Richards et al v. Prieto et al

Filing 72

ORDER signed by Judge Morrison C. England, Jr on 5/13/11 ORDERING 54 Motion for Summary Judgment is denied and 58 Motion for Summary Judgment is granted. The Clerk is ordered to enter judgment in favor of defendants Yolo County and Yolo County Sheriff Ed Prieto. Civil Case Terminated. CASE CLOSED. (Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ADAM RICHARDS et al.,

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Plaintiffs,

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No. 2:09-cv-01235 MCE-DAD

v.

MEMORANDUM AND ORDER

COUNTY OF YOLO and YOLO COUNTY
SHERIFF ED PRIETO,

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Defendants.
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----oo0oo----

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Plaintiffs Adam Richards, Brett Stewart, the Second Amendment

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Foundation, Inc., and The Calguns Foundation, Inc. (collectively,

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“Plaintiffs”) seek redress from Sheriff Ed Prieto and the County of

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Yolo (collectively, “Defendants”) after Plaintiffs Richards and

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Stewart were denied gun permits under Yolo County’s, and by

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extension Sheriff Prieto’s, concealed weapon licensing policy.

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Both Plaintiffs and Defendants have filed Motions for Summary

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Judgment.

A hearing on the matter was held on March 10, 2011.

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the reasons set forth below, Plaintiffs’ Motion is denied and

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Defendants’ Motion is granted.

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For

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BACKGROUND

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A.

Concealed Weapon License Policy

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California law generally prohibits individuals from carrying a
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concealed firearm in public.

See Cal. Penal Code §§ 12025(a)(2),

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12027.

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a license in California to carry a firearm “capable of being

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concealed upon the person.”

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However, applicants for such a license must provide good cause for

With a permit and for self-defense purposes, one can obtain

Penal Code § 12050(a)(1)(A)(i).

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applying, and demonstrate they are of “good moral character.”

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Penal Code § 12050(a).

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check and completion of a training course.

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basic requirements, the state grants each municipal or county

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authority wide latitude to determine both the appropriate criteria

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for issuing a license and the need to impose any reasonable

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restrictions on the licensee.

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Other requirements include a background
See id.

Beyond these

Penal Code § 12050(b).

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However, there are a number of exceptions carved out by the
statute. For example, nothing prevents a person from carrying a
weapon, concealed or otherwise, in their home, place of business or
on other designated private property. Penal Code § 12026(a).
There are also a number of designated uses for firearms outside the
scope of Yolo County’s policy and lawful under California law, such
as the use of a firearm for hunting or for sport as part of a gun
club. See Penal Code § 12027.
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Plaintiffs are not challenging the California statute itself2, but

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instead challenge Yolo County’s interpretation of their statutory

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authority, namely its Concealed Weapon License Policy.

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Consistent with the regulations under California Penal Code,

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Yolo County and Defendant Prieto, as the Sheriff, have created a

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policy regulating the issuance of concealed weapon licenses to Yolo

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County residents.

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license to carry a concealed firearm to residents within Yolo

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County.”

Sheriff Prieto retains “discretion to issue a

(See Policy, ECF No. 60-1, at 1.)

The policy, accessible

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to the public, clearly enumerates the criteria for obtaining the

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license, and an applicant must, among other things, demonstrate

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that they have a valid reason to request the permit in the first

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place.

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“include, but are not limited to:” credible threats of violence

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against the applicant, and being a business owner who carries large

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sums of cash. (Id. at 1-2.)

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hunting, fishing, or self-defense “without credible threats of

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violence.”

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on whether the “Sheriff or his designee feels there is sufficient

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reason to grant the license.”

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(Id.)

Examples of valid reasons listed in the policy

(Id. at 2.)

Examples of invalid reasons include

The issuance of a license ultimately bears

(Id.)

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The State of California and/or its legislature is not a party to
the action. Plaintiffs appear to be challenging Defendants’
exercise of state law at the local level. (See e.g. Sec. Am.
Compl., ECF No. 48 (hereinafter, “SAC”).) However, Yolo County’s
policy derives its authority from the legislature’s framework, and
there is substantial overlap between the policy and California law.
In addition, Plaintiffs’ Motion for Summary Judgment specifically
challenges portions of California’s Penal Code. (ECF No. 54-1 at
21.) Recognizing the close overlap, this Court interprets
Plaintiffs’ arguments as those ultimately against Defendants, and
not the state legislature or, by extension, the California Penal
Code.
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B.

