections and has not relied on any inadmissible evidence. The Court will not discuss each objection individually. To the extent that the Court relies on evidence to which the parties object, such evidence has been found admissible and the objections are overruled. 8 1 states that “Sections 6, 7, and 8 must be completed in the 2 presence of an official of the licensing agency.” 3 Section 1 asks for the applicants’ names, but does not ask for 4 contact information. 5 “Investigator’s Interview Notes,” contains spaces for other 6 information for the applicants, including their address and 7 telephone number. 8 requested anywhere else on the form. 9 Id. at 3. Id. at 11. Id. at 2. Section 7, which is titled This contact information is not In San Francisco, both the Sheriff and the Police Chief have United States District Court For the Northern District of California 10 adopted policies setting forth the criteria they consider when 11 deciding when to issue a CCW license. 12 issued a CCW license policy in May 2000 and the current policy was 13 issued on January 12, 2012. 14 good cause requirement, the Police Chief’s current policy states, 15 16 17 18 19 20 21 22 23 24 25 26 27 The Police Chief first McEachern Decl. ¶¶ 4-5. As to the In light of the fact that San Francisco is the second most densely populated urban area in the country, and weighing the defensive benefit of carrying concealed firearms in public against the risk of surprise to law enforcement, the risk of avoidable and dangerous conflict escalation in a public setting, and the risk to general public safety that discharging firearms poses to law enforcement and bystanders alike, the Chief has determined on the basis of experience and judgment that good cause to issue a CCW license to San Francisco residents will generally only exist in conditions of necessity. Accordingly, applicants should be able to supply convincing evidence of the following: 1. There is a reported, documented, presently existing, and significant risk of danger to life or of great bodily injury to the applicant and/or his or her spouse, domestic partner or dependents; 2. The danger of harm is specific to the applicant or his or her immediate family and is not generally shared by other similarly situated members of the public; 3. Existing law enforcement resources cannot adequately address the danger of harm; 28 9 1 2 3 4 5 4. The danger of harm cannot reasonably be avoided by alternative measures; and 5. Licensing the applicant to carry a concealed weapon is significantly likely to reduce the danger of harm. While each of the above factors is considered in the decision making process, the Chief makes a good cause determination based on the totality of the circumstances presented in each individual case. 6 McEachern Decl. ¶ 4, Ex. 1.0, CCSF001971. 7 policy goes on to state, “Once an eligible applicant makes a 8 preliminary showing of good cause, the SFPD will conduct a 9 background investigation to determine whether the applicant is of The Police Chief’s United States District Court For the Northern District of California 10 good moral character.” 11 policy is currently published on the SFPD’s website, along with 12 the application form; however, it may not have been published 13 there prior to January 2012. 14 Id. at CCSF001972. The Police Chief’s McEachern Decl. ¶¶ 7, 11, Ex. 4.0. Then-Sheriff Michael Hennessy first issued a CCW license 15 policy in June 2011, after this case had been initiated. 16 Decl. ¶ 6. 17 policy. 18 years. 19 policy in January 2012. 20 Hennessy was in office, she did not issue a new CCW policy and 21 instead implemented the policy issued by Sheriff Mirkarimi. 22 at ¶ 5. 23 Prior to that time, the Sheriff did not have a written Id. Id. Johnson Sheriff Hennessy held his position for over thirty After Ross Mirkarimi became Sheriff, he updated the Id. at ¶ 4. While acting Sheriff Vicki Id. The Sheriff’s current policy states, “Good cause to issue a 24 CCW license generally exists in the conditions of necessity,” and 25 sets forth five factors relevant to the good cause determination 26 that are similar to the Police Chief’s policy. 27 CCSF004499. 28 states, “If good cause is demonstrated, the SFSD shall conduct a Id. at ¶ 4, Ex. A, Like the Police Chief’s policy, the Sheriff’s policy 10 1 background investigation in order to determine whether the 2 applicant is of good moral character.” 3 requires applicants to “provide a letter explaining the good cause 4 the applicant believes justifies issuance of the CCW license.” 5 Id. at ¶ 7. 6 Sheriff’s written policy. 7 Id. The Sheriff also However, the letter requirement is not stated in the See id. at ¶ 4, Ex. A. At the hearing, the City represented that the Police Chief 8 and Sheriff both now require applicants to submit in person 9 applications for CCW permits and that their contact information is United States District Court For the Northern District of California 10 obtained at the time of submission. 11 II. 12 See also Johnson Decl. ¶ 11. Facts relevant to the named Plaintiff Plaintiff is a lesbian woman who lives in San Francisco with 13 her same-sex registered domestic partner and two children, who are 14 two and six years old. 15 “personal self-defense.” 16 Pizzo Decl. ¶ 3. She owns handguns for Id. at ¶ 11. Plaintiff has been the victim of repeated harassment and 17 threats in the past due to her sexual orientation. 18 In the 1980s, she was pushed down a flight of stairs by a man who 19 called her a “dyke.” 20 her partner in San Francisco, a man screamed obscenities at her 21 and threw gum and garbage at her. 22 when she and her partner travelling through Arizona, a man 23 approached them and tried to “push his body up against me,” while 24 making harassing comments about their sexual orientation. 25 ¶ 15. 26 when she and her partner were in a restroom at a bar, another 27 couple pounded on the door, yelled obscenities and threats at them 28 based on their sexual orientation and made them fear that they Id. at ¶ 13. Id. at ¶ 12. In 1999, when she was kissing Id. at ¶ 14. Sometime later, Id. at At another unspecified time, in Los Alamos, California, 11 1 would be hurt or killed. 