S. JAMES OTERO, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Complaint, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, Plaintiff's Objections, and Defendant's Response to Plaintiff's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge. In addition, the Court will address certain arguments raised by Plaintiff in his Objections.
Plaintiff asserts that the Ninth Circuit's recent decision in Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir.2014), has been "stayed" and is neither binding on this Court nor relevant to his claims. (Obj. at 8). Plaintiff is mistaken.
Plaintiff further appears to misinterpret the import of the Peruta court's clarification in footnote 19 that it was not "ruling on the constitutionality of California statutes." (Obj. at 2) (quoting Peruta, 742 F.3d at 1173 n. 19). This footnote is part of the discussion in which the Ninth Circuit explained that because the Second Amendment does not protect any particular mode of carry, a claim that a state must permit a specific form of carry, such as open carry, fails as a matter of law. See id. at 1172-73 ("As the California legislature has limited its permitting scheme to concealed carry — and has thus expressed a preference for that manner of arms-bearing — a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry, is permissible."). Accordingly, Peruta did not rule on the overall constitutionality of California statutes because it accepted the lawfulness of California's firearms regime, including the state's preference for concealed carry over open carry. Id. at 1172.
Plaintiff suggests that the Ninth Circuit's recent decision in Jackson v. City and County of San Francisco, 746 F.3d 953 (9th Cir.2014), is helpful to his case as he opens his Objections with a lengthy quotation from that decision. (See Obj. at 1-2) (quoting Jackson, 746 F.3d at 961-63). However, Plaintiff does not explain why the passages he quotes support his claims. The Jackson court found that two San Francisco Police Code regulations that prohibit the unsecured storage of handguns in residences and the sale of "hollow point" ammunition passed constitutional muster. Id. at 957-59. In the passages quoted by Plaintiff, the court determined that the plaintiff could bring a facial challenge
Finally, Plaintiff asserts that he does in fact have standing to assert an equal protection challenge to California Penal Code Section 25850 due to its allegedly racist origin and application because contrary to the criminal complaint on which the Magistrate Judge relied, he is not white but of "mixed race" heritage. (Obj. at 16). Plaintiff's equal protection claim still fails, however, because as the Magistrate Judge observed, Plaintiff did not squarely raise a race-based challenge to Section 25850 against the Attorney General. (Report and Recommendation at 26-27).
To state an equal protection claim under section 1983, a plaintiff typically must allege that "`defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.'" Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (emphasis added)). Even liberally construed, the Second Amended Complaint fails to make any connection between Plaintiff's race and the allegedly racist design motivating the passage of the facially race-neutral predecessor to Section 25850. Indeed, the record in this case, including Plaintiff's Second Amended Complaint and Plaintiff's Motion for Partial Summary Judgment, is devoid of any allegation that Plaintiff is a member of a racial minority whose members were the intended target of the legislature's alleged racial animus in enacting the predecessor to Section 25850. Despite three opportunities to state his claims, Plaintiff simply did not raise a race-based Fourteenth Amendment claim in this action. Assertion of a new claim on summary judgment is improper. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.2000). Accordingly, even if Plaintiff is of "mixed race" heritage, he may not raise new claims at this late stage of the litigation.
