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Case 2:16-cv-02572-BRO-AFM Document 16 Filed 07/18/16 Page 1 of 23 Page ID #:122





BENBROOK LAW GROUP, PC
BRADLEY A. BENBROOK (SBN 177786)
STEPHEN M. DUVERNAY (SBN 250957)
400 Capitol Mall, Suite 1610
Sacramento, CA 95814
Telephone: (916) 447-4900
Facsimile: (916) 447-4904
[email protected]
[email protected]


Attorneys for 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,


Plaintiffs,


v.


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






Defendant.



UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA





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


PLAINTIFFS’ OPPOSITION TO
MOTION TO DISMISS

Hearing Date: August 8, 2016
Time: 1:30 p.m.
Courtroom: 14
Judge: Hon. Beverly Reid O’Connell

Action filed April 14, 2016




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PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS

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TABLE OF CONTENTS


INTRODUCTION ..................................................................................................... 1

FACTUAL BACKGROUND .................................................................................... 1
The Gun-Free School Zone Act and SB 707. ....................................... 1
Plaintiffs Are Private Citizens Authorized To Carry Concealed
Weapons. ............................................................................................... 3

LEGAL STANDARD ................................................................................................ 6

ARGUMENT ............................................................................................................. 7


A.

B.


A.

B.

Plaintiffs Have Adequately Alleged A Control Group To State An
Equal Protection Claim ......................................................................... 7
The Retired Peace Officer Exemption Violates The Equal Protection
Clause. ................................................................................................... 8

1.
Favoring Retired Peace Officer Civilians Over Similarly-Situated
Civilians With Carry Licenses Bears No Rational Relation To
The Purpose of the Gun-Free School Zone Act. ........................ 9


2. The

Retired Peace Officer Classification Further Violates The

Equal Protection Clause Because It Is Simply A Benefit
Conferred On A Politically Powerful Class That Is Denied To A
Politically Unpopular Class. ..................................................... 16

C. The Organizational Plaintiffs Have Standing. .................................... 18

CONCLUSION ........................................................................................................ 19


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TABLE OF AUTHORITIES

Cases

Arizona Dream Act Coalition v. Brewer,
757 F.3d 1053 (9th Cir. 2014) .................................................................................. 7

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................. 7

Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................................................. 7

City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985) ............................................................................................... 18

Gerhart v. Lake County Montana,
637 F.3d 1013 (9th Cir. 2011) ............................................................................ 9, 12

Heller v. Doe by Doe,
509 U.S. 312 (1993) ........................................................................................... 9, 14

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................................... 18

Mathews v. Lucas,
427 U.S. 495 (1976) ................................................................................................. 9

Mehl v. Blanas,
No. Civ. s 03-2682 MCE KJM (E.D. Cal. Sept. 3, 2004) .................................. 1, 12

Reed v. Reed,
404 U.S. 71 (1971) ................................................................................................... 8

Reese v. BP Exploration (Alaska) Inc.,
643 F.3d 681 (9th Cir. 2011) .................................................................................... 7

Rinaldi v. Yeager,
384 U.S. 305 (1966) ............................................................................................... 18

Romer v. Evans,
517 U.S. 620 (1996) ........................................................................................... 9, 14

Royster Guano Co. v. Virginia,
253 U.S. 412 (1920) ................................................................................................. 8

Silveira v. Lockyer,
312 F.3d 1052 (9th Cir. 2002) ........................................................................ 1, 9, 15

Silvester v. Harris,
41 F. Supp. 3d 927 (E.D. Cal. 2014) ...................................................................... 18

Thornton v. City of St. Helens,
425 F.3d 1158 (9th Cir. 2005) .................................................................................. 7




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U. S. Dep’t of Agric. v. Moreno,
413 U.S. 528 (1973) ......................................................................................... 14, 18

Walgreen Co. v. City & Cnty. of San Francisco,
185 Cal.App.4th 424, 428 (2010) ........................................................................... 15

Statutes

Cal. Penal Code § 626.9 ...................................................................................... passim

Cal. Penal Code § 25450 ........................................................................................ 5, 15

Cal. Penal Code § 25455 .............................................................................................. 5

Cal. Penal Code § 25650(a) ......................................................................................... 6

Cal. Penal Code § 26150 .......................................................................................... 3, 4

Cal. Penal Code § 26155 .............................................................................................. 4

Cal. Penal Code § 830.2 ............................................................................................. 15

Cal. Penal Code § 26150 .......................................................................................... 7, 8

Fed R. Civ. P. 12(b)(6)................................................................................................. 6

Cal. Fish & Game Code § 830.2(e) ............................................................................. 5

Cal. Food & Agric. Code § 3332 ........................................................................... 5, 15

Cal. Pub. Resources Code § 830.2 ............................................................................... 5

Other Authorities

Att’y Gen. Op. No. 09-901,

Los Angeles County Sheriff’s Department,

93 Ops. Cal. Atty. Gen. 130 (2010) ................................................................. 11, 16

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Concealed Weapon Licensing Policy ................................................................. 5, 14






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I.