2 she was crossing a street in San Francisco, a man in a truck 3 yelled obscenities having to do with her sexual orientation and 4 revved his engine. Id. at ¶ 16. On another occasion, while Id. at ¶ 17. 5 In Plaintiff’s declaration in support of her motion for 6 summary judgment, she attests, “In San Francisco, I can usually be 7 more open and act freely,” but “when I leave San Francisco, and 8 especially when I leave California, I have to change the way I act 9 and dress, otherwise I am targeted.” Id. at ¶ 18. She especially United States District Court For the Northern District of California 10 fears threats and assaults in “more rural areas of California and 11 in rural areas out-of-state.” 12 adequately defend or protect myself from the numerous threats and 13 assaults” that she has received because of the laws described and 14 complying with the laws “place[s] my family at unnecessary risk.” 15 Id. at ¶¶ 35, 37. 16 operable handgun ready for immediate use, loaded with proper 17 ammunition, within my home for self-defense, on my person, and in 18 my vehicle,” but can do so only if she is “issued a valid CCW 19 permit.” 20 go camping. 21 permit.” 22 not keep ammunition in her house because she believes that to do 23 so would subject her to prosecution for “possession of ‘enhanced 24 lethality ammunition,’” because she believes all ammunition is 25 lethal. 26 point ammunition that expands and fragments upon impact,” because 27 she believes that it is better than “full metal jacket” 28 ammunition, which she believes “increases the risk of innocent Id. at ¶ 32. She has “no way to She intends to have a “readily accessible Id. at ¶¶ 36, 38. She also declares, “I will no longer I will no longer visit Texas unless I am issued a CCW Id. at ¶ 19. Id. at ¶ 26. Plaintiff further attests that she does She wants to “use semi-jacketed hollow 12 1 people getting shot if someone discharges a firearm due to 2 ricochet and pass-through of walls and the assailant.” 3 ¶ 29. 4 Id. at At Plaintiff’s earlier deposition, when asked if she would 5 have a loaded weapon in her home outside of a gun safe or without 6 any sort of locking mechanism on it if she were permitted to do so 7 by law, she at first answered, “I don’t know,” and that she would 8 be concerned about her children being around a loaded weapon. 9 Pizzo Depo. 50:16-51:4. She said she could imagine leaving a United States District Court For the Northern District of California 10 loaded weapon outside of the gun safe, but locked. 11 After a sidebar with her attorney, she stated, 12 13 14 15 Id. at 51:5-8. With my children present in the home, it would depend on the circumstance. If they were--if it were in my room and they didn’t have access to it, for instance, if I were to go to bed at night and I wanted to have a loaded weapon in the room with me with the door locked, the kids in bed, I could see an instance like that. Id. at 51:10-52:11. She then stated that, if the ordinances were 16 struck down, she would not start storing a loaded handgun outside 17 of her gun safe and lock the bedroom door between her and her 18 children “on a regular basis” but 19 20 21 22 there may be times where I feel the need to do something like that if--if the--as long as I felt as though it was a reasonable thing to do at the time. If there were say, riots outside my neighborhood or there was some-some eminent threat, then I--I may do that. Id. at 57:25-58:13. 23 Plaintiff also testified that she believed that she could 24 defend herself in her home using traditional full metal jacket 25 ammunition, but that she did not believe that it was the best 26 ammunition to use. Id. at 71:12-18. She stated that she believed 27 that all gun shops had left San Francisco and did not know that 28 13 1 there was still one gun shop open within the city, High Bridge 2 Arms. 3 that she had never tried to buy hollow-point bullets at any gun 4 shop in San Francisco and that when she had last purchased bullets 5 at High Bridge Arms in the late 1980s, she was able to purchase 6 what she was seeking at the time, lead bullets. 7 41:23-42:20.3 8 9 Id. at 41:9-21; Chin Decl. ¶ 11. She further testified Pizzo Depo. Plaintiff searched online on the websites of the San Francisco Police Department and the San Francisco Sheriff’s United States District Court For the Northern District of California 10 Department for information on how to obtain a CCW permit. 11 Decl. ¶ 43. 12 Gary W. Gorski. Pizzo Finding no information, she turned to her attorney, Id. 13 Plaintiff attaches to her declaration a letter that she 14 states Gorski sent on her behalf to the San Francisco Police 15 Department and the San Francisco Sheriff’s Department by regular 16 mail, fax and email on May 26, 2009. 17 In this letter, Mr. Gorski wrote, 18 19 20 21 22 23 24 Pizzo Decl. ¶ 44, Exs. 1, 2. I have been retained by a gay female who has been attempting to apply for a CCW . . . To date, her attempts have been futile as there is no published policy on either website about the CCW application process and your employees have been obstructive to say the least. When my client attempted to apply by contacting your departments, she was given the run-around in that 1) employees had no knowledge of any CCW policy, 2) had no knowledge about how to apply, and 3) they stated that your department does not process CCW applications. 25 3 26 27 28 The City contends that Pizzo said that she has not used hollow-point ammunition since at least the early 1990s and that she frequents a gun store in San Bruno, but they have not filed the cited pages of her deposition transcript. See City’s Mot. for Summ. J. at 14 (citing Pizzo Depo. 39, 69-70); Docket No. 76-10 (omitting these pages). 14 1 This letter constitutes a formal request of the following, pursuant to the Public Records Act: 2 Please provide a DOJ CCW application. 3 Please provide a list of all current and past CCW permit holders since your tenure in office, inclusive of all good cause data relied upon for issuance. 4 5 Please provide a copy of your written CCW issuance policy. 6 If your department defers to the other for the processing of CCWs, please provide that policy or letter of understanding. 