American Bar Association
Media Alerts
Media Alerts - TEIXEIRA, et. al. v. COUNTY OF ALAMEDA, et. al. - 9th Circuit
Decrease font size
Increase font size
September 7, 2016
  TEIXEIRA, et. al. v. COUNTY OF ALAMEDA, et. al. - 9th Circuit
Headline: Ninth Circuit panel held that a county ordinance regulating the location of a retail firearm store was an unconstitutional violation of the Second Amendment right to keep and bear arms.

Area of Law: Constitutional Law; Second Amendment; Fourteenth Amendment; Equal Protection Clause

Issue Presented: Whether the County of Alameda violated the plaintiff-appellant's fundamental rights under the Fourteenth Amendment's Equal Protection Clause and the Second Amendment's right to keep and bear arms when the County denied a "conditional use permit" to a prospective gun store operator.

Brief Summary:

Plaintiff-Appellant decided to open a retail firearm business selling firearms, ammunition and gun-related equipment in Alameda County. The plaintiff-appellant was granted and then denied a "conditional use permit" after the County held that the plaintiff-appellant had not satisfied a 500-foot requirement found in its Ordinance. The Ordinance required that the proposed location of the business not be within 500 feet of a "residentially zoned district" and found the proposed retail firearm business was approximately 446 feet from the nearest disqualifying property. The plaintiff-appellant claimed that as a result of the Ordinance, there were no parcels in Alameda County which would have been available for firearm retail stores, and thus amounted to an unconstitutional ban.
The plaintiff-appellant filed a claim under the Fourteenth Amendment Equal Protection clause and the Second Amendment right to keep and bear arms. The district court granted a motion to dismiss and the plaintiff-appellant appealed the decision.
The Ninth Circuit panel concluded that since the right to keep and bear arms is an enumerated fundamental right, the matter was more appropriately analyzed under the Second Amendment and not under the Equal Protection Clause. Thus, the Ninth Circuit panel affirmed the dismissal of the Equal Protection claims.
As for the Second Amendment claims, the Ninth Circuit panel applied a two-step inquiry to determine whether there was an unconstitutional violation. The two-step inquiry first required the determination as to whether the challenged law burdened conduct protected by the Second Amendment; and the second step was to identify and apply the proper standard of review. The Ninth Circuit panel held that "one cannot keep arms when the state prevents him from purchasing them" and therefore, concluded the Ordinance burdened conduct protected by the Second Amendment when it prohibited the sale of firearms. The Ninth Circuit panel applied another two-step analysis to determine the appropriate standard of review and concluded intermediate scrutiny was proper.
In applying the intermediate scrutiny analysis the Ninth Circuit panel held that although the district court properly identified some interests that were "significant, substantial or important," the County had failed to meet its burden of demonstrating that there was "a reasonable fit between the challenged regulation and the asserted objective." Thus, the Ninth Circuit panel held that the County had not satisfied the intermediate scrutiny standard of review.

Significance: The Ninth Circuit panel established manner in which to ascertain the appropriate standard of scrutiny for Second Amendment challenges and upheld the right to own a gun retail store.

