Baird v. Bonta

• Court: District Court, E.D. California
• Decided: August 31, 2020
• Docket: 2:19-cv-00617
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK BAIRD, et al., No. 2:19-cv-00617-KJM-AC 12 Plaintiffs, 13 v. ORDER 14 XAVIER BECERRA, et al., 15 Defendants. 16

17 18 In this case brought under 42 U.S.C. § 1983, plaintiffs challenge the 19 constitutionality of California’s open carry licensing regime under the Second, Fourth, Fifth and 20 Fourteenth Amendments to the U.S. Constitution. Plaintiffs move for a preliminary injunction on 21 their Second Amendment claim and defendants move to dismiss plaintiffs’ other constitutional 22 claims. The court resolves the motion for a preliminary injunction and the motion to dismiss 23 below. 24 I. BACKGROUND 25 California Penal Code section 26350 criminalizes the act of publicly carrying an 26 unloaded firearm, and section 25850 criminalizes the act of publicly carrying a loaded firearm. 27 There is an exception to these rules that allows an individual to publicly carry a firearm without a 28 license, where the individual “reasonably believes that any person or the property of any person is 1 in immediate, grave danger and that the carrying of the weapon is necessary for the preservation 2 of that person or property,” and local law enforcement has had a chance to respond. Cal. Pen. 3 Code § 26045;1 Mot. to Dismiss (“MTD”), ECF No. 10-1, at 9. Additionally, California has 4 established a firearm licensing scheme at Penal Code sections 26150 to 26155. To qualify for a 5 concealed carry2 permit, the law requires that an applicant demonstrate: (1) good moral character; 6 (2) “good cause exists for issuance of the license”; (3) residency in the county or city to which 7 she is applying; and (4) completion of necessary training. Cal. Penal Code §§ 26150(a) & 8 26155(a). Where the population of a county is less than 200,000 persons, a county sheriff or head 9 of a municipal police department may issue an open carry permit subject to the same 10 requirements as a concealed carry permit, with the permit valid only in the county of issuance. 11 Cal. Penal Code § 26150(a), (b)(2); id. § 26155(a), (b)(2). 12 Plaintiff Baird is a resident of Siskiyou County, a county with less than 200,000 13 residents, who meets all the requirements for a concealed carry or open carry license except, he 14 alleges, the “good cause” requirement. Compl. ¶¶ 20, 25. Plaintiff wishes to carry a firearm in 15 public openly, but alleges the Siskiyou County Sheriff has chosen not to make open carry licenses 16 available in that county, exercising his discretion under the “may issue” language in California 17 Penal Code sections 26150(b), 26155(b). Id. ¶¶ 39, 40, 43. Because plaintiff resides only in 18 19

20 1 The statute provides, in relevant part: 21 Nothing in Section 25850 is intended to preclude the carrying of any loaded firearm, under circumstances where it would otherwise be 22 lawful, by a person who reasonably believes that any person or the property of any person is in immediate, grave danger and that the 23 carrying of the weapon is necessary for the preservation of that person or property. 24 25 Cal. Pen. Code § 26045(a).

26 2 The court uses the terms “concealed carry” and “open carry” to mean, respectively, 27 carrying a concealed firearm on one’s person and carrying a firearm on one’s person openly and unconcealed. The court uses the term “public carry” to mean carrying a firearm in public, either 28 in a concealed or unconcealed fashion. 1 Siskiyou County, he is not eligible to apply for an open carry license in any other county. Id. 2 ¶ 47. Plaintiff Gallardo, a resident of Shasta County, makes similar allegations. Id. ¶¶ 53–82. 3 On April 9, 2019, plaintiffs filed the instant suit against the Attorney General 4 challenging the constitutionality of California Penal Code sections 26150, 26155, 26350 and 5 25850 under the dormant Commerce Clause and the Second, Fourth and Fourteenth 6 Amendments. See Compl. As confirmed at hearing, plaintiffs have not named the sheriffs of 7 their respective counties as defendants in this suit. As violations of the Second Amendment, 8 plaintiffs challenge: (1) the requirement of “good cause” for an open carry license (claim 1), id. 9 ¶¶ 254–56; (2) the provision limiting licenses’ validity to the county of issuance (claim 2), id. 10 ¶¶ 257–259; (3) the restriction of the ability to open carry based on county population size (claim 11 3), id. ¶¶ 260–62; (4) the provision that sheriffs “may issue” open carry licenses (claim 4), id. 12 ¶¶ 138–42. See also id. ¶¶ 284–86 (claim 11) Plaintiffs also bring several other constitutional 13 claims that derive from these challenges: (5) violation of the dormant Commerce Clause (claim 14 5); violation of the Commerce Clause (claim 6); violation of the right to interstate travel (claims 15 7, 8); violation of the Second, Fourth and Fourteenth Amendments (claims 9, 10); violation of 16 procedural due process (claim 13); and violation of substantive due process (claim 14). 