SUZANNE H. SEGAL, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
This civil rights action purports to challenge the constitutionality of seventeen California statutes that regulate the open carry of firearms and the issuance of firearm licenses solely as they relate to open carry. Plaintiff, a California resident proceeding
On November 8, 2013, Plaintiff filed a Motion for Partial Summary Judgment, (Dkt. No. 131), including a Memorandum in support of the Motion, ("MSJ," Dkt. No. 132), and the Declaration of Plaintiff Charles Nichols. ("Nichols MSJ Deck," Dkt. Nos. 133-34). Plaintiff also lodged a Statement of Uncontroverted Facts and Conclusions of Law pursuant to Local Rule 56-1. ("SUF," Dkt. No. 136). On December 2, 2013, Defendant filed a Memorandum in Opposition to the MSJ, (Dkt. No. 140), including a Statement of Genuine Disputes, ("SGD," Dkt. No. 140.1), and the Declaration of Jonathan M. Eisenberg. ("Eisenberg MSJ Deck," Dkt. No. 140.2). The following day, December 3, 2013, Defendant filed a Notice of Errata and a corrected Memorandum in Opposition to the MSJ. ("MSJ Opp.," Dkt. No. 141). On December 9, 2013, Plaintiff filed a Reply in support of the MSJ, ("MSJ Reply," Dkt. No. 143), and a "reply" to Defendant's Statement of Genuine Disputes. ("Reply SGD," Dkt. No. 144). On the same day, Plaintiff also filed Objections to Defendant's Notice of Errata, (Dkt. No. 145), and Objections to the Declaration of Jonathan M. Eisenberg.
On November 12, 2013, Defendant filed a Motion for Judgment on the Pleadings, (Dkt. No. 129), including a Memorandum in support of the Motion, ("MJP," Dkt. No. 129.1), and a Request for Judicial Notice. ("MJP RJN," Dkt. No. 129.2). On November 26, 2013, Plaintiff filed an Opposition to the MJP, ("MJP Opp.," Dkt. No. 139), and Objections to Evidence.
For the reasons discussed below, it is recommended that Plaintiff's Motion for Partial Summary Judgment be DENIED. It is further recommended that Defendant's Motion for Judgment on the Pleadings be GRANTED and that this action be DISMISSED WITH PREJUDICE.
As amended by Plaintiff's voluntary dismissal of City of Redondo Beach and the Doe Defendants, the SAC sues only Defendant Kamala D. Harris in her official capacity as the Attorney General of the State of California. (SAC at 1-2). The SAC raises a facial challenge to the constitutionality of seventeen California statutes that Plaintiff contends violate the fundamental right to openly carry loaded and unloaded firearms.
According to the SAC, on May 21, 2012, Plaintiff openly carried an unloaded firearm in a beach zone within City of Redondo Beach as part of a peaceful protest in support of the open carry movement. (SAC at 19-20). CRB Police Officer Heywood took the firearm from Plaintiff without Plaintiff's permission and conducted a chamber check to determine if it was loaded. (Id. at 19). Officer Heywood and an unidentified officer informed Plaintiff that he was in violation of city ordinances prohibiting the carrying of firearms in public areas and seized his firearm and carrying case. (Id. at 20). The CRB City Prosecutor later filed a misdemeanor charge against Plaintiff for carrying a firearm in a city park in violation of a city ordinance.
Also on May 21, 2012, CRB Police Chief Leonardi informed Plaintiff that his request for an application and license to openly carry a loaded handgun could not be approved. (Id. at 21). Leonardi's email explained that state law (1) prohibits municipalities in counties with populations exceeding 200, 000 persons from issuing open carry licenses and (2) limits a municipality's authority to issue any state handgun license to that city's residents only. (Id.). Because CRB is located in Los Angeles County, which has a population exceeding 200, 000, and Plaintiff is not a resident of CRB, Plaintiff was unable to secure an open carry license from CRB. (Id.).
Plaintiff generally alleges that in addition to the incident on May 21, 2012, he "has frequently and countless times violated California Penal Code Section 25850, the Redondo Beach City Ordinances and other California statutes prohibiting firearms from being carried in non-sensitive public places." (Id. at 22). Plaintiff states that he will continue to "openly carry a loaded holstered handgun, loaded rifle and loaded shotgun," as well as unloaded firearms, in public places in CRB and around the state of California. (Id. at 23). Plaintiff specifically alleges that he will openly carry a firearm on August 7, 2013 in CRB and Torrance and on the seventh day of every month thereafter. (Id. at 22).
