Teixeira et al v. County of Alameda et al, No. 3:2012cv03288 - Document 56 (N.D. Cal. 2013)
Court Description: ORDER GRANTING 44 MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH PREJUDICE by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 9/9/2013)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN TEIXEIRA, et al., Case No. 12-cv-03288-WHO Plaintiffs, 8 v. 9 10 COUNTY OF ALAMEDA, et al., Defendants. ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH PREJUDICE Re: Dkt. No. 44 United States District Court Northern District of California 11 12 INTRODUCTION 13 14 When the Supreme Court decided in District of Columbia v. Heller, 554 U.S. 570 (2008), 15 that the Second Amendment confers an individual right to possess handguns in the home for self- 16 protection—a right which the Supreme Court later held, in McDonald v. City of Chicago, 130 S. 17 Ct. 3020 (2010), was incorporated against states and municipalities through the Fourteenth 18 Amendment—it took pains to assure that “nothing in our opinion should be taken to cast doubt on 19 longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws 20 forbidding the carrying of firearms in sensitive places such as schools and government buildings, 21 or laws imposing conditions and qualifications on the commercial sale of arms.” Dist. of 22 Columbia v. Heller, 554 U.S. 570, 626-27 (2008). The Supreme Court identified these sorts of 23 laws as “presumptively lawful regulatory measures” and emphasized that “our list does not 24 purport to be exhaustive.” Id. at 627 n.26. That assurance was reiterated in McDonald. 130 S. Ct. 25 at 3047. 26 In this case, plaintiffs John Teixeira, Steve Nobriga, and Gary Gamaza (collectively, the 27 “individual plaintiffs”), as well as The Calguns Foundation, Inc., Second Amendment Foundation, 28 Inc., and California Association of Federal Firearms Licensees, Inc., seek on Second Amendment 1 and Equal Protection grounds in their First Amended Complaint (“FAC”) to invalidate an 2 Alameda County ordinance that prohibits a gun store from being located within 500 feet of any 3 residential district, school, other gun store, or establishment that sells liquor. Because the 4 ordinance is a presumptively lawful regulatory measure under Heller, and because there is a 5 rational basis to treat gun stores differently than other commercial retailers, after consideration of 6 the parties briefs, argument of counsel, and for the reasons below, the Motion to Dismiss filed by 7 defendants County of Alameda, Alameda Board of Supervisors (the “Board of Supervisors”), 8 Supervisor Wilma Chan of the Alameda Board of Supervisors in her official capacity, Supervisor 9 Nate Miley of the Alameda Board of Supervisors in his official capacity, and Supervisor Keith Carson of the Alameda Board of Supervisors in his official capacity is GRANTED WITH 11 United States District Court Northern District of California 10 PREJUDICE. 12 FACTUAL BACKGROUND 13 The plaintiffs allege the following facts: In the fall of 2010, Teixeira, Nobriga, and 14 Gamaza formed a partnership called Valley Guns and Ammo (“VGA”) to open a gun store in 15 Alameda County. FAC ¶ 26. VGA conducted “market research” prior to opening its store and 16 concluded that “a full service gun store located in San Lorenzo would be a success, in part, 17 because existing retail establishments (e.g., general sporting good [sic] stores) do not meet 18 customer needs and demands” based on feedback from approximately 1,400 “gun enthusiasts.” 19 FAC ¶ 27. 20 In November 2010, the individual plaintiffs were informed that any gun store could not be 21 located within 500 feet of any residentially zoned district, school, other gun store, or establishment 22 that sells liquor (“disqualifying property”) as mandated by Alameda County Land Use Ordinance 23 § 17.54.131 (the “Ordinance”). FAC ¶ 32. This “is a recent land use regulation.” FAC ¶ 34. In 24 addition, any applicant for a gun store license must obtain a conditional use permit from the 25 County. FAC ¶ 33. Alameda County only requires conditional use permits for retail stores selling 26 guns. FAC ¶ 35. On information and belief, the plaintiffs allege that as of February 2013, 27 Alameda County had 29 Federal Firearm Licensees, many of whom “are not located in 28 commercial buildings open for retail firearm sales.” FAC ¶ 36. The plaintiffs also allege on 2 1 information and belief that the Ordinance s requirements have not been imposed on “many” of the 2 29 licensees, who are either not complying or were never required to comply with the restrictions 3 imposed against VGA. FAC ¶ 37. 4 The Alameda County Planning Department told VGA that the 500-foot measurement 5 would be taken from the closest door in the proposed gun store to the front door of any 6 disqualifying property. FAC ¶ 38. Based on this requirement, the individual plaintiffs leased 7 property at 488 Lewelling Boulevard, San Leandro, California. FAC ¶ 39. The property only has 8 one door facing Lewelling Boulevard. FAC ¶ 40. A survey the individual plaintiffs obtained 9 showed that no disqualifying property is within a 500-foot radius of the front door of VGA s 10 United States District Court Northern District of California 11 property. FAC ¶¶ 41-42. On November 16, 2011, the West County Board of Zoning Adjustment (the “Zoning 12 Board”) was scheduled to hold a hearing to determine whether VGA should be issued a 13 conditional use permit and a variance (although the hearing was ultimately rescheduled). FAC 14 ¶ 44. A staff report based on information publicly available prior to the hearing concluded that 15 VGA s property was less than 500 feet from a disqualifying property and recommended denying a 16 variance. FAC ¶ 44. It concluded that “[t]he measurement taken from the closest exterior wall of 17 the gun shop to the closest property line of a residentially zoned district is less than 500 feet in two 18 directions.” FAC Ex. A at 8. Specifically, the gun shop was measured to be 446 feet away from 19 residences on Albion Avenue and 446 feet away from residentially zoned properties on Paseo del 20 Rio in San Lorenzo Village, which is separated from the gun shop by Interstate 880. FAC Ex. A. 21 at 8. The County “measured from the closest building exterior wall of the gun shop to the 22 property line of the residentially zoned district.” FAC Ex. A at 3. The report reflects that there are 23 no other disqualifying properties within 500 feet of the gun store. FAC Ex. A at 8. 