INTRODUCTION

The main problem with the State’s motion to dismiss is that its focus is too


narrow. The State argues that the retired peace officer exemption is rational because
it promotes this group of civilians’ self defense. That is not the right question. The
right question is whether the classification here is rationally related to achieving the
broader purpose of the “Gun Free School Zone Act.” It is not. This is a statute
designed to restrict access to guns on school grounds. Until the 2015 amendments,
plaintiffs were on equal footing with retired peace officers—as licensed civilians,
they could possess guns on school grounds consistent with their licensure. Now they
are criminals if they do so. But the similarly-situated retired peace officers are not.
The Ninth Circuit’s decision in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.

2002), is controlling here. In Silveira, the Ninth Circuit concluded that favoring
retired peace officers over similarly-situated civilians violated the Equal Protection
Clause: favoring retired peace officers hoping to enjoy greater access to firearms
didn’t make sense in the context of a statute (there, the Assault Weapons Control
Act) whose overall aim was restricting access to firearms. The same is true here.
The State’s reliance on the unpublished Mehl v. Blanas case from the Eastern
District, which arose in the context of the licensing scheme designed to facilitate
access to firearms, is plainly distinguishable.

Clause. The motion to dismiss should be denied.

The Complaint states a cause of action for violation of the Equal Protection

II.

FACTUAL BACKGROUND

A.

The Gun-Free School Zone Act and SB 707.
The Gun-Free School Zone Act of 1995, California Penal Code section 626.9,
prohibits persons from possessing a firearm in a school zone, which is defined as “an
area in, or on the grounds of, a public or private school providing instruction in



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kindergarten or grades 1 to 12, inclusive, or within a distance of 1,000 feet from the
grounds of the public or private school.” Penal Code § 626.9(e)(4). Violation of the
Act is a misdemeanor or felony. See id., subd. (f).

California law had criminalized possession of a firearm on school grounds

since 1967, when the Legislature passed the so-called Mulford Act broadly
prohibiting the carry of loaded firearms in public places. Stats. 1967, ch. 960, § 2
(adding former Penal Code section 171c). The portion of Penal Code section 171c
concerning school zones was later moved to Penal Code section 626.9; with the
Act’s passage in 1994, the Legislature stiffened the applicable penalties for bringing
a firearm into a school zone.

The Act contains an exemption for “duly appointed peace officer[s]” who

remain in service. Penal Code § 626.9(l). The Act’s prohibition likewise does not
apply to a few classes of people who are licensed to carry a firearm as part of their
professional duties so long as they are on the job:

[A] full-time paid peace officer of another state or the federal
government who is carrying out official duties while in California, any
person summoned by any of these officers to assist in making arrests or
preserving the peace while he or she is actually engaged in assisting the
officer, a member of the military forces of this state or of the United
States who is engaged in the performance of his or her duties, or an
armored vehicle guard, engaged in the performance of his or her duties,
as defined in subdivision (d) of Section 7582.1 of the Business and
Professions Code.

Penal Code § 626.9(l); see also id., subd. (m) (exempting certain security guards
authorized to carry a loaded firearm, while acting within the course and scope of
their employment).

Thus, the purpose of the Gun-Free School Zone Act is, as the name

demonstrates, to make schools “gun-free,” except in the case of peace officers and
security personnel who are performing their duties.

private citizens who were authorized to carry a concealed firearm pursuant to the

As originally enacted, however, the Act contained a blanket exemption for all



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In 2015, the Legislature considered amendments to the Act. As initially

licensing provisions of Penal Code section 26150. Former Cal. Penal Code §
626.9(1) exempted “a person holding a valid license to carry the firearm” pursuant to
then Penal Code section 12050 (predecessor to current Penal Code section 26150).
The Act also exempted “honorably retired peace officer[s] authorized to carry a
concealed or loaded firearm” under several different Penal Code sections. Id., subd.
(o) (listing separate statutory authorizations).1

proposed, the Bill sought to eliminate both the CCW and retired law enforcement
exemptions. By doing so, the Legislature would have made it a crime for a member
of either of these groups to possess a firearm on school grounds, even though they
were authorized to carry the firearm generally throughout the State. Sen. Bill No.
707 (2014–2015 Reg. Sess.) as introduced Feb. 27, 2015. Following heavy lobbying
by interest groups supporting peace officers, the Bill was later amended to restore
the retired “peace officer” exemption. The Bill ultimately removed the exemption
for carry licensees on school grounds—thereby criminalizing possession of a firearm
on school grounds by such licensees. It also added a provision authorizing carry
licensees to carry a firearm “within a distance of 1,000 feet from the grounds of the
public or private school.” Sen. Bill No. 707 (2014–2015 Reg. Sess., Wolk), Stats.
2015, ch. 766; Cal. Penal Code § 626.9(c)(5).

of the 2015 amendments.
B.

