Pizzo v. Newsom et al
Filing
112
ORDER DENYING PLAINTIFFS 60 MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS ( 71 and 90 ) CROSS MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 12/5/2012. (ndr, COURT STAFF) (Filed on 12/5/2012) Modified on 12/5/2012 (ndr, COURT STAFF).
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
THERESE MARIE PIZZO,
5
Plaintiff,
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
ORDER DENYING
PLAINTIFF’S MOTION
FOR SUMMARY
JUDGMENT (Docket
No. 60) AND
GRANTING
DEFENDANTS’ CROSSMOTIONS FOR
SUMMARY JUDGMENT
(Docket Nos. 71
and 90)
v.
CITY & COUNTY OF SAN FRANCISCO;
KAMALA HARRIS, in her official
capacity as California Attorney
General; EDWIN LEE, in his
official capacity as Mayor of the
City & County of San Francisco;
GREG SUHR, in his official
capacity as San Francisco Police
Chief; and ROSS MIRKARIMI, in his
official capacity as the Sheriff
of San Francisco,
13
14
No. C 09-4493 CW
Defendants.
________________________________/
15
Plaintiff Therese Marie Pizzo moves for summary judgment on
16
her claims against Defendants Edwin Lee in his official capacity
17
as the Mayor of the City and County of San Francisco, Greg Suhr in
18
his official capacity as the San Francisco Police Chief, Ross
19
Mirkarimi in his official capacity as the San Francisco Sheriff
20
(collectively, the City) and Kamala Harris in her official
21
capacity as California Attorney General.1
22
Plaintiff’s motion and have filed cross-motions for summary
23
judgment, which Plaintiff has opposed.
24
Against Violence (LCAV) has filed a brief in support of
25
Defendants’ cross-motions.
Defendants oppose
Amicus Legal Community
Amicus National Rifle Association,
26
27
28
1
Pursuant to Federal Rule of Civil Procedure 25(d), the
Court SUBSTITUTES Sheriff Mirkarimi in place of former Acting
Sheriff Vicki Hennessy.
1
Inc. (NRA) has filed a brief supporting none of the parties.
2
Having considered the papers filed by the parties and the amici,
3
and their arguments at the hearing on these motions, the Court
4
GRANTS Defendants’ motions and DENIES Plaintiff’s motion.
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6
7
BACKGROUND
I.
Regulation of firearms and ammunition in San Francisco
The carrying of weapons, including firearms, in California is
8
governed by the Deadly Weapons Recodification Act of 2010.
9
Penal Code § 16000, et seq.
Cal.
This law, along with several other
United States District Court
For the Northern District of California
10
state statutes, prohibit certain categories of people from
11
possessing firearms, including people convicted of certain crimes,
12
people subject to a temporary restraining order and people
13
receiving inpatient mental health treatment and determined to be a
14
danger to themselves or others.
15
§§ 29800(a) (persons convicted of certain felonies or addicted to
16
narcotic drugs), 29825 (persons subject to a protective order or
17
temporary restraining order); Cal. Wel. & Inst. Code § 8100(a)
18
(certain patients receiving mental health treatment).
19
who do not fall into these excluded categories, state law
20
provides,
21
22
23
24
25
26
See, e.g., Cal. Penal Code
For people
No permit or license to purchase, own, possess, keep, or
carry, either openly or concealed, shall be required of
any citizen of the United States or legal resident over
the age of 18 years who resides or is temporarily within
this state, . . . to purchase, own, possess, keep, or
carry, either openly or concealed, a handgun within the
citizen’s or legal resident’s place of residence, place
of business, or on private property owned or lawfully
possessed by the citizen or legal resident.
Cal. Penal Code § 25605(b).
27
Although state law does not restrict the open or concealed
28
possession of a firearm on private property, various state laws
2
1
restrict the carrying of firearms in public.
2
prohibits carrying a concealed weapon in public without a license.
3
Cal. Penal Code §§ 25400, 25655.
4
prohibits carrying a loaded firearm in public.
5
§ 25850.
6
possession of a loaded firearm.
7
“any person from having a loaded weapon, if it is otherwise
8
lawful, at the person’s place of residence, including any
9
temporary residence or campsite.”
State law generally
State law also generally
Cal. Penal Code
There are a number of exceptions to this prohibition of
For example, it does not prohibit
Cal. Penal Code § 26055.
It
United States District Court
For the Northern District of California
10
also does not apply to, among others,
11
to carry a concealed weapon or people who reasonably believe that
12
either they or their property are in immediate, grave danger and
13
that carrying a weapon is necessary for the preservation of their
14
person or property.
15
law also generally restricts the open carrying of an unloaded
16
firearm in public.
17
also has exceptions, including for holders of a license to carry
18
concealed weapons and for individuals in a residence or place of
19
business or on private property, if done with the permission of
20
the owner or lawful possessor.
21
individuals with a license
See Cal. Penal Code §§ 26010, 26045.
Cal. Penal Code § 26350(a).
State
This prohibition
Cal. Penal Code §§ 26362, 26383.
The City and County of San Francisco also has ordinances that
22
regulate the sale, possession and use of firearms and ammunition
23
within its boundaries.
24
At the time that Plaintiff filed her complaint, San Francisco
25
had two ordinances related to the discharge of firearms.
26
first, Police Code section 1290, provided in relevant part, “No
27
person or persons, firm, company, corporation or association shall
28
fire or discharge any firearms or fireworks of any kind or
3
The
1
description within the limits of the City and County of San
2
Francisco.”
3
provided that, “It shall be unlawful for any person to at any time
4
fire or discharge, or cause to be fired or discharged, any firearm
5
or any projectile weapon on or into any street, highway or other
6
public place within the City and County of San Francisco.”
7
Police Code § 4502 (2009).
8
an exception, stating that the “provisions of Section 4502 shall
9
not apply . . . to persons using said firearms or projectile
S.F. Police Code § 1290 (2009).
S.F.
At the time, the latter ordinance had
10
United States District Court
For the Northern District of California
The second ordinance
weapons in necessary self defense.”
11
(2009).
S.F. Police Code § 4506(a)
12
In 2011, these ordinances were amended.
Section 1290 was
13
amended to remove any reference to firearms.
S.F. Police Code
14
§ 1290 (2011).
15
Id.
16
the exceptions in Section 4506.”
17
Section 4506 was amended to provide that the
By its terms, it now prohibits only fireworks.
Section 4502 was amended to note that it was “[s]ubject to
S.F. Police Code § 4502 (2011).
18
provisions of Section 4502 shall not apply to or affect:
19
. . .
20
(2) Persons in lawful possession of a handgun who
discharge said handgun in necessary and lawful defense
of self or others while in a personal residence; or
21
22
23
24
25
26
(3) Persons in lawful possession of a firearm or
projectile weapon who are expressly and specifically
authorized by federal or state law to discharge said
firearm or projectile weapon under the circumstances
present at the time of discharge.
App. A-15, S.F. Police Code § 4506(a) (2011).
In 2007, San Francisco enacted Police Code section 4512 (the
27
storage ordinance) mandating, “No person shall keep a handgun
28
within a residence owned or controlled by that person unless the
4
handgun is stored in a locked container or disabled with a trigger
2
lock that has been approved by the California Department of
3
Justice.”
4
stating that it does not apply if the “handgun is carried on the
5
person of an individual over the age of 18.”
6
§ 4512(c)(1).
7
in support of its storage ordinance, which are set forth in Police
8
Code section 4511.
