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Case 2:16-cv-02572-BRO-AFM Document 14 Filed 06/10/16 Page 1 of 31 Page ID #:47



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KAMALA D. HARRIS
Attorney General of California
MARK R. BECKINGTON
Supervising Deputy Attorney General
JOHN D. ECHEVERRIA
Deputy Attorney General
State Bar No. 268843

300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-4902
Fax: (213) 897-5775
E-mail: [email protected]

Attorneys for Defendant Kamala D. Harris,
California Attorney General


IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION (LOS ANGELES)

ULISES GARCIA; JORDAN
GALLINGER; BRIAN HILL;
BROOKE HILL; CRAIG DeLUZ;
SCOTT DIPMAN; ALBERT
DUNCAN; TRACEY GRAHAM;
LISA JANG; DENNIS SERBU;
MICHAEL VEREDAS; FIREARMS
POLICY FOUNDATION;
FIREARMS POLICY COALITION;
MADISON SOCIETY
FOUNDATION; and THE
CALGUNS FOUNDATION,

Plaintiffs,

v.

KAMALA D. HARRIS, in her official
capacity as Attorney General of
California,

Defendant.












Case No.: 2:16-cv-02572-BRO-AFM

NOTICE OF MOTION AND
MOTION TO DISMISS
COMPLAINT BY CALIFORNIA
ATTORNEY GENERAL KAMALA
D. HARRIS; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO
DISMISS

Date: August 8, 2016
Time: 1:30 p.m.
Courtroom: 14
Judge: The Honorable Beverly

Acton Filed: April 14, 2016

Reid O’Connell







Case 2:16-cv-02572-BRO-AFM Document 14 Filed 06/10/16 Page 2 of 31 Page ID #:48



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PLEASE TAKE NOTICE that, at 1:30 p.m. on August 8, 2016, or as soon

thereafter as the matter may be heard in the above-entitled Court, Defendant

California Attorney General Kamala D. Harris (the “Attorney General”) will and

presently does move this Court to dismiss the complaint filed by Plaintiffs Ulises

Garcia, Jordan Gallinger, Brian Hill, Brooke Hill, Craig DeLuz, Scott Dipman,

Albert Duncan, Tracey Graham, Lisa Jang, Dennis Serbu, Michael Veredas,

Firearms Policy Foundation, Firearms Policy Coalition, Madison Society

Foundation and The Calguns Foundation (collectively, “Plaintiffs”). The hearing

on this motion will be heard by the Honorable United States District Judge Beverly

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Reid O’Connell in Courtroom 14 of the United States District Court, Central

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District of California, Western Division, located at 312 North Spring Street in the

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City of Los Angeles, California.

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This motion is brought pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal

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Rules of Civil Procedure on the grounds that:

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(1) Plaintiffs fail, as a matter of law, to state a claim upon which relief can be

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granted; and

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(2) Plaintiffs Firearms Policy Foundation, Firearms Policy Coalition, Madison

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Society Foundation and The Calguns Foundation lack standing under Article III of

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the United States Constitution to proceed with their claims.

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This motion to dismiss is based upon the instant Notice of Motion, the

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accompanying Memorandum of Points and Authorities in support of the motion to

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dismiss, the Request for Judicial Notice, filed concurrently herewith, and the

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pleadings and papers filed in this action.

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This motion is made following the conference of counsel pursuant to Local

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Rule 7-3, which was conducted by telephone on June 2, 2016.



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Dated: June 10, 2016


Respectfully submitted,

KAMALA D. HARRIS
Attorney General of California
MARK R. BECKINGTON
Supervising Deputy Attorney General


/s/ John D. Echeverria
JOHN D. ECHEVERRIA
Deputy Attorney General
Attorneys for Defendant Kamala D.
Harris, California Attorney General













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TABLE OF CONTENTS



Page

I.


INTRODUCTION ........................................................................................................... 1
BACKGROUND ............................................................................................................. 3
Overview of the Gun-Free School Zone Act of 1995 ........................... 3
The Pre-Amendment Version of the Act .................................. 3
A.
B.
The 2015 Amendment ............................................................... 5
II. Allegations in Plaintiffs’ Complaint ..................................................... 7
LEGAL STANDARD ...................................................................................................... 8
ARGUMENT ............................................................................................................... 10

I.

B.

The Retired Officer Exemption Does Not Violate the Equal
Protection Clause. ............................................................................... 10
A.

Plaintiffs Fail to Identify a Class of Individuals Who Are
Similarly Situated to Honorably Retired Peace Officers. ....... 10
Plaintiffs Cannot Demonstrate that the Retired Officer
Exemption Fails Rational Basis Scrutiny. .............................. 12
The Organizational Plaintiffs Lack Standing...................................... 18
CONCLUSION ............................................................................................................. 21



II.






i





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TABLE OF AUTHORITIES



Page


CASES



Alva v. Lockyer

220 Fed. App’x 621 (9th Cir. 2007) .................................................................... 15

Anderson v. Holder

673 F.3d 1089 (9th Cir. 2012) ............................................................................... 5

Ashcroft v. Iqbal

556 U.S. 662 (2009) .......................................................................................... 8, 9

Bell Atl. Corp. v. Twombly

550 U.S. 544 (2007) .......................................................................................... 8, 9

District of Columbia v. Heller

554 U.S. 570 (2008) .................................................................................. 6, 13, 14

Cetacean Cmty. v. Bush

386 F.3d 1169 (9th Cir. 2004) ............................................................................... 9

Chandler v. State Farm Mut. Auto. Ins. Co.

598 F.3d 1115 (9th Cir. 2010) ............................................................................... 9

City of Cleburne, Texas v. Cleburne Living Ctr.

473 U.S. 432 (1985) ...................................................................................... 10, 14

Doe v. United States

58 F.3d 494 (9th Cir. 1995) ................................................................................... 9

Edwards v. Ollison

621 F. Supp. 2d 863(C.D. Cal. 2008) .................................................................. 10

Fair Hous. Council of San Fernando Valley v. Roomate.com, LLC

666 F.3d 1216 (9th Cir. 2012) ............................................................................. 18

Freeman v. City of Santa Ana

68 F.3d 1180 (9th Cir. 1995) ............................................................................... 10

Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc.