The legislative record contains no legislative findings explaining the purposes

Plaintiffs Are Private Citizens Authorized To Carry Concealed Weapons.
Individual plaintiffs are responsible, law-abiding citizens who possess licenses

to carry concealed weapons under California law:2

Both exemptions date back to the original 1967 law. Stats. 1967, ch. 960, § 2
1
(exempting “honorably retired” peace officers and “person[s] holding a valid license
to carry [a] firearm”).
2
(Firearms Policy Foundation, Firearms Policy Coalition, Madison Society
Foundation, and Calguns Foundation). Each of the organizations are dedicated to

In addition to the individual Plaintiffs, there are four organizational Plaintiffs



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? Plaintiff Ulises Garcia, M.D. is a Board Certified Emergency Medicine

specialist practicing in the San Fernando Valley of Southern California. Dr.
Garcia is married and has three school-age children. He sought and obtained
a carry license to protect himself and his family in response to multiple threats
of violence from a former patient. (Compl., ¶ 10.)

? Plaintiff Jordan Gallinger is a veteran of the United States Marine Corps who
served in the war in Afghanistan and qualified as an expert in the Marine
Corps Combat Marksmanship Program. He is currently enrolled as a full-time
student at California State University, San Bernardino. (Compl., ¶ 11.)
? Plaintiffs Brian and Brooke Hill have two school-age children, and both
regularly carried concealed weapons at their children’s respective schools
before Senate Bill 707 went into effect on January 1, 2016. (Compl., ¶ 12.)

? Plaintiff Craig DeLuz serves as the President of the Robla School District

Board of Trustees. He also serves as a coach for the cross country and track
and field teams at Rio Linda High School. (Compl., ¶ 13.)

? Plaintiff Scott Dipman is the father of two school-age sons with special needs
who must be accompanied to their classrooms each morning. (Compl., ¶ 14.)

? Plaintiff Albert Duncan served as a flight medic in the United States Army,

and currently works as a firefighter-paramedic for the Oakland Fire
Department. Duncan has a school-age son. (Compl., ¶ 15.)

? Plaintiff Tracey Graham is a veteran of the United States Air Force.

Graham’s partner has school-age children. (Compl., ¶ 16.)

? Plaintiff Lisa Jang is currently enrolled as a full-time student at California
State University, Sacramento. She obtained her carry license for personal
protection, in response to multiple reports of crime on and near the campus,
including armed robbery, rape, and sexual assault. (Compl., ¶ 17.)

? Plaintiff Dennis Serbu is a veteran of the Vietnam war and served ten years as
a reserve police officer for the Cottonwood, Arizona police department. Now
retired, he has twelve grandchildren and is involved with their school
activities. (Compl., ¶ 18.)

? Plaintiff Michael Veredas served as a hospital corpsman in the United States
Navy and served three combat deployments with the United States Marine
Corps before his honorable discharge in 2005. He has two children. (Compl.,
¶ 19.)

In order to obtain a carry license, Plaintiffs were required to demonstrate

“good moral character,” complete a firearms training course, and establish “good
cause.” Cal. Penal Code §§ 26150, 26155. In applying these standards, several
counties have interpreted the “good cause” requirement to require that an applicant


furthering civil rights, with a particular focus on the right to keep and bear arms and
laws affecting firearms. (See Compl., ¶¶ 20–23.) Each organization furthers its
purposes by conducting public outreach, education, and legislative advocacy. Id.
The organizations have spent funds educating the public about SB 707, and
addressing their members concerns and complaints about Penal Code section
626.9(o). (See id.)



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demonstrate an elevated need for self-defense due to a specific threats or previous
attacks against them. The Los Angeles County Sheriff’s Department Concealed
Weapon Licensing Policy, for example, states:


[G]ood cause shall exist only if there is convincing evidence of a clear
and present danger to life, or of great bodily harm to the applicant, his
spouse, or dependent child, which cannot be adequately dealt with by
existing law enforcement resources, and which danger cannot be
reasonably avoided by alternative measures, and which danger would
be significantly mitigated by the applicant’s carrying of a concealed
firearm.

Los Angeles County Sheriff’s Department, Concealed Weapon Licensing
Policy at 2 (emphasis in original).

Retired “peace officers,” by contrast, are not subject to these same screening
requirements but rather appear to be eligible to carry firearms as a matter of course.
California Penal Code section 25455, for instance, provides that 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.” Cal.
Penal Code § 25455(a), (c); id., § 25450(d).3

And the exemption under section 626.9(o) extends far beyond retired police

officers and deputy sheriffs. It applies, for example, to:

?

?

?

?

Retired employees of the Department of Fish and Game who enforced
the Fish and Game Code (§ 830.2(e));
Retired employees of the Department of Parks and Recreation who
enforced the Public Resources Code (§ 830.2(f));
Retired employees of the Department of Forestry and Fire Protection
who enforced the Public Resources Code (§ 830.2(g)); and
Retired marshals “appointed by the Board of Directors of the California
Exposition and State Fair” whose primary duty was enforcing Section
3332 of the Food and Agricultural Code, which establishes the powers
of the board of the State Fair (§ 830.2(i)).

The State responds that “the issuing agency may deny issuance of an


3
identification certificate or endorsement, subject to review at a hearing,” Opp. at 7 n.
7 (citing Cal. Penal Code § 26310), which only confirms that issuance of carry
permits for retired peace officers is the default position.



