McKinney v. Fresno County Sheriff's Office

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7

8 MICHAEL GENE MCKINNEY, Case No. 1:22-cv-00475-ADA-EPG 9 Plaintiff, FINDINGS AND RECOMMENDATIONS 10 TO DENY DEFENDANTS’ MOTION TO v. DISMISS 11 FRESNO COUNTY SHERIFF’S OFFICE, et (ECF Nos. 5, 19) 12 al., OBJECTIONS, IF ANY, DUE WITHIN 13 Defendants. FOURTEEN DAYS

14 15 16 Plaintiff Michael Gene McKinney, proceeding pro se, filed a complaint on April 21, 17 2022, against Defendants Fresno County Sheriff’s Office, Fresno County Sheriff Margaret 18 Mims, and Fresno County Sheriff’s Captain Ryan Hushaw. (ECF No. 1). Plaintiff alleges that 19 Defendants denied him procedural due process when he applied for a California concealed 20 carry license. Defendants move to dismiss this case with prejudice for failure to state a claim 21 upon which relief can granted. For the reasons explained below, the Court will recommend that 22 Defendants’ motion to dismiss be denied. 24 A. The Complaint 25 The civil cover sheet attached to the complaint identifies this as a civil rights action. 26 Plaintiff alleges that he applied for a concealed carry license at the Fresno County Sheriff’s 27 Office in 2018 but his application was denied based on his “criminal record and psychiatric 28 profile.” He did not appeal the decision but reapplied for a license in September 2021. 1 This application was denied via email on January 10, 2022, based on the following 2 reasons: “Criminal History 26150 PC, and Moral Character 26150(a)(l) PC.”1 On January 11, 3 2022, Plaintiff mailed a request to appeal the decision, which he addressed to the administrative 4 captain “at the CCW unit.” 5 On February 17, 2022, Plaintiff received an email telling him that his application was 6 denied for the following reasons: “Withheld/False Information on Application 26180 PC, 7 Criminal History 26150 PC.”2 The email stated that Plaintiff could appeal the decision by 8 mailing an appeal request to the administrative captain. On February 22, 2022, Plaintiff mailed 9 his appeal request. 10 In late March 2022, a person who represented themselves “as an employee at the CCW 11 unit” called Plaintiff to tell him that his appeals were denied. On April 8, 2022, Plaintiff mailed 12 a letter to the administrative captain, stating that notice by phone or email “would not suffice as 13 formal denial of the appeals.” 14 Plaintiff asserts that “Defendants deprived [him of his] right to due process by not 15 allowing his participation in the appeal” and he “was not presented an opportunity to review the 16 information used in determining the claims stated in the denial or given [the] opportunity to 17 offer rebuttal testimony or evidence to disprove the claims given as reasons for the decision 18 being appealed.” 19 As for relief, Plaintiff asks the Court to: “compel [] [D]efendants to establish a process 20 that offers a person whose application for a permit to carry a concealed weapon is denied an 21 opportunity to participate in an unbiased appeal process like that prescribed and protected by 22 the judiciary”; “order the [D]efendant[s] to allow [him] to participate in a court approved 23 appeal process, once established, that will allow him to appear at the appeal and present 24

25 1 While not explained in the complaint, the inclusion of “26150” in the reasons for the denial of Plaintiff’s application likely refers to California Penal Code § 26150, which sets out the requirements to 26 obtain a concealed carry license, in part, requiring the applicant to prove he or she is “of good moral 27 character.” § 26150(a)(1). 2 The inclusion of “26180” in the reasons for the denial of Plaintiff’s application likely refers to 28 California Penal Code § 26180, which provides that the filing of an application containing a knowingly false statement is a misdemeanor or felony, depending on the type of the false information provided. 1 testimony and evidence to rebut information contained in the reasons for the denial of a CCW 2 permit application”; “order the Defendants to pay any monetary damage [he] incurs as 3 result of the Defendants[’] actions and [to] reimburse the costs of the Plaintiff’s search for 4 relief”; and, order “[a]ny further relief which the [C]ourt or a jury may deem appropriate.” 