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Case 2:16-cv-02572-BRO-AFM Document 20 Filed 08/05/16 Page 1 of 13 Page ID #:162
JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

 

Present: The Honorable

Renee A. Fisher
Deputy Clerk
Attorneys Present for Plaintiffs:

BEVERLY REID O’CONNELL, United States District Judge



Court Reporter

Not Present

N/A




Tape No.
Attorneys Present for Defendants:




Not Present



Proceedings:

Not Present



(IN CHAMBERS)



I.


INTRODUCTION

ORDER RE DEFENDANT’S MOTION TO DISMISS

PLAINTIFF’S COMPLAINT [14]

Pending before the Court is Kamala D. Harris’s (“Defendant”) Motion to Dismiss

Plaintiffs’1 Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). (Dkt. No. 14 (hereinafter, “Mot.”) at 2–3.) After considering the papers filed in
support of and in opposition to the instant Motion, the Court deems this matter
appropriate for resolution without oral argument of counsel. See Fed. R. Civ. P. 78; C.D.
Cal. L.R. 7-15. For the following reasons, the Court GRANTS Defendant’s Motion.

II. BACKGROUND

A.

Factual Background

The Complaint alleges that Individual Plaintiffs are “responsible, law abiding
citizens” with licenses to carry concealed weapons, and that each has a reason to be
present in a school zone. (Compl. ¶ 33; see also Compl. ¶¶ 10–19.) Each Individual
                                                            
1 The Plaintiffs in this case are: 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 (“FPF”), Firearms Policy Coalition (“FPC”), Madison Society Foundation (“Madison
Society”), and The Calguns Foundation (“CGF”). The Court will refer to Garcia, Gallinger, Brian Hill,
Brooke Hill, DeLuz, Dipman, Duncan, Graham, Jang, Serbu, and Veredas collectively as the “Individual
Plaintiffs” and will refer to FPF, FPC, Madison Society, and CGF collectively as “the Organizational
Plaintiffs.” All Plaintiffs collectively will be referred to as “Plaintiffs.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

Plaintiff has had to demonstrate good moral character and good cause to obtain a
concealed carry license. (Compl. ¶ 33.) The Organizational Plaintiffs all contend that
their purpose is to advance constitutional rights and that all the organizations have a
particular focus on the Second Amendment. All the Organizational Plaintiffs allege they
have spent funds and other resources to address questions, concerns, and complaints
about the amendments to SB 707. (See Compl. ¶¶ 20–23.) Defendant is the Attorney
General of California and has an office in Los Angeles, California. (Compl. ¶ 24.)
Plaintiffs have sued Defendant in her official capacity. (Id.)

 

Plaintiffs challenge the constitutional validity of amendments to the Gun Free

School Zone Act of 1995 (the “Act”) passed in 2015 as Senate Bill 707, 2014–15 Reg.
Sess. (Cal. 2015) (“SB 707”). (Dkt. No. 1 (hereinafter, “Compl.”) ¶ 1.) The Act
prohibits the possession of a firearm within a school zone, which includes any area on the
grounds of, or within 1,000 feet of, a public or private school. (Compl. ¶ 25); see Cal.
Penal Code § 626.9(b), (e)(4). Violation of the Act is a misdemeanor or a felony. (Id.)
As originally enacted, the Act created two exemptions: (1) anyone who was licensed to
carry a concealed firearm pursuant to California Penal Code section 26150 could carry a
firearm on school property; and, (2) any “honorably retired peace officer authorized to
carry a concealed or loaded firearm” (the “Retired Peace Officer Exemption”) could also
carry a firearm on school grounds. (Compl. ¶ 29; Mot. at 1 (citation omitted).) In 2015,
the California Legislature initially intended to amend the Act to remove all exemptions,
but ultimately retained the Retired Peace Officer Exemption. (Compl. ¶ 29; Mot. at 2);
see Cal. Penal Code § 626.9(o). According to Plaintiffs, section 626.9(o) treats two
groups of “similarly situated” citizens differently as it allows these retired peace officers
a right not afforded to the general public. (See Compl. ¶ 6.) As a result, eleven
individuals and four organizations have brought a challenge pursuant to 42 U.S.C. § 1983
alleging the Retired Peace Officer Exemption violates the Equal Protection Clause of the
Fourteenth Amendment. (See Compl.)