17 Defendants move to dismiss plaintiffs’ claims based on the dormant Commerce 18 Clause and the Fourth and Fourteenth Amendments. MTD, ECF No. 10-1. Plaintiffs oppose, 19 MTD Opp’n, ECF No. 19, and defendants have replied, MTD Reply, ECF No. 26. Plaintiffs also 20 move for a preliminary injunction to prevent the enforcement of the aforementioned statutes, 21 Prelim. Inj. Mot. (“PI Mot.”), ECF No. 14, defendants oppose, PI Opp’n, ECF No. 20, and 22 plaintiffs have replied, PI Reply, ECF Nos. 27–28. 23 II. MOTION FOR PRELIMINARY INJUNCTION 24 Plaintiffs move for a preliminary injunction enjoining defendants from enforcing 25 California Penal Codes sections 26150, 26155, 26350 and 25850, on the basis that the statutes 26 violate the Second Amendment.3 PI Mot. at 5. 27 3 In a footnote, plaintiffs assert their preliminary injunction request is also based on 28 “constitutional violations not relied upon herein,” but detailed in their complaint. Mot. Prelim. 1 A. Legal Standard 2 “A preliminary injunction is an extraordinary remedy never awarded as of right[,]” 3 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted), and should not 4 be granted unless the movant carries the burden of proving this extraordinary remedy is warranted 5 by clear and convincing evidence, Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (“A 6 preliminary injunction . . . should not be granted unless the movant, by a clear showing, carries 7 the burden of persuasion.” (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997))). In 8 determining whether to issue a preliminary injunction, federal courts must consider whether the 9 moving party “[1] is likely to succeed on the merits, . . . [2] is likely to suffer irreparable harm in 10 the absence of preliminary relief, . . . [3] the balance of equities tips in [the movant’s] favor, and 11 . . . [4] an injunction is in the public interest.” Winter, 555 U.S. at 20. 12 The Ninth Circuit has “also articulated an alternate formulation of the Winter 13 test[.]” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). That formulation is referred to as 14 the “serious questions” or the “sliding scale” approach: “‘serious questions’ going to the merits 15 and a balance of hardships that tips sharply towards the plaintiff can support issuance of a 16 preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable 17 injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 18 632 F.3d 1127, 1131–35 (9th Cir. 2011) (“[T]he ‘serious questions’ approach survives Winter 19 when applied as part of the four-element Winter test.”). Under the “serious questions” approach 20 to a preliminary injunction, “[t]he elements of the preliminary injunction test must be balanced, 21 so that a stronger showing of one element may offset a weaker showing of another.” Lopez, 22 680 F.3d at 1072. In each case and irrespective of the approach to a preliminary injunction, a 23 court must balance the competing alleged harms while considering the effects on the parties of the 24 granting or withholding of the injunctive relief. Winter, 555 U.S. at 24. In exercising that 25 discretion, a court must also consider the public consequences of the extraordinary remedy. Id. 26 ///// 27 Inj. at 5 n.1. Plaintiffs’ counsel clarified at hearing that the motion relies on the Second 28 Amendment claim. 1 B. Discussion 2 1. Likelihood of Success on the Merits 3 In order to show a likelihood of success on the merits, plaintiffs must show the 4 California’s regime likely violates the Second Amendment. Plaintiffs argue that strict scrutiny 5 applies to any law that burdens one’s right to openly carry a firearm, based on their reading of the 6 Supreme Court’s holdings in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald 7 v. City of Chicago, Illinois, 561 U.S. 742 (2010). Namely, plaintiffs argue, those cases define the 8 “core component” of the Second Amendment right as “self-defense,” and therefore the right to 9 carry a weapon in self-defense, even outside the home, is protected by the Second Amendment. 10 PI Mot. at 7 (citing Peruta v. County of San Diego, 742 F.3d 1144, 1154 (9th Cir 2014) 11 (Peruta I), vacated en banc by Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en 12 banc) (Peruta II), pet. for cert. denied, 137 S. Ct. 1995 (2017)). Because the Second Amendment 13 does not protect concealed carry, plaintiffs argue, open carry must be protected, and therefore, 14 strict scrutiny should apply to any law that burdens one’s right to open carry. PI Mot. at 8–9 15 (citing Peruta II, 824 F.3d 939). No controlling authority expressly supports this reading, and 16 therefore plaintiffs cannot show a likelihood of success on the merits of their Second Amendment 17 claims, as explained below. 18 In Heller, the Supreme Court held the core protection of the Second Amendment is 19 “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 20 554 U.S. at 635. In McDonald, the Court held the Second Amendment applied to the states 21 through the Fourteenth Amendment and explained that Heller stands for the proposition that 22 “individual self-defense is ‘the central component’ of the Second Amendment right.” 