Altman et al v. County of Santa Clara et al, No. 4:2020cv02180 - Document 61 (N.D. Cal. 2020)

Court Description: ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION by Judge Jon S. Tigar re: ECF No. 20 . (jstlc1S, COURT STAFF) (Filed on 6/2/2020)

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Altman et al v. County of Santa Clara et al Doc. 61 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 1 of 34 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JANICE ALTMAN, et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No. 20-cv-02180-JST ORDER DENYING PRELIMINARY INJUNCTION v. COUNTY OF SANTA CLARA, et al., Re: ECF No. 20 Defendants. 12 13 We are in the midst of the COVID-19 pandemic. Over 1.8 million people in the United 14 States have been infected, and more than 20,000 new cases were reported yesterday alone. In 15 order to limit the spread of this deadly disease, four Bay Area counties – among many others 16 throughout the state – issued shelter-in-place orders limiting their residents’ ability to travel, 17 eliminating gatherings, and closing businesses within their borders. The orders made exceptions 18 for certain “essential businesses” to ensure their residents’ continued health, safety, and sanitation, 19 but did not exempt firearms retailers or shooting ranges. Plaintiff firearms retailers, Second 20 Amendment-related nonprofits, and individuals seeking to exercise their right to keep and bear 21 arms now seek a preliminary injunction requiring the counties to exempt firearms retailers and 22 shooting ranges from the shelter-in-place orders. ECF No. 20. Since the lawsuit was filed, three 23 of the counties at issue now permit in-store retail, and the case is now moot as to those counties. 24 Only the Alameda County order remains at issue. 25 Having carefully considered the extensive briefing submitted by the parties and the 26 arguments presented by counsel, the Court concludes that Alameda County’s shelter-in-place 27 order passes constitutional muster. The order has a real and substantial relation to the important 28 goal of protecting public health; it reasonably fits that goal; it is facially neutral and does not target Dockets.Justia.com Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 2 of 34 1 firearms retailers or shooting ranges in particular; and it is limited in time. Thus, the burden the 2 order places on the exercise of the Second Amendment right is constitutionally reasonable. The Court will deny the motion. 3 4 United States District Court Northern District of California 5 I. BACKGROUND Our state, our country, and the entire world are in the middle of an unparalleled public 6 health emergency. The novel coronavirus and the disease it causes, COVID-19, “first appeared in 7 December 2019 and has since spread to most countries in the world, including the United States.” 8 ECF No. 46-6 ¶ 6. In the short time since, the virus “has thrust humankind into an unprecedented 9 global public health crisis.” Gayle v. Meade, No. 20-21553-CIV, 2020 WL 2086482, at *1 (S.D. 10 Fla. Apr. 30, 2020), order clarified, No. 20-21553-CIV, 2020 WL 2203576 (S.D. Fla. May 2, 11 2020). “Experts consider this outbreak the worst public health epidemic since the influenza 12 outbreak of 1918.” ECF No. 46-6 ¶ 6. The virus “is extremely easy to transmit, can be 13 transmitted by infected people who show no symptoms, has no cure, and the population has not 14 developed herd immunity.” ECF No. 46-7 ¶ 5. COVID-19 “is fatal to up to eighty percent of 15 patients who go into intensive care units in hospitals.” Id. 16 As of the date of this order, COVID-19 has sickened at least 6,325,303 people worldwide 17 and 1,820,523 in the United States, and has killed 377,460 people globally and 105,644 nationally. 18 Center for Systems Science and Engineering at Johns Hopkins Univ., COVID-19 Dashboard (last 19 visited June 2, 2020), 20 https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b4 21 8e9ecf6 (last visited June 2, 2020). In California alone, 115,908 have been infected and 4,235 22 have died. L.A. Times Staff, Tracking Coronavirus in California, L.A. Times (last visited June 2, 23 2020), https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/. In just 24 the four counties that are the subject of this lawsuit, the numbers are 9,976 sick and 361 dead. 25 Chronicle Digital Team, Coronavirus Tracker, S.F. Chronicle (last visited June 2, 2020), 26 https://projects.sfchronicle.com/2020/coronavirus-map/. And these numbers, as shocking as they 27 are, actually understate the damage inflicted by the virus, because a lack of testing masks the true 28 number of infections and underreporting masks the true number of fatalities. See ECF No. 46-3 2 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 3 of 34 1 ¶ 5 (noting that “limited testing capacity means that case counts represent only a small portion of 2 actual cases”). In response to this extraordinary challenge, both the State of California and individual United States District Court Northern District of California 3 4 counties have issued what are known as “shelter-in-place” orders. Such orders typically require 5 non-essential businesses to close; limit individuals’ ability to travel; and require individuals to 6 avoid behaviors that make transmission of the virus more likely. The purpose of such orders is 7 “[t]o slow virus transmission as much as possible, to protect the most vulnerable, and to prevent 8 the health care system from being overwhelmed.” ECF No. 46-6 ¶ 10. The orders are formulated 9 based on guidance from the Centers for Disease Control and Prevention, the California 10 Department of Public Health, and other public health officials throughout the United States and 11 around the world. See id.; ECF No. 46-7 ¶ 6 (“Right now, shelter-at-home orders are being used 12 worldwide to minimize the potential for people infected with the novel coronavirus to spread it.”), 13 id. ¶ 10 (“Effective containment of the virus requires limiting people’s contact with each other 14 because of the way that the virus is transmitted.”). Shelter-in-place orders have inarguably slowed 15 the spread of the virus, ECF No. 46-6 ¶¶ 17, 20, resulting in the saving of innumerable lives. Defendants Santa Clara County, Alameda County, San Mateo County, and Contra Costa 16 17 County first issued shelter-in-place orders on March 16, 2020. First Amended Complaint 18 (“FAC”), ECF No. 19 ¶¶ 80, 93, 103, 114; see ECF No. 46-6 at 11-17 (“Mar. 16 Order”). The 19 Orders required most businesses to “cease all activities at facilities located within the County.”1 20 FAC ¶ 81. The Orders exempted 21 categories of “essential businesses,” id., such as grocery 21 stores, health care operations, and banks, see Mar. 16 Order ¶ 10.f. The Orders authorized law 22 enforcement officials to “ensure compliance with and enforce this Order.” Id. ¶ 11. Firearm and 23 ammunition retailers and shooting ranges were not exempted. FAC ¶ 81. 24 On March 31, 2020, Defendant Counties issued additional orders superseding the March 25 16 Orders and extending the shelter-in-place period until May 3, 2020. FAC ¶ 83; see ECF No. 26 27 28 In their motion, Plaintiffs refer to the Orders as “substantively identical.” ECF No. 20-1 at 10, 12, 13. Unless otherwise indicated, the Court looks to Alameda County’s Orders, see ECF No. 46-6 at 11-17, 19-33, as representative of all four Counties’ Orders. 3 1 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 4 of 34 1 46-6 at 19-33 (“Mar. 31 Order”). These Orders also did not exempt firearm and ammunition 2 retailers and shooting ranges as essential businesses. FAC ¶ 84. The March 31 Orders stated that 3 “violation of any provision of this Order constitutes an imminent threat and menace to public 4 health, constitutes a public nuisance, and is punishable by fine, imprisonment, or both.” Mar. 31 5 Order ¶ 15. On April 29, 2020, Defendant Counties issued a new set of Orders extending the 6 shelter-in-place period until May 31, 2020. See ECF No. 46 at 13 n.5. On May 15 and May 18, 2020, the Counties updated their Orders yet again. See ECF No. United States District Court Northern District of California 7 8 50 at 25-44 (“May 18 Order”). 2 “[I]n light of progress achieved in slowing the spread of COVID- 9 19,” the new Orders permit a new category of “Additional Businesses,” including all retail 10 businesses, to resume operation “subject to specified conditions and safety precautions to reduce 11 associated risk of COVID-19 transmission.” See id. ¶ 1. These conditions include offering goods 12 for curbside pickup and, in two Counties, delivery. See id., App. C-1 ¶1(b)(i)(1). The May 15 and 13 18 Orders also permit the socially distanced operation of “Outdoor Businesses” as well as travel to 14 and from all permitted activities. Id. ¶¶ 3, 15.i, 15.l. Unlike their prior iterations, these Orders 15 have no set end date. Rather, they specify that “[t]he Health Officer will continually review 16 whether modifications to the Order are warranted” based on “progress on the COVID-19 17 Indicators[,]” including but not limited to new cases and hospitalizations, hospital, testing, and 18 contract tracing capacity, and availability of personal protective equipment; “developments in 19 epidemiological and diagnostic methods for tracing, diagnosing, treating, or testing for COVID- 20 19”; and “scientific understanding of the transmission dynamics and clinical impact of COVID- 21 19.” Id. ¶ 11. On May 29, 2020, San Mateo County issued a superseding Order that permits retail 22 23 businesses to resume socially distanced in-store sales. ECF No. 58 at 20. Santa Clara County 24 issued a similar Order on June 1, 2020, to take effect on June 5, 2020. ECF No. 59. Contra Costa 25 26 27 28 The Court grants Defendants’ request for judicial notice of these four Orders, which are matters of public record. See ECF No. 50; see Fed. R. Evid. 201 (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”). Unless otherwise indicated, it looks to Alameda’s order, see ECF No. 50 at 25-44, as representative of all four Counties’ orders. 