National Association for Gun Rights, Inc. et al v. City Of San Jose et al, No. 5:2022cv00501 - Document 81 (N.D. Cal. 2022)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART 36 MOTION TO DISMISS. Signed by Judge Beth Labson Freeman on 9/30/2022. (mdllc, COURT STAFF) (Filed on 9/30/2022)

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National Association for Gun Rights, Inc. et al v. City Of San Jose et al Doc. 81 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 1 of 24 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 8 NATIONAL ASSOCIATION FOR GUN RIGHTS, INC., et al., Plaintiffs, 9 v. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS [Re: ECF No. 36] 10 11 Case No. 22-cv-00501-BLF CITY OF SAN JOSE, et al., United States District Court Northern District of California Defendants. 12 13 HOWARD JARVIS TAXPAYERS ASSOCIATION, et al., 14 15 16 17 Plaintiffs, Case No. 22-cv-02365-BLF [Re: ECF No. 9] v. CITY OF SAN JOSE, Defendant. 18 19 On February 8, 2022, the City of San Jose City Council voted to approve the Reduction of 20 Gun Harm – Liability Insurance Requirement and Gun Harm Reduction Fee (the “Ordinance”), 21 requiring San Jose gun owners to maintain gun liability insurance and pay a mandatory annual fee 22 to a designated gun harm reduction nonprofit. This ordinance has been challenged by two sets of 23 plaintiffs, one led by the National Association for Gun Rights, Inc. (“NAGR Plaintiffs”) and the 24 other by the Howard Jarvis Taxpayers Association (“HJTA Plaintiffs”). 25 The Court previously denied NAGR Plaintiffs’ motion for preliminary injunction (“August 26 3 Order”). Now before the Court are Defendants’ motions to dismiss both Plaintiffs’ respective 27 complaints. For the following reasons, the Court GRANTS IN PART and DENIES IN PART 28 Defendants’ motions. Dockets.Justia.com Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 2 of 24 I. 1 BACKGROUND A. 2 The Ordinance The San Jose Ordinance at issue here is comprised of two primary obligations: the 3 4 requirement for gunowners to maintain liability insurance (the “Insurance Requirement”) and the payment of an annual fee to a nonprofit of the City’s designation (the “Fee Provision”). 5 The Insurance Requirement obligates San Jose residents who own or possess a firearm to 6 7 8 9 obtain a homeowner’s, renter’s, or gun liability insurance policy “covering losses or damages resulting from any accidental use of the Firearm.” First Am. Compl. Injunctive Relief, Declaratory Judgment, and Nominal Damages (“NAGR FAC”), Ex. K (“Ordinance”) § 10.32.210 (the “Insurance Requirement”), NAGR ECF No. 19.1 10 The Fee Provision requires San Jose gun owners to pay an Annual Gun Harm Reduction United States District Court Northern District of California 11 Fee (the “Fee”) to a Designated Nonprofit Organization (the “Nonprofit”), selected by the City 12 Manager. Id. § 10.32.215, 10.32.235. The Fee amount will be established by City Council, and 13 every dollar generated must be used by the Nonprofit to provide “services to residents of the City 14 that own or possess a [f]irearm in the City, to members of their household, or to those with whom 15 they have a close familial or intimate relationship.” Id. § 10.32.220(A). The Ordinance instructs 16 the Nonprofit to spend the funds generated from the Fee exclusively for programs and initiatives 17 designed to “(a) reduce the risk or likelihood of harm from the use of firearms in the City of San 18 Jose, and (b) mitigate the risk of physical harm or financial, civil, or criminal liability that a San 19 Jose firearm owner or her family will incur through her possession of firearms.” Id. § 20 10.32.220(C). Proceeds generated by the Fee may not be used for litigation, political advocacy, or 21 22 lobbying activities nor may the City “specifically direct how the monies from the Gun Harm Reduction Fee are expended.” Id. §§ 10.32.220(B) – (C). 23 In addition to obtaining gun liability insurance and paying the annual Fee, San Jose 24 25 26 1 27 as “NAGR ECF No.” Likewise, ECF entries in the HJTA Plaintiffs’ docket will be referred to as 28 “HJTA ECF No.” ECF entries in the NAGR Plaintiffs’ docket, i.e., Case No. 22-cv-00501-BLF, will be referred to 2 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 3 of 24 1 residents must also maintain City-designated proof of compliance. Id. § 10.32.230. The 2 Ordinance sets out a limited number of exemptions from its obligations, including a “financial 3 hardship” exemption, the criteria for which will be promulgated by the City Manager. Id. §§ 4 10.32.225, 10.32.235(A)(4). United States District Court Northern District of California 5 Violations of the Ordinance are punishable by administrative citation with fines to be 6 established by City Council. Id. § 10.32.240. Although the Ordinance would permit the 7 impoundment of any non-compliant person’s firearm to the extent allowed by law (id. § 8 10.32.245), the City admitted in its briefing that the section is inoperable because “[t]here is 9 currently no lawful basis to impound firearms under state or federal law.” Mot. Dismiss [NAGR] 10 Pls.’ First Am. Compl. (“Mot. NAGR”), at 5-6, NAGR ECF No. 36; see also Mot. Dismiss 11 [HJTA] Pls.’ Compl. (“Mot. HJTA”), at 6, HJTA ECF No. 9. 12 The Ordinance authorizes the City Manager to promulgate certain implementing 13 regulations, including the designation of the Nonprofit, additional guidelines on and audits of the 14 use of the Fee, and establishing the criteria for the “financial hardship” exemption. Id. § 15 10.32.235. At the time the NAGR and HJTA complaints were filed and as of the date of this 16 Order, the City Council and City Manager have not yet established the amount of the Fee, the 17 amount of any administrative fines, or the identity of the Nonprofit. Mot. NAGR 8-9; see also 18 Defs.’ Corrected Status Report 1-2, NAGR ECF No. 78, Aug. 17, 2022 (“[T]he City has not yet 19 set a date for when enforcement of the Fee requirements will begin, nor has it designated the 20 nonprofit organization to which the Fee must be paid.”). 21 22 23 B. Procedural History i. National Association for Gun Rights, Inc. (“NAGR”), et al. Plaintiff National Association for Gun Rights, Inc. (“NAGR”) describes itself as a 24 nonprofit grassroots organization dedicated to defending the Second Amendment right to keep and 25 bear arms. NAGR FAC ¶ 13. Its members include San Jose residents, such as Plaintiff Mark 26 Sikes, who legally own guns and would be subject to the Ordinance if it were to go into effect. Id. 27 ¶ 14. NAGR Plaintiffs name the City of San Jose, Jennifer Maguire in her official capacity as City 28 Manager, and the City of San Jose City Council (collectively, the “City”) as defendants to their 3 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 4 of 24 1 2 NAGR Plaintiffs filed their original complaint on January 25, 2022, the same day the City 3 passed the first reading of the Ordinance. See NAGR ECF No. 1. They challenge both the 4 Insurance Requirement and the Fee Provision in five claims for violations of the First and Second 5 Amendment to the U.S. Constitution, the California Constitution, and the City of San Jose’s City 6 Charter, as well as a sixth claim under the Declaratory Judgment Act. NAGR FAC ¶¶ 82-148. 7 United States District Court Northern District of California suit. Id. ¶¶ 15-17. On March 8, 2022, NAGR Plaintiffs moved for a preliminary injunction against the 8 enforcement of the Ordinance, which both parties fully briefed by March 29, 2022. NAGR ECF 9 Nos. 25, 28, 32. Shortly thereafter, the City filed the instant motion to dismiss NAGR Plaintiffs’ 10 First Amended Complaint on April 8, 2022, which was fully briefed by April 29, 2022. NAGR 11 ECF Nos. 36, 46, 50. 