Teixeira v. Cnty. of Alameda
| Citation | 873 F.3d 670 |
| Decision Date | 10 October 2017 |
| Docket Number | No. 13-17132.,13-17132. |
| Parties | John TEIXEIRA; Steve Nobriga; Gary Gamaza; Calguns Foundation, Inc., (CGF); Second Amendment Foundation, Inc., (SAF); California Association of Federal Firearms Licensees, (CAL-FFL), Plaintiffs-Appellants, v. COUNTY OF ALAMEDA; Alameda County Board Of Supervisors, as a policy making body; Wilma Chan, In Her Official Capacity; Nate Miley, in his official capacity; Keith Carson, in his official capacity, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
COUNSEL, Donald E. J. Kilmer, Jr. (argued), San Jose, California, for Plaintiffs-Appellants.
Brian P. Goldman (argued), Orrick Herrington & Sutcliffe LLP, San Francisco, California; Donna R. Ziegler, County Counsel; Office of the County Counsel, County of Alameda, Oakland, California; for Defendants-Appellees.
Alan Gura, Gura & Possessky PLLC, Alexandria, Virginia, for Amicus Curiae Citizens Committee for the Right to Keep and Bear Arms.
Imran A. Khaliq, Arent Fox LLP, San Francisco, California; Laura J. Edelstein, Steptoe & Johnson LLP, Palo Alto, California; for Amici Curiae Law Center to Prevent Gun Violence, and Youth Alive!
T. Peter Pierce and Stephen D. Lee, Richards Watson & Gershon APC, Los Angeles, California, for Amici: Curiae League of California Cities, and California State Association of Counties.
Kathryn Marshall Ali, Anna M. Kelly, and Adam K. Levin, Hogan Lovells US LLP, Washington, D.C.; Jasmeet K. Ahuja, Hogan Lovells US LLP, Philadelphia, Pennsylvania; Kelly Sampson, Avery Gardiner, Alla Lefkowitz, and Jonathan Lowy, Brady Center to Prevent Gun Violence; for Amicus Curiae Brady Center to Prevent Gun Violence.
Lisa Hill Fenning, Amanda Semaan, Eric D. Mason, and Stephanie N. Kang, Arnold & Porter LLP, Los Angeles, California; Anton A. Ware and David A. Caine, Arnold & Porter LLP, San Francisco, California; for Amicus Curiae Dean Erwin Chemerinsky.
Peter H. Chang, Deputy Attorney General; Marc A. LeForestier, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kathleen A. Kenealy, Chief Assistant Attorney General; Edward C. DuMont, Solicitor General; Office of the Attorney General, San Francisco, California; for Amicus Curiae State of California.
Eugene Volokh, Los Angeles, California, for Amici Curiae Professors Randy Barnett, Robert J. Cottrol, Brannon Denning, Michael O'Shea, and Glenn Harlan Reynolds, and The Firearms Policy Foundation.
Bradley A. Benbrook and Stephen M. Duvernay, Benbrook Law Group PC, Sacramento, California, for Amici Curiae Firearms Policy Coalition, Golden State Second Amendment Council, Madison Society Foundation, Commonwealth Second Amendment Inc., Gun Owners of California, and San Diego County Gun Owners Political Action Committee.
Craig A. Livingston and Crystal L. Van Der Putten, Livingston Law Firm P.C., Walnut Creek, California; Lawrence G. Keane, General Counsel, The National Shooting Sports Foundation Inc., for Amicus Curiae The National Shooting Sports Foundation Inc.
Paul D. Clement, Erin E. Murphy, and Christopher G. Michel, Kirkland & Ellis LLP, Washington, D.C.; C.D. Michel, Michel & Associates P.C., Long Beach, California; for Amici Curiae National Rifle Association of America Inc., and California Rifle & Pistol Association.
Joseph G.S. Greenlee, Jolein A. Harro P.C., Steamboat Springs, Colorado; David B. Kopel, Independence Institute, Denver, Colorado; for Amici Curiae Jews for the Preservation of Firearms Ownership, and The Independence Institute.
Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt, M. Margaret McKeown, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee, Carlos T. Bea, Paul J. Watford and John B. Owens, Circuit Judges.