9
provide in part that “[h]aving a loaded or unlocked gun in the
10
United States District Court
For the Northern District of California
1
home is associated with an increased risk of gun-related injury
11
and death,” guns kept in the home are most often used in suicides,
12
against family and friends and in an unintentional shootings,
13
rather than in self-defense, and that using “trigger locks or
14
using lock boxes when storing firearms in the home reduces the
15
risk of firearm injury and death.”
16
App. A-2-6, A20-21.
This section includes an exception
S.F. Police Code
In 2011, San Francisco adopted legislative findings
See App. A-16-19.
The legislative findings
S.F. Police Code § 4511.
San Francisco regulates the sale of firearms and ammunitions
17
and requires that any person selling firearms or ammunitions be
18
licensed and adhere to certain restrictions.
19
10, S.F. Police Code §§ 613, 613.2, 613.9.
20
restrictions on licensees is a prohibition on the sale, lease or
21
transfer of ammunition that
See, e.g., App. A-7-
Among these
22
(1) Serves no sporting purpose;
23
(2) Is designed to expand upon impact and utilize the
jacket, shot or materials embedded within the jacket or
shot to project or disperse barbs or other objects that
are intended to increase the damage to a human body or
other target (including, but not limited to, Winchester
Black Talon, Speer Gold Dot, Federal Hydra-Shok, Homady
XTP, Eldorado Starfire, Hollow Point Ammunition and
Remington Golden Sabre ammunition[)]; or
24
25
26
27
28
5
1
2
3
4
5
6
(3) Is designed to fragment upon impact (including, but
not limited to, Black Rhino bullets and Glaser Safety
Slugs).
This subsection does not apply to conventional hollowpoint ammunition with a solid lead core when the
purchase is made for official law enforcement purposes
and the purchaser is authorized to make such a purchase
by the director of a public law enforcement agency such
as the Chief of the San Francisco Police Department or
the Sheriff of the City and County of San Francisco.
S.F. Police Code § 613.10(g) (the ammunition ordinance).
In 2011,
7
San Francisco adopted legislative findings in support of its
8
ammunitions ordinance, which are set forth in Police Code section
9
613.9.5.
App. A-11.
The legislative findings explain in part
10
United States District Court
For the Northern District of California
that “enhanced-lethality ammunition is more likely to cause severe
11
injury and death than is conventional ammunition that does not
12
flatten or fragment upon impact” and that the City has an interest
13
“in reducing the likelihood that shooting victims in San Francisco
14
will die of their injuries by reducing the lethality of the
15
ammunition sold and used in the City and County of San Francisco.”
16
S.F. Police Code § 613.9.5(2),(6).
The findings also state that
17
the City believes that banning such sales “does not substantially
18
burden the right of self defense” because the “right to use
19
firearms in self defense can be fully exercised using
20
conventional, non-collapsing, non-fragmenting ammunition.”
S.F.
21
Police Code § 613.9.5(4).
22
State law provides that only a police chief or county sheriff
23
“may” issue a license to carry a concealed weapon (a CCW license),
24
but does not require that they do so.
Cal. Penal Code §§ 26150,
25
26155.
A police chief or county sheriff may issue a CCW license
26
to a person only upon a showing that the applicant is of good
27
moral character, good cause exists for the issuance of the
28
6
1
license, the applicant resides in the jurisdiction of the police
2
chief or county sheriff and the applicant has completed a firearm
3
safety course.
4
Each police chief or county sheriff is required to publish and
5
make available a written policy summarizing these requirements.
6
Cal. Penal Code § 26160.
7
Cal. Penal Code §§ 26150(a), 26155(a), 26165.
State law sets forth various procedural requirements for
8
applications for CCW licenses.
9
must have his or her fingerprints taken and sent to the California
An applicant for a CCW license
United States District Court
For the Northern District of California
10
Department of Justice.
11
receiving the fingerprints, the California Department of Justice
12
is required to provide the relevant police chief or county sheriff
13
with a report of the person’s record, including whether the
14
applicant is prohibited by state or federal law from possessing a
15
firearm.
16
sheriff must receive this report from the California Department of
17
Justice before he or she is allowed to issue a CCW permit.
18
Penal Code § 26185(a)(3).
19
established by the California Department of Justice when applying
20
for a CCW permit, to cover the costs of furnishing this report.
21
Cal. Penal Code § 26190(a)(1).
22
sheriff requires psychological testing for someone who is applying
23
for a CCW license, the testing must be done by the same licensed
24
psychologist used by the police chief or county sheriff for the
25
psychological testing of his or her own employees.
26
Code § 26190(f)(1).
27
28
Cal. Penal Code § 26185(a)(1).
Cal. Penal Code § 26185(a)(2).
After
A police chief or county
Cal.
Applicants must submit a filing fee
If a police chief or county
Cal. Penal
Active duty and honorably retired peace officers are
generally exempt from the state law prohibitions on carrying
7
1
concealed and loaded weapons in public.
2
§§ 25450, 25900, 26300.
3
retiring peace officers are issued an identification certificate
4
by the agency that employed them, stamped with an endorsement
5
stating that the issuing agency approves of their carrying a
6
concealed firearm.
7
Officers who retire due to a psychological disability are not
8
eligible for such an endorsement.
9
The issuing agency may, at initial retirement or any time
See Cal. Penal Code
At the time of retirement, honorably
See Cal. Penal Code §§ 25455, 25460, 25905.
Cal. Penal Code § 26305(a).
United States District Court
For the Northern District of California
10
thereafter, revoke for good cause a retired peace officer’s
11
privilege to carry a concealed firearm.
12
25920.
13
Cal. Penal Code § 25475(a).
14
Cal. Penal Code §§ 25470,
A retired officer must qualify with the firearm annually.
In conjunction with a committee of representatives from the
15
California State Sheriffs’ Association, the California Police
16
Chiefs Association and the Department of Justice, the California
17
Attorney General is responsible for creating and revising a
18
standard form for CCW license applications, which must be used
19
uniformly throughout the state.
20
California Attorney General has created such a form.
21
McEachern Decl. ¶ 6, Ex. 3.0.2
22
“[f]ill out, read, and sign Section 1 through 5, as directed,” but
Cal. Penal Code § 26175.
The
See
The form directs applicants to
23
24
2
25
26
27
28
Defendants object to certain evidence presented by
Plaintiff and Plaintiff objects to certain evidence presented by
Defendants. The Court has reviewed these evidentiary objections
and has not relied on any inadmissible evidence. The Court will
not discuss each objection individually. To the extent that the
Court relies on evidence to which the parties object, such
evidence has been found admissible and the objections are
overruled.
8
1
states that “Sections 6, 7, and 8 must be completed in the
2
presence of an official of the licensing agency.”
3
Section 1 asks for the applicants’ names, but does not ask for
4
contact information.
5
“Investigator’s Interview Notes,” contains spaces for other
6
information for the applicants, including their address and
7
telephone number.
8
requested anywhere else on the form.
9
Id. at 3.
Id. at 11.
Id. at 2.
Section 7, which is titled
This contact information is not
In San Francisco, both the Sheriff and the Police Chief have
United States District Court
For the Northern District of California
10
adopted policies setting forth the criteria they consider when
11
deciding when to issue a CCW license.
12
issued a CCW license policy in May 2000 and the current policy was
13
issued on January 12, 2012.
