Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Teixeira v. County of Alameda

United States Court of Appeals, Ninth Circuit

October 10, 2017

John Teixeira; Steve Nobriga; Gary Gamaza; Calguns Foundation, Inc., (CGF); Second Amendment Foundation, Inc., (SAF); California Association of Federal Firearms Licensees, (Cal-FFL), Plaintiffs-Appellants,
v.
County of Alameda; Alameda County Board of Supervisors, as a policy making body; Wilma Chan, in her official capacity; Nate Miley, in his official capacity; Keith Carson, in his official capacity, Defendants-Appellees.

          Argued and Submitted En Banc March 22, 2017 San Francisco, California

         Appeal from the United States District Court for the Northern District of California D.C. No. 3:12-cv-03288-WHO William Horsley Orrick, District Judge, Presiding

          Donald E. J. Kilmer, Jr. (argued), San Jose, California, for Plaintiffs-Appellants.

          Brian P. Goldman (argued), Orrick Herrington & Sutcliffe LLP, San Francisco, California; Donna R. Ziegler, County Counsel; Office of the County Counsel, County of Alameda, Oakland, California; for Defendants-Appellees.

          Alan Gura, Gura & Possessky PLLC, Alexandria, Virginia, for Amicus Curiae Citizens Committee for the Right to Keep and Bear Arms.

          Imran A. Khaliq, Arent Fox LLP, San Francisco, California; Laura J. Edelstein, Steptoe & Johnson LLP, Palo Alto, California; for Amici Curiae Law Center to Prevent Gun Violence, and Youth Alive! T. Peter Pierce and Stephen D. Lee, Richards Watson & Gershon APC, Los Angeles, California, for Amici Curiae League of California Cities, and California State Association of Counties.

          Kathryn Marshall Ali, Anna M. Kelly, and Adam K. Levin, Hogan Lovells U.S. LLP, Washington, D.C.; Jasmeet K. Ahuja, Hogan Lovells U.S. LLP, Philadelphia, Pennsylvania; Kelly Sampson, Avery Gardiner, Alla Lefkowitz, and Jonathan Lowy, Brady Center to Prevent Gun Violence; for Amicus Curiae Brady Center to Prevent Gun Violence.

          Lisa Hill Fenning, Amanda Semaan, Eric D. Mason, and Stephanie N. Kang, Arnold & Porter LLP, Los Angeles, California; Anton A. Ware and David A. Caine, Arnold & Porter LLP, San Francisco, California; for Amicus Curiae Dean Erwin Chemerinsky.

          Peter H. Chang, Deputy Attorney General; Marc A. LeForestier, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kathleen A. Kenealy, Chief Assistant Attorney General; Edward C. DuMont, Solicitor General; Office of the Attorney General, San Francisco, California; for Amicus Curiae State of California.

          Eugene Volokh, Los Angeles, California, for Amici Curiae Professors Randy Barnett, Robert J. Cottrol, Brannon Denning, Michael O'Shea, and Glenn Harlan Reynolds, and The Firearms Policy Foundation.

          Bradley A. Benbrook and Stephen M. Duvernay, Benbrook Law Group PC, Sacramento, California, for Amici Curiae Firearms Policy Coalition, Golden State Second Amendment Council, Madison Society Foundation, Commonwealth Second Amendment Inc., Gun Owners of California, and San Diego County Gun Owners Political Action Committee.

          Craig A. Livingston and Crystal L. Van Der Putten, Livingston Law Firm P.C., Walnut Creek, California; Lawrence G. Keane, General Counsel, The National Shooting Sports Foundation Inc., for Amicus Curiae The National Shooting Sports Foundation Inc.

          Paul D. Clement, Erin E. Murphy, and Christopher G. Michel, Kirkland & Ellis LLP, Washington, D.C.; C.D. Michel, Michel & Associates P.C., Long Beach, California; for Amici Curiae National Rifle Association of America Inc., and California Rifle & Pistol Association.

          Joseph G.S. Greenlee, Jolein A. Harro P.C., Steamboat Springs, Colorado; David B. Kopel, Independence Institute, Denver, Colorado; for Amici Curiae Jews for the Preservation of Firearms Ownership, and The Independence Institute.

          Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt, M. Margaret McKeown, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee, Carlos T. Bea, Paul J. Watford and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The en banc court affirmed the district court's dismissal, for failure to state a claim, of an action brought pursuant to 42 U.S.C. § 1983 alleging that the County of Alameda violated the Second Amendment when it denied individual plaintiffs conditional use permits to open a gun shop because the proposed location of the shop fell within a prohibited County zone.

         The County of Alameda (1) requires firearm retailers to obtain a conditional use permit before selling firearms in the County and (2) prohibits firearm sales near residentially zoned districts, schools and day-care centers, other firearm retailers, and liquor stores. Plaintiffs challenged the County's zoning ordinance, alleging that by restricting their ability to open a new, full-service gun store, the ordinance infringed on their Second Amendment rights, as well as those of their potential customers.

         The en banc court held that plaintiffs had not plausibly alleged that the County's ordinance impeded any resident of Alameda County who wished to purchase a firearm from doing so. Accordingly, plaintiffs failed to state a claim for relief based on infringement of the Second Amendment rights of their potential customers. The en banc court further held that plaintiffs could not state a Second Amendment claim based solely on the ordinance's restriction on their ability to sell firearms. The panel held that a textual and historical analysis of the Second Amendment demonstrated that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms. Alameda County's zoning ordinance therefore survived constitutional scrutiny.

         Concurring, Judge Owens joined all but Part II.D of the majority opinion. In Judge Owens' view, there was no need to decide whether the Second Amendment guarantees the right to sell firearms because the ordinance at issue here fell within that category of presumptively lawful regulatory measures, and plaintiffs therefore could not state a viable Second Amendment claim.

         Concurring in part and dissenting in part, Judge Tallman concurred in the majority's decision to affirm the dismissal of the Second Amendment facial challenge. He dissented from the dismissal of the constitutional challenge as applied to plaintiffs, stating that the majority's analysis of the Second Amendment challenge to locating a full-service gun shop in an unincorporated area of Alameda County substantially interfered with the right of its customers to keep and bear arms.

         Dissenting, Judge Bea stated that neither the historical evidence nor the language of District of Columbia v. Heller, 554 U.S. 570 (2008) supported the majority's conclusion that the Second Amendment offers no protection against regulations on the sale of firearms.

          OPINION

          BERZON, Circuit Judge

         The County of Alameda seeks to preserve the health and safety of its residents by (1) requiring firearm retailers to obtain a conditional use permit before selling firearms in the County and (2) prohibiting firearm sales near residentially zoned districts, schools and day-care centers, other firearm retailers, and liquor stores. The individual plaintiffs in this case, John Teixeira, Steve Nobriga, and Gary Gamaza (collectively, "Teixeira"), wished to open a gun shop but were denied a conditional use permit because the proposed location of their gun shop fell within a prohibited zone. Teixeira challenges the County's zoning ordinance, alleging that by restricting his ability to open a new, full-service gun store, the ordinance infringes on his Second Amendment rights, as well as those of his potential customers.

         Teixeira has not, however, plausibly alleged that the County's ordinance impedes any resident of Alameda County who wishes to purchase a firearm from doing so. Accordingly, he has failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers. And, we are convinced, Teixeira cannot state a Second Amendment claim based solely on the ordinance's restriction on his ability to sell firearms. A textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms. Alameda County's zoning ordinance thus survives constitutional scrutiny.

         I. Background

         A.

         In the fall of 2010, Teixeira, Nobriga, and Gamaza formed a partnership, Valley Guns and Ammo, with the intention of opening a gun store in Alameda County, California. After conducting local market research among gun enthusiasts, Teixeira concluded that there was a demand for a full service gun store in an unincorporated area of Alameda County called San Lorenzo, near the incorporated city of San Leandro. In response to this demand, Teixeira intended to open a specialty shop that would sell new and used firearms and ammunition and would also provide gun repairs, gun smithing, appraisals, and training and certification in firearm safety.