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These retirees need only re-apply every five years to their former agency to keep the
special treatment, id. § 25465, and the former agency needs “good cause” to not
renew it. Id. § 25470.

Similarly, and perhaps even more broadly, Section 626.9(o) exempts “any
honorably retired federal officer or agent of any federal law enforcement agency”
covered by Penal Code section 25650 (which exempts retired federal officers from
the Penal Code’s ban on carrying a concealed weapon), regardless of whether that
retired federal officer or agent ever carried a gun in their federal “peace officer”
duties. Cal. Penal Code § 25650(a) (emphasis added). It is sufficient if the “officer
or agent” was simply “assigned to duty within the state for a period of not less than
one year” or “retired from active service in the state.” Id. Under this exemption, a
covered federal officer simply provides their local sheriff or chief of police with
their agency’s “concurrence” that the retiree “should be afforded the privilege of
carrying a concealed firearm.” Id., subd. (b). This exemption covers agents that
include, but are not limited to, retired agents from the United States Customs Service
or “any officer or agent of the Internal Revenue Service.” Id., § 25650(a).

The net result is that the Act bars law-abiding citizens who maintain a
government-issued CCW from possessing a firearm “in or on” school grounds, but it
grants a blanket exemption to a broadly defined group of retired “peace officers,”
none of whom have continuing authority to engage in “peace officer” activities: by
definition, they are retired, they have returned to the ranks of private citizens, and
they are no longer authorized to engage in law enforcement activities.
///
///

III.

LEGAL STANDARD

A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the


sufficiency of the pleadings set forth in the complaint. When determining whether a



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claim has been stated, the Court accepts as true all well-pled factual allegations and
construes them in the light most favorable to the plaintiff. Reese v. BP Exploration
(Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a complaint need not
contain detailed factual allegations, it “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible when it “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.

IV.

ARGUMENT

A. Plaintiffs Have Adequately Alleged A Control Group To State An Equal

Protection Claim.

The State claims that Plaintiffs have failed to adequately identify a “control


group” that is similarly situated to retired peace officers for the purpose of an Equal
Protection claim. (Mot. at 10:14–11:21.) Not so. As the Ninth Circuit has
explained, “[t]he groups must be comprised of similarly situated persons so that the
factor motivating the alleged discrimination can be identified.” Thornton v. City of
St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). And “[t]he groups need not be
similar in all respects, but they must be similar in those respects relevant to the
[government’s] policy.” Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053,
1064 (9th Cir. 2014). Plaintiffs have met this standard.

As set forth in the Complaint, Plaintiffs are private citizens who have been
issued a conceal carry license through the licensing scheme set forth at California
Penal Code section 26150, et seq. (Compl., ¶¶ 33 (“Individual plaintiffs are
responsible, law-abiding citizens who possess licenses to carry concealed weapons
under California law”); 40 (“Plaintiffs are responsible, law-abiding citizens who
possess licenses to carry handguns for self-defense under California law.”); see also
id., ¶¶ 10–19 (identifying individual plaintiffs); 29 (discussing amendment to Penal



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Private citizens licensed to carry through California Penal Code section

Code section 626.9).).

26150, et seq. are similarly situated to the group of retired “peace officer” private
citizens who possess concealed carry licenses through the various statutory
provisions referenced in Section 626.9(o). (See Compl., ¶¶ 28; 34–35, 40.)
Plaintiffs are similar with respect to the government’s policy underlying the Act; as
the Act’s title makes clear, the Legislature’s general objective is to promote public
safety on school grounds by eliminating the presence of firearms. For the purpose of
the Act, Plaintiffs are similarly situated to retired peace officers: Both are groups of
private citizens licensed to carry concealed firearms for the lawful purpose of self-
defense.4

B.

The Retired Peace Officer Exemption Violates The Equal Protection
Clause.

“The Equal Protection Clause . . . den[ies] to States the power to legislate that


different treatment be accorded to persons placed by a statute into different classes
on the basis of criteria wholly unrelated to the objective of that statute. A
classification ‘must be reasonable, not arbitrary, and must rest upon some ground of
difference having a fair and substantial relation to the object of the legislation, so
that all persons similarly circumstanced shall be treated alike.’” Reed v. Reed, 404
U.S. 71, 75–76 (1971) (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415

The State’s reliance on Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir.
4
1995) is misplaced, as that appeal did not arise from a motion to dismiss. As the
Northern District has recognized, “when the Ninth Circuit reviewed the claims [in
Freeman] it was not addressing the requirements of pleading an equal protection
case, but rather, the requirements of proving one.” Williams v. Vidmar, 367 F. Supp.
2d 1265, 1271 (N.D. Cal. 2005). Part of the State’s argument, moreover, stems from
apparent confusion over the Complaint’s statement that “[t]he 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.” (See Mot. at 11:5–8, quoting Compl., ¶ 6.) The
point of this statement is to underscore that if Plaintiffs are successful, the case
would not restore Plaintiffs’ right to carry, but rather would strike down the
preferential treatment granted to “retired peace officers” by eliminating the
exemption. In other words, neither Plaintiffs nor “retired peace officers” would be
exempt from the Act’s general prohibition of carrying firearms on school grounds.