Under California law, retired peace officers are not subject to a moral character
check and are not required to establish good cause unlike most citizens (including the
Individual Plaintiffs). (Compl. ¶ 34.) Rather, any retired peace officer who carried a gun
during their service will be issued an identification certificate by the law enforcement
agency for which they worked that allows them to carry a concealed weapon. (Id.) This
exemption applies to retired employees of the Department of Fish and Game, retired

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

 

employees of the Department of Parks and Recreation, retired employees of the
Department of Forestry and Fire Protection, and retired marshals whose primary
assignment duties included enforcing California Food and Agricultural Code section
3332. (Id.) The retirees must reapply every five years to their former agency to maintain
their eligibility, and the agency must find “good cause” to deny the renewal. (Id.)
Additionally, the Retired Peace Officer Exemption also includes any honorably retired
federal officer or agent of a federal law enforcement agency regardless of whether they
ever carried a gun during their service. (Compl. ¶ 35.) For these officers, the officer or
agent must have been assigned to duty within California for at least one year or retired
from active service in the state. (Id.) The officer must provide the local sheriff or police
chief with a “concurrence” from the agency for whom the officer or agent worked stating
that the retiree should be able to carry a concealed weapon. (Id.)

B.

Procedural History

Plaintiffs filed this action on April 14, 2016, seeking declaratory, injunctive, or
other relief for an alleged violation of the Equal Protection Clause of the Fourteenth
Amendment pursuant to 42 U.S.C. § 1983. (See generally Compl.) On May 11, 2016,
the Parties stipulated to an extension of the deadline for Defendant to file an Answer to
the Complaint. (Dkt. No. 13.) Accordingly, on June 10, 2016, Defendant answered
Plaintiffs’ Complaint by filing the instant Motion to Dismiss, (Dkt. No. 14), and a
Request for Judicial Notice, (Dkt. No. 15 (hereinafter, “RJN”)). On July 18, 2016,
Plaintiffs timely opposed the Motion, (Dkt. No. 16 (hereinafter, “Opp’n”), and objected
to the Request for Judicial Notice, (Dkt. No. 17 (hereinafter, “Obj. to RJN”)). On July
25, 2016, Defendant replied to Plaintiffs’ Opposition. (Dkt. No. 19 (hereinafter,
“Reply”).)

III. REQUEST FOR JUDICIAL NOTICE

Accompanying Defendant’s Motion is a Request for Judicial Notice. (See RJN.)

Defendant requests that the Court take judicial notice of (1) an order from the Eastern
District of California filed in Mehl v. Blanas, No. CIV. S 03-2682 MCE KJM (E.D. Cal.
Sept. 3, 2004) (Dkt. No. 17) (hereinafter, “Mehl Order”), and (2) two Committee
Analyses of SB 707 dated April 14, 2015 and July 14, 2015 respectively. (RJN ¶¶ 1–3,
Exs. A–C.)

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

 

A court may properly take judicial notice of (1) material which is included as part
of the complaint or relied upon by the complaint, and, (2) matters in the public record.
See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Lee v. City of Los Angeles, 250
F.3d 668, 688–89 (9th Cir. 2001). A court may also take judicial notice pursuant to
Federal Rule of Evidence 201(b). Under the rule, a judicially noticed fact must be one
that is “not subject to reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or, (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A
court “must take judicial notice if a party requests it and the court is supplied with the
necessary information.” See Fed. R. Evid. 201(c)(2); In re Icenhower, 755 F.3d 1130,
1142 (9th Cir. 2014).

Plaintiffs do not object to the Court taking judicial notice of the Mehl Order, (see
generally Obj. to RJN), and it is appropriate for a court to take judicial notice of another
court’s order, see Walker v. Metro Life Ins. Co., No. CV 09-1178 PSG (AGR), 2009 WL
2048328, at *2 n.2 (C.D. Cal. July 9, 2009) (“The Court may take judicial notice of
orders by other courts . . . .”) (citing Papai v. Harbor Tug & Barge Co., 67 F.3d 203, 207
n.5 (9th Cir. 1995), rev’d on other grounds by 520 U.S. 548 (1997)). Therefore, the
Court GRANTS Defendant’s Request for Judicial Notice as to the Mehl Order.