         Teixeira contacted the Alameda County Planning Department for information as to any land use or other permits necessary to open a gun store in unincorporated areas of the County.[1] The Planning Department informed Teixeira that because he intended to sell firearms, he would need to obtain a Conditional Use Permit pursuant to Alameda County Ordinance Sections 17.54.130 et seq. Conditional Use Permits are required for certain land uses and are granted after a special review in which the County determines whether or not the proposed business (1) is required by public need; (2) is properly related to other land uses and transportation and service facilities in the area; (3) if permitted, will materially and adversely affect the health or safety of persons residing or working in the vicinity; and (4) will be contrary to the specific performance standards established for the area. Alameda Cty., Cal., Code § 17.54.130.

         The County informed Teixeira that to receive a Conditional Use Permit for his proposed gun store, he also had to comply with Alameda County Ordinance Section 17.54.131 (the "Zoning Ordinance"). That ordinance requires, among other things, that businesses selling firearms in unincorporated areas of the County be located at least five hundred feet away from any of the following: schools, day care centers, liquor stores or establishments serving liquor, other gun stores, and residentially zoned districts.[2]

         Based on this guidance, Teixeira identified a suitable rental property at 488 Lewelling Boulevard in unincorporated Alameda County.[3] Teixeira obtained a survey that showed, based on door-to-door measurements, [4] that the property was more than 500 feet from any disqualifying property under the Zoning Ordinance. Teixeira began arranging with the landlord to lease the Lewelling Boulevard property and to make the modifications necessary to transform the space into a gun store compliant with all state and federal regulations.

         Teixeira then applied to the Alameda County Community Development Agency for a Conditional Use Permit for his planned store. Staff of the Alameda County Community Development Agency Planning Department ("Planning Department") prepared a report for the West County Board of Zoning Adjustments ("Zoning Board") on Teixeira's application. The staff report made the following findings: there was a public need for a licensed firearms dealer; the proposed use was compatible with other land uses and transportation in the area; and a gun shop at the proposed site would not adversely affect the health or safety of persons living and working in the vicinity. The staff report also found, however, that the site of the proposed gun shop did not satisfy the Zoning Ordinance's distance requirements, because it was approximately 446 feet from two residential properties in different directions. The staff report's distance calculation was based on measurement from the closest exterior wall of the proposed gun shop to the property lines of the disqualifying properties. The staff report thus recommended denying Teixeira's permit application.

         The Zoning Board held a public hearing on Teixeira's Conditional Use Permit application. Teixeira appeared at the hearing and offered testimony in support of his application; neighborhood residents also appeared, some testifying in support of the application and others in opposition.

         After the hearing, the Planning Department issued a revised staff report. That report acknowledged the ambiguity in the Zoning Ordinance regarding how the 500 feet should be measured for the purpose of determining compliance. The report nevertheless concluded that the proposed gun store location was less than 500 feet from the property line of the closest residentially zoned district, whether measured from the exterior wall, front door, or property line of the proposed gun shop.[5] The Planning Department staff therefore again recommended denying Teixeira a Conditional Use Permit and variance.

         Notwithstanding this recommendation, the Zoning Board passed a resolution granting Teixeira a variance from the Zoning Ordinance and approving his application for a Conditional Use Permit. The Zoning Board concluded that a gun shop at the proposed location would not be detrimental to the public welfare and warranted a variance in light of the physical buffer created by a major highway between the proposed site and the nearest residential district. The Zoning Board also determined that there was a public need for a licensed firearms retailer in the neighborhood.

         Shortly after the County granted Teixeira's permit application, the San Lorenzo Village Homes Association filed an appeal challenging the Zoning Board's resolution. Acting through three of its members, the Board of Supervisors voted to sustain the appeal, overturning the Zoning Board's decision and revoking the Conditional Use Permit.

         After the permit was revoked, Teixeira alleges, he was unable to identify any property in unincorporated Alameda County that satisfied the ordinance's 500-foot rule and was otherwise suitable-in terms of location, accessibility, building security, and parking-for a gun shop. Teixeira later commissioned a study to analyze the practical implications of the Zoning Ordinance for opening a gun store in unincorporated areas of the County. The study found it "virtually impossible to open a gun store in unincorporated Alameda County" that would comply with the 500-foot rule "due to the density of disqualifying properties."[6]

         B.