14
good cause requirement, the Police Chief’s current policy states,
15
In light of the fact that San Francisco is the second
most densely populated urban area in the country, and
weighing the defensive benefit of carrying concealed
firearms in public against the risk of surprise to law
enforcement, the risk of avoidable and dangerous
conflict escalation in a public setting, and the risk to
general public safety that discharging firearms poses to
law enforcement and bystanders alike, the Chief has
determined on the basis of experience and judgment that
good cause to issue a CCW license to San Francisco
residents will generally only exist in conditions of
necessity. Accordingly, applicants should be able to
supply convincing evidence of the following:
16
17
18
19
20
21
22
23
24
25
26
27
The Police Chief first
McEachern Decl. ¶¶ 4-5.
As to the
1. There is a reported, documented, presently existing,
and significant risk of danger to life or of great
bodily injury to the applicant and/or his or her spouse,
domestic partner or dependents;
2. The danger of harm is specific to the applicant or
his or her immediate family and is not generally shared
by other similarly situated members of the public;
3. Existing law enforcement resources cannot adequately
address the danger of harm;
28
9
1
2
3
4
5
4. The danger of harm cannot reasonably be avoided by
alternative measures; and
5. Licensing the applicant to carry a concealed weapon
is significantly likely to reduce the danger of harm.
While each of the above factors is considered in the
decision making process, the Chief makes a good cause
determination based on the totality of the circumstances
presented in each individual case.
6
McEachern Decl. ¶ 4, Ex. 1.0, CCSF001971.
7
policy goes on to state, “Once an eligible applicant makes a
8
preliminary showing of good cause, the SFPD will conduct a
9
background investigation to determine whether the applicant is of
The Police Chief’s
United States District Court
For the Northern District of California
10
good moral character.”
11
policy is currently published on the SFPD’s website, along with
12
the application form; however, it may not have been published
13
there prior to January 2012.
14
Id. at CCSF001972.
The Police Chief’s
McEachern Decl. ¶¶ 7, 11, Ex. 4.0.
Then-Sheriff Michael Hennessy first issued a CCW license
15
policy in June 2011, after this case had been initiated.
16
Decl. ¶ 6.
17
policy.
18
years.
19
policy in January 2012.
20
Hennessy was in office, she did not issue a new CCW policy and
21
instead implemented the policy issued by Sheriff Mirkarimi.
22
at ¶ 5.
23
Prior to that time, the Sheriff did not have a written
Id.
Id.
Johnson
Sheriff Hennessy held his position for over thirty
After Ross Mirkarimi became Sheriff, he updated the
Id. at ¶ 4.
While acting Sheriff Vicki
Id.
The Sheriff’s current policy states, “Good cause to issue a
24
CCW license generally exists in the conditions of necessity,” and
25
sets forth five factors relevant to the good cause determination
26
that are similar to the Police Chief’s policy.
27
CCSF004499.
28
states, “If good cause is demonstrated, the SFSD shall conduct a
Id. at ¶ 4, Ex. A,
Like the Police Chief’s policy, the Sheriff’s policy
10
1
background investigation in order to determine whether the
2
applicant is of good moral character.”
3
requires applicants to “provide a letter explaining the good cause
4
the applicant believes justifies issuance of the CCW license.”
5
Id. at ¶ 7.
6
Sheriff’s written policy.
7
Id.
The Sheriff also
However, the letter requirement is not stated in the
See id. at ¶ 4, Ex. A.
At the hearing, the City represented that the Police Chief
8
and Sheriff both now require applicants to submit in person
9
applications for CCW permits and that their contact information is
United States District Court
For the Northern District of California
10
obtained at the time of submission.
11
II.
12
See also Johnson Decl. ¶ 11.
Facts relevant to the named Plaintiff
Plaintiff is a lesbian woman who lives in San Francisco with
13
her same-sex registered domestic partner and two children, who are
14
two and six years old.
15
“personal self-defense.”
16
Pizzo Decl. ¶ 3.
She owns handguns for
Id. at ¶ 11.
Plaintiff has been the victim of repeated harassment and
17
threats in the past due to her sexual orientation.
18
In the 1980s, she was pushed down a flight of stairs by a man who
19
called her a “dyke.”
20
her partner in San Francisco, a man screamed obscenities at her
21
and threw gum and garbage at her.
22
when she and her partner travelling through Arizona, a man
23
approached them and tried to “push his body up against me,” while
24
making harassing comments about their sexual orientation.
25
¶ 15.
26
when she and her partner were in a restroom at a bar, another
27
couple pounded on the door, yelled obscenities and threats at them
28
based on their sexual orientation and made them fear that they
Id. at ¶ 13.
Id. at ¶ 12.
In 1999, when she was kissing
Id. at ¶ 14.
Sometime later,
Id. at
At another unspecified time, in Los Alamos, California,
11
1
would be hurt or killed.
2
she was crossing a street in San Francisco, a man in a truck
3
yelled obscenities having to do with her sexual orientation and
4
revved his engine.
Id. at ¶ 16.
On another occasion, while
Id. at ¶ 17.
5
In Plaintiff’s declaration in support of her motion for
6
summary judgment, she attests, “In San Francisco, I can usually be
7
more open and act freely,” but “when I leave San Francisco, and
8
especially when I leave California, I have to change the way I act
9
and dress, otherwise I am targeted.”
Id. at ¶ 18.
She especially
United States District Court
For the Northern District of California
10
fears threats and assaults in “more rural areas of California and
11
in rural areas out-of-state.”
12
adequately defend or protect myself from the numerous threats and
13
assaults” that she has received because of the laws described and
14
complying with the laws “place[s] my family at unnecessary risk.”
15
Id. at ¶¶ 35, 37.
16
operable handgun ready for immediate use, loaded with proper
17
ammunition, within my home for self-defense, on my person, and in
18
my vehicle,” but can do so only if she is “issued a valid CCW
19
permit.”
20
go camping.
21
permit.”
22
not keep ammunition in her house because she believes that to do
23
so would subject her to prosecution for “possession of ‘enhanced
24
lethality ammunition,’” because she believes all ammunition is
25
lethal.
26
point ammunition that expands and fragments upon impact,” because
27
she believes that it is better than “full metal jacket”
28
ammunition, which she believes “increases the risk of innocent
Id. at ¶ 32.
She has “no way to
She intends to have a “readily accessible
Id. at ¶¶ 36, 38.
She also declares, “I will no longer
I will no longer visit Texas unless I am issued a CCW
Id. at ¶ 19.
Id. at ¶ 26.
Plaintiff further attests that she does
She wants to “use semi-jacketed hollow
12
1
people getting shot if someone discharges a firearm due to
2
ricochet and pass-through of walls and the assailant.”
3
¶ 29.
4
Id. at
At Plaintiff’s earlier deposition, when asked if she would
5
have a loaded weapon in her home outside of a gun safe or without
6
any sort of locking mechanism on it if she were permitted to do so
7
by law, she at first answered, “I don’t know,” and that she would
8
be concerned about her children being around a loaded weapon.
9
Pizzo Depo. 50:16-51:4.
She said she could imagine leaving a
United States District Court
For the Northern District of California
10
loaded weapon outside of the gun safe, but locked.
11
After a sidebar with her attorney, she stated,
12
13
14
15
Id. at 51:5-8.
With my children present in the home, it would depend on
the circumstance. If they were--if it were in my room
and they didn’t have access to it, for instance, if I
were to go to bed at night and I wanted to have a loaded
weapon in the room with me with the door locked, the
kids in bed, I could see an instance like that.
Id. at 51:10-52:11.
She then stated that, if the ordinances were
16
struck down, she would not start storing a loaded handgun outside
17
of her gun safe and lock the bedroom door between her and her
18
children “on a regular basis” but
19
20
21
22
there may be times where I feel the need to do something
like that if--if the--as long as I felt as though it was
a reasonable thing to do at the time. If there were
say, riots outside my neighborhood or there was some-some eminent threat, then I--I may do that.
