Robert Mahoney, et al v. City of Seattle, et al

Filing

FILED OPINION (CARLOS T. BEA, N. RANDY SMITH and WILLIAM Q. HAYES) We take judicial notice of and reference the revised UF Policy in Appellees request for judicial notice (Dkt. No. 30-2 at 28 85), as well as the docket sheet from United States v. City of Seattle, Case No. 12-cv- 01282-JLR (W.D. Wash.). See Reyn s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) ( We may take judicial notice of court filings and other matters of public record. ). We deny the City of Seattle s second request for judicial notice of a subsequent revised UF Policy on the grounds that the document remains pending court approval. AFFIRMED; Judge: WQH Authoring. FILED AND ENTERED JUDGMENT. [10585532]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT MAHONEY, Officer; SJON C.
STEVENS, Officer; CLIFF BORJESON,
Officer; CHRISTOPHER MYERS,
Officer; BRIDGET HILLAN, Officer;
LANCE BASNEY, Officer;
SALVATORE DITUSA, Officer;
CLARKE D. CHASE, Officer; JOSEPH
STANKOVICH, Officer; WELDON C.
BOYLAND, Officer; JOHN L. FARRAR,
Officer; DALE W. UMPLEBY, Officer;
RICHARD A. MCAULIFFE, Officer;
GEORGE BASELEY, Officer; DAVID
M. HARRINGTON, Officer; HENRY
FELDMAN, Officer; TERRY WHALEN,
Officer; GILLES MONTARON,
Officer; ROBERT STEVENSON,
Officer #5859; JOSHUA GOODWIN,
Officer; RYAN KANNARD, Officer;
NATHAN LEMBERG, Officer; JEFF
MITCHELL, Officer; ROBERT B.
BROWN, Officer; ERNEST T. HALL,
Officer; ROBERT BURK, Officer;
ROBERT BEATTY, Officer; TOMAS
TRYKAR, Officer; BRIEN
ESCALANTE, Officer; KAREN G. PIO,
Officer; MICHAEL GONZALEZ,
Officer; STEVE KIM, Officer; ENNIS
ROBERSON, Officer; LEROY
OUTLAW, Officer; KIERAN BARTON,

No. 14-35970
D.C. No.
2:14-cv-00794MJP

OPINION

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2

MAHONEY V. CITY OF SEATTLE

Officer; JONATHAN REESE, Officer;
EUGENE SCHUBECK, Officer #6696;
SEAN HAMLIN, Officer; SHANNON
WALDORF, Officer; JEFFREY
SWENSON, Officer; TABITHA
SEXTON, Officer #7430; MICHAEL
SPAULDING, Officer #7491; STEVEN
STONE, Officer #7540; LILIYA A.
NESTERUK, Officer; TODD M.
NELSON, Officer; TIMOTHY JONES,
Officer; TIMOTHY J. WEAR, Officer;
THERESA EMERICK, Officer #5002;
ARIEL VELA, Sergeant; MICHAEL A.
LARNED, Officer #6955; DEREK B.
NORTON, Officer; JASON DEWEY,
Officer; DAVID WHITE, Officer;
TRENT SCHROEDER, Officer; AUDI
A. ACUESTA; STEVE CLARK, Officer;
STEVEN L. BERG, Officer; ERIK
JOHNSON, Officer; VERNON KELLEY,
Officer; SHELLY SAN MIGUEL,
Officer; CHRISTOPHER J. ANDERSON,
Officer; SUZANNE M. PARTON,
Officer; ERIC F. WHITEHEAD,
Officer; ALAN RICHARDS, Officer;
RON WILLIS, Officer; A. SHEHEEN,
Officer; RANDALL HIGA, Officer;
TIM OWENS, Officer; TYLER GETTS,
Officer #7537; ADAM ELIAS,
Officer; JON EMERICK, Officer
#4326; LOUIS CHAN, Officer; PAUL
PENDERGRASS, Sergeant; AJ MARKS,
Officer; RON MARTIN, Sergeant;