24 The staff report tentatively found a “public need” to “provide the opportunity to the public 25 to purchase firearms in a qualified, licensed environment.” FAC Ex. A at 9. The report also 26 tentatively found that the proposed use relates to other land uses and facilities in the vicinity, and 27 that the store would not “materially affect adversely the health or safety of persons residing or 28 working in the vicinity, or be materially detrimental to the public welfare or injurious to property 3 or improvements in the neighborhood.” FAC Ex. A at 9. However, the report found that the gun 2 store would be “contrary to the specific intent clauses or performance standards for the District in 3 which it is to be considered” based on the fact that the location does not meet the 500-foot rule. 4 FAC Ex. A at 9. It noted that one of the residential sites is on the other side of a highway, “which 5 cannot be traversed,” but the other site “can be easily accessed.” FAC Ex. A at 10. The plaintiffs 6 allege that there is a fence between the gun store and the latter site, but the report does not reflect 7 this. FAC ¶¶ 46(f)(ii)(2) and 46(g)(i). The report tentatively found that a variance for the gun 8 store “will be detrimental to persons or property in the neighborhood or to the public welfare” 9 because it is less than 500 feet away from the residentially zoned properties near Albion Avenue, 10 but “there would be no detriment” to San Lorenzo Village due to the highway. FAC Ex. A at 11. 11 United States District Court Northern District of California 1 The Zoning Board held the hearing on December 24, 2011, after which it issued a revised 12 staff report. The revised report acknowledged that different ways of defining the starting point for 13 the measurement would alter the distance to the nearest residentially zoned property. FAC Ex. B 14 at 5. Nonetheless, under all three ways it applied (starting from the gun shop s building wall, front 15 door, or property line), the Zoning Board still found the gun shop to be less than 500 feet away 16 from the closest residence. FAC Ex. B. at 5. Based on these measurements, the staff 17 recommended denying a conditional use permit and variance to VGA. FAC Ex. B at 2. 18 The plaintiffs used the front door of the gun shop as a starting point to measure distance, 19 however, and submitted its own figure showing that the gun shop was at least 532 feet away from 20 the closest residence. FAC ¶ 47(c). The plaintiffs claim that the Zoning Board s measurements 21 are wrong because it measured “from the front doors of the disqualifying residential properties to 22 the closest possible part” of VGA s building—“a brick wall with no door.” FAC ¶ 45. By 23 “moving the end-points,” VGA did not qualify for a variance. FAC ¶ 45. 24 Despite the staff report s recommendation, the Zoning Board passed a resolution granting 25 VGA a conditional use permit and variance. FAC Ex. C. In a December 16, 2011, letter, the 26 individual plaintiffs were informed that the resolution would be effective on December 26, 2011, 27 unless an appeal was filed with the Alameda County Planning Department. FAC ¶¶ 50, 52. On 28 February 23, 2012, the individual plaintiffs were informed that the San Lorenzo Village Homes 4 1 Association filed an appeal on or after December 29, 2011, challenging the Zoning Board s 2 resolution. FAC ¶ 52. On February 28, 2012, the Board of Supervisors, “acting through 3 Supervisors CHAN, MILEY and CARSON voted to sustain the late-filed appeal” and overturned 4 the Zoning Board s decision, thereby revoking the conditional use permit and variance granted to 5 VGA. FAC ¶ 54. The plaintiffs allege that the Board of Supervisors “appeared to be acting with deliberate 6 7 indifference to the rights of the Plaintiffs and overt hostility to the fact that it was a gun store.” 8 FAC ¶ 55. They argue that the report found no public safety concerns with granting the permit 9 and variance, and that the 500-foot rule is “wholly arbitrary” and “erroneous and unreasonable.” FAC ¶ 55. The individual plaintiffs tried to find other properties that they could use as a gun 11 United States District Court Northern District of California 10 store; they also commissioned a study, which found that “there are no parcels in the 12 unincorporated areas of Alameda County which would be available for firearm retail sales” due to 13 the 500-foot rule. FAC ¶¶ 60-61. 14 PROCEDURAL BACKGROUND 15 On June 25, 2012, the plaintiffs filed their original complaint asserting four causes of 16 action: (1) denial of Due Process; (2) denial of Equal Protection; (3) violation of the Second 17 Amendment on its face; and (4) violation of the Second Amendment as applied. Dkt. No. 1 ¶¶ 48, 18 50, 52, 54.1 Following the defendants motion to dismiss (Dkt. No. 13) and the plaintiffs motion 19 for a preliminary injunction (Dkt. No. 21), on February 26, 2013, the Honorable Susan Illston 20 dismissed with leave to amend the plaintiffs Equal Protection and Second Amendment claims, 21 and denied the plaintiffs motion for a preliminary injunction (Dkt. No. 37). The plaintiffs filed the FAC on April 1, 2013. Dkt. No. 40. In it, the plaintiffs assert that 22 23 the 500-foot rule “is not reasonably related to any possible public safety concerns,” and that 24 Alameda County is unable to “articulate how the „500 Foot Rule is narrowly tailored to achieve 25 any legitimate government interest.” FAC ¶ 63. The First Cause of Action alleges that the 26 defendants “have intentionally discriminated against” the individual plaintiffs by “not requiring 27 28 1 The parties later stipulated to dismissing the Due Process claim. 