Id. at 57:25-58:13.
23
Plaintiff also testified that she believed that she could
24
defend herself in her home using traditional full metal jacket
25
ammunition, but that she did not believe that it was the best
26
ammunition to use.
Id. at 71:12-18.
She stated that she believed
27
that all gun shops had left San Francisco and did not know that
28
13
1
there was still one gun shop open within the city, High Bridge
2
Arms.
3
that she had never tried to buy hollow-point bullets at any gun
4
shop in San Francisco and that when she had last purchased bullets
5
at High Bridge Arms in the late 1980s, she was able to purchase
6
what she was seeking at the time, lead bullets.
7
41:23-42:20.3
8
9
Id. at 41:9-21; Chin Decl. ¶ 11.
She further testified
Pizzo Depo.
Plaintiff searched online on the websites of the San
Francisco Police Department and the San Francisco Sheriff’s
United States District Court
For the Northern District of California
10
Department for information on how to obtain a CCW permit.
11
Decl. ¶ 43.
12
Gary W. Gorski.
Pizzo
Finding no information, she turned to her attorney,
Id.
13
Plaintiff attaches to her declaration a letter that she
14
states Gorski sent on her behalf to the San Francisco Police
15
Department and the San Francisco Sheriff’s Department by regular
16
mail, fax and email on May 26, 2009.
17
In this letter, Mr. Gorski wrote,
18
19
20
21
22
23
24
Pizzo Decl. ¶ 44, Exs. 1, 2.
I have been retained by a gay female who has been
attempting to apply for a CCW . . . To date, her
attempts have been futile as there is no published
policy on either website about the CCW application
process and your employees have been obstructive to say
the least.
When my client attempted to apply by contacting your
departments, she was given the run-around in that 1)
employees had no knowledge of any CCW policy, 2) had no
knowledge about how to apply, and 3) they stated that
your department does not process CCW applications.
25
3
26
27
28
The City contends that Pizzo said that she has not used
hollow-point ammunition since at least the early 1990s and that
she frequents a gun store in San Bruno, but they have not filed
the cited pages of her deposition transcript. See City’s Mot. for
Summ. J. at 14 (citing Pizzo Depo. 39, 69-70); Docket No. 76-10
(omitting these pages).
14
1
This letter constitutes a formal request of the
following, pursuant to the Public Records Act:
2
Please provide a DOJ CCW application.
3
Please provide a list of all current and past CCW permit
holders since your tenure in office, inclusive of all
good cause data relied upon for issuance.
4
5
Please provide a copy of your written CCW issuance
policy.
6
If your department defers to the other for the
processing of CCWs, please provide that policy or letter
of understanding.
7
8
In addition to this request, please provide a date and
time that my client can meet with an “investigator” of
your department to complete section 7 of the
application, and have the application “witnessed” by the
investigator and “signed.”
9
United States District Court
For the Northern District of California
10
11
Id.
Mr. Gorski provided his full contact information, but did not
12
include Plaintiff’s name or contact information.
Id.
The Police
13
Department attests that it could not locate these letters in its
14
files.
McEachern Decl. ¶ 19.
The Sheriff’s Department generally
15
attests that it could not find any material related to any CCW
16
application by Plaintiff.
Johnson Decl. ¶ 11.
17
Plaintiff states that her attorney received responses from
18
the San Francisco Police Department and San Francisco Sheriff’s
19
Department on May 28, 2009 and May 29, 2009, respectively.
Pizzo
20
Decl. ¶¶ 45, 51, Exs. 3, 4.
Mr. Gorski has not attested to this
21
fact personally.
Both departments declare that they could not
22
locate a responsive letter in their files.
McEachern Decl. ¶ 19;
23
Johnson Decl. ¶ 11.
In the instant motions, the City has not
24
challenged that these letters were sent by individuals at the
25
Police Department or the Sheriff’s Department.
26
The letter from the San Francisco Police Department was
27
signed by Lieutenant Daniel J. Mahoney, who identifies himself as
28
15
1
Commanding Officer of the Legal Division.
2
3.
In the letter, he states
3
In response to item number 1 of your request, please be
advised that the California Department of Justice is the
custodian of the Application for License to Carry a
Concealed Weapon. As a courtesy, I am enclosing a copy
of the Application.
4
5
6
In response to item number 2, please be advised that the
SFPD does not maintain a list of all current and past
CCW permit holders. I can tell you that we have one
active concealed weapon permit at this time. That
permit was issued to Mr. Robert Menist on 7/1/07 and
expires on 6/30/10.
7
8
9
In response to item number 3 and 4, we do not have
responsive documents.
10
United States District Court
For the Northern District of California
Pizzo Decl. ¶ 45, Ex.
11
With regards to your request for a date and time that
your client can meet with an “investigator”, please be
advised that only if it becomes necessary to complete
section 7 of the application, an investigator will
contact your client. We do not schedule appointments
for this process of the application.
12
13
14
Id.
Although Lieutenant Mahoney stated that there were no
15
responsive documents to the request for Mr. Gorski’s request for
16
the written CCW issuance policy, there was such a policy in effect
17
at that time, as described above.
Lieutenant Mahoney attached a
18
blank copy of the application form and copy of the fee structure
19
for the application.
Id.
At present, Retired Army General Robert
20
Menist continues to be the sole current holder of a CCW license
21
issued by the San Francisco Police Department.
McEachern Decl.
22
¶ 13.
23
The responsive letter from the San Francisco Sheriff’s
24
Department was signed by James F. Harrigan, who identified himself
25
as Legal Counsel to the Sheriff.
Pizzo Decl. ¶ 51, Ex. 4.
26
letter, Mr. Harrigan stated in full,
27
28
16
In the
I write to respond to your confusing and inflammatory
letter of May 26, 2009. Please place yourself in my
shoes for a moment and read your letter, attached.
1
2
First, and foremost, you never identify your client
which, of course, prevents us from researching any
correspondence that may have been received from her.
Secondly, you identify her as a “gay female” as if that
actually matters. I presume you have permission to
express such personal information but you might be
surprised to learn that we don’t maintain carry
concealed weapons (CCW) applicant files by sexual
preference, or even by gender.
3
4
5
6
7
Third, you ascribe obstructionist behavior to Sheriff’s
employees without any facts, who they might have said
their name was, or even when such event(s) occurred.
8
9
It isn’t often that I get such a poorly crafted letter
and it is not ameliorated by your ending paragraph,
which attempts to be solicitous after making such
unsupported accusations.
United States District Court
For the Northern District of California
10
11
12
Perhaps I can clarify the Sheriff’s position for your
consideration. Mr. Hennessey is obligated to issue CCWs
to retired law enforcement personnel in limited
circumstances under state law. There are a host of
conditional factors which apply. He is not obligated to
issue a CCW to any private citizen although he has the
authority to do so. He has never issued a CCW to such
an applicant and has no intention of doing so.
13
14
15
16
Should you wish to file an application you may write a
letter to me or the Sheriff which will be replied to
with a denial. It is a useless exercise but please do
so if you with [sic] to. Obviously, that letter must
identify the applicant and reason(s) for the request.
17
18
19
No meeting with an “investigator” will be scheduled
because his decision is as it has been for twenty-nine
(29) years, a denial. Such is his right and his
practice.
20
21
22
23
Id.