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MAHONEY V. CITY OF SEATTLE
RUSTY L. LESLIE, Officer; TJ SAN
MIGUEL, Officer; JEFFREY C. PAGE,
Officer; RYAN ELLIS, Officer; JACK
BAILEY, Officer; ALFRED RI
WARNER, Officer #6162; MICHAEL
R. WASHINGTON, Officer; NINA M.
JONES, Officer #7567; ANTHONY
JONES REYNOLDS, Officer; RICHARD
HEINTZ, Officer; CURTIS GERRY,
Officer; ADOLPH TORRESCANO,
Officer; CURT E. WILSON, Officer;
JAMES G. THOMSEN, Officer;
RICHARD W. PRUITT, Officer #5346;
DONALD L. WATERS, Detective
#6287; ANTHONY J. REYNOLDS,
Officer; JONARD A. LEGASPI, Officer
#6231,
Plaintiffs-Appellants,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Defendant,
and
CITY OF SEATTLE, including the
Seattle Police Department, the
Seattle Police Monitor Team, and the
Seattle Attorney’s Office; ED
MURRAY, individually and in his
official capacity, Mayor, City of

3

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MAHONEY V. CITY OF SEATTLE

Seattle; PETER HOLMES, individually
and in his official capacity, Seattle’s
City Attorney; MERRICK BOBB,
individually and in his offical
capacity, Seattle Police Monitor,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted May 8, 2017
Seattle, Washington
Filed September 19, 2017
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
and William Q. Hayes,* District Judge.
Opinion by Judge Hayes

*

The Honorable William Q. Hayes, United States District Judge for
the Southern District of California, sitting by designation.

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MAHONEY V. CITY OF SEATTLE

5

SUMMARY**

Second Amendment
The panel affirmed the district court’s judgment
upholding the use of force policy adopted by the City of
Seattle; and rejected the claims under 42 U.S.C. § 1983 of
plaintiffs, a group of approximately 125 Seattle Police
Department (“SPD”) officers who allege that Seattle violated
the Second Amendment right of police officers to use
firearms for the core lawful purpose of self-defense.
The panel applied a two-step inquiry to determine
whether the challenged law or regulation violated the Second
Amendment. At step one, the panel assumed without deciding
that the use of force policy was subject to Second
Amendment protection. At step two, the panel held that the
use of force policy recognized that the plaintiffs could use
their department-issued firearms in self-defense in an
encounter with a suspect, and concluded that the use of force
policy did not impose a substantial burden on plaintiffs’ right
to use a firearm for the purpose of lawful self-defense. The
panel also concluded that the use of force policy was not such
a severe restriction that it amounted to a destruction of the
Second Amendment right. The panel, therefore, applied the
intermediate level of constitutional scrutiny to determine
whether the policy violated the Second Amendment.
Applying intermediate scrutiny, the panel concluded that
the use of force policy was constitutional under the Second
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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MAHONEY V. CITY OF SEATTLE

Amendment because there was a reasonable fit between the
policy of Seattle’s important government interest in ensuring
the safety of both the public and its police officers.
The panel also affirmed the district court’s dismissal of
plaintiffs’ substantive due process and equal protection
claims.

COUNSEL
Athan E. Tramountanas (argued), Short Cressman & Burgess
PLLC, Seattle, Washington; Lisa Ann Battalia, Law Office of
Lisa Ann Battalia, Bethesda, Maryland; for PlaintiffsAppellants.
Gregory Colin Narver (argued), Assistant City Attorney;
Peter S. Holmes, City Attorney; City Attorney’s Office,
Seattle, Washington; for Defendants-Appellees.

OPINION
HAYES, District Judge:
We must decide whether the use of force policy adopted
by the City of Seattle violates the Second Amendment right
of police officers to use firearms for the core lawful purpose
of self-defense. We conclude that the policy survives
intermediate scrutiny and is, therefore, constitutional. We
affirm the judgment of the district court.

