Вы находитесь на странице: 1из 31

Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 1 of 31

1 George M. Lee (SBN 172982)


SEILER EPSTEIN ZIEGLER & APPLEGATE LLP
2 601 Montgomery Street, Suite 2000
San Francisco, California 94111
3 Phone: (415) 979-0500
Fax: (415) 979-0511
4
Attorneys for Plaintiffs
5 CHAD LINTON, PAUL MCKINLEY STEWART,
FIREARMS POLICY FOUNDATION,
6 FIREARMS POLICY COALITION,
SECOND AMENDMENT FOUNDATION,
7 THE CALGUNS FOUNDATION and MADISON
SOCIETY FOUNDATION
8
9 UNITED STATES DISTRICT COURT
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 CHAD LINTON, et al., Case No. 3:18-cv-07653-JD
12
Plaintiffs, PLAINTIFFS’ OPPOSITION TO
13 DEFENDANTS’ MOTION TO DISMISS
Attorneys at Law

vs.
14 Date: May 2, 2019
XAVIER BECERRA, in his official capacity as Time: 10:00 a.m.
15
Attorney General of California, et al., Courtroom 11, 19th Floor
16 Judge: Hon. James Donato
Defendants.
17
18
19
20
21
22
23
24
25
26
27
28
–i–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 2 of 31

1 TABLE OF CONTENTS
2 I. INTRODUCTION AND SUMMARY OF ISSUES ................................................................................1
3 II. STATEMENT OF FACTS...............................................................................................................1
4 A. THE PARTIES.........................................................................................................................1
5
B. INDIVIDUAL PLAINTIFFS’ CLAIMS .........................................................................................2
6
1. Chad Linton ...............................................................................................................2
7
2. Paul McKinley Stewart .............................................................................................4
8
III. ARGUMENT ..............................................................................................................................6
9
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

A. STANDARD............................................................................................................................6
10
11 B. DEFENDANTS ARE NOT IMMUNE FROM SUIT. .......................................................................6

12 C. PLAINTIFFS HAVE STANDING TO BRING SUIT. ....................................................................10

13 1. Individual Plaintiffs Linton and Stewart .................................................................10


Attorneys at Law

14 2. Associational Standing Exists to Bring These Claims. ...........................................11


15 D. PLAINTIFFS STATE A CLAIM FOR VIOLATION OF THE SECOND AMENDMENT. .....................12
16 1. A “Presumptively Lawful Regulation” Does Not Simply End the
17 Inquiry Required in As-Applied Second Amendment Claims. ...............................12

18 2. Under the Two-Part Test in Chovan, Plaintiffs Have Stated a Claim. ....................14

19 E. PLAINTIFFS STATE A CLAIM FOR VIOLATION OF THE FULL FAITH AND CREDIT CLAUSE. ...18

20 F. PLAINTIFFS STATE A CAUSE OF ACTION UNDER BOTH THE PRIVILEGES AND


IMMUNITIES CLAUSE (ART. IV. § 2) AND THE PRIVILEGES OR IMMUNITIES
21 CLAUSE OF THE FOURTEENTH AMENDMENT. ....................................................................21
22
1. Plaintiffs Have Standing and Have Stated a Claim. .................................................22
23
2. The Privileges or Immunities Clause of the Fourteenth Amendment
24 Protects all Constitutional Rights – Including Those Guaranteed by the Second
Amendment...............................................................................................................23
25
IV. CONCLUSION ...........................................................................................................................25
26
//
27
28
– ii –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 3 of 31

1 TABLE OF AUTHORITIES
2
Cases
3
Alaska Packers Ass'n v. Indus. Acc. Comm'n, 294 U.S. 532, 55 S. Ct. 518 (1935) ......................20
4
Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013) ...7, 8
5
Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. California Dep't of Transp.,
6
713 F.3d 1187 (9th Cir. 2013) ...................................................................................................11
7
Baker v. Gen. Motors Corp., 522 U.S. 222, 118 S.Ct. 657 (1998) ................................................19
8
Bauer v. Becerra, 858 F.3d 1216 (9th Cir. 2017), cert. denied, 138 S.Ct. 982 (2018) .............8, 10
9
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................6


10
11 Binderup v Attorney General, 836 F.3d 336 (3d Cir. 2016),
cert. denied 137 S.Ct. 2323 (2017) ................................................................................14, 15, 18
12
Braman v. State of California, 28 Cal.App.4th 344 (1994) .............................................................8
13
Attorneys at Law

Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) ..............................................................................3


14
15 Brown v. City of L.A., 521 F.3d 1238 (9th Cir. 2008) ...................................................................12