12 On June 23, 2022 (after both motions were briefed but before hearing on either), the 13 United States Supreme Court issued its opinion in New York State Rifle & Pistol Ass’n., Inc. v. 14 Bruen, 142 S. Ct. 2111 (2022), expressly rejecting the “two-step” means-end scrutiny framework that 15 Circuit Courts of Appeals and the parties had used to analyze Second Amendment challenges. After 16 requesting and receiving the parties’ supplemental briefings on the application of Bruen (NAGR ECF 17 Nos. 64-65) and hearing oral arguments, the Court denied NAGR Plaintiffs’ motion for preliminary 18 injunction on August 3, 2022. NAGR ECF No. 72. 19 20 ii. Howard Jarvis Taxpayers Association (“HJTA”), et al. Plaintiff Howard Jarvis Taxpayers Association (“HJTA”) is a nonprofit public benefit 21 corporation that engages in civil litigation to ensure constitutional taxation in California. Notice 22 of Removal, Ex. A (“HJTA Compl.”), HJTA ECF No. 1. Plaintiffs Silicon Valley Taxpayers 23 Association, Inc. (“SVTA”) and Silicon Valley Public Accountability Foundation (“SVPAF”) are 24 also nonprofit public benefit corporations comprised of Santa Clara County residents, seeking to 25 reduce taxes and monitor Santa Clara County public officials, respectively. Id. ¶¶ 2-3. All three 26 associations’ members include San Jose gun owners who would be subject to the Fee Provision. 27 Id. ¶¶ 1-3. In addition to the associational plaintiffs, the suit is also brought by individual 28 plaintiffs, James Barry and George Arrington (collectively with HJTA, SVTA, and SVPAF, the 4 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 5 of 24 United States District Court Northern District of California 1 “HJTA Plaintiffs”), both of whom are San Jose residents who legally own firearms. Id. ¶¶ 4-5. 2 On March 7, 2022, the HJTA Plaintiffs filed their “Complaint to Invalidate §§ 10.32.215 3 and 10.32.230(B) of Chapter 10.32 of the Title 10 of the San Jose Municipal Code” in the Santa 4 Clara County Superior Court. Notice of Removal ¶ 1, HJTA ECF No. 1. The HJTA Complaint is 5 styled as a validation action pursuant to Cal. Civ. Proc. Code §§ 860, et seq., and asserts four 6 causes of action: (1) violation of constitutional rights of speech and association under both the 7 U.S. and California Constitution; (2) “unconstitutional condition” of the Second Amendment and 8 California Constitution; (3) “special tax lacking voter approval” under the California Constitution, 9 and (4) “unconstitutional delegation of power to tax” under the California Constitution. HJTA 10 Compl. ¶¶ 8-37. Notably, HJTA Plaintiffs only challenge the Fee Provision and not the Insurance 11 Requirement. See Opp. Pls. Mot. Dismiss Compl. (“HJTA Opp.”) 13, HJTA ECF No. 16. On April 15, 2022, the City removed the HJTA Complaint to the Northern District of 12 13 California based on the First and Second Amendment claims. Notice of Removal ¶¶ 4-6. Shortly 14 thereafter, the Court granted the City’s motion to relate the HJTA Plaintiffs’ case with the NAGR 15 Plaintiffs’ case. NAGR ECF No. 41; HJTA ECF No. 5. On September 30, 2022, the Court 16 consolidated both cases for all purposes. NAGR ECF No. 80. On April 22, 2022, the City moved to dismiss the HJTA Complaint on Rule 12(b)(1) and 17 18 (b)(6) grounds. Mot. HJTA 1. The City and HJTA Plaintiffs completed their briefing by May 13, 19 2022, and the Court heard oral arguments on August 18, 2022. 20 21 22 II. LEGAL STANDARD A. Lack of Subject Matter Jurisdiction A party may challenge the Court’s subject matter jurisdiction by bringing a motion to 23 dismiss under Federal Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack 24 may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 25 In a facial attack, the movant asserts that the lack of subject matter jurisdiction is apparent from 26 the face of the complaint. Id. In a factual attack, the movant disputes the truth of allegations that 27 otherwise would give rise to federal jurisdiction. Id. “In resolving a factual attack on jurisdiction, 28 the district court may review evidence beyond the complaint without converting the motion to 5 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 6 of 24 1 dismiss into a motion for summary judgment.” Id. “The court need not presume the truthfulness 2 of the plaintiff's allegations.” Id. If the moving party presents evidence demonstrating the lack of 3 subject matter jurisdiction, the party opposing the motion must present affidavits or other evidence 4 sufficient to establish subject matter jurisdiction. Id. 5 United States District Court Northern District of California 6 B. Failure to State a Claim “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 7 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 8 Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 9 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 10 as true all well-pled factual allegations and construes them in the light most favorable to the 11 plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a 12 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 13 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 14 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 15 facially plausible when it “allows the court to draw the reasonable inference that the defendant is 16 liable for the misconduct alleged.” Id. On a motion to dismiss, the Court’s review is limited to 17 the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 18 F.2d 500, 504 (9th Cir. 1986). 19 In deciding whether to grant leave to amend, the Court must consider the factors set forth 20 by the Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227 (1962), and discussed at 21 length by the Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 22 2003). A district court ordinarily must grant leave to amend unless one or more of the Foman 23 factors is present: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure 24 deficiencies by amendment, (4) undue prejudice to the opposing party, or (5) futility of 25 amendment. Eminence Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the 26 opposing party that carries the greatest weight.” Id. However, a strong showing with respect to 27 one of the other factors may warrant denial of leave to amend. Id. 28 6 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 7 of 24 1 III. DISCUSSION Although the NAGR and HJTA Complaints contain overlapping claims, there are several 2 3 differences in the approach each set of Plaintiffs has elected to challenge the City’s Ordinance, as well as in the City’s respective motions to dismiss. Accordingly, the Court will address each 4 complaint separately. 5 6 A. NAGR FAC The City moves to dismiss each of the NAGR FAC’s claims for failure to state a claim. 7 Mot. NAGR 10-23. Additionally, the City argues that the NAGR FAC is unripe and fails to state 8 a proper facial constitutional challenge, though these arguments appear only to apply to NAGR 9 10 Plaintiffs’ Fee Provision challenges. Id. at 7-10. For the following reasons, the Court will GRANT IN PART and DENY IN PART the City’s motion as to the NAGR FAC. United States District Court Northern District of California 11 12 13 i. First Amendment The NAGR FAC’s First Amendment claim is only asserted against the Ordinance’s Fee Provision and alleges that the City “may not require Plaintiffs to pay fees to nonprofits when those 14 fees are going to be used to fund activities of ideological or political nature, such as endorsing gun 15 control.” NAGR FAC ¶ 112. The City moves to dismiss this claim on three grounds: it is unripe, 16 it fails to state a proper facial challenge, and it fails to state a claim under Rule 12(b)(6). Mot. 17 18 NAGR 7-9, 16-17. Because “jurisdiction generally must precede merits in dispositional order,” the Court first addresses the City’s ripeness challenges. Ruhrgas AG v. Marathon Oil Co., 526 19 U.S. 574, 577 (1999). 