Palmer v. Sisolak
| Decision Date | 29 March 2022 |
| Docket Number | Case No. 3:21-cv-00268-MMD-CSD |
| Citation | 594 F.Supp.3d 1215 |
| Parties | Roger PALMER, et al., Plaintiffs, v. Stephen SISOLAK, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Adam Kraut, Pro Hac Vice, William Aaron Sack, Pro Hac Vice, Firearms Policy Coalition, Sacramento, CA, David C. O'Mara, The O'Mara Law Firm, P.C., Reno, NV, Raymond DiGuiseppe, Pro Hac Vice, The DiGuiseppe Law Firm, P.C., Southport, NC, for Plaintiffs.
Kiel Brunetti Ireland, Steven Shevorski, Nevada Office of the Attorney General, Las Vegas, NV, Jeffrey M. Conner, Nevada Attorney General, Carson City, NV, for Defendants Stephen Sisolak, A.G. Aaron Ford, George Togliatti, Mindy McKay.
On June 10, 2021, Plaintiffs1 initiated this action challenging sections of Nevada Assembly Bill 286 ("A.B. 286"), which prohibits certain actions relating to firearms commonly referred to as "ghost guns," as violating the Second Amendment and the Fifth Amendment's Takings Clause. (ECF No. 1 ("Complaint").) Shortly after initiating this action, Plaintiffs filed a motion for preliminary injunction to enjoin Defendants2 from enforcing A.B. 286. (ECF No. 6.) The Court held a hearing on that motion ("the Hearing") and ultimately declined to enjoin Defendants because Plaintiffs had failed to demonstrate a likelihood of success on the merits of their claims. (ECF Nos. 48, 51 ("Order").)
Defendants now move to dismiss this action under Rule 12(b)(6) for failure to state a claim. (ECF No. 34 ("Motion")3 .) Because the Court agrees with Defendants for the reasons articulated in the Court's Order, and as further explained below, the Court grants Defendants’ Motion.
The following facts are adapted from the Complaint. (ECF No. 1.) Plaintiffs Roger Palmer and Chad Moxley, both citizens of Nevada, own and possess multiple unserialized firearms and previously self-manufactured unserialized component parts.4 (Id. at 5, 20-21, 24.) Moxley and Palmer are both members of the Firearms Policy Coalition, Inc. ("FPC"). (Id. at 20, 23.) FPC's stated purpose is to defend and promote Second Amendment rights to keep and bear arms. (Id. at 26.) Palmer owns and possesses multiple uncompleted non-firearm objects and firearm building kits. (Id. at 21.) Moxley sells firearms and component firearm parts at local gun shows and seeks to continue selling unserialized firearms, their component parts, and other non-firearm objects. (Id. at 23-24.) Moxley made arrangements prior to the enactment of A.B. 286 to attend six or more gun shows before the end of 2021. (Id. at 23.)
On June 7, 2021, Nevada's Governor Stephen Sisolak signed A.B. 286 into law. (Id. at 2.) At a May 11, 2021, pre-enactment hearing, Assemblywoman Sandra Jauregui—a sponsor of A.B. 286—made public statements about the law's purpose. (Id. at 17, 20, 33, 35.) With its enactment, A.B. 286 amended Chapter 202 of the Nevada Revised Statutes to prohibit "a person from engaging in certain acts relating to firearms which are not imprinted with a serial number under certain circumstances[.]" A.B. 286, 2021 Leg., 81st Sess. (Nev. 2021).
This litigation centers on certain sections A.B. 286 added to Chapter 202, which are as follows:
Section 3 states in part that a person "shall not possess, purchase, transport or receive an unfinished frame or receiver[.]" Id. at § 3(1).
Section 3.5 states in part that a person "shall not sell, offer to sell or transfer an unfinished frame or receiver[.]" Id. at § 3.5(1).
Section 4 states in part that a person "shall not manufacture or cause to be manufactured or assemble or cause to be assembled a firearm that is not imprinted with a serial number" unless the firearm is: (a) rendered permanently inoperable, (b) an antique firearm, or (c) determined to be a collector's item. Id. at §§ 4(1); 4(1)(a)-(c).
