Cupp v. Bonta

• Court: District Court, E.D. California
• Decided: September 24, 2020
• Docket: 2:16-cv-00523
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES EDWARD CUPP, et al., No. 2:16-cv-00523-TLN-KJN 12 Plaintiffs, 13 v. ORDER GRANTING DEFENDANTS’ 14 MOTION TO DISMISS KAMALA HARRIS, et al., 15 Defendants. 16

17 18 This matter is before the Court pursuant to a Motion to Dismiss filed by Defendants 19 Kamala Harris, in her capacity as former Attorney General of the State of California, and Xavier 20 Becerra, in his official capacity as Attorney General of the State of California, (hereafter 21 “Defendant”1). Defendant moves to dismiss Plaintiffs’ Third Amended Complaint (“TAC”). 22 (ECF No. 74.) Plaintiffs James Edward Cupp (“Cupp”) and Lawrence Haven (“Haven”) 23 (collectively, “Plaintiffs”) filed an opposition (ECF No. 76), and Defendant filed a reply (ECF 24 No. 77). For the reasons set forth below, the Court GRANTS Defendant’s Motion to Dismiss 25 with leave to amend only Claims Two and Nine. 26 /// 27 1 For ease of reading and because Becerra has merely replaced Harris as the Attorney 28 General, Defendants will be collectively referred to as a singular “Defendant” herein. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiffs initiated this lawsuit on March 11, 2016. (ECF No. 1.) On September 21, 2018, 3 the Court granted Defendant’s Motion to Dismiss the Second Amended Complaint (“SAC”), 4 granting Plaintiffs leave to amend six of the original twelve causes of action (specifically, the 5 First, Second, Third, Sixth, Ninth, and Twelfth). (ECF No. 61.) Plaintiffs thereafter filed the 6 operative TAC reasserting six causes of action arising from various alleged violations of 7 Plaintiffs’ Second and Fourteenth Amendment rights. (ECF No. 65.) In response, Defendant 8 filed the Motion to Dismiss presently before the Court. (ECF No. 74.) 9 Plaintiffs’ TAC is strikingly similar to their SAC and makes various allegations 10 concerning unrelated events and unrelated legal issues, united only by a common Defendant: the 11 Attorney General. Plaintiffs themselves are two unrelated individuals: Cupp is a resident of 12 South Dakota who intends to travel to California with firearms currently not legal under certain 13 sections of the California Penal Code (“C.P.C.”) (ECF No. 65 ¶ 18); Haven — a Native American 14 and Veteran — is a resident of Sacramento, California, and an avid hunter and “owner of 15 firearms” (Id. ¶¶ 29–30). Plaintiffs claim California’s safe-gun list and magazine ban (C.P.C. § 16 32310), which prohibits the possession of magazines capable of holding more than ten rounds, 17 violates their Second Amendment rights as well as the Takings and Due Process Clauses of the 18 United States Constitution. (ECF No. 65 ¶ 71.) Plaintiffs therefore contend there is an “actual 19 and present controversy” between the parties and that they are “presently and continuously 20 injured by Defendants’ enforcement of § 32310 . . . .” (Id. ¶¶ 70–71.) 21 Additionally, both Plaintiffs claim their firearms were illegally seized, depriving them of 22 their Second Amendment rights. (ECF No. 65 ¶ 103.) Local authorities have allegedly refused to 23 return the seized firearms due to a requirement that Plaintiffs must first complete the Law 24 Enforcement Gun Release (“LEGR”) application required under C.P.C. § 33850. (Id. ¶¶ 106, 25 108.) Plaintiffs assert the Attorney General enforces C.P.C §§ “33850 (application for return of 26 firearm), 33855 (authority of law enforcement to enforce), 33860, and 33880 (fee)” in violation of 27 the Second Amendment. (Id. ¶¶ 108, 111.) 28 1 In addition to these broad constitutional challenges against California’s firearm laws, 2 Plaintiffs purport to assert additional Second Amendment claims arising from three specific, 3 unrelated incidents. First, Cupp alleges Citrus Heights police officers unlawfully arrested him on 4 March 25, 2014, for carrying a concealed knife in violation of C.P.C. § 21310. (ECF No. 65 ¶¶ 5 120, 122.) Cupp also claims the officers searched his home without a warrant and illegally seized 6 six firearms, ammunition, magazines, and two non-folding hunting knives. (Id. ¶ 120.) The 7 district attorney dismissed the case against Cupp two months after his arrest and Cupp’s two 8 knives were returned to him, but he claims his firearms and “other firearm related tools and 9 equipment” were not returned. (Id. ¶ 124.) Second, Haven alleges a Placer County Sheriff’s 