5 B. Procedural History 6 On June 2, 2022, Defendants filed a motion to dismiss under Federal Rule of Civil 7 Procedure 12(b)(5)-(6), arguing that Plaintiff failed to properly serve them with process and 8 failed to state a claim upon which relief could be granted because he has no liberty or property 9 interest in a concealed carry license so as to entitle him to procedural due process during the 10 application process. (ECF No. 5). On June 28, 2022, Plaintiff objected to the dismissal, but 11 presented no substantive argument. (ECF No. 9). On June 30, 2022, Defendants filed a notice 12 (ECF No. 10) of supplemental authority, the Supreme Court’s recent decision in New York 13 State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022), which held “that the 14 Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self- 15 defense outside the home.” 16 On August 24, 2022, District Judge Ana de Alba was reassigned to this case, and 17 shortly thereafter, ordered the parties to file a joint report addressing, among other topics, 18 whether the motion to dismiss was “still at issue for the parties.” (ECF No. 12). On September 19 12, 2022, this matter was referred to the undersigned for preparation of findings and 20 recommendations. (ECF No. 13). 21 On September 13, 2022, the parties filed a joint report in response to Judge de Alba’s 22 order, noting that they had stipulated to proper service, and thus Defendants’ argument as to 23 insufficient service was “moot and no longer require[d] a ruling.” (ECF No. 14, p. 2). Further, 24 the parties stated that they were going to confer about resolving additional issues. 25 On September 14, 2022, the Court ordered the parties to file a joint report addressing 26 whether they were able to resolve additional issues and whether briefing should be ordered 27 pursuant to Bruen. (ECF No. 15). On October 13, 2022, the parties filed a joint status report, 28 stating that they had not been able to resolve any additional issues and believed briefing should 1 be ordered regarding Bruen. (ECF No. 17). 2 The Court set a briefing schedule, and Defendants timely filed a supplemental brief on 3 October 28, 2022, arguing that Bruen affects the reasoning underlying their motion to dismiss 4 and withdrawing arguments inconsistent with that case. (ECF No. 19). However, Defendants 5 maintain that Plaintiff’s case should be dismissed because he is not entitled to a specific 6 procedure like that offered by courts. Additionally, they argue that Plaintiff is not entitled to the 7 Second Amendment’s protection. On November 10, 2022, Plaintiff timely filed an opposition, 8 arguing that Bruen does not affect the motion to dismiss and that due process requires that he 9 be given the chance to rebut the reasons for the denial of his concealed carry application. (ECF 10 No. 20, p. 8). Defendants chose not to file an optional reply by the November 21, 2022 deadline 11 set by the Court’s order. (ECF No. 18). 12 With briefing being complete, the Court concludes that this matter would not benefit 13 from oral argument and is thus ripe. See Local Rule 230(g) (providing that a Court may address 14 a motion on the briefs without oral argument). 16 A. Summary of the Parties’ Arguments 17 Defendants argue that Plaintiff has no constitutionally protected right to procedures, like 18 those used by courts, during the concealed-carry application process.3 (ECF No. 19, p. 6) 19 (quoting ECF No. 1, p. 2). Additionally, Defendants argue that the facts contained in the 20 complaint reveal that he is not entitled to the Second Amendment’s protection. 21 Plaintiff’s opposition indicates that the interest at issue is his obtaining a concealed 22 carry license. He states that he would not have gone through the application process “if he did 23 not have a reasonable expectation of receiving the permit.” (ECF No. 20, p. 7). Additionally, he 24 argues that due process requires that he be provided the “opportunity to present rebuttal 25 evidence, testimony, and witnesses” to contest the bases his application was denied. (Id. at 8). 26 \\\ 27

28 3 The Court does not address the arguments from Defendants’ motion to dismiss that are now moot. 1 B. Standards 2 1. Motion to Dismiss 3 In considering a motion to dismiss, the Court must accept all allegations of material fact 4 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). “[T]he court must 5 construe the complaint in the light most favorable to the plaintiff, taking all [of the plaintiff’s] 6 allegations as true and drawing all reasonable inferences from the complaint in [the plaintiff’s] 7 favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). In addition, pro se pleadings 8 “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. 