20 In the August 3 Order, the Court found that NAGR Plaintiffs’ First Amendment challenge 21 to the Fee Provision was unripe because the Court had no information as to what activities—and 22 more critically what speech or expression, if any—the proceeds from the Fee would fund. See 23 Aug. 3 Order 9-11. Today, the Court finds that this reasoning applies equally to NAGR Plaintiffs’ 24 First Amendment claim, now reviewed on a motion to dismiss. Because the City Manager has not 25 promulgated regulations identifying the Nonprofit’s activities, the Court cannot determine if the 26 Fee would fund any expressive activities and thereby remains unfit for judicial determination. 27 Additionally, NAGR Plaintiffs still have not highlighted any hardship they would suffer from the 28 7 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 8 of 24 1 Court withholding consideration at this time. Id.; see also Bishop Paiute Tribe v. Inyo Cnty., 863 2 F.3d 1144, 1154 (9th Cir. 2017). United States District Court Northern District of California 3 Neither the NAGR FAC nor NAGR Plaintiffs’ opposition contains any allegations that 4 would reassure the Court of the First Amendment claim’s ripeness. For example, the FAC alleges 5 that the City “may not require Plaintiffs to pay fees to nonprofits when those fees are going to be 6 used to fund activities of ideological or political nature” (NAGR FAC ¶ 112) but does not allege 7 that the Nonprofit would be engaging in ideological or political activities. The NAGR FAC 8 provides only speculation on what the Nonprofit’s activities are likely to be. See id. ¶ 62 (“The 9 one thing that is clear is that the organization will likely be dedicated to exclusively preaching the 10 negative risks of gun ownership. . . .”) (emphasis added). Plaintiffs’ inability to specify these facts 11 is not surprising, as the Ordinance itself only sets broad directives for the Nonprofit (e.g., “reduce 12 the risk or likelihood of harm from the use of firearms”) and a non-exhaustive and non-mandatory 13 list of potential activities. Ordinance § 10.32.220. 14 To the extent NAGR Plaintiffs argue that—regardless of the Nonprofit’s actual activities— 15 the Supreme Court’s decision in Janus instructs that a mandatory Fee to any nonprofit would 16 violate the First Amendment, this argument is unavailing. See Hearing Tr. 18:20-24, Aug. 4, 17 2022, NAGR ECF No. 76 (“NAGR Hearing Tr.”) (citing Janus v. Am. Fed’n of State, Cnty., & 18 Mun. Emps., Council 31, 138 S. Ct. 2448 (2018)). In Janus, the recipient of the compulsory fees 19 (i.e., the union) and the activities the fees would fund were known and well-defined for First 20 Amendment scrutiny. See 138 S. Ct. at 2461 (noting that nonmembers’ agency fees paid for the 21 “cost of collective bargaining,” as well as lobbying, social and recreational activities, advertising, 22 membership meetings and conventions, and litigation). Here, by contrast, there are no such 23 concrete activities that the Court can consider in applying any level of First Amendment scrutiny 24 or the Supreme Court’s reasoning in Janus. 25 For the reasons set forth above, the City’s motion to dismiss the First Amendment claim 26 for lack of ripeness is GRANTED. “In the Ninth Circuit, it is proper to liberally allow amendment 27 of a complaint to cure jurisdictional defects.” Nat. Res. Def. Couns. v. Winter, 2008 WL 28 11338646, at *3 (C.D. Cal. Apr. 10, 2008) (internal quotation marks omitted). Accordingly, the 8 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 9 of 24 1 2 United States District Court Northern District of California 3 Court will DISMISS the NAGR FAC’s First Amendment claim with LEAVE TO AMEND. ii. Second Amendment The NAGR FAC asserts Second Amendment violations against both the Ordinance’s Fee 4 Provision and the Insurance Requirement (NAGR FAC ¶ 88), pled under the pre-Bruen “two-step” 5 framework of Second Amendment analysis. See id. ¶¶ 88-102. 6 The City moves to dismiss NAGR Plaintiffs’ Second Amendment claim on ripeness 7 grounds with respect to the Fee Provision (Mot. NAGR 8-10) and on Rule 12(b)(6) grounds under 8 the former “two-step” framework for the Insurance Requirement. Mot. NAGR 10-16. NAGR 9 Plaintiffs’ Opposition similarly presents now legally incognizable arguments, such as the proper 10 level of scrutiny and the Ordinance’s “reasonable fit,” as does the City’s Reply. See NAGR Pls.’ 11 Resp. (“NAGR Opp.”) 12-16, NAGR ECF No. 46; Defs.’ Reply (“Reply NAGR”) 5-8. The Court 12 has not requested—and the parties have not provided—supplemental briefs to update this motion’s 13 Second Amendment briefing in accordance with Bruen, though the Court did request such briefs 14 on a different procedural posture. See NAGR ECF Nos. 64-65. 15 The Court previously held that NAGR Plaintiffs’ Second Amendment challenge to the Fee 16 Provision was not ripe because the City Council had not yet confirmed the Fee’s final amount nor 17 had the City Manager promulgated the “financial hardship” criteria by which a gun owner may be 18 exempt from paying the Fee. Aug. 3 Order 11-13. Once again, the Court sees no reason to depart 19 from its prior ripeness reasoning, especially given that the NAGR FAC itself alleges the 20 uncertainty of the Ordinance’s financial burden. See NAGR FAC ¶ 90 (“The City’s fees, too, are 21 left unstated and deferred to future, unscheduled determinations of the City Council.”). As with 22 their First Amendment claim, NAGR Plaintiffs also have not demonstrated any hardship of 23 withholding judicial consideration on their Second Amendment claim, such as serious penalties 24 requiring them to make immediate and significant changes to their regular conduct. See Wolfson 25 v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010). Accordingly, the Court will DISMISS NAGR 26 Plaintiffs’ Second Amendment claim as to the Fee Provision for lack of ripeness. 27 Regarding the Second Amendment challenges to the Insurance Requirement, the NAGR 28 FAC’s allegations—irrespective of their sufficiency under a prior framework—do not track the 9 United States District Court Northern District of California Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 10 of 24 1 current legal standard. As noted above, the Supreme Court expressly rejected the previous two- 2 step framework that the Circuit Courts of Appeals—and the parties—had used to evaluate Second 3 Amendment constitutional challenges. See Bruen, 142 S. Ct. at 2126-30. The present standard as 4 pronounced in Bruen is, as follows: “When the Second Amendment’s plain text covers an 5 individual’s conduct, the Constitution presumptively protects that conduct. The government must 6 then justify its regulation by demonstrating that it is consistent with the Nation’s historical 7 tradition of firearm regulation.” Id. at 2129-30. As currently drafted, the NAGR FAC does not 8 provide the necessary allegations to support a Second Amendment claim under this new standard. 