         Joined by institutional plaintiffs The Calguns Foundation, Inc., Second Amendment Foundation, and California Association of Federal Firearms Licensees, Inc., Teixeira filed a complaint in federal district court challenging the Board of Supervisors' decision to deny him a variance and Conditional Use Permit. The challenge was premised on due process, equal protection, and Second Amendment grounds, and alleged violations of Teixeira's own rights as well as those of his prospective customers. Alameda County filed a motion to dismiss the complaint for failure to state a claim, which the district court granted, with leave to amend; Teixeira also filed a motion for a preliminary injunction, which the district court denied. The plaintiffs thereupon filed an amended complaint, which the district court likewise dismissed for failure to state a claim, this time without leave to amend.

         A three-judge panel of this court affirmed the district court's dismissal of Teixeira's Equal Protection Clause claims but reversed the district court's dismissal of Teixeira's Second Amendment Claims, remanding for further proceedings.[7] See Teixeira v. County of Alameda, 822 F.3d 1047 (9th Cir. 2016). Judge Silverman dissented from the Second Amendment holding. See id. at 1064 (Silverman, J., dissenting).

         II.

         A.

         The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. As interpreted in recent years by the Supreme Court, the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." District of Columbia v. Heller, 554 U.S. 570, 635 (2008); see also McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) ("[O]ur central holding in Heller [was] that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.").

         After Heller, this court and other federal courts of appeals have held that the Second Amendment protects ancillary rights necessary to the realization of the core right to possess a firearm for self-defense. For example, we held in Jackson v. City and County of San Francisco, 746 F.3d 953, 968 (9th Cir. 2014), cert. denied, 135 S.Ct. 2799 (2015), that a prohibition on the sale of certain types of ammunition burdened the core Second Amendment right and so was subject to heightened scrutiny. Jackson involved a challenge by handgun owners to a San Francisco ordinance that prohibited the sale of particularly lethal ammunition, including hollow-point ammunition, within the City and County of San Francisco. Id. at 958. We recognized in Jackson that, although the Second Amendment "does not explicitly protect ammunition . . ., without bullets, the right to bear arms would be meaningless." Id. at 967. Jackson thus held that "'the right to possess firearms for protection implies a corresponding right' to obtain the bullets necessary to use them." Id. (quoting Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011)).[8]

         Similarly, in Ezell v. City of Chicago ("Ezell I"), the Seventh Circuit held that an ordinance banning firearm ranges within the city of Chicago was not categorically unprotected by the Second Amendment and so demanded constitutional scrutiny. 651 F.3d at 704-06. Ezell I held that the Chicago ordinance, coupled with a law requiring range training as a prerequisite to obtaining a firearm permit, encroached on "the right to maintain proficiency in firearms use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense." Id. at 708. This core right to possess firearms, Ezell I explained, "wouldn't mean much without the training and practice that make it effective." Id. at 704. Ezell I relied on Heller, which quoted an 1868 treatise on constitutional law observing that "to bear arms implies something more than the mere keeping; it implies the learning to handle and use them." Id. (quoting Heller, 554 U.S. at 617-18).

         As with purchasing ammunition and maintaining proficiency in firearms use, the core Second Amendment right to keep and bear arms for self-defense "wouldn't mean much" without the ability to acquire arms. Id.; see Jackson, 746 F.3d at 967. The Tennessee Supreme Court cogently observed in 1871, interpreting that state's constitution, that "[t]he right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair." Andrews v. State, 50 Tenn. (3 Heisk.) 165, 178 (1871); see also Ill. Ass'n of Firearms Retailers v. City of Chicago, 961 F.Supp.2d 928, 930 (N.D. Ill. 2014) (emphasis in original) ("[T]he right to keep and bear arms for self-defense under the Second Amendment . . . must also include the right to acquire a firearm, although that acquisition right is far from absolute . . . .").

         We need not define the precise scope of any such acquisition right under the Second Amendment to resolve this case. Whatever the scope of that right, Teixeira has failed to state a claim that the ordinance impedes Alameda County residents from acquiring firearms.