561 U.S. at 23 767–68 (emphasis in original) (quoting Heller, 554 U.S. at 599). The Ninth Circuit has 24 interpreted these two cases to mean the Second Amendment’s “core purpose” is to provide “self- 25 defense in the home,” and has developed a two-step inquiry for reviewing Second Amendment 26 challenges based on the degree to which a law burdens that “core” right. Silvester v. Harris, 843 27 F.3d 816, 820–21 (9th Cir. 2016). To determine the proper level of scrutiny with which to review 28 a challenged law that is subject to Second Amendment protection, the court must consider: (1) 1 “how close the challenged law comes to the core of the Second Amendment right, and (2) the 2 severity of the law’s burden on that right.” Id. at 821 (citation omitted). 3 In Peruta I, the Ninth Circuit addressed the issue of whether the right to “bear 4 arms” included the right to carry a firearm outside the home in the context of a challenge to the 5 “good cause” requirement for a concealed carry permit in California. 742 F.3d at 1147–48 (citing 6 Cal. Penal Code §§ 26150, 26155). The court concluded the Second Amendment protects the 7 right to carry a firearm “in public for the lawful purpose of self-defense[.]” 742 F.3d at 1175 8 (citing Moore, 702 F.3d at 941). However, two years later, in Peruta II, the court vacated and 9 reversed Peruta I and held “the protection of the Second Amendment . . . simply does not extend 10 to the carrying of concealed firearms in public by members of the general public.” 824 F.3d at 11 927. Therefore, the court concluded, a “good cause” requirement for a concealed carry license 12 does not violate the Second Amendment. Id. at 939. The court explicitly left open the “question 13 whether the Second Amendment protects some ability to carry firearms in public, such as open 14 carry.” Id. at 927. 15 In Young v. Hawaii, 896 F.3d 1044, 1068 (9th Cir. 2018), the court answered that 16 question in part, holding “the Second Amendment encompasses a right to carry a firearm openly 17 in public for self-defense” and that right is at the “core” of the Amendment. Id. at 1068, 1071. 18 The Ninth Circuit has since granted rehearing en banc, Young v. Hawaii, 915 F.3d 681, 682 (9th 19 Cir. 2019), and had stayed the en banc proceedings pending resolution of the Supreme Court’s 20 decision in New York State Rifle & Pistol Ass’n, Inc. v. City of New York, New York, 140 S. Ct. 21 1525, 152 (2020).4 Young v. Hawaii (9th Cir.), No. 12-17808, ECF No. 219, 308 (scheduling oral 22 argument September 24, 2020). As such, the original opinion in Young v. Hawaii is no longer 23 precedential. Young, 915 F.3d at 682 (“The three-judge panel disposition in this case shall not be 24 cited as precedent by or to any court of the Ninth Circuit.”). 25 ///// 26

27 4 New York State Rifle was recently remanded after the Supreme Court found the plaintiff’s claims for injunctive relief were mooted by a change in the New York statute. New 28 York State Rifle, 140 S. Ct. at 152. 1 Thus, no controlling authority has held that the Second Amendment right protects 2 an individual’s right to open carry. However, where “difficult legal questions require more 3 deliberate investigation,” the court may grant a preliminary injunction to preserve the status quo 4 so long as plaintiff demonstrates “that serious questions going to the merits were raised,” the 5 balance of the hardships tips sharply in the plaintiff’s favor,” and plaintiff meets the other Winter 6 requirements. 7 Upon review of the legal landscape relevant to plaintiffs’ constitutional argument, 8 the court finds plaintiffs do raise “serious questions” going to the merits of their Second 9 Amendment claim, and that this complex legal question requires further deliberation. The court 10 makes this finding particularly in light of the likelihood that the Ninth Circuit will further clarify 11 the scope of the Second Amendment as it applies to plaintiffs’ claims, in the relatively near 12 future. For example, a similar dispute is the subject of another stayed appeal in Nichols v. 13 Newsom (9th Cir.), No. 14-55873, ECF No. 119, which may soon be resolved in light of the 14 Supreme Court’s New York Rifle decision. See Nichols v. Harris, 17 F. Supp. 3d 989 (C.D. Cal. 15 2014) (rejecting similar challenge to California regime, based on Peruta I), appeal pending sub 16 nom., Nichols v. Newsom (9th Cir.), No. 14-55873; see id. at ECF No. 1199 (March 11, 2019) 17 (submission of case remains vacated pending issuance of mandate in Young v. Hawaii); see also, 18 Flanagan v. Harris, No. LACV1606164 JAK ASX, 2018 WL 2138462, at *6 (C.D. Cal. May 7, 19 2018) (rejecting challenge to same “good cause” requirement for open carry license), appeal 20 pending, No. 18-55717 (9th Cir.); see id. at ECF No. 57 (July 30, 2019) (staying appeal pending 21 resolution of New York State Rifle). 22 Furthermore, there is some support in the case law to suggest plaintiffs’ legal 23 arguments have merit. For example, in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), the 24 Seventh Circuit struck down a law banning all public carry, concealed or open, finding that the 25 Second Amendment “confers a right to bear arms for self-defense, which is as important outside 26 the home as inside.” Id. at 935–36, 942; see also Murphy v. Guerrero, No. 1:14-CV-00026, 2016 27 WL 5508998, at *23 (D. N. Mar. I. Sept. 28, 2016) (following Moore and finding Second 28 Amendment applies to some degree outside the home). 