JOHN TEIXEIRA; STEVE NOBRIGA; GARY GAMAZA; CALGUNS FOUNDATION, INC., (CGF); SECOND AMENDMENT FOUNDATION, INC., (SAF); CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES, (CAL-FFL), Plaintiffs-Appellants,
COUNTY OF ALAMEDA; ALAMEDA COUNTY BOARD OF SUPERVISORS, as a policy making body; WILMA CHAN, in her official capacity; NATE MILEY, in his official capacity; KEITH CARSON, in his official capacity, Defendants-Appellees
and Submitted: December 8, 2015, San Francisco, California.
from the United States District Court for the Northern
District of California. D.C. No. 3:12-cv-03288-WHO. William
Horsley Orrick III, District Judge, Presiding.
panel affirmed in part and reversed in part the district
court's dismissal for failure to state a claim, and
remanded in an action brought by three individuals wishing to
operate a gun shop in Alameda County, California, who
challenged a County ordinance, which among other things, does
not permit prospective gun stores to be located within 500
feet of a residentially zoned district.
the dismissal of the Equal Protection claims, the panel
determined that this was not a situation where one group was
being denied a right while another similar group was not. The
panel held that because the right to keep and to bear arms
for self-defense is not only a fundamental right, but an
enumerated one, it was more appropriately analyzed under the
Second Amendment than the Equal Protection Clause. The panel
further held that plaintiffs failed to plead a cognizable
class-of-one claim because they had neglected to identify a
similarly situated business.
the dismissal of plaintiffs' Second Amendment claims, the
panel held that the County had offered nothing to undermine
the panel's conclusion that the right to purchase and to
sell firearms is part and parcel of the historically
recognized right to keep and to bear arms. The panel held
that the Ordinance burdened conduct protected by the Second
Amendment and that it therefore must be subjected to
heightened scrutiny--something beyond mere rational basis
panel held that under heightened scrutiny, the County bore
the burden of justifying its action, and that the district
court should have required the County to provide some
evidentiary showing that gun stores increase crime around
their locations or negatively impact the aesthetics of a
neighborhood. The panel held that if on remand evidence did
confirm that the Ordinance as applied, completely bans new
guns stores (rather than merely regulating their location),
something more exacting than intermediate scrutiny would be
in part and dissenting in part, Judge Silverman agreed that
the equal protection claims were correctly dismissed, but
dissented from the majority's opinion regarding the
Second Amendment. In Judge Silverman's view this case was
a mundane zoning dispute dressed up as a Second Amendment
challenge and the district court correctly ruled that the
ordinance restricting the location of a gun store is "
quite literally a 'law imposing conditions and
qualifications on the commercial sale of arms.'"
E. J. Kilmer, Jr., San Jose, California, argued the cause and
filed the briefs for the plaintiffs-appellants. With him on
the opening brief was Charles W. Hokanson, Long Beach,
J. Feudale, County Counsel, Alameda County, California,
argued the cause for the defendants-appellees. Donna R.
Ziegler, County Counsel, and Mary Ellyn Gormley, Assistant
County Counsel, filed the brief.
Gura, Gura & Possessky, PLLC, Alexandria, Virginia, filed a
brief on behalf of amicus curiae Citizens Committee for the
Right to Keep and Bear Arms in support of the
plaintiffs-appellants. Imran A. Khaliq, Arent Fox LLP, filed
a brief on behalf of amici curiae Law Center to Prevent Gun
Violence and Youth Alive! in support of the
Diarmuid F. O'Scannlain, Barry G. Silverman, and Carlos
T. Bea, Circuit Judges. Partial Concurrence and Partial
Dissent by Judge Silverman.
decide whether the right to keep and to bear arms, as
recognized by the Second Amendment, necessarily includes the
right of law-abiding Americans to purchase and to sell
firearms. In other words, we must determine whether the
Second Amendment places any limits on regulating the
commercial sale of firearms.
fall of 2010, John Teixeira, Steve Nobriga, and Gary Gamaza
decided to open a retail business that would offer firearm
training, provide gun-smith services, and sell firearms,
ammunition, and gun-related equipment. The three formed a
partnership named " Valley Guns & Ammo" and set to
work on making their plan a reality. The trio conducted an
extensive survey of Alameda County, California residents and
discovered that existing retail establishments failed to
satisfy customer demand. The men believed that Alameda County
residents were in need of a more personal experience, and
were likely to embrace a business that could provide a
broader range of services not offered by existing sporting
goods retailers. The City of San Leandro appeared to be the
ideal location for their gun store.
