McDougall v. Cnty. of Ventura

• Decision Date: 20 January 2022
• Docket Number: No. 20-56220,20-56220
• Citation: 23 F.4th 1095
• Parties: Kelly Ann Chakov MCDOUGALL, an individual and Trustee; Juliana Garcia, an individual; Second Amendment Foundation; California Gun Rights Foundation; Firearms Policy Coalition, Inc., Plaintiffs-Appellants, v. COUNTY OF VENTURA ; Bill Ayub; William T. Foley ; Robert Levin; Ventura County Public Health Care Agency, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

23 F.4th 1095

Kelly Ann Chakov MCDOUGALL, an individual and Trustee; Juliana Garcia, an individual; Second Amendment Foundation; California Gun Rights Foundation; Firearms Policy Coalition, Inc., Plaintiffs-Appellants,

v.COUNTY OF VENTURA ; Bill Ayub; William T. Foley ; Robert Levin; Ventura County Public Health Care Agency, Defendants-Appellees.

No. 20-56220

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2021 Pasadena, California

Filed January 20, 2022

Raymond M. DiGuiseppe (argued), The DiGuiseppe Law Firm P.C., Southport, North Carolina; Joseph G.S. Greenlee, Firearms Policy Coalition, Sacramento, California; Ronda Baldwin-Kennedy, Law Office of Ronda Baldwin-Kennedy, Agoura Hills, California; for Plaintiffs-Appellants.

Christine Renshaw (argued), Assistant County Counsel; Jeffrey Barnes, Chief Assistant County Counsel; Office of the County Counsel, Ventura, California; for Defendants-Appellees.

Before: Andrew J. Kleinfeld, Ryan D. Nelson, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke ;

Concurrence by Judge Kleinfeld ;

Concurrence by Judge VanDyke

VANDYKE, Circuit Judge:

"[T]he right of the people to keep and bear Arms," U.S. Const. amend. II, means nothing if the government can prohibit all persons from acquiring any firearm or ammunition. But that's what happened in this case. Under California's highly regulated framework for firearms, law-abiding citizens can only obtain firearms and ammunition by arriving in-person to government-approved gun and ammunition shops. And after purchasing a firearm, they must wait a minimum of ten days to obtain it (and sometimes much longer). When COVID hit, Ventura County, California issued a series of public health orders (collectively, Orders) that mandated a 48-day closure of gun shops, ammunition shops, and firing ranges. They did this while allowing other businesses like bike shops to remain open. The Orders also prohibited everyone from leaving their homes other than for preapproved reasons, which did not include traveling to gun or ammunition shops or firing ranges outside the County.

The Orders therefore wholly prevented law-abiding citizens in the County from realizing their right to keep and bear arms, both by prohibiting access to acquiring any firearm and ammunition, and barring practice at firing ranges with any firearms already owned. These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny. We therefore reverse and remand to the district court.¹

BACKGROUND

Appellants Kelly Ann Chakov McDougall,² Juliana Garcia, Second Amendment Foundation, Inc., California Gun Rights Foundation, and Firearms Policy Coalition, Inc. (collectively, Appellants) appeal the district court's dismissal of their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).³ They claim that the district court erred in concluding that they failed to sufficiently state a plausible claim that the Orders violated their Second Amendment rights. To fully understand the Orders' impact on Appellants' Second Amendment rights, some background on California's regulatory framework is necessary.⁴

A. California's Extensive Regulatory Framework for Firearms

As we have previously acknowledged, "California has extensive laws regulating the sale and purchase of firearms." Silvester v. Harris , 843 F.3d 816, 818 (9th Cir. 2016). Under California law, individuals can only complete the sale, loan, or transfer of a firearm through a licensed firearm dealer (gun shops). See Cal. Penal Code §§ 27545 ; 28050. After purchasing, individuals must wait ten days before receipt of the firearm. See Cal. Penal Code §§ 26815, 27540.⁵

With limited exceptions, individuals must also acquire or otherwise transfer and take possession of ammunition from duly licensed firearm and/or ammunition retailers (ammunition shops). See Cal. Penal Code §§ 16151, 30312, 30342, 30370 ; see also Rhode v. Becerra , 445 F. Supp. 3d 902, 912 (S.D. Cal. 2020).⁶

Eligible persons must also obtain a valid Firearm Safety Certificate to acquire firearms, see Cal. Penal Code § 26840, which involves taking a written test "generally at participating firearms dealerships and private firearms training facilities."⁷ In addition to taking a written test, eligible persons must also "perform a safe handling demonstration .... in the presence of a DOJ Certified Instructor[,] ... [which] are generally performed at the firearms dealership."⁸

Once someone lawfully acquires a firearm, California law generally prohibits them from openly carrying a handgun in public places. Cal. Penal Code § 26350. And those lawfully in possession of a handgun can only carry it while concealed with a license—which can only be obtained (if at all, see Peruta v. County of San Diego , 824 F.3d 919, 942 (9th Cir. 2016) (en banc)), by completing an in-person firearms training class that involves "live-fire shooting exercises on a firing range." Cal. Penal Code §§ 25400, 26150(a)(4), 26165(a)(3).