528 U.S. 167 (2000) ............................................................................................ 18






ii





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TABLE OF AUTHORITIES

(continued)

Page


Hall v. Garcia

2011 WL 995933 (N.D. Cal. Mar. 17, 2011) ...................................................... 14

Heller v. Doe

509 U.S. 312 (1993) ............................................................................................ 14

Idaho Farm Bureau Fed’n v. Babbitt

900 F. Supp. 1349 (D. Idaho 1995) ..................................................................... 20

Jackson v. Carey

353 F.3d 750 (9th Cir. 2003) ................................................................................. 9

Kokkonen v. Guardian Life Ins. Co. of Am.

511 U.S. 375 (1994) .............................................................................................. 9

McDonald v. City of Chi., Ill.

561 U.S. 742 (2010) ............................................................................................ 13

Mehl v. Blanas

No. CIV. S 03-2682 MCE KJM, slip op.
(E.D. Cal. Sept. 3, 2004) ................................................................... 15, 16, 17, 18

Nichols v. Brown

2013 WL 3368922 (C.D. Cal. July 3, 2013) ................................................. 12, 15

Nordlinger v. Hahn

505 U.S. 1 (1992) ................................................................................................ 15

Nordyke v. King

681 F.3d 1041 (9th Cir. 2012) ......................................................................... 2, 12

Orin v. Barclay

272 F.3d 1207 (9th Cir. 2001) ............................................................................. 14

Pac. Nw. Generating Co-Op v. Brown

38 F.3d 1058 (9th Cir. 1994) ............................................................................... 20

People v. Mejia

72 Cal. App. 4th 1269 (1999) ................................................................................ 3






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TABLE OF AUTHORITIES

(continued)

Page


People v. Tapia

129 Cal. App. 4th 1153 (2005) .............................................................................. 3

Peruta v. Cnty. of San Diego

No. 10-56971, slip op. (9th Cir. June 9, 2016) .................................................... 13

Phillips Chem. Co. v. Dumas Sch. Dist.

361 U.S. 376 (1960) ............................................................................................ 16

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v.

U.S. Dep’t of Agric.
415 F.3d 1078 (9th Cir. 2005) ....................................................................... 18, 20

Robinson v. Marshall

66 F.3d 249 (9th Cir. 1995) ................................................................................. 10

Romer v. Evans

517 U.S. 620 (1996) ........................................................................................ 3, 12

Rosenbaum v. City and Cnty. of San Francisco

484 F.3d 1142 (9th Cir. 2007) ............................................................................. 11

Safe Air for Everyone v. Meyer

373 F.3d 1035 (9th Cir. 2004) ............................................................................... 9

Silveira v. Lockyer

312 F.3d 1052 (9th Cir. 2002) ...................................................................... passim

Teixeira v. Cnty. of Alameda

2016 WL 2849245 (9th Cir. May 16, 2016) ............................................. 3, 12, 14

United States v. Aguilar

883 F.2d 662 (9th Cir. 1989) ............................................................................... 11

United States v. Harding

971 F.2d 410 (9th Cir. 1992) ............................................................................... 10

United States v. Lewis,

2008 WL 5412013 (D.V.I. Dec. 24, 2008) ......................................................... 14






iv





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TABLE OF AUTHORITIES

(continued)


United States v. Thornton

Page

901 F.2d 738 (9th Cir. 1990) ............................................................................... 16

Valle del Sol Inc. v. Whiting

732 F.3d 1006 (9th Cir. 2013) ............................................................................. 18

Vance v. Bradley

440 U.S. 93,108 (1979) ....................................................................................... 16

Watison v. Carter

668 F.3d 1108 (9th Cir. 2012) ............................................................................... 9

STATUTES

28 U.S.C. § 2201 ......................................................................................................... 8
42 U.S.C. § 1983 ......................................................................................................... 7

Cal. Penal Code






















§ 626.9 (b) .............................................................................................. 1, 3, 13, 17
§ 626.9 (c) (3) ...................................................................................................... 17
§ 626.9 (c) (5) ........................................................................................................ 2
§ 626.9 (e) (1) ........................................................................................................ 4
§ 626.9 (h) .......................................................................................................... 1, 4
§ 626.9 (i) .......................................................................................................... 1, 4
§ 626.9 (l) .......................................................................................................... 1, 4
§ 626.9 (o) .................................................................................................. 1, 12, 13
§ 626.9 (o) (1)-(4) .................................................................................................. 4
§ 626.9 (o) (5) ........................................................................................................ 6
§ 12280 (h) ........................................................................................................... 16
§ 12280 (i) ........................................................................................................... 16
§ 25400 .................................................................................................................. 4
§ 25455 .............................................................................................................. 4, 7
§ 25450 .................................................................................................................. 4
§ 25450 (d) ............................................................................................................. 7
§ 25455 (a) ............................................................................................................. 7
§ 25455 (c) ............................................................................................................. 7
§ 25465 .................................................................................................................. 8
§ 25470 .................................................................................................................. 8
§ 25650 .............................................................................................................. 4, 8






v







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TABLE OF AUTHORITIES

(continued)

Page
§ 25650 (a) ............................................................................................................. 1
§ 25650 (b) ............................................................................................................. 1
§ 25850 .................................................................................................................. 4
§ 25900 .................................................................................................................. 4
§ 25910 .................................................................................................................. 4
§ 26020 .................................................................................................................. 4
§ 26150. ................................................................................................................. 4
§ 26300 (c) (2) ....................................................................................................... 6
§ 26310 .................................................................................................................. 7












CONSTITUTIONAL PROVISIONS

U.S. Const. art. III ....................................................................................................... 9
U.S. Const. amend. XIV, § 1 .................................................................................... 10

COURT RULES

Federal Rules of Civil Procedure
Rule 12(b)(1) ........................................................................................... 1, 9, 3, 18
Rule 12(b)(6) ................................................................................................. 1, 3, 8

Federal Rules of Evidence
Rule 201 ................................................................................................................. 5












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Defendant California Attorney General Kamala D. Harris (the “Attorney

General”) respectfully submits the following memorandum of points and authorities

in support of her motion, pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal

Rules of Civil Procedure (“FRCP”), to dismiss the complaint (the “Complaint”

(Dkt. No. 1)), filed on April 14, 2016 by Plaintiffs Ulises Garcia, Jordan Gallinger,

Brian Hill, Brooke Hill, Craig DeLuz, Scott Dipman, Albert Duncan, Tracey

Graham, Lisa Jang, Dennis Serbu, Michael Veredas, Firearms Policy Foundation,

Firearms Policy Coalition, Madison Society Foundation and The Calguns

Foundation (collectively, “Plaintiffs”).1

INTRODUCTION

The Gun-Free School Zone Act of 1995 (the “Act”) generally prohibits any

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person from knowingly possessing a firearm on or within 1,000 feet of a public or

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private school without the prior written permission of the school district

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superintendent. Cal. Penal Code § 626.9(b) (2016).2 The Act also prohibits any

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person from possessing a firearm on certain property of a college or university,

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without the prior written permission of the college or university president. Cal.