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Although deferential, the rational-basis standard “is not a toothless one,”

(1920)).

Mathews v. Lucas, 427 U.S. 495, 510 (1976), and “even the standard of rationality . .
. must find some footing in the realities of the subject addressed by the legislation.”
Heller v. Doe by Doe, 509 U.S. 312, 321 (1993). When conducting rational-basis
review, it is the court’s “duty to scrutinize the connection, if any, between the goal
of a legislative act and the way in which individuals are classified in order to achieve
that goal.” Silveira, 312 F.3d at 1088. And because “[t]he search for the link
between classification and objective gives substance to the Equal Protection
Clause,” Romer v. Evans, 517 U.S. 620, 632 (1996), courts “insist on knowing the
relation between the classification adopted and the object to be attained,” id. at 633.
To that end, the question is focused “whether there is a rational basis for the
distinction, rather than the underlying government action.” Gerhart v. Lake County
Montana, 637 F.3d 1013, 1023 (9th Cir. 2011), cert. denied, 132 S. Ct. 249 (2011)
(emphasis in original).5


1.

Favoring Retired Peace Officer Civilians Over Similarly-Situated
Civilians With Carry Licenses Bears No Rational Relation To The
Purpose of the Gun-Free School Zone Act.

Here, there is no connection between the retired peace officer exemption and

the purpose of the Gun Free School Zone Act. The State argues that the exemption
serves the state’s interest in “the protection and safety of retired peace officers,”
presumably by allowing retirees to defend themselves in the case of confrontation in
a school zone. (Mot. at 15:7–11.) But this rationale is at odds with the purpose Act,
which is, as the name demonstrates, to make schools “free” from guns. Indeed, the
only other categorical exemptions to the Act’s prohibition are for peace officers and

5
claim, the Court noted that “[t]his principle applies in all Equal Protection claims in
which there must be a rational basis for differential treatment.” 637 F.3d at 1023 n.9
(citing Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 590 (9th Cir.2008)).

Although Gerhart considered a so-called “class of one” Equal Protection



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security personnel who are performing their duties. Cal. Penal Code § 626.9(l)
(exempting on-duty peace officers, members of the military, and armored vehicle
guards); id., subd. (m) (exempting certain security guards authorized to carry a
loaded firearm, while acting within the course and scope of their employment). Yet
retired peace officers are, by definition, no longer engaging in law enforcement
purposes—just like their fellow private citizens.

That same rationale applies to the Act here. Indeed, once the broad exemption

In this regard, the Ninth Circuit’s decision in Silveira v. Lockyer is not only
instructive, it is controlling. There, the Court struck down a provision exempting
retired peace officers from the prohibitions of the California Assault Weapons
Control Act on Equal Protection grounds, holding that “the retired officers exception
arbitrarily and unreasonably affords a privilege to one group of individuals that is
denied to others . . . .” 312 F.3d at 1091.

for non-retired peace officer holders of carry licenses was eliminated, the Act was
indistinguishable in concept from the restrictions on assault weapons prior to
Silveira: both statutes’ goal was to restrict access to firearms except for active and
retired peace officers.6 Yet, just as in Silveira, the retired peace officer exemption
grants a blanket exemption to a broadly defined group of retired “peace officers,”
none of whom have continuing authority to engage in “peace officer” activities.
They are retired, they have returned to the ranks of private citizens, and they are no

The State argues that the Act contains “several exceptions” and is therefore
6
different from the supposedly “comprehensive ban at issue in Silveira,” but it cites
only two exceptions in addition to the categorical exemptions noted above. (Mot. at
17:9-16 (citing the limited exemptions for individuals who receive “written
permission” from school authorities, Cal. Penal Code § 626.9(b), and individuals
who “reasonably believe[ ]” they are “in grave danger because of circumstances
forming the basis of a current restraining order,” id., subd. (c)(3)).). The State
wrongly describes the California Assault Weapons Control Act (“AWCA”) at issue
in Silveira as a “comprehensive ban,” however: the Ninth Circuit explained in detail
how the AWCA restricted manufacturing, sale, transfer, and importation of certain
“assault weapons” while grandfathering in all such weapons that were lawfully
purchased prior to the AWCA’s enactment and then registered – hardly a
“comprehensive ban.” See Silveira, 312 F.3d at 1057–59. There, as here, the Act
was concerned with reducing access to, and use of, firearms.



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longer authorized to engage in law enforcement activities. Accordingly, allowing
retired peace officers to carry weapons in a school zone is at odds with the purpose
of the Act. The exemption is therefore unconstitutional because the classification is
not rationally related to achieve the underlying legislative goal.