5 1 the [conditional use permit] of similar situated parties” and that they violated the Equal Protection 2 Clause as applied to the individual plaintiffs. FAC ¶¶ 68-75. The Second Cause of Action 3 challenges the requirements for getting a conditional use permit, in particular, the 500-foot rule, 4 which allegedly gives gun stores “different treatment from similarly situated retail businesses,” as 5 unconstitutional on its face under the Equal Protection Clause. FAC ¶ 74. The Third Cause of 6 Action challenges the Ordinance as “hav[ing] no proper basis” and being “constitutionally 7 impermissible” on its face under the Second Amendment. FAC ¶ 78. The Fourth Cause of Action 8 alleges that the 500-foot rule “is irrational as applied to the facts of this case” and thus violates the 9 Second Amendment as applied to the individual plaintiffs. FAC ¶ 80. The plaintiffs seek declaratory and injunctive relief stating that the Board of Supervisor s grant of the San Lorenzo 11 United States District Court Northern District of California 10 Village Homes Association s appeal was improper and that the 500-foot rule is unconstitutional 12 facially and as-applied, and they also seek damages and attorney s fees. 13 14 15 The defendants then moved to dismiss the FAC. Dkt. No. 44. LEGAL STANDARD A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 16 pleadings fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The 17 Court must “accept factual allegations in the complaint as true and construe the pleadings in the 18 light most favorable to the nonmoving party,” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 19 F.3d 1025, 1031 (9th Cir. 2008), drawing all “reasonable inferences” from those facts in the 20 nonmoving party s favor, Knievel v. ESPN, 393 F.3d 1068, 1080 (9th Cir. 2005). However, a 21 complaint may be dismissed if it does not allege “enough facts to state a claim to relief that is 22 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 23 plausibility when the pleaded factual content allows the court to draw the reasonable inference that 24 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 25 “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is 26 inapplicable to legal conclusions.” Id. at 678. Similarly, “a complaint [does not] suffice if it 27 tenders naked assertions devoid of further factual enhancement,” id. (quotation marks and brackets 28 omitted), and the court need not “assume the truth of legal conclusions merely because they are 6 1 cast in the form of factual allegations,” W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 2 1981). If a motion to dismiss is granted, a court should normally grant leave to amend unless it 3 4 determines that the pleading could not possibly be cured by allegations of other facts. Cook, 5 Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990).2 DISCUSSION 6 7 I. The plaintiffs argue that the Court s “ruling on the prior motion to dismiss [Order Granting 8 9 LAW OF THE CASE Defendants Motion to Dismiss and Denying Plaintiffs Motion for a Preliminary Injunction (“Order”)] was clearly erroneous.” Opp n 1. They dispute the Court s conclusion that the 11 United States District Court Northern District of California 10 Ordinance is “presumptively valid,” and say that the Court was incorrect to “suggest[] that there 12 was [no] Second Amendment right outside of one s home” (which the Court did not suggest). 13 Opp n 1. They assert that because the ruling was only an order of this Court and not an appellate 14 court, the Court “is absolutely free to, and should,” revisit its earlier Order since the “law of the 15 case” doctrine does not apply here. Opp n 6. While it is true, as the plaintiffs say, that the “law of the case” doctrine prohibits a trial 16 17 court from revisiting a decision by an appellate court, Opp n 1, it is not true that the doctrine does 18 not caution a trial court against reconsidering its own prior decisions. See United States v. Houser, 19 804 F.2d 565, 567 (9th Cir. 1986) (stating that “reconsideration of legal questions previously 20 decided should be avoided”). The Ninth Circuit has said that “[u]nder the „law of the case 21 doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same 22 court, or a higher court, in the same case.” United States v. Smith, 389 F.3d 944, 948 (9th Cir. 23 2004) (citing Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)) (emphasis added). 24 “Issues that a district court determines during pretrial motions become law of the case.” United 25 States v. Phillips, 367 F.3d 846, 856 (9th Cir. 2004). “The doctrine is a judicial invention 26 designed to aid in the efficient operation of court affairs, and is founded upon the sound public 27 2 28 At oral argument on the Motion to Dismiss the FAC, plaintiffs conceded that they had no additional facts to allege in support of their claims. 7 1 policy that litigation must come to an end.” Smith, 389 F.3d at 948 (citations and quotation marks 2 omitted). At the same time, the “law of the case” doctrine is “not an inexorable command,” 3 Hanna Boys Ctr. v. Miller, 853 F.2d 682, 686 (9th Cir. 1988) (citation omitted), and is 4 “discretionary.” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). Asking the Court to wholly revise its interpretation of the law applied in an earlier motion 5 6 to dismiss merely because a new motion to dismiss is pending, without providing the Court 7 “strong and reasonable [grounds for deciding] that the earlier ruling was wrong,” goes against the 8 purpose and intent of the doctrine. Smith, 389 F.3d at 949. Here, the Court will exercise its 9 discretion to follow the law as explained in its earlier Order. 