Christopher Anderson et al v. John Scott et al

Filing 57

ORDER #53 DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT #8 AND GRANTING DEFENDANTS MOTION TO DISMISS #13 . Plaintiffs' Complaint is DISMISSED by Judge Dean D. Pregerson. ( MD JS-6. Case Terminated ) . (lc). Modified on 1/9/2017 (lc).

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

CHRISTOPHER ANDERSON,
MICHAEL DOZIER, DAVID
MARCINKUS, ARI FRIEDMAN AND
ARI MILLER,

13
Plaintiff,
14
v.
15
JOHN SCOTT; CHARLIE BECK,
16
Defendants.
17
___________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 14-05241 DDP (PLAx)

ORDER DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT [8] AND
GRANTING DEFENDANTS’ MOTION TO
DISMISS[13]

18
19

Presently before the court are Plaintiffs’ Motion for Summary

20

Judgment and Defendants’ Motion to Dismiss.

21

submissions of the parties, the court denies Plaintiffs’ Motion,

22

grants Defendants’ motion, and adopts the following Order.

23

I.

24

Having considered the

Background
California prohibits the carrying of concealed firearms, with

25

certain exceptions.

26

exceptions allows concealed carry by a person who holds a concealed

27

carry license.

28

concealed carry permits to applicants who show (1) good moral

Cal. Penal Code § 25400.

Cal. Penal Code § 25655.

One of those

County sheriffs may issue

1

character, (2) that “good cause exists for issuance of the

2

license[,]” (3) that they reside within the county, or have a

3

principal place of business or employment in the county and spend a

4

“substantial period of time” in that place, and (4) that they have

5

completed a training course.

6

Cal. Penal Code § 26150.

Plaintiffs allege that they are residents of Los Angeles

7

County and “seek concealed weapon permits,” although only some of

8

them have actually applied for such a permit.

9

12.)

(Complaint ¶¶ 2, 10-

Plaintiffs further allege that Defendants refuse to issue a

10

permit “absent evidence of an imminent threat.”

11

Plaintiffs allege that they cannot exercise their rights under the

12

Second Amendment without a concealed carry permit, and that

13

Defendants’ discretionary decisions to deny Plaintiffs permits

14

therefore violates Plaintiffs’ fundamental rights.

15

(Id. ¶ 7.)

(Id. ¶¶ 6, 13.)

Soon after filing this case, Plaintiffs moved for summary

16

judgment.

17

summary judgment, to dismiss the case, and to stay this matter

18

until the conclusion of appellate proceedings related to Peruta v.

19

County of San Diego, 742 F.3d 1144 (9th Cir. 2014).

20

granted a stay pending issuance of the mandate in Peruta.

21

Ninth Circuit ultimately reheard Peruta en banc and issued an

22

opinion addressing the question raised here by Plaintiffs.

23

II.

24

Defendants responded by moving to strike the motion for

This Court
The

Legal Standard
Summary judgment is appropriate where the pleadings,

25

depositions, answers to interrogatories, and admissions on file,

26

together with the affidavits, if any, show “that there is no

27

genuine dispute as to any material fact and the movant is entitled

28

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
2

A party

1

seeking summary judgment bears the initial burden of informing the

2

court of the basis for its motion and of identifying those portions

3

of the pleadings and discovery responses that demonstrate the

4

absence of a genuine issue of material fact.

5

Catrett, 477 U.S. 317, 323 (1986).

6

the evidence must be drawn in favor of the nonmoving party. See

7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986).

8

moving party does not bear the burden of proof at trial, it is

9

entitled to summary judgment if it can demonstrate that “there is

See Celotex Corp. v.

All reasonable inferences from

If the

10

an absence of evidence to support the nonmoving party’s case.”

11

Celotex, 477 U.S. at 323.

12

Once the moving party meets its burden, the burden shifts to

13

the nonmoving party opposing the motion, who must “set forth

14

specific facts showing that there is a genuine issue for trial.”

15

Anderson, 477 U.S. at 256.

16

party “fails to make a showing sufficient to establish the

17

existence of an element essential to that party’s case, and on

18

which that party will bear the burden of proof at trial.”

19

477 U.S. at 322.

20

that a reasonable jury could return a verdict for the nonmoving

21

party,” and material facts are those “that might affect the outcome

22

of the suit under the governing law.”

23

There is no genuine issue of fact “[w]here the record taken as a

24

whole could not lead a rational trier of fact to find for the

25

nonmoving party.”

26

Corp., 475 U.S. 574, 587 (1986).

27
28

Summary judgment is warranted if a

Celotex,

A genuine issue exists if “the evidence is such

Anderson, 477 U.S. at 248.

Matsushita Elec. Indus. Co. v. Zenith Radio

It is not the court’s task “to scour the record in search of a
genuine issue of triable fact.”

Keenan v. Allan, 91 F.3d 1275,
3

1

1278 (9th Cir.1996).

Counsel has an obligation to lay out their

2

support clearly.

3

1026, 1031 (9th Cir.2001).

4

file for evidence establishing a genuine issue of fact, where the

5

evidence is not set forth in the opposition papers with adequate

6

references so that it could conveniently be found.”

7

the material facts are undisputed and resolution of a motion for

8

summary judgment turns on a question of law, the court may

9

determine as a matter of law which party’s position is correct as a

Carmen v. San Francisco Sch. Dist., 237 F.3d
The court “need not examine the entire

Id.

“[W]hen

10

matter of law.”

11

LKK/JFM, 2009 WL 1953444 at *2 (E.D. Cal. July 7, 2009) (citing

12

Asuncion v. Dist. Dir. of U. S. Immigration & Naturalization Serv.,

13

427 F.2d 523, 524 (9th Cir. 1970).

14

Gulf Ins. Co. v. First Bank, No. CIV-S-08-209

A complaint will survive a motion to dismiss when it contains

15

“sufficient factual matter, accepted as true, to state a claim to

16

relief that is plausible on its face.”