Plaintiffs

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Plaintiffs Second Amendment Foundation, Inc. and The Calguns

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Foundation, Inc. are non-profit organizations designed to promote

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the rights of firearm holders, and more generally anti-gun control

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advocates.

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members and supporters of both organizations.

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(SAC 2.)

Both Plaintiffs Richards and Stewart are
(Id. at 1.)

In March 2009, Plaintiff Richards contacted the Yolo County
Sheriff’s office to inquire about the procedure to obtain a permit

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to carry a handgun.

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concealed weapon license for self-defense purposes because that

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would not constitute good cause under the terms of the policy.

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(Id. at 4.)

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Davis, the Yolo County Sheriff’s office informed him that he would

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first have to apply for a concealed weapon license from the Chief

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of Police in the City of Davis. (Id.)

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Defendant was told that he could not obtain a

In addition, since Plaintiff Richards resides in

Similarly, in March 2010, Plaintiff Stewart applied for a

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concealed weapon license from Yolo County, after first being told

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that Davis police had discontinued issuing Carry Concealed Weapon

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permits.

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informed in writing that he was being denied a permit by Yolo

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County because his application did not “‘meet the criteria’” for

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granting a license, as outlined in the policy. (Id.)

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(Id. at 5.)

On April 27, 2010, Plaintiff Stewart was

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STANDARD

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The Federal Rules of Civil Procedure3 provide for summary

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judgment when “the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with affidavits,

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if any, show that there is no genuine issue as to any material fact

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and that the moving party is entitled to a judgment as a matter of

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law.”

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Rule 56 is to dispose of factually unsupported claims or defenses.

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Fed. R. Civ. P. 56(c).

One of the principal purposes of

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

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In considering a motion for summary judgment, the court must

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examine all the evidence in the light most favorable to the non-

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moving party.

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Once the moving party meets the requirements of Rule 56 by showing

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that there is an absence of evidence to support the non-moving

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party’s case, the burden shifts to the party resisting the motion,

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who “must set forth specific facts showing that there is a genuine

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issue for trial.”

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256 (1986).

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U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

Each party seeking summary judgment bears “the initial

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responsibility of informing the district court of the basis for its

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motion.”

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issues must exist that “can be resolved only by a finder of fact,

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because they may reasonably be resolved in favor of either party.”

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Anderson, 477 U.S. at 250.

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Celotex, 477 U.S. at 323.

However, genuine factual

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Unless otherwise noted, all further references to Rule or Rules
are to the Federal Rules of Civil Procedure.
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In judging evidence at the summary judgment stage, the court does

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not make credibility determinations or weigh conflicting evidence.

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See T.W. Elec. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626,

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630-631 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., Ltd.

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v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

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ANALYSIS

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A.

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Second Amendment
1.

Heller and the Scope of Protection

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Plaintiffs argue that, by maintaining a policy that deprives

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Plaintiffs Richards and Stewart of a concealed weapon license,

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Defendants are infringing on their Second Amendment right to bear

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arms, as the Yolo County license policy effectively acts as a

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complete ban on an individual’s right to carry.

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policy both on its face, and as applied.

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Tr. 9:15-17, March 10, 2011, ECF No. 70.)

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hand, believe that the Second Amendment has never been interpreted

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as granting citizens the right to carry a concealed weapon in

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public, and restrictions on firearm possession has been the status

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quo in the United States for many years.

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contend that Yolo County’s policy does not violate the Second

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Amendment, because it is not a total ban on the possession of

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handguns.

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They challenge the

(See Mot. Summ. J. Hr’g
Defendants, on the other

Further, Defendants

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The Second Amendment protects an individual’s right to “keep

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and bear arms.”

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Second Amendment are “fundamental,” and apply “equally to the

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Federal Government and the States.”

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130 S. Ct. 3020, 3050 (2010).

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“protects a personal right to keep and bear arms for lawful

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purposes, most notably for self-defense in the home.”

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130 S. Ct. at 3044.

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570, 635 (2008) (“the District’s ban on handgun possession in the

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home [for self-defense purposes] violates the Second Amendment.”);

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United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010)

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(explaining the scope of Heller was limited to the right to

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register and keep a loaded firearm in the home for self-defense).

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U.S. Const. amend. II.

Rights bestowed under the

McDonald v. City of Chicago,

Specifically, the Second Amendment

McDonald,

See also United States v. Heller, 554 U.S.