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Penal Code. §§ 626.9(h), (i).

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Prior to January 1, 2016, the Act provided exemptions for, inter alia, (i) any

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person licensed to carry a concealed weapon (“CCW”), Cal. Penal Code § 626.9(l)

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(2012), and (ii) any “honorably retired peace officer authorized to carry a concealed

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or loaded firearm” (the “Retired Officer Exemption”), id. § 626.9(o) (2012). In

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2015, the California Legislature passed Senate Bill 707 (“SB 707”), which

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1 Plaintiffs Ulises Garcia, Jordan Gallinger, Brian Hill, Brooke Hill, Craig
DeLuz, Scott Dipman, Albert Duncan, Tracey Graham, Lisa Jang, Dennis Serbu
and Michael Veredas will be referred to as the “Individual Plaintiffs,” and Plaintiffs
Firearms Policy Foundation, Firearms Policy Coalition, Madison Society
Foundation and The Calguns Foundation will be referred to as the “Organizational
Plaintiffs.”

2 Unless otherwise noted, citation to the Act will be to the current version of

the statute, effective January 1, 2016.






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modified the exemption for CCW license holders to permit them to possess a

firearm within 1,000 feet of a school, provided they are not “in, or on the grounds”

of, the school. Cal. Penal Code § 626.9(c)(5). While the initial version of SB 707

also proposed removing the Retired Officer Exemption, the final version of the bill

preserved the exemption. (Compl. ¶ 29.)

In their only cause of action against the Attorney General, Plaintiffs contend

that the Retired Officer Exemption—both facially and as applied—violates the

Equal Protection Clause of the Fourteenth Amendment by “irrationally favor[ing] a

broad class of retired ‘peace officers’ authorized to carry concealed weapons over

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Plaintiffs.” (Compl. ¶ 40.) Plaintiffs seek “declaratory and injunctive relief to

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invalidate [the Retired Officer Exemption] and enjoin its enforcement or

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application.” (Id. ¶ 7; see also id. at 11:3-7 (Prayer for Relief).) Plaintiffs’ equal

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protection claim is unusual in that Plaintiffs do not contend that they are entitled to

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carry firearms on school grounds; rather, Plaintiffs seek to deprive honorably

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retired peace officers of that privilege by eliminating the Retired Officer Exemption.

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For the reasons discussed below, Plaintiffs fail to state an equal protection claim

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and, even if they could, the Organizational Plaintiffs lack standing.

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First, the Retired Officer Exemption does not in any way violate the Equal

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Protection Clause. Even if Plaintiffs satisfied their threshold burden of identifying

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a class of individuals who are similarly situated to honorably retired peace officers

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(and they have not), rational basis scrutiny applies to their equal protection claim, a

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forgiving standard that the Retired Officer Exemption meets. Even though the

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Second Amendment protects a fundamental right to keep and bear arms, Plaintiffs

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do not (and cannot) allege that the Act violates the Second Amendment or employs

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a suspect classification. Thus, rational basis scrutiny applies to the Act and its

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exemptions. See Nordyke v. King, 681 F.3d 1041, 1043 n.2 (9th Cir. 2012) (“As to

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the [plaintiffs’] equal protection claim, because the ordinance does not classify

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shows or events on the basis of a suspect class, and because we hold that the




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ordinance does not violate either the First or Second Amendments, rational basis

scrutiny applies.” (citations omitted and emphasis added)); Teixeira v. Cnty. of

Alameda, __ F.3d __, 2016 WL 2849245, at *3 (9th Cir. May 16, 2016) (“[W]e 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.’”

(quoting Romer v. Evans, 517 U.S. 620, 631 (1996))). The Retired Officer

Exemption is reasonably related to the goal of protecting retired peace officers,

which is a legitimate government purpose.

Second, even if Plaintiffs could conceivably state an equal protection claim

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(and they cannot), the four Organizational Plaintiffs lack standing because the

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Fourteenth Amendment interest at issue in this case is not germane to the

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Organizational Plaintiffs’ alleged purpose of protecting and promoting Second

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Amendment rights.

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Accordingly, pursuant to FRCP 12(b)(6) and 12(b)(1), the Court should

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dismiss the Complaint. Because the Retired Officer Exemption satisfies rational

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basis scrutiny, leave to amend would be futile and such dismissal should be with

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prejudice and without leave to amend.

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BACKGROUND

I. OVERVIEW OF THE GUN-FREE SCHOOL ZONE ACT OF 1995

A. The Pre-Amendment Version of the Act

The California Legislature enacted the Gun-Free School Zone Act of 1995 to

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prohibit the possession of “a firearm in a place that the person knows, or reasonably

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should know, is a school zone . . ., unless it is with the written permission of the

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school district superintendent, his or her designee, or equivalent school authority.”

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Cal. Penal Code § 626.9(b); People v. Mejia, 72 Cal. App. 4th 1269, 1271-72

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(1999); People v. Tapia, 129 Cal. App. 4th 1153, 1163 (2005). The Act defines

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“school zone” as “an area in, or on the grounds of, a public or private school

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providing instruction in kindergarten or grades 1 to 12, inclusive, or within a




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distance of 1,000 feet from the grounds of the public or private school.” Cal. Penal

Code § 626.9(e)(1). The Act also prohibits the possession of a firearm on certain

property owned and operated by a public or private university, unless “it is with the

written permission of the university or college president, his or her designee, or

equivalent university or college authority.” Id. § 626.9(h), (i).

Prior to the 2015 amendment, the Act carved out several exemptions,

including an exemption for “a[ny] person holding a valid license to carry the

firearm pursuant to [California Penal Code section 26150 et seq.]” (i.e., CCW

license holders). Cal. Penal Code § 626.9(l) (2012). The Act also recognized an

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exemption for “an[y] honorably retired peace officer,” provided the retired peace

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officer is authorized to carry a firearm pursuant to one of the following statutory

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grants of authority:

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(1) “Article 2 (commencing with Section 25450) of Chapter 2 of Division 5

of Title 4 of Part 6” exempting active and honorably retired state peace

officers from the concealed weapon ban in California Penal Code section

25400 subject to certain conditions set forth in section 25455;

(2) “Section 25650” exempting honorably retired federal officers from the

concealed weapon ban in California Penal Code section 25400 subject to

certain conditions;

(3) “Section 25900 to 25910, inclusive” exempting active and honorably

retired state peace officers from the ban on carrying a loaded firearm in

public in California Penal Code section 25850 subject to certain

conditions; and

(4) “Section 26020” exempting honorably retired federal officers from the

ban on carrying a loaded firearm in public in California Penal Code

section 25850 subject to certain conditions. Id. § 626.9(o)(1)-(4) (2012).