1 In sum, “Second Amendment law is evolving.” Silvester v. Harris, No. 1:11-CV- 2 2137 AWI SAB, 2014 WL 6611592, at *3 (E.D. Cal. Nov. 20, 2014). Taking plaintiffs’ 3 allegations as true, the challenged statutes effectively ban open carry in California, except in the 4 case of immediate danger occurring directly outside one’s home. See Cal. Pen. Code § 26045. In 5 light of the original holding in Young, the pending appeals in the Ninth Circuit, and the still-open 6 question of whether and to what extent the Second Amendment protects a right to carry a firearm 7 openly in public, the court finds plaintiffs’ Second Amendment claim raises serious questions 8 going to the merits of their Second Amendment claim. Given this landscape and the existing 9 authority in support of plaintiffs’ arguments, which is persuasive though not controlling, these 10 questions are “substantial, difficult and doubtful, as to make them a fair ground for litigation and 11 thus for more deliberative investigation,” and plaintiffs have a chance if not a “fair chance of 12 success on the merits.” Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991). 13 C. Balance of Equities & Public Interest 14 Having found plaintiffs raise “serious questions going to the merits” of their 15 Second Amendment claim, the court next considers the balance of equities and whether the public 16 interest favors an injunction. These two factors merge when the government is the party 17 opposing the injunction. Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiffs do not address this 18 prong in depth, arguing the balance of hardships weighs in their favor, because they risk criminal 19 penalties if they exercise their “right to self-protection via open carry.” PI Mot. at 21. The 20 government argues the public interest “favors preserving the State’s duly enacted laws designed 21 to protect the public safety and reduce gun violence.” PI Opp’n at 28 (citing Tracy Rifle & Pistol 22 LLC v. Harris, 118 F. Supp. 3d 1182, 1193–94 (E.D. Cal. 2015)). 23 When balancing the hardships “of the public interest against a private interest, the 24 public interest should receive greater weight.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1236 25 (9th Cir. 1999) (internal quotation marks omitted). In assessing the burden on plaintiffs, the court 26 considers the following: that plaintiffs are able keep guns in their homes without a license, see 27 Baird Decl. ¶ 6, ECF No. 27-3; Gallardo Decl. ¶ 7, ECF No. 27-4; they would apparently be 28 eligible for a concealed carry license if they could establish “good cause,” Cal. Pen. Code 1 § 26045; and California law allows them to carry a firearm near the home, if they are in 2 immediate danger and local law enforcement does not respond, see Cal. Pen. Code § 26045(a). 3 Moreover, as plaintiffs’ counsel represented at hearing, the harm plaintiffs suffer from the lack of 4 an injunction has been ongoing since the Mulford Act was signed in 1967, suggesting the harm is 5 not imminent or life-threatening. See Cal. A.B. 1591 (April 5, 1967) (amending Cal. Penal Code 6 § 12031 to repealing law that allowed for open carry of loaded firearms). Plaintiffs’ hardship is 7 weighed against the hardship to defendant, who will be prevented from enforcing a law intended 8 to “protect public safety and reduce gun violence.” Opp’n at 28. 9 The court in Rupp v. Becerra, No. 817CV00746 JLS JDE, 2018 WL 2138452, at 10 *13 (C.D. Cal. May 9, 2018), conducted a similar balancing exercise when it considered a 11 challenge to the Assault Weapons Control Act, which banned certain weapons in California. 12 2018 WL 2138452, at *1–3 (assessing Cal. Penal Code §§ 30510, 30680, 30900(b)(1), 30915). 13 The court found the balance of hardships weighed in the state’s favor, even though plaintiff’s 14 Second Amendment rights were implicated, because the state would suffer harm from being 15 “enjoined from enforcing a law intended to increase public safety.” Id., at *13. In contrast, in 16 addressing a preliminary injunction motion challenging a state law that criminalized the 17 possession of high-capacity magazines, the court in Duncan v. Becerra, 265 F. Supp. 3d 1106, 18 1136 (S.D. Cal. 2017), aff’d, 742 F. App’x 218 (9th Cir. 2018), did not discuss the hardship on 19 the state. Rather, the court focused on the possible criminal sanctions plaintiff would face for 20 failure to dispossess themselves of the newly-banned magazines and found the balance of 21 hardships weighed in plaintiffs’ favor. Here, plaintiffs do not face any criminal sanctions for 22 failure to act, making the reasoning in Duncan less persuasive in the context of this case. 23 Furthermore, the potential harm to the government and the public interest here is 24 significant. See PI Opp’n at 28 (citing Tracy Rifle & Pistol, 118 F. Supp. 3d at 1193–94). As the 25 court in Tracy Rifle explained, “[t]he costs of being mistaken, on the issue of whether the 26 injunction would have a detrimental effect on handgun crime, violence, and suicide, would be 27 grave. These costs would affect members of the public, and they would affect the Government 28 which is tasked with managing handgun violence.” 