10 II. PLAINTIFFS DO NOT STATE A CLAIM UNDER THE SECOND AMENDMENT. United States District Court Northern District of California 11 A. Third Cause of Action: Facial Second Amendment Challenge 12 Plaintiffs facially challenge the Ordinance under the Second Amendment. “A facial 13 challenge to a legislative [a]ct is, of course, the most difficult challenge to mount successfully, 14 since the challenger must establish that no set of circumstances exists under which the [a]ct would 15 be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987) (emphasis added). Plaintiffs fail to 16 sufficiently allege that the Ordinance is facially unconstitutional under the Second Amendment. 17 The Court noted in its earlier Order that “[n]either the Supreme Court nor the Ninth Circuit 18 has articulated the precise methodology to be applied to Second Amendment claims.” Order 7. 19 Drawing from other authorities, however, the Court applied a two-step analysis that most other 20 courts have applied in this context. As the Fifth Circuit explained it, “the first step is to determine 21 whether the challenged law impinges upon a right protected by the Second Amendment—that is, 22 whether the law regulates conduct that falls within the scope of the Second Amendment s 23 guarantee; the second step is to determine whether to apply intermediate or strict scrutiny to the 24 law, and then to determine whether the law survives the proper level of scrutiny.” Nat’l Rifle 25 Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194 26 (5th Cir. 2012) (citing United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)); Heller v. Dist. 27 of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (Heller II); Ezell v. City of Chicago, 651 F.3d 28 684, 701-04 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United 8 1 States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 2 89 (3d Cir. 2010). But see United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010).). 3 The first step of the analysis is dispositive in this case: under the Supreme Court s 4 decisions in Heller and McDonald, the Ordinance is presumptively lawful. Critically, as 5 previously noted, the Supreme Court has cautioned that nothing in the Heller opinion “should be 6 taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as 7 schools and government buildings, or laws imposing conditions and qualifications on the 8 commercial sale of arms.” Heller, 554 U.S. at 626-27. The Supreme Court explained that its list 9 of “presumptively lawful regulatory measures” was “not [] exhaustive.” Id. at 627 n.26. It reiterated these principles two years later in McDonald, 130 S. Ct. at 3047 (“We repeat those 11 United States District Court Northern District of California 10 assurances here.”), and the Ninth Circuit followed them in Nordyke v. King, 681 F.3d 1041, 1044 12 (9th Cir. 2012).3 The Ordinance, which requires that gun stores obtain a permit to operate and be at least 13 14 500 feet away from sensitive locations are regulatory measures, is quite literally a “law[] imposing 15 conditions and qualifications on the commercial sale of arms,” which the Supreme Court 16 identified as a type of regulatory measure that is presumptively lawful. Heller, 554 U.S. at 626- 17 27. In addition, the Ordinance shares the same concerns as “laws forbidding the carrying of 18 firearms in sensitive places” because it requires the selling of guns to occur at least 500 feet away 19 20 21 22 23 24 25 26 27 3 The plaintiffs argue that Heller s discussion of presumptively lawful regulatory measures is merely dicta and provides “no basis” to decide this case. Opp n 10-12. The Ninth Circuit has explicitly rejected the contention that this portion of Heller is somehow not controlling. In United States v. Vongxay, the court said, “[The defendant] nevertheless contends that the Court s language about certain long-standing restrictions on gun possession is dicta, and therefore not binding. We disagree.” 594 F.3d 1111, 1115 (9th Cir. 2010). Even if the Supreme Court s statements were dicta, as the Ninth Circuit has repeatedly said, courts “do not treat considered dicta from the Supreme Court lightly.” United States v. Augustine, 712 F.3d 1290, 1295 (9th Cir. 2013). Given the importance of the issues of first impression addressed by Heller, and the fact that the Supreme Court reaffirmed its statements about presumptive lawfulness again in McDonald, 130 S. Ct. at 3047 (“We repeat those assurances here.”), the plaintiffs cannot seriously argue that the Supreme Court s analysis was not “considered.” This Court follows the Supreme Court s guidance. 28 9 1 from schools, residences, establishments that sell liquor, and other gun stores. Id. It is not a total 2 ban on gun sales or purchases in Alameda County. On its face, the Ordinance is part of the 3 Supreme Court s non-exhaustive list of regulatory measures that are constitutional under the 4 Second Amendment. Id. 5 While both the Supreme Court and the Ninth Circuit left unanswered precisely how broad the scope of the Second Amendment is, Nordyke, 681 F.3d at 1044, they have not extended the 7 protections of the Second Amendment to the sale or purchase of guns. Plaintiffs have failed to 8 explain how the Ordinance unconstitutionally burdened their “core right to possess a gun in the 9 home for self-defense articulated in Heller” or any right they have to sell or purchase guns—“a 10 right which the U.S. Supreme Court has yet to recognize.” Order 8. The Ninth Circuit observed 11 United States District Court Northern District of California 6 that “[t]he Supreme Court has made it clear that the government can continue to regulate 12 commercial gun dealing.” United States v. Castro, No. 10-50160, 2011 WL 6157466, at *1 (9th 13 Cir. Nov. 28, 2011), cert. denied, 132 S. Ct. 1816 (2012). In Nordyke v. King, the Ninth Circuit 14 upheld an Alameda County ban on guns on County property due to such property s nature as a 15 “sensitive” place. 681 F.3d at 1044. As another court in this circuit held, “Heller said nothing 16 about extending Second Amendment protection to firearm manufacturers or dealers. If anything, 17 Heller recognized that firearms manufacturers and dealers are properly subject to regulation . . . .” 