Houston v. City of New Orleans, 11–30198.

Decision Date15 March 2012
Docket NumberNo. 11–30198.,11–30198.
Citation675 F.3d 441
PartiesErrol HOUSTON, Jr., Plaintiff–Appellant, v. CITY OF NEW ORLEANS; Leon Cannizzaro, District Attorney for the Parish of Orleans; Warren J. Riley, Superintendent of the New Orleans Police Department, Defendants–Appellees.
CourtU.S. Court of Appeals — Fifth Circuit


Justin P. Harrison (argued), Marjorie Ruth Esman, ACLU Foundation of Louisiana, New Orleans, LA, Craig Malcolm Freeman, Law Offices of Craig M. Freeman, Baton Rouge, LA, for PlaintiffAppellant.

James Bryan Mullaly (argued), Eraka V. Williams, Fred L. Herman, Thomass Jeffrey Barbera (argued), Law Offices of Fred L. Herman, New Orleans, LA, for DefendantsAppellees.

Stephen Porter Halbrook, Dan Mark Peterson, Dan M. Peterson, P.L.L.C., Fairfax, VA, for Amicus Curiae.Appeal from the United States District Court for the Eastern District of Louisiana.

Before BARKSDALE, GARZA and ELROD, Circuit Judges.


In this action under, inter alia, 42 U.S.C. § 1983, Errol Houston, Jr., claims defendants violated his Fourteenth Amendment rights (to keep and bear arms, incorporated from Second Amendment, and to due process) by retaining his lawfully-seized firearm after the district attorney refused charges. The action was dismissed under Federal Rule of Civil Procedure 12. AFFIRMED.


As noted, dismissal was under Rule 12, as also discussed infra. Accordingly, the facts that follow are from the allegations in Houston's complaint.

Houston was arrested by New Orleans police officers on 5 July 2008. Pursuant to that arrest, Houston's firearm, a Glock 22 .40–caliber pistol, was seized. Approximately a month later, the district attorney entered nolle prosequi (abandonment of prosecution) on the charges against Houston.

Almost a year after his arrest, and following his requests for the return of his firearm being denied by the district attorney's office and the police department, Houston filed this action on 2 July 2009, claiming, inter alia, violations of the right to keep and bear arms and of due process, and seeking primarily the return of his firearm. Houston alleged he had been informed that the new district attorney had implemented a policy of not returning firearms seized during arrests.

Just over a month later, Houston again was arrested by New Orleans police officers. He was informed that a warrant for his arrest, on the charge of illegal possession of a firearm, had issued at the request of the new district attorney on 5 July, three days after this action was filed. That charge was also “nolle prossed”. In an amended complaint, Houston added claims for retaliation and unlawful arrest.

Regarding the district attorney, Houston's right-to-keep-and-bear-arms and due-process claims were dismissed under Rule 12(b)(6) (failure to state claim). Subsequently, those claims against New Orleans and a former police superintendent were also dismissed, under Rule 12(c) (judgment on pleadings).

In so ruling regarding the Second Amendment and the district attorney, the district court concluded retention of the firearm was “reasonable ... because firearms are needed as evidence in instituting criminal prosecution and, [f]urthermore”, that [Houston] does not have a Second Amendment right to the particular firearm seized”. Order and Reasons, at 7 (20 Sept. 2010). In its subsequent dismissal of that Second Amendment claim against New Orleans and the former police superintendent, the court further ruled: “law enforcement has a compelling interest in seizing weapons pursuant to a lawful arrest and as evidence of crimes”; and, “law enforcement narrowly tailors such seizures to those firearms involved in crimes and those firearms in possession of arrestees”. Order and Reasons, at 9 (10 Dec. 2010).

For the due-process claim, the court ruled the firearm's retention did not violate due process because, inter alia: the firearm was “not a basic necessity of life”; defendants had an important interest in preserving evidence; and, Houston had not alleged he had exhausted state-law remedies, such as a contradictory motion (motion the non-moving party is likely, or should have the opportunity, to contest) for return of his firearm. Order and Reasons, at 9–10 (20 Sept. 2010); Order and Reasons, at 9 (10 Dec. 2010).