The SAC raises a single, multi-faceted claim under the Second, Fourth and Fourteenth Amendments against the California Attorney General. (SAC at 25-30). At issue are three California statutes that collectively prohibit, subject to numerous exceptions, the open carry of loaded and unloaded firearms and handguns in public, and fourteen statutes that govern the issuance of licenses to carry concealable firearms to the extent that they infringe on the alleged "fundamental right" to open carry. (Id.). Plaintiff emphasizes that "[n]one of his challenges should be construed as challenging any California statute as it pertains to the carrying of a weapon concealed on one's person in a public place." (Id. at 29). Instead, Plaintiff appears to claim that the Second Amendment not only extends beyond the home, but also affirmatively requires states to authorize the open carry of firearms. (See id. at 27).
Plaintiff asserts four primary arguments to support his claims. First, Plaintiff alleges
Plaintiff seeks declaratory and injunctive relief prohibiting the enforcement of the challenged California statutes "to the extent that [they are] applied to prohibit private citizens who are otherwise qualified to possess firearms" from openly carrying loaded and unloaded firearms "on their own property, in their vehicles and in non-sensitive public places," or "prohibit or infringe private citizens" from obtaining licenses to engage in these activities. (Id. at 36-38).
Plaintiff's MSJ challenges the constitutionality only of Sections 25850, 26350 and 26400, which collectively prohibit the open carry of loaded and unloaded firearms and handguns. (See MSJ at 2). Plaintiff does not seek summary judgment on his claims in the SAC relating to California's firearm licensing scheme or on his Section 25850 void-for-vagueness claim.
Plaintiff raises three general arguments that he believes show his entitlement to summary judgment. First, Plaintiff argues that summary judgment is warranted because the Second Amendment protects the "basic right" of law-abiding gun owners to openly carry loaded and unloaded firearms for the purpose of self-defense in all non-sensitive public places. (MSJ at
Defendant argues in her Motion for Judgment on the Pleadings that all four of Plaintiff's claims in the SAC — (1) the Second Amendment challenge to all statutes at issue, (2) the Fourth Amendment challenge to Section 25850's warrantless chamber check authorization, (3) the Fourteenth Amendment equal protection challenge to the restriction on open carry licenses to residents of counties with fewer than 200,000 persons, and (4) the claim that Section 25850 is unconstitutionally vague — fail as a matter of law. First, Defendant argues that open carry is not a core right protected by the Second Amendment, and even if the Second Amendment reaches outside the home, California's numerous exceptions to the general prohibition on open carry satisfy the requisite level of scrutiny. (MJP at 7-10; MJP Reply at 4-5). Second, Defendant argues that pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Plaintiff's misdemeanor conviction for violation of a CRB city ordinance bars his Fourth Amendment challenge to the warrantless chamber check authorized by section 25850(b). (MJP at 11). Furthermore, Defendant contends that because none of the open carry laws challenged by Plaintiff violates the constitution, an "officer seeing [a] person openly carry [a] firearm in a public place necessarily has probable cause to search the firearm to see if it is loaded." (Id. at 12; see also MJP Reply at 6-7) (emphasis omitted). Third, Defendant argues that California's restriction on open carry licenses to residents of counties with fewer than 200, 000 person rationally furthers a legitimate state purpose and is therefore constitutional. (Id. at 11). Fourth, Defendant argues that Plaintiff's vagueness arguments are not cognizable, and even if they were, the challenged statutes are not vague. (MJP at 13).
Pursuant to Federal Rule of Civil Procedure 56, a moving party's entitlement to
If the moving party carries its burden of production, the nonmoving party must go beyond the pleadings and produce evidence that shows a genuine issue for trial. Id. at 324, 106 S.Ct. 2548; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party is entitled to summary judgment if the nonmoving party "fails to produce enough evidence to create a genuine issue of material fact...." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir.2000).