7 8 In addition to this request, please provide a date and time that my client can meet with an “investigator” of your department to complete section 7 of the application, and have the application “witnessed” by the investigator and “signed.” 9 United States District Court For the Northern District of California 10 11 Id. Mr. Gorski provided his full contact information, but did not 12 include Plaintiff’s name or contact information. Id. The Police 13 Department attests that it could not locate these letters in its 14 files. McEachern Decl. ¶ 19. The Sheriff’s Department generally 15 attests that it could not find any material related to any CCW 16 application by Plaintiff. Johnson Decl. ¶ 11. 17 Plaintiff states that her attorney received responses from 18 the San Francisco Police Department and San Francisco Sheriff’s 19 Department on May 28, 2009 and May 29, 2009, respectively. Pizzo 20 Decl. ¶¶ 45, 51, Exs. 3, 4. Mr. Gorski has not attested to this 21 fact personally. Both departments declare that they could not 22 locate a responsive letter in their files. McEachern Decl. ¶ 19; 23 Johnson Decl. ¶ 11. In the instant motions, the City has not 24 challenged that these letters were sent by individuals at the 25 Police Department or the Sheriff’s Department. 26 The letter from the San Francisco Police Department was 27 signed by Lieutenant Daniel J. Mahoney, who identifies himself as 28 15 1 Commanding Officer of the Legal Division. 2 3. In the letter, he states 3 In response to item number 1 of your request, please be advised that the California Department of Justice is the custodian of the Application for License to Carry a Concealed Weapon. As a courtesy, I am enclosing a copy of the Application. 4 5 6 In response to item number 2, please be advised that the SFPD does not maintain a list of all current and past CCW permit holders. I can tell you that we have one active concealed weapon permit at this time. That permit was issued to Mr. Robert Menist on 7/1/07 and expires on 6/30/10. 7 8 9 In response to item number 3 and 4, we do not have responsive documents. 10 United States District Court For the Northern District of California Pizzo Decl. ¶ 45, Ex. 11 With regards to your request for a date and time that your client can meet with an “investigator”, please be advised that only if it becomes necessary to complete section 7 of the application, an investigator will contact your client. We do not schedule appointments for this process of the application. 12 13 14 Id. Although Lieutenant Mahoney stated that there were no 15 responsive documents to the request for Mr. Gorski’s request for 16 the written CCW issuance policy, there was such a policy in effect 17 at that time, as described above. Lieutenant Mahoney attached a 18 blank copy of the application form and copy of the fee structure 19 for the application. Id. At present, Retired Army General Robert 20 Menist continues to be the sole current holder of a CCW license 21 issued by the San Francisco Police Department. McEachern Decl. 22 ¶ 13. 23 The responsive letter from the San Francisco Sheriff’s 24 Department was signed by James F. Harrigan, who identified himself 25 as Legal Counsel to the Sheriff. Pizzo Decl. ¶ 51, Ex. 4. 26 letter, Mr. Harrigan stated in full, 27 28 16 In the I write to respond to your confusing and inflammatory letter of May 26, 2009. Please place yourself in my shoes for a moment and read your letter, attached. 1 2 First, and foremost, you never identify your client which, of course, prevents us from researching any correspondence that may have been received from her. Secondly, you identify her as a “gay female” as if that actually matters. I presume you have permission to express such personal information but you might be surprised to learn that we don’t maintain carry concealed weapons (CCW) applicant files by sexual preference, or even by gender. 3 4 5 6 7 Third, you ascribe obstructionist behavior to Sheriff’s employees without any facts, who they might have said their name was, or even when such event(s) occurred. 8 9 It isn’t often that I get such a poorly crafted letter and it is not ameliorated by your ending paragraph, which attempts to be solicitous after making such unsupported accusations. United States District Court For the Northern District of California 10 11 12 Perhaps I can clarify the Sheriff’s position for your consideration. Mr. Hennessey is obligated to issue CCWs to retired law enforcement personnel in limited circumstances under state law. There are a host of conditional factors which apply. He is not obligated to issue a CCW to any private citizen although he has the authority to do so. He has never issued a CCW to such an applicant and has no intention of doing so. 13 14 15 16 Should you wish to file an application you may write a letter to me or the Sheriff which will be replied to with a denial. It is a useless exercise but please do so if you with [sic] to. Obviously, that letter must identify the applicant and reason(s) for the request. 17 18 19 No meeting with an “investigator” will be scheduled because his decision is as it has been for twenty-nine (29) years, a denial. Such is his right and his practice. 20 21 22 23 Id. Although Mr. Harrigan stated that the Sheriff’s Department 24 had never issued CCW licenses to private citizens, the 25 then-Sheriff had issued at least two to individuals who were not 26 retired law enforcement officers. 27 letter, he himself held a CCW license issued by the Sheriff on 28 October 3, 2008, while he was a civilian employee of the Sheriff’s 17 At the time of Mr. Harrigan’s 1 Department. 2 October 3, 2010 and was not renewed. 3 retired from the Sheriff’s Department. 4 17, 2006, Sheriff Hennessey also issued a CCW license to a Deputy 5 City Attorney in the San Francisco City Attorney’s Office who was 6 responsible for civil gang injunction prosecutions and reported 7 receiving threats in connection with those prosecutions. 8 ¶ 10. 9 City Attorney that, because she was leaving employment with the Johnson Decl. ¶ 9. Mr. Harrigan’s license expired on Id. Mr. Harrigan has since Id. On or about November Id. at On March 5, 2007, Sheriff Hennessey notified the Deputy United States District Court For the Northern District of California 10 City Attorney’s Office, the CCW license that he had issued to her 11 in connection with her duties would be revoked effective May 1, 12 2007. 