In district court, following the dismissal of his Second Amendment and due-process claims, Houston dismissed voluntarily his retaliation and unlawful-arrest claims. At issue are only those concerning the Second Amendment and due process.

Although both district court decisions noted factual allegations contained not in the complaint, but in the parties' memoranda for the motions, “matters outside the pleadings [were not] presented to ... the court. Fed.R.Civ.P. 12(d). And, consistent with that, both decisions stated the issue as “whether [Houston] has alleged sufficient facts to show that Defendants deprived [him] of his constitutional rights”. (Emphasis added.) For these and other reasons, the decisions were Rule 12 dismissals, not Rule 56 summary judgments.

Rule 12(b)(6) and 12(c) dismissals are reviewed de novo. E.g., Jebaco, Inc. v. Harrah's Operating Co., 587 F.3d 314, 318 (5th Cir.2009). All well-pleaded facts are accepted as true and viewed in the light most favorable to Houston. E.g., Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011). Viewing the facts, as pleaded, in that light, a motion to dismiss for failure to state a claim or for judgment on the pleadings should not be granted if the complaint provides “enough facts to state a claim to relief that is plausible on its face”. Jebaco, Inc., 587 F.3d at 318 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).


The Second Amendment provides for “the right of the people to keep and bear Arms”. U.S. Const. amend. II. That right belongs to the individual, and “central” to it is the “core lawful purpose of self-defense”. District of Columbia v. Heller, 554 U.S. 570, 628–30, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Amendment is “fully applicable to the States” through the Fourteenth Amendment because the right to keep and bear arms is “fundamental to our scheme of ordered liberty”. McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3026, 3036, 177 L.Ed.2d 894 (2010) (emphasis omitted).

Houston urges strict-scrutiny review of defendants' alleged policy of retaining seized firearms. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (“strict judicial scrutiny [has been found] appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights”). Before reaching that level-of-review question, however, whether the Second Amendment encompasses the claimed right must be decided. Heller v. District of Columbia, No. 10–7036, 670 F.3d 1244, at 1251–52, 2011 WL 4551558, at *5 (D.C.Cir. 4 Oct. 2011); Ezell v. City of Chicago, 651 F.3d 684, 701–02 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). But see Nordyke v. King, 644 F.3d 776, 783 (9th Cir.2011) (“The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms for self-defense.” (emphasis added)). Put another way, if defendants' alleged evidence-retention policy does not “impose[ ] a burden on conduct falling within the scope of the Second Amendment's guarantee”, our inquiry is complete. Marzzarella, 614 F.3d at 89.

Just as some regulation of speech— e.g., of obscenity and defamation—is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second. Ezell, 651 F.3d at 702 (quoting United States v. Stevens, ––– U.S. ––––, 130 S.Ct. 1577, 1584–85, 176 L.Ed.2d 435 (2010)). See also Heller, 554 U.S. at 626–27, 627 n. 26, 128 S.Ct. 2783 (noting “the right secured by the Second Amendment is not unlimited” and listing “presumptively lawful” regulations). The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense. See Heller, 554 U.S. at 628–30, 128 S.Ct. 2783.

Houston has not alleged defendants prevented his “retaining or acquiring other firearms”. Walters v. Wolf, 660 F.3d 307, 318 (8th Cir.2011) (holding no Second Amendment violation when plaintiff's firearm was not returned after court dismissed criminal charge against him). Therefore, he has not stated a violation of his Second Amendment right to keep and bear arms.


The Due Process Clause of the Fourteenth Amendment provides: [N]or shall any State deprive any person of life, liberty, or property, without due process of law”. U.S. Const. amend. XIV, § 1. To state a due-process claim, Houston must allege: he has a property interest in the firearm; and, he has been deprived of that interest without due process of law. E.g., Gentilello v. Rege, 627 F.3d 540, 542 (5th Cir.2010). Property interests are “defined by existing rules or understandings that stem from an independent source such as state law”. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Determining “what process is due” generally requires consideration of: the private interest affected; the risk of erroneous deprivation and the probable value of additional or substitute procedures; and, the government interest, including the burden of additional or substitute procedures. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). “The fundamental...

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