9 For instance, the NAGR FAC does not define a proposed course of conduct for the Court to 10 determine whether it is covered by the Second Amendment’s plain text. See Bruen, 145 S. Ct at 11 2134-36. The only post-Bruen arguments the Court received were presented under a different 12 procedural posture and did not directly address the sufficiency of the NAGR FAC.2 See NAGR 13 ECF Nos. 64-65. Under these circumstances, the Court finds that the NAGR FAC—drafted under a now 14 15 obsolete Second Amendment landscape—does not state a claim under the current post-Bruen 16 framework. The NAGR FAC’s Second Amendment challenge to the Insurance Requirement will 17 be DISMISSED with LEAVE TO AMEND its allegations consistent with the Supreme Court’s 18 decision in Bruen. 19 iii. State Preemption 20 The NAGR FAC’s Third Claim asserts that the Ordinance’s requirements are preempted 21 by California law, primarily as interpreted by Fiscal v. City & Cnty. of San Francisco, 158 Cal. 22 App. 4th 895, 909 (2008) (“[I]t can be readily infer[red] . . . that the Legislature intended to 23 24 2 25 Bruen supplemental briefing for the limited purpose of evaluating NAGR Plaintiffs’ likelihood of 26 success. Aug. 3 Order 14-16. The Court, however, is unable to do so here on a Rule 12(b)(6) 27 motion to dismiss where the operative pleading makes no reference to the plaintiffs’ proposed 28 conduct and provides no basis for such inference. 10 In its August 3 Order, the Court inferred a proposed course of conduct from the parties’ post- United States District Court Northern District of California Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 11 of 24 1 occupy the field of residential handgun possession to the exclusion of local governmental 2 entities.”) (internal quotation marks omitted). See NAGR FAC ¶¶ 117-119. 3 The NAGR FAC correctly states that the City of San Jose may “make and enforce within 4 its limits all . . . ordinances and regulations not in conflict with general laws.” Id. ¶ 117 (quoting 5 Cal. Const. art. XI, § 7). A local ordinance conflicts with general laws if it “duplicates, 6 contradicts, or enters an area fully occupied by general law, either expressly or by legislative 7 implication.” O’Connell v. City of Stockton, 41 Cal. 4th 1061, 1067 (2007) (emphasis added). 8 Here, the NAGR FAC asserts that the Ordinance is entering a field fully occupied by the state 9 Legislature, specifically the “field of regulating residential handgun possession.” NAGR FAC ¶¶ 10 118-19. The City responds, in part, that the Ordinance does not implicate handgun possession, nor 11 does it encroach upon any of the discrete areas of firearm regulation that the California Legislature 12 has preempted (e.g., permitting, licensing, and registration). Reply NAGR 4-5. The Court begins with the observation that the California Legislature has “chosen not to 13 14 broadly preempt local control of firearms but has targeted certain specific areas for preemption.” 15 Great W. Shows, Inc. v. Cnty. of Los Angeles, 27 Cal. 4th 853, 864 (2002). This observation is 16 reinforced by Fiscal—NAGR Plaintiffs’ central case authority—which acknowledges that “state 17 law tends to concentrate on specific areas, leaving unregulated other substantial areas relating to 18 the control of firearms . . . to permit local governments to tailor firearms legislation to the 19 particular needs of their communities.” 158 Cal. App. 4th at 905. The Court, therefore, is mindful 20 that the relevant “fields” the California Legislature has occupied on firearm regulation are discrete 21 and specific, rather than broad or sweeping.3 In their opposition, NAGR Plaintiffs primarily argue that the California Legislature has 22 23 24 3 The NAGR FAC alleges that “local governments are excluded from further regulation of guns,” 25 though NAGR Plaintiffs appear to have pulled back somewhat from this position. NAGR FAC ¶ 26 119 (emphasis added). In any event, this assertion is plainly at odds with the findings in Great W. 27 Shows and Fiscal that “the Legislature has never expressed an intent to preempt the entire field of 28 firearm regulation to the exclusion of local control.” Fiscal, 158 Cal. App. 4th at 905. 11 United States District Court Northern District of California Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 12 of 24 1 preempted the field of “residential handgun possession.” NAGR Opp. 11 (citing Fiscal, 158 Cal. 2 App. 4th at 908). Their emphasis on Fiscal and the scope of “residential handgun possession,” 3 however, is ultimately misplaced because the Ordinance does not confer any authority to 4 dispossess a San Jose resident of his or her firearm. The City has acknowledged that “[t]here is 5 currently no lawful basis to impound firearms under state or federal law” and, therefore, violations 6 of the Ordinance are only punishable by an administrative citation and fine.4 Mot. NAGR, at 5-6; 7 see also Ordinance §§ 10.32.240; 10.32.245. To the extent NAGR Plaintiffs argue that 8 “residential handgun possession” should be broadly interpreted to preclude any local regulation 9 that would merely affect handgun owners as a group—i.e., by virtue of the sole fact that they 10 possess a firearm—such an interpretation is not supported by Fiscal. See 158 Cal. App. 4th at 905 11 (“[T]he Legislature has never expressed an intent to preempt the entire field of firearm regulation 12 to the exclusion of local control.”); see also id. at 919 (“[C]ourts have tolerated subtle local 13 encroachment into the field of firearms regulation”). Without any means by which handgun 14 possession can be revoked, the Ordinance cannot be interpreted to be entering the field of 15 residential handgun possession, as alleged in NAGR FAC ¶ 119. In addition to their reliance on Fiscal, NAGR Plaintiffs also argue that the Insurance 16 17 Requirement and Fee Provision are akin to a permitting or licensing scheme, which is expressly 18 precluded by Penal Code § 25605. NAGR Opp. 11; see also Cal. Gov. Code § 53071 (“It is the 19 intention of the Legislature to occupy the whole field of regulation of the registration or licensing 20 of commercially manufactured firearms. . . .”). This analogy is unpersuasive. First, the Ordinance 21 expressly exempts “persons who have a license to carry a concealed weapon issued pursuant to 22 California Penal Code § 26150 or § 26155,” Ordinance § 10.32.225(B), evidencing the City’s 23 intent to avoid encroaching upon the preempted field of licensing or permitting. Second, unlike 24 25 4 26 possession of handguns by San Francisco residents,” 158 Cal. App. 4th at 906 (emphasis in 27 original), and was titled “Limiting Handgun Possession in the City and County of San Francisco.” 28 Id. (emphasis added). By contrast, the ordinance that gave rise to the holding in Fiscal purported to “ban[] the 12 United States District Court Northern District of California Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 13 of 24 1 permitting or licensing regimes, compliance with the Ordinance does not signify that gun owners 2 must obtain the City’s permission or authorization to possess firearms in the first instance; and 3 unlike registration programs, the Ordinance does not entail formalized and specific recordkeeping 4 by the City. See Great W. Shows, Inc. v. Cnty. of Los Angeles, 27 Cal. 4th 853, 861 (2002) (noting 5 that “licensing” is understood to signify “permission or authorization” and “registration” to mean 6 “recording formally and exactly”) (internal quotation marks omitted). Accordingly, the 7 Ordinance’s compliance requirement is dissimilar to a gun licensing or registration scheme and, 8 therefore, is not preempted by California general laws on firearm licensing or registration. 