118 F. Supp. 3d at 1193–94. By contrast, the 1 harm from complying with the challenged laws “appears to render little harm to Plaintiffs, outside 2 of the inherent harm imposed by a violation of their [Second] Amendment Rights.” Id. 3 For these reasons, following the Ninth Circuit’s guidance in F.T.C. and 4 considering plaintiffs’ available options for self-defense, plaintiffs have not shown the “balance 5 of hardships . . . tips sharply in the plaintiff’s favor.” Alliance for the Wild Rockies, 632 F.3d at 6 1131–35 (9th Cir. 2011) 7 D. Conclusion 8 Though plaintiffs have raised “serious questions” going to the merits of their 9 Second Amendment claim, the balance of equities does not tip “sharply” in their favor. 10 Accordingly, the court declines to issue a preliminary injunction. The motion is DENIED 11 without prejudice to plaintiff’s re-filing their request after the Ninth Circuit decides one of the 12 aforementioned stayed appeals, if that decision affects plaintiffs’ legal grounds for an injunction 13 such that reconsideration is warranted, and assuming an operative complaint asserts claims on 14 which an injunction can rest. 15 III. MOTION TO DISMISS 16 A. Legal Standard 17 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 18 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may 19 dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged 20 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 21 1990) (citation omitted). 22 Although a complaint need contain only “a short and plain statement of the claim 23 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion 24 to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a 25 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 26 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 27 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 28 conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting 1 Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss 2 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 3 its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the 4 interplay between the factual allegations of the complaint and the dispositive issues of law in the 5 action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 6 In making this context-specific evaluation, this court must construe the complaint 7 in the light most favorable to the plaintiffs and accept as true the factual allegations of the 8 complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to “‘a legal 9 conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted 10 in Twombly, 550 U.S. at 555, nor to “allegations that contradict matters properly subject to 11 judicial notice” or to material attached to or incorporated by reference into the complaint. 12 Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001), as amended on denial 13 of rehearing at 275 F.3d 1187 (9th Cir. 2001). A court’s consideration of documents attached to 14 a complaint or incorporated by reference or matter of judicial notice will not convert a motion to 15 dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 16 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare 17 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even 18 though court may look beyond pleadings on motion to dismiss, generally court is limited to face 19 of the complaint on 12(b)(6) motion). 20 Defendants move to dismiss claims 5 through 8 and 12 through 14 on the grounds 21 plaintiffs fail to state a claim for relief. In addition, defendants move to dismiss plaintiffs’ Fourth 22 and Fourteenth Amendment allegations in claims 9 and 10. The court addresses each of these 23 claims of plaintiffs below. 24 B. Dormant Commerce Claims (Claims 5 & 6) 25 Plaintiffs bring two claims based on the dormant Commerce Clause: claims 5 and 26 6. In their opposition, plaintiffs withdraw their Dormant Commerce Clause claims. MTD Opp’n 27 at 6 n.1; see also Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 737 (9th Cir. 2017) 28 (“[I]ntrastate commerce is beyond the scope of the Dormant Commerce Clause[.]”), cert. denied 1 sub nom. Nationwide Biweekly Admin., Inc. v. Hubanks, 138 S. Ct. 1698 (2018). Accordingly, 2 claims 5 and 6 are DISMISSED with prejudice. 3 C. Intrastate Travel Claims (Claims 7 & 8) 4 “The Supreme Court has recognized a fundamental right to interstate travel.” See 5 Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999) (citing Attorney General of New York v. 6 Soto–Lopez, 476 U.S. 898, 903 (1986) (Brennan, J., plurality opinion)); see also United States v. 7 Guest, 383 U.S. 745, 759 (1966) (“Although there have been recurring differences in emphasis 8 within the Court as to the source of the constitutional right of interstate travel . . . . All have 9 agreed that the right exists.”). As plaintiffs admit, “[n]either the Supreme Court nor the Ninth 10 Circuit have yet decided the issue of the right to intra-state travel.” MTD Opp’n at 18. 