Plaintiffs do object to the Court taking judicial notice of portions of the SB 707’s
Committee Analyses, specifically letters from entities opposing the proposed removal of
the Retired Peace Officer Exemption from the Act. (Obj. to RJN ¶¶ 1–2.) “Legislative
history is properly a subject of judicial notice.” Anderson v. Holder, 673 F.3d 1089, 1094
n.1 (9th Cir. 2012) (citing Chaker v. Crogan, 428 F.3d 1215, 1223 n.8 (9th Cir. 2005)).
Judicial notice is appropriate because “[l]egislative history is a source whose accuracy
cannot reasonably be questioned.” See Snyder v. Unum Life Ins. Co. of Am., No. CV 13-
07522 BRO (RZx), 2014 WL 7734715, at *5 (C.D. Cal. Oct. 28, 2014) (citing Chaker,
428 F.3d at 1223 n.8). However, Plaintiffs contend that the Court cannot take judicial
notice of statements made in opposition to SB 707, as they “are not a valid source of
legislative history.” (Obj. to RJN ¶¶ 1–2.) Plaintiffs contend that courts do not take
judicial notice of legislative history that is not indicative of the collective intent of the
Legislature, such as letters opposing the bill. (Id.) To support their contention, Plaintiffs
rely on several California appellate court decisions that have denied judicial notice of
legislative history. (Id.) However, federal courts have taken judicial notice of legislative

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

history that includes statements and papers that are not the collective intent of the
Legislature. See Rocky Mountain Farmers Union v. Goldstone, 719 F. Supp. 2d 1170,
1186 (E.D. Cal. 2010) (taking judicial notice of a variety of legislative history, including
statements, reports, and white papers). Moreover, this comports with Federal Rule of
Evidence 201(b), as the Committee Analyses are part of the public record, and their
accuracy cannot be questioned. Therefore, the Court GRANTS Defendant’s request to
take judicial notice of SB 707’s legislative history.



IV. LEGAL STANDARD

 

Under Rule 8(a) a complaint must contain a “short and plain statement of the claim

showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Otherwise, the
defendant may move to dismiss it under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, there must be “more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility’” that the plaintiff is entitled to relief. Id. (quoting Twombly, 550 U.S. at
557). In ruling on a motion to dismiss for failure to state a claim, a court should consider
the contents of the complaint and its attached exhibits, documents incorporated into the
complaint by reference, and matters properly subject to judicial notice. Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007); Lee, 250 F.3d at 688.

Where a district court grants a motion to dismiss, it should provide leave to amend
unless it is clear that the complaint could not be saved by any amendment. Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (“Dismissal
without leave to amend is improper unless it is clear, upon de novo review, that the
complaint could not be saved by any amendment.”). Leave to amend, however, “is
properly denied . . . if amendment would be futile.” Carrico v. City & County of San
Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

V. DISCUSSION

 


The Equal Protection Clause of the Fourteenth Amendment ensures “that no State
shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457
U.S. 202, 216 (1982)). To sufficiently plead a violation of the Equal Protection Clause, a
plaintiff must show that similarly situated groups have been treated disparately. See Ariz.
Dream Act Coal. v. Brewer, 757 F.3d 1053, 1064 (9th Cir. 2014). Further, a plaintiff
must demonstrate that the legislative classification does not survive the appropriate
standard of scrutiny. See City of Cleburne, 473 U.S. at 440–41.

A.

Plaintiffs Have Established That Plaintiffs and Retired Peace Officers
Are Similarly Situated Groups

“The first step in equal protection analysis is to identify the defendants’

classification of groups.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.
1995) (alteration and citation omitted). The plaintiff can do this by showing the law
applies differently to different classes of people. Id. “Once the plaintiff establishes
governmental classification, it is necessary to identify a ‘similarly situated’ class against
which the plaintiff’s class can be compared.” Id. “The 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). “The
similarly situated group is the control group.” Freeman, 68 F.3d at 1187 (internal
quotation marks omitted). However, “[t]he groups need not be similar in all respects, but
they must be similar in those respects relevant to the Defendants’ policy.” Ariz. Dream
Act Coal. v. Brewer, 757 F.3d 1053, 1064 (9th Cir. 2014).

Plaintiffs have established that the group they allege is subject to government
classification is retired peace officers. (Compl. ¶ 3.) Defendant argues that Plaintiffs
have failed to establish a “control group,” i.e., a similarly situated class against which the
Court may measure the treatment of retired peace officers. (Mot. at 10–11.) The Court
disagrees. In the Complaint, Individual Plaintiffs allege that they are private citizens who
have been issued a concealed carry license pursuant to California’s licensing scheme.
(See Opp’n at 7–8; Compl. ¶¶ 33, 40.) Both Plaintiffs and retired peace officers may

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

lawfully carry a concealed firearm for self-defense purposes, and neither group are active
members of law enforcement that are required to carry concealed weapons for their
occupation or for public safety. (See Compl. ¶¶ 33–36.) And yet the Act creates an
exemption that allows retired peace officers to carry a concealed weapon on school
property but does not create an exemption for Individual Plaintiffs. (Id.) This is a
sufficient “control group.”