16 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994) .....................................................1
17 Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2014)....................7, 10
18
Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010) ...................................................6
19
Del Campo v. Kennedy, 517 F.3d 1070 (9th Cir. 2008) ..................................................................6
20
District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008) ....................................12, 13
21
22 Estin v. Estin, 334 U.S. 541 (1948) ...............................................................................................19

23 Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908) ...................................................................7, 9

24 Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) ............................................................20, 21


25 Fisher v. Kealoha, 855 F.3d 1067 (9th Cir. 2017) ........................................................................17
26
Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979) ..........................................................6
27
Hunt v. Washington State Apple Advertising Comm'n, 432 US 333, 97 S.Ct. 2434 (1977)..........11
28
– iii –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 4 of 31

1 Jackson v. City and County of San Francisco, 746 F.3d 953 (9th Cir. 2014) ...............................13
2 Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012) ...................................................................11
3
Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883 (1982) ...................................19
4
Los Angeles Cty. Bar Ass'n v. Eu, 979 F.2d 697 (9th Cir. 1992).....................................................7
5
Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 116 S.Ct. 873 (1996) .........................19
6
McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020 (2010) ...............................12, 23, 24
7
8 Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339 (1940) ..................................................................19

9 Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229 (1935) ...................................19
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10 Montana Shooting Sports Ass'n v. Holder, 727 F.3d 975 (9th Cir. 2013) .....................................12
11
NAACP v. Alabama, 357 U.S. 449, 78 S.Ct.1163 (1958) ..............................................................11
12
Nevada v. Hall, 440 U.S. 410 (1979) ............................................................................................20
13
Attorneys at Law

Pacific Employers Ins. Co. v. Industrial Accident Comm'n,


14 306 U.S. 493, 59 S.Ct. 629 (1939).......................................................................................19, 20
15
Planned Parenthood Arizona, Inc. v. Brnovich, 172 F.Supp.3d 1075 (D. Ariz. 2016) .................10
16
Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
17 547 U.S. 47, 126 S.Ct. 1297 (2006)...........................................................................................12
18 Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518 (1999) ..........................................................22, 23, 25
19
Sato v. Orange Cty. Dep't of Educ., 861 F.3d 923 (9th Cir. 2017)..................................................6
20
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322 (1969) ..........................................................23
21
Silvester v. Harris, 41 F.Supp.3d 927 (E.D. Cal. 2014) ..................................................................9
22
23 Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) ............................................................................9

24 Slaughter-House Cases, 83 U.S. 36 (1872) .............................................................................23, 25

25 Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142 (2009) ...........................................11
26 Teixeira v. Cty. of Alameda, 873 F.3d 670 (9th Cir. 2017),
27 cert. denied sub nom. Teixeira v. Alameda Cty., Cal., 138 S.Ct. 1988 (2018) ..........................16

28 United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013).............................................15, 16, 17, 18

– iv –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 5 of 31

1
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010).......................................................15, 16
2
United States v. Phillips, 827 F.3d 1171 (9th Cir. 2016)...............................................................14
3
4 United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003) ....................................................................3

5 United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) .................................................12, 13, 16
6 V.L. v. E.L., -- U.S. --, 136 S.Ct. 1017 (2016) .........................................................................19, 21
7
W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) .......................................11
8
Walsh v. City and County of Honolulu, 423 F.Supp.2d 1094 (D. Haw. 2006)..............................22
9
Warth v. Seldin, 422 U.S. 490 (1975) ..............................................................................................6
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...................................................................11
11
12 Welchen v. Cty. of Sacramento,
No. 2:16-cv-0185-TLN-KJN, 2016 WL 5930563 (E.D. Cal. Oct. 11, 2016)..............................9
13
Attorneys at Law

Williams v. North Carolina, 317 U.S. 287 (1942) .........................................................................19


14
15 Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981 (9th Cir. 2009) .........................................6

16
Statutes
17
18 U.S.C. § 921..............................................................................................................................13
18 18 U.S.C. § 922............................................................................................................13, 14, 15, 16
19
28 U.S.C. § 1738............................................................................................................................21
20
42 U.S.C. § 1983............................................................................................................................20
21
Cal. Gov. Code § 12510 ..................................................................................................................8
22
Cal. Gov. Code § 15002.5 ...............................................................................................................9
23
24 Cal. Health and Saf. Code § 25983..................................................................................................7

25 Cal. Pen. Code § 28050 ...................................................................................................................8


26 Cal. Pen. Code § 28220 ...................................................................................................................8
27
Cal. Pen. Code § 29800 .........................................................................................................6, 9, 14
28
–v–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 6 of 31

