Nichols v. Brown

• Decision Date: 07 May 2012
• Docket Number: No. CV 11–09916 SJO (SS).,CV 11–09916 SJO (SS).
• Citation: 859 F.Supp.2d 1118
• Court: U.S. District Court — Central District of California
• Parties: Charles NICHOLS, Plaintiff, v. Edmund G. BROWN, in his official capacity as Governor of California, et al., Defendants.

859 F.Supp.2d 1118

Charles NICHOLS, Plaintiff,

v.Edmund G. BROWN, in his official capacity as Governor of California, et al., Defendants.

No. CV 11–09916 SJO (SS).

United States District Court, C.D. California.

May 7, 2012.

Charles Nichols, Redondo Beach, CA, pro se.

Jonathan Michael Eisenberg, Office of the California Attorney General, Los Angeles, CA, Michael W. Webb, City of Redondo Beach, Redondo Beach, CA, for Defendants.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

S. JAMES OTERO, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint in the above-captioned matter, Plaintiff's Motion for Review of Magistrate Judge's Report and Recommendation, which the Court construes as Objections, Plaintiff's Notice of Errata, the Response of Defendants Gov. Edmund G. Brown, Jr. and Atty. Gen. Kamala D. Harris to Plaintiff's Objections, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge, excluding the citation to Oklevueha Native American Church of Hawai'i, Inc. v. Holder, 719 F.Supp.2d 1217 (D.Hawai'i 2010) on page 15, lines 15–23.

Accordingly, IT IS ORDERED THAT:

1. Plaintiff's claims against Attorney General Kamala D. Harris are DISMISSED WITH LEAVE TO AMEND for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

2. Plaintiff's claims against Governor Edmund G. Brown, Jr. are DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and the Eleventh Amendment.

3. Plaintiff's claims against the City of Redondo Beach and City of Redondo Beach Police Chief Leonardi are DISMISSED WITH LEAVE TO AMEND for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6).

4. Plaintiff's claims against City of Redondo Beach Police Department are DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6).

5. Plaintiff's Seventh Claim for Relief alleging a violation of state constitutional law is DISMISSED WITH PREJUDICE pursuant to the Eleventh Amendment.

6. If Plaintiff desires to proceed with his claims against Attorney General Harris, City of Redondo Beach, and Police Chief Leonardi, Plaintiff shall file a First Amended Complaint within thirty (30) days of the date of this Order.

The Clerk shall serve copies of this Order by United States mail on Plaintiff and on counsel for Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SUZANNE H. SEGAL, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05–07 of the United States District Court for the Central District of California.

I.INTRODUCTION

On November 30, 2011, plaintiff Charles Nichols (“Plaintiff”), a California resident proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. On January 30, 2012, Defendants California Attorney General Kamala D. Harris (“Harris”), and the City of Redondo Beach, City of Redondo Beach Police Department, and City of Redondo Beach Police Chief Joseph Leonardi (collectively, the “Redondo Beach Defendants” or “RBD”), separately filed Motions to Dismiss. Plaintiff filed Oppositions to the Motions on February 8, 2012. Harris and the Redondo Beach Defendants filed Replies on February 14, 2012. On March 8, 2012, Governor Edmund G. Brown, Jr. (“Brown”), the only other individually-named defendant, filed a Motion to Dismiss. Plaintiff filed an Opposition on March 12, 2012. On March 19, 2012, Brown filed a Reply.

For the reasons discussed below, it is recommended that the Motions to Dismiss be GRANTED. It is recommended that the claims against the Attorney General, the City of Redondo Beach, and City of Redondo Beach Police Chief Leonardi be DISMISSED with leave to amend. It is further recommended that the claims against the Governor and the City of Redondo Beach Police Department be DISMISSED without leave to amend. Finally, it is recommended that Plaintiff's Seventh Claim for Relief be DISMISSED without leave to amend.

II.ALLEGATIONS OF THE COMPLAINT

The Complaint names five Defendants: Attorney General Harris, Governor Brown, the City of Redondo Beach, the City of Redondo Beach Police Department and City of Redondo Beach Police Chief Leonardi. (7AC 3–4). All Defendants are sued in their official capacity. ( Id.).

