1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JANE ROE #1, et al., No. 1:19-cv-00270-DAD-BAM 12 Plaintiffs, 13 v. ORDER GRANTING MOTION TO DISMISS TENTH AMENDMENT CLAIM 14 UNITED STATES OF AMERICA, et al., (Doc. No. 37) 15 Defendants. 16 17 This matter is before the court on defendant United States of America’s motion to dismiss 18 plaintiffs’ Tenth Amendment claim as asserted in the first amended complaint. (Doc. No. 36.) 19 Pursuant to General Order No. 617 addressing the public health emergency posed by the COVID- 20 19 pandemic, the motion was taken under submission on the papers. (Doc. No. 39.) For the 21 reasons set forth below, the court will grant the pending motion. 22 BACKGROUND 23 On February 25, 2019, plaintiffs filed their original complaint in this action against the 24 following defendants: United States of America; United States Department of Justice; Federal 25 Bureau of Investigation; Bureau of Alcohol, Tobacco, Firearms and Explosives; William P. Barr; 26 Christopher Wray; Thomas E. Brandon; Xavier Becerra; and Does 1 to 100. (Doc. No. 1 at 1.) 27 On March 31, 2020, plaintiffs filed a first amended complaint (“FAC”), adding a Tenth 28 Amendment claim and adding defendant Regina Lombardo. (Doc. No. 36.) 1 In their FAC, plaintiffs assert six causes of action against all defendants: (1) an as applied 2 Second Amendment claim; (2) a facial challenge Second Amendment claim; (3) Fifth 3 Amendment Due Process and Equal Protection claims; (4) Fourteenth Amendment Due Process 4 and Equal Protection claims; (5) a statutory claim under 18 U.S.C. § 925(A); and (6) a Tenth 5 Amendment claim. (FAC at ¶¶ 45–65.) 6 The plaintiffs in this action include eight individuals subject to the federal law prohibiting 7 anyone who has been adjudicated mentally incompetent or committed to a mental institution, 8 unless that disability is removed, from owning a firearm. See 18 U.S.C. §§ 922(g)(4), 925(c); 34 9 U.S.C. § 40915. Although somewhat difficult to decipher, plaintiffs’ complaint appears to allege 10 that § 922(g)(4) violates the Second Amendment and that the federal government’s manner of 11 enforcing that law somehow violates the Tenth Amendment. (FAC at ¶ 65.) Each plaintiff 12 appears to allege that they have had interaction with mental health adjudication in the past and 13 have been barred from purchasing a firearm in California. (Id. at ¶¶ 3–10.) In addition, each 14 plaintiff appears to allege they still wish to purchase firearms. (Id.) 15 On April 14, 2020, defendants filed a motion to dismiss plaintiffs’ Tenth Amendment 16 claim, contending that the amended complaint “omits the required ‘short and plain statement . . . 17 showing that the pleader is entitled to relief.’” (Doc. No. 37 at 3) (citing Fed. R. Civ. P. 8(a)(2)). 18 Defendant Attorney General Becerra filed a request to join in the motion to dismiss on April 16, 19 2020. (Doc. No. 38.) Plaintiffs filed an opposition to the pending motion on May 5, 2020. (Doc. 20 No. 41.) On May 12, 2020, defendants filed their reply thereto. (Doc. No. 43.) 21 LEGAL STANDARD 22 The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 23 is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 24 2001). A dismissal may be warranted where there is “the lack of a cognizable legal theory or the 25 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 26 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege “enough facts to state a claim to 27 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A 28 claim is plausible on its face “when the plaintiff pleads factual content that allows the court to 1 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009). 3 In determining whether a complaint states a claim on which relief may be granted, the 4 court accepts as true the allegations in the complaint and construes the allegations in the light 5 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 6 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth 7 of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788 8 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, 9 “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 10 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a 11 formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also 12 Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by 13 mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the 14 plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws 15 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 16 Council of Carpenters, 459 U.S. 519, 526 (1983). 