1 Cal. Pen. Code § 30000 .................................................................................................................10


2 Cal. Pen. Code § 30005 .................................................................................................................10
3
Cal. Pen. Code § 30105 ...................................................................................................................3
4
Cal. Pen. Code § 30305 .........................................................................................................6, 9, 14
5
Cal. Penal Code § 27545 .................................................................................................................8
6
Revised Code of Wash. 9.41.040.....................................................................................................3
7
8
9 Other Authorities
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10 Akhil Reed Amar, Substance and Method in the Year 2000, 28 Pepp. L. Rev. 601 (2001) .........24

11 Philip Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61 (2010) ...............................25

12 Constitutional Provisions
13 U.S. Const., Amend. II .......................................................................................................... passim
Attorneys at Law

14 U.S. Const., Amend. XI .........................................................................................................1, 6, 10


15 U.S. Const., Amend. XIV, § 1 ............................................................................................... passim

16 U.S. Const., Art. IV, § 1 ................................................................................................1, 18, 20, 21

17 U.S. Const., Art. IV, § 2, cl. 1 ............................................................................................... passim

18
19
20
21
22
23
24
25
26
27
28
– vi –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 7 of 31

1 I. INTRODUCTION AND SUMMARY OF ISSUES


2 Plaintiffs’ Complaint posed the question whether state officials, in their zeal to limit
3 private firearm ownership in general, may simply “ignore the judgments and pronouncements of
4 the courts of other states because they do not prefer the policy outcome[.]” (Complaint, ¶ 1.)
5 This was somewhat of a rhetorical question, but the defendants’ Motion answered it: Yes, they
6 believe they can. And moreover, defendants’ characterization of the plaintiffs’ unassuming
7 request to regain the full blessings of citizenship, including an important, fundamental right
8 guaranteed by the Constitution as seeking some sort of “special treatment” (Def. Motion at 3:5)
9 demonstrates that they still do not see the right to bear arms as a fundamental right, but mainly a
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
conditional privilege that they should be able to grant or deny at whim.
11
By and through this opposition, plaintiffs address the following issues to be decided:
12
First, that defendants are not immune from suit under the Eleventh Amendment; second, that
13
plaintiffs have stated a Second Amendment claim; third, that plaintiffs have stated a claim under
Attorneys at Law

14
the Full Faith and Credit Clause (Art. IV, § 1); and fourth, that plaintiffs have satisfied standing
15
requirements by stating a claim under both the Privileges and Immunities Clause (Art. IV, § 2, cl.
16
1) of the Constitution, and the Privileges or Immunities Clause (§ 1) of the Fourteenth
17
Amendment.
18
19
II. STATEMENT OF FACTS
20
The facts are taken directly from the complaint, all allegations of material fact of which
21
are taken as true and construed in the light most favorable to the nonmoving party. Clegg v. Cult
22
Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994).
23
A. THE PARTIES
24
Individual plaintiffs Chad Linton and Paul McKinley Stewart are residents of the
25
Counties of Placer and San Bernadino respectively. Both are members of the Firearms Policy
26
27 Coalition, Firearms Policy Foundation, the Calguns Foundation and the Second Amendment

28 Foundation. (Complaint, ¶¶ 4-5.) Institutional plaintiffs Firearms Policy Foundation (FPF),

–1–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 8 of 31

1 Firearms Policy Coalition (FPC), Second Amendment Foundation (SAF), the Calguns
2 Foundation (CGF) and Madison Society Foundation (MSF) are liberty-minded, non-profit
3 organizations dedicated to preserving and defending rights secured under the Second
4 Amendment, both in California and nationally. (Complaint, ¶¶ 6-10.)
5 Defendants are the Attorney General of the State of California, and two Department of
6 Justice officials, all of whom are responsible for issuing, implementing, or enforcing the laws,
7 policy or policies, practices, and customs at issue. (Complaint, ¶ 14.) Defendant Robert D.
8 Wilson is the DOJ official who specifically made the determination that a Washington State
9
court’s order vacating a felony conviction and restoring plaintiff’s firearm rights would not be
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
honored in California. (Id., ¶¶ 32-33, 36.)
11
12
B. INDIVIDUAL PLAINTIFFS’ CLAIMS
13
1. Chad Linton
Attorneys at Law