11 Nevertheless, plaintiffs argue it is “plausible” that the Constitution protects the “right of the law- 12 abiding person to travel freely within [] his/her own state” unrestricted. Id. at 18–19. 13 Claims 7 and 8 respectively allege that California has banned open carry 14 (1) outside of one’s own county and (2) in counties with populations over 200,000. Id. at 19. 15 According to plaintiffs, these requirements are unconstitutional because they force plaintiffs to 16 choose between their Second Amendment right to carry a weapon openly and their right to travel 17 outside their county of residence. Id. Therefore, the success of plaintiffs’ claim depends on the 18 resolution of two open questions of constitutional law: whether there is a Second Amendment 19 right to open carry and whether there is a constitutional right to intrastate travel. 20 Even assuming the Constitution protects both rights, plaintiffs would have to show 21 the statutes they challenge penalize travel by denying a “very important benefit [or] right” to 22 those who travel outside their counties. See Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 23 898, 907 (1986). The “very important . . . right” plaintiffs argue is threatened is the right to bear 24 arms unconcealed for self-defense in public. However, the right recognized by the existing case 25 law is the right to “bear” arms in public for self-defense, McDonald, 561 U.S. at 767; that right is 26 not denied as a result of plaintiffs’ traveling outside their home counties, because a concealed 27 carry permit is not limited to one’s county of residence, but is valid throughout California. See 28 Cal. Pen. Code § 26150 (a). Only open carry licenses are limited to the county of issuance. Id. 1 § 26150(b)(2). In other words, by traveling outside their counties, plaintiffs are “penalized” only 2 by having to switch from openly carrying their weapons to carrying them concealed. Plaintiffs 3 have not cited, nor has the court located any viable authority suggesting there is a right to one 4 method of “bearing” arms over another, with the possible exception of the vacated decision in 5 Young v. Hawaii, 896 F.3d at 1070, which is not authoritative. Peruta II, 824 F.3d at 946 6 (Callahan, J., dissenting) (“While states may choose between different manners of bearing arms 7 for self-defense, the right [to bear arms for self-defense] must be accommodated.”). 8 Assuming the right to open carry is an “important right,” plaintiffs’ right to travel 9 argument is still untenable. The basis of plaintiffs’ Second Amendment, Fourth Amendment and 10 Fourteenth Amendment claims is that they are unable to obtain an open carry license because the 11 sheriff in each of their counties refuses to issue them. See Compl.¶¶ 39, 68–70. Plaintiffs do not 12 plead they have obtained or could obtain an open carry license within their counties. See 13 generally Compl. Plaintiffs cannot be deprived of an open carry license as a result of travel if 14 they have never had a license or cannot obtain one in the first place. Therefore, plaintiffs have 15 not pled facts showing they have been or will be penalized for traveling outside their counties, 16 and thus have not sufficiently pled they have standing to bring their intrastate travel claims. 17 Claims 7 and 8 are DISMISSED. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992) 18 (requiring “actual or imminent” injury). 19 D. Fourth Amendment Unreasonable Seizure Claim (Claims 9, 10 & 12) 20 Plaintiffs allege the challenged statutes violate their Fourth Amendment rights 21 because the statutes interfere with their “possessory and liberty interests” in their firearms by 22 controlling how plaintiffs “wear, carry, or possess their handgun in public” and preventing them 23 from “fully us[ing] and enjoy[ing] their property.” MTD Opp’n at 9. 24 The Fourth Amendment protects against “unreasonable searches and seizures.” 25 Virginia v. Moore, 553 U.S. 164, 168 (2008). A “‘seizure’ of property occurs when there is some 26 meaningful interference with an individual’s possessory interests in that property.” United States 27 v. Jacobsen, 466 U.S. 109, 113 n.5 (1984). One can have a legitimate possessory interest in a 28 lawfully owned handgun. See Stutes v. Parrish, No. 14-CV-02016-LHK, 2015 WL 8770720, at 1 *6 (N.D. Cal. Dec. 15, 2015); but see United States v. Janik, 723 F.2d 537, 547 (7th Cir. 2 1983) (no lawful property interest in unregistered gun); United States v. Uu, 293 F. Supp. 3d 3 1209, 1214 (D. Haw. 2017) (defendant has diminished possessory interest in “contraband (such as 4 the firearm)”); cf. Nichols v. Harris, 17 F. Supp. 3d 989, 1008–09 (C.D. Cal. 2014) (finding no 5 reasonable expectation of privacy in one’s publicly carried firearm). Plaintiffs allege they own 6 their firearms lawfully, but challenge the state’s ability to regulate how they use those firearms. 