After the pleadings are closed, Federal Rule of Civil Procedure 12(c) permits a party to seek judgment on the pleadings. Fed.R.Civ.P. 12(c). "A Rule 12(c) motion challenges the legal sufficiency of the opposing party's pleadings and operates in much the same manner as a motion to dismiss under Rule 12(b)(6)." Morgan v. County of Yolo, 436 F.Supp.2d 1152, 1154-1155 (E.D.Cal.2006). Under that standard, a complaint must contain "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must articulate "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must "accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009). However, the court may properly "discount[ ] conclusory statements, which are not entitled to the presumption of truth...." Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir.2012).
"When considering a motion for judgment on the pleadings, this court may consider facts that are contained in materials of which the court may take judicial notice." Heliotrope General, Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 18 (9th Cir.1999) (internal quotation marks omitted). Judicial notice may be taken "where the fact is `not subject to reasonable dispute,' either because it is `generally known within the territorial jurisdiction,' or is `capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'" Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1026 (9th Cir.1992) (quoting Fed.R.Evid. 201(b)). Courts may take judicial notice of matters of public record without converting a motion for judgment on the pleadings into a motion for summary judgment. Xcentric Ventures, L.L.C. v. Borodkin, 934 F.Supp.2d 1125, 1134 (D.Ariz.2013).
As previously noted, a "claim is `facial' [if] ... it is not limited to plaintiffs' particular case, but challenges the application of the law more broadly...." John Doe No. 1, 130 S.Ct. at 2817. Facial challenges are disfavored. Wash. State Grange v. Wash. State Republican Party,
Plaintiff contends that the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), which was applied to the states in McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), should be interpreted to support a blanket right for qualified persons to openly carry arms outside the home "except in certain public places the Court called `sensitive,'" such as schools and government buildings. (MSJ at 8-9). According to Plaintiff, the Supreme Court's finding that individual self-defense is a "basic right" and the "core component" of the Second Amendment means that the right to carry arms openly for the purpose of self-defense is fundamental and does not "evaporate[ ] the moment one steps outside of his home." (Id. at 8 & 11; see also MSJ Reply at 15).
Following this Court's decision denying Plaintiff's preliminary injunction motion, the Ninth Circuit formally adopted a twostep inquiry to be applied in Second Amendment challenges. See United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013) (citing with approval and explicitly adopting two-step inquiry taken by United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010), and United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 958, 178 L.Ed.2d 790 (2011)). First, the court "asks whether the challenged law burdens conduct protected by the Second Amendment" as historically understood. Chovan, 735 F.3d at 1136. Second, if the challenged law does burden protected conduct, or if the lack of historical evidence in the record renders the court unable to say that the Second Amendment's protections did not apply to the conduct at issue, the court "`must assume'" that the plaintiff's Second Amendment rights "`are intact'" and "apply an appropriate level of scrutiny." Chovan, 735 F.3d at 1136-37 (quoting Chester, 628 F.3d at 681). The level of scrutiny depends on (1) "`how close the law comes to the core of the Second Amendment right,'" and (2) "`the severity of the law's burden on the right.'" Chovan, 735 F.3d at 1138 (quoting Ezell v. City of Chicago, 651 F.3d 684, 703 (7th
On February 13, 2014, the Ninth Circuit issued a decision in 742 F.3d 1144 (9th Cir.2014) in which it held that "the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense...." Id. at 1166. Peruta involved a challenge to San Diego County's policy concerning the procedures for obtaining a concealed carry license.
Importantly, and fatal to Plaintiff's open carry claims in this case, in reaching this conclusion the Peruta Court also found that:
Peruta, 742 F.3d at 1172-73 (footnotes omitted; emphasis added).