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MAHONEY V. CITY OF SEATTLE

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FACTUAL AND PROCEDURAL BACKGROUND
In 2012, the United States brought a civil action in the
United States District Court for the Western District of
Washington against the City of Seattle, alleging that the
Seattle Police Department (“SPD”) engaged in a pattern or
practice of excessive use of force. United States v. City of
Seattle, Case No. 2:12-cv-01282-JLR (W.D. Wash.).
Pursuant to a settlement agreement between the parties, the
United States and the City of Seattle worked with a courtappointed monitor to produce a Use of Force Policy (“UF
Policy”) that would apply to SPD officers’ use of approved
department firearms while on duty.
On December 17, 2013, United States District Judge
James L. Robart issued an order approving the policy agreed
to by the parties.1 The UF Policy2 states, in part, that
“[o]fficers shall only use objectively reasonable force,
proportional to the threat or urgency of the situation, when
necessary, to achieve a law-enforcement objective.” The UF
Policy provides a set of factors that officers must consider to
determine whether a proposed use of force is objectively
reasonable, necessary, and proportional to the threat at issue.

1

The order is styled as an “Order Approving Consensus Use of Force
Policies” submitted by the court-appointed monitor.
2

We take judicial notice of and reference the revised UF Policy in
Appellees’ request for judicial notice (Dkt. No. 30-2 at 28–85), as well as
the docket sheet from United States v. City of Seattle, Case No. 12-cv01282-JLR (W.D. Wash.). See Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,
442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of
court filings and other matters of public record.”). We deny the City of
Seattle’s second request for judicial notice of a subsequent revised UF
Policy on the grounds that the document remains pending court approval.

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MAHONEY V. CITY OF SEATTLE

Although the UF Policy requires officers to consider those
factors before using a firearm, the UF Policy also states that
officers must consider those factors only “[w]hen safe under
the totality of circumstances and time and circumstances
permit[.]” The UF Policy also requires officers to use deescalation tactics to reduce the need for force only “[w]hen
safe and feasible under the totality of circumstances[.]”
Appellants, a group of approximately 125 SPD officers,
subsequently brought this action pursuant to 42 U.S.C. § 1983
against the City of Seattle, including SPD and other related
entities, to challenge the constitutionality of the UF Policy.
Appellants brought claims under the Second, Fourth, Fifth,
and Fourteenth Amendments, alleging that the UF Policy
unreasonably restricts their right to use department-issued
firearms for self-defense. On October 17, 2014, the district
court granted the motion to dismiss filed by the City of
Seattle, concluding that the UF Policy did not burden conduct
protected by the Second Amendment. Mahoney v. Holder,
62 F. Supp. 3d 1215, 1222 (W.D. Wash. 2014). Appellants
timely appealed.
STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). See
N.M. State Inv. Council v. Ernst & Young LLP, 641 F.3d
1089, 1094 (9th Cir. 2011). We review de novo all
constitutional rulings. See Wilson v. Lynch, 835 F.3d 1083,
1090 (9th Cir. 2016). We may affirm on any basis supported
by the record below. See Bill v. Brewer, 799 F.3d 1295, 1299
(9th Cir. 2015).

