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Gallinger v. Becerra

United States Court of Appeals, Ninth Circuit

August 3, 2018

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; The Calguns Foundation, Plaintiffs-Appellants,
v.
Xavier Becerra, in his official capacity as Attorney General of California, Defendant-Appellee.

          Argued and Submitted February 7, 2018 Pasadena, California

          Appeal from the United States District Court for the Central District of California Beverly Reid O'Connell, District Judge, Presiding D.C. No. 2:16-cv-02572-BRO-AFM

          Stephen M. Duvernay (argued) and Bradley A. Benbrook, Benbrook Law Group PC, Sacramento, California, for Plaintiffs-Appellants.

          John D. Echevarria (argued), Deputy Attorney General; Mark R. Beckington, Supervising Deputy Attorney General; Marc LeForestier, Acting Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Defendant-Appellee.

          Ilya Shapiro and Thomas Berry, Cato Institute, Washington, D.C., for Amicus Curiae Cato Institute.

          Before: M. Margaret McKeown, [*] William A. Fletcher, and John B. Owens, Circuit Judges.

         SUMMARY[**]

         Civil Rights

         The panel affirmed the district court's dismissal of an action challenging California's 2015 amendment, Senate Bill 707, to its Gun-Free School Zone Act.

         In 1994, the California Legislature enacted the Gun-Free School Zone Act, which banned the possession of firearms on school grounds and within school zones (the area within 1, 000 feet of school grounds). The Act exempted two groups: (1) individuals licensed to carry a concealed firearm under California law; and (2) retired peace officers authorized to carry a loaded firearm. In 2015, the Legislature passed Senate Bill 707, which preserved the retired-officer exception for firearm possession on school grounds, as well as within school zones, but prohibited concealed carry weapon holders from possessing a firearm on school grounds. Plaintiffs alleged that Senate Bill 707 violated the Equal Protection Clause of the Fourteenth Amendment because it treated concealed weapon permit holders differently from retired peace officers.

         The panel first rejected plaintiff's argument that Silveira v. Lockyer, controlled the outcome. In Silveira, the court held that the provision of California's Assault Weapons Control Act exempting retired peace officers from a statewide ban on assault weapons violated the Equal Protection Clause. 312 F.3d 1052, 1089-92 (9th Cir. 2002), abrogated on other grounds by District of Columbia v. Heller, 554 U.S. 570, 626 (2008). The panel held that there was a meaningful difference between the conduct regulated by the Assault Weapons Control Act and Senate Bill 707. The panel held that permitting retired peace officers to carry firearms other than assault weapons on school grounds was sufficiently connected to the goal of ensuring such officers' safety and public safety to survive rational-basis review.

         The panel also rejected plaintiff's contention that Senate Bill 707 violates the Equal Protection Clause because it was enacted to favor a politically powerful group and to disfavor a politically unpopular one. The panel held that plaintiffs failed to plausibly allege that the Legislature enacted Senate Bill 707 to harm concealed carry permit holders.

          OPINION

          OWENS, CIRCUIT JUDGE

         Plaintiffs-Appellants ("Plaintiffs"), individuals with permits to carry concealed weapons (and interested organizations), appeal from the dismissal of their challenge to California's 2015 amendment to its Gun-Free School Zone Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         A. California's Gun-Free School Zone Act of 1995 and Senate Bill 707

         In 1994, the California Legislature ("the Legislature") enacted the Gun-Free School Zone Act, which banned the possession of firearms on school grounds and within school zones (the area within 1, 000 feet of school grounds). Gun-Free School Zone Act of 1995, sec. 1, § 626.9(b), (e)(1), 1994 Cal. Stat. 6191, 6191-92. The Act exempted two groups: (1) individuals licensed to carry a concealed firearm under California law ("CCW permit holders"); and (2) "retired peace officer[s] . . . authorized to carry a loaded firearm" ("retired peace officers"). § 626.9(1)-(m), 1994 Cal. Stat. at 6193.

         In 2015, the Legislature considered an amendment to the Gun-Free School Zone Act, Senate Bill 707 ("SB 707"), that would give school officials control "of who, if anyone," could bring firearms onto their campuses. See Cal. S. Comm. on Pub. Safety, Analysis of S.B. 707, 2015-2016 Reg. Sess., at 5 (Apr. 13, 2015). SB 707, sponsored by State Senator Lois Wolk, was introduced in response to the "disturbing increase in the number of active shooter incidents on . . . campuses across the country" and the "alarming number of sexual assaults on college and university campuses." Id. Recognizing that "some gun rights proponents in other states ha[d] sponsored legislation to increase the opportunity for students and teachers to bring firearms on school campuses with CCWs, claiming this will deter" sexual assaults and active shooters, Senator Wolk highlighted research "indicat[ing] that bringing more firearms on campus will lead to more campus violence and increase the danger to students and others on campus." Id. Senator Wolk thus introduced SB 707 to "ensure that students and parents who expect a campus to be safe and 'gun free' can be confident that their expectation is being met." Id.

         In returning control over firearm possession to school officials, the version of SB 707 that Senator Wolk originally introduced would have eliminated the Gun-Free School Zone Act's exception authorizing CCW permit holders and retired peace officers to carry firearms "on school grounds," though it would have retained the exceptions authorizing both groups to carry firearms "within school zones." Id.; see also S.B. ...


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