2 4 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 5 of 34 1 County issued a similar Order on June 2, 2020, to take effect on June 3, 2020. ECF No. 60.3 On March 31, 2020, Plaintiffs filed a complaint challenging these orders and their effect on United States District Court Northern District of California 2 3 firearms retailers and shooting ranges. Plaintiffs make a single claim under the Second and 4 Fourteenth Amendments of the United States Constitution and seek injunctive and declaratory 5 relief. ECF No. 1. Plaintiffs fall into three categories: (1) eight individual residents of Defendant 6 counties (“Individual Plaintiffs”) who wish to “exercise [their] right to keep and bear arms . . . and 7 would do so, but for the reasonable and imminent fear of arrest and criminal prosecution under 8 Defendants’ laws, policies, orders, practices, customs, and enforcement, and because Defendants’ 9 orders and actions have closed firearm and ammunition retailers and ranges,” Id. ¶¶ 6-12; (2) three 10 firearms retailers located in three different Defendant counties (“Retailer Plaintiffs”) who “would 11 conduct training and education, perform California [Firearm Safety Certificate (‘FSC’)] testing for 12 and issue FSC certificates to eligible persons, and sell and transfer arms . . . but for the reasonable 13 and imminent fear of criminal prosecution and loss of [their] licenses because of Defendants’ 14 laws, policies, orders, practices, customs, and enforcement thereof,” id. ¶¶ 13-15; and (3) five 15 nonprofit entities focused on Second Amendment rights (“Institutional Plaintiffs”) who bring the 16 action on behalf of themselves and their members, id. ¶¶ 16-20. Defendants include the four 17 Counties as well as various law enforcement and public health officials associated with them, 18 along with the cities of San Jose, Mountain View, Pacifica, and Pleasant Hill and various officials 19 associated with them. Id. ¶¶ 21-40. On April 10, 2020, Plaintiffs amended their complaint as of right, adding a second claim 20 21 under the Fifth and Fourteenth Amendments and seeking declaratory and injunctive relief as well 22 as nominal damages and attorney’s fees and costs. FAC ¶¶ 147-55. That same day, Plaintiffs 23 filed a motion for temporary restraining order or, in the alternative, preliminary injunction. ECF 24 No. 20. On April 10, finding that Plaintiffs had failed to make the required showing under Rule 25 65(b)(1), the Court denied the application for a temporary restraining order and set a hearing on 26 the application for a preliminary injunction. ECF No. 22. On May 1, 2020, Defendants filed a 27 28 The Court grants all three Counties’ requests for judicial notice of these Orders. See supra, 2 n.3. The Court is not aware of a new order issued by Alameda County. 5 3 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 6 of 34 1 consolidated opposition. ECF No. 46. Plaintiffs replied on May 8, 2020, ECF No. 48, and the 2 Court held a video-conference hearing on May 20, 2020. Plaintiffs filed a supplemental brief on May 22, 2020 addressing whether the case was 3 4 mooted by the May 15 and 18 Orders. ECF No. 54. Defendants filed a supplemental opposition 5 on May 27, ECF No. 55, and Plaintiffs replied on May 29, ECF No. 57. The Court took the matter 6 under submission without an additional hearing. 7 II. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. 8 9 III. LEGAL STANDARD The Court applies a familiar four-factor test on a motion for a preliminary injunction. See 10 United States District Court Northern District of California JURISDICTION 11 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839-40 & n. 7 (9th Cir. 2001). 12 To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on 13 the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary 14 relief; (3) that the balance of equities tips in favor of the moving party; and (4) that an injunction is 15 in the public interest. Id. at 20. Preliminary relief is “an extraordinary remedy that may only be 16 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. 17 Council, Inc., 555 U.S. 7, 22 (2008). To grant preliminary injunctive relief, a court must find that “a certain threshold showing 18 19 [has been] made on each factor.” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per 20 curiam). Assuming that this threshold has been met, “serious questions going to the merits and a 21 balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary 22 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and 23 that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 24 1135 (9th Cir. 2011) (internal quotation marks omitted). 25 IV. 26 DISCUSSION Under California’s firearm regulations, an individual is generally required to obtain an 27 FSC, undergo a background check, and wait ten days before acquiring a gun. See Cal. Penal Code 28 §§ 27545, 28050 et seq., 30342 et seq., 30370 et seq., 31615. Moreover, anyone wishing to buy 6 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 7 of 34 1 ammunition must conduct the transaction through a licensed vendor in a face-to-face transaction. 2 Id. § 30312. As stated by Plaintiffs, this means that, with “few very limited exceptions,” FAC 3 ¶ 65, individuals “must visit a retailer at least once for ammunition, and at least twice for 4 firearms,” ECF No. 20-1 at 6. Because firearms retailers are not considered “essential businesses” 5 under the shelter-in-place orders, Plaintiffs argue that “millions of Californians in an entire region” 6 are prohibited “from exercising fundamental rights guaranteed by the Second Amendment,” 7 including the right to possess, acquire, and maintain proficiency with firearms. ECF No. 20-1 at 8 16-17. They also argue that the Orders abridge their due process rights because they are “arbitrary 9 and capricious, overbroad, [and] unconstitutionally vague.” Id. at 26. United States District Court Northern District of California 10 Plaintiffs argue that they are likely to succeed on their Second Amendment and due 11 process claims and that these constitutional violations constitute irreparable injury that tips the 12 public interest and balance of the equities in their favor. Id. at 28-29. 13 A. Mootness 14 Plaintiffs’ FAC challenges only the March 16 and March 31 orders. At the hearing, 15 Plaintiffs stipulated that they also challenged the Orders issued on April 29, May 15, and May 18. 16 ECF No. 53. The Court ordered supplemental briefing on whether the May 15 and 18 Orders, 17 which allow for curbside retail sales and, in two Counties, delivery retail, mooted Plaintiffs’ 18 claims. After this briefing had been submitted, San Mateo, Santa Clara, and Contra Costa 19 Counties requested judicial notice of their May 29, June 1, and June 2 Orders, respectively, which 20 permit the resumption of all in-store retail sales, subject to certain social distancing requirements. 21 See ECF Nos. 58, 59, 60. 22 The doctrine of mootness requires a court to dismiss a case “when the issues presented are 23 no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. 24 Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per 25 curiam)). “The party alleging mootness bears a ‘heavy burden’ in seeking dismissal.” Rosemere 26 Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting 27 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). A case 28 “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the 7 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 8 of 34 1 prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v. Serv. Emps. Int’l 2 Union, Local 1000, 567 U.S. 298, 307 (2012)). “As long as the parties have a concrete interest, 3 however small, in the outcome of the litigation, the case is not moot.” Id. (quoting Knox, 567 U.S. 4 at 307-08). Because Plaintiffs in San Mateo, Santa Clara, and Contra Costa Counties are now clearly United States District Court Northern District of California 5 6 able to purchase firearms and ammunition (or will be once the Orders go into effect), the Court 7 holds that the case is moot as to those Defendants. The San Mateo, Santa Clara, and Contra Costa 8 Defendants are hereby dismissed. 9 As for Alameda County, Plaintiffs argue that existing state and federal statutes and 10 regulations prohibit them from purchasing firearms or ammunition curbside or via delivery. 4 ECF 11 No. 54 at 4-7. Under California law, anyone selling, leasing, or transferring a firearm must obtain 12 a license, Cal. Penal Code § 26500, and “the business of a licensee shall be conducted only in the 13 buildings designated in the license,” id. § 26805(a). See also id. § 30348(a) (requiring that sale of 14 ammunition “be conducted at the location specified in the license”). A licensee must keep all 15 firearms in its inventory “within the licensed location.” Id. § 26885(a). A firearm “may be 16 delivered to the purchaser, transferee, or person being loaned the firearm” at “the building 17 designated in the license” or at “[t]he place of residence of, the fixed place of business of, or on 18 private property owned or lawfully possessed by, the purchaser, transferee, or person being loaned 19 the firearm.” Id. § 26805(d). 20 Plaintiffs argue that a plain reading of these statutes mandates that firearms transactions 21 occur “in the licensee’s building,” not on an adjacent sidewalk or parking lot. ECF No. 54 at 6; 22 ECF No. 57 at 2; see also Cal. Penal Code § 16810 (defining “licensed premises,” “licensee’s 23 business premises,” or “licensee’s place of business” in relevant articles as “the building 24 designated in the license”) (emphasis added). They argue that home delivery is not an option in 25 26 27 28 4 Defendants argued at the hearing and in their supplemental brief that, beginning with the April 29 Orders, outdoor shooting ranges have been permitted to operate. See ECF No. 55 at 7. Plaintiffs do not dispute this interpretation of the Orders. See ECF No. 57 at 2 (arguing only that use of an indoor range is prohibited). The Court will address this issue in its consideration of Plaintiffs’ likelihood of success on their Second Amendment claim. 8 United States District Court Northern District of California Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 9 of 34 1 practice due to “the totality of statutes and regulations imposing both pre and post-delivery 2 requirements [that] prevent firearm and ammunition transactions and transfers to take place 3 outside a licensee’s building.” ECF No. 57 at 3.5 Plaintiffs argue that curbside and delivery sales 4 of firearms are further complicated by the requirement that the recipient perform a “safe handling 5 demonstration” of the firearm in question, which Plaintiffs assert would violate California’s open- 6 carry prohibition. See ECF No. 54 at 6; Cal. Penal Code §§ 26850 (handguns); 26853 7 (semiautomatic pistols); 26856 (double-action revolvers); 26859 (single-action revolvers); 26860 8 (long guns); 26350(a)(1)(A) (open-carry prohibition). The Court notes an additional potential 9 conflict with the requirement that dealers administering FSC tests “designate a separate room or 10 partitioned area” for an applicant to take the test and “maintain adequate supervision to ensure that 11 no acts of collusion occur while the objective test is being administered.” Id. § 31640(f). 12 Defendants respond that Plaintiffs’ interpretation of these provisions is “incorrect and 13 formalistic.” ECF No. 55 at 2. They point to case law interpreting “building” in California’s 14 vandalism and burglary statutes to include certain outdoor areas. Id. at 4 (citing People v. LaDuke, 15 30 Cal. App. 5th 95, 103 (Cal. Ct. App. 2018); People v. Thorn, 176 Cal. App. 4th 255, 263 16 (2009)). They also cite an April 10, 2020 guidance from the Bureau of Alcohol, Tobacco, 17 Firearms, and Explosives stating that federal regulations pose no bar to curbside and drive-through 18 firearms transactions. Id.; ECF No. 55-1 at 4-6. Defendants cite no precedent, however – nor is 19 the Court aware of any – regarding the legality of curbside or drive-through firearms transactions 20 under California law. Since this question would turn on how various state and municipal law 21 enforcement agencies interpret the regulations discussed above, different entities might take 22 different approaches. Plaintiffs who attempt to exercise their right to acquire firearms and 23 ammunition in the manner Defendants claim is currently permitted would risk potential criminal 24 liability. See Cal. Penal Code § 26500 (making violation of California’s firearms licensing 25 requirements a misdemeanor). 