9 Although leave to amend “shall be freely given when justice so requires,” Fed. R. Civ. P. 10 15(a), dismissal without leave may be proper “if the amendment would be futile.” California ex 11 rel. California Dep't of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 673 (9th 12 Cir. 2004). Here, the question of whether the Ordinance’s requirements are preempted by 13 California state law is a pure question of law. As a result, there are no factual amendments that 14 could salvage NAGR Plaintiffs’ state preemption claim. See, e.g., N.L.R.B. v. Vista Del Sol 15 Health Servs., Inc., 40 F. Supp. 3d 1238, 1255 (C.D. Cal. 2014) (“Because the question of its 16 jurisdiction to hear the case is a pure question of law, the court concludes that allowing 17 [declaratory relief plaintiff] to amend its complaint would be futile, it therefore dismisses the 18 action with prejudice.”). The Court will therefore DISMISS NAGR Plaintiffs’ Third Claim for 19 Relief WITHOUT LEAVE TO AMEND. 20 21 iv. State Tax Requirements The NAGR FAC’s Fourth Claim for Relief asserts violations of article XIII C of the 22 California Constitution, specifically that the Insurance Requirement and Fee Provision constitute 23 taxes that have not been submitted to the electorate for a vote. NAGR FAC ¶¶ 123-131. 24 The City moves to dismiss this claim on two grounds. First, neither the insurance 25 premiums nor the Fee proceeds will be payable to the City and, therefore, they are not taxes; and 26 second, in any event, both the insurance and the Fee would fall under the “specific benefit” 27 exception in the California Constitution. Mot. NAGR 19-20. With respect to the first point, the 28 City relies on Schmeer v. Cnty. of Los Angeles, 213 Cal. App. 4th 1310, 1328-29 (2013), as 13 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 14 of 24 1 modified (Mar. 11, 2013), in which the California Court of Appeal held that the language in article 2 XIII C is “limited to charges payable to, or for the benefit of, a local government.” United States District Court Northern District of California 3 In the absence of contrary California authority or the California Supreme Court’s 4 interpretation of article XIII C, the Court finds persuasive the thorough analysis conducted in 5 Schmeer. There, the Court of Appeal had considered the historical foundations behind the voter 6 initiative that gave rise to article XIII C, including two prior initiatives adopted in 1978 and 1992, 7 as well as a 1997 decision from the California Supreme Court. See Schmeer, 213 Cal. App. 4th at 8 1326-23; see also id. at 1323-30 (analyzing the voters’ interpretation of the ballot initiative and the 9 definition of a “tax”). Although NAGR Plaintiffs attempt to distinguish Schmeer on its facts, the 10 Court notes that Schmeer’s reasoning and interpretation of article XIII C does not rely or turn on 11 the specific ordinance in that case, which was a paper carryout bag charge. See id. at 1326-30. 12 With Schmeer as the touchstone for its article XIII C analysis, the Court finds that NAGR 13 Plaintiffs have all but pled their Fourth Claim out of court. The NAGR FAC expressly alleges that 14 “the insurance is allocated to for-profit corporations and the fee is allocated to an unnamed 15 nonprofit rather than the City.” NAGR FAC ¶ 130 (emphasis added). To use the specific 16 language from Schmeer, NAGR Plaintiffs have alleged that the Insurance Requirement and Fee 17 are not “payable to, or for the benefit of, a local government.” 213 Cal. App. 4th at 1328-29. 18 With this allegation in the NAGR FAC, NAGR Plaintiffs are unable to state an article XIII C 19 taxing claim against the Ordinance’s Insurance Requirement and Fee Provision, and their Fourth 20 Claim is thereby subject to dismissal under Rule 12(b)(6). 21 The Court, however, will grant NAGR Plaintiffs leave to amend this claim, as amendment 22 may not be futile. See, e.g., Eminence Capital, 316 F.3d at 1052. As it remarked at the hearing on 23 the City’s motion, the Court finds merit in NAGR Plaintiffs’ argument that the City could 24 effectively end-run the California Constitution’s voter approval requirements by simply directing 25 residents to pay an organization that is in fact the “City in nonprofit clothing.” NAGR Hearing Tr. 26 6:18-7:8. This risk would be heightened if the designated Nonprofit will be specially created by 27 the City (as opposed to a currently existing nonprofit organization) or—as the City has argued 28 elsewhere—if the Nonprofit will express government speech and policies. See Def. Reply 6 14 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 15 of 24 1 (“[T]he purpose of the Fee is not to support private speech but to fund government speech and 2 policy as set forth in the Ordinance.”), HJTA ECF No. 17. Given these reservations, the Court 3 cannot say that the Fee Provision and the recipient Nonprofit could never violate article XIII C of 4 the California Constitution as interpreted by Schmeer. But, as currently pled, the NAGR FAC 5 fails to state a valid claim on this point. 6 7 United States District Court Northern District of California 8 The Court will GRANT the City’s motion to dismiss the NAGR FAC’s Fourth Claim for Relief with LEAVE TO AMEND. v. San Jose City Charter 9 The NAGR Plaintiffs’ Fifth Claim for Relief asserts violations of the San Jose City 10 Charter. NAGR FAC ¶¶ 135-144; see also id., Ex. A (“City Charter”). The NAGR FAC alleges 11 that the Ordinance (1) violates the City Charter’s requirement that all “revenues and receipts” be 12 placed into the City’s General Fund by directing the Fee to a third-party Nonprofit (City Charter § 13 1211); (2) infringes upon City Council’s budgeting and appropriation powers by prohibiting the 14 City from directing how the Fee is expended (id. §§ 1204-1207); and (3) infringes upon the City 15 Manager’s executive functions for the same reason (id. § 701). 16 On their City Charter claim, as with their taxing claim, NAGR Plaintiffs seem to have pled 17 themselves beyond the scope of most of their cited City Charter provisions. By alleging that the 18 insurance premiums and Fee are allocated to other entities and not to the City (NAGR FAC ¶ 19 130), the NAGR FAC has put those proceeds beyond any reasonable definition of “revenues and 20 receipts” for the purpose of City Charter § 1211 (“All revenues and receipts which are not required 21 . . . to be placed in special funds shall be credited to the General Fund.”). Furthermore, because 22 the NAGR FAC alleges that the Fee and Insurance Requirement “are not for government activity” 23 (NAGR FAC ¶ 42), those provisions do not impact the City Council’s budget, which is a 24 “complete financial plan of all City funds and activities.” City Charter § 1205 (emphasis added). 25 The City Charter appropriations claim falls for the same reasons, as City Council’s appropriation 26 power only pertains to “monies for the operation of each of the offices, departments and agencies 27 of the City.” Id. § 1207 (emphasis added); see also Aug. 3 Order 28-29. Accordingly, the NAGR 28 FAC, as drafted, does not state a violation of City Charter §§ 1204-1207, 1211. 