13 Id.; Johnson Decl. ¶ 10, Ex. C. On June 4, 2009, Plaintiff filled out and signed the DOJ 14 standard application form. 15 sections one through five of the application but did not complete 16 or sign sections 6 through 8 because the form’s instructions 17 directed her not to. 18 application included her name and date of birth, but did not 19 contain her address, telephone number or any other contact 20 information. 21 Mr. Gorski’s name or contact information. 22 Pizzo Decl. ¶ 56. Id. at ¶¶ 57, 59. Pizzo Decl. ¶ 56, Ex. 5. She completed Thus, her filled-in It also did not contain Id. Plaintiff gave the application to her attorney to send; she 23 did not personally send it to the Sheriff’s Department or the 24 Police Department. 25 Plaintiff states that Mr. Gorski mailed it and faxed it to the 26 Sheriff’s Department or the Police Department, but does not offer 27 testimony or evidence from him stating that he did so. 28 Decl. ¶¶ 56-60. Pizzo Decl. ¶ 56; Pizzo Depo. 89:7-19. Pizzo Plaintiff did not write a check to send with her 18 application. 2 declaration two fax confirmation pages that show that, on June 29, 3 2009, Mr. Gorski faxed a twenty page document to the Sheriff’s 4 Department and the Police Department, the first page of which was 5 the cover page of the standard DOJ application form. 6 ¶ 60, Ex. 6; see also Johnson Decl. ¶ 15; McEachern Decl. ¶ 23. 7 Plaintiff does not provide evidence that Mr. Gorski included with 8 the application a cover letter or any information that would have 9 associated it with him or his earlier letter or that would have 10 United States District Court For the Northern District of California 1 provided the Sheriff’s Department and the Police Department with 11 contact information for Plaintiff or himself. 12 Pizzo Depo. 89:25-90:2. Plaintiff includes with her Pizzo Decl. To date, Plaintiff has not received a response to her 13 application from either department. 14 Sheriff’s Department nor the Police Department could locate any 15 record of having received her application. 16 ¶¶ 24-25; Johnson Decl. ¶ 14. 17 application or made a determination of whether to grant or deny 18 it. 19 CCW application file that each department could locate, it has 20 records that show that action was taken on the application. 21 McEachern Decl. ¶ 24; Johnson Decl. ¶ 16. 22 Pizzo Decl. ¶ 8. Neither the McEachern Decl. Neither department processed her McEachern Decl. ¶ 25; Johnson Decl. ¶ 14. For every other On September 23, 2009, Plaintiff filed the instant suit. In 23 her complaint, she brings claims against the City and County of 24 San Francisco and the San Francisco Mayor, the San Francisco 25 Sheriff, the San Francisco Police Chief and the Attorney General 26 27 28 19 1 of California in their official capacities only.4 2 following ten claims against all Defendants in her complaint: 3 4 5 6 7 8 9 (1) She asserts the S.F. Police Code section 4512 (the storage ordinance) violates the Second Amendment; (2) S.F. Police Code section 1290, addressing the discharge of firearms within San Francisco, violates the Second Amendment; (3) Cal. Penal Code section 26150, et seq., regarding the issuance of CCW permits, violates the Second Amendment; (4) Cal. Penal Code section 26150, et seq., regarding the United States District Court For the Northern District of California 10 issuance of CCW permits, and the policies of the San Francisco 11 Sheriff and Police Chief, violate the Equal Protection Clause of 12 the Fourteenth Amendment; 13 (5) the sections of the California Penal Code that create an 14 exception to concealed and loaded carry laws for honorably retired 15 police officers with CCW permits violate the Equal Protection 16 Clause of the Fourteenth Amendment; 17 (6) the Federal Law Enforcement Officers Safety Act, 18 18 U.S.C. §§ 926B, 926C regarding CCW permits for qualified retired 19 law enforcement officers violates the Equal Protection Clause of 20 the Fourteenth Amendment; 21 22 (7) S.F. Police Code section 613.10(g) (the ammunition ordinance) violates the Second Amendment; 23 24 25 4 26 27 28 Plaintiff also brought claims against former San Francisco Mayor Gavin Newsom, former San Francisco Chief of Police Heather Fong, and former San Francisco Sheriff Michael Hennessey in their individual capacities. She subsequently dismissed her claims against them in their individual capacities by stipulation. Docket No. 58. 20 1 (8) S.F. Police Code section 613.10(g) (the ammunition 2 ordinance) is unconstitutionally vague under the Fifth Amendment’s 3 due process clause; 4 (9) S.F. Police Code sections 4512, 1290, 613.10(g) and Cal. 5 Penal Code section 26150, et seq., violate the constitution and 6 laws of the state of California; and 7 (10) S.F. Police Code sections 4512, 1290, 613.10(g) and Cal. 8 Penal Code section 26150, et seq., violate the Due Process Clause 9 of the Fourteenth Amendment.5 United States District Court For the Northern District of California 10 As relief, Plaintiff seeks a declaration that the complained- 11 of laws, and Defendants’ application and enforcement thereof, are 12 unconstitutional, and an injunction enjoining them from 13 enforcement. 14 In her reply in support of her motion for summary judgment 15 and opposition to Defendants’ motions for summary judgment, 16 Plaintiff withdraws her ninth cause of action as to all Defendants 17 and her fourth cause of action as to the Attorney General only. 18 Docket No. 104, 21, 25. 19 LEGAL STANDARD 20 Summary judgment is properly granted when no genuine and 21 disputed issues of material fact remain, and when, viewing the 22 evidence most favorably to the non-moving party, the movant is 23 clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 24 25 5 26 27 28 A separate suit against the City and County of San Francisco and its Mayor and Police Chief, challenging the validity of S.F. Police Code sections 613.10(g), 1290 and 4512 under the Second, Fifth and Fourteenth Amendments, remains pending in this district. See Jackson v. City and Cnty. of San Francisco, Case No. 09-2143 (N.D. Cal.), Docket No. 18. 21 1 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 2 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 3 1987). 