The California Attorney General reached a similar conclusion in 2010, when

asked whether “a peace officer who purchases and registers an assault weapon in
order to use the weapon for law enforcement purposes [would be] permitted to
continue to possess [it] after retirement.” Att’y Gen. Op. No. 09-901, 93 Ops. Cal.
Atty. Gen. 130 (2010). Relying on Silveira, then-Attorney General Edmund G.
Brown, Jr., explained why the answer was “No”:


Silveira teaches that it is the a [sic] peace officer’s role as a law
enforcement agent that provides a rational basis for distinguishing
between a peace officer and a private citizen for purposes of possessing
and using assault weapons. A retired officer is not authorized to engage
in law enforcement activities.

Id. at *8 (emphasis in original).
The State’s sole argument is that granting retired peace officers an exemption

is rationally related to protecting their safety, but that is not the right question. Under
the authorities cited above, there must exist a connection between the distinction in
the exemption (favoring retired peace officers over other, similarly-situated
civilians) and the Act’s goal of reducing the existence of guns on school grounds.
Thus, in Silveira, for example, the Court stressed that “any exception to the AWCA
unrelated to effective law enforcement is directly contrary to the act’s basic purpose
of eliminating the availability of high-powered, military-style weapons and thereby
protecting the people of California from the scourge of gun violence.” 312 F.3d at
1090. Likewise, it stressed that “allowing residents of California to obtain assault
weapons for purposes unrelated to law enforcement is wholly contrary to the
legislature’s stated reasons for enacting restrictions on assault weapons.” Id.
(emphasis added).

While allowing retired peace officers to carry concealed weapons in school



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zones may be a rational way for the government to promote their safety, this is
insufficient to validate the favorable treatment given to retired peace officer civilians
as a class in light of the broader purposes of the Act. Were it otherwise, and the
question were limited solely to whether it was rational to think the favored class
would benefit from the preference, nearly any classification would survive rational
basis review. See Gerhart, 637 F.3d at 1023 & n.9. But that is not the test.

Thus, for example, when considering the analogous and narrow argument that

that “some peace officers receive more extensive training regarding the use of
firearms than do members of the public,” the Silveira court focused again on the
broader reason for the law; it stressed that the theory justifying granting retired
peace officers access to otherwise-restricted arms and while denying that access to
other civilians “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.” 312 F.3d at 1090. The court’s reasoning—“[t]he object
of the statute is not to ensure that assault weapons are owned by those most skilled
in their use; rather it is to eliminate the availability of the weapons generally,” id.—
applies here as well: the purpose the Act is not to promote the safety of retired peace
officers, it is to rid guns from schools.7

While the State argues that Silveira “did not address any self-defense

justification for the exemption,” Mot. at 17 (emphasis in motion), the Ninth Circuit
stressed that it “must identify any hypothetical rational basis for the exception.” 312
F.3d at 1090 (emphasis in original); id. at 1091 (“we must determine whether any
reasonable theory could support the legislative classification”) (emphasis in
original). It goes without saying that possessing more powerful weapons enhances
one’s self-defense, yet that truism was not sufficient to justify the retired peace

7
To the extent the State’s argument rests on an implicit assumption that retired
peace officer civilians can be trusted more than non-retired peace officer civilians to
safely handle firearms on school grounds in the exercise of self defense, that too is
foreclosed by Silveira.



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In that context, the court decided that there was a rational justification for

officer exemption in Silveira.
The State relies heavily on Mehl v. Blanas, an unpublished decision from the

Eastern District, to argue that the self-defense needs of retired peace officers justifies
the classification. Mehl is distinguishable, however. As relevant here, the plaintiffs
in Mehl brought an equal protection challenge to the statutory schemes that allowed
both active and retired peace officers to carry concealed weapons if they used
firearms in the line of duty. (Defendant’s RJN Ex. C at 11:12 (concluding that
“there is a rational basis for allowing a retired officer to continue to carry a
concealed weapon”) (emphasis added).) Unlike in this case, the plaintiffs in Mehl
did not have concealed-carry licenses; in fact, their applications were denied.
Rather, they challenged—as a general matter—the statutory schemes that allowed
both active and retired peace officers to obtain concealed carry licenses without the
separate “good cause” showing that applies to private citizens.8

“allowing a retired officer to continue to carry a concealed weapon” through a
relaxed licensing requirement within a licensing system designed to permit
increased access to, and usage of, firearms. (Defendant’s RJN Ex. C at 11:12
(emphasis added).) Nor did Mehl consider the constitutionality of a classification
that distinguishes between classes of civilians who are already licensed. Particularly
in light of Silveira, it simply does not follow that Mehl justifies granting a retired
peace-officer civilian a greater right to self-defense than another civilian with a
concealed-carry license, in the context of a statutory scheme whose goal is
preventing civilians from possessing guns on school grounds. While there may be a

The State’s reliance on Nichols v. Brown, fails for the same reason: Similar to
8
the plaintiffs in Mehl, Nichols argued that the statutory scheme permitting the open
carry of firearms violated equal protection, in part because retired peace officers are
exempt from the statute. 2013 WL 3368922, *6 (C.D. Cal. July 3, 2013). In the
course of dismissing a series of alternate arguments by Nichols, the court observed
that “the California Legislature could have reasonably believed that certain groups,
such as retired police officers, were in greater need of self-protection and thus
should be allowed to openly carry a firearm.” Id.