The closure of gun shops, ammunition shops, and firing ranges therefore eliminates the only lawful means to acquire firearms and ammunition within the County, as well as law-abiding County residents' ability to carry handguns in public. As Appellants alleged in their operative Complaint:⁹

If firearms and ammunition could be purchased online like other constitutionally protected artifacts, such as paper, pens, ink, and technology products that facilitate speech, then individuals could simply purchase what they need and have the items delivered to their doorsteps. But because of an onerous and complicated federal, state, and local regulatory scheme, people in California cannot exercise their Second Amendment right to keep and bear arms without going in person to such ... businesses—at least once for ammunition and at least twice for firearms.

B. County Orders

It was against this extensive regulatory backdrop that the County began issuing public health orders in March of 2020 in response to the COVID-19 pandemic.

On March 17, 2020, the County ordered, among other things, that all County residents ages 75 and older "shelter in their place of residence" until April 1. These senior citizens could only leave their residences "to seek medical care, nutrition, or to perform essential work in healthcare or government." These narrow exceptions did not include the acquisition of firearms and ammunition, or practice therewith. "Violation of or failure to comply with [the] Order [constituted] a misdemeanor punishable by fine, imprisonment, or both ...."

Three days later, on March 20, the County supplemented its March 17 Order by mandating that "[a ]ll persons currently living within [the] County ... stay at their places of residence, as required by the Governor's Executive Order N-33-20, subject to the exemptions set forth in this Order" (emphasis added).¹⁰ People of all ages could leave their residences only to exercise or work around their residences (e.g., gardening). And people not subject to the stay-at-home mandate from the March 17 Order could also leave their residence solely to engage in "Essential Activities and Essential Governmental Functions or Services or to operate or work at Essential Businesses."

The March 20 Order limited the permitted "Essential Activities" to only five categories, which the parties agree did not include the purchase of firearms and ammunition, or practice therewith.¹¹ To emphasize the strict nature of the stay-at-home mandate, the March 20 Order continued, "[a]ll travel ... except for Essential Travel and Essential Activities[ ] is prohibited."¹² It further reiterated that only "travel into or out of the County to perform Essential Activities, operate Essential Businesses or to maintain or provide Essential Governmental Functions or Services [was allowed]."

The March 20 Order also mandated that "[a]ll businesses with a facility in the County, except Essential Businesses, are required to cease all activities at facilities located within the County except Minimum Basic Operations." But it "strongly encouraged" "[a]ll Essential Businesses ... to remain open." "Essential Businesses" included businesses like hardware stores and laundromats, but not gun shops, ammunition shops, or firing ranges. Notably, the March 20 Order did not provide any explanation for its designation of "Essential Businesses."

The March 20 Order concluded that it would remain in effect until April 19, or "until it is extended, rescinded, superseded or amended in writing by the Health Officer." And "violation of or failure to comply with th[e] Order [wa]s a misdemeanor punishable by fine, imprisonment, or both."

Eleven days later, on March 31, the County supplemented and extended the March 20 Order by, among other things, limiting "the activities of ... Essential Businesses ... to the provision of those goods and services essential to the overall intent of the ... Orders." For example, farmers' markets could sell food and beverages, but not clothing or jewelry. It also added that "a violation of the ... Orders by a business may subject the business to liability under the state's unfair competition law as well as other civil and criminal penalties." The March 31 Order did not reference gun shops, ammunition shops, or firing ranges—despite an advisory memorandum that had been recently issued by the United States Department of Homeland Security, Cybersecurity & Infrastructure Agency (CISA) listing all those who work in supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges as "essential critical infrastructure workers."

Nine days after the March 31 Order, on April 9, the County supplemented its previous Orders by prohibiting gatherings of two or more people outside a single household or living unit. It also added three new businesses to the "Essential Businesses" list: bicycle repair and...