 

Further, Defendant argues that the groups are not similarly situated because retired
peace officers are not required to meet the same “good cause” standard as private citizens
before being granted a concealed carry license. (See Reply at 9.) The standard they had
to meet to obtain a concealed carry license, however, is not relevant to the determination
and not enough to make the two classes dissimilar. See Ariz. Dream Act Coal., 757 F.3d
at 1064. Rather, the relevant distinction under the Act is that both groups are licensed to
carry concealed weapons but are treated differently based on the retired peace officers’
status as former members of law enforcement. Thus, the Court finds that the two groups
are sufficiently similarly situated to establish an equal protection claim.

B. Rational Basis Scrutiny Applies


Next, the Court must determine what level of constitutional scrutiny to apply when
analyzing the Retired Peace Officers Exemption. If a statute treats individuals differently
based on a protected class (such as race or national origin) or infringes on a fundamental
right, the statute must pass strict scrutiny; that is, it must be “suitably tailored to serve a
compelling state interest.” City of Cleburne, 473 U.S. at 440; see also Zablocki v.
Redhail, 434 U.S. 374, 388 (1978) (“When a statutory classification significantly
interferes with the exercise of a fundamental right, it cannot be upheld unless it is
supported by sufficiently important state interests and is closely tailored to effectuate
only those interests.”). But “if a legislative act neither affects the exercise of a
fundamental right, nor classifies persons based on protected characteristics, then the
statute will be upheld ‘if the classification drawn by the statute is rationally related to a
legitimate state interest.’” Silveira v. Lockyer, 312 F.3d 1052, 1088 (9th Cir. 2002)
(quoting Schweiker v. Wilson, 450 U.S. 221, 230 (1981), abrogated on other grounds by
District of Columbia v. Heller, 554 U.S. 570 (2008). This is commonly referred to as
rational basis scrutiny.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

 

Review of the Retired Peace Officer Exemption does not trigger heightened


scrutiny. The only group the Act treats differently is retired peace officers based on their
status as former law enforcements officers. Occupational status (former or current) is not
a protected class. Additionally, the Act does not affect the exercise of a fundamental
right.2 Accordingly, the law need only be “rationally related to a legitimate state
interest.” Id. Rational basis scrutiny is a forgiving standard. “Under rational basis
review, [Plaintiff’s] claim must be rejected as long as ‘there is any reasonably
conceivable state of facts that could provide a rational basis’ for the challenged law.”
Merrifield v. Lockyer, 547 F.3d 978, 989 (9th Cir. 2008) (quoting FCC v. Beach
Commcn’s, Inc., 508 U.S. 307, 313 (1993)). Generally, under rational basis review,
“legislation is presumed to be valid.” City of Cleburne, 473 U.S. at 439. The party
challenging the statute bears the burden of establishing that there is no rational basis for
the challenged distinction and to “negative every conceivable basis which might support
it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotation marks omitted).

C. Defendant Has Proffered a Legitimate Government Interest

Defendant argues that the Retired Peace Officer Exemption is reasonably related to


a legitimate government interest: the protection and safety of retired peace officers.3
                                                            
2 To be clear, Plaintiffs’ challenge to the Retired Peace Officer Exemption does not implicate the Second
Amendment. The Act prevents the carrying of concealed weapons only on school property. (Compl.
¶ 25); see Cal. Penal Code § 626.9(b). As the United States Supreme Court explained in Heller, 554
U.S. at 626, the Second Amendment does not prevent “forbidding the carrying of firearms in sensitive
places such as schools and government buildings.” See also McDonald v. City of Chicago, 561 U.S.
742, 786 (2010) (“We made it clear in Heller that our holding did not cast doubt on such longstanding
regulatory measures as . . . ‘laws forbidding the carrying of firearms in sensitive places such as schools .
. . .’”). Therefore, the Act does not implicate the Second Amendment by forbidding members of the
general public from carrying a firearm on school property.
3 This is indicated by a letter from the Sacramento County Sheriff’s Association sent to the California
Legislature which explained that the removal of the Retired Peace Officer Exemption from the Act
would jeopardize the safety of retired peace officers. (Mot. at 15.) Plaintiffs argue that because this
letter was not part of the Legislature’s collective intent and represents only the opinion of one entity it is
not subject to judicial notice. (Obj. to RJN ¶¶ 1–2.) However, the Court found the entire legislative
history of SB 707 was properly subject to judicial notice. (See supra Section III.) Further, the Court
“must attempt to identify any hypothetical rational basis for the exception, whether or not that reason is
in the legislative record.” Silveira, 312 F.3d at 1090. The letter from the Sacramento County Sheriff’s