10 Deputy unlawfully arrested him on February 8, 2014, for illegally possessing a slungshot (a metal 11 weight attached to a flexible handle for use as a weapon). (Id. ¶¶ 146, 148.) Haven claims this 12 infringed on his constitutional rights because the Second Amendment “protects all ‘arms’ and is 13 not just applicable to firearms.” (Id. ¶ 153.) Third, Haven alleges that on February 14, 2016, a 14 Sacramento County Sheriff’s Deputy searched his residence without a warrant and without 15 probable cause and seized three firearms. (Id. ¶ 137.) No criminal charges were filed. (Id. ¶ 16 138.) Haven alleges this unlawful confiscation of firearms violates his Second Amendment 17 rights. (Id. ¶¶ 134, 139.) 18 In addition to Second Amendment claims, Plaintiffs also allege California’s open or 19 conceal carry, safe-gun list, and magazine ban violate the Equal Protection Clause under the 20 Fourteenth Amendment. (ECF No. 65 ¶¶ 158, 161.) More specifically, Plaintiffs claim 21 California’s current firearms regulations grant more rights to “law enforcement and retirees” 22 while denying “law-abiding citizens their constitutional right to protect themselves.” (Id. ¶ 158.) 23 II. STANDARD OF LAW 24 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) allows a party, or the Court on its own 25 initiative, to challenge the court’s subject matter jurisdiction at any stage in the litigation. Fed. R. 26 Civ. P. 12(b)(1) & (h)(3); Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). “A suit brought by 27 a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article III federal 28 court therefore lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386 F.3d 1 1169, 1175 (9th Cir. 2004) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 2 (1998)). Once a party has moved to dismiss for lack of subject matter jurisdiction under Rule 3 12(b)(1), the opposing party bears the burden of establishing the court’s jurisdiction by putting 4 forth “the manner and degree of evidence required” by whatever stage of the litigation the case 5 has reached. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). At the motion to dismiss 6 stage, Article III standing is adequately demonstrated through allegations of “specific facts 7 plausibly explaining” why the standing requirements are met. Barnum Timber Co. v. U.S. EPA, 8 633 F.3d 894, 899 (9th Cir. 2011). If the court determines at any time that it lacks subject matter 9 jurisdiction, “the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). 10 In addition, Rule 8(a) requires that a pleading contain “a short and plain statement of the 11 claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 12 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 13 of what the claim...is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 14 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on 15 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 16 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 17 On a motion to dismiss under Rule 12(b)(6), the factual allegations of the complaint must 18 be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the 19 benefit of every reasonable inference to be drawn from the “well-pleaded” allegations of the 20 complaint. Retail Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff 21 need not allege “‘specific facts’ beyond those necessary to state his claim and the grounds 22 showing entitlement to relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when 23 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 24 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 25 544, 556 (2007)). 26 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 27 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 28 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 1 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading 2 is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements 3 of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare 4 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 5 suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove facts that it has not 6 alleged or that the defendants have violated the...laws in ways that have not been 7 alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 8 U.S. 519, 526 (1983). 