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B. The 2015 Amendment

In 2015, the Legislature passed SB 707 to amend the Act. As initially

proposed, SB 707 would have eliminated the exemptions for CCW license holders

and honorably retired peace officers, while permitting them to possess firearms

within 1,000 feet of, but not on the grounds of, a school. See S. Comm. on Pub.

Safety, Analysis of SB 707 (2014-2015 Reg. Sess.), Apr. 14, 2015, at 1 (the

“April 14 Committee Analysis”).3

The California College and University Police Chiefs Association initially

opposed the legislation on the ground that the removal of the Retired Officer

Exemption would undermine public safety: “[W]e consider the presence of an

honorably retired peace officer—with their decades of training and

professionalism—to be a distinct asset in our ability to carry out our mission. The

sad reality is that active shooter incidents take place disproportionately on our

campuses and an honorably retired peace officer can play a role in helping to keep

such incidents in check.” (Request for Judicial Notice, Ex. A (April 14 Committee

Analysis) at 6.)

The Sacramento County Sheriff’s Association also initially opposed the

legislation, arguing that the removal of the Retired Officer Exemption would

jeopardize the personal safety of retired peace officers:

SB 707 would make criminals out of our retired peace officer members who

visit a school campus. . . . Retired peace officers protected and served the

public while earning the enmity of those in society who ran afoul of the law.

Retired officers carry their weapons as a means of personal protection.



3 A copy of the April 14 Committee Analysis is annexed as Exhibit A to the

Request for Judicial Notice, filed concurrently herewith. As discussed in the
Request for Judicial Notice, the Court may properly take judicial notice of the
legislative history of SB 707 because, under Rule 201 of the Federal Rules of
Evidence, such materials are not subject to reasonable dispute. See Anderson v.
Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012).






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Recent attacks demonstrate the need for peace officers—even retired peace

officers—to be able to defend themselves if necessary. [¶] Forcing our

retired members to choose between picking up their children or grandchildren

form [sic] school or attending school events and ensuring their own ability to

protect themselves or their loved ones is a decision they should not be

required to make. Neither should retired officers be forced to jeopardize their

safety in order to take college classes.

(Request for Judicial Notice, Ex. A (April 14 Committee Analysis) at 7-8.)

On July 2, 2015, SB 707 was amended to preserve the Retired Officer

Exemption.4 See S. Comm. on Pub. Safety, Analysis of SB 707 (2014-2015 Reg.

Sess.), July 14, 2015, at 5 (the “July 14 Committee Analysis”).5 The California

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College and University Police Chiefs Association and the Sacramento Deputy

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Sheriffs’ Association withdrew their opposition and registered support for the

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legislation. See id. at 7-8. Opponents of the legislation, however, took issue with

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the preservation of the Retired Officer Exemption, including at least one of the

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Organizational Plaintiffs named in this action. The Firearms Policy Coalition

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argued that SB 707, as amended, violated the Equal Protection Clause of the

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Fourteenth Amendment, citing Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002),

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abrogated on other grounds by District of Columbia v. Heller, 554 U.S. 570 (2008).

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Id. at 5. The legislation was approved by the Governor on October 10, 2015 and

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took effect on January 1, 2016.

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4 The amendment also added a fifth statutory grant of authority for retired
peace officers to qualify for the Retired Officer Exemption. See Cal. Penal Code
§ 626.9(o)(5) (exempting retired reserve officers authorized to carry concealed and
loaded firearms pursuant to Penal Code section 26300(c)(2)).

5 A copy of the July 14 Committee Analysis is annexed as Exhibit B to the

Request for Judicial Notice, filed concurrently herewith.






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II. ALLEGATIONS IN PLAINTIFFS’ COMPLAINT

On April 14, 2016, Plaintiffs filed their Complaint, pursuant to 42 U.S.C.

§ 1983, asserting a single equal protection claim. The Individual Plaintiffs are

alleged to be “responsible, law-abiding citizens who possess licenses to carry

concealed weapons under California law.” (Compl. ¶ 33.) In order to obtain their

CCW licenses, the Individual Plaintiffs were allegedly required to “demonstrate

‘good moral character,’ complete a firearms training course, and establish ‘good

cause.’” (Id.) Plaintiffs allege that “several counties have interpreted the ‘good

cause’ requirement to require that an applicant demonstrate an elevated need for

self-defense due to a [sic] specific threats or previous attacks against them.” (Id.)6

Plaintiffs contend that retired peace officers “are not subject to the same screening

requirements but rather appear to be eligible to carry firearms as a matter of

course.” (Id. ¶ 34.)

Plaintiffs go on to allege that, under California Penal Code section 25455,

“retired California peace officers who ever carried a gun during their service ‘shall

be issued an identification certificate by the law enforcement agency from which

the officer retired’ and ‘shall have an endorsement on the identification certificate

stating that the issuing agency approves the officer’s carrying of a concealed

firearm.’” (Compl. ¶ 34 (quoting Cal. Penal Code §§ 25455(a), (c); id.

§ 25450(d).)7 Plaintiffs note that retired peace officers must reapply every five

years and that the issuing agency may decline to renew the officer’s privilege to



6 The Individual Plaintiffs allegedly obtained their CCW licenses from

various sheriffs departments throughout the State of California. (See Compl. ¶¶ 10-
19.) Plaintiffs do not allege what “good cause” each of the Individual Plaintiffs
were required to demonstrate in connection with their applications.

7 While Plaintiffs’ allegations may suggest that eligibility to carry a

concealed firearm is automatic, the issuing agency may deny issuance of an
identification certificate or endorsement, subject to review at a hearing. Cal. Penal
Code § 26310.






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carry a concealed firearm upon a finding of “good cause.” (Id. (citing Cal. Penal

Code §§ 25465, 25470).)