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The State’s argument is further undermined by the fact that, when the State

rational basis for subjecting retired peace officers and private citizens to different
statutory licensing schemes, once licensed, there isn’t a rational basis to treat the two
classes differently in the context of legislation aimed at making schools “gun-free.”
The Ninth Circuit’s Silveira decision controls here, not the unpublished Eastern
District decision in Mehl.

actually considered self-defense interests as a basis for an exemption from the Act, it
imposed a high bar: The person asserting the need for self-defense must have a
“current restraining order issued by a court against another person or persons who
has or have been found to pose a threat to his or her life or safety.” Cal. Penal Code
§ 626.9(c)(3). And even then, the person is still subject to conviction if they did not
“reasonably believe[] that he or she is in grave danger.” Id. See U. S. Dep’t of Agric.
v. Moreno, 413 U.S. 528, 536 (1973) (existence of separate provisions dealing with
the asserted government interest “casts considerable doubt upon the proposition that
the . . . amendment [being challenged] could rationally have been intended” to
address the same concerns). By stark contrast, retired peace officers need make no
showing at all about any particularized need for self-defense. Moreover, as shown
above, Los Angeles County residents like plaintiff Garcia can only establish “good
cause” to obtain a concealed carry permit “if there is convincing evidence of a clear
and present danger to life, or of great bodily harm to the applicant, his spouse, or
dependent child, which cannot be adequately dealt with by existing law enforcement
resources. . . .” Los Angeles County Sheriff’s Department, Concealed Weapon
Licensing Policy at 2 (emphasis in original).

Likewise, the exemption’s wide sweep demonstrates not only the absence of a

connection between the classification and the statutory objective, it also
demonstrates the irrationality of the classification itself. While the State correctly
notes that “perfection” may not be required, the Legislature does not have free reign
to divide citizens into classes however it sees fit—as explained above, the Equal



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Protection Clause requires a link between the classification and the statutory
objective. Heller, 509 U.S. at 321; Romer, 517 U.S. at 633; Silveira, 312 F.3d at
1088; see also Walgreen Co. v. City & Cnty. of San Francisco, 185 Cal.App.4th 424,
428 (2010) (holding that exempting grocery and “big box” stores from ordinance
prohibiting the sale of tobacco violated equal protection because the distinction was
“not fairly related to the object of the prohibition on sales of tobacco products.”).9
Here, the exemption covers, for example, retired employees of the California

Department of Fish and Game who enforced the California Fish and Game Code,
and retired marshals appointed “to keep order and preserve peace at the California
Exposition and State Fair.” Cal. Penal Code §§ 830.2, 25450; Cal. Food & Agric.
Code § 3332(j). The exemption is so broad that it even applies to retirees from “any
federal law enforcement agency” now authorized to carry a concealed weapon,
regardless of whether they ever used a weapon in their pre-retirement duties. Thus,
for instance, retired Internal Revenue Service agents and other federal agents are
exempt simply by virtue of retiring in California or working for the agency in
California for more than a year. Cal. Penal Code § 25650(a). While the self-defense
rationale is an insufficient justification for the reasons noted above, the notion of a
need to protect against “enemies” made in the line of duty is silly to the point of
irrationality as applied to a Fish and Game agent, a State Fair marshal, or an IRS
agent who spent most of their career outside of California but happened to retire
here. Nor, in any event, does this broad exemption help achieve the purposes of
restricting access to firearms on school grounds.

Vance v. Bradley, 440 U.S. 93 (1979), on which the State relies, involved a
9
claim that requiring federal employees covered by the Foreign Service retirement
system to retire at the age of 60 violated the Equal Protection Clause because federal
employees covered by the Civil Service retirement system did not have a similar
retirement age. To state the issue there is sufficient to demonstrate the differences
between the two cases, but it is worth noting further that the Court stressed the
“imperfection” there arose out of the very different fact that “[t]he Foreign Service
retirement system and the Civil Service retirement system are packages of benefits,
requirements, and restrictions serving many different purposes,” id. at 109, a quality
that does not exist here.



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Finally, the State cannot change course and argue, as the California College

and University Police Chiefs Association argued in opposition to SB 707 as
originally proposed, that eliminating the retired peace officer exemption “would
undermine public safety” because retired peace officers “can play a role in helping
to keep [active shooter] incidents [on campus] in check.” (Mot. at 5:8–16.) This
rationale, too, is foreclosed by Silveira; just as in that case, it is squarely at odds with
the broader purpose of the statute, and likewise ignores the fundamental fact that—
in the words of then-Attorney General Brown—retired peace officers are no “longer
law enforcement agent[s],” and therefore “not authorized to engage in law
enforcement activities.” 93 Ops. Cal. Atty. Gen. 130, at *8.



The retired peace officer exemption violates the Equal Protection clause.

The Retired Peace Officer Classification Further Violates The
2.
Equal Protection Clause Because It Is Simply A Benefit Conferred
On A Politically Powerful Class That Is Denied To A Politically
Unpopular Class.