9 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 10 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 11 Twombly, 550 U.S. at 570). Only where a plaintiff fails to “nudge[ ] [his or her] claims...across 12 the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680. While 13 the plausibility requirement is not akin to a probability requirement, it demands more than “a 14 sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is “a 15 context-specific task that requires the reviewing court to draw on its judicial experience and 16 common sense.” Id. at 679. 17 In ruling upon a motion to dismiss, the court may consider only the complaint, any 18 exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of 19 Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu 20 Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 21 1998). 22 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 23 amend even if no request to amend the pleading was made, unless it determines that the pleading 24 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 25 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 26 1995)); see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of 27 discretion in denying leave to amend when amendment would be futile). Although a district court 28 should freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s 1 discretion to deny such leave is ‘particularly broad’ where the plaintiff has previously amended 2 its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 3 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 4 III. ANALYSIS 5 Plaintiffs assert six causes of action against Defendant, asserting Second Amendment and 6 Equal Protection challenges to California gun laws as well as alleged Second Amendment 7 violations arising out of multiple and distinct incidents involving purportedly unlawful searches 8 and seizures of various weapons. By way of the present Motion, Defendant moves to dismiss all 9 six causes of action, arguing Plaintiffs fail to comply with Rule 8, fail to establish standing to 10 challenge firearms regulations, and fail to state a cognizable claim under Rule 12(b)(6). 11 Defendant additionally argues sovereign immunity bars Claims Three, Six, and Nine. 12 A. Failure to Comply with Rule 8 13 As a preliminary matter, Plaintiff’s amendments as set forth in the operative complaint do 14 not cure the deficiencies identified in the Court’s previous Order dismissing the six potentially 15 viable causes of action with leave to amend. (ECF No. 61.) Rule 8(d)(1) requires that “each 16 averment of a pleading shall be simple, concise, and direct.” See McHenry v. Renne, 84 F.3d 17 1172, 1178 (9th Cir. 1996) (affirming dismissal of complaint that was “argumentative, prolix, 18 replete with redundancy, and largely irrelevant”). To comply with Rule 8, a complaint should 19 clearly and fully set forth “who is being sued, for what relief, and on what theory, with enough 20 detail to guide discovery.” Even if the factual elements of a cause of action are present, but are 21 scattered throughout the complaint and not organized into a “short and plain statement of the 22 claim,” dismissal for failure to satisfy Rule 8 is proper. Id. at 1178. Further, “[t]he propriety of 23 dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly 24 without merit.” Id. at 1179. Indeed, Rule 8(d)’s requirement that each averment of a pleading be 25 “‘simple, concise, and direct,’ applies to good claims as well as bad, and is a basis for dismissal 26 independent of Rule 12(b)(6).” Id. 27 Much like the SAC, the TAC is anything but simple, concise, and direct. Instead, the 28 TAC reiterates scattershot challenges by two unrelated Plaintiffs to multiple, separate statutory 1 schemes that deal with unrelated weapons regulation issues. In dismissing the SAC for failure to 2 comply with Rule 8, this Court stated these scattershot challenges leave Defendant “guessing as 3 to what constitutional violations have been alleged.” (ECF No. 61 at 7.) These deficiencies have 4 not been cured in the TAC; the six remaining causes of action remain unclear and substantively 5 deficient. 6 Furthermore, Plaintiffs do not ameliorate the burdensome and extraneous allegations the 7 Court explicitly admonished in its previous Order, such as those regarding Rodney King and 8 Reginald Denny. (ECF No. 61 at 7.) Rather, these allegations remain verbatim in the TAC. 9 (ECF No. 65 ¶ 17.) Worse still, the TAC again leaves the Court to sift through a multitude of 10 extraneous allegations. These allegations include, but are not limited to, passing singular 11 references to the Takings Clause and Due Process Clause (Id. ¶ 70), erroneous and outdated 12 statutory references to C.P.C. § 12210 (Id. ¶¶ 144, 148),2 and a completely unrelated accidental 13 weapon discharge by law enforcement in which, according to Plaintiff, “the state’s own experts 14 shot themselves.” (Id. ¶ 88.) It is once again not the Court’s job to sift through voluminous 15 allegations to attempt to determine whether there may be a possible hidden cause of action. 