Pena v. Lindley, No. 15-15449

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtMcKEOWN, Circuit Judge
Citation898 F.3d 969
Decision Date03 August 2018
Docket NumberNo. 15-15449
Parties 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.

898 F.3d 969

Ivan PENA; Roy Vargas; Dona Croston; Brett Thomas; Second Amendment Foundation, Inc.; Calguns Foundation, Inc., Plaintiffs-Appellants,
Stephen LINDLEY, Chief of the California Department of Justice Bureau of Firearms, Defendant-Appellee.

No. 15-15449

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2017, San Francisco, California
Filed August 3, 2018

898 F.3d 972

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.

Partial Concurrence and Partial Dissent by Judge Bybee

McKEOWN, Circuit Judge:

898 F.3d 973

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.


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

898 F.3d 974

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 is in the firing chamber." Id. § 16380. An MDM is "a mechanism that prevents a semiautomatic pistol that has a detachable magazine from operating to strike the primer of ammunition in the firing chamber when a detachable magazine is not inserted in the semiautomatic pistol." Id. § 16900.

Since 2013, new models of semiautomatic pistols need to include a feature called "microstamping": each such pistol must imprint two sets of microscopic arrays of characters that identify the make, model, and serial number of the pistol onto the cartridge or shell casing of each fired round. Id. § 31910(b)(7).3 Designed to help solve crimes, microstamping provides law enforcement with identifying information about a handgun fired at a crime scene. See Fiscal v. City & Cty. of S.F. , 158 Cal.App.4th 895, 70 Cal.Rptr.3d 324, 337 (2008).

There are exceptions to these requirements. Most significant, the required features are inapplicable to models of semiautomatic pistols that were "already listed on the roster" when such requirements became effective. CAL. PENAL CODE § 31910(b)(5), (7). In addition, firearms sold to law enforcement officials and certain curios or relics (as defined in the Code of Federal Regulations ) are exempt. CAL. PENAL CODE § 32000(b)(3), (4). Pistols used in Olympic target shooting are exempt, see id. § 32105, as are certain single action revolvers and single shot pistols of either a certain age (a curio or relic made before 1900) or a certain size (greater than seven-and-a-half inches), see id. §§ 32000(b)(3), 32100. Other exemptions include firearms transferred between private parties, see id. § 32110(a), firearms delivered for consignment sale or as collateral for a pawnbroker loan, see id. § 32110(f), and firearms used solely as props for video production, see id. § 32110(h).

II. District Court Proceedings

Seeking to enjoin the state from enforcing the UHA, in 2009 Purchasers sued the Chief of the CDOJ Bureau of Firearms Stephen Lindley on two constitutional theories. Purchasers claimed that the CLI, MDM, and microstamping requirements restricted access to the firearms of their choice, in violation of the Second Amendment.4 Purchasers also claimed that the

898 F.3d 975

UHA’s roster scheme transgressed the Equal Protection Clause of the Fourteenth Amendment by making irrational exceptions.

After cross-motions, briefing, and a hearing, the district court granted summary judgment to California. Citing the Supreme Court’s landmark decision in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the district court characterized the UHA provisions as "laws imposing conditions or qualifications on the commercial sale of firearms," and thus concluded that the laws presumptively did not violate the Second Amendment. The district court observed that the provisions were conditions on the sale of firearms, not prohibitions, and that Purchasers maintained access to nearly 1,000 types of firearms on the roster, all of which were approved for sale in California. Purchasers’...

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