26 27 28 5 Plaintiffs submit a supplemental declaration from Plaintiff Roman Kaplan, co-owner of Plaintiff City Arms East LLC, in support of this argument. ECF No. 57-1. The Court disregards this evidence because it was presented for the first time on reply. See In re Hansen Natural Corp. Sec. Litig., 527 F. Supp. 2d 1142, 1150 (C.D. Cal. 2007). 9 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 10 of 34 1 2 given the uncharted legal landscape for selling firearms and ammunition curbside or via delivery, 3 Defendants have not met their “heavy burden” to establish mootness as to the Alameda County 4 Defendants. See Rosemere, 581 F.3d at 1173. 5 6 7 United States District Court Northern District of California The Court need not resolve these questions definitively now. It is sufficient to hold that, B. Likelihood of Success on the Merits 1. Second Amendment Claim “The Second Amendment protects an individual right to keep and bear arms . . . that is 8 fully applicable to the states and municipalities.” Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 9 2015) (citing District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of 10 Chicago, 561 U.S. 742, 750 (2010)). Plaintiffs argue that Alameda County’s Order infringes this 11 right by preventing them from “acquiring or practicing with firearms or ammunition, and during a 12 time of national crisis,” when they claim these rights are most important. ECF No. 20-1 at 6-7, 13 19-20 (emphasis omitted). 14 15 a. Standard of Review The parties dispute which standard of review governs Plaintiffs’ Second Amendment 16 claim. Plaintiffs argue that the Order constitutes a “complete and unilateral suspension on the 17 right of ordinary citizens to acquire firearms and ammunition” that is “categorically 18 unconstitutional” under Heller. ECF No. 20-1 at 18. By this, they mean that “any interest- 19 balancing test, including tiered scrutiny, is inappropriate under Heller.” Id. at 20. Plaintiffs 20 acknowledge their suggested approach is contrary to Ninth Circuit law, see ECF No. 20-1 at 20, 21 which applies either intermediate or strict scrutiny to laws that burden Second Amendment rights 22 depending on “how close the law comes to the core of the Second Amendment right” and “the 23 severity of the law’s burden on the right,” Wilson v. Lynch, 835 F.3d 1083, 1092 (9th Cir. 2016) 24 (quoting United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013)). “The result is a sliding 25 scale. A law that imposes such a severe restriction on the fundamental right of self defense of the 26 home that it amounts to a destruction of the Second Amendment right is unconstitutional under 27 any level of scrutiny.” Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016) (quoting Jackson v. 28 City and County of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014)). “A law that implicates the 10 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 11 of 34 1 core of the Second Amendment right and severely burdens that right warrants strict scrutiny. 2 Otherwise, intermediate scrutiny is appropriate.” Id. (internal citation omitted). This Court is 3 bound by Ninth Circuit precedent. Defendants, meanwhile, urge the Court to review the Order under the “deferential United States District Court Northern District of California 4 5 standards for emergency directives.”6 ECF No. 46 at 13-15. They rely on Jacobson v. 6 Massachusetts, 197 U.S. 11 (1905), in which the Supreme Court upheld a mandatory vaccination 7 law imposed by the Cambridge, Massachusetts board of health during the midst of a smallpox 8 epidemic. The Supreme Court acknowledged states’ police power to enact quarantine and public 9 health laws while noting that these laws “must always yield in case of conflict with . . . any right 10 which [the Constitution] gives or secures.” Id. at 25. However, “the liberty secured by the 11 Constitution . . . does not import an absolute right in each person to be, at all times and in all 12 circumstances, wholly freed from restraint.” Id. at 26. Evaluating a Fourteenth Amendment 13 challenge to the vaccination law, the Court held that 14 if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. 15 16 17 Id. at 31. 18 19 20 21 Given that smallpox was “prevalent and increasing” in Cambridge, the Court held that the vaccination program had a “real or substantial relation to the protection of the public health and the public safety.” Id. Because the law was “applicable equally to all in like condition” and because “in every well-ordered society charged with the duty of conserving the safety of its 22 members the rights of the individual in respect of his liberty may at times, under the pressure of 23 great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety 24 of the general public may demand,” the Court concluded that mandatory vaccination could not “be 25 26 27 28 6 Defendants also alternatively argue that the Court should apply rational basis review because the Order is a “neutral and generally applicable regulation[]” that only “incidentally implicates arms.” ECF No. 46 at 15. Defendants admit that this approach “has not been applied in Second Amendment contexts,” citing only two dissents by Ninth Circuit judges as support for applying it here. Id. at 20. The Court will not apply rational basis review. 11 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 12 of 34 1 affirmed to be, beyond question, in palpable conflict with the Constitution.” Id. at 29-31. It noted, 2 however, that 3 the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. 4 5 6 United States District Court Northern District of California 7 Id. at 38. Although Plaintiffs attempt to dismiss Jacobson as “arcane constitutional jurisprudence,” 8 ECF No. 48 at 6, the case remains alive and well – including during the present pandemic. See S. 9 Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056, at *1 (May 29, 10 2020) (mem.) (Roberts, C.J., concurring) (citing Jacobson in denying injunctive relief regarding 11 California’s COVID-19-related restrictions on religious gatherings). Two circuits have recently 12 held that district courts erred by not using Jacobson to evaluate pandemic-related restrictions on 13 constitutional rights. See In re Abbott, 954 F.3d 772, 785 (5th Cir. 2020) (evaluating temporary 14 restraining order on Texas pandemic restrictions as they related to abortion); In re Rutledge, 956 15 F.3d 1018, 1028 (8th Cir. Apr. 16, 2020) (same as to Arkansas restrictions). In Abbott, the Fifth 16 Circuit referred to Jacobson as “the controlling Supreme Court precedent that squarely governs 17 judicial review of rights-challenges to emergency public health measures.” 954 F.3d at 785. Two 18 other circuits have endorsed approaches that combine Jacobson with the legal framework 19 particular to the right in question. See Robinson v. Marshall, No. 2:19-cv-365-MHT, 2020 WL 20 1847128, at *8 (M.D. Ala. Apr. 12, 2020), denying stay pending appeal, Robinson v. Att’y Gen., 21 No. 20-11401-B, 2020 WL 1952370 (11th Cir. Apr. 23, 2020) (regarding Alabama’s COVID-19 22 restrictions on abortion); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 925-26 (6th Cir. 2020) 23 (regarding Tennessee’s COVID-19 restrictions on abortion). And while the Ninth Circuit has not 24 yet announced a rule, district courts within the circuit have relied on Jacobson to evaluate the 25 burdens that California and Arizona’s pandemic orders have placed on religious exercise and 26 travel. See McGhee v. City of Flagstaff, No. CV-20-08081-PCT-GMS, 2020 WL 2308479, at *5 27 (D. Ariz. May 8, 2020); Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-00832-JAM-CKD, 28 2020 WL 2121111, at *3-4 (E.D. Cal. May 5, 2020); Gish v. Newsom, No. EDCV 20-755 JGB 12 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 13 of 34 1 2 (KKx), 2020 WL 1979970, at *5 (C.D. Cal. Apr. 23, 2020). Plaintiffs also seek to distinguish Jacobson by characterizing the case as “bottomed on a 3 substantial degree of legislative deference to which Defendants’ Orders and enforcement practices 4 are simply not entitled.” ECF No. 48 at 8. This argument misrepresents the case. At issue in 5 Jacobson were two laws: (1) a state statute providing that “the board of health of a city or town, if, 6 in its opinion, it is necessary for the public health or safety, shall require and enforce the 7 vaccination and revaccination of all the inhabitants thereof . . . ,” and (2) a Cambridge board of 8 health regulation mandating vaccination to combat the smallpox outbreak. Jacobson, 197 U.S. at 9 12. While the Jacobson plaintiff challenged only the state statute, the Court considered the 10 interplay of state and local power in setting a deferential standard: United States District Court Northern District of California 11 14 According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. . . . It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. 15 Id. at 25 (internal citations omitted). The Court further held that “surely it was appropriate for the 16 legislature to refer” the question of when to impose mandatory vaccination “to a board of health 17 composed of persons residing in the locality affected, and appointed, presumably, because of their 18 fitness to determine such questions.” Id. at 27. 12 13 19 We find ourselves in much the same situation here. The Order in this case was imposed by 20 Alameda County’s health officer, pursuant to authority granted to her by the California Health and 21 Safety Code. See ECF No. 46 at 9; Cal. Health & Safety Code § 101040 (“The local health officer 22 may take any preventive measure that may be necessary to protect and preserve the public health 23 from any public health hazard during any ‘state of war emergency,’ ‘state of emergency,’ or ‘local 24 emergency,’ as defined by Section 8558 of the Government Code, within his or her jurisdiction.”); 25 id. §§ 101085, 120175. Accordingly, the rationale in Jacobson applies with equal force here as it 26 did there. 27 28 The Court need not decide whether Jacobson or the Ninth Circuit’s Second Amendment framework applies here because, as explained below, the Court concludes that the Order survives 13 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 14 of 34 1 review under either test.7 See Robinson, 2020 WL 1847128, at *8 (“The court need not decide 2 which legal framework applies, and instead assumes that they can and should be applied together 3 in these circumstances.”). 