16 Walker v. Bowler, No. 5:17-cv-01687-AG-JC, 2018 WL 2392152, at *19 (C.D. Cal. May 24, 17 2018) (collecting cases) (“It is not the Court’s responsibility to hunt through plaintiff’s prolix and 18 rambling allegations in an attempt to determine whether plaintiff might have some adequate basis 19 for bringing an action in federal court.”); Cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 20 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”). 21 Accordingly, Plaintiffs’ TAC as asserted against Defendants Harris and Becerra is 22 DISMISSED in its entirety with leave to amend only Claims Two and Nine, as discussed below. 23 / / / 24 / / / 25 / / / 26

27 2 As discussed below, Plaintiffs’ references to § 12210 appear to be a typographical error. Nonetheless, the error remains in the TAC and contributes to the lack of clarity and ultimate 28 failure to meet the requirements of Rule 8. 1 B. Failure to Establish Standing 2 In addition to Plaintiffs’ general failure to comply with Rule 8, Defendant moves to 3 dismiss all claims challenging the constitutionality of firearms regulations, arguing Plaintiffs lack 4 Article III standing. (ECF No. 74-1 at 6.) Specifically, Defendant claims Plaintiffs have again 5 failed to show “a genuine threat of imminent prosecution or a ‘concrete plan’ to violate any of the 6 Penal Code sections they challenge.” (Id. at 7.) Plaintiffs oppose, arguing that “the State 7 manipulates the doctrine of standing whenever it involves a case of individual rights applying to 8 the Second Amendment.” (ECF No. 76 at 4.) More specifically, Plaintiffs argue the injury-in- 9 fact is twofold: (1) their firearms have been confiscated; and (2) they face a “credible threat of 10 prosecution” under the allegedly unconstitutional C.P.C. sections. (Id. at 6.) Plaintiffs further 11 equate previous arrests for a slungshot and open-carry knives to “real and certain” threats of 12 future arrests for the possession of banned firearms. (Id. at 5.) 13 “To establish standing, a plaintiff must show that ‘(1) he or she has suffered an injury in 14 fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to 15 the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.’” 16 WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (quoting 17 Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008)). “The party 18 invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defs. of 19 Wildlife, 504 U.S. 555, 561 (1992). To determine whether an injury is definite and concrete for 20 standing purposes, courts “consider whether the plaintiffs face ‘a realistic danger of sustaining a 21 direct injury as a result of the statute’s operation or enforcement,’ or whether the alleged injury is 22 too ‘imaginary’ or ‘speculative’ to support jurisdiction.” Thomas v. Anchorage Equal Rights 23 Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc) (citation omitted) (quoting Babbitt v. 24 United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). 25 In the context of a pre-enforcement challenge to a statute, “neither the mere existence of a 26 proscriptive statute nor a generalized threat of prosecution satisfies the ‘case or controversy’ 27 requirement.” Id. Rather, “a ‘genuine threat of imminent prosecution’ . . . is generally required 28 of plaintiffs raising pre-enforcement challenges to criminal statutes outside the First Amendment 1 context.” Wilson v. Lynch, 835 F.3d 1083, 1090 (9th Cir. 2016) (quoting San Diego Cty. Gun 2 Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)). Courts consider the following 3 factors in determining whether there is a genuine threat of prosecution: “(1) ‘whether the 4 plaintiffs have articulated a “concrete plan” to violate the law in question,’ (2) ‘whether the 5 prosecuting authorities have communicated a specific warning or threat to initiate proceedings,’ 6 and (3) ‘the history of past prosecution or enforcement under the challenged statute.’” Cal. Sea 7 Urchin Comm’n v. Bean, 883 F.3d 1173, 1180 (9th Cir. 2018) (quoting Sacks v. Office of Foreign 8 Assets Control, 466 F.3d 764, 773 (9th Cir. 2006)). The Court finds Plaintiffs have not cured the 9 deficiencies identified in the previous order concerning standing, with one exception discussed 10 below. 