Pena v. Lindley, 080318 FED9, 15-15449

Docket Nº:15-15449
Opinion Judge:McKEOWN, CIRCUIT JUDGE
Party Name:Ivan Pena; Roy Vargas; Dona Croston; Brett Thomas; Second Amendment Foundation, Inc.; Calguns Foundation, Inc., Plaintiffs-Appellants, v. Stephen Lindley, Chief of the California Department of Justice Bureau of Firearms, Defendant-Appellee.
Attorney:Alan Gura (argued), Gura & Possessky PLLC, Alexandria, Virginia; Donald E. J. Kilmer Jr., Law Offices of Donald Kilmer, San Jose, California; for Plaintiffs-Appellants. Anthony R. Hakl (argued), Deputy Attorney General; Stepan A. Haytayan, Supervising Deputy Attorney General; Douglas J. Woods, Se...
Judge Panel:Before: J. Clifford Wallace, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges. BYBEE, Circuit Judge, concurring in part and dissenting in part:
Case Date:August 03, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

The Ninth Circuit affirmed the district court's grant of summary judgment for the state in an action challenging three provisions of California's Unsafe Handgun Act (UHA). The UHA requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale in the state. Assuming that the UHA implicated purchasers' rights to bear arms, the... (see full summary)

 
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Ivan Pena; Roy Vargas; Dona Croston; Brett Thomas; Second Amendment Foundation, Inc.; Calguns Foundation, Inc., Plaintiffs-Appellants,

v.

Stephen Lindley, Chief of the California Department of Justice Bureau of Firearms, Defendant-Appellee.

No. 15-15449

United States Court of Appeals, Ninth Circuit

August 3, 2018

Argued and Submitted March 16, 2017 San Francisco, California

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding D.C. No. 2:09-cv-01185-KJM-CKD

Alan Gura (argued), Gura & Possessky PLLC, Alexandria, Virginia; Donald E. J. Kilmer Jr., Law Offices of Donald Kilmer, San Jose, California; for Plaintiffs-Appellants.

Anthony R. Hakl (argued), Deputy Attorney General; Stepan A. Haytayan, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Office of the Attorney General, Sacramento, California; for Defendant-Appellee.

C.D. Michel and Clinton B. Monfort, Michel & Associates P.C., Long Beach, California, for Amici Curiae National Rifle Association of America Inc. and California Rifle and Pistol Association.

Lance A. Selfridge and Daniel C. DeCarl, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California, for Amici Curiae National Shooting Sports Foundation Inc. and Sporting Arms and Ammunition Manufacturers' Institute Inc.

Grace R. DiLaura and David H. Fry, Munger Tolles & Olson LLP, San Francisco, California, for Amicus Curiae Law Center to Prevent Gun Violence.

Eric A. Krause, White & Case LLP, Palo Alto, California; Daniel Levin, White & Case LLP, Washington, D.C.; Jonathan Lowy, Brady Center to Prevent Gun Violence, Washington, D.C.; for Amicus Curiae Brady Center to Prevent Gun Violence.

Andrew Esbenshade, Amy E. Pomerantz, and Michael R. Leslie, Caldwell Leslie & Proctor PC, Los Angeles, California, for Amicus Curiae Office of the Los Angeles City Attorney.

Deepak Gupta and Jonathan E. Taylor, Gupta Wessler PLLC, Washington, D.C.; J. Adam Skaggs and Mark Anthony Frassetto, Everytown for Gun Safety, New York, New York; for Amicus Curiae Everytown for Gun Safety.

Before: J. Clifford Wallace, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.

SUMMARY[*]

Civil Rights

The panel affirmed the district court's summary judgment in favor of California in an action challenging three provisions of California's Unsafe Handgun Act.

California requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale in the state. Two provisions require that a handgun have a chamber load indicator and a magazine detachment mechanism, both of which are designed to limit accidental firearm discharges. The third provision, adopted to aid law enforcement, requires new handguns to stamp microscopically the handgun's make, model, and serial number onto each fired shell casing. Plaintiffs asserted that these three provisions have narrowed their ability to buy firearms in California, in violation of the Second Amendment, and that the handgun roster scheme imposes irrational exceptions, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The panel held that it did not need to reach the question of whether the challenged provisions fell within the scope of the Second Amendment's right to bear arms because, even assuming coverage, the provisions passed constitutional muster. Applying intermediate scrutiny, the panel held that the Act only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on purchasers. The panel held that the requirements for a chamber load indicator and a magazine detachment mechanism reasonably fit with California's interest in public safety. The panel further held that California had met its burden of showing that the microstamping requirement was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. The panel rejected plaintiffs' claim that they have a constitutional right to purchase a particular handgun and their claim that the provisions violate the Equal Protection Clause.

Concurring in part and dissenting in part, Judge Bybee agreed that intermediate scrutiny applied to plaintiffs' Second Amendment challenge. Judge Bybee also agreed that there was a reasonable fit between the chamber load indicator and magazine detachment mechanism requirements and the State's substantial interest in enhancing public safety. Judge Bybee could not conclude, however, that the State was entitled to summary judgment on plaintiff's challenge to the microstamping requirement given the state's demanding testing protocol, which plaintiffs alleged acts as a prohibition on the commercial sale of new handguns in California. He would reverse the district court and remand for further proceedings.

OPINION

McKEOWN, CIRCUIT JUDGE

Unsurprisingly, the Second Amendment says nothing about modern technology adopted to prevent accidental firearm discharges or trace handguns via serial numbers microstamped onto fired shell casings. The question before us is whether making specific commercial gun sales contingent on incorporating these innovations violates the constitution. This appeal stems from a challenge to three provisions of California's Unsafe Handgun Act ("UHA"). For safety reasons, California requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale in the state. Two provisions require that a handgun have a chamber load indicator and a magazine detachment mechanism, both of which are designed to limit accidental firearm discharges. The third provision, adopted to aid law enforcement, requires new handguns to stamp microscopically the handgun's make, model, and serial number onto each fired shell casing.

Ivan Pena, along with several other individuals and two nonprofit organizations, the Second Amendment Foundation, Inc. and the Calguns Foundation, Inc. (collectively, "Purchasers"), challenge the constitutionality of the UHA. Purchasers argue that these three provisions have narrowed their ability to buy firearms in California, in violation of the Second Amendment, and that the handgun roster scheme imposes irrational exceptions, in violation of the Equal Protection Clause of the Fourteenth Amendment. We do not need to reach the question of whether these limitations fall within the scope of the Second Amendment's right to bear arms because, even assuming coverage, these provisions pass constitutional muster. The California law only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on Purchasers. We reject Purchasers' claim that they have a constitutional right to purchase a particular handgun. Nor do the provisions violate the Equal Protection Clause. We affirm the district court's grant of summary judgment in favor of California.

BACKGROUND

I. The Unsafe Handgun Act

As its name implies, California's Unsafe Handgun Act (UHA) seeks to reduce the number of firearm deaths in the state. The primary enforcement clause reads: A person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends an unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.

Cal. Penal Code § 32000(a).1 An "unsafe handgun" is defined as "any pistol, revolver, or other firearm capable of being concealed upon the person" and that does not have certain safety devices, meet firing requirements, or satisfy drop safety requirements. Id. § 31910.

The UHA charges the California Department of Justice ("CDOJ") with maintaining a roster of all handgun models that have been tested by a certified testing laboratory, "have been determined not to be unsafe handguns," and may be sold in the state. Id. § 32015(a).2 Effectively, the Act presumes all handguns are unsafe unless the CDOJ determines them "not to be unsafe." Handguns with purely cosmetic differences (including a difference in finish, grip material, and shape or texture of the grip) from a handgun already on the roster need not meet these criteria. See id. § 32030.

Over time, California has added new requirements for inclusion on the roster. Since 2007, new models of semiautomatic pistols must be equipped with both a chamber load indicator (CLI) and a magazine detachment mechanism (MDM)-safety features designed to limit accidental discharges that occur when someone mistakenly believes no round is in the chamber. Id. § 31910(b)(5). A CLI is a "device that plainly indicates that a cartridge...

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