Plaintiff's claim is exactly the type of "broad challenge" insisting on a purported right to a particular mode of carry that the Peruta Court found does not implicate the Second Amendment. Unlike the plaintiffs in Peruta, who claimed that the Second Amendment required the state to "permit some form of carry for self-defense
Under rational basis review, a court will uphold a statute if "the ordinance is rationally-related to a legitimate government interest." Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir.2002); see also Wright v. Incline Village General Improvement Dist., 665 F.3d 1128, 1140 (9th Cir.2011). As this Court has previously found, the governmental objective at issue here is more than just "legitimate" because "California has a substantial interest in increasing public safety by restricting the open carry of firearms, both loaded and unloaded." (PI Order at 7). California courts have explained that the statutory regime regulating the carrying of loaded firearms in public was designed "to reduce the incidence of unlawful public shootings, while at the same time respecting the need for persons to have access to firearms for lawful purposes, including self-defense." People v. Flores, 169 Cal.App.4th 568, 576, 86 Cal.Rptr.3d 804 (2008) (emphasis in original). Likewise, the Legislative Histories discussing Sections 26350 (unloaded handguns) and 26400 (unloaded firearms) explain in identical language that these statutes were enacted because:
(Dkt. No. 104, Eisenberg Decl., Ex. A at AG0021 (legislative history of A.B. No. 144 re unloaded handguns) & Ex. B at AG0092 (legislative history of A.B. No. 1527 re unloaded firearms)).
The Court also finds that the challenged prohibitions are more than merely rationally related to the objective of increasing public safety. California has determined that regulating the carrying of loaded firearms in public reduces public shootings. Allowing the open carry of unloaded handguns and firearms would create an unsafe environment for law enforcement, the person carrying the firearm, and bystanders. At the same time, California has created numerous exceptions that allow for the open carry of loaded and unloaded handguns and firearms.
A central argument in the MSJ and its accompanying exhibits appears to be that Section 25850 violates the 14th Amendment's equal protection clause due to the statute's allegedly racist origins and application.
There are two procedural infirmities with Plaintiffs race-based equal protection
However, even if, as Plaintiff argues, he has always included a racebased "suspect classification" [sic] claim in this action, the claim is not cognizable because Plaintiff does not have standing to assert it. (MSJ Reply at 4); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir.2011) (federal courts "are required sua sponte to examine jurisdictional issues such as standing," which is not waivable and must be demonstrated "at the successive stages of the litigation") (internal quotation marks omitted). To have Article III standing to pursue a claim, the plaintiff must show that he has suffered an "injury in fact." Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir.2011). "The Supreme Court has repeatedly refused to recognize a generalized grievance against allegedly illegal government conduct as sufficient to confer standing." Carroll v. Nakatani, 342 F.3d 934, 940 (9th Cir.2003) (citing United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995)). "[T]he rule against generalized grievances applies in equal protection challenges." Carroll, 342 F.3d at 940-41. To state an equal protection claim under section 1983, a plaintiff typically must allege that "`defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.'" Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir.2013) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (emphasis added)).
According to the criminal complaint filed in CRB's misdemeanor action against Plaintiff, Plaintiff is white. (RJN, Exh. A at 8). In addition, nowhere in the record does Plaintiff contend that he is a member of a racial minority or that he has suffered discrimination because of his race. Therefore, even if Section 25850 was motivated by a racist design and has had a disproportionate impact on racial minorities, facts which Plaintiff has not proved, the statute and its predecessor were not enacted with the intent or purpose to discriminate against Plaintiff and do not threaten to have a disproportionate impact against Plaintiff because of his race. "[E]ven if a government actor discriminates on the basis of race, the resulting injury `accords a basis for standing only to those persons who are personally denied equal treatment.'" Carroll, 342 F.3d at 940 (quoting Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); see also Doe ex rel. Doe v. Lower Merion School Dist., 665 F.3d 524, 542 n. 28 (3d Cir.2011) ("In the equal protection context, an injury resulting from governmental racial discrimination `accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.'")
Because the SAC failed to allege a racebased equal protection claim against the Attorney General and, alternatively, because Plaintiff does not have standing to raise such a claim even if he had attempted to do so, Plaintiffs race-based equal protection challenge to Section 25850 is not cognizable in this action. Accordingly, Plaintiff is not entitled to summary judgment on the ground that Section 25850 violates the Fourteenth Amendment due to its allegedly racist origin and application. See Coleman, 232 F.3d at 1292.