OPINION
The County of Alameda seeks to preserve the health and safety of its residents by (1) requiring firearm retailers to obtain a conditional use permit before selling firearms in the County and (2) prohibiting firearm sales near residentially zoned districts, schools and day-care centers, other firearm retailers, and liquor stores. The individual plaintiffs in this case, John Teixeira, Steve Nobriga, and Gary Gamaza (collectively, "Teixeira"), wished to open a gun shop but were denied a conditional use permit because the proposed location of their gun shop fell within a prohibited zone. Teixeira challenges the County's zoning ordinance, alleging that by restricting his ability to open a new, full-service gun store, the ordinance infringes on his Second Amendment rights, as well as those of his potential customers.
Teixeira has not, however, plausibly alleged that the County's ordinance impedes any resident of Alameda County who wishes to purchase a firearm from doing so. Accordingly, he has failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers. And, we are convinced, Teixeira cannot state a Second Amendment claim based solely on the ordinance's restriction on his ability to sell firearms. A textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms. Alameda County's zoning ordinance thus survives constitutional scrutiny.
In the fall of 2010, Teixeira, Nobriga, and Gamaza formed a partnership, Valley Guns and Ammo, with the intention of opening a gun store in Alameda County, California. After conducting local market research among gun enthusiasts, Teixeira concluded that there was a demand for a full service gun store in an unincorporated area of Alameda County called San Lorenzo, near the incorporated city of San Leandro. In response to this demand, Teixeira intended to open a specialty shop that would sell new and used firearms and ammunition and would also provide gun repairs,gun smithing, appraisals, and training and certification in firearm safety.
Teixeira contacted the Alameda County Planning Department for information as to any land use or other permits necessary to open a gun store in unincorporated areas of the County.1 The Planning Department informed Teixeira that because he intended to sell firearms, he would need to obtain a Conditional Use Permit pursuant to Alameda County Ordinance Sections 17.54.130 et seq. Conditional Use Permits are required for certain land uses and are granted after a special review in which the County determines whether or not the proposed business (1) is required by public need; (2) is properly related to other land uses and transportation and service facilities in the area; (3) if permitted, will materially and adversely affect the health or safety of persons residing or working in the vicinity; and (4) will be contrary to the specific performance standards established for the area. Alameda Cty., Cal., Code § 17.54.130.
The County informed Teixeira that to receive a Conditional Use Permit for his proposed gun store, he also had to comply with Alameda County Ordinance Section 17.54.131 (the "Zoning Ordinance"). That ordinance requires, among other things, that businesses selling firearms in unincorporated areas of the County be located at least five hundred feet away from any of the following: schools, day care centers, liquor stores or establishments serving liquor, other gun stores, and residentially zoned districts.2
Based on this guidance, Teixeira identified a suitable rental property at 488 Lewelling Boulevard in unincorporated Alameda County.3 Teixeira obtained a survey that showed, based on door-to-door measurements,4 that the property was more than 500 feet from any disqualifying property under the Zoning Ordinance. Teixeira began arranging with the landlord to lease the Lewelling Boulevard property and to make the modifications necessary to transform the space into a gun store compliant with all state and federal regulations.
Teixeira then applied to the Alameda County Community Development Agency for a Conditional Use Permit for his planned store. Staff of the Alameda County Community Development Agency Planning Department ("Planning Department") prepared a report for the West County Board of Zoning Adjustments ("Zoning Board") on Teixeira's application. The staff report made the following findings: there was a public need for a licensed firearms dealer; the proposed use was compatible with other land uses and transportation in the area; and a gun shop at the proposed site would not adversely affect the health or safety of persons living and working in the vicinity. The staff report also found, however, that the site of the proposed gun shop did not satisfy the Zoning Ordinance's distance requirements, because it was approximately 446 feet from two residential properties in different directions. The staff report's distance calculation was based on measurement from the closest exterior wall of the proposed gun shop to the property lines of the disqualifying properties. The staff report thus recommended denying Teixeira's permit application.
The Zoning Board held a public hearing on Teixeira's Conditional Use Permit application. Teixeira appeared at the hearing and offered testimony in support of his application; neighborhood residents also appeared, some testifying in support of the application and others in opposition.
After the hearing, the Planning Department issued a revised staff report. That report acknowledged the ambiguity in the Zoning Ordinance regarding how the 500 feet should be measured for the purpose of determining compliance. The report nevertheless concluded that the proposed gun store location was less than 500 feet from the property line of the closest residentially zoned district, whether measured from the exterior wall, front door, or property line of the proposed gun shop.5 The Planning...
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