Although Mr. Harrigan stated that the Sheriff’s Department
24
had never issued CCW licenses to private citizens, the
25
then-Sheriff had issued at least two to individuals who were not
26
retired law enforcement officers.
27
letter, he himself held a CCW license issued by the Sheriff on
28
October 3, 2008, while he was a civilian employee of the Sheriff’s
17
At the time of Mr. Harrigan’s
1
Department.
2
October 3, 2010 and was not renewed.
3
retired from the Sheriff’s Department.
4
17, 2006, Sheriff Hennessey also issued a CCW license to a Deputy
5
City Attorney in the San Francisco City Attorney’s Office who was
6
responsible for civil gang injunction prosecutions and reported
7
receiving threats in connection with those prosecutions.
8
¶ 10.
9
City Attorney that, because she was leaving employment with the
Johnson Decl. ¶ 9.
Mr. Harrigan’s license expired on
Id.
Mr. Harrigan has since
Id.
On or about November
Id. at
On March 5, 2007, Sheriff Hennessey notified the Deputy
United States District Court
For the Northern District of California
10
City Attorney’s Office, the CCW license that he had issued to her
11
in connection with her duties would be revoked effective May 1,
12
2007.
13
Id.; Johnson Decl. ¶ 10, Ex. C.
On June 4, 2009, Plaintiff filled out and signed the DOJ
14
standard application form.
15
sections one through five of the application but did not complete
16
or sign sections 6 through 8 because the form’s instructions
17
directed her not to.
18
application included her name and date of birth, but did not
19
contain her address, telephone number or any other contact
20
information.
21
Mr. Gorski’s name or contact information.
22
Pizzo Decl. ¶ 56.
Id. at ¶¶ 57, 59.
Pizzo Decl. ¶ 56, Ex. 5.
She completed
Thus, her filled-in
It also did not contain
Id.
Plaintiff gave the application to her attorney to send; she
23
did not personally send it to the Sheriff’s Department or the
24
Police Department.
25
Plaintiff states that Mr. Gorski mailed it and faxed it to the
26
Sheriff’s Department or the Police Department, but does not offer
27
testimony or evidence from him stating that he did so.
28
Decl. ¶¶ 56-60.
Pizzo Decl. ¶ 56; Pizzo Depo. 89:7-19.
Pizzo
Plaintiff did not write a check to send with her
18
application.
2
declaration two fax confirmation pages that show that, on June 29,
3
2009, Mr. Gorski faxed a twenty page document to the Sheriff’s
4
Department and the Police Department, the first page of which was
5
the cover page of the standard DOJ application form.
6
¶ 60, Ex. 6; see also Johnson Decl. ¶ 15; McEachern Decl. ¶ 23.
7
Plaintiff does not provide evidence that Mr. Gorski included with
8
the application a cover letter or any information that would have
9
associated it with him or his earlier letter or that would have
10
United States District Court
For the Northern District of California
1
provided the Sheriff’s Department and the Police Department with
11
contact information for Plaintiff or himself.
12
Pizzo Depo. 89:25-90:2.
Plaintiff includes with her
Pizzo Decl.
To date, Plaintiff has not received a response to her
13
application from either department.
14
Sheriff’s Department nor the Police Department could locate any
15
record of having received her application.
16
¶¶ 24-25; Johnson Decl. ¶ 14.
17
application or made a determination of whether to grant or deny
18
it.
19
CCW application file that each department could locate, it has
20
records that show that action was taken on the application.
21
McEachern Decl. ¶ 24; Johnson Decl. ¶ 16.
22
Pizzo Decl. ¶ 8.
Neither the
McEachern Decl.
Neither department processed her
McEachern Decl. ¶ 25; Johnson Decl. ¶ 14.
For every other
On September 23, 2009, Plaintiff filed the instant suit.
In
23
her complaint, she brings claims against the City and County of
24
San Francisco and the San Francisco Mayor, the San Francisco
25
Sheriff, the San Francisco Police Chief and the Attorney General
26
27
28
19
1
of California in their official capacities only.4
2
following ten claims against all Defendants in her complaint:
3
4
5
6
7
8
9
(1)
She asserts the
S.F. Police Code section 4512 (the storage ordinance)
violates the Second Amendment;
(2)
S.F. Police Code section 1290, addressing the discharge
of firearms within San Francisco, violates the Second Amendment;
(3)
Cal. Penal Code section 26150, et seq., regarding the
issuance of CCW permits, violates the Second Amendment;
(4)
Cal. Penal Code section 26150, et seq., regarding the
United States District Court
For the Northern District of California
10
issuance of CCW permits, and the policies of the San Francisco
11
Sheriff and Police Chief, violate the Equal Protection Clause of
12
the Fourteenth Amendment;
13
(5)
the sections of the California Penal Code that create an
14
exception to concealed and loaded carry laws for honorably retired
15
police officers with CCW permits violate the Equal Protection
16
Clause of the Fourteenth Amendment;
17
(6)
the Federal Law Enforcement Officers Safety Act, 18
18
U.S.C. §§ 926B, 926C regarding CCW permits for qualified retired
19
law enforcement officers violates the Equal Protection Clause of
20
the Fourteenth Amendment;
21
22
(7)
S.F. Police Code section 613.10(g) (the ammunition
ordinance) violates the Second Amendment;
23
24
25
4
26
27
28
Plaintiff also brought claims against former San Francisco
Mayor Gavin Newsom, former San Francisco Chief of Police Heather
Fong, and former San Francisco Sheriff Michael Hennessey in their
individual capacities. She subsequently dismissed her claims
against them in their individual capacities by stipulation.
Docket No. 58.
20
1
(8)
S.F. Police Code section 613.10(g) (the ammunition
2
ordinance) is unconstitutionally vague under the Fifth Amendment’s
3
due process clause;
4
(9)
S.F. Police Code sections 4512, 1290, 613.10(g) and Cal.
5
Penal Code section 26150, et seq., violate the constitution and
6
laws of the state of California; and
7
(10) S.F. Police Code sections 4512, 1290, 613.10(g) and Cal.
8
Penal Code section 26150, et seq., violate the Due Process Clause
9
of the Fourteenth Amendment.5
United States District Court
For the Northern District of California
10
As relief, Plaintiff seeks a declaration that the complained-
11
of laws, and Defendants’ application and enforcement thereof, are
12
unconstitutional, and an injunction enjoining them from
13
enforcement.
14
In her reply in support of her motion for summary judgment
15
and opposition to Defendants’ motions for summary judgment,
16
Plaintiff withdraws her ninth cause of action as to all Defendants
17
and her fourth cause of action as to the Attorney General only.
18
Docket No. 104, 21, 25.
19
LEGAL STANDARD
20
Summary judgment is properly granted when no genuine and
21
disputed issues of material fact remain, and when, viewing the
22
evidence most favorably to the non-moving party, the movant is
23
clearly entitled to prevail as a matter of law.
Fed. R. Civ. P.
24
25
5
26
27
28
A separate suit against the City and County of San
Francisco and its Mayor and Police Chief, challenging the validity
of S.F. Police Code sections 613.10(g), 1290 and 4512 under the
Second, Fifth and Fourteenth Amendments, remains pending in this
district. See Jackson v. City and Cnty. of San Francisco, Case
No. 09-2143 (N.D. Cal.), Docket No. 18.
21
1
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
2
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
3
1987).
4
The moving party bears the burden of showing that there is no
5
material factual dispute.
6
true the opposing party’s evidence, if supported by affidavits or
7
other evidentiary material.
8
815 F.2d at 1289.
9
in favor of the party against whom summary judgment is sought.
