Ninth Circuit reinstates suit over zoning law restricting gun stores

[KyJim]

A panel of the Ninth Circuit has voted 2 to 1 to reinstate a lawsuit in Teixeira v. County of Alameda (No. 13-17132) where the plaintiffs alleged the county had improperly adopted zoning laws which prevented new gun stores from opening. I haven't read the full opinion yet but the court rejected an equal protection claim and ruled on the 2nd Amendment claim. The following is from the opinion's summary (not officially part of the opinion):

Reversing 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 review.

The 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 warranted.

Full opinion at https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/05/16/13-17132.pdf

The dissent evidently believes this is just a routine zoning dispute and notes there are ten other gun stores in the county so that 2A rights are not being deprived.

I'm guessing the county will file for a rehearing en banc. I would be surprised if this was accepted for review by the Supreme Court because it has shown a lack of enthusiasm for 2A issues recently and this isn't something that seems to cry out for the need for higher review, IMO.

 

[kilimanjaro]

Interesting dissent. If there are gun stores in other locations the County is free to craft an Ordinance that effectively bans them without showing any public good. Maybe bakeries and day care centers, too.

So even the court cannot check the power of the government, they can do whatever they like.

 

[Frank Ettin]

....If there are gun stores in other locations the County is free to craft an Ordinance that effectively bans them without showing any public good. Maybe bakeries and day care centers, too.

So even the court cannot check the power of the government, they can do whatever they like.

Hogwash! The dissent says no such thing. Judge Silverman's position in his dissent is simply that the the case really doesn't raise a Second Amendment issue.

As Judge Silverman notes (Teixeira v. County of Alameda (Ninth Circuit, No. 13-17132, 2016), slip op. at 35):

...there is no claim that, due to the zoning ordinance in question, individuals cannot lawfully buy guns in Alameda County. It is undisputed that they can....

When you clear away all the smoke, what we’re dealing with here is a mundane zoning dispute dressed up as a Second Amendment challenge....

Absolutely nothing in Judge Sullivan's very short dissent could by any stretch of the imagination support the conclusion that:

...even the court cannot check the power of the government, they can do whatever they like.....

Such preposterous comments do nothing to further either our understanding of the legal process or the RKBA

Of course Judge O’Scannlain's opinion addressed Judge Silverman's point.

 

[Aguila Blanca]

I'm not in California, but my town did much the same thing. About two years ago (maybe three), two retired police officers opened a gun shop in a strip mall in the commercially-zoned area of town. The zoning commission and just about every other public agency in town did everything they could to prevent it from opening but, in the end, there was nothing in the regulations to prevent it. But once it opened, the zoning commission quickly adopted a zoning amendment that effectively means there can never EVER be another gun shop in town.

 

[kilimanjaro]

Despite Mr. Ettins' hyperbole, Judge Silverman's dissent was exactly what I was mentioning, his refusal to consider the rights of the citizenry as opposed to whatever Ordinances the locals feel like passing is cowardice on his part, and acquiescence to a overreach of government. With a judicial bench of that nature, there are no checks and balances on government power.

 

[Skans]

I get what the dissent is saying, but keep in mind that the majority judges were appointed by Regan and Bush II. The minority judge was appointed by Clinton. The legislation was designed to make it difficult for people living in a particular area to have access to purchasing firearms.

This is not simply a mundane zoning dispute. This is a case of exclusionary zoning applied to people who want to buy and sell guns - a protected 2nd Amendment right. If you can zone out gun stores, then you can zone out low income housing, public housing, churches, etc. No, this is clearly a 2nd Amendment case - not a mundane zoning dispute.

 

[Aguila Blanca]

This is not simply a mundane zoning dispute. This is a case of exclusionary zoning applied to people who want to buy and sell guns - a protected 2nd Amendment right. If you can zone out gun stores, then you can zone out low income housing, public housing, churches, etc. No, this is clearly a 2nd Amendment case - not a mundane zoning dispute.

As a one-time chairman of a municipal planning and zoning commission, I agree. Zoning is supposed to be about the use of land/property. Once you zone it "Commercial," it should be open to any commercial enterprise. To start micro-managing and say that it's okay to sell hammers and saws, toiletries and cosmetics, toys, art supplies, candy and soft drinks, computers and printers and pens and pencils, but certainly NOT guns or ammunition -- IMHO exceeds the authority of a zoning commission. Once a section of the municipality is zoned for selling things, it should be permissible to sell anything that's not illegal.