15 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 16 of 24 United States District Court Northern District of California 1 That said, the Court will note its concerns regarding the ripeness of NAGR Plaintiffs’ 2 remaining claim for violation of City Charter § 701(d), i.e., that the Ordinance undermines the 3 City Manager’s responsibility for the “faithful execution of all laws.” City Charter § 701(d); see 4 also Aug. 3 Order 29. The Court cannot fully evaluate this claim until the City Manager develops 5 implementing regulations on the guidance and auditing of the Nonprofit. See Ordinance § 6 10.32.235(A)(2). And to the extent those regulations result in such governmental oversight that 7 the City would effectively control all but the choice of the Nonprofit’s expenditures, that 8 possibility would dovetail with the Court’s concerns that the Nonprofit may be used as a vehicle 9 for the City to circumvent the California Constitution’s voter-tax requirements. See supra Section 10 III(A)(iv). Such developments could also affect the Court’s analysis regarding whether the 11 Nonprofit’s activities could properly be considered as City’s activities for the purposes of City 12 Charter’s budgeting and appropriations delegation to City Council. City Charter §§ 1204-1207. 13 In sum, the NAGR FAC has made affirmative allegations that would place the Ordinance’s 14 provisions beyond the scope of most of their City Charter claims. Although those deficiencies do 15 not directly impact the NAGR Plaintiffs’ City Charter § 701(d) claim, the Court’s evaluation of 16 that claim may not be complete without the City Manager’s to-be-determined regulations 17 regarding the Nonprofit. Given the interwoven nature of NAGR Plaintiffs’ various City Charter 18 challenges, the Court will DISMISS the entirety of NAGR Plaintiffs’ Fifth Claim for Relief with 19 LEAVE TO AMEND following the promulgation of implementing regulations. 20 21 vi. Declaratory Judgment Relief Finally, the NAGR FAC asserts a claim under the Declaratory Judgment Act, seeking 22 declaratory relief “to the extent that each of the claims above have not already established a 23 remedy.” NAGR FAC ¶ 148. The City moved to dismiss this claim as duplicative of NAGR 24 Plaintiffs’ other five claims and also renewed its ripeness argument with respect to this claim. 25 Mot. NAGR 23; Reply NAGR 14-15. 26 Addressing the City’s ripeness argument first, the Court is satisfied that subject matter 27 jurisdiction exists over the request for declaratory relief, because at minimum there is an actual 28 case or controversy over NAGR Plaintiffs’ Second Amendment § 1983 claim against the 16 United States District Court Northern District of California Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 17 of 24 1 Insurance Requirement. First, “when the threat of prosecution under a challenged statute is real, a 2 declaratory judgment on the constitutionality of the statute is appropriate.” 10B Charles A. 3 Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 2757 (4th ed.). 4 Here, the City has made no indication that it does not intend to enforce the Insurance Requirement 5 against San Jose residents, a population that includes individual Plaintiff Mark Sikes. See 6 generally NAGR ECF No. 78; see also NAGR Opp. 10. Second, the City’s ripeness arguments— 7 which largely target NAGR Plaintiffs’ attacks on the Fee Provision—barely address and certainly 8 do not establish that NAGR Plaintiffs’ Second Amendment challenges to the Insurance 9 Requirement are unripe. See Mot. NAGR 7-9; Reply NAGR 2-3. Accordingly, the Court is 10 satisfied that some “actual case or controversy” exists with respect to NAGR Plaintiffs’ request for 11 declaratory relief. 12 As to the City’s duplication argument, “[t]he existence of another adequate remedy does 13 not preclude a declaratory judgment that is otherwise appropriate.” Fed. R. Civ. P. 57; see also 28 14 U.S.C. § 2201(a) (providing that declaratory relief may be sought “whether or not further relief is 15 or could be sought”); 10B Wright, Miller, & Kane, § 2758 (“[T]he general principle is, as stated in 16 the rule, that the existence of another adequate remedy does not bar a declaratory judgment.”). 17 That said, the Court may, in the exercise of its sound discretion, deny declaratory relief where 18 another remedy is “more appropriate.” Rodriguez v. Bank of Am., 2011 WL 5864108, at *4 (N.D. 19 Cal. Nov. 22, 2011); see also, e.g., Shin v. ICON Found., 2021 WL 6117508, at *6 (N.D. Cal. 20 Dec. 27, 2021) (noting that “declaratory relief that is ‘needlessly duplicative’ of the damages or 21 relief requested under the substantive claims” may be inappropriate). Here, the NAGR Plaintiffs 22 have requested declaratory judgment to the extent their other claims have not already established a 23 remedy (NAGR FAC ¶ 148), and the Court finds at this early stage that the scope of the requested 24 declaratory relief is not inappropriately duplicative of NAGR Plaintiffs’ injunctive relief. Cf. 25 Steffel v. Thompson, 415 U.S. 452, 472 (1974) (holding that declaratory relief may be available 26 where injunctive relief is not, such as in the absence of irreparable injury). 27 28 Accordingly, the Court DENIES the City’s motion to dismiss NAGR Plaintiffs’ sixth claim for declaratory relief. 17 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 18 of 24 1 B. HJTA Complaint The City moves to dismiss all four counts of the HJTA Complaint, all of which only target 2 the Ordinance’s Fee Provision. Mot. HJTA 3. The City seeks dismissal pursuant to Rule 12(b)(1) 3 for lack of ripeness and standing, as well as Rule 12(b)(6) for failure to state a claim. For the 4 following reasons, the Court will GRANT the City’s motion to dismiss the HJTA Complaint and 5 permit HJTA Plaintiffs LEAVE TO AMEND. 6 7 8 i. First Amendment The HJTA’s First Amendment claim contains significant overlap with the NAGR Plaintiffs’ First Amendment challenges. Compare HJTA Compl. ¶¶ 17-19 with NAGR FAC ¶¶ 9 107-112. As one example, both HJTA and NAGR Plaintiffs rely on Janus for the proposition that 10 compelled subsidies violate the First Amendment right not to associate. See HJTA Opp. 10-11. 11 United States District Court Northern District of California For largely the same reasons discussed above at Section III(A)(i), the Court finds that 12 HJTA Plaintiffs’ First Amendment claim against the Fee Provision is not ripe. The Nonprofit and, 13 more critically, its activities have not yet been determined, including whether the Nonprofit would 14 be engaging in any speech or expressive activities in the first instance. See supra Section III(A)(i). 15 HJTA Plaintiffs’ arguments to the contrary are inapposite. As an initial matter, their 16 argument that this claim will be ripe by the time of the motion hearing is not well-taken. HJTA 17 Opp. 6-7. “Ripeness is assessed based on the facts as they exist at the present moment,” W. Radio 18 Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1205 (9th Cir. 2008), and, to date, the City has not yet 19 promulgated regulations regarding the Nonprofit’s activities. See, e.g., HJTA ECF No. 25. 20 Moreover, with the benefit of hindsight, this argument turned out to be inaccurate, as the City had 21 delayed implementation of the Ordinance pending this Court’s order on preliminary injunctive 22 relief. See NAGR ECF No. 64, at 7. 