4 b. Under Jacobson, an emergency “statute purporting to have been enacted to protect the 5 6 public health, the public morals, or the public safety” must yield to a fundamental right if it “has 7 no real or substantial relation to those objects, or is, beyond all question, a plain, palpable 8 invasion” of the right. 197 U.S. at 31. Defendants argue that the Order substantially relates to “their objectives – minimizing 9 United States District Court Northern District of California Jacobson Standard 10 COVID-19 transmission rates and conserving healthcare resources – by limiting the number and 11 types of organizations that can expose their employees, customers, and business partners to 12 infection.” ECF No. 46 at 14. In support, they submit a declaration from Dr. Erica Pan, the 13 Interim Health Officer for the Alameda County Public Health Department, explaining that the goal 14 of such orders is: 15 to lower the number of total people who become sick and to save lives by slowing the spread of the coronavirus in order to ensure that communities have enough space and resources in their hospitals for people who develop severe illness. Sheltering in place is proven to slow the spread of the virus if everyone decreases the number of people with whom they come in contact because it decreases the number who might get sick from someone who is infected. 16 17 18 19 ECF No. 46-6 ¶ 12. Dr. Pan states that her decision to issue the Order “was based on evidence of 20 the rapidly increasing case rate of COVID-19 within Alameda County and surrounding Bay Area 21 counties and scientific evidence and best practices regarding the most effective approaches to slow 22 the transmission of COVID-19,” id. ¶ 14, and that it is informed by “consideration of guidance 23 from the Centers for Disease Control and Prevention, the California Department of Public Health, 24 and other public health officials throughout the United States and around the world,” id. ¶ 10. 25 26 27 28 7 Jacobson, which involved a Fourteenth Amendment claim, appears to apply to all constitutional claims. Defendants do not argue, however, that Jacobson should govern Plaintiffs’ due process claim. Because the Court finds that Plaintiffs have not demonstrated a likelihood of success on the merits of that claim under the traditional due process framework, the Court need not consider whether the claim would also be precluded under Jacobson. 14 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 15 of 34 1 Addressing the need for the additional restrictions contained in the March 31 Order as well as the 2 effectiveness of shelter-in-place orders, Dr. Pan states: 3 The need for the March 31 orders could not be starker. When I and the other Bay Area health officers issued shelter-in-place orders on March 31, 2020, the public health emergency had substantially worsened since our March 16, 2020 shelter-in-place orders, with a significant escalation in the number of positive cases, hospitalizations, and deaths, and a corresponding increasing strain on health care resources. At the same time, evidence suggested that the restrictions on mobility and social distancing requirements imposed by the prior orders were slowing the rate of increase in community transmission and confirmed cases by limiting interactions among people, consistent with scientific evidence of the efficacy of similar measures in other parts of the country and world. 4 5 6 7 8 9 Id. ¶ 17. 10 Defendants also submit a declaration from Dr. George W. Rutherford, an epidemiologist United States District Court Northern District of California 11 12 who is leading a COVID-19 contact tracing program in San Francisco at the request of the city’s Department of Public Health. ECF No. 46-7. Dr. Rutherford states that because “[t]he 13 effectiveness of containment measures depends not only on how soon they are enacted but how 14 strict they are[,] . . . [e]xceptions must be narrowly defined because each exception increases the 15 risks of community transmission.” Id. ¶ 11. Dr. Rutherford also provides empirical evidence of 16 the success of shelter-in-place orders in reducing the transmission of COVID-19 in Italy, as well 17 as comparisons of United States jurisdictions showing that earlier implementation of shelter-in18 place has led to a slower spread of the disease. Id. ¶¶ 9, 17-18. 19 Plaintiffs dispute neither the need for the Order nor whether the Order has a real or 20 substantial relationship to the legitimate public health goal of reducing COVID-19 transmission 21 and preserving health care resources, and the Court easily concludes that the Order bears such a 22 relationship to this goal. See Rutledge, 956 F.3d at 1029 (“On the record before us, the State’s 23 interest in conserving PPE resources and limiting social contact among patients, healthcare 24 25 26 27 providers, and other staff is clearly and directly related to public health during this crisis.”); Abbott, 954 F.3d at 787 (“In sum, it cannot be maintained on the record before us that GA-09 bears ‘no real or substantial relation’ to the state’s goal of protecting public health in the face of the COVID-19 pandemic.”) (quoting Jacobson, 197 U.S. at 31). 28 15 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 16 of 34 The Court next turns to whether the Order effects a “plain, palpable invasion” of Plaintiffs’ United States District Court Northern District of California 1 2 Second Amendment rights. See Jacobson, 197 U.S. at 31. Defendants argue that the Order is not 3 “‘beyond question’ arbitrary or unreasonable, as [it was] drawn neutrally, appl[ies] temporarily, 4 and reasonably make[s] limited exceptions only for businesses that support the basic needs of 5 residents.” ECF No. 46 at 14 (citing Jacobson, 197 U.S. at 31). Plaintiffs focus their Jacobson 6 argument on why that standard does not apply but make no argument as to why it is not met here. 7 While the Court has found no authority applying Jacobson in the Second Amendment context, it 8 sees significant overlap between the “plain, palpable invasion” prohibited by Jacobson and the 9 “complete prohibition” on the Second Amendment right that Heller deemed categorically 10 unconstitutional. See Heller, 554 U.S. at 629. It will thus consider whether the Order effects such 11 a prohibition in order to determine whether it can be upheld under Jacobson. “[T]he Second Amendment protects the right to possess a handgun in the home for the 12 13 purpose of self-defense.” McDonald, 561 U.S. at 791 (citing Heller, 554 U.S. at 635); see also id. 14 (Second Amendment right incorporated to the states via the Fourteenth Amendment). Moreover, 15 the right is not limited to possession; the Ninth Circuit has observed that “the core Second 16 Amendment right to keep and bear arms for self-defense ‘wouldn’t mean much’ without the ability 17 to acquire arms.” Teixeira v. County of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (en banc) 18 (quoting Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011)). While Teixeira did not 19 “define the precise scope of any such acquisition right under the Second Amendment,” it made 20 clear that such a right exists. Id. at 678; see also Pena v. Lindley, 898 F.3d 969, 976 (9th Cir. 21 2018), petition for cert. filed, No. 18-843 (Dec. 28, 2018) (“bypass[ing] the constitutional obstacle 22 course of defining the parameters of the Second Amendment’s individual right in the context of 23 commercial sales”). Teixera likewise confirms that the Second Amendment right extends to 24 “maintaining proficiency in firearms use.” 873 F.3d at 677; see also Ezell, 651 F.3d at 711 25 (remanding with instructions to preliminarily enjoin ordinance prohibiting firing ranges in city 26 limits). 27 Plaintiffs argue that “the effect of Defendants’ expansive Orders and actions, among other 28 restrictions,” is an absolute firearm ban of the kind rejected in Heller. ECF No. 20-1 at 18. They 16 United States District Court Northern District of California Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 17 of 34 1 contend that, “[d]ue to the ever-expanding nature of the laws regulating firearm transfers, in- 2 person visits to gun stores and retailers are the only legal means for ordinary, law-abiding citizens 3 to acquire and purchase” firearms and ammunition within California. Id. at 18-19. These laws 4 include requirements that all firearm transfers be processed through licensed dealers, Cal. Penal 5 Code § 27545; all ammunition transactions be made through licensed vendors in face-to-face 6 transfers, id. § 30312; and firearm and ammunition retailers initiate background checks at the point 7 of transfer, collect various information from the buyer, and require the buyer to perform a safe 8 handling demonstration, id. §§ 28200; id. §§ 28150 et seq; id. § 26850. As a result of these 9 regulations, Plaintiffs allege, firearm purchases “cannot be done remotely as many other, non- 10 firearm online retailers are able to do.” Id. at 19 (citing firearm delivery requirements at Cal. 11 Penal Code § 27540). 12 Defendants argue that because the May 18 Order allows for curbside pickup and delivery 13 of firearms, it makes it less convenient for Plaintiffs to exercise their right to acquire firearms 14 rather than eliminating the right all together. ECF No. 55 at 2. As discussed in the mootness 15 section above, see supra IV.A., it is far from clear that curbside pickup and delivery of firearms is 16 permitted under California law. Accordingly, the Court will treat the Order as barring most 17 individuals in Alameda County from purchasing firearms. Because it is undisputed that outdoor 18 shooting ranges have been permitted to operate in all Defendant Counties since the April 29 19 Orders, however, any infringement on the right to maintain proficiency with firearms is clearly not 20 categorical. 21 As to the prohibition on in-store sales of firearms and ammunition, Defendants argue that 22 the Order’s “temporal limits make any categorical analysis inappropriate.” ECF No. 46 at 22. 