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

 

(Mot. at 15.) Other courts have noted that the protection and safety of retired peace
officers may be considered a rational reason on which to differentiate for purposes of
carrying a firearm. See Nichols v. Brown, No. CV 11-09916 SJO (SS), 2013 WL
3368922, at *6 (C.D. Cal. July 3, 2013) (addressing a challenge to a California statute
which treated retired peace officers differently than other citizens and noting 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”); see also Mehl Order at 11 (explaining that allowing retired
peace officers to carry a concealed weapon is rationally related to a legitimate
government interest, namely “to protect themselves from the enemies they have made in
performing their duties”). Accordingly, the Court finds that the protection of retired
peace officers is a legitimate government interest.

D. The Retired Peace Officer Exemption is Rationally Related to

Defendant’s Proffered Legitimate State Interest

Next, the Court must determine whether the Retired Peace Officer Exemption is
rationally related to Defendant’s proffered government interest. Plaintiffs argue that the
Ninth Circuit’s decision in Silveira controls the Court’s decision and establishes that
there is no rational relation. (See Opp’n at 14.) The Court disagrees, however, and finds
that Silveira is inapposite.

In Silveira, the Ninth Circuit addressed California’s Roberti-Roos Assault

Weapons Control Act (the “ACWA”) which effectively created a ban on the possession
of assault weapons by private individuals. See Silveira, 312 F.3d at 1059. But the
ACWA created (among other various exceptions) two exceptions for peace officers: first,
it allowed active peace officers to possess assault weapons while off-duty; and second, it
permitted retired peace officers to purchase and possess assault weapons if they acquired
them from their employers at the time of their retirement. See id. The court upheld the
exception for off-duty active peace officers, but found that the exception for retired peace

                                                            
Association makes clear that the safety of retired peace officers was at the very least a possible
consideration behind keeping the Retired Peace Office Exemption in the Act. Accordingly, the Court
could consider whether retired peace officers’ need for self-defense is a legitimate interest, even if the
letter was not properly subject to judicial notice.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

 

officers violated the Equal Protection Clause. Id. at 1089–90. The court explained that
the statutory purpose of the ACWA was to protect public safety, and thus the exception
for allowing off-duty peace officers to carry assault weapons was reasonable, as “off-duty
officers may find themselves compelled to perform law enforcement functions in various
circumstances” that would require them to “have their weapons readily available.” Id. at
1089. But for retired peace officers, there was no expectation that they would be required
to act to protect the public, and so there was “no legitimate state interest in permitting
retired peace officers to possess and use for their personal pleasure military-style
weapons.” Id. at 1090–91. Even after examining whether “any reasonable theory could
support the legislative classification,” the court found the retired officer exception did not
pass rational basis scrutiny. Id. at 1091.

Plaintiffs argue that Silveira indicates that to pass rational basis scrutiny, the

government’s classification must be rationally related not only to a legitimate
government interest, but also to the purpose of the underlying statute. (See Opp’n at 10–
11.) Plaintiffs reading of Silveira is overbroad. Rational basis does not require the
government’s purpose for the classification have a connection to the underlying statute,
though a court may take any such connection (or lack thereof) into consideration. See
Romer v. Evans, 517 U.S. 620, 631–32 (1996) (explaining that the court will uphold a
statute under rational basis review so long as a classification “bears a rational relation to
some legitimate end,” but that searching for the relation “between the classification
adopted and the object to be obtained” can give “substance to the Equal Protection
Clause” and provide “guidance and discipline for the legislature”). In Silveira, the court
noted that 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. But the “general rule” is that legislation will be
sustained so long as “the classification drawn by the statute is rationally related to a
legitimate state interest.” City of Cleburne, 473 U.S. at 439. Thus, while in Silveira the
court observed that allowing retired peace officers access to assault weapons was “wholly
contrary to the legislature’s stated reasons for enacting restrictions on assault weapons,”
this observation was not dispositive; rather, the court found that the ACWA’s retired
officer exception was unconstitutional because there was not even a “hypothetical
rational basis” for granting retired peace officers access to assault weapons. See Silveira,
312 F.3d at 1090–91. In this case, the Court need not scrutinize the connection between

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

the purpose of the Act and the Retired Peace Officer Exemption, because it finds that the
Exemption is rationally related to a legitimate state interest.