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When evaluating a motion to dismiss under Rule 12(b)(6),
we accept the well-pleaded factual allegations of a complaint
as true and construe all inferences in favor of the nonmoving
party. Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d
858, 864 (9th Cir. 2016). Dismissal under Rule 12(b)(6) is
warranted if a complaint fails “to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “Conclusory allegations of law . . . are
insufficient to defeat a motion to dismiss.” Lee v. City of Los
Angeles, 250 F.3d 668, 679 (9th Cir. 2001).
DISCUSSION
I. Second Amendment Precedent and Two-Step Inquiry
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. In District of Columbia v.
Heller, the Supreme Court concluded that District of
Columbia statutes that required residents to keep firearms in
the home unloaded and disassembled and prohibited the
possession of handguns in the home violated the Second
Amendment. 554 U.S. 570, 574–75, 635 (2008). The Court
recognized that “the inherent right of self-defense has been
central to the Second Amendment right.” Id. at 628. The
Court concluded that the statutes at issue “ma[de] it
impossible for citizens to use [firearms] for the core lawful
purpose of self-defense and [were] hence unconstitutional.”
Id. at 630. The Court subsequently applied the right to keep
and bear arms for self-defense under the Second Amendment
against the States through the Fourteenth Amendment in
McDonald v. City of Chicago, 561 U.S. 742 (2010).

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MAHONEY V. CITY OF SEATTLE

Following Heller and McDonald, we “adopt[ed a] twostep . . . inquiry” to determine whether a challenged law or
regulation violates the Second Amendment. United States v.
Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). The two-step
inquiry “reflects the Supreme Court’s holding in Heller that,
while the Second Amendment protects an individual right to
keep and bear arms, the scope of that right is not unlimited.”
Id. A majority of our sister circuits have adopted this twostep inquiry to analyze Second Amendment claims. See
Silvester v. Harris, 843 F.3d 816, 820–21 (9th Cir. 2016).
At the first step, courts ask whether “the challenged law
burdens conduct protected by the Second Amendment[.]”
Chovan, 735 F.3d at 1136. If a court answers this question in
the affirmative, “the regulation is subject to Second
Amendment protection (i.e., the regulation is neither outside
the historical scope of the Second Amendment, nor
presumptively lawful), [and] the court then proceeds to the
second step of the inquiry to determine the appropriate level
of scrutiny to apply.” Silvester, 843 F.3d at 821 (citing
Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 960
(9th Cir. 2014)).
II. Step One: Whether the UF Policy Burdens Conduct
Protected by the Second Amendment
To determine whether the UF Policy burdens conduct
protected by the Second Amendment, we ask whether the UF
Policy “is one of the ‘presumptively lawful regulatory
measures’ identified in Heller, or whether the record includes
persuasive historical evidence establishing that the regulation
at issue imposes prohibitions that fall outside the historical

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MAHONEY V. CITY OF SEATTLE

11

scope of the Second Amendment[.]”3 Jackson, 746 F.3d at
960 (quoting Heller, 554 U.S. at 627 n.26).
“Heller indicated that the Second Amendment does not
preclude certain ‘longstanding prohibitions’ and
‘presumptively lawful regulatory measures,’ such as
‘prohibitions on carrying concealed weapons,’ ‘prohibitions
on the possession of firearms by felons and the mentally ill,’
‘laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings,’ ‘laws imposing
conditions and qualifications on the commercial sale of
arms,’ and prohibitions on ‘the carrying of “dangerous and
unusual weapons,”’ referring to weapons that were not ‘in
common use at the time’ of the enactment of the Second
Amendment.” Id. at 959 (quoting Heller, 554 U.S. at 626–27,
627 n.26). In this case, the UF Policy—an employer policy
that regulates a police officer’s use of a department-issued
firearm while on duty—does not resemble any of the
“presumptively lawful” regulations recognized in Heller.
554 U.S. at 627 n.26.
Next, we examine the record to determine “whether there
is persuasive historical evidence showing that the regulation
does not impinge on the Second Amendment right as it was
historically understood.” Silvester, 843 F.3d at 821. In this
case, the parties have not provided any “persuasive historical
evidence” demonstrating that regulating police officers’ use

3

Appellants assert that the UF Policy infringes on their Second
Amendment right to self-defense and then frame the historical inquiry
around this right. The scope of Appellants’ inquiry is too broad. Instead,
we must examine whether restrictions on a government employee’s use of
a government-issued firearm in the line of duty fall outside the historical
scope of the Second Amendment.