The State’s evidence supports yet another reason that the retired peace officer

exemption violates the Equal Protection Clause: It demonstrates that the Legislature
included the exemption for the improper purpose of favoring a politically powerful
group and to disfavor a politically unpopular one. Specifically, the State requests
judicial notice of letters contained in two legislative committee reports which it
claims support the idea that the distinction is warranted by the State’s interest in
protecting the safety of retired officers. While these reports shed no light on
legislative intent, 10 they reflect precisely what Plaintiffs described in the complaint:

The statements on which the State relies, made in letters of opposition, are not
10
a valid source of legislative history. “[A] court will generally consider only those
materials indicative of the intent of the Legislature as a whole.” Metro. Water Dist.
of S. Cal. v. Imperial Irrigation Dist., 80 Cal. App. 4th 1403, 1425 (2000). Material
that does not reflect the “Legislature’s collective intent,” including “letters . . .
expressing opinions in support of or opposition to a bill . . . generally should not be
considered.” Id. at 1426. See also McDowell v. Watson, 59 Cal.App.4th 1155, 1161
(1997) (“[L]etters written to those legislators in the attempt to influence [their] views
must also be disregarded.”). As a result, the Court should decline to take judicial
notice of the reports—or at the very least acknowledge that they shed no light on
legislative intent. See Quintano v. Mercury Casualty Co., 11 Cal.4th 1049, 1062 n.5



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Potent lobbying efforts by the retired peace officers’ lobby directed at obtaining
preferential treatment for their constituents. These arguments, which the State
repeats in detail in its moving papers, lay bare the disparate treatment that Plaintiffs
now face. (Mot. at 5:8–6:21. See RJN Ex. 1 at 6 (noting opposition from the
California College and University Police Chiefs Association) and 8 (opposition from
the Sacramento County Deputy Sheriffs’ Association); RJN Ex. 2 at 5–7 (noting
competing arguments in support and opposition).) For example, the State quotes
opposition from the Sacramento County Sheriff’s Association, which argued:


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.


Maybe so. But why should Dr. Ulises Garcia, who received a license to carry

(Mot. at 6:2–7, quoting Sacramento County Sheriff’s Association’s Opposition to
SB 707.)

in response to a threat of violence from a former patient, be forced to choose
between protecting his family and attending school events? Should Scott Dipman
also be forced to forgo his right to self-defense while hand-delivering his sons to
class? What about when Jordan Gallinger, an expert marksman in the United States
Marine Corps, wants to go to school? Or when Lisa Jang walks across campus late
at night—must she jeopardize her safety? The fact is, through SB 707, the
Legislature has singled out a class of persons for special treatment, then denied it to
others who are similarly situated.

based on political unpopularity violates the Equal Protection Clause. “[I]f the

The United States Supreme Court has long held that drawing classifications


(1995) (denying request for judicial notice); Heavenly Valley Ski Resort v. El
Dorado Cnty. Bd. of Equalization, 84 Cal.App.4th 1323, 1341 (2000) (denying
request for judicial notice).



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No one can deny that civilian gun owners are unpopular with the California

constitutional conception of ‘equal protection of the laws’ means anything, it must at
the very least mean that a bare congressional desire to harm a politically unpopular
group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at
534 (striking down statutory classification designed to discriminate against “hippies”
and those who lived in “hippie communes”); accord City of Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432, 447, 450 (1985) (striking down a permitting law
that “appear[ed] . . . to rest on an irrational prejudice against the mentally retarded”);
Rinaldi v. Yeager, 384 U.S. 305 (1966) (striking down state statute that only
demanded reimbursement of appellate transcript costs from unsuccessful appellants
who were imprisoned); Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J.,
concurring) (“some objectives, such as ‘a bare . . . desire to harm a politically
unpopular group,’ are not legitimate state interests.”).

Legislature—that is, unless those civilians are former “peace officers.” The
Legislature re-inserted the exemption here to avert opposition by favoring a
politically powerful group—at the expense of a politically unpopular group.
The Organizational Plaintiffs Have Standing.
C.

The State also argues that the organizational Plaintiffs lack standing because,
in its view, the equal protection claims are not “germane to the alleged purposes” of
the organizations. (Mot. at 18:12–20:18.) Each of the organizational plaintiffs is
dedicated to furthering civil rights, with a particular focus on the right to keep and
bear arms and laws affecting firearms. (See Compl., ¶¶ 20–23.) Each organization
furthers its purposes by conducting public outreach, education, and legislative
advocacy. Id. This litigation is germane to the organizations’ purposes, as it
challenges the discriminatory treatment suffered by some citizens (including
members of the plaintiffs’ organizations) who seek to exercise their right to keep and
bear arms for self-defense. This is sufficient to establish standing for each of the
organizational Plaintiffs. See, e.g., Silvester v. Harris, 41 F. Supp. 3d 927, 942 (E.D.



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For the reasons set forth above, Defendant’s motion to dismiss should be

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Cal. 2014).

V.

CONCLUSION


denied.

Dated: July 18, 2016

BENBROOK LAW GROUP, PC



By /s Bradley A. Benbrook

BRADLEY A. BENBROOK
Attorneys for Plaintiffs










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