         B.

         "[V]endors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function." Craig v. Boren, 429 U.S. 190, 195 (1976). Teixeira, as the would-be operator of a gun store, thus has derivative standing to assert the subsidiary right to acquire arms on behalf of his potential customers. See also Carey v. Population Servs., Int'l, 431 U.S. 678, 683 (1977); Ezell I, 651 F.3d at 693, 696 (supplier of firing-range facilities had standing to challenge Chicago ordinance banning firing ranges on behalf of potential customers).

         But Teixeira did not adequately allege in his complaint that Alameda County residents cannot purchase firearms within the County as a whole, or within the unincorporated areas of the County in particular. To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege in the complaint "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We assume the factual allegations in Teixeira's complaint to be true. See id. But "[c]onclusory allegations and unreasonable inferences . . . are insufficient to defeat a motion to dismiss." Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).

         The operative complaint does not meet this standard with regard to whether residents can purchase guns in the County-or in unincorporated areas of the County-if they choose to do so.[9] Teixeira alleges in general terms that the gun store he plans to open is necessary to enable his potential customers to exercise their Second Amendment rights. The complaint also states that the zoning ordinance amounts to a complete ban on new gun stores in unincorporated Alameda County because, according to a study commissioned by Teixeira, "there are no parcels in the unincorporated areas of Alameda County which would be available for firearm retail sales."

         Whatever the standard governing the Second Amendment protection accorded the acquisition of firearms, [10] these vague allegations cannot possibly state a claim for relief under the Second Amendment. The exhibits attached to and incorporated by reference into the complaint, which we may consider, see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003), demonstrate that Alameda County residents may freely purchase firearms within the County.[11] As of December 2011, there were ten gun stores in Alameda County.[12] Several of those stores are in the non-contiguous, unincorporated portions of the County. In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira's planned store, at a Big 5 Sporting Goods store.

         Ezell v. City of Chicago ("Ezell II"), 846 F.3d 888 (7th Cir. 2017), involved an entirely different situation with regard to the availability of a gun-related service to county residents. Chicago's zoning regulations at issue in that case so "severely limit[ed] where shooting ranges may locate" that "no publicly accessible shooting range yet exist[ed] in Chicago." Id. at 894. (emphasis added). As a result, the zoning regulations, "though not on their face an outright prohibition of gun ranges, nonetheless severely restrict the right of Chicagoans to train in firearm use at a range." Id. No analogous restriction on the ability of Alameda County residents to purchase firearms can be inferred from the complaint in this case.

         The closest Teixeira comes to stating a claim that his potential customers' Second Amendment rights have been, or will be, infringed is his allegation that the ordinance places "a restriction on convenient access to a neighborhood gun store and the corollary burden of having to travel to other, more remote locations to exercise their rights to acquire firearms and ammunition in compliance with the state and federal laws." But potential gun buyers in Alameda County generally, and potential gun buyers in the unincorporated areas around San Lorenzo in particular, do have access to a local gun store just 600 feet from where Teixeira proposed to locate his store. And if the Big 5 Sporting Goods store does not meet their needs, they can visit any of the nine other gun stores in the County as a whole, including the three other gun stores in the unincorporated parts of the County.[13]

         In any event, gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained. See Second Amendment Arms v. City of Chicago, 135 F.Supp.3d 743, 754 (N.D. Ill. 2015) ("[A] slight diversion off the beaten path is no affront to . . . Second Amendment rights."); cf. Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292, 2313 (2016), as revised (June 27, 2016) ("[I]ncreased driving distances do not always constitute an 'undue burden.'"); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004) (holding that a zoning ordinance that limited churches and synagogues to residential districts did not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) because "walking a few extra blocks" is not a substantial burden).

         We recognized a similar principle in Jackson. After recognizing that San Francisco's ban on the sale of certain particularly lethal ammunition did regulate conduct within the scope of the Second Amendment, we held that the regulation burdened the core right only indirectly, in part because handgun owners in San Francisco could freely obtain the banned ammunition in other jurisdictions and keep it for use within city limits. Jackson, 746 F.3d at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.