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MAHONEY V. CITY OF SEATTLE

of department-issued firearms is historically longstanding or
falls outside the historical scope of the Second Amendment.
Jackson, 746 F.3d at 960, 963. We do not purport to rule
definitively on whether, historically, officers have been
restricted in the use of their government-issued firearms
while acting within the scope of their employment. However,
“[b]ecause of the lack of historical evidence in the record
before us,” see Chovan, 735 F.3d at 1137 (internal quotation
mark and citation omitted), “we assume, without deciding,
that the [UF Policy] burdens conduct falling within the scope
of the Second Amendment.” Bauer v. Becerra, 858 F.3d
1216, 1221 (9th Cir. 2017).
Because the UF Policy resembles none of the
presumptively lawful measures identified in Heller, and the
parties have adduced no evidence that the UF Policy imposes
a restriction on conduct that falls outside the historical scope
of the Second Amendment right to use a firearm for selfdefense, we assume the UF Policy “is subject to Second
Amendment protection” and we proceed to the second step of
the inquiry.4 Silvester, 843 F.3d at 821.
III.

Step Two: Applying Constitutional Scrutiny to the
UF Policy
A. Determining the Level of Scrutiny

To ascertain the proper level of constitutional scrutiny to
apply to the UF Policy at the second step, we must consider:

4

The district court concluded that the UF Policy did not burden
conduct protected by the Second Amendment, and therefore did not
proceed to the second step of the inquiry. See Mahoney, 62 F. Supp. 3d
at 1221–22.

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MAHONEY V. CITY OF SEATTLE

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“(1) how close the challenged law comes to the core of the
Second Amendment right, and (2) the severity of the law’s
burden on that right.” Silvester, 843 F.3d at 821 (citing
Jackson, 746 F.3d at 960–61). A restriction “that implicates
the core of the Second Amendment right and severely
burdens that right warrants strict scrutiny[,]” while a
restriction that “‘does not implicate a core Second
Amendment right, or does not place a substantial burden on
the Second Amendment right’” warrants intermediate
scrutiny. Id. (quoting Jackson, 746 F.3d at 961).
In addressing the extent to which the UF Policy burdens
Appellants’ constitutional right under the Second
Amendment, we begin with Heller’s holding that the Second
Amendment protects the right of citizens to use a firearm “for
the core lawful purpose of self-defense[.]” Heller, 554 U.S.
at 630. When evaluating the constitutional claim of a
government employee, however, the Supreme Court instructs
us to balance the rights of the employee “against the realities
of the employment context.” Engquist v. Or. Dep’t of Agr.,
553 U.S. 591, 600 (2008).
In Engquist, the Supreme Court affirmed the dismissal of
an equal protection challenge to the decision of the Oregon
Department of Agriculture to terminate an employee “in a
seemingly arbitrary or irrational manner.” Id. at 605. The
Court stated, “We have long held the view that there is a
crucial difference, with respect to constitutional analysis,
between the government exercising ‘the power to regulate or
license, as lawmaker,’ and the government acting ‘as
proprietor, to manage [its] internal operation.’” Id. at 598
(quoting Cafeteria & Rest. Workers Union v. McElroy,
367 U.S. 886, 896 (1961)). “[I]n striking the appropriate
balance, we consider whether the asserted employee right