17 ANALYSIS 18 Congress has specified conditions under which federal law prohibits the possession of 19 firearms. See 18 U.S.C. § 922(g). Specifically, federal law prohibits possession of firearms by 20 individuals who have been adjudicated mentally defective or have been committed to a mental 21 institution. See 18 U.S.C. § 922(g)(4). Federal law also provides an avenue for obtaining relief 22 from this prohibition on the possession of firearms. Currently, any state program that qualifies 23 under 34 U.S.C. § 40915 may provide relief from the disabilities imposed by federal law with 24 respect to the possession of firearms. See Mai v. United States, 952 F.3d 1106, 1111 (9th Cir. 25 2020). Section 40915 provides that a state shall grant relief from the prohibition if the state 26 program affirms that “the person’s record and reputation [] are such that the person will not be 27 likely to act in a manner dangerous to public safety and that the granting of the relief would not 28 be contrary to the public interest[.]” 34 U.S.C. § 40915(a)(2) (emphasis added).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JANE ROE #1, et al., No. 1:19-cv-00270-DAD-BAM 12 Plaintiffs, 13 v. ORDER GRANTING MOTION TO DISMISS TENTH AMENDMENT CLAIM 14 UNITED STATES OF AMERICA, et al., (Doc. No. 37) 15 Defendants. 16 17 This matter is before the court on defendant United States of America’s motion to dismiss 18 plaintiffs’ Tenth Amendment claim as asserted in the first amended complaint. (Doc. No. 36.) 19 Pursuant to General Order No. 617 addressing the public health emergency posed by the COVID- 20 19 pandemic, the motion was taken under submission on the papers. (Doc. No. 39.) For the 21 reasons set forth below, the court will grant the pending motion. 22 BACKGROUND 23 On February 25, 2019, plaintiffs filed their original complaint in this action against the 24 following defendants: United States of America; United States Department of Justice; Federal 25 Bureau of Investigation; Bureau of Alcohol, Tobacco, Firearms and Explosives; William P. Barr; 26 Christopher Wray; Thomas E. Brandon; Xavier Becerra; and Does 1 to 100. (Doc. No. 1 at 1.) 27 On March 31, 2020, plaintiffs filed a first amended complaint (“FAC”), adding a Tenth 28 Amendment claim and adding defendant Regina Lombardo. (Doc. No. 36.) 1 In their FAC, plaintiffs assert six causes of action against all defendants: (1) an as applied 2 Second Amendment claim; (2) a facial challenge Second Amendment claim; (3) Fifth 3 Amendment Due Process and Equal Protection claims; (4) Fourteenth Amendment Due Process 4 and Equal Protection claims; (5) a statutory claim under 18 U.S.C. § 925(A); and (6) a Tenth 5 Amendment claim. (FAC at ¶¶ 45–65.) 6 The plaintiffs in this action include eight individuals subject to the federal law prohibiting 7 anyone who has been adjudicated mentally incompetent or committed to a mental institution, 8 unless that disability is removed, from owning a firearm. See 18 U.S.C. §§ 922(g)(4), 925(c); 34 9 U.S.C. § 40915. Although somewhat difficult to decipher, plaintiffs’ complaint appears to allege 10 that § 922(g)(4) violates the Second Amendment and that the federal government’s manner of 11 enforcing that law somehow violates the Tenth Amendment. (FAC at ¶ 65.) Each plaintiff 12 appears to allege that they have had interaction with mental health adjudication in the past and 13 have been barred from purchasing a firearm in California. (Id. at ¶¶ 3–10.) In addition, each 14 plaintiff appears to allege they still wish to purchase firearms. (Id.) 15 On April 14, 2020, defendants filed a motion to dismiss plaintiffs’ Tenth Amendment 16 claim, contending that the amended complaint “omits the required ‘short and plain statement . . . 17 showing that the pleader is entitled to relief.’” (Doc. No. 37 at 3) (citing Fed. R. Civ. P. 8(a)(2)). 18 Defendant Attorney General Becerra filed a request to join in the motion to dismiss on April 16, 19 2020. (Doc. No. 38.) Plaintiffs filed an opposition to the pending motion on May 5, 2020. (Doc. 20 No. 41.) On May 12, 2020, defendants filed their reply thereto. (Doc. No. 43.) 21 LEGAL STANDARD 22 The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 23 is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 24 2001). A dismissal may be warranted where there is “the lack of a cognizable legal theory or the 25 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 26 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege “enough facts to state a claim to 27 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A 28 claim is plausible on its face “when the plaintiff pleads factual content that allows the court to 1 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009). 