14
In 1987, while plaintiff Chad Linton was serving in the U.S. Navy, and stationed at NAS
15
Whidbey Island, Washington, he tried – albeit briefly – to outrun a Washington State Police
16
officer and make it back to base on his motorcycle. He reconsidered the idea, and was arrested
17
without resistance. (Complaint, ¶ 18.) Mr. Linton was charged and pled guilty to attempted
18
evasion, a Class C felony under the Revised Code of Washington, and driving while intoxicated.
19
(Id., ¶¶ 19-20.) He was sentenced to seven days in jail (time served), community service, fines
20
and probation. (Id., ¶ 20.) In 1988, he successfully completed his probation and received a
21
certificate of discharge. (Id.)
22
In 1988, Mr. Linton moved back to California, where he has been and remains a law-
23
abiding citizen. (Id., ¶¶ 21-22.) In 2015, Mr. Linton attempted to make a firearm purchase but
24
was surprised to learn that he was denied by the California DOJ that he was prohibited due to the
25
existence of the 1988 Washington State conviction. (Id., ¶ 23.) Mr. Linton hired an attorney in
26
27 the State of Washington who re-opened the criminal proceedings, withdrew the guilty plea, and

28 entered a retroactive not-guilty plea. (Id.) The court then issued its “Order on Motion Re:

–2–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 9 of 31

1 Vacating Record of Felony Conviction,” in which the court specifically found that the crime for
2 which plaintiff Linton was convicted was not a violent offense under Washington State law.
3 (Complaint, ¶ 24; Exhibit A.1 ) Accordingly, the court granted the motion to vacate the
4 conviction, set aside the guilty plea, and released plaintiff from all penalties and disabilities
5 resulting from the offense. On April 18, 2016, the Island County Superior Court also issued an
6 Order Restoring Right to Possess Firearms pursuant to Revised Code of Washington
7 9.41.040(4). (Complaint, ¶ 25; Exhibit B.) The court further ordered the Washington State
8 Patrol to transmit a copy of its Order to the Federal Bureau of Investigation. (Id.)
9
To check his status in California, Mr. Linton underwent a Personal Firearms Eligibility
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Check (“PFEC”), pursuant to Cal. Pen. Code § 30105(a), to confirm his eligibility to purchase
11
and/or possess a firearm. Based upon this check, the California DOJ’s Bureau of Firearms
12
informed him that he was eligible both to possess and purchase firearms, based upon a search of
13
Attorneys at Law

California’s records. The PFEC form indicated, however, that the actual purchase of a firearm
14
would involve the search of a federal database. (Complaint, ¶ 26; Exhibit C.)
15
In 2018, Mr. Linton attempted to purchase a rifle, but was again denied. (Complaint, ¶
16
27; Exhibit D.) To contest this finding, pursuant to the process described in the DOJ denial
17
letter, Mr. Linton underwent a “Live Scan” fingerprint-based background check request with the
18
DOJ directly, which again showed the presence of no felony convictions. (Id., ¶ 28.)
19
Mr. Linton’s counsel then began discussions with the DOJ to correct his status as a
20
“prohibited person” in California. Counsel provided the DOJ with the Washington court orders
21
vacating the felony conviction and restoring plaintiff’s firearm rights. (Complaint, ¶ 29.) In an
22
apparent response to a second request, the DOJ informed plaintiff that “the entry in question
23
24
25 1
Plaintiffs are filing a Request for Judicial Notice (RJN) for the state court judgments in support
of this Opposition. Independently, district courts may also consider documents attached to the
26 complaint or incorporated by reference in the complaint without converting the motion to
dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th
27 Cir. 2003). Documents whose contents are alleged in a complaint and whose authenticity is not
questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss.
28 Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994).
–3–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 10 of 31

1 cannot be found on your California criminal history record, therefore, no further investigation is
2 required.” In addition, on March 6, 2018, the DOJ sent Mr. Linton an additional record stating
3 that “as of the date of this letter, your fingerprints did not identify any criminal history
4 maintained by the Bureau of Criminal Information and Analysis.” (Id., ¶ 30; Exhibits F and G.)
5 Based upon these letters, Mr. Linton attempted to purchase a revolver in March 2018, but
6 was again denied. (Complaint, ¶ 31.) Then, on April 3, 2018, DOJ agents operating as a unit of
7 their Armed Prohibited Persons System (APPS) enforcement program, came to Mr. Linton’s
8 home, and seized several firearms that he had acquired and owned throughout the years,
9
including an antique, family-heirloom shotgun that was once owned by his grandfather. (Id., ¶
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
32.) All of these firearms were acquired through legal purchases or transfers, through federally-
11
licensed firearm dealers (FFLs), and pursuant to DOJ background checks. Mr. Linton’s wife
12
showed the DOJ agents the Washington State court orders that vacated the felony conviction,
13
Attorneys at Law