However, as the Supreme Court of the United States recently

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clarified in a landmark case, the “right secured by the Second

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Amendment is not unlimited.

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century cases, commentators and courts routinely explained that the

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right was not a right to keep and carry any weapon whatsoever in

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any manner whatsoever and for whatever purpose.”

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at 626.

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decision did not, in any way, invalidate many of the longstanding

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state and federal prohibitions on firearm possession.

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From Blackstone through the 19th-

Heller, 554 U.S.

In fact, the Court was careful to explain that their

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Id. at 627.4

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Yolo County’s concealed weapon policy, as the Second Amendment does

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not create a fundamental right to carry a concealed weapon in

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public.

Based upon this, Heller cannot be read to invalidate

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Furthermore, the policy does not create a total ban on

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carrying a firearm, such that the policy completely infringes on

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the rights protected by the Second Amendment.

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Court has yet to articulate the appropriate standard of review, the

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Ninth Circuit has determined that only regulations that

Since the Supreme

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“substantially burden the right to keep and bear arms trigger

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heightened scrutiny under the Second Amendment.”

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No. 07-15763, 2011 WL 1632063, at *6 (9th Cir. May 2, 2011)

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(evaluating whether a restriction on gun sales substantially

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burdens Second Amendment rights).

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regulation does not place a substantial burden to an individual’s

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fundamental right, then rational basis review applies.

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Nordyke v. King,

It then follows that if the

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Plaintiffs’ implicit argument is that Heller stands for the
general right to carry a concealed weapon for self-defense purposes
in public. (See Hr’g Tr. 23:9-13 (“There is a right to keep and
bear arms. Bear arms means to carry them in public.”).) The
Supreme Court does explain that the historical inference of the
word “bear” should be interpreted to mean that there is a right to
carry “upon the person or in the clothing or in a pocket” a “weapon
for a particular purpose – confrontation.” Id. at 584-85.
However, Heller’s ultimate holding is not the Court’s
interpretation of the historical significance of the Second
Amendment’s language. To the contrary, the Court, both in Heller,
and subsequently in McDonald, took pain-staking effort to clearly
enumerate that the scope of Heller extends only to the right to
keep a firearm in the home for self-defense purposes. See supra
(emphasis added). This Court does not infer that Heller grants any
right that “extends beyond the home,” as Plaintiffs contended
during oral argument. (Hr’g Tr. 11:8-10.) Courts “often limit the
scope of their holdings, as such limitations are integral” to
understanding the holdings’ reach. Vongxay, 594 F.3d at 1115.
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Id. at *6 (In “a variety of contexts” the Supreme Court “applies

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mere rational basis scrutiny to laws that regulate, but do not

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significantly burden, fundamental rights.”).

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In determining whether government action “substantially

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burdens” a constitutionally-protected right, courts “typically ask

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whether the restriction leaves open sufficient alternative avenues”

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for exercising the right.

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here, under a substantial burden analysis, is whether Yolo County’s

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restrictions leave Plaintiffs with “reasonable alternative means”

Id. at *7-8.

The appropriate inquiry

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to obtain and keep a firearm “sufficient for self-defense

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purposes.”

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Id. at *7.

California Penal Code has carved out a number of exceptions

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that allow individuals to possess and carry loaded firearms in

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public settings, including for use in hunting, or in a situation

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where someone who believes they are in “immediate, grave, danger

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and that the carrying of the weapon is necessary for the

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preservation of that person or property.”

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§ 12031(j)(1).6

Penal Code

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In their Summary Judgment Motion, Plaintiffs interpret Heller to
mean that rational basis review could not, under any circumstances,
be used to evaluate the merits of a policy regulating portions of
the Second Amendment. (ECF No. 54-1 at 26.) Indeed, the Ninth
Circuit previously interpreted Heller the same way; namely that
rational-basis scrutiny would not be appropriate to review Second
Amendment restrictions. See Vongxay, 594 F.3d at 1118 n.5.
However, earlier this month, the Ninth Circuit read Heller as
“insisting that a Second Amendment backed only by rational basis
review would have ‘no effect,’” and heightened scrutiny is only
appropriate for claims that substantially burden the right to bear
and keep arms. Nordyke, 2011 WL 1632063, at *10 (citing Heller,
554 U.S. at 627 n.27) (emphasis added).
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Immediate is defined as “the brief interval before and after the
local law enforcement agency, when reasonably possible, has been
notified of the danger and before the arrival of its assistance.”
Id.
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A regulation or policy “does not substantially burden a

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constitutional right simply because it makes the right...more

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difficult to exercise.”