9 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 10 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 11 complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Rule 8(a)(2) requires only “a short 12 and plain statement of the claim showing that the pleader is entitled to relief” in order to “give 13 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 15 47 (1957)). “Furthermore, Rule 8(a) establishes a pleading standard without regard to whether a 16 claim will succeed on the merits. Indeed it may appear on the face of the pleadings that a 17 recovery is very remote and unlikely but that is not the test.” Swierkiewicz v. Sorema N. A., 534 18 U.S. 506, 515 (2002) (internal citation and quotation marks omitted). 19 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements, do not suffice.” Iqbal, 556 U.S. at 678. To survive a motion to dismiss, a claim 21 must be facially plausible, i.e., the complaint must “plead[] factual content that allows the court 22 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 23 This standard is not akin to a “probability requirement,” but requires “more than a sheer 24 possibility that a defendant has acted unlawfully.” Id. 25 2. Procedural Due Process 26 “Procedural due process imposes constraints on governmental decisions which deprive 27 individuals of liberty or property interests within the meaning of the Due Process Clause of the 28 Fifth or Fourteenth Amendment.” Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 1 F.2d 1229, 1233 (9th Cir. 1982). A “procedural due process claim hinges on proof of two 2 elements: (1) a protectible liberty or property interest in obtaining the permit; and (2) a denial 3 of adequate procedural protections.” Foss v. Nat'l Marine Fisheries Serv., 161 F.3d 584, 588 4 (9th Cir. 1998). 5 Regarding the first element, property interests include things like the ownership of 6 money or real estate, although they extend beyond this. Bd. of Regents of State Colleges v. 7 Roth, 408 U.S. 564, 571-72 (1972). While liberty interests have historically been understood to 8 encompass the “freedom from bodily restraint,” it also has broader definitions. Id. at 572; see 9 Washington v. Glucksberg, 521 U.S. 702, 719 (1997) (“The Due Process Clause guarantees 10 more than fair process, and the ‘liberty’ it protects includes more than the absence of physical 11 restraint.”). Liberty interests include “the specific freedoms protected by the Bill of Rights” and 12 fundamental rights, e.g., the right to marry. Washington, 521 U.S. at 7204 (internal quotation 13 marks and citations omitted). 14 Regarding the second element, “[t]he essence of due process is the requirement that a 15 person in jeopardy of serious loss (be given) notice of the case against him and opportunity to 16 meet it.” See Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (internal citation and quotations 17 marks omitted). There need not be any single set of procedures to ensure due process—“[a]ll 18 that is necessary is that the procedures be tailored, in light of the decision to be made, to the 19 capacities and circumstances of those who are to be heard . . . to insure that they are given a 20 meaningful opportunity to present their case.” Id. at 349 (internal citation and quotations marks 21 omitted); Yagman v. Garcetti, 852 F.3d 859, 864 (9th Cir. 2017) (noting “there are no ‘hard and 22 fast’ rules for determining the requisite timing and adequacy of pre- and post-deprivation 23 procedures”). 24 [The] identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be 25 affected by the official action; second, the risk of an erroneous deprivation of 26 27 4 While Washington discussed liberty interests in the context of substantive due process, “[a] threshold requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty or 28 property interest protected by the Constitution.” Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994) (emphasis added). such interest through the procedures used, and the probable value, if any, of 1 additional or substitute procedural safeguards; and finally, the Government’s 2 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 3 Mathews, 424 U.S. at 335. 4 C. Analysis 5 1. Interest at stake 6 Starting with the interest at stake, Bruen is instructive here. Building off prior 7 decisions—McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010) and D.C. v. Heller, 554 8 U.S. 570 (2008)—that recognized the right of law-abiding citizens to possess a handgun in the 9 home for self-defense under the Second and Fourteenth Amendments, the Supreme Court held 10 that individuals likewise have the “right to carry a handgun for self-defense outside the home.”5 11 Bruen, 142 S. Ct. at 2122. 