Jackson v. City of S.F.

Decision Date25 March 2014
Docket NumberNo. 12–17803.,12–17803.
PartiesEspanola JACKSON; Paul Colvin; Thomas Boyer; Larry Barsetti; David Golden; Noemi Margaret Robinson; National Rifle Association of America, Inc.; San Francisco Veteran Police Officers Association, Plaintiffs–Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; Edwin M. Lee, Mayor for the City and County of San Francisco; Greg Suhr, San Francisco Police Chief, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


C.D. Michel (argued), Michel & Associates, P.C., Long Beach, CA, for PlaintiffsAppellants.

Dennis J. Herrera, City Attorney; Wayne Snodgrass and Christine Van Aken (argued), Deputy City Attorneys, San Francisco, CA, for DefendantsAppellees.

Anthony T. Caso, John C. Eastman, and Karen J. Lugo, Orange, CA, for Amicus Curiae Center for Constitutional Jurisprudence.

David B. Kopel, Denver, CO; Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, VA, for Amici Curiae California Rifle and Pistol Association Foundation and Independence Institute.

Don B. Kates, Battle Ground, WA, for Amicus Curiae FFLGuard LLC and Gun Owners of California, Inc.

Paul Flum and Anand Viswanathan, San Francisco, CA, for Amicus Curiae Brady Center to Prevent Gun Violence and Major Cities Chiefs Association; Jonathan Lowy, Washington D.C., for Amicus Curiae Brady Center to Prevent Gun Violence.

Brent P. Ray and Casey R. Frank, Chicago, IL, for Amicus Curiae Law Center to Prevent Gun Violence.

Appeal from the United States District Court for the Northern District of California, Richard Seeborg, District Judge, Presiding. D.C. No. 3:09–cv–02143–RS.

Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.


IKUTA, Circuit Judge:


This appeal raises the question whether two of San Francisco's firearm and ammunition regulations, which limit but do not destroy Second Amendment rights, are constitutional. We conclude that both regulations withstand constitutional scrutiny, and affirm the district court's denial of Jackson's motion for preliminary injunction.


San Francisco Police Code section 4512 provides that [n]o person shall keep a handgun within a residence owned or controlled by that person unless” (1) “the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice,” or (2) [t]he handgun is carried on the person of an individual over the age of 18.” 1 S.F., Cal., Police Code art. 45, § 4512(a), (c)(1). Violations of section 4512 are punishable by a fine of up to $1,000 and up to six months in prison. Id. § 4512(e).

San Francisco Police Code section 613.10(g) prohibits the sale of ammunition that (1) has “no sporting purpose,” (2) is “designed to expand upon impact and utilize the jacket, shot or materials embedded within the jacket or shot to project or disperse barbs or other objects that are intended to increase the damage to a human body or other target,” or (3) is “designed to fragment upon impact.” S.F., Cal., Police Code art. 9, § 613.10(g). Bullets that expand or fragment upon impact are generally referred to as “hollow-point” ammunition.

On May 15, 2009, Espanola Jackson, Paul Colvin, Thomas Boyer, Larry Barsetti, David Golden, Noemi Margaret Robinson, the National Rifle Association, and the San Francisco Veteran Police Officers Association brought suit against the City and County of San Francisco, and other defendants, to challenge the validity of Police Code sections 4512 and 613.10(g) as impermissible violations of the right to bear arms under the Second Amendment.2 The individual plaintiffs are handgun owners and citizens of San Francisco “who presently intend to keep their handguns within the home in a manner ready for immediate use to protect themselves and their families.” The organizations have brought this suit on behalf of their members, who have an interest in keeping handguns within their home for self-defense.

On August 30, 2012, Jackson moved for a preliminary injunction. The district court denied that motion on November 26, 2012. Plaintiffs filed a timely notice of appeal on December 21, 2012.


Jackson challenges the district court's order denying her motion for preliminary injunction of sections 4512 and 613.10(g) on the ground that both infringe upon her Second Amendment rights. To obtain a preliminary injunction, Jackson must establish that (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). A denial of preliminary injunction is reviewed for abuse of discretion. See Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741, 744 (9th Cir.2012). However, [t]he district court's interpretationof the underlying legal principles ... is subject to de novo review.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003).


We turn first to the question whether the district court abused its discretion in concluding that Jackson did not carry her burden of showing a likelihood of success on the merits of her challenge to sections 4512 and 613.10(g).

We begin with the text of the Second Amendment: “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. Our analysis of this text starts with District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In Heller, the Supreme Court considered whether the District of Columbia's regulations, which barred the possession of handguns both inside and outside the home, and required other firearms to be kept “unloaded and disassembled or bound by a trigger lock or similar device,” violated the plaintiff's Second Amendment rights. 554 U.S. at 575, 128 S.Ct. 2783. After undertaking a lengthy analysis of the original public meaning of the Second Amendment, the Court concluded that it confers “an individual right to keep and bear arms.” Id. at 595, 128 S.Ct. 2783. Guided by the same historical inquiry, the Court emphasized that “the inherent right of self-defense has been central to the Second Amendment right.” Id. at 628, 128 S.Ct. 2783. Therefore, prohibiting the possession of handguns was unconstitutional. Id. at 628–29, 128 S.Ct. 2783. Similarly, the District of Columbia's requirement that “firearms in the home be rendered and kept inoperable at all times” made “it impossible for citizens to use [firearms] for the core lawful purpose of self-defense and [was] hence unconstitutional.” Id. at 630, 128 S.Ct. 2783.3

Heller did not purport to “clarify the entire field” of Second Amendment jurisprudence and does not provide explicit guidance on the constitutionality of regulations which are less restrictive than the near-total ban at issue in that case. Id. at 635, 128 S.Ct. 2783. But Heller's method of analysis suggests a broad framework for addressing Second Amendment challenges. First, Heller determined whether the possession of operable weapons in the home fell within “the historical understanding of the scope of the [Second Amendment] right.” Id. at 625, 128 S.Ct. 2783. In conducting this analysis, Heller indicated that the Second Amendment does not preclude certain “longstanding prohibitions” and “presumptively lawful regulatory measures,” such as “prohibitions on carrying concealed weapons,” “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” “laws imposing conditions and qualifications on the commercial sale of arms,” and prohibitions on “the carrying of ‘dangerous and unusual weapons,’ referring to weapons that were not “in common use at the time” of the enactment of the Second Amendment. Id. at 626–27, 627 n. 26, 128 S.Ct. 2783 (internal citations and quotations omitted).

Next, after determining that the possession of operable weapons fell within the scope of the Second Amendment, Heller considered the appropriate level of scrutiny for the challenged regulation. In light of the severity of the restriction posed by the D.C. regulation, Heller determined that it was unconstitutional [u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628, 128 S.Ct. 2783. As Heller made clear, [a] statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.’ Id. at 629, 128 S.Ct. 2783 (quoting State v. Reid, 1 Ala. 612, 616–17 (1840)). While Heller did not specify the appropriate level of scrutiny for Second Amendment claims, it nevertheless confirmed that rational basis review is not appropriate, explaining that [i]f all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” Id. at 628 n. 27, 128 S.Ct. 2783.

Like the majority of our sister circuits, we have discerned from Heller's approach a two-step Second Amendment inquiry. See United States v. Chovan, 735 F.3d 1127, 1136–37 (9th Cir.2013) (collecting cases). The two-step inquiry we have adopted (1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” Id. at 1136 (citing United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010)). As other...

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