23 HJTA Plaintiffs also appear to argue that, because the HJTA Complaint was originally 24 25 filed in state court pursuant to California’s validation statutes, Cal. Civ. Proc. Code §§ 860, et seq., this alone rebuts the City’s justiciability arguments. HJTA Opp. 7; HJTA Compl. ¶ 8. To the 26 extent HJTA Plaintiffs suggest that validation actions are not subject to typical justiciability 27 requirements, this position has been rejected by California courts. See, e.g., Wilson & Wilson v. 28 18 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 19 of 24 1 City Council of Redwood City, 191 Cal. App. 4th 1559, 1579-81 (2011) (“To the extent that 2 [plaintiff] appears to argue that validation actions are somehow exempt from ordinary rules of 3 justiciability, it is incorrect. Like all other actions, validation actions must be justiciable.”); City of 4 Santa Monica v. Stewart, 126 Cal. App. 4th 43, 66–69 (2005) (“Even validation actions are not 5 exempt from the traditional principle that a justiciable action must satisfy the requirements of both 6 ripeness and standing.”), as modified on denial of reh’g (Feb. 28, 2005). United States District Court Northern District of California 7 Finally, HJTA Plaintiffs argue that their claims are ripe because they face an “actual and 8 well-founded fear that the challenged statute will be enforced.” HJTA Opp. 8 (quoting 9 Libertarian Party of Los Angeles Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013)). Although 10 this may be a valid basis to argue HJTA Plaintiffs’ standing, the fear of enforcement does not 11 respond to the City’s prudential ripeness arguments, which target the HJTA Complaint’s 12 speculation regarding the Fee Provisions. Mot. HJTA 8-9; see also Aug. 3 Order 9-11 13 (distinguishing constitutional ripeness from prudential ripeness). HJTA Plaintiffs take the position 14 that it does not matter “whether the private payee is Moms For Gun Sense or the National Rifle 15 Association” (HJTA Opp. 8); however, it is unclear whether the designated Nonprofit would be 16 engaging in any speech or expressive activities, as opposed to simply providing non-expressive 17 services. See HJTA Compl. ¶ 19 (“[T]he Ordinance forces San Jose gun owners . . . to fund [the 18 Nonprofit’s] message. . . .”) (emphasis added); see also Aug. 3 Order 9-10. Without the critical 19 facts regarding the Nonprofit’s activities, the Court would be asked to speculate on the unknown 20 activities of a faceless nonprofit to determine if such activities would involve compelled speech. 21 The Court declines to prematurely adjudicate such “abstract disagreements.” Thomas v. 22 Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000). 23 Accordingly, the Court GRANTS the City’s motion as to HJTA Plaintiffs’ First 24 Amendment claim. The HJTA Complaint’s First Cause of Action will be DISMISSED for lack of 25 ripeness with LEAVE TO AMEND. 26 27 28 ii. Unconstitutional Condition (Second Amendment) The second claim in the HJTA Complaint is titled, “Unconstitutional Condition,” asserting that the Fee “has placed a condition on the continued exercise of [federal and state constitutional] 19 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 20 of 24 1 rights.” HJTA Compl. ¶¶ 21-23; see also HJTA Opp. 14 (citing Koontz v. St. Johns River Water 2 Mgmt. Dist., 570 U.S. 595, 612 (2013)). The Ordinance as drafted does not “condition” the exercise of Second Amendment rights United States District Court Northern District of California 3 4 because there are no means by which a San Jose gun owner may be deprived of his or her firearm. 5 See Mot. HJTA 6. As a result, the HJTA Complaint’s allegation that “any gun owner who fails to 6 pay the required fee to the designated private organization may be forced to surrender his 7 firearms” is a misinterpretation of the Ordinance. HJTA Compl. ¶ 22; see also HJTA Opp. 15 8 (“And if the price is not paid, the City will take that right away by confiscating the owner’s 9 firearms.”). The Ordinance expressly states that its impoundment provision may only apply “[to] 10 the extent allowed by law (Ordinance § 10.32.245), and the City openly admits that there is no 11 state or federal law that would presently permit impoundment. Mot. HJTA 6. HJTA Plaintiffs 12 have not provided any authority that the unconstitutional conditions doctrine can apply in the 13 Second Amendment context where possession is not at risk.5 They instead rely primarily on 14 Koontz, a case involving a “special application” of the unconstitutional conditions doctrine in the 15 Fifth Amendment Takings Clause context. 570 U.S. at 604. On these allegations, the HJTA 16 Complaint fails to state a claim for unconstitutional conditioning of Second Amendment rights. In addition to Second Amendment rights, HJTA Plaintiffs also alleges the unconstitutional 17 18 conditioning of rights under the California Constitution, specifically the rights of “protecting 19 property, and pursuing and obtaining safety.” HJTA Compl. ¶ 21 (citing Cal. Const. art. I, § 1). 20 However, the California Supreme Court has already expressly declined to interpret a right to bear 21 arms into the state constitution’s language regarding protection and safety. Kasler v. Lockyer, 23 22 Cal. 4th 472, 481 (2000) (“If plaintiffs are implying that a right to bear arms is one of the rights 23 recognized in the California Constitution’s declaration of rights, they are simply wrong. No 24 mention is made in it of a right to bear arms.”). To the extent HJTA Plaintiffs attempt to leverage 25 26 5 Indeed, the U.S. Supreme Court had tacitly acknowledged that reasonable and non-exorbitant 27 fees are permissible in firearm permit schemes, which much more directly implicate firearm 28 possession. See Bruen, 142 S. Ct. at 2138 n.9. 20 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 21 of 24 1 Bruen to somehow limit the holding in Kasler (see Hearing Tr. 21:16-23, HJTA ECF No. 28), the 2 U.S. Supreme Court’s interpretation of the Second Amendment is not binding on the California 3 Supreme Court’s interpretation of the California Constitution. See, e.g., People v. Buza, 4 Cal. 5th 4 658, 684 (2018) (“[T]he California Constitution is, and has always been, a document of 5 independent force that sets forth rights that are in no way dependent on those guaranteed by the 6 United States Constitution.”) (internal citation and quotation marks omitted). The Court, 7 therefore, declines to adopt an interpretation of California constitutional rights that conflicts with 8 the California Supreme Court’s holding in Kasler. 23 Cal. 4th at 481. United States District Court Northern District of California 9 Accordingly, the Court GRANTS the City’s motion to dismiss HJTA Plaintiff’s 10 unconstitutional conditions claim. To the extent the claim relies on unconstitutional conditioning 11 of Second Amendment rights, the claim is dismissed WITH LEAVE TO AMEND. However, to 12 the extent HJTA Plaintiffs assert the unconstitutional condition of a California right, amendment 13 would be futile, as the California Supreme Court has expressed that there is no right to bear arms 14 in the California Constitution. Accordingly, this claim is dismissed WITHOUT LEAVE TO 15 AMEND insofar as it refers to unconstitutional conditioning of a California right. 16 17 iii. Tax Lacking Voter Approval HJTA Plaintiffs’ third claim asserts a violation of the California Constitution’s voter 18 approval requirement for taxes and contains significant similarities to the corresponding claim in 19 the NAGR FAC. HJTA Compl. ¶¶ 25-31. The City moves to dismiss this claim on the same two 20 grounds it sought to dismiss the NAGR Plaintiffs’ claim: (1) the Fee at issue is not payable to the 21 City; and (2) the Fee falls under the “specific benefit” exception. Mot. HJTA 18-19. 