Section 5 states in part that a person "shall not possess, sell, offer to sell, transfer, purchase, transport or receive a firearm that is not imprinted with a serial number" unless the person is a (a) law enforcement agency, (b) firearms importer or manufacturer; or the firearm is: (a) rendered permanently inoperable, (b) manufactured before 1969, (c) an antique firearm, or (d) determined to be a collector's item. Id. at §§ 5(1); 5(1)(a)-(b).
Section 5.5 further provides: "Nothing in the provisions of sections 3 to 5, inclusive, of this act shall be deemed to prohibit the sale of an unfinished frame or receiver or firearm that is not imprinted with a serial number to a firearms importer or manufacturer or a license dealer before January 1, 2022." Id. at § 5.5.
A person in violation of any part of §§ 3-5 is guilty of a gross misdemeanor for a first offense and a category D felony for a second or any subsequent offense. Id. at §§ 3-5. Sections 3 and 5 become effective on January 1, 2022. Id. § 10(2).
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) ; Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "Factual allegations must be enough to rise above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).
Defendants argue that dismissal is warranted because A.B. 286 does not violate the Second Amendment, nor does the Fifth Amendment's Takings Clause restrict the government's power to regulate and prohibit "dangerous private property." (ECF No. 34.) The Court will first address the Second Amendment, followed by the Takings Clause of the Fifth Amendment. Because the Court finds that Plaintiffs have failed to state a claim upon which relief can be granted, the Court will grant Defendants’ Motion.
The Second Amendment expressly states: "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. In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment protects the "individual right to keep and bear arms." 554 U.S. 570, 622, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The "central component" of that right to bear arms is for self-defense, particularly defense of the home. Id. at 599, 628-29, 128 S.Ct. 2783. However, the Court also cautioned that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited" and historically speaking "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626, 128 S.Ct. 2783.5 The Court later held that the Second Amendment is also fully applicable to states and municipalities through the Fourteenth Amendment. See McDonald v. City of Chi. , 561 U.S. 742, 790-91, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
The Ninth Circuit has adopted a two-step framework to evaluate Second Amendment claims after Heller and McDonald . See Young v. Hawaii , 992 F.3d 765, 783-84 (2021) (en banc).6 The two-step inquiry requires courts to ask (1) whether the challenged law burdens conduct protected by the Second Amendment and (2) if the law burdens protected Second Amendment conduct, then the second step requires determining the appropriate level of scrutiny and applying it to the challenged law. See id. , 992 F.3d at 783-84.
"The level of scrutiny depends upon (1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on the right." Jackson v. City & Cnty. of S.F. , 746 F.3d 953, 963 (9th Cir. 2014) (internal quotes and citation omitted). Courts must look at the "historical understanding of the scope of the right." Young , 992 F.3d at 783 (quoting Heller , 554 U.S. at 625, 128 S.Ct. 2783 ). A law that imposes a severe restriction on a core right, which destroys the protection of the Second Amendment, is "unconstitutional under any level of scrutiny." Jackson , 746 F.3d at 961 (citing Heller , 554 U.S. at 629, 128 S.Ct. 2783 ). "[I]f a challenged law does not implicate a core Second Amendment right, or does not place a substantial burden on the Second Amendment right, [courts] may apply intermediate scrutiny." Id. "[A]ll forms of the [intermediate scrutiny] standard require (1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective." Id. at 965 (quoting Chovan , 735 F.3d at 1129 ).
Defendants argue that Plaintiffs cannot meet the required two-step inquiry for their claim. (ECF No. 34 at 7-10.) More specifically, Defendants argue that Plaintiffs cannot show A.B. 286 burdens constitutionally protected Second Amendment conduct, and thus the inquiry ends there. (Id. at 7-8.) Plaintiffs counter that they have asserted a "strong, ultimately meritorious" Second Amendment claim as A.B. 286 is a law that targets firearms in common use for lawful purposes, and the law targets the right to self-manufacture firearms. (ECF No. 53 at 5-9.) The Court agrees with Defendants.
The focus of the analysis as stated in Heller requires the Court to determine whether A.B. 286 burdens the "central component" of the right to bear arms for self-defense in the home....
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