4 The moving party bears the burden of showing that there is no 5 material factual dispute. 6 true the opposing party’s evidence, if supported by affidavits or 7 other evidentiary material. 8 815 F.2d at 1289. 9 in favor of the party against whom summary judgment is sought. Therefore, the court must regard as Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences United States District Court For the Northern District of California 10 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 11 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 12 F.2d 1551, 1558 (9th Cir. 1991). 13 Material facts which would preclude entry of summary judgment 14 are those which, under applicable substantive law, may affect the 15 outcome of the case. The substantive law will identify which 16 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 17 242, 248 (1986). 18 19 20 DISCUSSION I. Standing Defendants contend that Plaintiff does not have standing to 21 pursue her challenges to the storage and ammunition ordinances or 22 to the CCW license statutes and policies. 23 that she does not have standing to challenge the storage and 24 ammunition ordinances, but disputes the legal standard that 25 Defendants seek to apply to the standing issue. 26 responds that she does have standing to pursue these issues. 27 28 22 Amicus NRA also argues Plaintiff 1 A. Challenges to the storage ordinance 2 To establish standing, a plaintiff must show: “(1) he or she 3 has suffered an injury in fact that is concrete and 4 particularized, and actual or imminent; (2) the injury is fairly 5 traceable to the challenged conduct; and (3) the injury is likely 6 to be redressed by a favorable court decision.” 7 Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 8 2008). 9 only, there is a further requirement that they show a very Salmon Spawning & “Because plaintiffs seek declaratory and injunctive relief United States District Court For the Northern District of California 10 significant possibility of future harm; it is insufficient for 11 them to demonstrate only a past injury.” 12 Public Utilities Com’n, 59 F.3d 869, 873 (9th Cir. 1995). 13 Bras v. California The City contends, based on San Diego Gun Rights Comm. v. 14 Reno, 98 F.3d 1121 (9th Cir. 1996), that to satisfy the injury-in- 15 fact requirement, “a plaintiff must show that she has violated or 16 intends to violate the law and that she has been prosecuted under 17 the law, that she has been individually threatened with imminent 18 prosecution, or that there is a robust history of enforcement of 19 the law.” 20 that she need not show a likelihood of enforcement, relying 21 largely on Jackson v. City & County of San Francisco, 829 F. Supp. 22 2d 867, 872 (N.D. Cal. 2011), in which the court considered the 23 continuing vitality of San Diego Gun Rights Committee in light of 24 the Supreme Court’s recent decision in District of Columbia v. 25 Heller, 554 U.S. 570 (2008). 26 City’s Cross-Mot. for Summ. J. at 8. The NRA argues A concrete injury is one that is “‘distinct and palpable 27 . . . as opposed to merely abstract.’” 28 Appeals for 9th Circuit, 279 F.3d 817, 821 (9th Cir. 2002) 23 Schmier v. U.S. Court of 1 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). 2 However, when “contesting the constitutionality of a criminal 3 statute, ‘it is not necessary that [the plaintiff] first expose 4 himself to actual arrest or prosecution to be entitled to 5 challenge [the] statute that he claims deters the exercise of his 6 constitutional rights.’” 7 289, 298 (1979) (quoting Steffel v. Thompson, 415 U.S. 452, 459 8 (1974)) (formatting in original). 9 explained, “When the plaintiff has alleged an intention to engage Babbitt v. UFW Nat’l Union, 442 U.S. The Supreme Court has United States District Court For the Northern District of California 10 in a course of conduct arguably affected with a constitutional 11 interest, but proscribed by a statute, and there exists a credible 12 threat of prosecution thereunder, he should not be required to 13 await and undergo a criminal prosecution as the sole means of 14 seeking relief.” 15 Inc., 549 U.S. 118 (2007) (a “plaintiff’s own action (or inaction) 16 in failing to violate the law eliminates the imminent threat of 17 prosecution, but nonetheless does not eliminate Article III 18 jurisdiction”). 19 prosecution except those that are imaginary or speculative, are 20 not to be accepted as appropriate plaintiffs.’” 21 at 298 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971); Golden 22 v. Zwickler, 394 U.S. 103 (1969)). 23 that they have ever been threatened with prosecution, that a 24 prosecution is likely, or even that a prosecution is remotely 25 possible,’ they do not allege a dispute susceptible to resolution 26 by a federal court.” 27 42). 28 the proscribed conduct “at some unknown point in the future” is Id. See also MedImmune, Inc. v. Genentech, “But ‘persons having no fears of state Babbitt, 442 U.S. “When plaintiffs ‘do not claim Id. at 298-99 (quoting Younger, 401 U.S. at Further, “a vague and unspecified” intention to engage in 24 1 not enough to support standing. 2 See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) 3 (“Such ‘some day’ intentions -- without any description of 4 concrete plans, or indeed even any specification of when the some 5 day will be -- do not support a finding of the ‘actual or 6 imminent’ injury that our cases require.”). 7 Jackson, 829 F. Supp. 2d at 872. Regardless of whether or not Plaintiff can establish that 8 prosecution is even remotely possible, she has not alleged a 9 sufficient intention to engage in conduct proscribed by the United States District Court For the Northern District of California 10 storage ordinance to support Article III jurisdiction. 11 explained above, in her declaration, Plaintiff states that she 12 intends to possess a “readily accessible operable handgun ready 13 for immediate use, loaded with proper ammunition, within my home 14 for self-defense, on my person, and in my vehicle.” 15 38. 