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MAHONEY V. CITY OF SEATTLE

implicates the basic concerns of the relevant constitutional
provision, or whether the claimed right can more readily give
way to the requirements of the government as employer.” Id.
at 600. The Court concluded that the “government’s interest
in achieving its goals as effectively and efficiently as possible
is elevated from a relatively subordinate interest when it acts
as sovereign to a significant one when it acts as employer.”
Id. at 598–99 (quoting Waters v. Churchill, 511 U.S. 661, 675
(1994) (plurality opinion)); see also Nordyke v. King,
681 F.3d 1041, 1044–45 (9th Cir. 2012) (en banc)
(concluding that an ordinance regulating “the sale of firearms
. . . only minimally, and only on County property” was
constitutional under the Second Amendment, while citing
with approval the Engquist lawmaker/proprietor distinction);
Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126–27 (10th
Cir. 2015) (concluding that a regulation prohibiting the
possession of firearms on Postal Service property was
constitutional under the Second Amendment, recognizing that
“[t]he government often has more flexibility to regulate when
it is acting as a proprietor (such as when it manages a post
office) than when it is acting as a sovereign (such as when it
regulates private activity unconnected to a government
service)”).
In this case, the UF Policy regulates Appellants’ use of
department-issued firearms while acting in the course and
scope of their official duties as police officers. The firearms
regulated by the UF Policy are issued to Appellants by the
City of Seattle in its capacity as proprietor. The UF Policy
was adopted by the City of Seattle as an employer to regulate
the conduct of its police officers. Because the City of Seattle
has a significant interest in regulating the use of departmentissued firearms by its employees, we conclude that the
application of intermediate scrutiny to the UF Policy

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MAHONEY V. CITY OF SEATTLE

15

appropriately places the burden on the City of Seattle to
justify placing restrictions on any Second Amendment right
of its employees, while also giving the City the flexibility to
act as an employer.
The second factor in determining what level of
constitutional scrutiny to apply to the UF Policy requires us
to consider the severity of the UF Policy’s burden on the right
of citizens to use a firearm for the core lawful purpose of selfdefense. See Chovan, 735 F.3d at 1138. “This court has
explained that laws which regulate only the ‘manner in which
persons may exercise their Second Amendment rights’ are
less burdensome than those which bar firearm possession
completely.” Silvester, 843 F.3d at 827 (quoting Chovan,
735 F.3d at 1138). However, to determine the severity of the
burden on the Second Amendment right, we look closely at
the restriction on the manner of firearm possession to ensure
it is not “such a severe restriction on the core right of selfdefense that it ‘amounts to a destruction of the [Second
Amendment] right[.]’” Jackson, 746 F.3d at 961 (quoting
Heller, 554 U.S. at 629); see also Peruta v. Cty. of San Diego,
824 F.3d 919, 950 (9th Cir. 2016) (en banc) (Callahan, J.,
dissenting) (courts should consider Second Amendment
challenges to firearm restrictions in “context” to ensure the
restrictions are not “tantamount to complete bans on the
Second Amendment right to bear arms outside the home for
self-defense”), cert. denied, — U.S. —, 137 S. Ct. 1995 (June
26, 2017).
In this case, the UF Policy applies to Appellants’ use of
department-issued firearms in the course and scope of their
official duties. The UF Policy states that a police officer
“may draw or exhibit a firearm in the line of duty when the
officer has reasonable cause to believe it may be necessary

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MAHONEY V. CITY OF SEATTLE

for his or her own safety or for the safety of others[.]” The
UF Policy states that prior to using physical force during an
incident with a subject, Appellants “shall consider whether a
subject’s lack of compliance is a deliberate attempt to resist
or an inability to comply based on” a variety of factors,
including the subject’s possible medical conditions, mental
impairment, developmental disability, drug interaction, and
behavioral crisis. The UF Policy requires that “when safe
under the totality of the circumstances and time and
circumstances permit, officers shall use de-escalation tactics
in order to reduce the need for force[.]”
The UF Policy explicitly recognizes that Appellants may
use their department-issued firearms in self-defense in an
encounter with a suspect—including the use of deadly force
with a firearm. The UF Policy states that “[d]eadly force may
only be used in circumstances where threat of death or serious
physical injury to the officer or others is imminent[,]” and
recognizes that “sometimes the use-of-force is
unavoidable[.]” As a result, the UF Policy does not impose
a substantial burden on Appellants’ right to use a firearm for
the purpose of lawful self-defense. See Jackson, 746 F.3d at
968 (concluding that a statute prohibiting the sale of hollowpoint bullets did not “place a substantial burden on the
Second Amendment right” because the statute “limits only
the manner in which a person may exercise Second
Amendment rights by making it more difficult to purchase
certain types of ammunition.”). Thus, the nature of the
burden imposed by the UF Policy on Appellants’ Second
Amendment right to use a firearm for the lawful purpose of
self-defense favors the application of intermediate scrutiny.
Accordingly, we conclude that the UF Policy does not
impose a substantial burden on the Second Amendment right

