Mahoney v. Sessions
| Decision Date | 19 September 2017 |
| Docket Number | No. 14-35970.,14-35970. |
| Citation | 871 F.3d 873 |
| Parties | Robert MAHONEY, Officer; Sjon C. Stevens, Officer; Cliff Borjeson, Officer; Christopher Myers, Officer; Bridget Hillan, Officer; Lance Basney, Officer; Salvatore Ditusa, Officer; Clarke D. Chase, Officer; Joseph Stankovich, Officer; Weldon C. Boyland, Officer; John L. Farrar, Officer; Dale W. Umpleby, Officer; Richard A. McAuliffe, Officer; George Baseley, Officer; David M. Harrington, Officer; Henry Feldman, Officer; Terry Whalen, Officer; Gilles Montaron, Officer; Robert Stevenson, Officer #5859; Joshua Goodwin, Officer; Ryan Kannard, Officer; Nathan Lemberg, Officer; Jeff Mitchell, Officer; Robert B. Brown, Officer; Ernest T. Hall, Officer; Robert Burk, Officer; Robert Beatty, Officer; Tomas Trykar, Officer; Brien Escalante, Officer; Karen G. Pio, Officer; Michael Gonzalez, Officer; Steve Kim, Officer; Ennis Roberson, Officer; Leroy Outlaw, Officer; Kieran Barton, Officer; Jonathan Reese, Officer; Eugene Schubeck, Officer #6696; Sean Hamlin, Officer; Shannon Waldorf, Officer; Jeffrey Swenson, Officer; Tabitha Sexton, Officer #7430; Michael Spaulding, Officer #7491; Steven Stone, Officer #7540; Liliya A. Nesteruk, Officer; Todd M. Nelson, Officer; Timothy Jones, Officer; Timothy J. Wear, Officer; Theresa Emerick, Officer #5002; Ariel Vela, Sergeant; Michael A. Larned, Officer #6955; Derek B. Norton, Officer; Jason Dewey, Officer; David White, Officer; Trent Schroeder, Officer; Audi A. Acuesta; Steve Clark, Officer; Steven L. Berg, Officer; Erik Johnson, Officer; Vernon Kelley, Officer; Shelly San Miguel, Officer; Christopher J. Anderson, Officer; Suzanne M. Parton, Officer; Eric F. Whitehead, Officer; Alan Richards, Officer; Ron Willis, Officer; A. Sheheen, Officer; Randall Higa, Officer; Tim Owens, Officer; Tyler Getts, Officer #7537; Adam Elias, Officer; Jon Emerick, Officer #4326; Louis Chan, Officer; Paul Pendergrass, Sergeant; AJ Marks, Officer; Ron Martin, Sergeant; Rusty L. Leslie, Officer; TJ San Miguel, Officer; Jeffrey C. Page, Officer; Ryan Ellis, Officer; Jack Bailey, Officer; Alfred Ri Warner, Officer #6162; Michael R. Washington, Officer; Nina M. Jones, Officer #7567; Anthony Jones Reynolds, Officer; Richard Heintz, Officer; Curtis Gerry, Officer; Adolph Torrescano, Officer; Curt E. Wilson, Officer; James G. Thomsen, Officer; Richard W. Pruitt, Officer #5346; Donald L. Waters, Detective #6287; Anthony J. Reynolds, Officer; Jonard A. Legaspi, Officer #6231, Plaintiffs-Appellants, v. Jefferson B. SESSIONS III, Attorney General, Defendant, and City of Seattle, including the Seattle Police Department, the Seattle Police Monitor Team, and the Seattle Attorney's Office; Ed Murray, individually and in his official capacity, Mayor, City of Seattle; Peter Holmes, individually and in his official capacity, Seattle's City Attorney; Merrick Bobb, individually and in his official capacity, Seattle Police Monitor, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Athan E. Tramountanas (argued), Short Cressman & Burgess PLLC, Seattle, Washington; Lisa Ann Battalia, Law Office of Lisa Ann Battalia, Bethesda, Maryland; for Plaintiffs-Appellants.
Gregory Colin Narver (argued), Assistant City Attorney; Peter S. Holmes, City Attorney; City Attorney's Office, Seattle, Washington; for Defendants-Appellees.
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and William Q. Hayes,** District Judge.
We must decide whether the use of force policy adopted by the City of Seattle violates the Second Amendment right of police officers to use firearms for the core lawful purpose of self-defense. We conclude that the policy survives intermediate scrutiny and is, therefore, constitutional. We affirm the judgment of the district court.