Therefore, the court must regard as
Celotex, 477 U.S. at 324; Eisenberg,
The court must draw all reasonable inferences
United States District Court
For the Northern District of California
10
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
11
587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952
12
F.2d 1551, 1558 (9th Cir. 1991).
13
Material facts which would preclude entry of summary judgment
14
are those which, under applicable substantive law, may affect the
15
outcome of the case.
The substantive law will identify which
16
facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S.
17
242, 248 (1986).
18
19
20
DISCUSSION
I.
Standing
Defendants contend that Plaintiff does not have standing to
21
pursue her challenges to the storage and ammunition ordinances or
22
to the CCW license statutes and policies.
23
that she does not have standing to challenge the storage and
24
ammunition ordinances, but disputes the legal standard that
25
Defendants seek to apply to the standing issue.
26
responds that she does have standing to pursue these issues.
27
28
22
Amicus NRA also argues
Plaintiff
1
A. Challenges to the storage ordinance
2
To establish standing, a plaintiff must show: “(1) he or she
3
has suffered an injury in fact that is concrete and
4
particularized, and actual or imminent; (2) the injury is fairly
5
traceable to the challenged conduct; and (3) the injury is likely
6
to be redressed by a favorable court decision.”
7
Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir.
8
2008).
9
only, there is a further requirement that they show a very
Salmon Spawning &
“Because plaintiffs seek declaratory and injunctive relief
United States District Court
For the Northern District of California
10
significant possibility of future harm; it is insufficient for
11
them to demonstrate only a past injury.”
12
Public Utilities Com’n, 59 F.3d 869, 873 (9th Cir. 1995).
Bras v. California
13
The City contends, based on San Diego Gun Rights Comm. v.
14
Reno, 98 F.3d 1121 (9th Cir. 1996), that to satisfy the injury-in-
15
fact requirement, “a plaintiff must show that she has violated or
16
intends to violate the law and that she has been prosecuted under
17
the law, that she has been individually threatened with imminent
18
prosecution, or that there is a robust history of enforcement of
19
the law.”
20
that she need not show a likelihood of enforcement, relying
21
largely on Jackson v. City & County of San Francisco, 829 F. Supp.
22
2d 867, 872 (N.D. Cal. 2011), in which the court considered the
23
continuing vitality of San Diego Gun Rights Committee in light of
24
the Supreme Court’s recent decision in District of Columbia v.
25
Heller, 554 U.S. 570 (2008).
26
City’s Cross-Mot. for Summ. J. at 8.
The NRA argues
A concrete injury is one that is “‘distinct and palpable
27
. . . as opposed to merely abstract.’”
28
Appeals for 9th Circuit, 279 F.3d 817, 821 (9th Cir. 2002)
23
Schmier v. U.S. Court of
1
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
2
However, when “contesting the constitutionality of a criminal
3
statute, ‘it is not necessary that [the plaintiff] first expose
4
himself to actual arrest or prosecution to be entitled to
5
challenge [the] statute that he claims deters the exercise of his
6
constitutional rights.’”
7
289, 298 (1979) (quoting Steffel v. Thompson, 415 U.S. 452, 459
8
(1974)) (formatting in original).
9
explained, “When the plaintiff has alleged an intention to engage
Babbitt v. UFW Nat’l Union, 442 U.S.
The Supreme Court has
United States District Court
For the Northern District of California
10
in a course of conduct arguably affected with a constitutional
11
interest, but proscribed by a statute, and there exists a credible
12
threat of prosecution thereunder, he should not be required to
13
await and undergo a criminal prosecution as the sole means of
14
seeking relief.”
15
Inc., 549 U.S. 118 (2007) (a “plaintiff’s own action (or inaction)
16
in failing to violate the law eliminates the imminent threat of
17
prosecution, but nonetheless does not eliminate Article III
18
jurisdiction”).
19
prosecution except those that are imaginary or speculative, are
20
not to be accepted as appropriate plaintiffs.’”
21
at 298 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971); Golden
22
v. Zwickler, 394 U.S. 103 (1969)).
23
that they have ever been threatened with prosecution, that a
24
prosecution is likely, or even that a prosecution is remotely
25
possible,’ they do not allege a dispute susceptible to resolution
26
by a federal court.”
27
42).
28
the proscribed conduct “at some unknown point in the future” is
Id.
See also MedImmune, Inc. v. Genentech,
“But ‘persons having no fears of state
Babbitt, 442 U.S.
“When plaintiffs ‘do not claim
Id. at 298-99 (quoting Younger, 401 U.S. at
Further, “a vague and unspecified” intention to engage in
24
1
not enough to support standing.
2
See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)
3
(“Such ‘some day’ intentions -- without any description of
4
concrete plans, or indeed even any specification of when the some
5
day will be -- do not support a finding of the ‘actual or
6
imminent’ injury that our cases require.”).
7
Jackson, 829 F. Supp. 2d at 872.
Regardless of whether or not Plaintiff can establish that
8
prosecution is even remotely possible, she has not alleged a
9
sufficient intention to engage in conduct proscribed by the
United States District Court
For the Northern District of California
10
storage ordinance to support Article III jurisdiction.
11
explained above, in her declaration, Plaintiff states that she
12
intends to possess a “readily accessible operable handgun ready
13
for immediate use, loaded with proper ammunition, within my home
14
for self-defense, on my person, and in my vehicle.”
15
38.
16
having such a handgun in her vehicle or on her person in her home.
17
See S.F. Police Code § 4512(a), (c)(1) (prohibiting people from
18
keeping a handgun within their residence unless it is stored in a
19
locked container or disabled with a trigger lock, but creating an
20
exception if the “handgun is carried on the person of an
21
individual over the age of 18”).6
22
As
Id. at ¶¶ 36,
However, the storage ordinance does not prohibit her from
To the extent that Plaintiff may have intended this statement
23
to mean that she would like to have an operable handgun within
24
reach but not on her person, her only intentions of doing so are
25
speculative and based on potential future events that are not
26
27
28
6
Residence is defined to include “vehicles where human
habitation occurs,” S.F. Police Code § 4512(b)(1), but Plaintiff
has not offered any evidence that she lives in her vehicle.
25
1
connected to whether the ordinance is still in effect.
2
testified that she may only keep her handgun unlocked at some
3
unspecified future point if she were to feel unsafe based on
4
events that may or may not happen, such as a riot, and then only
5
if she also locked her children out of her room or otherwise kept
6
her children away from the loaded weapon.
7
Supp. 2d at 872 (finding standing based on allegations “that based
8
on their personal views of how it would enhance their personal
9
safety, they want to keep their guns unlocked now for potential
United States District Court
For the Northern District of California
10
11
She
Cf. Jackson, 829 F.
use in self defense”) (emphasis added).
At the hearing, Plaintiff clarified that she asserts that she
12
has standing because the ordinance currently prevents her from
13
making her own decision as to whether or not to store her operable
14
gun outside of her gun locker, even if she ultimately may decide
15
not to do so.
16
argument that this deprivation can support standing, where she has
17
expressed no intention to actually engage in any conduct that may
18
be prohibited by the statute.
19
Court concludes that there is no material dispute of fact that
20
Plaintiff does not have an intention to engage in a course of
21
conduct prohibited by the statute that is not “vague and
22
unspecified.”