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MAHONEY V. CITY OF SEATTLE

17

to use a firearm for the core lawful purpose of self-defense.
We also conclude that the UF Policy is not “such a severe
restriction on the core right of self-defense that it ‘amounts to
a destruction of the [Second Amendment] right[.]’” Jackson,
746 F.3d at 961 (quoting Heller, 554 U.S. at 629). Therefore,
we apply intermediate scrutiny to determine whether the UF
Policy violates the Second Amendment. See Silvester,
843 F.3d at 823 (“There is accordingly near unanimity in the
post-Heller case law that when considering regulations that
fall within the scope of the Second Amendment, intermediate
scrutiny is appropriate.”).
B. Application of Intermediate Scrutiny
“In the context of Second Amendment challenges,
intermediate scrutiny requires: ‘(1) the government’s stated
objective to be significant, substantial, or important; and (2) a
reasonable fit between the challenged regulation and the
asserted objective.’” Fyock v. Sunnyvale, 779 F.3d 991, 1000
(9th Cir. 2015) (quoting Chovan, 735 F.3d at 1139).
At the first step, in order to determine whether the
government’s interest is significant, substantial, or important,
we first define the government’s objective. Jackson,
746 F.3d at 965. In Jackson, we explained that “[i]n
considering a city’s justifications for its ordinance, we do not
impose ‘an unnecessarily rigid burden of proof . . . so long as
whatever evidence the city relies upon is reasonably believed
to be relevant to the problem that the city addresses.’” Id.
(quoting City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 50–52 (1986)).
In this case, the joint findings of fact and conclusions of
law approved by the district judge in the United States v. City

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of Seattle litigation states that the City of Seattle’s goal in
joining the settlement agreement was to “ensure[] that SPD’s
policies [and] procedures . . . are sufficient to prevent . . . a
pattern or practice of constitutional violations.” The section
of the UF Policy titled “Core Principles” states that
Appellants must “use only the force necessary to perform
their duties[,]” and explains that “[a]n officer’s commitment
to public safety includes the welfare of members of the
public, the officer, and fellow officers[.]”
The City of Seattle has the important government interest
of ensuring the safety of both the public and its police
officers. See United States v. Salerno, 481 U.S. 739, 748
(1987) (“[T]he Government’s regulatory interest in
community safety can, in appropriate circumstances,
outweigh an individual’s liberty interest.”); Jackson, 746 F.3d
at 965 (quoting Chovan, 735 F.3d at 1139) (“‘It is selfevident,’ . . . that public safety is an important government
interest.”). The record establishes that the City of Seattle
enacted the UF Policy to address the important government
objective of ensuring public safety and police officer safety.
See Chovan, 735 F.3d at 1140 (“We hold that the government
has met its burden to show that reducing domestic gun
violence is an important government objective.”).
At the second step, we consider whether there is a
reasonable fit between the UF Policy and the City of Seattle’s
asserted objective of ensuring the safety of the public and its
police officers. In determining the degree of fit between the
challenged regulation and its asserted objective, the City of
Seattle is “not required to show that [the UF Policy] is the
least restrictive means of achieving its interest.” Fyock,
779 F.3d at 1000 (citing Jackson, 746 F.3d at 966). To
survive intermediate scrutiny, we must determine whether the