12 In light of Bruen and the complaint’s allegation that Plaintiff wishes to obtain a 13 California concealed carry permit, the Court concludes that the interest at stake is Plaintiff’s 14 interest in the right to publicly bear arms. See Bruen, 142 S. Ct. at 2142 (“At the very least, we 15 cannot conclude from this historical record that, by the time of the founding, English law would 16 have justified restricting the right to publicly bear arms suited for self-defense only to those 17 who demonstrate some special need for self-protection.”) (emphasis added). Notably, in 18 considering procedural due process concerns in comparable contexts, Courts have similarly 19 defined the interest at issue. See Erdelyi v. O’Brien, 680 F.2d 61, 63 (9th Cir. 1982) 20 (considering whether application for California concealed carry license had “a property or 21 liberty interest in obtaining an initial license to carry a concealed weapon”); see United States 22 v. Rehlander, 666 F.3d 45, 48 (1st Cir. 2012) (“Although the right established in Heller is a 23 qualified right . . . the right to possess arms (among those not properly disqualified) is no longer 24 something that can be withdrawn by government on a permanent and irrevocable basis without 25

26 5 As the Supreme Court noted in Bruen, “[s]trictly speaking, [a state] is bound to respect the right to 27 keep and bear arms because of the Fourteenth Amendment, not the Second,” because the protections of the Second Amendment are made applicable to the states through the Fourteenth Amendment. 142 S. 28 Ct. at 2137. While the Court recognizes this distinction, for simplicity’s sake, it refers to “the Second Amendment’s protection” throughout this order. 1 due process.”); United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482, at *11 2 (W.D. Tex. Sept. 19, 2022) (“In line with procedural concerns, the Court notes in passing that 3 the expansion of gun rights by the Supreme Court in Bruen might also implicate procedural due 4 process under the Fifth Amendment. . . . If the right to keep and bear arms inside and outside 5 the home is so clear, removing that right would likely require the same constitutional 6 procedural safeguards that the Supreme Court has bestowed on other rights.); Doe I v. 7 Evanchick, 355 F. Supp. 3d 197, 217 (E.D. Pa. 2019) (“From Heller and McDonald, it is clear 8 that the right to bear arms is a protected liberty interest.”). 9 2. Denial of adequate procedural protections 10 Turning to whether Plaintiff was denied adequate procedural protections, the Court 11 considers the interest at issue, the risk of erroneous deprivation by the procedures used and the 12 value of alternative procedural safeguards, and the Government’s interest regarding and 13 alternative procedures. Mathews, 424 U.S. at 335. 14 Defendants characterize the interest at issue as Plaintiff’s right to a particular procedure. 15 (ECF No. 19, p. 6). However, Plaintiff’s request for court-like procedures is just one of the 16 alternative forms of relief he requests—it is not his procedural due process claim, which is 17 premised on his interest in publicly bearing arms. See Fed. R. Civ. P. 45(c) (noting that a “final 18 judgment should grant the relief to which each party is entitled, even if the party has not 19 demanded that relief in its pleadings”). Importantly, at this stage, the Court need not determine 20 exactly what process is due. 21 Defendants also argue that “there is no suggestion the Fresno County Sheriff’s 22 application process as a whole fails to protect” Plaintiff’s interest in publicly bearing arms. 23 (ECF No. 19, p. 6). Notably, Defendants present no developed explanation for how the current 24 application procedures comport with due process. Regardless, Plaintiff’s complaint alleges that 25 he was not given the opportunity to review the information used to deny his application or 26 given the opportunity to offer rebuttal testimony or evidence. (ECF No. 1, p. 1). Caselaw 27 indicates that similar denials violate due process. See Zerezghi v. United States Citizenship & 28 Immigr. Servs., 955 F.3d 802, 804 (9th Cir. 2020) (concluding that the “BIA violated due 1 process by relying on undisclosed evidence that [plaintiffs] did not have an opportunity to 2 rebut”). 3 Defendants also contend that, “[a]s to the second factor, the complaint alleges nothing 4 to suggest a more formal appeal to the Fresno County Sheriff would have resulted in a different 5 outcome” because he was not entitled to the Second Amendment’s protection based on the 6 reasons his application was denied—Plaintiff’s “criminal history,” “moral character,” 7 “with[olding]/[presenting] false information on application,” and his “psychiatric profile.”6 8 (ECF No. 19, p. 5-6) (capitalization omitted). However, to the extent that this argument 9 advocates for an outcome-determinative approach to due process, “[i]t is process that the 10 procedural due process right protects, not the outcome.” Ching v. Mayorkas, 725 F.3d 1149, 11 1156 (9th Cir. 2013). 