In 2012, the United States brought a civil action in the United States District Court for the Western District of Washington against the City of Seattle, alleging that the Seattle Police Department ("SPD") engaged in a pattern or practice of excessive use of force. United States v. City of Seattle , Case No. 2:12-cv-01282-JLR (W.D. Wash.). Pursuant to a settlement agreement between the parties, the United States and the City of Seattle worked with a court-appointed monitor to produce a Use of Force Policy ("UF Policy") that would apply to SPD officers' use of approved department firearms while on duty.
On December 17, 2013, United States District Judge James L. Robart issued an order approving the policy agreed to by the parties.1 The UF Policy2 states, in part, that "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective." The UF Policy provides a set of factors that officers must consider to determine whether a proposed use of force is objectively reasonable, necessary, and proportional to the threat at issue. Although the UF Policy requires officers to consider those factors before using a firearm, the UF Policy also states that officers must consider those factors only "[w]hen safe under the totality of circumstances and time and circumstances permit[.]" The UF Policy also requires officers to use de-escalation tactics to reduce the need for force only "[w]hen safe and feasible under the totality of circumstances[.]"
Appellants, a group of approximately 125 SPD officers, subsequently brought this action pursuant to 42 U.S.C. § 1983 against the City of Seattle, including SPD and other related entities, to challenge the constitutionality of the UF Policy. Appellants brought claims under the Second, Fourth, Fifth, and Fourteenth Amendments, alleging that the UF Policy unreasonably restricts their right to use department-issued firearms for self-defense. On October 17, 2014, the district court granted the motion to dismiss filed by the City of Seattle, concluding that the UF Policy did not burden conduct protected by the Second Amendment. Mahoney v. Holder , 62 F.Supp.3d 1215, 1222 (W.D. Wash. 2014). Appellants timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See N.M. State Inv. Council v. Ernst & Young LLP , 641 F.3d 1089, 1094 (9th Cir. 2011). We review de novo all constitutional rulings. See Wilson v. Lynch , 835 F.3d 1083, 1090 (9th Cir. 2016). We may affirm on any basis supported by the record below. See Bill v. Brewer , 799 F.3d 1295, 1299 (9th Cir. 2015).
When evaluating a motion to dismiss under Rule 12(b)(6), we accept the well-pleaded factual allegations of a complaint as true and construe all inferences in favor of the nonmoving party. Ariz. Students' Ass'n v. Ariz. Bd. of Regents , 824 F.3d 858, 864 (9th Cir. 2016). Dismissal under Rule 12(b)(6) is warranted if a complaint fails "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Conclusory allegations of law ... are insufficient to defeat a motion to dismiss." Lee v. City of Los Angeles , 250 F.3d 668, 679 (9th Cir. 2001).
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In District of Columbia v. Heller , the Supreme Court concluded that District of Columbia statutes that required residents to keep firearms in the home unloaded and disassembled and prohibited the possession of handguns in the home violated the Second Amendment. 554 U.S. 570, 574–75, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Court recognized that "the inherent right of self-defense has been central to the Second Amendment right." Id. at 628, 128 S.Ct. 2783. The Court concluded that the statutes at issue "ma[de] it impossible for citizens to use [firearms] for the core lawful purpose of self-defense and [were] hence unconstitutional." Id. at 630, 128 S.Ct. 2783. The Court subsequently applied the right to keep and bear arms for self-defense under the Second Amendment against the States through the Fourteenth Amendment in McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Following Heller and McDonald , we "adopt[ed a] two-step ... inquiry" to determine whether a challenged law or regulation violates the Second Amendment. United States v. Chovan , 735 F.3d 1127, 1136 (9th Cir. 2013). The two-step inquiry "reflects the Supreme Court's holding in Heller that, while the Second Amendment protects an individual right to keep and bear arms, the scope of that right is not unlimited." Id. A majority of our sister circuits have adopted this two-step inquiry to analyze Second Amendment claims. See Silvester v. Harris , 843 F.3d 816, 820–21 (9th Cir. 2016).
At the first step, courts ask whether "the challenged law burdens conduct protected by the Second Amendment[.]" Chovan , 735 F.3d at 1136. If a court answers this question in the affirmative, "the regulation is subject to Second Amendment protection (i.e., the regulation is neither outside the historical scope of the Second Amendment, nor presumptively lawful), [and] the court then proceeds to the second step of the inquiry to determine the appropriate level of scrutiny to apply." Silvester , 843 F.3d at 821 (citing Jackson v. City & Cty. of San Francisco , 746 F.3d 953, 960 (9th Cir. 2014) ).
To determine whether the UF Policy burdens conduct protected by the Second Amendment, we ask whether the UF Policy "is one of the ‘presumptively lawful regulatory measures' identified in Heller , or whether the record includes persuasive historical evidence...
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