Plaintiff offers no authority to support her
Under these circumstances, the
23
24
25
26
27
28
26
1
Accordingly, the Court GRANTS the City’s motion for summary
2
judgment on Plaintiff’s claims that seek to challenge the storage
3
ordinance.7
4
B. Challenges to the ammunition ordinance
5
The City contends that Plaintiff does not have standing to
6
challenge the ammunition ordinance, because the law acts to
7
restrict the sales made by licensed gun dealers within city limits
8
but does not prohibit individuals from possessing any type of
9
ammunition inside city limits, and Plaintiff is not a licensed gun
United States District Court
For the Northern District of California
10
dealer.
11
restrict her behavior.
12
at limiting the conduct of gun dealers, such a restriction may
13
still impose a burden on a gun user’s ability to obtain the
14
relevant types of ammunition.
15
n.3 (“While it may be that plaintiffs will be unable, as a factual
16
matter, to establish that a ban on sales within the City and
17
County of San Francisco actually presents a significant burden on
18
their ability to obtain such ammunition, that would only undermine
19
the merits of the claim, not plaintiffs’ standing to bring it.”).
20
Thus, by the City’s reasoning, the ordinance does not
However, even if the restriction is aimed
See Jackson, 829 F. Supp. 2d at 872
Plaintiff contends that she has standing because the City has
21
made obtaining ammunition so burdensome that it amounts to a
22
constructive ban.
23
that she intends to purchase the prohibited ammunition anywhere,
However, Plaintiff has not offered evidence
24
25
26
27
28
7
Plaintiff does not respond to the Attorney General’s
argument that she is not a proper Defendant for the claims
challenging the City’s storage, ammunition and discharge
ordinances. Plaintiff also has moved for summary judgment on
those claims against only the City. Accordingly, the Court GRANTS
the Attorney General summary judgment on the claims that challenge
the City ordinances.
27
1
including within San Francisco, and thus has not established that
2
the ordinance has caused her an injury-in-fact.
3
declaration, Plaintiff states, “I want to use semi-jacket hollow
4
point ammunition that expands and fragments upon impact,” which
5
she believes is better than full metal jacket ammunition for self-
6
defense.
7
intention to purchase such ammunition from a gun shop located in
8
San Francisco or anywhere else if the ordinance were struck down
9
or offer evidence that she has been burdened by having to purchase
Pizzo Decl. ¶ 29.
In her
However, she does not express an
United States District Court
For the Northern District of California
10
ammunition outside of San Francisco.
11
she believed that there were no gun shops within San Francisco
12
itself at which she could make purchases if the ordinance were
13
invalidated, although this belief has since proven to be untrue.
14
She further stated that she had last shopped at a particular gun
15
shop in San Francisco more than twenty years ago and did not
16
express any plans to shop there again in the future, although this
17
gun shop is in fact still open.
18
a present intention to engage in conduct prohibited by the
19
ordinance and her argument that the ordinance burdens her ability
20
to purchase or keep the ammunition is speculative.
21
In fact, she testified that
Thus, Plaintiff has not expressed
Accordingly, the Court finds that Plaintiff lacks standing to
22
challenge the ammunition ordinance and GRANTS the City’s motion
23
for summary judgment on these claims.
24
C. Challenges to the CCW licensing scheme
25
The City, joined by the Attorney General, contends that
26
Plaintiff lacks standing to challenge the CCW permit process
27
because she did not submit proper applications to the Police Chief
28
or to the Sheriff.
28
1
“It is a long-established rule ‘that a plaintiff lacks
2
standing to challenge a rule or policy to which he has not
3
submitted himself by actually applying for the desired benefit.’”
4
Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146 (9th Cir. 2006)
5
(quoting Madsen v. Boise State Univ., 976 F.2d 1219, 1220-1221
6
(9th Cir. 1992) (per curiam)).
7
university “claiming handicap discrimination based on the fact
8
that the University did not offer free handicap parking permits on
9
campus.”
976 F.2d at 1220.
In Madsen, the plaintiff sued a
Prior to filing suit, he called
United States District Court
For the Northern District of California
10
various offices at the university asking about “free handicap
11
parking permits” and was told that none were available.
12
did not apply for a permit, seek a waiver or pay the fee and ask
13
for a refund.
14
Department of Education, Office of Civil Rights.
15
Circuit concluded that he did not have standing to bring suit.
16
Id. at 1222.
17
have actually confronted the policy he now challenges in court has
18
several prudential and practical advantages.”
19
court noted that one of these advantages is “that only those
20
individuals who cannot resolve their disputes without judicial
21
intervention wind up in court.”
22
application as the normal prerequisite for bringing a case to
23
court limits those who can claim injury from a policy which may
24
not have harmed them at all, or that they may not have even known
25
about.”
26
Id.
Id.
He
Instead, he filed a complaint with the
Id.
The Ninth
In ruling, the court stated, “Requiring a party to
Id.
Id. at 1221.
The
Further, “requiring a formal
Id. at 1222.
Plaintiff responds that she “submitted her two applications;
27
not once, but twice to each department.”
28
Re: Summ. J. 26.
Am. Pl.’s Reply and Opp.
Plaintiff cites her attorney’s letter to the
29
1
departments; however, this was not an application.
2
request for information about the application process.
3
also cites the applications that she represents her attorney faxed
4
and mailed to the departments.
5
applications according to their terms and she complains that the
6
“City refused to appoint an investigator so that plaintiff could
7
complete the application process,” id. at 26, Plaintiff did not
8
provide the City with any information that would have allowed
9
either department to contact her in order to process these
It was a
Plaintiff
Although she filled in the
United States District Court
For the Northern District of California
10
applications.
11
relevant application processing fee to the City.
12
Plaintiff did not properly avail herself of the application
13
process.
14
Further, Plaintiff never submitted payment of the
Accordingly,
Such a conclusion furthers the practical advantages discussed
15
by the Ninth Circuit in Madsen as well.
16
application that would have allowed the City to provide her with a
17
response, Plaintiff did not allow either department the
18
opportunity to resolve the dispute without judicial intervention.
19
Plaintiff further argues that this requirement should be
By not submitting an
20
excused because it would have been futile for her to apply.
21
Madsen, the Ninth Circuit stated, “To begin with, it is unclear
22
whether futility can, by itself, establish standing where it does
23
not otherwise exist.
24
aspects of proving injury-in-fact while standing, a constitutional
25
requirement, may not be so easily finessed.”
26
The court declined to resolve this issue because it found the
27
plaintiff had not alleged enough facts to establish futility.
28
However, in a later case, the Ninth Circuit stated, “We have
In
It may well be that futility excuses some
30
976 F.2d at 1220.
Id.
1
consistently held that standing does not require exercises in
2
futility.”
3
2002).
4
unambiguously rendered an application futile, courts have not
5
required plaintiffs to submit a formal application to establish
6
standing.
7
unambiguously precludes Taniguchi, as [a lawful permanent
8
resident] convicted of an aggravated felony, from the
9
discretionary waiver.
Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir.
Thus, in cases where the challenged policy or ordinance
See, e.g., id. at 950 (“the [challenged] statute
To apply for the waiver would have been
United States District Court
For the Northern District of California
10
futile on Taniguchi’s part and, therefore, does not result in a
11
lack of standing.”); Desert Outdoor Advertising, Inc. v. City of
12
Moreno Valley, 103 F.3d 814 (9th Cir. 1996) (“Applying for a
13
permit would have been futile because: (1) the City brought state
14
court actions against [the plaintiffs] to compel them to remove
15
their signs; and (2) the ordinance flatly prohibited [the
16
plaintiffs’] off-site signs[.]”); see also Dragovich v. United
17
States Dep’t of the Treasury, 764 F. Supp. 2d 1178, 1185 (N.D.