Extended Summary:
Plaintiff-Appellant, John Teixeira ("Teixeira") and his business partners decided to open a retail firearm business selling firearms, ammunition and gun-related equipment in Alameda County ("County").
In order to obtain "Conditional Use Permits" the County issued an Ordinance that required the County to determine whether there was (1) a "public need" for the business and (2) whether the business will "adversely affect the health or safety of persons residing or working in the vicinity," and (3) whether the business would be detrimental to the public welfare. Additionally, the County specifically required that a retail firearm applicant also prove (1) it possessed the requisite state and federal licenses, (2) it would store firearms and ammunition lawfully, and (3) the proposed location of the business was not within 500 feet of a "residentially zoned district; elementary, middle, or high school; pre-school or daycare center; other firearm sales businesses or liquor stores." The 500-foot distance was "to be measured from the closest door of the proposed business location to the front door of any disqualifying property." Teixeira measured the distance and found the nearest disqualifying property was 532 feet away.
The County Planning Department issued a report stating that Teixeira had satisfied the requirements, but concluded that a "zoning variance" would be required because the proposed location was within 500 feet of a residential property, and therefore failed to qualify for a permit. The report recommended denying the "zoning variance" because the measured distance between the exterior wall of the new business and the property line of the nearest residential property was 446 feet apart.
The West County Board of Zoning Adjustment scheduled a public hearing and voted to grant the variance and issued the permit. The San Lorenzo Village Homes Association challenged the decision and the Alameda County Board of Supervisors revoked the permit.
Teixeira challenged the revocation in the district court arguing that the Ordinance violated his right to due process; denied him equal protection and was impermissible under the Second Amendment both facially and as applied. The County moved to dismiss arguing the Equal Protection claims failed to state sufficient facts and the regulations governing the sale of firearms were presumptively valid under the Second Amendment. The district court granted the motion to dismiss and Teixeira appealed.
In order to succeed under the Equal Protection Clause claims, the Ninth Circuit panel held that Teixeira must allege he was "denied a fundamental right while others were permitted to exercise such right." The Ninth Circuit panel held that this is not a situation where one group is being denied a right while another is not. The Ninth Circuit panel then concluded that since the right to keep and bear arms is an enumerated fundamental right, the matter was more appropriately analyzed under the Second Amendment. Thus, the Ninth Circuit panel affirmed the dismissal of the Equal Protection claims.
As for the Second Amendment claims, the Ninth Circuit panel upheld the fundamental understanding that "the right of the people to keep and bear arms, shall not be infringed." To determine whether the Ordinance violated the Second Amendment right, the Ninth Circuit panel employed a two-step inquiry. The first step was determining whether the challenged law burdened conduct protected by the Second Amendment. The second step was to identify and apply the appropriate standard of review.
Regarding the first step, the Ninth Circuit panel determined the only way to establish whether the challenged law burdened conduct protected by the Second Amendment was by reviewing the historical understanding of the scope of the right. The Ninth Circuit panel held that the historical record shows, and that American have continued to believe, that the right to keep and bear arms includes the freedom to purchase and sell weapons. The Ninth Circuit panel concluded that "[o]ne cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it; one cannot keep arms when the state prevents him from purchasing them." Therefore, the Ninth Circuit panel held that the law burdened conduct protected by the Second Amendment by prohibiting the sale of firearms.
The second step in the inquiry was to identify and apply the proper standard of review. The County argued that the standard of review was the rational basis review. However, the Ninth Circuit panel held a heightened standard of review was more appropriate and identified another two-step analysis in ascertaining the appropriate level of scrutiny in Second Amendment claims. The two-step analysis considered "(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." The Ninth Circuit panel held "there is no question that an ordinance restricting the commercial sale of firearms would burden 'the right of a law-abiding, responsible citizen to possess and carry a weapon'" and therefore concluded that "such a regulation comes close to the core of the Second Amendment right." As for the severity of the law's burden, the district court had found that the Ordinance merely regulated the gun stores and did not ban them. However, Teixeira alleged that as a result of the 500-foot rule, there were no parcels in Alameda County which would have been available for firearm retail stores, and thus amounted to a complete ban. The Ninth Circuit panel suggested that if Teixeira had been given a chance to prove the ordinance was a total ban, it would have warranted a "strict scrutiny" standard of review. However, because Teixeira alleged that the Ordinance's 500-foot requirement was unconstitutional on its face, the Ninth Circuit panel applied "intermediate scrutiny" standard of review.
The Ninth Circuit panel then applied the intermediate scrutiny standard of review and held that the district court properly identified some interests that were "significant, substantial or important." However, the panel concluded the County had the burden to demonstrate that there was "a reasonable fit between the challenged regulation and the asserted objective" and the district court failed to explain how a gun store would increase crime in the vicinity and how a gun store might negatively impact the aesthetics of the neighborhood. Therefore, the Ninth Circuit panel held that the County failed to carry such burden and the intermediate scrutiny standard was not satisfied. Therefore, the Ninth Circuit panel reversed the motion to dismiss as to the Second Amendment claims and remanded the matter to the district court.

Panel: Diarmuid F. O'Scannlain, Barry G. Silverman, Carlos T. Bea, Circuit Judges, and William Horsley Orrick III, District Judge.

Argument Date: December 8, 2015

Date of Issued Opinion: May 16, 2016

Docket Number: 13-17132

Decided: Affirmed in part, reversed in part, and remanded

Case Alert Author: Kristina Coronado

Counsel: Donald E. J. Kilmer, Jr. (argued) and Charles W. Hokanson, for Plaintiffs-Appellants.

Scott J. Feudale, County Counsel, Alameda County, California (argued), Donna R. Zeigler, County Counsel, and Mary Ellyn Gormley, Assistant County Counsel for Defendants-Appellees.

Alan Gura, Gura & Possessky, PLLC, on behalf of the Citizens Committee for the Right to Kepp and Bear Arms in support of Plaintiffs-Appellants.

Arent Fox LLP, on behalf of Law Center to Prevent Gun Violence and Youth Alive! in support of the Defendant-Appellees.

Author of Opinion:
Diarmuid F. O'Scannlain, Circuit Judge

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/07/2016 01:15 PM     9th Circuit  

FuseTalk Enterprise Edition - © 1999-2017 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top