23 Defendants also emphasize certain exceptions to California’s requirement that licensed dealers 24 participate in firearms transactions. Id. at 23. For example, firearms may be transferred between 25 family members, presuming the acquirer has a valid FSC, see Cal. Penal Code § 27875; loaned 26 between family members for 30 days, presuming the lendee has a valid FSC, see id. § 27880; 27 loaned for use at the lender’s residence, see id. § 27881; and loaned for three days if the lender “is 28 17 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 18 of 34 1 at all times within the presence of the person being loaned the firearm,” see id. § 27885.8 Defendants also make a brief argument that Individual Plaintiffs do not have standing United States District Court Northern District of California 2 3 because the Order “only limit[s] arms-related commerce: the ability to acquire new weapons, more 4 ammunition, and to target-shoot at commercial facilities,” and “[n]one of the individual Plaintiffs 5 claims he or she did not already own guns and ammunition before the Health Orders issued, and 6 none of their organizational counterparts claim their members are so situated either.” ECF No. 46 7 at 23-24. Because “there is no evidence that any of these Plaintiffs has been deprived – even 8 temporarily – of the core Second Amendment right to self-defense,” Defendants argue, Plaintiffs 9 lack standing “to argue that [the Order] would be unconstitutional if applied to third parties in 10 hypothetical situations.” Id. at 24 (quoting Cty. Ct. of Ulster Cty., N.Y. v. Allen, 442 U.S. 140, 155 11 (1979)). This argument is unpersuasive. For one thing, Defendants cite no authority for the 12 13 proposition that the Heller right is limited to a single firearm. Moreover, the Ninth Circuit has 14 observed that “permitting an overall ban on gun sales ‘would be untenable under Heller’ because a 15 total prohibition would severely limit the ability of citizens to acquire firearms.” Teixeira, 873 16 F.3d at 688 (quoting United States v. Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010)) (emphasis 17 in original). The Teixeira court also did not discuss whether the constitutionality of such a 18 prohibition would differ based on whether particular would-be purchasers already owned firearms. 19 The Court will not impose a previously unannounced limitation on the Heller right, especially 20 when the issue has not been directly raised or briefed. The Court holds that Individual Plaintiffs 21 who reside in Alameda County do have standing to challenge the Order. Because the only 22 Retailer Plaintiffs named in the FAC are located in San Mateo, Contra Costa, and Santa Clara 23 Counties, however, the Court holds that these Plaintiffs do not have standing to challenge the 24 25 26 27 28 In their reply brief, Plaintiffs mention in a footnote that they “cannot even privately transfer firearms and ammunition under State law.” ECF No. 48 at 15 n.4. Without further explanation of why the exceptions cited by Defendants do not apply in the current circumstances, the Court disregards this argument. See Estate of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014) (“Arguments raised only in footnotes, or only on reply, are generally deemed waived.”); Sanders v. Sodexo, Inc., No. 2:15-cv-00371-JAD-GWF, 2015 WL 4477697, at *5 (D. Nev. July 20, 2015) (“Many courts will disregard arguments raised exclusively in footnotes.” (quoting Bryan Garner, The Redbook: A Manual on Legal Style 168 (3d ed. 2013))). 18 8 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 19 of 34 1 Alameda County Order. Turning to the merits of Plaintiffs’ argument, the Court concludes that the Order is not the United States District Court Northern District of California 2 3 equivalent of the handgun ban in Heller. The District of Columbia made it a crime to carry an 4 unregistered firearm and prohibited the registration of handguns, thus “totally ban[ning] handgun 5 possession in the home.” Heller, 554 U.S. at 574-75. By contrast, the Order in this case 6 effectively bans most residents of Alameda County from purchasing handguns for the limited 7 duration of the Order. Plaintiffs argue that the Court should treat the ban as permanent given that 8 the latest Order “ha[s] no end date and can be renewed and revised infinitum per [its] own terms.” 9 ECF No. 54 at 4. But Alameda County’s May 18 Order imposes clear and well-defined criteria 10 for its termination, requiring the County’s health officer to “continually review whether 11 modifications to the Order are warranted” based on progress on certain enumerated, empirical 12 “COVID-19 Indicators.” May 18 Order ¶ 11. It was review of these indicators that prompted the 13 Counties to revise their Orders to allow for certain outdoor activities as well as curbside pickup 14 and delivery of retail items. Id. Plaintiffs have presented no reason to believe that the remaining 15 restrictions will be kept in place long term. Indeed, the recent decisions by the Santa Clara, San 16 Mateo, and Contra Costa Defendants to permit in-store retail sales, including of firearms and 17 ammunition, is strong evidence of the temporally limited nature of the Order. Because this short- 18 term restriction falls short of the permanent ban in Heller, it is not “unconstitutional under any 19 level of scrutiny.” Silvester, 843 F.3d at 821. The same reasoning leads the Court to conclude that the Order does not effect a “plain, 20 21 palpable invasion” of Plaintiffs’ Second Amendment rights. This conclusion is supported by the 22 fact that the Order, like the vaccination law in Jacobson and unlike the handgun ban in Heller, is 23 facially neutral. Apart from a reference to “shooting and archery ranges” as an example of 24 recreational facilities that were forced to close by the early Orders, see Mar. 31 Order ¶ 13.a.iii.3.,9 25 26 27 28 This Order sweeps broadly to include “shared facilities for [any] recreational activities outside of residences, including, but not limited to, golf courses, tennis and pickle ball courts, rock parks, climbing walls, pools, spas, shooting and archery ranges, gyms, disc golf, and basketball courts.” Id. Moreover, outdoor shooting ranges have, along with other outdoor recreational facilities, been permitted to reopen starting with the April 29 Orders. See supra, 7 n.5. 19 9 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 20 of 34 1 none of the Orders have mentioned firearms. While Plaintiffs provide examples of the Orders 2 being enforced against firearms retailers, see ECF No. 20-1 at 10-12, 14, they do not argue that the 3 Orders are being selectively enforced, i.e., that other non-exempt businesses are not also being 4 forced to close. Plaintiffs make a passing reference to “Defendants’ motivations,” but offer in 5 support only a statement attributed to the mayor of San Jose: “We are having panic buying right 6 now for food. The one thing we cannot have is panic buying of guns.” ECF No. 20-1 at 25; ECF 7 No. 20-2 at 56. The mayor’s statement postdates the issuance of the Orders and was not made by 8 a decision-maker in any of the four Counties – much less the County that remains a Defendant in 9 this case – and so provides no basis to question Defendants’ motivations. Nor does it undermine 10 United States District Court Northern District of California 11 the facial neutrality of the Orders. Courts applying Jacobson to other COVID-19 restrictions have found that facial neutrality 12 weighed in favor of upholding them. See Abbott, 954 F.3d at 789 (holding that postponement of 13 all non-essential medical procedures was not an “outright ban” on pre-viability abortion partly 14 because it “applie[d] to ‘all surgeries and procedures’” and did “not single out abortion”) (internal 15 quotation omitted); Rutledge, 956 F.3d at 1030 (agreeing with Abbott that facially neutral 16 postponement of non-essential medical procedures “does not constitute anything like an ‘outright 17 ban’ on pre-viability abortion”) (quoting Abbott, 954 F.3d at 789); compare First Baptist Church 18 v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, at *5-6 (D. Kan. Apr. 18, 2020) (declining to 19 apply Jacobson in part because Kansas’s orders “expressly purport to restrict in-person religious 20 assembly by more than ten congregants” and are thus “not facially neutral”). 21 For these reasons, the Court concludes that the Order cannot “be affirmed to be, beyond 22 question, in palpable conflict with” the Second Amendment. See Jacobson, 197 U.S. at 29-31. 23 Plaintiffs have thus failed to demonstrate a likelihood of success on their Second Amendment 24 claim under Jacobson. 25 c. Second Amendment Standard 26 “To evaluate post-Heller Second Amendment claims, the Ninth Circuit, consistent with the 27 majority of our sister circuits, employs a two-prong test: (1) the court ‘asks whether the challenged 28 law burdens conduct protected by the Second Amendment’; and (2) if so, what level of scrutiny 20 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 21 of 34 1 should be applied.’” Fyock, 779 F.3d at 996 (quoting Chovan, 735 F.3d at 1136). 2 United States District Court Northern District of California 3 i. Burden on Conduct Protected by Second Amendment Defendants argue that Individual and Retailer Plaintiffs’ claims fail at step one of the 4 Chovan test because “the Constitution does not confer a freestanding right on commercial 5 proprietors to sell firearms.” ECF No. 46 at 21 (quoting Teixeira, 873 F.3d at 673). But 6 Plaintiffs’ complaint is premised on the right to acquire firearms, not sell them. See FAC ¶ 130 7 (alleging that the Orders “stand as a bar on firearms acquisition, ownership, and proficiency 8 training at shooting ranges, and thus amount to a categorical ban on and infringement of the right 9 to keep and bear arms”). Teixeira confirms that this right, as well as the right to “maintain[] 10 proficiency in firearms use,” falls within the Second Amendment’s protections and that both 11 individuals and retailers have standing to challenge regulations that burden their or their 12 customers’ “right to acquire arms.” 873 F.3d at 677-78. 13 Even if the Ninth Circuit had not already established these baseline protections, the Court 14 would follow the “‘well-trodden and judicious course’ of assuming that the Second Amendment 15 applies and analyzing the regulation under the appropriate level of scrutiny.” Brandy v. 16 Villanueva, No. 10-cv-2874-AB (SKx), ECF No. 29 (C.D. Cal. Apr. 6, 2020) (quoting Pena, 898 17 F.3d at 976). 18 19 ii. Level of Scrutiny “The appropriate level of scrutiny for laws that burden conduct protected by the Second 20 Amendment ‘depend[s] on (1) how close the law comes to the core of the Second Amendment 21 right and (2) the severity of the law’s burden on the right.’” Lynch, 835 F.3d at 1092 (quoting 22 Chovan, 735 F.3d at 1138). A regulation “implicates the core” of the Second Amendment right 23 when it “applies to law-abiding citizens, and imposes restrictions on the use of handguns within 24 the home.” Jackson, 746 F.3d at 963. In Lynch, the Ninth Circuit held that federal statutes, 25 regulation, and guidance that prevented the plaintiff from purchasing a gun based on her state 26 medical marijuana registry card “burden[ed] the core of [plaintiff’s] Second Amendment right 27 because they prevent[ed] her from purchasing a firearm under certain circumstances and thereby 28 impede[d] her right to use arms to defend her ‘hearth and home.’” 835 F.3d at 1092 (quoting 21 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 22 of 34 1 Jackson, 746 F.3d at 961). In this case, the Order applies to all residents of Alameda County, 2 “law-abiding” or not, and prevents them from purchasing firearms for as long as it is in place. 3 Because the Order “impede[s Plaintiffs’] right to use arms to defend [their] ‘hearth and home,’” 4 see id., it burdens the core Second Amendment right. 