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Nordyke, 2011 WL 1632063, at *8.

Under the statutory scheme, even if Plaintiffs are denied a

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concealed weapon license for self-defense purposes from Yolo

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County, they are still more than free to keep an unloaded weapon

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nearby their person, load it, and use it for self-defense in

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circumstances that may occur in a public setting.

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policy does not substantially burden Plaintiffs’ right to bear and

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keep arms.

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Yolo County’s

Therefore, rational basis review applies.

A regulation is constitutional under rational basis review if

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it bears “a reasonable relationship to a legitimate government

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interest.”

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Cir. April 28, 2011) (citing United States v. LeMay, 260 F.3d 1018,

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1031 (9th Cir. 2001)).

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firearms is an essential part of Yolo County’s efforts to maintain

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public safety and prevent both gun-related crime and, most

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importantly, the death of its citizens.

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more than rationally related to these legitimate government goals,

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and Plaintiffs’ Motion for Summary Judgment fails as to this

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portion of their argument.

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United States v. Whitlock, 2011 WL 1651232, at *5 (9th

As Defendants contend, regulating concealed

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Yolo County’s policy is

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Defendants’ “Good Cause” Discretion

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Plaintiffs also assert that the portions of Yolo County’s

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concealed weapon license policy evaluating an applicant’s good

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moral character and good cause for seeking a permit, gives the

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government “unbridled discretion” in violation of the Second

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Amendment.

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Plaintiffs contend the statute is a prior restraint on the freedom

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to keep and bear arms.

In applying traditional First Amendment analysis,

Defendants, in turn, believe any analogy of

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the Second Amendment to the First is improper because it “ignores

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the fundamental difference between regulation of speech and guns.”

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(Def’s. Mot. for Summ. J. 24, ECF No. 59.)
In a facial challenge7 to a statute outside of the First

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Amendment context, a plaintiff must demonstrate that “no set of

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circumstances exists under which” the statute would be valid, “i.e.

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that the law is unconstitutional in all of its applications.”

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Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

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450 (2008).

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Oakland, 344 F.3d 959, 971 (9th Cir. 2003) (“To bring a successful

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facial challenge outside the context of the First Amendment, the

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challenger must establish that no set of circumstances exists under

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which the statute would be valid.” (internal citations omitted));

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Nordyke, 2011 WL 1632063, at *7 n.11 (“A facial challenge” is “the

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most difficult challenge to mount successfully.”).

See also Hotel & Motel Ass’n. of Oakland v. City of

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Plaintiffs characterized this portion of their argument as a
“facial challenge” during oral argument, and the pleadings support
such an interpretation. (See Hr’g Tr. 9:15-10:8) An as-applied
constitutional challenge to Yolo County’s policy was not asserted
under the analogous First Amendment analysis.

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Courts are instructed to first determine whether “the

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enactment reaches a substantial amount of constitutionally

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protected conduct” by examining “the ambiguous as well as the

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unambiguous scope of the enactment.”

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Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 & n.6 (1982).

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Such an inquiry must be “examined in the light of the facts of the

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case at hand,” which should ultimately demonstrate that the

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regulation is patently invalid because “no standard of conduct is

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specified at all.”

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Village of Hoffman Estates v.

Id. at 495 n.7 (internal citations omitted).

An exception to the rigidity of the facial challenge test

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exists for issues involving the First Amendment.

A law involving

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First Amendment protections “may be overturned as impermissibly

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broad because a substantial number of its applications are

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unconstitutional, judged in relation to the statute’s plainly

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legitimate sweep.”

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(internal citations omitted).

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case precedent established from examining the rights and

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regulations carved from the First Amendment as a framework for

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assessing those rights indicated under the Second Amendment.

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However, Plaintiffs do not address the exception in their papers,

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but cite cases entrenched in First Amendment constitutional

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analysis.

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Second Amendment to those under the First, as plenty of case

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authority exists to provide a clear framework of analysis to facial

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challenges, without poaching precedent from another Amendment’s

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framework.

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Wash. State Grange, 552 U.S. at 449 n.6
Plaintiffs suggest the Court turn to

The Court sees no reason to analogize rights under the

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Therefore, this Court cannot invalidate the good cause and

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good moral character portions of Yolo County’s policy as

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unconstitutional on their face.