18 Mont. Shooting Sports Ass’n v. Holder, CV-09-147-DWM-JCL, 2010 WL 3926029, at *21 (D. 19 Mont. Aug. 31, 2010), adopted by CV-09-147-DWM-JCL, 2010 WL 3909431, at *1 (D. Mont. 20 Sept. 29, 2010). 21 Nor is the Court aware of any authority outside the Ninth Circuit that would support 22 plaintiffs claims. The Fourth Circuit has explicitly held that “although the Second Amendment 23 protects an individual s right to bear arms, it does not necessarily give rise to a corresponding right 24 to sell a firearm.” United States v. Chafin, 423 F. App x 342, 344 (4th Cir. 2011). Analogizing 25 from the First Amendment context, the Fourth Circuit in Chafin cited the Supreme Court s 26 decision in United States v. 12 200-Foot Reels of Super 8mm. Film for the proposition that “the 27 protected right to possess obscene material in the privacy of one s home does not give rise to a 28 correlative right to have someone sell or give it to others.” 413 U.S. 123, 128 (1973). And the 10 1 Third Circuit s understanding is persuasive that the “longstanding limitations” listed in Heller— 2 such as laws regulating the sale of guns—are “exceptions to the right to bear arms.” United States 3 v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010). 4 The plaintiffs cite to two Seventh Circuit cases as support for deeming the Ordinance 5 unconstitutional: Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), and Moore v. Madigan, 6 702 F.3d 933 (7th Cir. 2012). Neither helps them. In Ezell v. City of Chicago, where the Seventh 7 Circuit applied the same two-step approach detailed above to assess whether the lower court erred 8 in denying a preliminary injunction against the law at issue, the circuit court found that the 9 plaintiffs showed a strong likelihood of establishing that a ban on firing ranges in Chicago violated the Second Amendment. But Ezell is inapposite because, as the Seventh Circuit noted, “[t]he 11 United States District Court Northern District of California 10 City s firing-range ban is not merely regulatory; it prohibits the law-abiding, responsible citizens 12 of Chicago from engaging in target practice.” Ezell, 651 F.3d at 708. Ezell recognized the 13 difference between a ban and “laws that merely regulate rather than restrict, and modest burdens 14 . . . may be more easily justified.” Id. Here, the Ordinance merely regulates how far a gun store 15 must be from certain types of sensitive establishments—a requirement that gun stores be at least 16 500 feet from certain areas is far from the total ban on firing ranges in Ezell. 17 The plaintiffs reliance on Moore v. Madigan is similarly misplaced because that case also 18 involved a near-total ban, this time on carrying a gun in public. The Seventh Circuit found the law 19 to be unconstitutional, but stated that “reasonable limitations, consistent with the public safety,” 20 could save the law. 702 F.3d at 942. Moore does not help the plaintiffs any more than Ezell does: 21 the Ordinance is not a ban, and possessing a gun implicates a different interest than selling one. 22 The Ordinance is a “reasonable limitation[], consistent with the public safety” that creates a 23 “barrier” that is “de minimis.” Order 9. 24 Given the Heller court s recognition that “laws imposing conditions and qualifications on 25 the commercial sale of arms” are “presumptively lawful,” and the fact that the Ordinance falls 26 squarely into that category by its terms, the plaintiffs fail to adequately allege that the Ordinance is 27 facially unconstitutional. They are unable to show that there is “no set of circumstances [] under 28 which the Ordinance would be valid.” Salerno, 481 U.S. at 745. 11 1 The Court s decision that the Ordinance is presumptively lawful makes unnecessary any 2 analysis under the second step in the Second Amendment inquiry, i.e., applying the applicable 3 level of constitutional scrutiny. Suffice it to say, the Ordinance would pass any applicable level of 4 scrutiny. 5 First, the Ordinance is based on important governmental objectives. Alameda County has 6 an “interest in protecting public safety and preventing harm in populated, well-traveled, and 7 sensitive areas such as residentially-zoned districts.” Reply 6. It “has an interest in protecting 8 against the potential secondary effects of gun stores” and “a substantial interest in preserving the 9 character of residential zones.” Id. The Supreme Court has held that “[t]he State s interest in protecting the well-being [and] tranquility . . . of the home is certainly of the highest order.” 11 United States District Court Northern District of California 10 Frisby v. Schultz, 487 U.S. 474, 484 (1988). The Ninth Circuit also held that local governments 12 “have a substantial interest in protecting the aesthetic appearance of their communities” and “in 13 assuring safe [] circulation on their streets.” Foti v. City of Menlo Park, 146 F.3d 629, 637 (9th 14 Cir. 1998); see also Schneider v. State of N.J., Town of Irvington, 308 U.S. 147, 160 (1938) 15 (holding that municipalities have an interest in “public safety, health, [and] welfare”). 16 Second, there is a reasonable fit between the Ordinance and its objectives. Alameda 17 County s Ordinance only regulates where a gun store may be located, restricting them from being 18 within 500 feet of sensitive places. While keeping a gun store 500 feet away from a residential 19 area does not guarantee that gun-related violence or crimes will not occur, the law does not require 20 a perfect match between the Ordinance s means and objectives, nor does the law require the 21 Ordinance to be foolproof. For these same reasons, another judge in this district has upheld a 22 restriction against gun possession within 1,000 feet of a school—double the distance mandated by 23 the Ordinance here—stating that such a regulation would be constitutional “[u]nder any of the 24 potentially applicable levels of scrutiny.” Hall v. Garcia, No. 10-cv-3799-RS, 2011 WL 995933, 25 at *4 (N.D. Cal. March 17, 2011). 