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record shows that the UF Policy “promotes a ‘substantial
government interest that would be achieved less effectively
absent the regulation.’” Id. (quoting Colacurcio v. City of
Kent, 163 F.3d 545, 553 (9th Cir. 1998)).
In this case, the UF Policy states that “[o]fficers shall only
use objectively reasonable force, proportional to the threat or
urgency of the situation, when necessary, to achieve a lawenforcement objective.” The UF Policy also requires that
Appellants use “[d]e-escalation tactics and techniques . . .
when safe and without compromising law enforcement
priorities,” and states that Appellants “shall consider whether
a subject’s lack of compliance is a deliberate attempt to resist
or an inability to comply based on” a variety of factors.
Those provisions advance the City of Seattle’s important
government interest of ensuring the safety of the public by
mandating de-escalation techniques and reducing the
likelihood that a firearm will be drawn or used where such
force is not “objectively reasonable,” “proportional to the
threat or urgency of the situation,” or “necessary to achieve
a law-enforcement objective.”
The UF Policy also advances the City of Seattle’s
important government interest of ensuring the safety of its
police officers. The UF Policy requires Appellants to employ
de-escalation techniques only “[w]hen safe under the totality
of the circumstances and time and circumstances permit.”
Thus, the UF Policy expressly contemplates that de-escalation
techniques will not be feasible in every situation, and even
states that “sometimes, the use of force is unavoidable.” The
UF Policy also provides that Appellants may use deadly force
where an objectively reasonable officer would conclude that
the “threat of death or serious physical injury to the officer or
others is imminent.” These provisions ensure that Appellants

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may use their department-issued firearms to defend
themselves and the public.
In adopting the UF Policy, the City of Seattle drew
“reasonable inference[s]” that the UF Policy would assist in
ensuring the safety of both the public and its police officers.
Jackson, 746 F.3d at 966. The UF Policy advances an
important government interest that would be achieved less
effectively in its absence. See Silvester, 843 F.3d at 829
(concluding that a statute imposing a ten-day waiting period
to purchase firearms on certain individuals was reasonably fit
to state’s public safety objective). Given the City of Seattle’s
important interest in promoting the safety of the public and its
police officers, we determine there is a reasonable fit between
the UF Policy and this significant goal. We conclude that the
UF Policy survives intermediate scrutiny and is, therefore,
constitutional under the Second Amendment. Because we
find the UF Policy is constitutional, we affirm the district
court’s dismissal of the Second Amendment claim.
IV.

The Substantive Due Process and Equal Protection
Claims

We also affirm the district court’s dismissal of the
remaining claims. First, we agree with the district court that
current case law does not support the existence of a
freestanding fundamental right to self-defense outside of the
“the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” Heller, 554 U.S. at 635.
Because precedent does not support recognizing the
fundamental right Appellants’ assert, Appellants’ substantive
due process claim is not a cognizable claim upon which relief
can be granted.

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Second, the district court properly concluded that
Appellants failed to state a cognizable equal protection claim.
Appellants failed to allege facts to support the claim that they
are being denied a fundamental right while others are
permitted to exercise such right, and that there is no valid
justification for the distinction. Further, this claim is not
cognizable under the Equal Protection Clause because it is
“no more than a [Second] Amendment claim dressed in equal
protection clothing[.]” Orin v. Barclay, 272 F.3d 1207, 1213
n.3 (9th Cir. 2001).
CONCLUSION
The City of Seattle has a significant interest in regulating
the use of department-issued firearms by its police officers,
and the UF Policy does not impose a substantial burden on
the Second Amendment right to use a firearm for the core
lawful purpose of self-defense. Therefore, we apply
intermediate scrutiny to determine whether the UF Policy
violates the Second Amendment right of its police officers.
We conclude that the UF Policy is constitutional under the
Second Amendment because there is a reasonable fit between
the UF Policy and the City of Seattle’s important government
interest in ensuring the safety of both the public and its police
officers. We affirm the district court’s dismissal of
Appellants’ Second Amendment claim.
We affirm the ruling of the district court on all other
grounds.
AFFIRMED.