Pursuant to Section 25850(b), peace officers are authorized to examine "any firearm carried by anyone on the person or in a vehicle while in any public place or on any public street." Cal.Penal Code 25850(b). The statute further provides that "[r]efusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section." Id. Plaintiff briefly argues in his MSJ that Section 25850(b) violates the Fourth Amendment because "the mere refusal to consent to a search" cannot constitute probable cause for an arrest.
The Fourth Amendment protects the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" absent a warrant supported by probable cause. U.S. Const. amend. IV. Warrantless arrests must be supported by probable cause. United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007). "Probable cause" is "knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe
Plaintiff's argument is predicated on the dual propositions that (1) the inspection of a firearm by a peace officer to see if it is loaded constitutes a "search" under the Fourth Amendment, and (2) the exercise of a constitutional right, i.e., Plaintiff's refusal to consent to a warrantless search, can never provide probable cause for an arrest. As a preliminary matter, it is questionable whether a chamber check constitutes a "search" under the Fourth Amendment. "A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jefferson, 566 F.3d 928, 933 (9th Cir.2009) (internal quotation marks omitted); see also Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) ("The Fourth Amendment protects legitimate expectations of privacy.... If the inspection by police does not intrude upon a legitimate expectation of privacy, there is no `search' subject to the Warrant Clause."). As the California Court of Appeal observed in upholding the constitutionality of the substantively identical predecessor to Section 25850(b):
People v. Delong, 11 Cal.App.3d 786, 791-92, 90 Cal.Rptr. 193 (1970). Accordingly, a person who displays a weapon in public does not have a privacy interest that "society is prepared to consider reasonable" in the condition of the gun, i.e., whether it is loaded and presents an immediate potential threat to public safety. Jefferson, 566 F.3d at 933.
However, even if an examination of a firearm to see if it is loaded is properly considered a "search," it still would not appear to implicate the Fourth Amendment. As the Delong court explained:
Delong, 11 Cal.App.3d at 792-93, 90 Cal.Rptr. 193; see also United States v. Brady, 819 F.2d 884, 889 (9th Cir.1987) (citing Delong with approval for the proposition
Accordingly, Plaintiffs reliance on United States v. Fuentes for the proposition that "[m]ere refusal to consent to a... search does not give rise to reasonable suspicion or probable cause" is inapposite. (MSJ at 10); see also Fuentes, 105 F.3d at 490. A chamber check is arguably not a "search" because it does not infringe on a reasonable expectation of privacy and even if it is, the Fourth Amendment is not implicated because such a search is reasonable. Plaintiffs reliance on Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir.2013) also appears misplaced. (See Dkt. No. 150, Notice of Supplemental Authority). The Patel Court found that a Los Angeles city ordinance that authorized police officers to inspect private hotel guest records at any time without consent and without a warrant was facially invalid under the Fourth Amendment. Patel, 738 F.3d at 1061. Critical to the court's decision was the recognition that hotels retain a "reasonable expectation of privacy" in the content of their private guest records. Id. at 1061-62. The court noted, however, that if the records were available for public view, they would not be protected by the Fourth Amendment because "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Id. at 1062 (internal quotation marks omitted). Because the ordinance at issue in Patel systematically authorized warrantless inspections without providing an opportunity for judicial review of the reasonableness of the inspection demand, the ordinance failed a facial challenge. Id. at 1065. Patel is easily distinguishable from the facts alleged here. A person who openly carries a firearm in public does not have the same reasonable expectation of privacy regarding the condition of that weapon, whether it is loaded or unloaded, that a hotel owner has in the contents of privately maintained guest records unavailable for public view. Accordingly, Plaintiff has failed to show the existence of a federal constitutional right by his refusal to allow an officer to inspect a weapon carried in public.