26 At oral argument, plaintiffs suggested for the first time that the appropriate analysis for 27 regulations that impinge on Second Amendment rights is the three-part analysis used in First 28 Amendment cases involving adult bookstores and movie theaters: whether the ordinance is a ban 12 1 or a time, place and manner regulation; whether the ordinance is content neutral or content based; 2 and, whether the ordinance is designed to serve a substantial government interest and reasonable 3 alternative avenues of communication remain available. City of Renton v. Playtime Theaters, Inc., 4 475 U.S. 41, 46-47, 50 (1986) (holding that a municipal ordinance that prohibited any adult movie 5 theater from being within 1,000 feet of any residential zone, family dwelling, church, park, or 6 school is valid). The Court is unaware of (nor do the plaintiffs cite) any authority that applied this 7 analysis in the Second Amendment context, nor will it adopt this analytical framework because a 8 gun store, by its nature, does not have the expressive characteristics that allow for this sort of 9 content-based analysis. If it did, the Ordinance would pass muster anyway. First, as discussed above, the Ordinance merely regulates the places where gun stores may be located, i.e., away from 11 United States District Court Northern District of California 10 sensitive locations, but it does not ban them. Second, the Ordinance is content-neutral because it 12 is aimed at the secondary effects of gun stores on the surrounding neighborhood, not to suppress 13 gun ownership. City of Renton, 475 U.S. at 48. Finally, as discussed above, the Ordinance was 14 designed to serve a substantial government interest. Furthermore, reasonable locations to operate 15 a gun store in Alameda County exist, as evidenced by the many stores that sell guns there. Thus 16 even if this alternative analysis were applicable, it would not help the plaintiffs. 17 The crux of Heller and McDonald is that there is a “personal right to keep and bear arms 18 for lawful purposes, most notably for self-defense within the home.” McDonald, 130 S. Ct. at 19 3044. See United States v. Morsette, 622 F.3d 1200, 1202 (9th Cir. 2010) (“Heller and McDonald 20 concern the right to possess a firearm in one s home for self-defense.”). But that does not mean 21 that there is a correlative right to sell firearms. As discussed above, the Ordinance is 22 presumptively valid. It survives any applicable level of scrutiny or alternative analysis proposed 23 by the plaintiffs. Because the plaintiffs fail to adequately allege that “no set of circumstances 24 exists under which the [Ordinance] would be valid,” Salerno, 481 U.S. at 745, their facial 25 challenge under the Second Amendment cannot succeed. See United States v. Kaczynski, 551 F.3d 26 1120, 1125 (9th Cir. 2009) (“a generally applicable statute is not facially invalid unless the statute 27 can never be applied in a constitutional manner”) (quotation marks omitted). 28 13 1 B. Fourth Cause of Action: As-Applied Second Amendment Challenge 2 The plaintiffs also make an as-applied challenge to the Ordinance. “An as-applied 3 challenge contends that the law is unconstitutional as applied to the litigant s particular [] activity, 4 even though the law may be capable of valid application to others.” Foti, 146 F.3d at 635. But 5 the plaintiffs plead no facts showing that the Ordinance is unconstitutional as applied to them, and 6 for the reasons discussed with respect to their facial challenge they have failed to state a claim. 7 The FAC states that the Ordinance “is irrational as applied to the facts of this case and cannot withstand any form of constitutional scrutiny” and has “no proper basis and [is] 9 constitutionally impermissible.” FAC ¶¶ 80-81. These assertions are nothing more than “legal 10 conclusions . . . cast in the form of factual allegations” and cannot support a cause of action. W. 11 United States District Court Northern District of California 8 Min. Council, 643 F.2d at 624. 12 The plaintiffs also allege that “existing retail establishments (e.g., general sporting good 13 [sic] stores) do not meet customer needs and demands. In fact, gun stores that can provide the 14 level of personal service contemplated by VGA are a central and important resource for 15 individuals trying to exercise their Second Amendment rights” because “they also provide 16 personalized training and instruction in firearm safety and operation.” FAC ¶ 27. The plaintiffs 17 also state that “[t]he burdens on the plaintiffs and their customers Second Amendment rights 18 include . . . a restriction on convenient access to a neighborhood gun store,” resulting in 19 customers “having to travel to other, more remote locations.” FAC ¶ 45. 20 Assuming the plaintiffs have standing to represent their prospective customers interests, it 21 is hard to understand how these facts would support an as-applied challenge. They are equally 22 applicable to any prospective gun store owner or customer. Further, these allegations are 23 insufficient to show that Alameda County residents right to possess guns is impinged by the 24 Ordinance. Although the plaintiffs allege that some customers may appreciate additional gun 25 stores that provide a better level of “personal service” and “personalized training and instruction,” 26 the plaintiffs do not allege that customers cannot buy guns in Alameda County or cannot receive 27 training and instruction. The FAC makes quite clear that there are existing retail establishments 28 operating in Alameda County that provide guns. Indeed, the FAC admits that Teixeira himself 14 1 “had previously owned a gun store in Castro Valley,” located in Alameda County. FAC ¶ 29. 