16 having such a handgun in her vehicle or on her person in her home. 17 See S.F. Police Code § 4512(a), (c)(1) (prohibiting people from 18 keeping a handgun within their residence unless it is stored in a 19 locked container or disabled with a trigger lock, but creating an 20 exception if the “handgun is carried on the person of an 21 individual over the age of 18”).6 22 As Id. at ¶¶ 36, However, the storage ordinance does not prohibit her from To the extent that Plaintiff may have intended this statement 23 to mean that she would like to have an operable handgun within 24 reach but not on her person, her only intentions of doing so are 25 speculative and based on potential future events that are not 26 27 28 6 Residence is defined to include “vehicles where human habitation occurs,” S.F. Police Code § 4512(b)(1), but Plaintiff has not offered any evidence that she lives in her vehicle. 25 1 connected to whether the ordinance is still in effect. 2 testified that she may only keep her handgun unlocked at some 3 unspecified future point if she were to feel unsafe based on 4 events that may or may not happen, such as a riot, and then only 5 if she also locked her children out of her room or otherwise kept 6 her children away from the loaded weapon. 7 Supp. 2d at 872 (finding standing based on allegations “that based 8 on their personal views of how it would enhance their personal 9 safety, they want to keep their guns unlocked now for potential United States District Court For the Northern District of California 10 11 She Cf. Jackson, 829 F. use in self defense”) (emphasis added). At the hearing, Plaintiff clarified that she asserts that she 12 has standing because the ordinance currently prevents her from 13 making her own decision as to whether or not to store her operable 14 gun outside of her gun locker, even if she ultimately may decide 15 not to do so. 16 argument that this deprivation can support standing, where she has 17 expressed no intention to actually engage in any conduct that may 18 be prohibited by the statute. 19 Court concludes that there is no material dispute of fact that 20 Plaintiff does not have an intention to engage in a course of 21 conduct prohibited by the statute that is not “vague and 22 unspecified.” Plaintiff offers no authority to support her Under these circumstances, the 23 24 25 26 27 28 26 1 Accordingly, the Court GRANTS the City’s motion for summary 2 judgment on Plaintiff’s claims that seek to challenge the storage 3 ordinance.7 4 B. Challenges to the ammunition ordinance 5 The City contends that Plaintiff does not have standing to 6 challenge the ammunition ordinance, because the law acts to 7 restrict the sales made by licensed gun dealers within city limits 8 but does not prohibit individuals from possessing any type of 9 ammunition inside city limits, and Plaintiff is not a licensed gun United States District Court For the Northern District of California 10 dealer. 11 restrict her behavior. 12 at limiting the conduct of gun dealers, such a restriction may 13 still impose a burden on a gun user’s ability to obtain the 14 relevant types of ammunition. 15 n.3 (“While it may be that plaintiffs will be unable, as a factual 16 matter, to establish that a ban on sales within the City and 17 County of San Francisco actually presents a significant burden on 18 their ability to obtain such ammunition, that would only undermine 19 the merits of the claim, not plaintiffs’ standing to bring it.”). 20 Thus, by the City’s reasoning, the ordinance does not However, even if the restriction is aimed See Jackson, 829 F. Supp. 2d at 872 Plaintiff contends that she has standing because the City has 21 made obtaining ammunition so burdensome that it amounts to a 22 constructive ban. 23 that she intends to purchase the prohibited ammunition anywhere, However, Plaintiff has not offered evidence 24 25 26 27 28 7 Plaintiff does not respond to the Attorney General’s argument that she is not a proper Defendant for the claims challenging the City’s storage, ammunition and discharge ordinances. Plaintiff also has moved for summary judgment on those claims against only the City. Accordingly, the Court GRANTS the Attorney General summary judgment on the claims that challenge the City ordinances. 27 1 including within San Francisco, and thus has not established that 2 the ordinance has caused her an injury-in-fact. 3 declaration, Plaintiff states, “I want to use semi-jacket hollow 4 point ammunition that expands and fragments upon impact,” which 5 she believes is better than full metal jacket ammunition for self- 6 defense. 7 intention to purchase such ammunition from a gun shop located in 8 San Francisco or anywhere else if the ordinance were struck down 9 or offer evidence that she has been burdened by having to purchase Pizzo Decl. ¶ 29. In her However, she does not express an United States District Court For the Northern District of California 10 ammunition outside of San Francisco. 11 she believed that there were no gun shops within San Francisco 12 itself at which she could make purchases if the ordinance were 13 invalidated, although this belief has since proven to be untrue. 14 She further stated that she had last shopped at a particular gun 15 shop in San Francisco more than twenty years ago and did not 16 express any plans to shop there again in the future, although this 17 gun shop is in fact still open. 18 a present intention to engage in conduct prohibited by the 19 ordinance and her argument that the ordinance burdens her ability 20 to purchase or keep the ammunition is speculative. 21 In fact, she testified that Thus, Plaintiff has not expressed Accordingly, the Court finds that Plaintiff lacks standing to 22 challenge the ammunition ordinance and GRANTS the City’s motion 23 for summary judgment on these claims. 24 C. Challenges to the CCW licensing scheme 25 The City, joined by the Attorney General, contends that 26 Plaintiff lacks standing to challenge the CCW permit process 27 because she did not submit proper applications to the Police Chief 28 or to the Sheriff. 28 1 “It is a long-established rule ‘that a plaintiff lacks 2 standing to challenge a rule or policy to which he has not 3 submitted himself by actually applying for the desired benefit.’” 4 Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146 (9th Cir. 2006) 5 (quoting Madsen v. Boise State Univ., 976 F.2d 1219, 1220-1221 6 (9th Cir. 1992) (per curiam)). 