7 Plaintiffs’ Fourth Amendment claim is atypical in that it does not challenge a state 8 actors’ physical interference with plaintiffs’ firearms, but rather a regulation forbidding certain 9 ways of using a firearm. The parties have identified one controlling case involving a Fourth 10 Amendment challenge to a regulation; it does not support plaintiffs’ claims. In Cedar Point 11 Nursery v. Shiroma, 923 F.3d 524 (9th Cir. 2019), plaintiff brought a Fourth Amendment 12 challenge against a regulation allowing union organizers access to the plaintiff company’s 13 property under certain, limited circumstances. Plaintiffs argued the regulation constituted a 14 meaningful interference with their possessory interests in their property. Id. at 535. The court 15 found the “controlled, non-disruptive visits” limited “in time, place, and number of union 16 organizers” at issue there did not constitute a meaningful interference in plaintiffs’ possessory 17 interest in the property. Id. at 536. By contrast, the Ninth Circuit has recognized that “constant 18 physical occupation” such as when a regulation allows the public to “freely and regularly” 19 trespass on one’s land would constitute a meaningful interference with one’s possessory interest 20 in one’s property such that a seizure occurs. Presley v. City of Charlottesville, 464 F.3d 480, 487 21 (4th Cir. 2006) (quoted in Cedar Point Nursery, 923 F.3d at 535); see also Soldal v. Cook Cty., 22 Ill., 506 U.S. 56, 72 (1992) (removing mobile home from its foundation and towing to another 23 location was seizure); Freeman v. City of Dallas, 242 F.3d 642, 647 (5th Cir. 2001) (demolition 24 of plaintiffs’ apartment buildings was seizure); Severance v. Patterson, 566 F.3d 490, 502 (5th 25 Cir. 2009) (plaintiff's allegation that State appropriated an easement over her beachfront property 26 sufficiently alleged potential seizure to survive motion to dismiss)). Even assuming 27 the regulations at issue effectively ban open carry in California, the factual allegations here are 28 1 still more like those underlying Cedar Point Nursery than Presley. Plaintiffs are still able to 2 “possess” their licensed firearms in a limited manner; they are limited to keeping them in their 3 home and, when they can meet the requirements for concealed carry, they may possess them 4 concealed in public. The challenged statutes do not “deprive[] [plaintiffs] of the use of [their] 5 property” Presley, 464 F.3d at 487, such that they meaningfully interfere with their possessory 6 interest in the firearms. 7 8 This conclusion is bolstered by the Supreme Court’s decision in Heller, in which 9 the Court explained that “[l]ike most rights, the right secured by the Second Amendment is not 10 unlimited.” Heller, 554 U.S. at 626. “For example,” the Court goes on, “the majority of the 19th- 11 century courts to consider the question held that prohibitions on carrying concealed weapons were 12 lawful under the Second Amendment or state analogues.” Id. The Court endorsed certain 13 regulations on the possession of firearms, such as “laws forbidding the carrying of firearms in 14 sensitive places such as schools and government buildings, or laws imposing conditions and 15 qualifications on the commercial sale of arms.” Id. at 626–27. Such an endorsement can be fairly 16 read to imply one’s constitutionally protected property interest in a firearm, including one’s 17 Second Amendment right to keep a firearm, is necessarily limited. Id. 18 Therefore, a Fourth Amendment challenge is not legally cognizable here, because 19 plaintiffs have not alleged a search or seizure has occurred. Defendants’ motion to dismiss 20 plaintiffs’ ninth, tenth and twelfth claims are DISMISSED, to the extent they rely on a claim 21 under the Fourth Amendment. Hill v. Opus Corp., 841 F. Supp. 2d 1070, 1082 (C.D. Cal. 2011) 22 (court may dismiss portion of claim, while allowing remainder to proceed). 23 E. Substantive Due Process Claim (Claims 9, 10 and 14) 24 Substantive due process “prevents the government from engaging in conduct that 25 ‘shocks the conscience,’ or interferes with rights ‘implicit in the concept of ordered liberty.’” 26 United States v. Salerno, 481 U.S. 739, 746 (1987) (citations omitted). “To establish a 27 substantive due process claim, a plaintiff must, as a threshold matter, show a government 28 1 deprivation of life, liberty, or property.” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th 2 Cir. 1998). 3 Plaintiffs allege defendants “are violating a core fundamental human right 4 protected by the Fourteenth Amendment, to wit, Plaintiffs’ substantive right to due process by 5 enacting and enforcing a statutory scheme having criminal penalties that removes Plaintiffs’ 6 ability to decide how to carry their private property while in public.” Compl. ¶ 295. Plaintiffs do 7 not identify any authority to support the proposition that there is a substantive due process right to 8 “decide how to carry [one’s] private property while in public.” Id.; MTD Opp’n at 11–15. In 9 their opposition and at hearing, plaintiffs conceded that their substantive due process claim is, in 10 part, derivative of their Fourth Amendment claim. MTD Opp’n at 12 (statutes “constitute a 11 blanket deprivation of Fourth and Fourteenth Amendment rights”). The balance of plaintiffs’ 12 argument relies on a right to self-defense, which plaintiffs confirmed at hearing is essentially a 13 claim based on the Second Amendment. See, e.g., id. (“The basic human right of survival 14 encompasses the right to make tactical decisions for yourself regarding how to carry, wear, and 15 possess your handgun for the preservation of your own life, liberty, safety, and bodily integrity.”); 16 id. at 13 (“How to carry one’s firearm outside of the home is a daily, personal, decision entered 17 into intentionally . . . the effects of which will have a measurable impact on one’s ability to . . . 