However, Plaintiffs Fourth Amendment claim still fails even if, as a hypothetical matter, there may be some circumstances in which a person openly carrying a firearm in public has a cognizable privacy interest in preventing law enforcement from determining whether the firearm is loaded, which Plaintiff has not shown. Plaintiff is mounting a facial challenge and must therefore establish that "no set of circumstances exists under which the Act would be valid." (PI Order at 10) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). It is readily apparent to the Court that the refusal to permit a peace officer to inspect an openly carried firearm may provide probable cause in any number of circumstances. Plaintiff has not shown that there are no circumstances under which section 25850(b) may be applied constitutionally. Accordingly, Plaintiff is not entitled to summary judgment on his claim that Section 25850(b) violates the Fourth Amendment.
Plaintiff has failed to show the absence of triable issues of material fact with respect to the constitutionality of Sections 25850, 26350 and 26400. Indeed, the Court has found that all of these Sections easily survive a facial constitutional challenge. Accordingly, it is recommended that Plaintiffs Motion for Partial Summary Judgment be DENIED.
The Court has addressed Plaintiffs Second Amendment arguments as applied to
However, Plaintiff did not move for summary judgment on his claims involving California's firearm licensing regime codified at California Penal Code Sections 26150-26220. The SAC summarily argues that these statutes are "invalid" to the extent that they "prohibit, or infringe, PLAINTIFF and private citizens who are otherwise eligible to possess a firearm from openly carrying a loaded and operable handgun for the purpose of self-defense in non-sensitive places." (SAC at 29). Other than this broad allegation, with the exception of Plaintiffs challenge to the restriction on open carry licenses to residents of counties of fewer than 200,000 people, Plaintiff fails to explain why the specific licensing provisions listed in the SAC inhibit the alleged right to openly carry a firearm or violate the Second Amendment.
Furthermore, because Plaintiffs licensing challenge is predicated on the erroneous contention that the Second Amendment requires a state to authorize open carry, it fails for the same reasons that his Second Amendment challenge to Sections 25850, 26350 and 26400 fails. Because the Second Amendment does not guarantee a specific mode of carry, California's firearm licensing scheme as it applies solely to a purported "right" to open carry does not raise constitutional concerns
The Court addressed Plaintiff's Fourth Amendment challenge to Section 25850(b) in Part VI.A.3 above. Because the Court considered only facts included in the pleadings or properly subject to judicial notice in its discussion of Section 25850(b), and because the issues presented in this facial challenge involve solely issues of law, the Court's analysis applies to both Plaintiff's MSJ and Defendant's MJP. Fleming, 581 F.3d at 925; Xcentric Ventures, 934 F.Supp.2d at 1134. The Court therefore concludes that Defendant is entitled to judgment on the pleadings to the extent that the SAC alleges that Section 25850(b) violates the Fourth Amendment.
Plaintiff alleges that California's firearms licensing scheme is unconstitutional to the extent that it restricts "licenses to openly carry a loaded handgun only to persons within counties of a population of fewer than 200,000 persons which is valid only in those counties, to only those residents who reside within those counties and leaves the issuance of such licenses solely to the discretion of the issuing authority...." (SAC at 29); see also Cal.Penal Code §§ 26150(b)(2) & 26155(b)(2). Construed liberally, Plaintiff alleges an equal protection claim under the Fourteenth Amendment based on the allegedly improper classification of open carry license applicants according to the population size of the county in which they reside.
The Equal Protection Clause directs that "all persons similarly circumstanced shall be treated alike." Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The Constitution does not "forbid classifications[,]" but "simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). In determining whether a classification violates the Equal Protection Clause, the first step is to identify "the proper level of scrutiny to apply for review." Honolulu Weekly, 298 F.3d at 1047.