18
Cal. 2011) (same sex couples was not required to submit an
19
application for state-maintained long-term care insurance plan in
20
order to establish standing where the government agency made
21
abundantly clear in written and oral communications that their
22
applications would be rejected and the relevant laws “plainly
23
result” in the exclusion of same sex couples).
24
In Friery, the Ninth Circuit considered a case in which a
25
plaintiff attempted to establish standing through the futility
26
exception.
27
high school in Los Angeles Unified School District (LAUSD), had
28
approached the principal at a school at which he taught and asked
448 F.3d at 1149-50.
The plaintiff, a teacher at a
31
1
about the possibility of transferring to a vacant position at
2
another school.
3
a policy which “bars intra-district faculty transfers that would
4
move the destination school’s ratio of white faculty to nonwhite
5
faculty too far from LAUSD’s overall ratio.”
6
principal told him that “he would not be eligible for the transfer
7
because he was . . . of ‘the wrong ethnic origin.’”
8
The teacher did not file a formal transfer application in light of
9
this representation.
Id. at 1147-48.
Id.
The school district had in place
Id. at 1147.
The
Id. at 1148.
The Ninth Circuit found that the record
United States District Court
For the Northern District of California
10
was not sufficiently developed for it to determine whether he had
11
standing and remanded for further fact-finding by the district
12
court.
13
principal] correctly interpreted the Transfer Policy, if [the
14
principal] had the authority to deny [the teacher] the ability to
15
transfer, and if any exceptions in the Transfer Policy did not
16
apply to [the teacher], then [the principal]’s assurances to him
17
might make Friery’s application futile.”
18
Id. at 1150.
In doing so, the court noted, “If [the
Id. at 1149-50.
Here, Plaintiff’s primary basis for arguing that her
19
application would have been futile is the letter sent by Mr.
20
Harrigan, the then-Sheriff’s legal counsel, in which he stated
21
that any application from a private citizen would be rejected.
22
Plaintiff, however, has offered no evidence that this was actually
23
the policy of the former Sheriff or that Mr. Harrigan had the
24
authority to deny an application or to set policy.
25
evidence in the record that the Sheriff has issued CCW permits to
26
unsworn individuals and that the Sheriff has denied such permits
27
to former federal or local employees.
28
have been futile for Plaintiff to apply for a permit from the
32
There is
Further, even if it would
1
Sheriff, there were two licensing authorities in San Francisco and
2
this letter did not make it appear that it would have been futile
3
for Plaintiff to submit an application to the Police Chief.
4
Finally, Plaintiff’s own actions belie this argument.
5
receiving this letter from Mr. Harrigan, Plaintiff attempted to
6
submit a CCW license application to the Sheriff’s Department.
7
Although she did not complete it properly, this demonstrates that
8
she herself did not believe that it was futile to apply.
9
After
Accordingly, the Court finds that Plaintiff lacks standing to
United States District Court
For the Northern District of California
10
challenge the CCW permit process and GRANTS Defendants’ motions
11
for summary judgment on these claims.8
12
II.
13
Challenges to the discharge ordinance
Plaintiff states that Police Code section 1290 “prohibits the
14
‘discharge [of] any firearms’ within the City and County of San
15
Francisco, and provides no exception for discharges related to in-
16
home self-defense.”
17
Plaintiff argues that the ordinance is unconstitutional and
18
requests that the Court enjoin enforcement of it.
19
in 2011, Police Code section 1290 was changed and no longer
20
applies to firearms at all.
21
to sections 4502 and 4506 that contain the specific exceptions
Pl.’s Mot. for Summ. J. 15.
On this basis,
Id.
However,
It was replaced with the amendments
22
23
24
25
26
27
28
8
Plaintiff also has not responded to Defendants’ arguments
that she has not named any proper federal defendant for her sixth
cause of action, which challenges the provisions of Federal Law
Enforcement Officers Safety Act, 18 U.S.C. §§ 926B, 926C, that
allow qualified retired law enforcement officers to obtain CCW
permits, and that the named Defendants, who are all state and city
officials, are required by the Supremacy Clause to give these
statutes effect. In fact, in her motion and opposition papers,
Plaintiff does not make a single reference to these statutes.
Accordingly, the Court GRANTS Defendants summary judgment on the
sixth cause of action.
33
1
that Plaintiff complained section 1290 had lacked.
2
raises no argument that sections 4502 and 4506 are
3
unconstitutional and does not seek to enjoin enforcement of these
4
sections.
5
Plaintiff’s request to enjoin its enforcement is moot.
6
Plaintiff also
Because the complained-of section has been repealed,
Plaintiff contends that, although her request for relief is
7
moot, she should be able to obtain an award of attorneys’ fees
8
that she incurred during the pendency of this action.
9
argues, “To the extent the law was changed after plaintiff filed
Plaintiff
United States District Court
For the Northern District of California
10
her action,” she is entitled to “an adjudication that plaintiff is
11
deemed a prevailing party for an award of attorney fees pursuant
12
to 42 U.S.C. Section 1988,” because a “[p]ost hoc legislative
13
change altered the legal relationship between the parties and
14
constituted a direct benefit to plaintiff.”
15
Id.
Title 42 U.S.C. § 1988 provides in relevant part that, in any
16
action or proceeding to enforce various civil rights statutes,
17
including 42 U.S.C. § 1983, “the court, in its discretion, may
18
allow the prevailing party, other than the United States, a
19
reasonable attorney’s fee as part of the costs.”
20
§ 1988(b).
21
42 U.S.C.
A “plaintiff who does not secure a judgment on the merits
22
‘but has nonetheless achieved the desired result because the
23
lawsuit brought about a voluntary change in the defendant’s
24
conduct’ is not a ‘prevailing party’ for purposes of awarding
25
attorney’s fees.”
26
F.3d 901, 906-907 (9th Cir. 2005) (quoting Buckhannon Bd. & Care
27
Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S.
28
598, 600 (2001)).
Benton v. Or. Student Assistance Comm’n, 421
Following the Supreme Court’s decision in
34
1
Buckhannon, the Ninth Circuit held that “to qualify as a
2
‘prevailing party’ under 42 U.S.C. § 1988 a party must obtain a
3
‘judicially sanctioned change in the legal relationship of the
4
parties.’”
5
2001) (quoting Buckhannon, 532 U.S. at 1840 and holding that,
6
“even if” the “political branches were motivated to enact” a
7
legislative change “solely by this litigation, this result ‘lacked
8
the necessary judicial imprimatur’ to qualify plaintiffs as
9
prevailing parties”) (emphasis in original).
United States District Court
For the Northern District of California
10
Bennett v. Yoshina, 259 F.3d 1097, 1101 (9th Cir.
Accordingly, even if the City changed the ordinance in
11
reaction to this lawsuit, and not, for example, in reaction to the
12
Supreme Court’s decisions in Heller and McDonald v. City of
13
Chicago, 130 S. Ct. 3020 (2010), the City’s voluntary change does
14
not qualify Plaintiff as a prevailing party for the purposes of
15
obtaining attorneys’ fees.
16
CONCLUSION
17
For the reasons set forth above, the Court DENIES Plaintiff’s
18
motion for summary judgment (Docket No. 60) and GRANTS Defendants’
19
cross-motions for summary judgment (Docket Nos. 71 and 91).
20
The Clerk shall enter judgment.
21
their costs from Plaintiff.
22
Defendants shall recover
IT IS SO ORDERED.
23
24
25
Dated: 12/5/2012
CLAUDIA WILKEN
United States District Judge
26
27
28
35
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