22 As an initial matter, the Court notes that, although it has dismissed all of HJTA Plaintiffs’ 23 claims over which it has original jurisdiction (i.e., HJTA Plaintiffs’ first and second claims), the 24 Court nonetheless has discretion to continue exercising supplemental jurisdiction over the 25 remaining state claims under 28 U.S.C. § 1367(a). Because HJTA Plaintiffs’ remaining state 26 claims contain significant overlap with NAGR Plaintiffs’ voter-tax claim, the Court finds that 27 judicial economy favors exercising supplemental jurisdiction over HJTA Plaintiffs’ remaining 28 claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (noting that 21 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 22 of 24 1 supplemental jurisdiction is a “doctrine of discretion” rooted in “considerations of judicial 2 economy, convenience and fairness to litigants”). However, to the extent that HJTA Plaintiffs 3 continue to couch its claims as a state validation action, the Court is likely to decline supplemental 4 jurisdiction over that uniquely California law procedure. United States District Court Northern District of California 5 Turning to the merits of the voter-tax claim, the HJTA Complaint contains very limited 6 factual allegations in support. The only fact alleged is that the City of San Jose imposed the Fee; 7 the remaining allegations are largely legal conclusions couched in the language of article XIII C. 8 See HJTA Compl. ¶¶ 25-30. Based on just the quantum of facts asserted, the HJTA Complaint 9 falls short of the federal standard required by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A 10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.”). Although 12 HJTA Plaintiffs speculate in their opposition that the “City plans to form its own nonprofit 13 organization, run by hand-picked people it will install, to carry out an agenda that the City codified 14 in its ordinance” (HJTA Opp. 16), none of these facts are alleged in their operative pleading. 15 Furthermore, the most relevant interpretation of article XIII C is Schmeer, which held that, 16 to be a tax under the California Constitution, a charge must be “payable to, or for the benefit of, a 17 local government.” 213 Cal. App. 4th at 1329; see also supra Section III(A)(iv). As the HJTA 18 Complaint alleges, the Fee is to be paid to a Designated Nonprofit Organization instead of to the 19 local government. HJTA Compl. ¶ 11. This allegation on its face would seem to place the Fee 20 beyond the scope of article XIII C per Schmeer, especially in the absence of factual allegations to 21 the contrary. 22 Because the HJTA Complaint has failed to plead facts sufficient to state a claim under 23 federal standards, the Court will GRANT the City’s motion to dismiss HJTA Plaintiffs’ third 24 claim regarding a tax lacking voter approval. As the Court discussed supra at Section III(A)(iv), 25 the Court cannot determine that leave to amend would be futile. Accordingly, this claim will be 26 DISMISSED WITH LEAVE TO AMEND. 27 28 iv. Unconstitutional Delegation of Taxing Power HJTA Plaintiffs’ final claim asserts that the City unconstitutionally delegated its municipal 22 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 23 of 24 1 power to collect taxes and appropriate tax revenues by requiring the Fee be paid to the Nonprofit 2 designated by the City Manager. HJTA Compl. ¶¶ 33-35. HJTA Plaintiffs acknowledge, 3 however, that this claim could only prevail if their third claim—whether the Fee constitutes a tax 4 lacking voter approval—also prevails. HJTA Opp. 17-18. United States District Court Northern District of California 5 The relevant portion of the California Constitution is article XIII, section 31, which simply 6 states in full, “The power to tax may not be surrendered or suspended by grant or contract.” Cal. 7 Const., art. XIII, § 31. Here, the HJTA Complaint contains no allegations that the City has entered 8 into any grant or contract with the Nonprofit to collect the Fee revenues. See HJTA Compl. ¶¶ 35- 9 37. HJTA Plaintiffs’ opposition also admits that “no specific contract or grant exists yet” and that 10 “Plaintiffs cannot be faulted for not specifically identifying something that doesn’t yet exist.” 11 HJTA Opp. 19. These acknowledgments indicate to the Court that HJTA Plaintiffs’ 12 unconstitutional delegation claim is unripe, which is an issue of subject matter jurisdiction that the 13 Court’s must resolve sua sponte before reaching the merits of the claim. See, e.g., Ruhrgas AG, 14 526 U.S. at 577 (“[J]urisdiction generally must precede merits in dispositional order.”). 15 A claim is not ripe if the issues are not fit for judicial decision and there would not be any 16 hardship to the parties for withholding court consideration. See Bishop Paiute, 863 F.3d at 1153- 17 54. Here, because section 31 includes the specific language of “surrendered or suspended by grant 18 or contract,” the absence of any grant or contract would significantly hamper the Court’s ability to 19 evaluate whether the power to tax has been “surrendered or suspended.” This is precisely the type 20 of “abstract disagreements” and “premature adjudication” that courts are often advised to avoid. 21 Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000). Furthermore, 22 there would be no hardship to HJTA Plaintiffs for withholding consideration, as the Fee would not 23 impose an “immediate and significant change in plaintiffs’ conduct of their affairs with serious 24 penalties attached to noncompliance.” Wolfson, 616 F.3d at 1060; see also Aug. 3 Order 11. 25 Because there is no current grant or contract that the Court can evaluate to determine if the 26 City has “surrendered or suspended” its power to tax, the Court finds that HJTA Plaintiffs’ fourth 27 claim for unconstitutional delegation is not ripe for adjudication. Accordingly, the Court will 28 GRANT the City’s motion to dismiss this claim with LEAVE TO AMEND. 23 Case 5:22-cv-00501-BLF Document 81 Filed 09/30/22 Page 24 of 24 1 IV. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ motions to 2 dismiss are GRANTED IN PART and DENIED IN PART, as follows: 3 1. Defendants’ motion to dismiss Claims 1, 2, 4, and 5 of the NAGR FAC is GRANTED, 4 and the claims are DISMISSED with LEAVE TO AMEND; 5 2. Defendants’ motion to dismiss Claim 3 of the NAGR FAC is GRANTED, and the 6 claim is DISMISSED WITHOUT LEAVE TO AMEND; 7 8 3. Defendants’ motion to dismiss Claim 6 of the NAGR FAC is DENIED; 4. Defendants’ motion to dismiss Claims 1, 3, and 4 of the HJTA Complaint is 9 GRANTED, and the claims are DISMISSED with LEAVE TO AMEND; 10 5. Defendants’ motion to dismiss Claim 2 of the HJTA Complaint is GRANTED, and the 11 United States District Court Northern District of California claim is DISMISSED with LEAVE TO AMEND to the extent it relies on Second 12 Amendment rights and DISMISSED WITHOUT LEAVE TO AMEND to the extent it 13 relies on California Constitution rights. 14 6. To the extent any of HJTA Plaintiffs’ claims are denominated as validation actions 15 pursuant to Cal. Civ. Proc. Code §§ 860, et seq., in an amended complaint, the Court 16 may decline to exercise supplemental jurisdiction over those claims. 17 NAGR Plaintiffs and HJTA Plaintiffs shall file an amended consolidated complaint by 18 February 2, 2023, and shall set forth whether each claim is brought by only certain plaintiffs or all 19 20 21 plaintiffs. The lengthy time for amendment is granted so that Plaintiffs’ claims may become ripe upon the City’s enactment of further implementing regulations as contemplated by the Ordinance’s express terms. 22 IT IS SO ORDERED. 23 Dated: September 30, 2022 24 25 26 ______________________________________ BETH LABSON FREEMAN United States District Judge 27 28 24

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