Plaintiffs also allege that, “perhaps even more broadly” than the exemption for

retired state peace officers, the Retired Officer Exemption applies to honorably

retired federal officers and agents who were “simply ‘assigned to duty within the

state for a period of not less than one year’ or ‘retired from active service in the

state’” and that such an officer “simply provides their local sheriff or chief of police

with their [federal] agency’s ‘concurrence’ that the retiree ‘should be afforded the

privilege of carrying a concealed firearm.’” (Compl. ¶ 35 (quoting Cal. Penal Code

§ 25650).)8

Plaintiffs allege that the “net result is that the Act bars law-abiding citizens

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who maintain a government-issued CCW from possessing a firearm ‘in or on’

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school grounds, but it grants a blanket exemption to a broadly defined group of

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retired ‘peace officers,’ none of whom have continuing authority to engage in

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‘peace officer’ activities.” (Compl. ¶ 36.) Plaintiffs pray for, inter alia, (i) a

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declaratory judgment pursuant to 28 U.S.C. § 2201 stating that the Retired Officer

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Exemption violates the Equal Protection Clause, and (ii) a preliminary and

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permanent injunction enjoining enforcement of the Retired Officer Exemption. (Id.

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at 11:1-10 (Prayer for Relief).)

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A motion to dismiss pursuant to FRCP 12(b)(6) tests the legal sufficiency of a

LEGAL STANDARD

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complaint. “To survive a motion to dismiss, a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

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8 Again, honorably retired federal officers and agents are not automatically
exempt from the CCW permitting requirements; the sheriff must approve such an
officer’s application for a CCW permit and the retired federal officer must reapply
every five years. Cal. Penal Code §§ 25650(a), (b).






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550 U.S. 544, 570 (2007)). A complaint “that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do,” id. at 678

(quoting Twombly, 550 U.S. at 555), and “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice,” id. at

678. Rather, a plaintiff’s factual allegations must nudge the claims in the complaint

“across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Determining whether a complaint states a plausible claim for relief is “a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679.

10

A motion to dismiss pursuant to FRCP 12(b)(1) for lack of subject matter

11

jurisdiction may properly raise the issue of standing. Chandler v. State Farm Mut.

12

Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Under Article III of the United

13

States Constitution, a suit brought by a plaintiff who lacks standing is not a “case or

14

controversy” over which a federal court can have subject matter jurisdiction.

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Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). A motion to dismiss

16

under FRCP 12(b)(1) may be either facial or factual. Safe Air for Everyone v.

17

Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger

18

asserts that the allegations contained in a complaint are insufficient on their face to

19

invoke federal jurisdiction.” Id. The party asserting jurisdiction bears the burden

20

of establishing subject matter jurisdiction on a Rule 12(b)(1) motion to dismiss.

21

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

22

Dismissal without leave to amend is appropriate when the deficiencies in the

23

complaint could not be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758

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(9th Cir. 2003); see also Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012)

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(dismissal with prejudice is appropriate if the district court “determines that the

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pleading could not possibly be cured by the allegation of other facts” (quoting Doe

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v. United States, 58 F.3d 494, 497 (9th Cir. 1995))).

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ARGUMENT

I. THE RETIRED OFFICER EXEMPTION DOES NOT VIOLATE THE EQUAL

PROTECTION CLAUSE.

Under the Equal Protection Clause of the Fourteenth Amendment, no state

shall “deny to any person within its jurisdiction the equal protection of the laws,”

U.S. Const. amend. XIV, § 1, which is “essentially a directive that all persons

similarly situated should be treated alike,” City of Cleburne, Texas v. Cleburne

Living Ctr., 473 U.S. 432, 440 (1985). “Where a statutory challenge is based on

equal protection grounds, the general rule is that legislation is presumed to be valid

and will be sustained if the classification drawn by the statute is rationally related to

a legitimate government interest.” Edwards v. Ollison, 621 F. Supp. 2d 863,

875(C.D. Cal. 2008) (citing City of Cleburne, 473 U.S. at 440, Robinson v.

Marshall, 66 F.3d 249, 251 (9th Cir. 1995), and United States v. Harding, 971 F.2d

410, 412 (9th Cir. 1992)).

A. Plaintiffs Fail to Identify a Class of Individuals Who Are
Similarly Situated to Honorably Retired Peace Officers.

“‘The first step in equal protection analysis is to identify the [government’s]

classification of groups’” and, “[o]nce the plaintiff establishes governmental

classification, it is necessary to identify a ‘similarly situated’ class against which

the plaintiff’s class can be compared.” Freeman v. City of Santa Ana, 68 F.3d 1180,

1187 (9th Cir. 1995) (citation omitted); see also Silveira, 312 F.3d at 1088 (“[I]n

order for a state action to trigger equal protection review at all, that action must

treat similarly situated persons disparately.” (citing City of Cleburne, 473 U.S. at

439)). As a preliminary matter, Plaintiffs do not allege that the Individual Plaintiffs

(or any broader class of CCW license holders) are similarly situated to honorably

retired peace officers covered by the Retired Officer Exemption.

In their Complaint, Plaintiffs do not define the parameters or characteristics of

any similarly situated “control group” against which retired peace officers can be

compared. See Freeman, 68 F.3d at 1187 (“The similarly situated group is the




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control group.” (quoting United States v. Aguilar, 883 F.2d 662, 706 (9th Cir.

1989))). Plaintiffs allege that the Retired Officer Exemption “irrationally favors”

honorably retired peace officers “over Plaintiffs” (Compl. ¶ 40), which suggests

that Plaintiffs’ proposed control group consists of at least the ten Individual

Plaintiffs named in the Complaint. Plaintiffs also suggest that their control group

does not include all CCW license holders, as the “purpose of [their] lawsuit is not

to engineer a restoration of the exemption for ‘mere’ private citizens with a license

to carry.” (Id. ¶ 6.) It is unclear, however, whether Plaintiffs’ control group

includes other CCW license holders beyond the Individual Plaintiffs and, if so,

10

what additional characteristics, beyond the mere possession of a CCW license, are

11

shared by the individuals in such a group. See Rosenbaum v. City and Cnty. of San

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Francisco, 484 F.3d 1142, 1154 (9th Cir. 2007) (plaintiffs’ “undifferentiated

13

control group” “was not comparable because these groups were not similarly

14

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situated because of their varying characteristics”).9

Even if Plaintiffs could define a control group, Plaintiffs do not allege

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sufficient facts to establish—or even a conclusory allegation—that their proposed

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group is “similarly situated” to retired peace officers covered by the Retired Officer

18

Exemption. Because Plaintiffs have failed to identify a similarly situated class of

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individuals to compare against honorably retired peace officers covered by the

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Retired Officer Exemption, Plaintiffs have failed to meet their threshold burden in

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attempting to state an equal protection claim.

