Silveira v. Lockyer, 01-15098.

Decision Date05 December 2002
Docket NumberNo. 01-15098.,01-15098.
Citation312 F.3d 1052
PartiesSean SILVEIRA; Jack Safford; Patrick Overstreet; David K. Mehl; Steven Focht, Sgt.; David Blalock, Sgt.; Marcus Davis; Vance Boyce; Keneth Dewald, Plaintiffs-Appellants, v. Bill LOCKYER, Attorney General, State of California; Gray Davis, Governor, State of California, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Gary W. Gorski, Fair Oaks, CA, for the plaintiffs-appellants.

Nancy Palmieri, Deputy Attorney General, Office of the Attorney General, San Diego, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CV-00-00411-WBS.

Before: REINHARDT, MAGILL,* and FISHER, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge MAGILL.

REINHARDT, Circuit Judge.

In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state's restrictions on the possession, use, and transfer of the semi-automatic weapons popularly known as "assault weapons." Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs' claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision. As to the Equal Protection claims, we conclude that there is no constitutional infirmity in the statute's provisions regarding active peace officers. We find, however, no rational basis for the establishment of a statutory exception with respect to retired peace officers, and hold that the retired officers' exception fails even the most deferential level of scrutiny under the Equal Protection Clause. Finally, we conclude that each of the three additional constitutional claims asserted by plaintiffs on appeal is without merit.


In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act ("the AWCA") in 1989. See 1989 Cal. Stat. ch. 19, § 3, at 64, codified at CAL. PENAL CODE § 12275 et seq. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and one teacher and 29 children were wounded. Kasler v. Lockyer, 23 Cal.4th 472, 97 Cal. Rptr.2d 334, 2 P.3d 581, 587 (2000).

The California Assembly met soon thereafter in an extraordinary session called for the purpose of enacting a response to the Stockton shooting. 1 CAL. ASSEMBLY J., at 436-37 (Feb. 13, 1989). The legislation that followed, the AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal statute enacted in 1994. Public Safety and Firearms Use Protection Act, Pub.L. No. 103-322, 108 Stat. 1996 (codified at 18 U.S.C. §§ 921 et seq.). The AWCA renders it a felony offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit. CAL. PENAL CODE § 12280.1 The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawfully purchased them before the statute's enactment, so long as the owners register the weapons with the state Department of Justice. Id.2 The grandfather clause, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions. Id. § 12285(c).3 Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include "civilian" models of military weapons that feature slightly less firepower than the military-issue versions, such as the Uzi, an Israeli-made military rifle; the AR-15, a semi-automatic version of the United States military's standard-issue machine gun, the M-16; and the AK-47, a Russian-designed and Chinese-produced military rifle. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain California Superior Courts that weapons identical to the listed firearms are also subject to the statutory restrictions. § 12276.5(a)(1)-(2).4

The AWCA includes a provision that codifies the legislative findings and expresses the legislature's reasons for passing the law:

The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in [the statute] based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.

Id. § 12275.5.

In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semi-automatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute. Id. § 12276.1.5 Examples of the types of weapons restricted by the revised AWCA include a "semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds," § 12276.1(a)(2), and a semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and also features a flash suppressor, a grenade launcher, or a flare launcher. § 12276.1(a)(1)(A)-(E). The amended AWCA also restricts assault weapons equipped with "barrel shrouds," which protect the user's hands from the intense heat created by the rapid firing of the weapon, as well as semiautomatic weapons equipped with silencers. Id.

As originally enacted, the AWCA authorized specified law enforcement agencies to purchase and possess assault weapons, and permitted individual sworn members of those agencies to possess and use the weapons in the course of their official duties.6 Two additional provisions relating to peace officers were added by the 1999 amendments. First, the legislature provided that the peace officers permitted to possess and use assault weapons in the discharge of their official duties were permitted to do so "for law enforcement purposes, whether on or off duty." § 12280(g). Second, the amendments added an exception for retired peace officers. The exception provides that "the sale or transfer of assault weapons by an entity [listed in note 6, supra,] to a person, upon retirement, who retired as a sworn officer from that entity" is permissible, and that the general restrictions on possession and use of assault weapons do not apply to a retired peace officer who receives the weapon upon retirement from his official duties. § 12280(h)-(i). In sum, then, the statute as amended may fairly be characterized as constituting a ban on the possession of assault weapons by private individuals; with a grandfather clause permitting the retention of previously-owned weapons by their purchasers, provided the owners register them with the state; and with a statutory exception allowing the possession of assault weapons by retired peace officers who acquire them from their employers at the time of their retirement.

Plaintiffs in this case are nine individuals, some of whom lawfully acquired weapons that were subsequently classified as assault weapons under the amended AWCA.7 They filed this action in February, 2000, one month after the 1999 AWCA amendments took effect. Plaintiffs who own assault weapons challenge the AWCA requirements that they either register, relinquish, or render inoperable their assault weapons as violative of their Second Amendment rights. Plaintiffs who seek to purchase weapons that may no longer lawfully be purchased in California also attack the ban on assault weapon sales as being contrary to their rights under that Amendment. Additionally, plaintiffs who are not active or retired California peace officers challenge on Fourteenth Amendment Equal Protection grounds two provisions of the AWCA: one that allows active peace officers to possess assault weapons while off-duty, and one that permits retired peace officers to possess assault weapons they acquire from their department at the time of their retirement. The State of California immediately moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that all the claims were barred as a matter of...

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