 

[Frank Ettin]

Despite Mr. Ettins' hyperbole,...

"Hyperbole":

noun, Rhetoric.

1. obvious and intentional exaggeration.

2. an extravagant statement or figure of speech not intended to be taken literally, as “to wait an eternity.”.

So no, nothing I wrote was hyperbole.

...then you can zone out low income housing, public housing, churches, etc....

Actually, in some cases a county or municipality can.

See for example Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir., 2003) and Grace United Methodist Church v. Cheyenne, 427 F.3d 775 (Fed. 10th Cir., 2005) in which the courts upheld the use of zoning/land use laws to prohibit certain religious or church related uses of properties. See also Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276 (11th Cir., 2006) in which the court of appeals sustained a county's use of its zoning laws to block a low income housing project in a particular location.

On the other hand, there are case in which federal courts have found the use of zoning laws to be improper to restrict protected activities.

So whether a zoning law may be properly used to block a protected activity requires a case-by-case analysis and will turn on a number of factors.

One factor, the one that Judge Silverman conveniently ignored, is the scope of the constitutional projection afforded the activity. So whether Alamada's zoning rules can be applied to block a gun store would, based on the church and low income housing cases, implicate Second Amendment protections.

 

[rwilson452]

I doubt the U.S.Supreme Court will take this as long as they are one judge short.

 

[62coltnavy]

Given the procedural posture of this case--an appeal of a pre-trial dismissal for failure to state a claim--this case is not ripe for further review. All of the factual arguments can be explored, litigated, and then the whole kit and kaboodle appealed again.

This case may have an important impact on a dispute pending in Daly City. A business owner lost his lease in one city, and sought to open a new store in the adjacent city (and in a location very close to his old one). He did everything demanded of him by the Planning Commission, received approval, and spent money on improvements. Anti-gun citizens appealed the approval to the City Council, and in a very partisan vote, the permit was denied. He is suing. Some people think that gun stores "draw the wrong crowd" and pose a threat to the community and any nearby schools.

 

[KyJim]

A bit of an update on this case. After a second en banc decision denying plaintiffs (the ones wearing the white hats) relief, the plaintiffs have filed their petition for writ of certiorari in the Supreme Court with the support of two amici curiae briefs. A response is due April 10, 2018. The Supreme Court docket listing, and links to the briefs, are here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-982.html.

The Cato Institute filed an amicus brief explaining that it was the British attempts to stifle firearms commerce and the attempted seizure of firearms that most immediately sparked the Revolutionary War. There's a short article over at the Volokh Conspiracy, links to the brief, and links to a law review article. I'm not terribly optimistic, but who knows --- maybe they'll grant the petition.

 

[Bartholomew Roberts]

I haven’t read the decisions; but just taking a stab in the dark, the second en banc decision decided the issue wasn’t a “core Second Amendment right” and then applied a diluted form of intermediate scrutiny indistinguishable from rational basis and found the regulation satisfied scrutiny?

 

[KyJim]

I did not have the chance to look at the opinion before I posted about the cert petition. I've quickly glanced at it now.

The 9th Circuit noted there were ten gun stores in the county and recognized there was a right (perhaps limited) to purchase firearms but not a right of a particular merchant to sell firearms:

[W]e conclude that the Second Amendment does not confer a freestanding right, wholly detached from any customer's ability to acquire firearms, upon a proprietor of a commercial establishment to sell firearms. Commerce in firearms is a necessary prerequisite to keeping and possessing arms for self-defense, but the right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them.

Teixeira v. County of Alameda, 873 F.3d 670, 682 (9th Cir. 2017).

To me, this seems to recognize some sort of right to sell firearms IF the public could not otherwise acquire firearms. I'm not sure I disagree with this express holding. The problem, as often the case, is in its application.

 

[Al Norris]

There was no "second" en banc hearing.

When the plaintiffs 1st amended complaint was dismissed with prejudice by the district court, they appealed. The original 3 judge panel found for the plaintiffs and reversed and remanded. The county petitioned for an en banc hearing and it was granted.