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9 The various characteristics alleged with respect to the Individual

Plaintiffs—prior threats or reports of violence (Compl. ¶¶ 10, 17), military service
(id. ¶¶ 11, 15, 16, 18, 19), being a parent or grandparent of a school-age child (id.
¶¶ 10, 12, 14, 15, 16, 18), participation in school activities (id. ¶¶ 13, 18), and
attendance at a college or university (id. ¶¶ 11, 17)—provide little guidance in
defining the contours of Plaintiffs’ control group.






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B. Plaintiffs Cannot Demonstrate that the Retired Officer

Exemption Fails Rational Basis Scrutiny.

Even if Plaintiffs could identify a similarly situated control group, Plaintiffs

cannot demonstrate that the Retired Officer Exemption violates the Equal

Protection Clause. Even though Plaintiffs have failed to satisfy their threshold

burden of establishing a similarly situated control group, the Court can dispose of

Plaintiffs’ claim—and this lawsuit—by determining that (i) rational basis applies to

Plaintiffs’ claim and (ii) the Retired Officer Exemption satisfies rational basis

scrutiny based on any proposed classification.

1. Rational Basis Applies to Plaintiffs’ Equal Protection

Claim.

Rational basis is the appropriate level of scrutiny for examining the Retired

Officer Exemption because the Act neither violates a fundamental right (including

the Second Amendment) nor employs a suspect classification. See Nordyke, 681

F.3d at 1043 n.2 (“As to the [plaintiffs’] equal protection claim, because the

ordinance does not classify shows or events on the basis of a suspect class, and

because we hold that the ordinance does not violate either the First or Second

Amendments, rational basis scrutiny applies.” (citations omitted and emphasis

added)); Teixeira, 2016 WL 2849245, at *3 (“[W]e 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.’” (quoting Romer, 517

U.S. at 631)); Nichols v. Brown, No. CV 11-09916 SJO (SS), 2013 WL 3368922,

at *6 (C.D. Cal. July 3, 2013) (holding that, with respect to plaintiff’s equal

protection challenge, the statutory exemption for retired peace officers to open

carry licensing requirements would be subject rational basis scrutiny). Indeed,

Plaintiffs’ own allegations confirm that rational basis is the appropriate standard in

this case. (See Compl. ¶ 36 (“There is no rational reason to treat [honorably retired

peace officers] differently than Plaintiffs.” (emphasis added)); id. ¶ 32 (“Section

626.9(o) arbitrarily and irrationally subjects Plaintiffs to unequal treatment in




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violation of the Equal Protection Clause of the Fourteenth Amendment to the

Constitution.” (emphasis added)).)10

Plaintiffs do not allege any violation of the Second Amendment or any other

fundamental right and they are not seeking to vindicate some purported Second

Amendment right to possess a firearm on school grounds.11 Nor could they. The

prohibition on CCW license holders from possessing a firearm “in, or on the

grounds of, a public or private school,” Cal. Penal Code § 626.9(b), is precisely the

kind of law “forbidding the carrying of firearms in sensitive places such as schools”

that the Supreme Court has acknowledged to be presumptively lawful. See Heller,

10

554 U.S. at 626; McDonald v. City of Chi., Ill., 561 U.S. 742, 786 (2010) (“We

11

made it clear in Heller that our holding did not cast doubt on such longstanding

12

regulatory measures as . . . ‘laws forbidding the carrying of firearms in sensitive

13

places such as schools and government buildings, or laws imposing conditions and

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qualifications on the commercial sale of arms.’” (citation omitted)); cf. Peruta v.

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Cnty. of San Diego, No. 10-56971, slip op. at 20 (9th Cir. June 9, 2016) (en banc)

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(holding that the Second Amendment does not protect a right to carry concealed

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10 Plaintiffs also cite Silveira (Compl. ¶¶ 30-31), which applied rational basis

scrutiny to the retired officer exemption in the Assault Weapon Control Act
because the statute “neither affect[ed] the exercise of a fundamental right, nor
classifie[d] persons based on protected characteristics.” Silveira, 312 F.3d at 1088.
The court did so after determining that the Second Amendment provides “no
constitutional right to own or possess weapons,” id.—a view that was abrogated by
the Supreme Court in Heller. Rational basis scrutiny would still apply so long as
no constitutional right has been violated and no suspect classification has been
employed.

11 (See Compl. ¶ 6 (“The purpose of this lawsuit is not to engineer a

restoration of the exemption to the Act for ‘mere’ private citizens with a license to
carry. Rather, the purpose is to obtain a ruling that the preferential treatment given
to retired peace officers over similarly-situated private citizens violates the Equal
Protection Clause.”); id. ¶ 7 (“Because Section 626.9(o)’s exemption violates the
Equal Protection Clause, Plaintiffs seek declaratory and injunctive relief to
invalidate it and enjoin its enforcement or application.”); id. at Prayer for Relief
(“Plaintiffs respectfully request that this Court enter a preliminary and permanent
injunction enjoining enforcement or application of Penal Code section 626.9(o).”).)






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firearms and noting that “[t]he court in Heller was careful to limit the scope of its

holding”).12

Indeed, the Act has been upheld under the Second Amendment. See Hall v.

Garcia, No. C 10-03799 RS, 2011 WL 995933, at *4-*5 (N.D. Cal. Mar. 17, 2011)

(granting motion for judgment on the pleadings because, “[u]nder any of the

potentially applicable levels of scrutiny . . ., the Gun-Free School Zone Act

constitutes a constitutionally permissible regulation of firearms in public areas in or

near schools”); c.f. United States v. Lewis, Criminal No. 2008-45, 2008 WL

5412013, at *2 (D.V.I. Dec. 24, 2008) (noting that “[i]t is beyond peradventure that

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a school zone, where [defendant] is alleged to have possessed a firearm, is precisely

11

the type of location of which Heller spoke” and “Heller unambiguously forecloses

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a Second Amendment challenge to that offense [for violation of the federal Gun-

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Free School Zone Act] under any level of scrutiny”). Because Plaintiffs do not, and

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cannot, allege that the Act violates the Second Amendment, rational basis scrutiny

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applies.

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2. The Retired Officer Exemption Satisfies Rational Basis

Scrutiny.