11 Plaintiffs repeat the same causes of action based on the same concerns with state law, and 12 on the whole, fail to establish a cognizable injury. More specifically, Plaintiffs have again failed 13 to establish a “concrete plan” to violate the challenged firearm laws. Rather, they continue to 14 allege only that they “intend” to travel with and “intend to purchase, possess, and use” large- 15 capacity magazines and handguns not on California’s approved firearms list. (ECF No. 65 ¶ 84.) 16 These allegations are identical to those set forth in the previously dismissed SAC and are again 17 insufficient to allege an injury-in-fact. As the Court previously noted, the Ninth Circuit has 18 explicitly rejected this type of ambiguous language, holding that an assertion that plaintiffs “wish 19 and intend to engage in activities prohibited by” gun control law is too vague to support a finding 20 of an injury-in-fact. San Diego County Gun Rights Comm’n v. Reno, 98 F.3d 1121, 1127 (9th 21 Cir. 1996). “‘[S]ome day’ intentions — without any description of concrete plans, or indeed even 22 any specification of when the some day will be — do not support a finding of the ‘actual or 23 imminent’ injury that our cases require.” Lujan, 504 U.S. at 564. Plaintiffs have again failed to 24 allege an imminent and concrete injury, and therefore fail to establish standing. 25 Moreover, the previous confiscations of firearms by law enforcement cannot establish 26 injury-in-fact for Plaintiffs’ Second and Fourteenth Amendment challenges3 because Plaintiffs do 27 3 This appears to be the basis for Plaintiffs’ Third, Sixth, and Ninth Causes of Action, as 28 opposed to the First and Twelfth Causes of Action, which seem to be premised on Plaintiffs’ 1 not point to any corresponding allegations indicating the purportedly unlawful confiscations were 2 the result of law enforcement applying the challenged statutes. More to the point, Plaintiffs do 3 not allege the seizures of their various weapons as discussed in Claims Three and Six were 4 performed pursuant to any statute they wish to challenge. Indeed, Plaintiffs assert the Attorney 5 General is named for purposes of declaratory and injunctive relief but provide no connection to 6 any law they wish to enjoin.4 The single exception to this analysis is with regard to Claim Nine 7 as brought by Plaintiff Haven. 8 The Ninth Cause of Action alleges Haven was arrested and charged for the illegal 9 possession of a slungshot under C.P.C. § 22210.5 (ECF No. 65 ¶¶ 148, 151.) Haven alleges § 10 22210 violates his Second Amendment rights because it “interferes with the right to possess non- 11 lethal weapons for purposes of self[-]defense.” (ECF No. 65 ¶¶ 143, 144.) According to the 12 heading of Claim Nine, it is brought to challenge C.P.C. § 22210 both as written and as applied, 13 and Haven seeks injunctive and declaratory relief prohibiting further arrest and enjoining the state 14 from enforcing the law. (Id. at ¶ 154.) But it is not clear to the Court whether Haven intends to 15 raise a facial challenge to C.P.C. § 22210. To the extent he does, he falls short of pleading a clear 16 and concise claim under Rule 8 such that the Court is unable to decipher the claim and declines to 17 address standing. To the extent he challenges the law as applied to him, however, Haven appears 18 unspecified desire and intent to violate certain gun control laws. Regardless, the Court’s analysis 19 applies to all five causes of action. Defendant does not challenge Plaintiffs’ standing to bring their Second Cause of Action. 20

4 To the extent the injunctive relief sought is the return of weapons seized, the Attorney 21 General is not properly named because there is no connection between the Attorney General and 22 the allegedly illegal actions of the officers involved in the incidents. Plaintiffs allege only that the Sacramento Deputy Sheriff was acting under “the authority of the state of California, Office of 23 the Attorney General” and allege no facts demonstrating Defendant’s actual involvement or a sufficient connection to bring Defendant within the Ex parte Young exception to Eleventh 24 Amendment immunity. See L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (“This 25 connection must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to 26 suit.”).