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there are zero circumstances under which Sheriff Prieto could

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clearly issue a concealed weapon permit to someone who demonstrates

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plausible good cause under the terms of the policy, and is also of

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objective good moral character.

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constitutionality of Yolo County’s policy is futile, for it is both

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“undesirable” and near impossible for the Court to “consider every

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conceivable situation which might possibly arise in the application

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of complex and comprehensive legislation.”

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550 U.S. 124, 168 (2007) (internal citations omitted); Nordyke,

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2011 WL 1632063 at *7.

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many reasons, most notably because they “rest on speculation.”

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Wash. State Grange, 552 U.S. at 450.

Plaintiffs cannot demonstrate that

Any inquiry into the facial

Gonzales v. Carhart,

Facial challenges are also disfavored for

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Moreover, Yolo County’s policy does contain a standard of

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conduct; applicants are clearly instructed to be of good moral

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character (and submit application documents corroborating such

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character), and demonstrate good cause for requiring the license.

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The policy goes further by providing examples of the types of good

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cause that satisfy the terms of the policy.

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entitled to dislike the qualifications and standards created by

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Sheriff Prieto and Yolo County’s policy, they cannot demonstrate

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that the policy itself is void for facial vagueness.

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the above reasons, Plaintiffs’ Motion for Summary Judgment on the

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Second Amendment claim fails and Defendants’ Motion for Summary

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Judgment is granted.

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While Plaintiffs are

For each of

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B.

Equal Protection

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Plaintiffs insist that Yolo County’s concealed weapon license

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policy is subjective because Sheriff Prieto has discretionary

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authority to determine what constitutes “good cause.”

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also believe the policy is arbitrary and violates Equal Protection

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because some individuals are granted the right to bear arms for

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self-defense, while others are not.

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County’s interest in preventing crime and ensuring public safety

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Plaintiffs

Defendants maintain that Yolo

merits the policy’s language and renders it constitutional.

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The Equal Protection Clause of the Fourteenth Amendment

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requires that all “persons similarly situated” be treated the same

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under the law.

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473 U.S. 432, 439 (1985); Freeman v. City of Santa Ana, 68 F.3d

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1180, 1187 (1995).

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process: the first step is identifying the classification of

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groups, namely that a law is “applied in a discriminatory manner or

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imposes different burdens on different classes of people.”

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City of Cleburne v. Cleburne Living Center, Inc.,

Modern equal protection analysis is a two step

Id.

The second step requires the court to “assess the legitimacy

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of a discriminatory statute under the appropriate level of

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scrutiny.”

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Sagana v. Tenorio, 384 F.3d 731, 740 (9th Cir. 2004).

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Where an ordinance does not “purposefully operate to the detriment

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of a suspect class, the only requirement of equal protection is

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that the ordinance be rationally related to a legitimate

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governmental interest.

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citations omitted).8

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Nordyke, 2011 WL 1632063, at *14 (internal

Plaintiffs’ equal protection claim fails for two reasons.

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First, the policy does not treat similarly situated individuals

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differently.

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not the same because some can demonstrate they have good cause and

All law-abiding citizens who apply for a permit are

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are of good moral character, and some cannot.

Second, Defendants’

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good cause and good character clauses in the policy are clearly

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rationally related to Yolo County’s goals of reducing the incidence

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of unlawful public shootings, prevent police from safely responding

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to dangerous situations, generally preventing crime, and ensuring

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public safety.

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CONCLUSION

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Compared to many of this country’s constitutional protections,

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the scope of rights under the Second Amendment is ambiguous and no

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doubt subject to change and evolution over time.

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in light of Heller and McDonald, Yolo County’s concealed license

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policy is constitutionally valid.

Nonetheless, even

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Though the right to keep and bear arms for self-defense is a
fundamental right, “that right is more appropriately analyzed under
the Second Amendment. Id. (citing Albright v. Oliver, 510 U.S.
266, 273 (1994) (“Where a particular amendment provides an explicit
textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the guide
for analyzing those claims.” (internal citations omitted))).
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Plaintiffs’ Motion for Summary Judgment (ECF No. 54) is DENIED.

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Defendants’ Cross Motion for Summary Judgment (ECF No. 58) is

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GRANTED.

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judgment in favor of Defendants Yolo County and Yolo County Sheriff

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Ed Prieto.

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The Clerk of Court is accordingly directed to enter

IT IS SO ORDERED.
Dated:

May 13, 2011

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__________________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE

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DEAC_Signature-END:

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