The en banc panel not only upheld the district court, but point blank said that while there is (perhaps) an ancillary right to acquire firearms, there was no right to sell. Using there own so-called historical search, they found that government could and did arm citizens (for militia purposes). Because of that, no right to sell was attached.

Alameda county was not required to (and never) defended their ordinance as to why gun stores were singled out in zoning ordinances. The en banc panel did that for them. Using nothing more than rational basis (there was never even the hint of using any higher scrutiny, once the en banc panel found there was no right to sell), the en banc panel held for the defendants.

On Jan 8, 2018 the plaintiffs petitioned for certiorari, asking the SCOTUS to answer the following:

1. When Second Amendment claims are suitable for means-ends scrutiny, must courts apply some form of heightened scrutiny, or might rational-basis review suffice?

2. Does the Second Amendment secure a right to sell firearms?

On Jan 29 the respondents filed a motion for a 60 day extension to reply and it was granted.

On Feb 9 the CATO Institute filed an amicus brief, as did the NSSF.

This is actually an important case on three fronts. First and foremost, If I have a right to possess firearms for self defense and a right to acquire firearms for self defense, is there not an implied right to sell firearms for self defense? The 9th Circuit says, no.

Secondly, the 9th Circuit opinion will let stand the idea that a private residence is a sensitive place, such as schools and government buildings, and may therefore be regulated (from guns). Without the government showing more, a first amendment case involving a bookstore would not withstand any scrutiny.

Finally, this panel's opinion fails to follow its own precedence in second amendment cases.

In my opinion (worth what you have paid), the easiest method to dispose of the controversy would be for SCOTUS to issue a per curiam ruling, much as the Court did with the MA Supreme Court.

 

[Aguila Blanca]

From a practical standpoint, how does the argument that there are other gun stores in the county work? Today there are ten options. Next week they all decide to retire and close down, and the zoning regulations prohibit any new stores from opening. That's exactly what happened in my (not California) town. After one gun shop opened, the town changed the zoning regulations with a carefully crafted set of requirements that make it impossible for anyone to ever open another gun store in town. The one that was open was burglarized, his business never recovered from the aftermath, and a year later he closed.

"Two is one, and one is none."

 

[KyJim]

There was no "second" en banc hearing.

Thanks for the correction. It was late last night when I posted. I'm not sure where that came from.

 

[Bartholomew Roberts]

Using nothing more than rational basis (there was never even the hint of using any higher scrutiny, once the en banc panel found there was no right to sell), the en banc panel held for the defendants.

Well, at least they’ve stopped even the pretense of applying “heightened” scrutiny.

 

[zukiphile]

First and foremost, If I have a right to possess firearms for self defense and a right to acquire firearms for self defense, is there not an implied right to sell firearms for self defense? The 9th Circuit says, no.

It's been more than a half century since private hotel owners have been permitted to enforce screening criteria that impose on the fundamental right to travel. Can the obligation of a state not to impose on an explicit and fundamental right be less?

 

[Al Norris]

It's been more than a half century since private hotel owners have been permitted to enforce screening criteria that impose on the fundamental right to travel. Can the obligation of a state not to impose on an explicit and fundamental right be less?

The use of the word, "obligation", is rather strange, since we are talking about the powers of a government. In that context, yes. The Bill of Rights are prohibitions to the power(s) of government. They are not necessarily prohibitions on the private sector.

Or am I failing to understand your question?

 

[zukiphile]

The question is rhetorical, but intended to point to a tension.

On the one hand, the Heart of Atlanta Motel was found to have imposed upon the fundamental right to travel by discriminating against travelers racially. It wasn't the only motel, but the idea that a race of people couldn't use hotels as they travelled (and the reality that people of color often had to make different arrangements) was an imposition on that fundamental right.

Here, an administrative subunit of a state seeks to burden a fundamental right by effectively prohibiting the means to buy the item involved in the right.

The means by which the right is burdened is different, but an analysis that strikes down acts that would burden a fundamental right, even where that right is burdened by private acts, should also strike down the act of a locality for imposing that burden by law. At least one of the McDonald interim decisions struck Chicago's ridiculous range and permit regulations with reasoning that allowing exercise of a right while erecting barriers to exercise of the right didn't fool that court.

This case also is distinguishable from McDonald in that the kind of regulation differs. It does appear to be calculated to have some of the same effects.