 

Further, Silveira’s holding that there is no rational basis for permitting retired
peace officers access to assault weapons does not control the outcome here. Silveira
regarded the possession and use of assault weapons for personal and recreational
purposes, not the right to carry a lawful concealed weapon for self-defense. There is a
distinct difference between allowing access to assault weapons and allowing the carrying
of otherwise lawful concealed weapons. See Mehl Order, at 11 (“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.”). Thus, there is a distinct difference in finding a rational basis for allowing
retired peace officers to carry concealed weapons than to find a basis for granting them
access to assault weapons.

Unlike in Silveira, where the proffered government interest was one of public
protection, the government interest here is one of private protection and self-defense.
Retired peace officers have a unique role in our society as they, as members of law
enforcement, dealt with a wide array of people and participated in situations in which
they may create enemies or interact with those who wish them harm. Because of these
interactions, retired peace officers have an interest in protecting themselves by carrying a
concealed weapon for self-defense even after their public service has ended. This need
for self-protection does not disappear simply because the retired peace officer is within
1,000 feet of a school. Therefore, allowing retired peace officers an exemption from the
general ban of carrying concealed weapons on school property is rationally related to the
legitimate state interest of ensuring their protection.

Accordingly, Defendant has established that the Retired Peace Officer Exemption

is reasonably related to a legitimate state interest.

E.

Plaintiffs Do Not Establish a Valid Claim for Equal Protection Based on
Improper Treatment of a Politically Unpopular Class

Plaintiffs also argue that the Retired Peace Officer Exemption violates the Equal


Protection Clause because the California Legislature only created the Exemption “for the

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JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

improper purpose of favoring a politically powerful group and to disfavor a politically
unpopular one.” (Opp’n at 16.) According to Plaintiffs, the Retired Peace Officers
Exemption is the result of significant lobbying efforts by retired peace officers seeking
deferential treatment for their constituents. (Opp’n at 16–17.) Plaintiffs contend that
“civilian gun owners are unpopular with the California Legislature” and that because the
Act favors a more powerful political group (i.e., retired peace officers), they have
established a valid equal protection claim. (Opp’n at 18.)

 

The Court disagrees. In the case on which Plaintiffs rely, United States

Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), there was evidence in
the legislative history that there was “a bare congressional desire to harm a politically
unpopular group.” In that case, Congress had created a statutory classification that
households comprised of only related persons versus households comprised of one or
more unrelated persons would be treated differently under the food stamp program.
Moreno, 413 U.S. at 533–34. The legislative history explicitly indicated that the purpose
behind this classification was “to prevent socalled ‘hippies’ and ‘hippie communes’ from
participating.” Id. at 534. The legislative history of the Act here does not indicate that
the California Legislature was trying to prejudice civilian firearm owners when it retained
the Retired Peace Officers Exemption. Absent evidence of explicit legislative intent to
cause harm to civilian gun owners, Plaintiffs cannot establish a violation of the Equal
Protection Clause under this theory.

Thus, Plaintiffs have failed to state a viable claim for a violation of the Equal


Protection Clause and the Court need not address Defendant’s argument regarding the
Organizational Plaintiffs’ standing.

VI. CONCLUSION

Plaintiffs’ claim that the Retired Peace Officer Exemption is unconstitutional under


the Equal Protection Clause cannot be cured by amendment because so long as the
government has an interest in protecting retired peace officers, it will survive rational
basis scrutiny. Further, as the legislative history of the Act has already been judicially
noticed and it includes no evidence of legislative intent to harm civilian California
firearm owners, it appears that allowing Plaintiffs to amend the Complaint regarding its
claim of improper treatment of a politically unpopular class would also be futile.

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Case 2:16-cv-02572-BRO-AFM Document 20 Filed 08/05/16 Page 13 of 13 Page ID #:174
JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA



CIVIL MINUTES – GENERAL

Case No. CV 16-02572-BRO (AFMx)
Title

ULISES GARCIA ET AL. V. KAMALA HARRIS

Date

August 5, 2016

Accordingly, for the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED
with prejudice. The hearing scheduled for August 8, 2016, is hereby VACATED.

 

IT IS SO ORDERED.




 




Initials of Preparer





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