3 In determining whether a complaint states a claim on which relief may be granted, the 4 court accepts as true the allegations in the complaint and construes the allegations in the light 5 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 6 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth 7 of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788 8 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, 9 “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 10 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a 11 formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also 12 Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by 13 mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the 14 plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws 15 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 16 Council of Carpenters, 459 U.S. 519, 526 (1983). 17 ANALYSIS 18 Congress has specified conditions under which federal law prohibits the possession of 19 firearms. See 18 U.S.C. § 922(g). Specifically, federal law prohibits possession of firearms by 20 individuals who have been adjudicated mentally defective or have been committed to a mental 21 institution. See 18 U.S.C. § 922(g)(4). Federal law also provides an avenue for obtaining relief 22 from this prohibition on the possession of firearms. Currently, any state program that qualifies 23 under 34 U.S.C. § 40915 may provide relief from the disabilities imposed by federal law with 24 respect to the possession of firearms. See Mai v. United States, 952 F.3d 1106, 1111 (9th Cir. 25 2020). Section 40915 provides that a state shall grant relief from the prohibition if the state 26 program affirms that “the person’s record and reputation [] are such that the person will not be 27 likely to act in a manner dangerous to public safety and that the granting of the relief would not 28 be contrary to the public interest[.]” 34 U.S.C. § 40915(a)(2) (emphasis added). Notably, 1 California law does not meet this standard because California allows for the restoration of one’s 2 right to possess a firearm merely “if the court finds by a preponderance of the evidence that the 3 person would be likely to use firearms in a safe and lawful manner.” Cal. Welf. & Inst. Code § 4 8103(g)(4). Each of the plaintiffs in this case have satisfied California’s requirements for the 5 restoration of their right to possess a firearm but failed to meet the requirements for relief from 6 the prohibition on the possession of firearms imposed under federal law. This discrepancy serves 7 as the premise for plaintiffs’ Tenth Amendment claim. 8 Defendants move to dismiss plaintiffs’ Tenth Amendment claim against them, arguing 9 that the amended complaint “does not articulate any theory of a Tenth Amendment violation.” 10 (Doc. No. 37 at 8.) Defendants assert that the complaint “does not explain what aspect of 11 federalism plaintiffs believe has been violated by the federal government’s refusal to accept 12 California’s restoration of right procedure as adequate to remove the disability imposed by 18. 13 U.S.C. § 922(g)(4).” (Id.) 14 In opposing dismissal, plaintiffs attempt to clarify their claim, arguing that “[t]he Tenth 15 Amendment claim in this matter makes the case that when the federal government accepts a state 16 court proceeding to disqualify someone from exercising a fundamental right, that it must also 17 accept the same states’ procedures for restoration of those rights.” (Doc. No. 41 at 9.) The 18 gravamen of plaintiffs’ claim appears to be that because the federal government recognizes 19 California’s authority to bar firearm ownership under California Welfare & Institutions Code § 20 8103(g)(1)(i), so too must it recognize California’s authority to restore one’s right to own a 21 firearm under § 8103(g)(4).1 Plaintiffs’ FAC appears to rely on the Full Faith and Credit Clause 22 of the United States Constitution for this proposition, not the Tenth Amendment. (FAC ¶ 65.) 23 However, the Full Faith and Credit Clause “imposes no obligation whatsoever on the federal 24 government.” Taylor v. Sawyer, 284 F.3d 1143, 1152 (9th Cir. 2002). 25 ///// 26 1 California Welfare & Institutions Code § 8103(g)(1)(i) provides that “[a] person who has been 27 certified for intensive treatment under Section 5250 . . . shall not own, possess, control, receive, or purchase . . . any firearm for a period of five years.” Those who fall under this provision 28 likewise are barred from owning a firearm under 18 U.S.C. § 922(g)(4). 