12 Moreover, while the Supreme Court has noted that its Second Amendment 13 jurisprudence “should [not] be taken to cast doubt on longstanding prohibitions on the 14 possession of firearms by felons and the mentally ill,” Heller, 554 U.S. at 626, Defendants 15 improperly assume facts not in the complaint. Namely, they assume that Plaintiff has a criminal 16 history and mental illness, and that such are sufficient bases to deny him the Second 17 Amendment’s protection. Cf. Bruen, 142 S. Ct. at 2126 (“To justify its regulation, the 18 government may not simply posit that the regulation promotes an important interest. Rather, the 19 government must demonstrate that the regulation is consistent with this Nation’s historical 20 tradition of firearm regulation.”). Informative here, the Sixth Circuit has concluded that 21 “Heller’s presumption of lawfulness should not be used to enshrine a permanent stigma on 22 anyone who has ever been committed to a mental institution for whatever reason.” Tyler v. 23 Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 688 (6th Cir. 2016). Likewise, it is improper to 24 dismiss this case without knowing the facts underlying the reasons for the denial of Plaintiff’s 25 application and determining whether they render unavailable the Second Amendment’s 26 protection. See Kaur v. Holder, 561 F.3d 957, 962 (9th Cir. 2009) (“[The] use of the secret 27 28 6 Plaintiff’s complaint does not state that his 2021 application was denied based on his “psychiatric profile,” but his opposition indicates that this may have been a basis. 1 evidence without giving [a petitioner] a proper summary of that evidence was fundamentally 2 unfair and violated her due process rights.”). 3 Lastly, Defendants argue that, “[a]s to the third factor, there can be no doubt that adding 4 a formal appeal involving testimony and rebuttal evidence ‘like that prescribed and protected 5 by the judiciary’ for every application to carry a concealed weapon would be significant.” (ECF 6 No. 19, p. 7) (internal citation omitted). This argument improperly focuses on one request for 7 relief in Plaintiff’s complaint. At this stage of the case, the Court need only determine whether 8 Plaintiff has sufficiently alleged a procedural due process claim, which he has done by alleging 9 that he was not advised of the specific bases supporting the denial of his application and not 10 given the opportunity to contest those reasons. See Cleveland Bd. of Educ. v. Loudermill, 470 11 U.S. 532, 546 (1985) (“The opportunity to present reasons, either in person or in writing, why 12 proposed action should not be taken is a fundamental due process requirement.”); see Baird v. 13 Becerra, No. 2:19-CV-00617-KJM-AC, 2020 WL 5107614, at *10 (E.D. Cal. Aug. 31, 2020) 14 (“Though it is unclear from plaintiffs’ briefing and oral argument what procedure plaintiffs 15 believe should be afforded, the complaint’s general allegations suggest the claim is based on 16 the lack of a meaningful ‘administrative appeal process available for challenging [the sheriffs’] 17 denial of [plaintiffs’] applications for an open carry license.’ The court finds plaintiffs have 18 sufficiently stated a claim for a violation of procedural due process at this stage.”) (internal 19 citation to record omitted, alterations in original). The complaint is not subject to dismissal 20 simply become one proposed form of procedures listed in the request for relief would be 21 burdensome to Defendants. 22 Accordingly, for purposes of the motion to dismiss, the Court concludes that Plaintiff 23 has stated a procedural due process claim. 25 For the reasons given above, IT IS RECOMMENDED that Defendants’ motion to 26 dismiss (ECF Nos. 5, 19) be denied and this case be referred back to the undersigned for further 27 proceedings. 28 These Findings and Recommendations will be submitted to the United States District 1 || Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 2 || fourteen (14) days after being served with a copy of these Findings and Recommendations, any 3 || party may file written objections with the court and serve a copy on all parties. Such a 4 || document should be captioned “Objections to Magistrate Judge’s Findings and 5 || Recommendations.” Any reply to the objections shall be served and filed within fourteen (14) 6 || days after service of the objections. The parties are advised that failure to file objections within 7 || the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 8 || 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 11 || Dated: _December 20, 2022 [sf ey — 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11