5 6 regulate only the ‘manner in which persons may exercise their Second Amendment rights’ are less 7 burdensome than those which bar firearm possession completely.” Jackson, 746 F.3d at 961 8 (quoting Chovan, 735 F.3d at 1138). “Similarly, firearm regulations which leave open alternative 9 channels for self-defense are less likely to place a severe burden on the Second Amendment right 10 11 United States District Court Northern District of California The Court now turns to the severity of that burden. In the Ninth Circuit, “laws which than those which do not.” Id. Because the Order regulates the purchase and sale of firearms rather than barring their 12 “possession completely,” Jackson, 746 F.3d at 961, it constitutes a restriction on the manner in 13 which Plaintiffs may exercise their Second Amendment rights. In this way, it is similar to the ten- 14 day waiting period upheld in Silvester, which did not “prevent any individuals from owning a 15 firearm” but rather delayed their purchases. 843 F.3d at 827. Because there is “nothing new in 16 having to wait for the delivery of a weapon,” the Ninth Circuit held that the waiting period did not 17 place a substantial burden on a Second Amendment right. Id. See also Nat’l Rifle Ass’n of Am., 18 Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 207 (5th Cir. 2012) 19 (holding that the “temporary nature” of a burden imposed by a law prohibiting 18- to 20-year-olds 20 from purchasing handguns “reduce[d] its severity,” as those subject to it would “soon grow up and 21 out of its reach”). To be sure, the delay here – at least two-and-a-half months from the date of this 22 order – is significantly longer than the ten days upheld in Silvester. But Plaintiffs cite no authority 23 concerning nor provide any guidance as to how the Court might determine how long a delay 24 would constitute a severe burden on the acquisition right. 25 Pushing the other way is the fact that, unlike the regulations in Lynch, the Order does not 26 “leave open alternative channels for self-defense.” See Jackson, 746 F.3d at 961. Lynch held that 27 the restrictions at issue barred “only the sale of firearms to [plaintiff] – not her possession of 28 firearms.” 835 F.3d at 1093. As in this case, the plaintiff “could have amassed legal firearms 22 United States District Court Northern District of California Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 23 of 34 1 before acquiring a [marijuana] registry card, and [the restrictions] would not impede her right to 2 keep her firearms or to use them to protect herself and her home.” Id. Unlike in this case, 3 however, plaintiff there could also “acquire firearms and exercise her right to self-defense at any 4 time by surrendering her registry card.” Id. See also Chovan, 735 F.3d at 1138 (finding that 5 burden of lifetime ban on firearm possession by persons convicted of domestic violence 6 misdemeanors was “lightened” by exemptions for “those with expunged, pardoned, or set-aside 7 convictions, or those who have had their civil rights restored”); United States v. Torres, 911 F.3d 8 1253, 1263 (9th Cir. 2019) (holding that ban on firearm possession by undocumented immigrants 9 was “tempered” because an undocumented immigrant seeking to obtain a firearm “may remove 10 himself from the prohibition by acquiring lawful immigration status”). At least while the Order is 11 in effect, Plaintiffs here have no similar way of reacquiring the means to purchase firearms 12 lawfully – i.e., they cannot take any action that would allow them to “exercise [their] right to self- 13 defense at any time.” Lynch, 835 F.3d at 1093.10 Defendants attempt to characterize the Order’s restrictions on firearm acquisition as “not 14 15 absolute,” see ECF No. 46 at 23, but the exceptions they cite do not allow for full exercise of 16 Second Amendment rights. The ability to borrow someone else’s gun for use at their residence or 17 for three days if accompanied by the lender, see Cal. Penal Code §§ 27881, 27885, for example, is 18 of little use to someone who wishes to keep a gun in her own home for the purpose of self- 19 defense. And while California law does allow firearm transfers between family members that do 20 not require visiting a retailer, see id. §§ 27875, 27880, it goes without saying that not all residents 21 have family members who could loan or sell them a firearm, or have the FSC required to benefit 22 from such a transfer. For someone who does not already have a functioning firearm at home, the 23 Order makes it virtually impossible to exercise the Heller right for as long as it is in force. Plaintiffs argue that this burden merits strict scrutiny, but they cite no case in which the 24 25 Ninth Circuit – or any other circuit – has applied anything but intermediate scrutiny to a law that 26 27 28 10 The Court notes that, given that the current Order allows outdoor shooting ranges to operate, it leaves ample opportunity to maintain proficiency in firearms use and thus any remaining burden on this right is insubstantial. 23 United States District Court Northern District of California Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 24 of 34 1 burdens a Second Amendment right. Presumably, this is because “[t]here is . . . near unanimity in 2 the post-Heller case law that when considering regulations that fall within the scope of the Second 3 Amendment, intermediate scrutiny is appropriate.” Silvester, 843 F.3d at 823. The only case 4 Plaintiffs cite that applies strict scrutiny to a firearm regulation is Bateman v. Perdue, 881 F. Supp. 5 2d 709 (E.D.N.C. 2012), in which the district court held unconstitutional various North Carolina 6 statutes restricting the possession, sale, and transport of firearms during declared states of 7 emergency. The court applied strict scrutiny because, “[w]hile the bans imposed pursuant to these 8 statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law 9 abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very 10 core of the Second Amendment.” Id. at 716. The Court is not persuaded that Bateman applies 11 here. 12 The Court first notes that Bateman does not cite Jacobson, likely because the defendants 13 did not raise it. See Bateman v. Perdue, No. 5:10-cv-265, ECF Nos. 54 (Dec. 15, 2010), 61 (Dec. 14 16, 2010), 64 (Dec. 16, 2010), 73 (Jan. 10, 2011). Thus, the Bateman court had no occasion to 15 determine whether the Jacobson framework applied. Also, the restrictions at issue in Bateman 16 were more onerous than that at issue here, because they were certain to recur – and recur 17 frequently. Bateman, 881 F. Supp. 2d at 711 (“Due to natural disasters and severe weather, states 18 of emergency are declared with some frequency in North Carolina.”); see also id. (stating that the 19 governor issued four statewide and one county-specific emergency declaration in 2010 alone, in 20 addition to states of emergency declared by local officials). By contrast, the instant Order was 21 drafted to address the once-in-a-generation circumstances presented by the current pandemic and 22 not be reused for future emergencies. Finally, the Bateman court did not explain how it arrived at 23 its conclusion, and its language would seem to suggest that strict scrutiny applies to any firearms 24 regulation. That is not the law. Thus, without deciding the level of scrutiny this Court would 25 apply if faced with the facts in Bateman, the Court finds that Bateman is not helpful. 26 Weighing these considerations, the Court concludes that intermediate scrutiny is 27 appropriate. Without question, the Order burdens the core Second Amendment right “to possess a 28 handgun in the home for the purpose of self-defense.” McDonald, 561 U.S. at 791 (citing Heller, 24 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 25 of 34 1 554 U.S. at 635). Given the temporary nature of this burden, however, and the fact that “[t]he case 2 law in our circuit and our sister circuits . . . clearly favors the application of intermediate scrutiny 3 in evaluating the constitutionality of firearms regulations,” Silvester, 843 F.3d at 823, this burden 4 is not so severe as to merit strict scrutiny. See McDougall v. County of Ventura Cal., No. 2:20-cv- 5 02927-CBM-AS, ECF No. 12 at 2 (Apr. 1, 2020) (finding county closure of gun stores pursuant to 6 COVID-19 stay-at-home order does not substantially burden Second Amendment right because it 7 “does not specifically target handgun ownership, does not prohibit the ownership of a handgun 8 outright, and is temporary”). Accordingly, the Court applies intermediate scrutiny to the Order. 9 United States District Court Northern District of California 10 iii. Application of Intermediate Scrutiny Intermediate scrutiny is a two-step test that requires “(1) the government’s stated objective 11 to be significant, substantial, or important; and (2) a reasonable fit between the challenged 12 regulation and the asserted objective.” Jackson, 746 F.3d at 965 (quoting Chovan, 735 F.3d at 13 1139). “[I]ntermediate scrutiny does not require the least restrictive means of furthering a given 14 end.” Id. at 969. The government must “show only that the regulation ‘promotes a substantial 15 government interest that would be achieved less effectively absent the regulation.’” Silvester, 843 16 F.3d at 829 (quoting Fyock, 779 F.3d at 1000). “The test is not a strict one,” but “requires only 17 that the law be ‘substantially related to the important government interest . . . .’” Id. at 827 18 (quoting Jackson, 746 F.3d at 966). 19 The stated objective of the Orders is “to slow the spread of COVID-19.” May 18 Order 20 ¶ 2. Defendants’ second stated objective – conserving health care resources, see id.; ECF No. 46 21 at 14 – follows naturally from this first goal. Plaintiffs concede that “Defendants have a legitimate 22 interest in reducing the population’s exposure to COVID-19,” a pandemic that is “serious in 23 nature.” ECF No. 20-1 at 6-7, 30. They argue, however, that “a governmental interest that is as 24 inconsistently pursued as Defendants’ here is not and cannot be a substantial one for constitutional 25 purposes.” Id. at 24. But this argument is really about fit, not interest. Defendants do not 26 seriously contest that preventing the spread of a deadly global pandemic is a “significant, 27 substantial, or important” government interest. See Jackson, 746 F.3d at 965 (quoting Chovan, 28 735 F.3d at 1139); Brandy, No. 20-cv-02874-AB (SKx), ECF No. 29 at 5. 