7 university “claiming handicap discrimination based on the fact 8 that the University did not offer free handicap parking permits on 9 campus.” 976 F.2d at 1220. In Madsen, the plaintiff sued a Prior to filing suit, he called United States District Court For the Northern District of California 10 various offices at the university asking about “free handicap 11 parking permits” and was told that none were available. 12 did not apply for a permit, seek a waiver or pay the fee and ask 13 for a refund. 14 Department of Education, Office of Civil Rights. 15 Circuit concluded that he did not have standing to bring suit. 16 Id. at 1222. 17 have actually confronted the policy he now challenges in court has 18 several prudential and practical advantages.” 19 court noted that one of these advantages is “that only those 20 individuals who cannot resolve their disputes without judicial 21 intervention wind up in court.” 22 application as the normal prerequisite for bringing a case to 23 court limits those who can claim injury from a policy which may 24 not have harmed them at all, or that they may not have even known 25 about.” 26 Id. Id. He Instead, he filed a complaint with the Id. The Ninth In ruling, the court stated, “Requiring a party to Id. Id. at 1221. The Further, “requiring a formal Id. at 1222. Plaintiff responds that she “submitted her two applications; 27 not once, but twice to each department.” 28 Re: Summ. J. 26. Am. Pl.’s Reply and Opp. Plaintiff cites her attorney’s letter to the 29 1 departments; however, this was not an application. 2 request for information about the application process. 3 also cites the applications that she represents her attorney faxed 4 and mailed to the departments. 5 applications according to their terms and she complains that the 6 “City refused to appoint an investigator so that plaintiff could 7 complete the application process,” id. at 26, Plaintiff did not 8 provide the City with any information that would have allowed 9 either department to contact her in order to process these It was a Plaintiff Although she filled in the United States District Court For the Northern District of California 10 applications. 11 relevant application processing fee to the City. 12 Plaintiff did not properly avail herself of the application 13 process. 14 Further, Plaintiff never submitted payment of the Accordingly, Such a conclusion furthers the practical advantages discussed 15 by the Ninth Circuit in Madsen as well. 16 application that would have allowed the City to provide her with a 17 response, Plaintiff did not allow either department the 18 opportunity to resolve the dispute without judicial intervention. 19 By not submitting an Plaintiff further argues that this requirement should be 20 excused because it would have been futile for her to apply. 21 Madsen, the Ninth Circuit stated, “To begin with, it is unclear 22 whether futility can, by itself, establish standing where it does 23 not otherwise exist. 24 aspects of proving injury-in-fact while standing, a constitutional 25 requirement, may not be so easily finessed.” 26 The court declined to resolve this issue because it found the 27 plaintiff had not alleged enough facts to establish futility. 28 However, in a later case, the Ninth Circuit stated, “We have In It may well be that futility excuses some 30 976 F.2d at 1220. Id. 1 consistently held that standing does not require exercises in 2 futility.” 3 2002). 4 unambiguously rendered an application futile, courts have not 5 required plaintiffs to submit a formal application to establish 6 standing. 7 unambiguously precludes Taniguchi, as [a lawful permanent 8 resident] convicted of an aggravated felony, from the 9 discretionary waiver. Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. Thus, in cases where the challenged policy or ordinance See, e.g., id. at 950 (“the [challenged] statute To apply for the waiver would have been United States District Court For the Northern District of California 10 futile on Taniguchi’s part and, therefore, does not result in a 11 lack of standing.”); Desert Outdoor Advertising, Inc. v. City of 12 Moreno Valley, 103 F.3d 814 (9th Cir. 1996) (“Applying for a 13 permit would have been futile because: (1) the City brought state 14 court actions against [the plaintiffs] to compel them to remove 15 their signs; and (2) the ordinance flatly prohibited [the 16 plaintiffs’] off-site signs[.]”); see also Dragovich v. United 17 States Dep’t of the Treasury, 764 F. Supp. 2d 1178, 1185 (N.D. 18 Cal. 2011) (same sex couples was not required to submit an 19 application for state-maintained long-term care insurance plan in 20 order to establish standing where the government agency made 21 abundantly clear in written and oral communications that their 22 applications would be rejected and the relevant laws “plainly 23 result” in the exclusion of same sex couples). 24 In Friery, the Ninth Circuit considered a case in which a 25 plaintiff attempted to establish standing through the futility 26 exception. 27 high school in Los Angeles Unified School District (LAUSD), had 28 approached the principal at a school at which he taught and asked 448 F.3d at 1149-50. The plaintiff, a teacher at a 31 1 about the possibility of transferring to a vacant position at 2 another school. 3 a policy which “bars intra-district faculty transfers that would 4 move the destination school’s ratio of white faculty to nonwhite 5 faculty too far from LAUSD’s overall ratio.” 6 principal told him that “he would not be eligible for the transfer 7 because he was . . . of ‘the wrong ethnic origin.’” 8 The teacher did not file a formal transfer application in light of 9 this representation. Id. at 1147-48. Id. The school district had in place Id. at 1147. The Id. at 1148. The Ninth Circuit found that the record United States District Court For the Northern District of California 10 was not sufficiently developed for it to determine whether he had 11 standing and remanded for further fact-finding by the district 12 court. 13 principal] correctly interpreted the Transfer Policy, if [the 14 principal] had the authority to deny [the teacher] the ability to 15 transfer, and if any exceptions in the Transfer Policy did not 16 apply to [the teacher], then [the principal]’s assurances to him 17 might make Friery’s application futile.” 