2 Teixeira makes no allegation that the Ordinance hampered his ability to operate a gun store before, 3 nor do the plaintiffs allege that the “existing retail establishments” that sell guns are unable to 4 comply with the Ordinance. The Court is unaware of any authority stating or implying that the Second Amendment 5 6 contemplates a right to “convenient access to a neighborhood gun store.” FAC ¶ 45. The Second 7 Amendment s core right of the individual to possess guns is not impinged by the Ordinance as 8 applied to the plaintiffs since it merely regulates the distance that all gun stores must be from 9 certain sensitive establishments. The Ordinance is presumptively lawful. The plaintiffs Second Amendment as-applied challenge does not state facts sufficient to support a cause of action. 11 United States District Court Northern District of California 10 III. PLAINTIFFS DO NOT STATE A CLAIM UNDER THE EQUAL PROTECTION 12 CLAUSE. 13 A. Second Cause of Action: Facial Equal Protection Challenge 14 The essence of the plaintiffs Equal Protection claims is that gun shops “are being treated 15 differently than other retailers because they are [] gun shop[s] and [] there is no justification for 16 such disparate treatment.” Opp n 15. The plaintiffs point out that gun stores are required to 17 obtain conditional use permits while other retailers are not—allegedly for no apparent reason— 18 thus violating their right to Equal Protection. Id. at 15-16. 19 As with the facial challenge to the Ordinance under the Second Amendment, to succeed on 20 a facial challenge under the Equal Protection Clause, the plaintiffs must show “that no set of 21 circumstances exists under which the [a]ct would be valid.” Salerno, 481 U.S. at 745. And as 22 with the facial Second Amendment challenge, the plaintiffs fail to adequately plead that the 23 Ordinance is facially unconstitutional under the Equal Protection Clause. 24 In Freeman v. City of Santa Ana, the Ninth Circuit explained that “[t]he first step in equal 25 protection analysis is to identify the [] classification of groups.” 68 F.3d 1180, 1187 (9th Cir. 26 1995) (citations omitted). “To accomplish this, a plaintiff can show that the law is applied in a 27 discriminatory manner or imposes different burdens on different classes of people.” Id. Based on 28 the class identified, the next step is to determine the appropriate level of scrutiny. Id. “[U]nless a 15 1 classification warrants some form of heightened review because it jeopardizes exercise of a 2 fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal 3 Protection Clause requires only that the classification rationally further a legitimate state interest.” 4 Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). 5 The plaintiffs cite no authority that gun store owners are a protected class because they 6 have an “inherently suspect characteristic,” or, as discussed above, that there is a “fundamental 7 right” to selling guns. Even assuming that gun shops constitute a cognizable class, Alameda 8 County need only have a rational basis for passing the Ordinance. 9 Under the rational basis test, a “classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis 11 United States District Court Northern District of California 10 for the classification.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (emphasis added). “A 12 legislature that creates these categories need not actually articulate at any time the purpose or 13 rationale supporting its classification. Instead, a classification must be upheld against equal 14 protection challenge if there is any reasonably conceivable state of facts that could provide a 15 rational basis for the classification. . . . Finally, courts are compelled under rational-basis review to 16 accept a legislature s generalizations even when there is an imperfect fit between means and 17 ends.” Id. at 320-21 (citations and quotation marks omitted). 18 The Ordinance passes the rational basis test. The plaintiffs have not “allege[d] facts 19 sufficient to overcome the presumption of rationality that applies to government classifications.” 20 See Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992) (applying the rational 21 basis standard on a motion to dismiss). Under a section titled “Facts Relating to the „500 Foot 22 Rule, ” the plaintiffs merely state in conclusory fashion that the Ordinance “is not reasonably 23 related to any possible public safety concerns a retail gun store might raise . . . [n]or does Alameda 24 County articulate how the „500 Foot Rule is narrowly tailored to achieve any legitimate 25 government interest.” FAC ¶ 63. Without pleading facts to support these conclusions, the 26 plaintiffs have not sufficiently pleaded a cause of action. Nonetheless, the defendants explain that 27 the 500-feet rule is intended to “protect[] public safety and prevent[] harm in populated, well- 28 traveled, and sensitive areas such as residentially-zoned districts,” as well as to “protect[] against 16 1 the potential secondary effects of gun stores” and to “preserv[e] the character of residential 2 zones.” Reply 6. They also justify their classification of gun stores separate from other retail 3 stores based on “the many state and federal laws that regulate retail firearm sales.” Br. 7 (citing 4 FAC ¶¶ 17, 19-25). As discussed above, these are legitimate aims and rationales for a local 5 government to act upon. To establish the constitutionality of the Ordinance, the defendants do not 6 have to demonstrate that treating gun stores differently from other retailers is the best way to 7 achieve those goals. The Ordinance satisfies the rational basis test.4 8 B. First Cause of Action: As-Applied Equal Protection Challenge 9 The plaintiffs fail to allege that the Ordinance as applied to them violates their Equal Protection rights. “In order to claim a violation of equal protection in a class of one case, the 11 United States District Court Northern District of California 10 plaintiff must establish that the [government] intentionally, and without rational basis, treated the 12 plaintiff differently from others similarly situated.” N. Pacifica LLC v. City of Pacifica, 526 F.3d 13 478, 486 (9th Cir. 2008) (citation omitted). The plaintiff bears the burden of pleading what other 14 entities are similarly situated with him and how they are so. Scocca v. Smith, No. 11-cv-1318- 15 EMC, 2012 WL 2375203, at *5 (N.D. Cal. June 22, 2012). “A class of one plaintiff must show 16 that the discriminatory treatment was intentionally directed just at him, as opposed to being an 17 accident or a random act.” N. Pacifica, 526 F.3d at 486 (ellipses and quotation marks omitted). 