27 5 The TAC makes multiple references to C.P.C. § 12210. As noted above, it appears this may be a typographical error intending to refer to C.P.C. § 22210, which outlaws slungshots. 28 1 to be challenging the constitutionality of a state law under which he was previously arrested. The 2 Court therefore finds he likely has standing to assert a Second Amendment challenge to C.P.C. § 3 22210 as alleged in the Ninth Cause of Action. This cause of action as pleaded, however, 4 nevertheless fails to meet the pleading standard of Rule 8, as generally discussed above, and so it 5 is DISMISSED with leave to amend.6 6 Claims One, Three, Six, and Twelve, however, lack a similar concrete injury tied to any 7 constitutional challenge. Accordingly, the Court dismisses Plaintiffs’ First, Third, Sixth, and 8 Twelfth causes of action on this additional ground.7 9 C. Second Cause of Action: Failure to State a Claim Under 12(b)(6)8 10 In their Second Claim, Plaintiffs challenge the constitutionality of a mandatory Law 11 Enforcement Gun Release (LEGR) application process that is required for the return of their 12 seized firearms. (ECF No. 65 ¶¶ 102-114.) As an initial matter, this claim is repeated almost 13 verbatim from the SAC, which the Court dismissed under Rule 8. (ECF No. 65 ¶¶ 102-114.) In 14 its previous Order granting Defendant’s Motion to Dismiss, the Court explicitly noted in a 15 footnote that Plaintiffs had “provided no explanation in either the SAC or their opposition 16 explaining why the LEGR requirements violate the Second Amendment.” (ECF No. 61 at 7 n. 2.) 17 Despite the Court’s warning and the opportunity to do so, Plaintiffs fail to cure this deficiency in 18 the TAC and once again fail to explain what about the LEGR requirement violates the Second 19

20 6 The Ninth Cause of Action also makes a passing reference to a Fourth Amendment violation. (Id. ¶ 149.) To the extent Plaintiff intends to assert a Fourth Amendment claim, it does 21 not meet the requirements of Rule 8 as set forth above. 22 7 The Court is aware of the Ninth Circuit’s recent decision in Duncan v. Becerra, No. 19- 23 55379, 2020 WL 4730668 (9th Cir., Aug. 14, 2020), affirming the district court’s summary judgment in favor of plaintiffs challenging C.P.C. § 32310, which banned possession of large 24 capacity magazines. That ruling does not impact this Court’s finding that Plaintiffs here lack 25 standing to assert the causes of action discussed herein.

8 The Court does not discuss all of Defendant’s 12(b)(6) arguments herein. Instead, 26 because the Court has found Plaintiffs’ First, Third, Sixth, and Twelfth Causes of Action fail for 27 lack of standing, the Court will address only Plaintiffs’ Second Cause of Action under Rule 12(b)(6). The Court declines to address the Ninth Cause of Action under Rule 12(b)(6) because 28 the claim is dismissed under Rule 8 with leave to amend to clarify Plaintiff’s claim. 1 Amendment. Rather, the only substantial amendment to this cause of action is an additional 2 claim that “plaintiffs’ firearms were illegally seized, and therefore, they were deprived of their 3 Second Amendment rights.” (ECF No. 65 ¶ 103.) This does not cure the deficiency explicitly 4 noted by the Court, and the claim continues to fail under both Rule 8 and Rule 12(b)(6). 5 Presumably, Plaintiffs allege that the required application and processing fee ($20 plus $3 6 for each additional firearm) prevents the immediate return of their seized firearms and is therefore 7 an unconstitutional deprivation of Plaintiffs’ “ability to exercise their Second Amendment rights.” 8 (Id. ¶¶ 108, 111.) To the extent this is Plaintiffs’ intended claim, it fails to state a claim for relief 9 as discussed below. 10 The Ninth Circuit has identified a two-step inquiry for determining whether a regulation 11 violates the Second Amendment. Pena v. Lindley, 898 F.3d 969, 975 (9th Cir. 2018). The Court 12 first considers if the regulation “burdens conduct protected by the Second Amendment,” and if it 13 does, they “apply an appropriate level of scrutiny.” Id. The appropriate level of scrutiny 14 “depend[s] on (1) how close the law comes to the core of the Second Amendment right and (2) the 15 severity of the law’s burden on the right.” United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 16 2013). In evaluating the first question, longstanding regulations remain presumptively lawful, 17 meaning they are “presumed not to burden conduct within the scope of the Second Amendment.” 