had operated an Alameda County gun store previously and was
thus well aware of the maze of federal, state, and local
regulations that he and his partners would have to navigate
before they could open shop. Teixeira and Nobriga qualified
for federal firearm licenses; all three men were eligible for
California licenses. All that remained was to ensure that
Valley Guns & Ammo would be in compliance with the Alameda
unincorporated Alameda County, two species of retailers must
obtain " Conditional Use Permits" before they are
authorized to conduct business: " superstore[s]"
and " firearms sales business[es]." Alameda Cty.,
Cal., Code § § 17.54.130-132 (" the
Ordinance" ). The County reviews applications to
determine whether there is a " public need" for a
proposed business, whether the business will " affect
adversely the health or safety of persons residing or working
in the vicinity," and whether the business would be
detrimental to the public welfare or property. Id.
§ 17.54.130. The County will not issue a permit to a
prospective gun retailer until the applicant proves, among
other things, that it (1) possesses the requisite state and
federal licenses, (2) will store firearms and ammunition
lawfully, and (3) the proposed location of the business is
not within five hundred feet of a " [r]esidentially
zoned district; elementary, middle or high school; pre-school
or day care center; other firearms sales business; or liquor
stores or establishments in which liquor is served."
Id. § § 17.54.130-131. Finally, firearms
sellers must obtain a county firearms dealer license.
Id. § 17.54.131.
Alameda County Planning Department informed Teixeira,
Nobriga, and Gamaza (collectively " Teixeira" )
that the 500-foot zoning requirement was to be measured from
the closest door of the proposed business location to the
front door of any disqualifying property. Relying on such
guidance, Teixeira settled on a suitable property on
Lewelling Boulevard in San Leandro. The building he chose had
only one door, which faced Lewelling Boulevard. Teixeira
obtained a survey showing that the closest residential
property (from door to door) was located 532 feet away,
across Interstate 880 in San Lorenzo Village. The next
closest disqualifying properties, similarly measured, were a
residence located 534 feet away and another property located
560 feet away (the latter also on the far side of the
Interstate). Teixeira met with the landlord of the chosen
premises, agreed to a lease, and began conducting
preparations to ensure that the property would comply with
myriad state and federal regulations.
West County Board of Zoning Adjustment scheduled a hearing
and the Planning Department issued a " Staff
Report." Aside from raising concerns regarding
compliance with the " Eden Area General Plan,"
the report found that there was indeed a " public
need" for Valley Guns & Ammo's services, that the
proposed business would not affect adversely the health or
safety of local residents, that it had obtained all required
licenses, and that Teixeira had sufficient knowledge to
operate a gun store. The report nevertheless concluded that a
zoning variance would be required because the proposed site,
contrary to the survey Teixeira had commissioned, was in fact
within 500 feet of a residential property and therefore
failed to qualify for a permit. The report explained that the
County had chosen to measure from the closest building
exterior wall of the proposed site to the closest residential
property line rather than from door to door. As a result, it
determined that the nearest residential property was only 446
feet away-54 feet too close under the 500-foot rule. The
report recommended against approving a variance.
the report, at a public hearing on December 14, 2011, the
West County Board of Zoning Adjustments voted to grant a
variance and approved the issuance of a permit. Noting the
violation of the 500-foot rule, the Board reasoned that the
" situation [was] unique" and thus a variance was
appropriate because Interstate 880, as well as other
obstructions, prevented " direct traversable access at a
distance less than 500 feet from the site to a residentially
zoned district." The Board determined that
Teixeira's proposal otherwise complied with the
Conditional Use Permit requirements, and that it was not
counter to the Eden Area General Plan. Teixeira was informed
that the decision would be final unless an appeal were filed
by December 26, 2011.
Lorenzo Village Homes Association, some of whose members
" are opposed to guns and their ready availability and
therefore believe that gun shops should not be located within
[their] community," challenged the Board's decision.