18 effectively protect one’s life, liberty, personal safety, and bodily integrity.”). In other words, 19 plaintiffs attempt to shoehorn their Fourth and Second Amendment claims into a substantive due 20 process claim. 21 “The Supreme Court has long foreclosed this type of claim.” Wilson v. Holder, 22 7 F. Supp. 3d 1104, 1122 (D. Nev. 2014), aff'd sub nom. Wilson v. Lynch, 835 F.3d 1083 (9th 23 Cir. 2016). “Where a particular Amendment provides an explicit textual source of constitutional 24 protection against a particular sort of government behavior, that Amendment, not the more 25 generalized notion of substantive due process, must be the guide for analyzing these 26 claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal quotation marks omitted) 27 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); see also Fontana v. Haskin, 262 F.3d 28 871, 882 (9th Cir. 2001) (“If a constitutional claim is covered by a specific constitutional 1 provision . . . the claim must be analyzed under the standard appropriate to that specific provision, 2 not under the rubric of substantive due process.” (quoting County of Sacramento v. Lewis, 3 523 U.S. 833, 843 (1998))). 4 Claim 14 is therefore DISMISSED without prejudice. To the extent claims 9 and 5 10 are also based on the substantive due process element of the Fourteenth Amendment, these 6 claims are also DISMISSED in part without prejudice. 7 8 F. Procedural Due Process Claim (Claim 13) 9 “When government action depriving a person of life, liberty, or property survives 10 substantive due process scrutiny, it must still be implemented in a fair manner. This requirement 11 has traditionally been referred to as ‘procedural’ due process.” Salerno, 481 U.S. at 746. To 12 successfully allege a procedural due process claim, plaintiffs must provide sufficient facts 13 establishing the plausible existence of two elements: “(1) a deprivation of a constitutionally 14 protected liberty or property interest, and (2) a denial of adequate procedural protections.” 15 Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). 16 Given that whether plaintiffs have a constitutionally protected right to open carry 17 is still an open question, the court assumes without deciding that plaintiffs have adequately 18 alleged a deprivation of a constitutionally protected liberty or property interest for the purpose of 19 a procedural due process claim, and finds plaintiffs have adequately pled “a denial of adequate 20 procedural protections.” Though it is unclear from plaintiffs’ briefing and oral argument what 21 procedure plaintiffs believe should be afforded, the complaint’s general allegations suggest the 22 claim is based on the lack of a meaningful “administrative appeal process available for 23 challenging [the sheriffs’] denial of [plaintiffs’] applications for an open carry license.” Compl. 24 ¶¶ 42–43.5 25 5 The court cautions the parties against attempting to cure deficiencies in the briefing by 26 “incorporate[ing] the Complaint fully by reference” in a footnote. See MTD Opp’n at 7 n.3. 27 Nonetheless, the court is careful to review the allegations in the complaint itself when adjudicating a motion to dismiss and disregards any argument that substantively departs from 28 those allegations. 1 The court finds plaintiffs have sufficiently stated a claim for a violation of 2 procedural due process at this stage. See Fisher v. Kealoha, 869 F. Supp. 2d 1203, 1217, 1223 3 (D. Haw. 2012) (denying motion to dismiss where plaintiff alleged violation of Second 4 Amendment right to “bear operational firearms and ammunition” without “minimal due process 5 protections such as the opportunity to participate in the decision-making process, and a means to 6 seek review of the denial of his application”). Therefore, defendants’ motion to dismiss Claim 13 7 is DENIED. However, to the extent plaintiffs amend their complaint as provided by this order, 8 they may also amend to clarify the basis of Claim 13. 9 IV. CONCLUSION 10 Plaintiffs’ motion for a preliminary injunction is DENIED without prejudice, as 11 described above. Defendants’ motion to dismiss is GRANTED in part and denied in part as 12 follows: 13 1. Claims 5 and 6 are DISMISSED; 14 2. Claims 7 and 8 are DISMISSED; 15 3. Claims 9, 10, 12 and 14 are DISMISSED to the extent they rely on the 16 Fourth or Fourteenth Amendments; and 17 4. The motion to dismiss is DENIED as to claim 13. 18 Plaintiffs shall file any amended complaint within 21 days of this order. The 19 parties shall file a joint status report regarding the future scheduling of this case within 30 days of 20 this order. See E.D. L.R. 240. 21 This order resolves ECF Nos. 10 and 14. 22 IT IS SO ORDERED. 23 DATED: August 28, 2020.

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