17

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

18

570 (2007)).

19

“accept as true all allegations of material fact and must construe

20

those facts in the light most favorable to the plaintiff.”

21

v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

22

need not include “detailed factual allegations,” it must offer

23

“more than an unadorned, the-defendant-unlawfully-harmed-me

24

accusation.”

25

allegations that are no more than a statement of a legal conclusion

26

“are not entitled to the assumption of truth.” Id. at 679.

27

other words, a pleading that merely offers “labels and

28

conclusions,” a “formulaic recitation of the elements,” or “naked

Ashcroft v. Iqbal, 556 U.S.

When considering a Rule 12(b)(6) motion, a court must

Iqbal, 556 U.S. at 678.

4

Resnick

Although a complaint

Conclusory allegations or

In

1

assertions” will not be sufficient to state a claim upon which

2

relief can be granted.

3

quotation marks omitted).

4

Id. at 678 (citations and internal

“When there are well-pleaded factual allegations, a court

5

should assume their veracity and then determine whether they

6

plausibly give rise to an entitlement of relief.” Id. at 679.

7

Plaintiffs must allege “plausible grounds to infer” that their

8

claims rise “above the speculative level.” Twombly, 550 U.S. at

9

555. “Determining whether a complaint states a plausible claim for

10

relief” is a “context-specific task that requires the reviewing

11

court to draw on its judicial experience and common sense.”

12

556 U.S. at 679.

13

III. Discussion

14

Iqbal,

Under the Second Amendment, “[a] well regulated Militia, being

15

necessary to the security of a free State, the right of the people

16

to keep and bear Arms, shall not be infringed.”

17

II.

18

in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald

19

v. City of Chicago, 561 U.S. 742 (2010), contend that the Second

20

Amendment requires that they be issued concealed carry permits.

21

The Ninth Circuit, sitting en banc, squarely addressed, and

22

rejected, this argument in Peruta.1

23

824 F.3d 919 (2016).

U.S. Const. amend.

Plaintiffs, relying largely upon the Supreme Court’s decisions

Peruta v. County of San Diego,

24

As the Peruta court explained, the Supreme Court held in

25

Heller that the Second Amendment "preserves the right of members of

26
27
28

1

Hereinafter, all references to Peruta refer to the Ninth
Circuit's en banc decision. Peruta v. County of San Diego, 824
F.3d 919 (2016).
5

1

the general public to keep and bear arms in their homes for the

2

purpose of self-defense."

3

554 U.S. at 635.)

4

Supreme Court was careful to observe that the scope of the Second

5

Amendment is not unlimited, and that, "for example, the majority of

6

the 19th-century courts to consider the question held that

7

prohibitions on carrying concealed weapons were lawful under the

8

Second Amendment or state analogues."

9

U.S. at 626-27) (emphasis omitted).

Peruta, 824 F.3d at 928 (citing Heller,

As the en banc court further explained, the

Id. (quoting Heller, 554

The Supreme Court later

10

clarified in McDonald that the Due Process Clause of the Fourteenth

11

Amendment "incorporates the Second Amendment right recognized in

12

Heller," which therefore applies to the states.

13

at 791.

14

McDonald, 561 U.S.

Plaintiffs assert that, under Heller and McDonald, Defendants'

15

discretionary concealed carry policies do not pass intermediate

16

scrutiny.

17

Ninth Circuit utilize a two-step inquiry that looks first to

18

whether a challenged law burdens conduct protected by the Second

19

Amendment and, if so, then directs the reviewing court to apply the

20

appropriate level of scrutiny.

21

Francisco, 746 F.3d 953, 963 (2014); United States v. Chovan, 735

22

F.3d 1127, 1136 (2013).

23

analyze Defendants' policies under intermediate scrutiny without

24

first determining whether the carrying of a concealed weapon in

25

public is conduct protected by the Second Amendment.

26

court, however, has already answered that question in the negative.

27
28

(MSJ at 3-4.)

In Second Amendment cases, courts in the

Jackson v. City and County of San

This court cannot, therefore, proceed to

The Peruta

In Peruta, as here, plaintiffs contended that sheriffs'
policies requiring "good cause" for the issuance of concealed carry
6

1

permits violated the Second Amendment under Heller and McDonald.

2

Peruta, 824 F.3d at 924.

3

analysis, the Peruta court determined that the carrying of

4

concealed weapons was often proscribed and rarely, and even then

5

only temporarily, considered to be a right, either by state courts

6

or the Supreme Court.

7

concluded that "the Second Amendment right to keep and bear arms

8

does not include, in any degree, the right of a member of the

9

general public to carry concealed firearms in public."

10

After conducting an exhaustive historical

Id. at 929-939.

The Peruta court therefore

Id. at 939.

The policies challenged here undisputedly impair Plaintiffs'

11

ability to carry concealed weapons in public.

12

however, dictates that such conduct does not enjoy any Second

13

Amendment protection.

14

further.

15

and their claim dismissed as a matter of law.

16

IV.

17

Binding authority,

This court's analysis therefore need go no

Plaintiffs' Motion for Summary Judgment must be denied,

Conclusion
For the reasons stated above, Plaintiffs' Motion for Summary

18

Judgment is DENIED.

19

Plaintiffs' Complaint is DISMISSED.

Defendants' Motion to Dismiss is GRANTED.

20
21
22

IT IS SO ORDERED.

23
24

Dated: January 9, 2016
DEAN D. PREGERSON
United States District Judge

25
26
27
28
7