Firearms Policy Coalition, Inc. v. City of San Diego

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2024
• Docket: 24-472
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FIREARMS POLICY COALITION, No. 24-472 INC.; CALIFORNIA GUN RIGHTS D.C. No. FOUNDATION; SAN DIEGO COUNTY 3:23-cv-00400-LL-VET GUN OWNERS POLITICAL ACTION COMMITTEE, MEMORANDUM* Plaintiffs - Appellants,

v.

CITY OF SAN DIEGO; COUNTY OF IMPERIAL; COUNTY OF ALAMEDA; COUNTY OF VENTURA; COUNTY OF LOS ANGELES; CITY OF SAN JOSE; COUNTY OF SANTA CLARA,

Defendants - Appellees.

Appeal from the United States District Court for the Southern District of California Linda Lopez, District Judge, Presiding

Submitted October 8, 2024** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: PAEZ, NGUYEN, and HURWITZ, Circuit Judges.

The Firearms Policy Coalition, California Gun Rights Foundation, and San

Diego County Gun Owners PAC (“Plaintiffs”) appeal the district court’s order

dismissing their operative complaint for lack of standing. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and, reviewing de novo, see Meland v. Weber, 2 F.4th

838, 843 (9th Cir. 2021), we affirm.

1. Plaintiffs seek to enjoin the enforcement of California Code of Civil

Procedure § 1021.11(a), which provides for an award of costs and attorneys fees to

“a political subdivision, a governmental entity or public official” against a plaintiff

or attorney who unsuccessfully challenges “any statute, ordinance, rule, regulation,

or any other type of law that regulates or restricts firearms.” Because the statute has

never been enforced against them, Plaintiffs bear the burden of “demonstrating a

realistic danger of sustaining a direct injury as a result of the statute’s operation or

enforcement.” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (cleaned up).

That burden is not met by alleging the “mere existence of a proscriptive statute nor

a generalized threat of prosecution.” Thomas v. Anchorage Equal Rts. Comm’n, 220

F.3d 1134, 1139 (9th Cir. 2000). Rather, there must be “a reasonable likelihood that

the government will enforce the challenged law against” the Plaintiffs. Lopez, 630

F.3d at 786.

2. In 2022, the Firearms Policy Coalition and California Gun Rights

2 24-472 Foundation sued several California officials, challenging the constitutionality of §

1021.11. See Miller v. Bonta, 646 F. Supp. 3d 1218 (S.D. Cal. 2022). The district

court found the statute unconstitutional, id. at 1222, and permanently enjoined the

State defendants from “bringing any action or motion under § 1021.11 to obtain an

award of attorney’s fees and costs” or otherwise “implementing or enforcing

California Code of Civil Procedure § 1021.11,” id. at 1232. That injunction ran

against not only the named defendants, but against all “those who gain knowledge

of this injunction order or know of the existence of this injunction order.” Id. The

defendants did not appeal. This action, which raises claims identical to those

litigated in Miller against several California cities and counties rather than state

officials, was filed after the judgment in Miller became final.

3. The operative complaint does not allege that Defendants have ever

attempted to enforce the challenged statute. And, in response to an order to show

cause issued by the district court, Defendants expressly represented that they do not

intend to enforce § 1021.11 because of the “comprehensiveness of the [Miller] ruling

and the court’s clear directive that it has broad preclusive effect.” Under these

circumstances, the district court did not err in concluding there is no reasonable

likelihood that Defendants would attempt to enforce the statute against Plaintiffs.

See also Bock v. Washington, 33 F.4th 1139, 1145 (9th Cir. 2022) (holding that when

“a party assumes a certain position in a legal proceeding, and succeeds in

3 24-472 maintaining that position, he may not thereafter, simply because his interests have

changed, assume a contrary position” (cleaned up)). The district court did not err in

dismissing this action for lack of standing.

AFFIRMED.

4 24-472