Under rational basis review, “the general rule is that legislation is presumed to

be valid and will be sustained if the classification drawn by the statute is rationally

related to a legitimate state interest.” City of Cleburne, 473 U.S. at 439. The party

attacking the classification bears the burden of demonstrating that there is no

reasonable basis for the challenged distinction and to “negative every conceivable

basis which might support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (citation



12 Even if Plaintiffs were to challenge the Act on Second Amendment

grounds, such a challenge would not be cognizable as an equal protection claim.
See Teixeira, 2016 WL 2849245, at *3 (“Because [plaintiff’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, and
therefore is not cognizable under the Equal Protection Clause.” (quoting Orin v.
Barclay, 272 F.3d 1207, 1213 n.3 (9th Cir. 2001)) (second alteration in original)).






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omitted). The legislative record need not contain empirical evidence to support the

classification so long as the legislative choice is a reasonable one. Nordlinger v.

Hahn, 505 U.S. 1, 15 (1992) (“The Equal Protection Clause does not demand for

purposes of rational-basis review that a legislature or governing decision-maker

actually articulate at any time the purpose or rationale supporting its

classification.”).

The Retired Officer Exemption is reasonably related to a legitimate

government interest: the protection and safety of retired peace officers. Notably,

this rationale is reflected in the legislative history of SB 707. In initially opposing

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SB 707, the Sacramento County Sheriff’s Association argued that the amendment

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would jeopardize the safety of retired peace officers. (See Request for Judicial

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Notice, Ex. A (April 14 Committee Analysis).) Plaintiffs’ insinuation that the only

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reason for the Retired Officer Exemption is “potent political and lobbying

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operations” (Compl. ¶ 36) is not enough. Alva v. Lockyer, 220 Fed. App’x 621 (9th

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Cir. 2007) (“Alva presents no argument beyond the accusation that section

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311.11(d) was the ‘obvious result of heavy lobbying’ to establish that the [Motion

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Picture Association of America] exception is not rationally related to a legitimate

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state interest. Accordingly, his equal protection claim fails.”).

19

Courts have upheld other exemptions for retired peace officers on similar

20

grounds. See Nichols, 2013 WL 3368922, at *6 (“[T]he California Legislature

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could have reasonably believed that certain groups, such as retired police officers,

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were in greater need of self-protection and thus should be allowed to openly carry a

23

firearm.”); Mehl v. Blanas, No. CIV. S 03-2682 MCE KJM, slip op. at 11 (E.D.

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Cal. Sept. 3, 2004) (the “Mehl Dismissal Order) (granting California Attorney

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General’s motion to dismiss and noting that “the statutory exemption allowing

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retired officers to carry concealed weapons is rationally related to a legitimate

governmental interest, protecting retired law enforcement officers”).13

Plaintiffs may try to argue that the Retired Officer Exemption is overinclusive

(in covering retired peace officers who Plaintiffs believe may have no self-defense

interest (see Compl. ¶ 34)) or underinclusive (in excluding the Individual Plaintiffs

who may have a self-defense interest). However, such an argument is of no

moment under rational basis review. Vance v. Bradley, 440 U.S. 93,108 (1979)

(“Even if the classification involved here is to some extent both underinclusive and

overinclusive, and hence the line drawn by [the Legislature] imperfect, it is

10

nevertheless the rule that in a case like this ‘perfection is by no means required.’”

11

(quoting Phillips Chem. Co. v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960))); see

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also United States v. Thornton, 901 F.2d 738, 740 (9th Cir. 1990) (“‘[E]qual

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protection of the laws does not require [the Legislature] in every instance to order

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evils hierarchically according to their magnitude and to legislate against the greater

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before the lesser.’” (citation omitted)).

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Plaintiffs also may try to argue that the Ninth Circuit’s Silveira decision

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supports their equal protection claim. (See Compl. ¶¶ 30-31, 36.) Plaintiffs would

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be mistaken. The exemption for retired peace officers struck down in Silveira bears

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little resemblance to the Retired Officer Exemption at issue in this case. Silveira

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concerned an exemption for retired peace officers (even those who may not have

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honorably retired) to possess assault weapons that they received or purchased upon

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their retirement.14 After observing that it “must attempt to identify any hypothetical


13 The Mehl Dismissal Order was not published and is not available on an

electronic database. Accordingly, a copy of the order is annexed as Exhibit C to the
Request for Judicial Notice, which is being filed concurrently herewith.

14 See Cal. Penal Code § 12280(h) (2002) (the assault weapons ban “shall not

prohibit the sale or transfer of assault weapons by an entity . . . to a person, upon
retirement, who retired as a sworn officer from that entity”); id. § 12280(i) (2002)
(the assault weapons ban “shall not apply to the possession of an assault weapon by
a retired peace officer who received that assault weapon pursuant to
subdivision (h)”).






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rational basis for the exception, whether or not that reason is in the legislative

record,” Silveira, 312 F.3d at 1090, the Silveira court proceeded to reject several

potential justifications for the exemption. Id. at 1090-91. The court held that the

exemption “bears no reasonable relationship to the stated legislative purpose of

banning the possession and use of assault weapons in California, except for certain

law enforcement purposes.” Id. at 1091. Critically, the court did not address any

self-defense justification for the exemption. Here, by contrast, the Retired Officer

Exemption is reasonably related to such a legitimate government interest.

Moreover, contrary to the comprehensive ban at issue in Silveira, the Act

10

recognizes several exemptions that permit individuals, other than honorably retired

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peace officers, to possess firearms within a school zone or on college or university

12

property. See Cal. Penal Code § 626.9(b) (exempting an individual who has “the

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written permission of the school district superintendent, his or her designee, or

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equivalent school authority”); id. § 626.9(c)(3) (exempting an individual who

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“reasonably believes that he or she is in grave danger because of circumstances

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forming the basis of a current restraining order”).

17

This is not the first time that Silveira has been cited in an attempt to invalidate

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an exemption for honorably retired peace officers from a firearm regulation. In

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Mehl v. Blanas, the plaintiffs made a similar argument as Plaintiffs in this case,

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relying upon Silveira to support an equal protection challenge to the exemption for

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honorably retired peace officers from the CCW permitting requirements. The

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Honorable Morrison C. England, United States District Judge for the Eastern

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District of California, rejected plaintiffs’ argument and granted the Attorney

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General’s motion to dismiss. The court observed,

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The justification and rationale for exempting retired peace officers from the

CCW is not the same as for the exception to the assault weapon ban in

Silveira. The justification for a CCW is personal protection, not public

protection. Peace officers were entitled to carry assault weapons so that they

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would not be inadequately armed to confront criminals while protecting the

public. On the other hand, they are entitled to carry concealed weapons to

protect themselves from the enemies they have made in performing their

duties. While an officer’s duty to respond to the public’s calls for help stops

when he retires, the threat of danger from enemies he might have made during

this service does not. Therefore, there is a rational basis for allowing a retired

officer to continue to carry a concealed weapon, even though there was no

rational basis for allowing the same officer to keep an assault weapon.