18 Showing that the treatment was “intentional” does not require showing subjective ill will. Gerhart 19 v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). 20 The plaintiffs fail to adequately allege that the defendants treated the individual plaintiffs 21 differently from any other similarly situated party, or that the defendants did so intentionally and 22 without a rational basis. The plaintiffs state, “Plaintiffs position is that they are similarly situated 23 4 24 25 26 27 28 Even if the Ordinance had to satisfy a heightened level of scrutiny because it jeopardizes the exercise of a fundamental right, it would do so easily. Because gun stores are especially susceptible to issues of public safety, which the Ordinance is intended to address, the statutory classification is undoubtedly “substantially related” to Alameda County s “important governmental objective” of “protecting public safety and preventing harm.” Reply 6; see Clark, 486 U.S. at 461 (“To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.”). The plaintiffs allege no facts to show that this is not the case. 17 1 with all other general retailers who are entitled to open shop in commercially zoned areas.” Opp n 2 16. They argue that their allegation that they “are being treated differently than other retailers 3 because they are a gun shop and that there is no justification for such disparate treatment,” coupled 4 with their assertion that “Defendants are using zoning laws to redline or ban retail gun stores from 5 Unincorporated Alameda County,” is sufficient to plead a violation of Equal Protection. Opp n 6 15-16. The plaintiffs point to the fact that before the Board of Supervisors passed the Ordinance, 7 gun stores were “not distinguished from other retail stores.” RJN Ex. H at 4. Thus, they argue 8 that the defendants should be estopped from claiming that gun stores are dissimilar to other 9 retailers. Opp n 16. The plaintiffs meet none of the criteria to successfully plead that they are “a class of one.” 10 United States District Court Northern District of California 11 Their allegations appear equally applicable to any other prospective gun store owner covered by 12 the Ordinance. There is a rational basis for the Ordinance. And there is no allegation with facts 13 showing that the plaintiffs were treated differently than others similarly situated. The plaintiffs 14 reiterated at oral argument, as they said in their papers, that they believe gun stores are similarly 15 situated to other commercial retailers that do not sell weapons. This is simply wrong, as 16 underscored by plaintiffs recognition that gun stores are “strictly licensed and regulated by state 17 and federal law.” By those laws and regulations Congress and state legislatures have 18 demonstrated their understanding that gun stores are different from, say, clothing or convenience 19 stores. FAC ¶¶ 17-24. 20 Finally, the plaintiffs argument that the defendants have no right to enact the Ordinance 21 merely because gun stores were not regulated in this manner before cannot be taken seriously— 22 otherwise, new legislation could never be passed. Because the plaintiffs fail to adequately plead that the defendants intentionally treated the 23 24 individual plaintiffs differently from others similarly situated with no rational basis, they fail to 25 adequately allege a violation of Equal Protection as the Ordinance was applied to them.5 26 27 28 5 To the extent the plaintiffs plead that they are being treated differently than the other 29 Federal Firearm Licensees, their claim still fails. At oral argument, the plaintiffs made clear that this is not their claim, but the FAC is somewhat ambiguous on this point so the Court will address it in 18 CONCLUSION 1 2 The plaintiffs fail to adequately plead that the Ordinance is facially unconstitutional under 3 the Second Amendment and Equal Protection Clause. The plaintiffs also fail to adequately plead 4 that the Ordinance was unconstitutionally applied to them under the Second Amendment and 5 Equal Protection Clause. 6 At oral argument, the Court inquired whether the plaintiffs could or wished to plead any 7 additional facts in a further amendment to their complaint. The plaintiffs declined. Accordingly, 8 the First Amended Complaint is DISMISSED WITH PREJUDICE. 9 10 United States District Court Northern District of California 11 12 IT IS SO ORDERED. Dated: September 9, 2013 ______________________________________ WILLIAM H. ORRICK United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 passing. The plaintiffs allege that many of those licensees “are not located in commercial buildings open for retail firearm sales,” and that the Ordinance s requirements have not been imposed on “many” of the 29 licensees, who are either not complying or were never required to comply with the restrictions imposed against VGA. FAC ¶¶ 36-37. However, the plaintiffs do not explain or provide any facts to show how these licensees are similarly situated with the individual plaintiffs. Scocca, 2012 WL 2375203, at *5. Even assuming the 29 licensees are similarly situated, the plaintiffs do not allege any facts to plausibly show that the defendants intentionally treated the individual plaintiffs differently or that the defendants did so without a rational basis beyond the defendants bare assertions, e.g., that the defendants sought to “trick” the individual plaintiffs or “red-lin[e] them out of existence.” FAC ¶¶ 45, 63. 19
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