25 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 26 of 34 United States District Court Northern District of California 1 As for fit, Defendants submit declarations from public health officials and experts 2 supporting their argument that the shelter-in-place order is necessary to prevent the spread of 3 COVID-19. Dr. Pan, the Alameda County health officer, states that “[c]oronaviruses spread 4 through the air by coughing or sneezing and close personal contact, or by touching contaminated 5 objects or surfaces and then touching your mouth, nose, or eyes.” ECF No. 46-6 ¶ 8. Moreover, it 6 is not possible to know who is infected, because “[s]ome people who are infected remain 7 asymptomatic and spread the virus.” Id. That means that a person might be at risk for contracting 8 COVID-19 if “they were in close contact (within six feet for a prolonged period of time) with a 9 person confirmed to have COVID-19, for up to 48 hours before the onset of symptoms, or in 10 contact with an asymptomatic carrier of the virus.” Id. Accordingly, Dr. Pan concludes that 11 “[c]ompliance with social distancing guidelines is critical because people without symptoms could 12 be contagious.” Id. Sheltering in place, which is “more rigorous than social distancing,” id. ¶ 11, 13 “is proven to slow the spread of the virus if everyone decreases the number of people with whom 14 they come in contact because it decreases the number who might get sick from someone who is 15 infected,” id. ¶ 12. The “restrictions on mobility and social distancing requirements imposed by 16 the prior orders” are “slowing the rate of increase in community transmission and confirmed cases 17 by limiting interactions among people, consistent with scientific evidence of the efficacy of similar 18 measures in other parts of the country and world.” Id. ¶ 17. 19 Dr. Rutherford, the epidemiologist leading the COVID-19 contact tracing project, states 20 that “[t]he effectiveness of containment measures depends not only on how soon they are enacted 21 but how strict they are.” ECF No. 46-7 ¶ 11. “Exceptions must be narrowly defined because each 22 exception increases the risks of community transmission.” Id. “Implementing social distancing 23 protocols for non-essential activities and businesses lowers but does not eliminate the increased 24 transmission risks those activities and businesses create.” Id. ¶ 12. Thus, for example, Alameda 25 County’s March 16 Order “prohibited all public and private gatherings of any number of people 26 occurring outside a household or living unit, except for the limited purposes of performing 27 [e]ssential [a]ctivities, such as obtaining food and medication, visiting a health care professional, 28 or obtaining products needed to maintain safety and sanitation”; “prohibited all travel, except 26 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 27 of 34 1 [e]ssential [t]ravel”; and required “[a]ll businesses with a facility in the County, except [e]ssential 2 [b]usinesses . . . to cease all activities except certain [m]inimum [b]asic [o]perations. . . .” ECF 3 No. 46-6 ¶¶ 13. This Order was issued “based on evidence of increasing occurrence of COVID-19 4 within the County and throughout the Bay Area, scientific evidence and best practices regarding 5 the most effective approaches to slow the transmission of communicable diseases generally and 6 COVID-19 specifically, and evidence that the age, condition, and health of a significant portion of 7 the population of the County places it at risk for serious health complications, including death, 8 from COVID-19. ” ECF No. 46-6 at 21. United States District Court Northern District of California 9 Plaintiffs do not challenge the accuracy or credibility of this evidence. Rather, they fault 10 these declarations for not offering “any explanation as to why less restrictive alternatives – like 11 those used in other retail settings Defendants consider essential – cannot be applied to firearm and 12 ammunition retailers, why Plaintiffs and others like them must be prevented from travelling to and 13 from firearms retailers in other jurisdictions, or how the orders are narrowly tailored as to them.” 14 ECF No. 48 at 14. The Ninth Circuit, however, does not require narrow tailoring for firearm 15 regulations subject to intermediate scrutiny. See Pena, 898 F.3d at 986 (holding that state had met 16 its burden under intermediate scrutiny to show that regulation was “reasonably tailored to address 17 the substantial” state interest) (emphasis added); compare Chovan, 735 F.3d at 1150 (Bea, J., 18 concurring) (arguing that challenged regulation would survive strict scrutiny, which does require 19 narrow tailoring). In support of their argument that Defendants bear the burden “to show that less 20 restrictive alternatives either are not available, or are not a reasonable fit,” ECF No. 48 at 12, 21 Plaintiffs cite the tests for commercial speech, see ECF No. 20-1 at 22 (citing Bd. of Trs. of State 22 Univ. of N.Y. v. Fox, 492 U.S. 469, 480-81 (1989)), and for content-neutral time, place, and 23 manner restrictions on speech, ECF No. 48 at 12 (citing McCullen v. Coakley, 573 U.S. 464, 477 24 (2014)). But notably absent from Plaintiffs’ argument is any mention of the ample Ninth Circuit 25 authority applying intermediate scrutiny in the Second Amendment context. 26 The Court concludes that Defendants have demonstrated a reasonable fit between the 27 burden the Order places on Second Amendment rights and Defendants’ goal of reducing COVID- 28 19 transmission. In Jackson, the Ninth Circuit found that San Francisco’s ban on the sale of 27 United States District Court Northern District of California Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 28 of 34 1 “hollow-point ammunition,” which the city had found more fatal than other types of ammunition, 2 was substantially related to the city’s interest in reducing the fatality of shootings. 746 F.3d at 3 969-70. The court rejected the plaintiff’s arguments that “San Francisco could have adopted less 4 burdensome means of restricting hollow-point ammunition, for example by prohibiting the 5 possession of hollow-point bullets in public, but allowing their purchase for home defense.” Id. at 6 969. Even if this were correct, the Court held, “intermediate scrutiny does not require the least 7 restrictive means of furthering a given end.” Id. Rather, a “city must be allowed a reasonable 8 opportunity to experiment with solutions to admittedly serious problems.” Id. at 969-70 (quoting 9 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52 (1986)). The Jackson court also held 10 that San Francisco’s requirement that gun owners keep their guns locked or disabled was 11 substantially related to its interest in reducing firearm-related deaths and injuries, despite the fact 12 that the regulation applied “even when the risk of unauthorized access by children or others is low, 13 such as when a handgun owner lives alone.” Id. at 966. 14 Likewise, Lynch found a reasonable fit between regulations prohibiting illegal drug users 15 from purchasing guns and the government’s interest in preventing gun violence even though the 16 regulations burdened the Second Amendment rights of a “small population of individuals who – 17 although obtaining a marijuana registry card for medicinal purposes – instead h[e]ld marijuana 18 registry cards only for expressive purposes” and thus were not illegal drug users. 835 F.3d at 19 1094. Because it was “eminently reasonable for federal regulators to assume that a registry 20 cardholder is much more likely to be a marijuana user than an individual who does not hold a 21 registry card,” the court found the fit “reasonable but not airtight” and upheld the regulations. Id. 22 See also Silvester, 843 F.3d at 827-29 (upholding ten-day waiting period as substantially related to 23 government’s interests in giving state time to complete background checks and providing 24 “cooling-off” period, even though the law applied to those who passed background checks in less 25 than ten days as well as to those who already owned guns they could use to commit impulsive acts 26 of violence). 27 The fit between the Order and Alameda County’s interest in reducing the spread of 28 COVID-19 is much closer than the fits upheld in Jackson, Lynch, and Silvester. While the 28 United States District Court Northern District of California Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 29 of 34 1 regulations in all of those cases affected some number of people who did not actually pose the 2 danger the regulations were intended to abate, here, every resident of Alameda County is a 3 potential vector for COVID-19. Defendants have produced evidence that any decrease in human 4 contact and in-person interaction helps slow the virus’s spread, and thus that any exception to the 5 shelter-in-place order makes the order less effective at achieving its goal. This evidence 6 forecloses Plaintiffs’ argument that allowing firearms and ammunition retailers to operate under 7 social distancing and sanitation guidelines would constitute a less restrictive alternative that would 8 further Defendants’ goals. According to the evidence Defendants have submitted, adding these 9 retailers to the list of essential businesses exempted from the Order would “increase[] the risks of 10 community transmission” even when social distancing protocols are followed, as those protocols 11 “lower[] but do[] not eliminate the increased transmission risks.” ECF No. 46-7 ¶¶ 11-12. And 12 even if this alternative did further the County’s goals, “intermediate scrutiny does not require the 13 least restrictive means of furthering a given end.” Jackson, 746 F.3d at 969. 14 Plaintiffs further argue that the Order “inconsistently pursues” Defendants’ goals because 15 it is “so pierced by exemptions and inconsistencies that [they] cannot hope to exonerate [it].” ECF 16 No. 20-1 at 24 (quoting Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 190 17 (1999)). Putting aside the fact that Plaintiffs again rely on a commercial speech case for this 18 argument, the exemptions here are a far cry from the regulations in Greater New Orleans, which 19 prohibited broadcast advertising by private casinos but not tribal or government-operated casinos. 20 527 U.S. at 190. The Court found that the government had presented “no convincing reason for 21 pegging its speech ban to the identity of the owners or operators of the advertised casinos,” id. at 22 191, and that “there was ‘little chance’ that the speech restriction could have directly and 23 materially advanced [the government’s aim of alleviating the social costs of casino gambling by 24 limiting demand], ‘while other provisions of the same Act directly undermine[d] and 25 counteract[ed] its effects,’” id. at 193 (quoting Rubin v. Coors Brewing Co., 514 U.S. 476, 489 26 (1995)). 27 By contrast, Defendants here have offered a “convincing reason” for exempting the 28 essential businesses enumerated in the Orders. See ECF No. 46-7 ¶ 11 (explaining that exempted 29 United States District Court Northern District of California Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 30 of 34 1 businesses “such as grocery stores, pharmacies, laundromats/dry cleaners, and hardware stores are 2 deemed essential because they provide for the basic needs of residents for food, medicine, 3 hygiene, and shelter. If people have no opportunity to wash their clothes, they can get fleas and 4 ticks, which can spread other infectious diseases, such as flea-borne (murine) typhus and trench 5 fever. . . . And hardware stores provide supplies needed to maintain shelter, such as heat, indoor 6 plumbing, and refrigeration, that will require maintenance and repair to keep them working.”). 