(Request for Judicial Notice, Ex. C (Mehl Dismissal Order) at 10-11.) As in Mehl,

10

this Court should dismiss this action against the Attorney General with prejudice

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given the rational basis for the Retired Officer Exemption.

12

13

II. THE ORGANIZATIONAL PLAINTIFFS LACK STANDING.

If this Court were to find that Plaintiffs have stated an equal protection claim

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(and, for the reasons discussed, they have not), the Court should, at a minimum,

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dismiss the claims of the Organizational Plaintiffs pursuant to FRCP 12(b)(1) for

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lack of standing. “An association has standing to bring suit on behalf of its

17

members when its members would otherwise have standing to sue in their own

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right, the interests at stake are germane to the organization’s purpose, and neither

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the claim asserted nor the relief requested requires the participation of individual

20

members in the lawsuit.” Ranchers Cattlemen Action Legal Fund United

21

Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1104 (9th Cir. 2005)

22

(emphasis added) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC),

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Inc., 528 U.S. 167, 181 (2000)).

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The Organizational Plaintiffs lack organizational standing because the

interests at issue in this litigation are not germane to their alleged purpose.15 The


15 The Organizational Plaintiffs also lack direct standing. See Valle del Sol
Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (“An organization has ‘direct
standing to sue [when] it show[s] a drain on its resources from both a diversion of
its resources and frustration of its mission.’” (quoting Fair Hous. Council of San

(continued…)






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Organizational Plaintiffs are allegedly non-profit organizations focused on Second

Amendment advocacy:

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Plaintiff Firearms Policy Foundation “is a non-profit organization that

serves the public through charitable and educational purposes, with a

focus on advancing constitutional rights with a particular focus on laws

relating to firearms and affecting the fundamental right to keep and bear

arms.” (Compl. ¶ 20 (emphasis added).)

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Plaintiff Firearms Policy Coalition’s “purposes . . . include defending the

United States Constitution and the People’s rights, privileges and

immunities deeply rooted in the Nation’s history and tradition, especially

the fundamental right to keep and bear arms.” (Id. ¶ 21 (emphasis

added).)

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Plaintiff Madison Society Foundation’s “purpose is preserving and

protecting the legal and constitutional right to keep and bear arms for its

members and all responsible law-abiding citizens.” (Id. ¶ 22.)

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Plaintiff The Calguns Foundation “serves its members, supporters, and

the public through educational, cultural, and judicial efforts to advance

Second Amendment and related civil rights.” (Id. ¶ 23.)

Even if the Organizational Plaintiffs can establish the first and third

requirements for organizational standing,16 the equal protection interests at issue in

(…continued)
Fernando Valley v. Roomate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012))).
Allegations that the Organizational Plaintiffs may have “spent funds” addressing
their members concerns and questions about SB 707 are insufficient to confer direct
standing upon them. (See Compl. ¶¶ 20-23.)

16 It is not clear that the Organizational Plaintiffs’ members would have
direct standing to assert the equal protection claim at issue in this case because
some members may not be CCW license holders and, depending on the definition
of Plaintiffs’ proposed control group, not all CCW license holders may have
suffered a purported equal protection injury. (See Section 1.A, supra.) Even if
some of their members may be “CCW holders who have been directly affected by
the change in the law,” they have not necessarily suffered the same purported injury
as the Individual Plaintiffs. (See Compl. ¶¶ 20-23.)






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Case 2:16-cv-02572-BRO-AFM Document 14 Filed 06/10/16 Page 29 of 31 Page ID #:75



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this litigation are not germane to the alleged purposes of the Organizational

Plaintiffs. See Ranchers Cattlemen Action Legal Fund United Stockgrowers of

Am., 415 F.3d at 1104 (holding that non-profit cattle association lacked standing to

assert a National Environmental Policy Act challenge because the plaintiff’s

purported environmental interest asserted in the litigation was not connected to “the

‘trade and marketing’ interests it is organized to protect”); Pac. Nw. Generating

Co-Op v. Brown, 38 F.3d 1058, 1063 (9th Cir. 1994) (noting that the plaintiffs

“assert the [aesthetic and recreational] interests of their employees [under the

Endangered Species Act],” but that “their employees’ interests are not germane to

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the [plaintiffs’] own purposes and cannot be asserted by them”); Idaho Farm

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Bureau Fed’n v. Babbitt, 900 F. Supp. 1349, 1357 (D. Idaho 1995) (“Plaintiffs have

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failed to carry their burden of establishing standing as organizations established to

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represent the aesthetic/recreational interests of their members, both because the

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members of Plaintiffs' organizations lack the standing to sue individually and, more

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importantly, because Plaintiffs are not protecting an interest germane to their

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organizations’ purpose in this regard” (emphasis added)).

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Thus, even if the Complaint were found to state an equal protection claim, the

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Organizational Plaintiffs lack standing to assert such a claim.

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For the reasons set forth above, the Attorney General respectfully urges this

CONCLUSION

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Court to grant the present motion to dismiss with prejudice and without leave to

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amend.

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Case 2:16-cv-02572-BRO-AFM Document 14 Filed 06/10/16 Page 30 of 31 Page ID #:76



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Respectfully submitted,

KAMALA D. HARRIS
Attorney General of California
MARK R. BECKINGTON
Supervising Deputy Attorney General


/s/ John D. Echeverria
JOHN D. ECHEVERRIA
Deputy Attorney General
Attorneys for Defendant Kamala D.
Harris, California Attorney General


Dated: June 10, 2016








SA2016101989
52131109.doc






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Case 2:16-cv-02572-BRO-AFM Document 14 Filed 06/10/16 Page 31 of 31 Page ID #:77

CERTIFICATE OF SERVICE


Case Name: Ulises Garcia, et al. v. Kamala

D. Harris



No.

2:16-cv-02572-BRO-AFM


I hereby certify that on June 10, 2016, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:



NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT BY CALIFORNIA
ATTORNEY GENERAL KAMALA D. HARRIS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO DISMISS



I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.

I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on June 10, 2016, at Los Angeles, California.




SA2016101989
52131223.doc



Angela Artiga

Declarant




/s/ Angela Artiga

Signature