18 Id. at 1150. In doing so, the court noted, “If [the Id. at 1149-50. Here, Plaintiff’s primary basis for arguing that her 19 application would have been futile is the letter sent by Mr. 20 Harrigan, the then-Sheriff’s legal counsel, in which he stated 21 that any application from a private citizen would be rejected. 22 Plaintiff, however, has offered no evidence that this was actually 23 the policy of the former Sheriff or that Mr. Harrigan had the 24 authority to deny an application or to set policy. 25 evidence in the record that the Sheriff has issued CCW permits to 26 unsworn individuals and that the Sheriff has denied such permits 27 to former federal or local employees. 28 have been futile for Plaintiff to apply for a permit from the 32 There is Further, even if it would 1 Sheriff, there were two licensing authorities in San Francisco and 2 this letter did not make it appear that it would have been futile 3 for Plaintiff to submit an application to the Police Chief. 4 Finally, Plaintiff’s own actions belie this argument. 5 receiving this letter from Mr. Harrigan, Plaintiff attempted to 6 submit a CCW license application to the Sheriff’s Department. 7 Although she did not complete it properly, this demonstrates that 8 she herself did not believe that it was futile to apply. 9 After Accordingly, the Court finds that Plaintiff lacks standing to United States District Court For the Northern District of California 10 challenge the CCW permit process and GRANTS Defendants’ motions 11 for summary judgment on these claims.8 12 II. 13 Challenges to the discharge ordinance Plaintiff states that Police Code section 1290 “prohibits the 14 ‘discharge [of] any firearms’ within the City and County of San 15 Francisco, and provides no exception for discharges related to in- 16 home self-defense.” 17 Plaintiff argues that the ordinance is unconstitutional and 18 requests that the Court enjoin enforcement of it. 19 in 2011, Police Code section 1290 was changed and no longer 20 applies to firearms at all. 21 to sections 4502 and 4506 that contain the specific exceptions Pl.’s Mot. for Summ. J. 15. On this basis, Id. However, It was replaced with the amendments 22 23 24 25 26 27 28 8 Plaintiff also has not responded to Defendants’ arguments that she has not named any proper federal defendant for her sixth cause of action, which challenges the provisions of Federal Law Enforcement Officers Safety Act, 18 U.S.C. §§ 926B, 926C, that allow qualified retired law enforcement officers to obtain CCW permits, and that the named Defendants, who are all state and city officials, are required by the Supremacy Clause to give these statutes effect. In fact, in her motion and opposition papers, Plaintiff does not make a single reference to these statutes. Accordingly, the Court GRANTS Defendants summary judgment on the sixth cause of action. 33 1 that Plaintiff complained section 1290 had lacked. 2 raises no argument that sections 4502 and 4506 are 3 unconstitutional and does not seek to enjoin enforcement of these 4 sections. 5 Plaintiff’s request to enjoin its enforcement is moot. 6 Plaintiff also Because the complained-of section has been repealed, Plaintiff contends that, although her request for relief is 7 moot, she should be able to obtain an award of attorneys’ fees 8 that she incurred during the pendency of this action. 9 argues, “To the extent the law was changed after plaintiff filed Plaintiff United States District Court For the Northern District of California 10 her action,” she is entitled to “an adjudication that plaintiff is 11 deemed a prevailing party for an award of attorney fees pursuant 12 to 42 U.S.C. Section 1988,” because a “[p]ost hoc legislative 13 change altered the legal relationship between the parties and 14 constituted a direct benefit to plaintiff.” 15 Id. Title 42 U.S.C. § 1988 provides in relevant part that, in any 16 action or proceeding to enforce various civil rights statutes, 17 including 42 U.S.C. § 1983, “the court, in its discretion, may 18 allow the prevailing party, other than the United States, a 19 reasonable attorney’s fee as part of the costs.” 20 § 1988(b). 21 42 U.S.C. A “plaintiff who does not secure a judgment on the merits 22 ‘but has nonetheless achieved the desired result because the 23 lawsuit brought about a voluntary change in the defendant’s 24 conduct’ is not a ‘prevailing party’ for purposes of awarding 25 attorney’s fees.” 26 F.3d 901, 906-907 (9th Cir. 2005) (quoting Buckhannon Bd. & Care 27 Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S. 28 598, 600 (2001)). Benton v. Or. Student Assistance Comm’n, 421 Following the Supreme Court’s decision in 34 1 Buckhannon, the Ninth Circuit held that “to qualify as a 2 ‘prevailing party’ under 42 U.S.C. § 1988 a party must obtain a 3 ‘judicially sanctioned change in the legal relationship of the 4 parties.’” 5 2001) (quoting Buckhannon, 532 U.S. at 1840 and holding that, 6 “even if” the “political branches were motivated to enact” a 7 legislative change “solely by this litigation, this result ‘lacked 8 the necessary judicial imprimatur’ to qualify plaintiffs as 9 prevailing parties”) (emphasis in original). United States District Court For the Northern District of California 10 Bennett v. Yoshina, 259 F.3d 1097, 1101 (9th Cir. Accordingly, even if the City changed the ordinance in 11 reaction to this lawsuit, and not, for example, in reaction to the 12 Supreme Court’s decisions in Heller and McDonald v. City of 13 Chicago, 130 S. Ct. 3020 (2010), the City’s voluntary change does 14 not qualify Plaintiff as a prevailing party for the purposes of 15 obtaining attorneys’ fees. 16 CONCLUSION 17 For the reasons set forth above, the Court DENIES Plaintiff’s 18 motion for summary judgment (Docket No. 60) and GRANTS Defendants’ 19 cross-motions for summary judgment (Docket Nos. 71 and 91). 20 The Clerk shall enter judgment. 21 their costs from Plaintiff. 22 Defendants shall recover IT IS SO ORDERED. 23 24 25 Dated: 12/5/2012 CLAUDIA WILKEN United States District Judge 26 27 28 35

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