On February 28, 2012, the Alameda County Board of Supervisors
voted to sustain the appeal, thus revoking Teixeira's
Conditional Use Permit and variance.
challenged the County's decision in the United States
District Court for the Northern District of California,
arguing that it violated his right to due process and denied
him equal protection of the law, and that the Ordinance was
impermissible under the Second Amendment both facially and as
applied. In preparation for the suit, Teixeira commissioned a
study, which determined that, as a result of the 500-foot
rule, " there are no parcels in the unincorporated areas
of Alameda County which would be available for firearm retail
sales." He argued that the zoning ordinance " is
not reasonably related to any possible public safety
concerns" and effectively " red-lin[es] . . . gun
stores out of existence."
County moved to dismiss the claims and Teixeira moved for a
preliminary injunction (Teixeira would later stipulate to the
dismissal of his due process claim). The district court
denied Teixeira's motion and dismissed the equal
protection and Second Amendment claims with leave to amend.
Teixeira filed an amended complaint that asserted four
claims: (1) in singling out gun stores, the Ordinance, as
applied, violated the Fourteenth Amendment's Equal
Protection Clause; (2) the Ordinance was facially invalid
under the Equal Protection Clause because it targeted guns
stores but did not apply to other similarly situated
businesses; (3) the Ordinance was facially invalid under the
Second Amendment; and (4) the Ordinance, as applied, violated
the Second Amendment. Teixeira sought declaratory and
injunctive relief; damages including costs, expenses, and
lost profits; and costs and attorney's fees. In response,
the County moved to dismiss, arguing that the equal
protection challenges failed to state sufficient facts to
support a claim and that under the Second Amendment,
regulations governing the sale of firearms are presumptively
district court granted the County's motion under Federal
Rule of Civil Procedure 12(b)(6) to dismiss for failure to
state a claim upon which relief could be granted. Teixeira
first renews his Equal Protection Clause claims. Because
" most legislation classifies for one purpose or
another, with resulting disadvantage to various groups or
persons," we will uphold a legislative classification so
long as it " neither burdens a fundamental right nor
targets a suspect class," and " bears a rational
relation to some legitimate end." Romer v.
Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d
855 (1996); see also Nordlinger v. Hahn,
505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).
gun store owners have not been recognized as a " suspect
class," see Olympic Arms v. Buckles,
301 F.3d 384, 388-89 (6th Cir. 2002), Teixeira instead
asserts that he is " engaged in, or assisting others in
exercising a core fundamental right" and that " the
Government's actions infringe on" that right. Merely
infringing on a fundamental right, however, does not
implicate the Equal Protection Clause; to succeed, Teixeira
must allege that he is being denied a fundamental right while
others are permitted to exercise such right, and that there
is no valid justification for the distinction. See
Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (" When
the law lays an unequal hand on those who have committed
intrinsically the same quality of offense and sterilizes one
and not the other, it has made as an invidious a
discrimination as if it had selected a particular race or
nationality for oppressive treatment." ); see
also Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969);
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22
L.Ed.2d 600 (1969), overruled, in part, on other grounds
by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct.
1347, 39 L.Ed.2d 662 (1974). Here, " other general
retailers," whom Teixeira identifies as similarly
situated businesses, are also forbidden from engaging in the
commercial sale of firearms absent compliance with Alameda
County Land Use Code § 17.54.131. This is not a
situation where one group is being denied a right while
another similar group is not. And because the right to keep
and to bear arms for self-defense is not only a fundamental
right, McDonald v. City of Chicago, 561 U.S. 742,
766-78, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), but an
enumerated one, it is more appropriately analyzed under the
Second Amendment than the Equal Protection Clause.
Cf. Albright v. Oliver, 510 U.S. 266, 273,
114 S.Ct. 807, 127 L.Ed.2d 114 (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 these claims.'"
(quoting Graham v. Connor, 490 U.S. 386, 395, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989))). Because Teixeira's
equal protection challenge is " no more than a [Second]
Amendment claim dressed in equal protection clothing,"
it is " subsumed by, and coextensive with" the
former, Orin v. Barclay, 272 F.3d 1207, 1213 n.3
(9th Cir. 2001), and therefore is not cognizable under the
Equal Protection Clause.
Teixeira adequately plead a " class-of-one" Equal
Protection Clause claim. A class-of-one claim is cognizable
when a " plaintiff alleges that she has been
intentionally treated differently from others similarly
situated and that there is no rational basis for the
difference in treatment." Village of Willowbrook v.
Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d
1060 (2000). But Teixeira himself acknowledges that gun
stores are materially different from other retail businesses
when he notes that " [b]usinesses offering gun smithing
services and retail firearm sales are strictly licensed and
regulated by state and federal law." In neglecting to