Plaintiff raises seven related claims challenging the constitutionality of California Penal Code 25850, which provides in relevant part:

(a) A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

(b) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on the person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

Cal. Penal Code § 25850(a)(b).¹

In Claim One, Plaintiff raises a facial challenge to section 25850(a) under the Second Amendment because it prohibits him from openly carrying in public a “fully functional loaded handgun[ ] for the purpose of self-defense and for other lawful purposes.” (Complaint at 18). In Claim Two, Plaintiff raises a facial challenge to section 25850(b) under the Fourth Amendment because the “mere possession of a loaded firearm ... cannot support a finding of probable cause ... such that the Fourth Amendment's warrant requirement can be legislatively disregarded.” ( Id. at 19–20). In Claim Three, Plaintiff alleges that section 25850(a), as applied, violates his “right to openly carry a loaded handgun in public” as guaranteed by the Second Amendment. In Claim Four, Plaintiff alleges that section 25850(b), as applied, violates his right to be “free from unreasonable search and/or seizure under the Fourth Amendment” in the exercise of his Second Amendment rights. ( Id. at 21).

In his Fifth and Sixth Claims, Plaintiff raises facial challenges under the Equal Protection and Due Process clauses of the Fourteenth Amendment on the grounds that section 25850 inhibits “the fundamental right of self-defense” (Claim Five) and “is arbitrary or irrational” (Claim Six). ( Id. at 22). In Claim Seven, Plaintiff alleges that section 25850 is unconstitutional under Article I, Section I of the California Constitution because the prohibition on “openly carrying a loaded handgun in non-sensitive public places for the purpose of self-defense” denies Plaintiff and other legal residents of the state “the instrument by which he and they may defend their life, liberty, property and safeguard their liberty.” ² ( Id. at 23).

Plaintiff seeks a declaration that section 28580 is “null and void” under the United States and California Constitutions. ( Id. at 24). Plaintiff further seeks preliminary and permanent injunctions enjoining Defendantsfrom enforcing the provisions of section 28580 against “Plaintiff and private citizens who are otherwise qualified to possess handguns.” ( Id. at 25).

III.DEFENDANTS' MOTIONS TO DISMISS

All Defendants seek dismissal of the Complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. In addition, the RBD seek dismissal under Rule 12(b)(6) for failure to state a claim.

Harris contends that Plaintiff lacks Article III standing because he has not suffered an injury-in-fact. (Harris MTD at 7). She notes that Plaintiff has not been arrested for violating section 25850 and argues that arrest is not imminent because “the Attorney General has not threatened to enforce Section 25850” against Plaintiff. ( Id. at 7–8). For the same reasons, Harris contends that Plaintiff's suit is not ripe. ( Id. at 9). Harris further contends that Plaintiff's claims are barred by the Eleventh Amendment and do not meet the narrow circumstances in which federal suits against state officials for their oversight of state law are permitted, as articulated in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Specifically, Harris argues that even though Plaintiff seeks only prospective declaratory and injunctive relief, the Complaint does not show a “credible” threat of enforcement, and even if it did, the Attorney General's general law enforcement powers are insufficient to draw more than a “tenuous connection” between the Attorney General and Plaintiff's alleged injury. (Harris MTD at 10–11; Harris Reply at 5). Finally, Harris contends that the Eleventh Amendment bars Plaintiff's seventh claim, which alleges that section 25850 violates the California Constitution. (Harris MTD at 12).

Governor Brown also argues that Plaintiff lacks standing and that the case is not ripe for the same reasons presented by the Attorney General. (Brown MTD at 1, 6, 10–11). Brown further argues that suit against him is barred by the Eleventh Amendment and that the Ex Parte Young exception does not apply because Plaintiff cannot establish that the Governor has a direct connection with the enforcement of section 25850. ( Id. at 7–10). Brown also argues that Plaintiff's state constitutional claim is barred by the Eleventh Amendment. ( Id. at 14).

The RBD contend that Plaintiff does not have standing to...