18 Heller v. D.C., 670 F.3d 1244, 1253 (D.C. Cir. 2011). And as set forth in Heller and applied by 19 the district court in Pena, laws imposing conditions or qualifications, rather than prohibitions, on 20 the commercial sale of firearms are presumptively lawful. See Pena, 898 F.3d at 975. 21 On the first question, the Court notes the burden of the LEGR application is analogous to 22 the firearm sale provisions burden in Pena because it imposes a condition rather than a 23 prohibition on the return of seized firearms. As a result, it may be that the regulation is 24 presumptively legal and therefore unnecessary for the Court to engage in the second step of the 25 analysis. See id. The Court acknowledges, however, that the presumption of legality outlined in 26 Heller is not directly on point here because the LEGR regulation is not a condition on the 27 commercial sale of firearms. The Court therefore assumes for the sake of argument that the 28 1 LEGR imposes a burden on conduct that is protected by the Second Amendment, and considers 2 the second prong of the test. 3 To that end, even if the LEGR imposes a burden on protected conduct, the Ninth Circuit 4 has applied only intermediate scrutiny to laws that “regulate only the manner in which persons 5 may exercise their Second Amendment rights.” Jackson v. City & County of San Francisco, 746 6 F.3d 953, 961 (9th Cir. 2014). Intermediate scrutiny requires (1) a significant, substantial, or 7 important government objective, and (2) a “reasonable fit” between the challenged law and the 8 asserted objective. Id. at 965. Here, the TAC acknowledges that “such forms are submitted for a 9 determination by the California Department of Justice . . . as to whether [the applicant] is eligible 10 to possess a firearm.” (ECF No. 65 ¶ 105.) LEGR’s objective, then, is one of public safety: 11 keeping firearms out of the hands of those who — under California law — are not eligible to 12 possess them. Requiring completion of a form and a relatively small processing fee is certainly a 13 “reasonable fit” with this important public safety objective. See Wilson v. Lynch, 835 F.3d 1083, 14 1097 (9th Cir. 2016) (finding that violent crime is an important government interest and that 15 preventing certain individuals from acquiring firearms furthers this interest by preventing gun 16 violence); see also Heller, 554 U.S. at 626 (“[N]othing in our opinion should be taken to cast 17 doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”). 18 Plaintiffs fail to allege otherwise and fail to assert facts supporting the inference that there is no 19 reasonable fit between the LEGR process and the government’s objective. 20 Moreover, to the extent Plaintiffs assert the fee itself is unconstitutional, “imposing fees 21 on the exercise of constitutional rights is permissible when the fees are designed to defray (and do 22 not exceed) the administrative costs of regulating the protected activity.” Kwong v. Bloomberg, 23 723 F.3d 160, 165 (2d Cir. 2013) (finding that a $340 licensing fee did not impose an 24 unconstitutional burden on the exercise of Second Amendment rights). Here, the required $20 fee 25 (plus $3 for each additional firearm) is an administrative processing fee, intended “to cover [the] 26 reasonable costs for processing [LEGR] applications.” Cal. Penal Code § 33860. Because the fee 27 is permissible under the general “fee jurisprudence” and because Plaintiffs fail to sufficiently 28 1 allege an unconstitutional burden, the Court finds Plaintiffs fail to state a claim under Rule 2 12(b)(6). Consequently, Defendant’s motion to dismiss the Second Claim is GRANTED on this 3 additional ground with final leave to amend to clearly and concisely state facts supporting a claim 4 that the LEGR is somehow unconstitutional. 5 IV. CONCLUSION 6 For the foregoing reasons, the Court hereby GRANTS Defendant’s Motion to Dismiss. 7 (ECF No. 74-1.) Plaintiffs’ Third Amended Complaint (ECF No. 65) as it is asserted against 8 Defendants Harris and Becerra is DISMISSED with leave to amend only as to Claims Two and 9 Nine. Plaintiffs may file an amended complaint not later than 21 days after the date of electronic 10 filing of this Order. 11 IT IS SO ORDERED. 12 DATED: September 23, 2020 13

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