7 Perhaps a different governmental entity could conclude that firearms and ammunition retailers and 8 shooting ranges are essential, and some have. See Cybersecurity & Infrastructure Security 9 Agency, Guidance on the Essential Critical Infrastructure Workforce (last revised Apr. 24, 2020), 10 https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_ 11 Critical_Infrastructure_Workers_4.pdf (guidance from United States Department of Homeland 12 Security recommending that state and local jurisdictions classify “[w]orkers supporting the 13 operation of firearm, or ammunition product manufacturers, retailers, importers, distributors, and 14 shooting ranges” as essential).11 Unlike the regulatory scheme in Greater New Orleans, however, 15 the efficacy of the Order is not “undermine[d]” or “counteract[ed]” by the exclusion of firearms 16 and ammunition retailers from the list. 527 U.S. at 193. In fact, as Defendants have offered 17 evidence that “each exception increases the risks of community transmission,” ECF No. 46-7 ¶ 11, 18 excluding these retailers in fact “directly and materially advance[s]” Alameda County’s interest in 19 controlling the spread of COVID-19, see Greater New Orleans, 527 U.S. at 193. The Court thus 20 rejects Plaintiffs’ argument that inconsistencies in the list of exempted businesses undermines the 21 degree to which the Order is substantially related to Defendants’ goal. For these reasons, the Order survives intermediate Second Amendment scrutiny and 22 23 Plaintiffs have failed to demonstrate a likelihood of success on their Second Amendment claim. 24 25 26 27 28 While Plaintiffs attempted to submit this guidance via their counsel’s declaration, see ECF No. 20-2 at 129-30, the exhibit omits the pertinent portion of the guidance. The Court thus takes sua sponte judicial notice of this document, which is a public record. See Fed. R. Evid. 201; Rollins v. Dignity Health, 338 F. Supp. 3d 1025, 1032 (N.D. Cal. 2018) (explaining that courts often take judicial notice of government agency websites). 30 11 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 31 of 34 2. 1 Plaintiffs premise their due process claim on the argument that the Order and Defendants’ 2 United States District Court Northern District of California Due Process Claim 3 enforcement of it is “arbitrary and capricious, overbroad, [and] unconstitutionally vague.” ECF 4 No. 20-1 at 26. To the degree Plaintiffs intend to invoke substantive due process to argue that the 5 Order arbitrarily designates certain businesses as exempt or overbroadly bars other businesses 6 from operating under the essential business exemption, this claim is precluded by the principle that 7 “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or 8 Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific 9 provision, not under the rubric of substantive due process.” County of Sacramento v. Lewis, 523 10 U.S. 833, 843 (1998) (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). Because 11 the Court has already considered and rejected these arguments in the Second Amendment context, 12 it declines to do so again under the doctrine of substantive due process. 13 This leaves only Plaintiffs’ argument that the Order is unconstitutionally vague.12 A 14 criminal law is unconstitutionally vague if it “fails to give ordinary people fair notice of the 15 conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United 16 States, 135 S. Ct. 2551, 2556 (2015). Assuming that a county order of the sort issued here, 17 violation of which constitutes a misdemeanor, is a criminal law subject to this standard, it easily 18 satisfies it. The version of the Order currently in force mandates that “individuals may leave their 19 residence only for” certain enumerated activities. May 18 Order ¶ 3. The Order also states that all 20 non-exempted businesses “are required to cease all activities at facilities located within the County 21 except Minimum Basic Operations,” which the Order defines in depth. Id. ¶¶ 5, 15. Prior 22 versions of the Order have provided similar levels of detail as to what was and was not permitted 23 throughout their duration. Moreover, Plaintiffs provide no explanation as to how the Order 24 “invites arbitrary enforcement,” see Johnson, 135 S. Ct. at 2556, much less any evidence 25 26 27 28 Plaintiffs briefly argue that the Order is “made even more constitutionally suspect because it bypassed the constitutionally authorized method for enacting laws,” thus “violat[ing ] separation of powers.” ECF No. 20-1 at 27. As Plaintiffs provide no authority for this argument and do not respond to Defendants’ counter-arguments in their reply brief, the Court declines to consider this argument. 31 12 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 32 of 34 1 supporting their allegation that the Order is in fact being arbitrarily enforced. Accordingly, they 2 are unlikely to succeed on the merits of their vagueness argument. For these reasons, Plaintiffs fail to show a likelihood of success on the merits of their due 3 United States District Court Northern District of California 4 process claim. 5 C. Other Factors 6 Defendants do not dispute that, had Plaintiffs been able to establish a likelihood of success 7 on the merits, they would also have established irreparable harm. ECF No. 46 at 29; see 8 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the 9 deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”) (quoting 10 Elrod v. Burns, 427 U.S. 347, 373 (1976)). But they do dispute whether an injunction would be in 11 the public interest, an inquiry that the Court considers alongside the balance of the equities. See 12 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (“When the government is a 13 party, [the public interest and equities] factors merge.”). Plaintiffs bear the burden of showing that 14 both factors weigh in their favor. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138-39 (9th Cir. 15 2009). 16 Plaintiffs argue that “public interest concerns are always implicated when a constitutional 17 right has been violated.” ECF No. 48 at 16. That point is not debatable. See Rodriguez v. 18 Robbins, 715 F.3d 1127, 1146 (9th Cir. 2013) (“Generally, public interest concerns are implicated 19 when a constitutional right has been violated, because all citizens have a stake in upholding the 20 Constitution.”) (quoting Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005)). But it does not 21 follow, as Plaintiffs claim, that these concerns “always” weigh in favor of a preliminary 22 injunction. ECF No. 48 at 16; see Abbott, 954 F.3d at 791 (holding that district court erred by 23 “rotely” concluding that “all injunctions vindicating constitutional rights serve the public 24 interest”). Rather, the Court must balance the public’s interest in preventing constitutional harm 25 against the government’s – and the public’s – interest in controlling the spread of a dangerous 26 pandemic. See Stormans, 586 F.3d at 1138 (“In assessing whether the plaintiffs have met [their 27 burden to show that the balance of equities tips in their favor], the district court has a ‘duty . . . to 28 balance the interests of all parties and weigh the damage to each.’”) (quoting L.A. Mem’l Coliseum 32 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 33 of 34 United States District Court Northern District of California 1 Comm’n v. Nat’l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)). 2 In the First Amendment context, “[t]he public interest in maintaining a free exchange of 3 ideas, though great, has in some cases been found to be overcome by a strong showing of other 4 competing public interests, especially where the First Amendment activities of the public are only 5 limited, rather than entirely eliminated.” Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 6 974 (9th Cir. 2002), abrogated on other grounds by Winter, 555 U.S. 7. In Stormans, for example, 7 the court considered whether the district court had erred in enjoining rules requiring pharmacies to 8 fill all prescriptions based on their likelihood to infringe on the free exercise rights of certain 9 pharmacists. 586 F.3d at 1139. The court reversed the district court for many reasons, including 10 that the injunction was overbroad and the district court had not applied the proper test in 11 considering the likelihood of success on the merits. Id. at 1137-38, 1141. The district court also 12 had not considered the public interest, which was implicated by the fact that the injunction 13 “reached non-parties and implicated issues of broader public concern that could have public 14 consequences.” Id. at 1139. Even if the injunction had been limited to the plaintiffs, the court 15 noted that the public interest factor may have weighed against an injunction given the “general 16 public interest in ensuring that all citizens have timely access to lawfully prescribed medications.” 17 Id. Because the case “may present a situation in which ‘otherwise avoidable human suffering’ 18 results from the issuance of the preliminary injunction . . . the district court clearly erred by failing 19 to consider the public interest at stake.” Id. at 1140. 20 Given Defendants’ showing that any loosening of the shelter-in-place order would increase 21 the risk of transmission of COVID-19 – not just for those who visit particular retailers, but for 22 everyone in the community – the Court concludes that this case also presents a situation in which 23 “otherwise avoidable human suffering” would result from the issuance of the requested injunction. 24 Id.; see also City and County of San Francisco v. U.S. Citizenship & Immigration Servs., 408 F. 25 Supp. 3d 1057, 1127 (N.D. Cal. 2019) (finding that public interest “in decreasing the risk of 26 preventable contagion” weighed in favor of enjoining rule that would lead to Medicaid 27 disenrollment and thus decreased vaccination rates). The Court thus finds that the public’s interest 28 in controlling the spread of COVID-19 outweighs its interest in preventing the constitutional 33 Case 4:20-cv-02180-JST Document 61 Filed 06/02/20 Page 34 of 34 1 violations alleged here, especially given that Plaintiffs have failed to establish a likelihood of 2 success on the merits. For these reasons, the balance of equities and public interest weigh against 3 a preliminary injunction. CONCLUSION 4 5 6 7 8 9 10 For the foregoing reasons, Plaintiffs are not entitled to the “extraordinary remedy” of a preliminary injunction. See Winter, 555 U.S. at 22. Plaintiffs’ motion is therefore DENIED. IT IS SO ORDERED. Dated: June 2, 2020 ______________________________________ JON S. TIGAR United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34

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