A Court will apply strict scrutiny if the statute "targets a suspect class or burdens the exercise of a fundamental right." Wright v. Incline Village Gen. Improvement Dist., 665 F.3d 1128, 1141 (9th Cir.2011) (internal quotation marks omitted); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1277 (9th Cir.2004) (identifying race, ancestry, and alienage as "suspect classifications" and rights such as privacy,
Here, the Court has already concluded that California's licensing regime, including the classification of applicants by county size, as it pertains solely to a purported right to open carry does not implicate the Second Amendment. Accordingly, rational basis review applies. See Nordyke, 681 F.3d at 1043 n. 2. It is readily apparent that restricting open carry licenses to residents of sparsely-populated counties "rationally further[s] a legitimate state purpose." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 54, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). The Legislature could rationally determine that openly carrying firearms poses a greater threat to public safety in densely-populated urban areas than in sparsely-populated rural areas. Accordingly, Plaintiffs facial challenge to the restrictions on the issuance of open carry licenses to applicants living in counties of fewer than 200,000 residents fails. Defendant is entitled to judgment on the pleadings on Plaintiffs equal protection claim.
Plaintiff alleges that Section 25850, as part of a statutory regime regulating the carriage of loaded firearms in public, is unconstitutionally vague. (SAC at 28). However, as the Court observed in denying Plaintiffs Motion for Preliminary Injunction, "facial challenges on the ground of unconstitutional vagueness that do not involve the First Amendment are not cognizable pursuant to Ninth Circuit precedent." (PI Order at 10) (citing United States v. Purdy, 264 F.3d 809, 811 (9th Cir.2001)). Plaintiff is mounting a facial challenge, and his claims concerning Section 25850 do not implicate the First Amendment. Accordingly, Defendant is entitled to judgment on the pleadings to the extent that the SAC can be construed as raising a void-for-vagueness claim as to Section 25850.
As described more fully above, all of Plaintiffs challenges to California's laws regulating open carry and the issuance of firearms licenses related to the purported right to open carry are without merit. In analyzing Plaintiffs claims, the Court relied solely on facts alleged in the SAC or facts that are properly subject to judicial notice. After the SAC was filed, the Ninth Circuit has clarified that the Second Amendment does not guarantee any particular mode of public carry. Peruta, 742 F.3d at 1172-73. Accordingly, it is recommended that Defendant's Motion for Judgment on the Pleadings be GRANTED.
For the reasons stated above, it is recommended that the Court (1) DENY
Dated: March 18, 2014.
Plaintiff's Objections to the Eisenberg Declaration are directed to the exhibits attached to the declaration, which consist of: (1) the Los Angeles County Sheriff's Department's Concealed Weapons Licensing Policy, (2) a brief biography of former Assistant Sheriff Paul Tanaka, available at www.paultanaka. com, and (3) a web article describing the instant litigation, including comments, available at http://lagunaniguel-danapoint.patch.com. (See Dkt. No. 146 at 1-2) (citing Eisenberg Deck, Exhs. A-C). However, the exhibits did not affect the outcome of the Court's recommendation. Accordingly, Plaintiff's Objections to the Eisenberg Declaration and its exhibits are overruled. See PacifiCorp v. Northwest Pipeline GP, 879 F.Supp.2d 1171, 1194 n. 7 & 1214 (D.Or.2012) (declining to address evidentiary objections where the court would reach the same conclusions whether or not it considered the challenged materials).
Cal.Penal Code § 26350(a)(1) (emphasis added). Subsection 26350(a)(2) prohibits carrying an "exposed or unloaded handgun inside or on a vehicle, whether or not on his or her person" in any of the same areas. Id. § 26350(a)(2) (emphasis added).
California Penal Code section 26400 provides in relevant part that "[a] person is guilty of carrying an unloaded firearm that is not a handgun in an incorporated city or city and county when that person carries upon his or her person an unloaded firearm that is not a handgun outside a vehicle while in the incorporated city or city and county." Cal.Penal Code § 26400(a) (emphasis added).
In addition, even Plaintiff's argument regarding the county population cap where open carry licenses may be issued does not appear to be based on the Second Amendment. The gravamen of that argument appears to be grounded in the Fourteenth Amendment's equal protection clause. (SAC at 5 & 29).