1 Defendants persuasively argue that plaintiffs’ FAC does not state a cognizable claim 2 under the Tenth Amendment. Although the Federal Rules of Civil Procedure adopt a flexible 3 pleading policy, a complaint must give the defendant fair notice of the plaintiff’s claims. See 4 Ahmad v. Wells Fargo Bank, N.A., 2011 WL 1260054, at *3 (E.D. Cal. Mar. 30, 2011). Of 5 course, plaintiffs may not amend their complaint by way of their opposition to the pending 6 motion to dismiss. See Iqbal, 556 U.S. at 678 (a complaint may only survive a motion to dismiss 7 if it contains “sufficient factual matter” to be plausible on its face); Schneider v. Cal. Dep't. of 8 Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) 9 dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, such as a 10 memorandum in opposition to a defendant's motion to dismiss.”) Putting that principle aside, 11 however, the court also does not find the additional clarification and reasoning provided by 12 plaintiffs in their opposition to the pending motion to be persuasive. 13 Plaintiffs argue that the federal government is not allowed to determine whether 14 California Welfare & Institutions Code § 8103(g)(4) meets the standards set out in 34 U.S.C. § 15 40915(a)(2) because the federal government “cannot look to state determinations to see if they 16 have established factual predicates with independent significance under federal law.” (Doc. No. 17 43 at 6.) Plaintiffs cite no authority for the novel proposition that the federal government must 18 accept the results of state restoration hearings as binding under federal law. Indeed, the Ninth 19 Circuit has held just the opposite, concluding that “Congress may regulate possession of firearms 20 without violating the Tenth Amendment.” United States v. Andaverde, 64 F.3d 1305, 1310 (9th 21 Cir. 1995) (rejecting a Tenth Amendment challenge to 18 U.S.C. § 922(g)(1)) (citing United 22 States v. Tomlin, 454 F.2d 176, 176 (9th Cir. 1972)); see also Wortman v. United States, No. 23 5:14-cv-04567-PSG, 2015 WL 2251168, at *4 (N.D. Cal., May 13, 2015) (dismissing a Tenth 24 Amendment challenge to 18 U.S.C. § 922(g)(9) which was predicated upon the theory that the 25 statute usurped the power retained by California to define the procedures for the restoration of 26 gun rights following a criminal conviction for a reduced felony crime of domestic violence); Enos 27 v. Holder, No. 2:10-cv-2911-JAM-EFB, 2011 WL 2681249, at *6 (E.D. Cal. July 8, 2011) 28 ///// 1 | (granting motion to dismiss Tenth Amendment challenge to 18 U.S.C. §§ 921(a)(33), 922(d)(9), 2 | (g)(9)). Of course, this court is bound by the Ninth Circuit’s decision in Andaverde. 3 The Federal Rules of Civil Procedure provide that leave to amend pleadings “shall be 4 | freely given when justice so requires.” Fed. R. Civ. P. 15(a). Nevertheless, leave to amend need 5 | not be granted when the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; 6 | (3) produces an undue delay in litigation; or (4) is futile. See AmerisourceBergen Corp. v. 7 | Dialysist W. Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 757 8 | (9th Cir. 1999)). Further, in determining futility, “[t]he proper test to be applied when 9 | determining the legal sufficiency of a proposed amendment is identical to the one used when 10 || considering the sufficiency of a pleading challenged under Rule 12(b)(6) or (f): if there is no set 11 | of facts which could be proved under the amendment to the pleadings which would constitute a 12 | valid and sufficient claim or defense, leave should be denied.” Baker v. Pac. Far E. Lines, Inc., 13 | 451 F. Supp. 84, 89 (N.D. Cal. 1978) (citing 3 Moore’s Federal Practice P. 15.08(4) (2d ed. 14 1974)). 15 In their complaint plaintiffs have failed to provide a short and plain statement showing 16 | they are entitled to relief with respect to their Tenth Amendment claim. Moreover, the court 17 | cannot identify a legally cognizable theory, no matter how favorable a light is cast on the 18 | allegations of the complaint. See Balistreri, 901 F.2d at 699. Finally, in their opposition to the 19 | pending motion plaintiffs have already attempted to clarify the nature of and theory underlying 20 | their Tenth Amendment claim. Above, the undersigned has explained that even if the complaint 21 | were to be amended to provide that clarification, it would still not state a cognizable claim under 22 | the Ninth Circuit’s holding in Andaverde. Therefore, the granting of leave to amend as to 23 | plaintiffs’ Tenth Amendment claim would be futile. 24 Accordingly, the court grants defendants’ motion to dismiss (Doc. No. 37) plaintiffs’ 25 | Tenth Amendment claim with prejudice. 26 | IT IS SO ORDERED. me □ Dated: _ March 23, 2021 Yh AL 28 UNITED STATES DISTRICT JUDGE