and restored Mr. Linton’s gun rights. These agents sought guidance from defendant Wilson,
14
who purportedly informed them that the Washington court orders had no effect here, and
15
instructed the agents to seize all firearms. (Id., ¶¶ 31-33.)
16
On September 24, 2018, plaintiff’s counsel spoke directly with defendant Wilson, who
17
confirmed the DOJ’s policy that the BOF continued to consider Mr. Linton to be a prohibited
18
person, based upon their interpretation of Pen. Code § 29800. (Complaint, ¶ 36.) Defendant
19
Wilson indicated that the BOF was refusing to honor the Washington State court’s orders, and
20
that the only remedy that Mr. Linton had was to request a pardon from the President of the
21
United States. (Id., Exhibit H.) In essence, defendants’ stated policy was that, notwithstanding
22
the restoration of Mr. Linton’s firearm rights in a court in a different state, it had no effect
23
24 whatsoever and would not be honored here. (Id.)

25 2. Paul McKinley Stewart

26 In 1976, when plaintiff Stewart was 18 years old, he succumbed to a crime of opportunity

27 while he was living in the State of Arizona, and stole some lineman’s tools from a telephone

28 company truck. (Complaint, ¶ 39.) When the police came to his residence to investigate, Mr.

–4–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 11 of 31

1 Stewart gave up the tools and offered no resistance to his arrest. (Id.) Mr. Stewart was found
2 guilty of first degree burglary, a felony, in the County of Yuma, Arizona. He was sentenced to
3 three years of probation, and the Court imposed a suspended sentence during the probation
4 period. (Id., ¶ 40.) He successfully completed his probation in 1978, and based upon both the
5 court’s order, and statements made during the sentencing, he believed that the felony conviction
6 had been dismissed. (Id., ¶ 41.)
7 Since moving to California in 1988, plaintiff Stewart has been a law-abiding citizen, and
8 has remained steadily and gainfully employed. (Complaint, ¶ 42.) In 2015, believing that he
9
was not prohibited, plaintiff Stewart attempted to purchase a pistol for self defense in the home.
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
This purchase was denied due to the presence of a felony conviction. (Id., ¶ 44.) Mr. Stewart
11
requested a Live Scan fingerprint background check for a copy of his criminal records, which
12
showed a lingering conviction, but did not reflect whether it was recorded as a felony. It further
13
Attorneys at Law

stated that it was “undetermined” as to whether he was eligible to purchase or possess firearms.
14
(Id., ¶ 45.)
15
Mr. Stewart filed an application to restore his firearm rights and to set aside his judgment
16
of guilt with the Superior Court of Yuma County, Arizona. On August 11, 2016, that court
17
issued an order restoring his firearm rights, and specifically set aside the judgment of guilt.
18
(Complaint, ¶ 46; Exhibit I.) In 2018, the Arizona Dept. of Public Safety sent additional
19
documentation showing that the felony conviction had been set aside and that his records had
20
been so corrected. (Id., ¶ 47.)
21
Following the Arizona Superior Court’s order, and believing the matter would be
22
automatically updated in any background search, Mr. Stewart attempted to make another firearm
23
24 purchase on February 10, 2018, which the DOJ also denied. (Complaint, ¶ 48.) The DOJ

25 informed Mr. Stewart that the basis of the denial was the presence of a prior felony conviction.

26 (Id., ¶ 49; Exhibit J.) Mr. Stewart had several telephone conversations with DOJ officials, who

27 informed him that the Arizona felony conviction disqualified him from possessing or purchasing

28 firearms, notwithstanding the Arizona court’s order. (Id., ¶ 50.)

–5–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 12 of 31

1 –¨–
2 Plaintiffs filed this suit on December 20, 2018, to challenge the defendants’ laws,
3 policies, practices, and customs, as promulgated, implemented and enforced by them, which
4 refuse to honor the judgments of other states that vacated or otherwise exonerated those
5 disqualifying convictions, and which otherwise refuse to honor the out-of-state restoration of an
6 individual’s firearms rights, and to the extent that it forms the basis of the Department’s
7 enforcement practices, California Pen. Code §§ 29800 and 30305 as applied.
8
9
III. ARGUMENT
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
A. STANDARD
11
This Court is well familiar with the standard on a motion to dismiss claims, and it needn’t
12
be repeated here at length. On a motion to dismiss, a district court must accept as true all
13
material allegations of the complaint, and construe the complaint in favor of the complaining
Attorneys at Law

14
party. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 109 (1979) (citing Warth v. Seldin,
15
422 U.S. 490, 501 (1975)); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
16
The court “will hold a dismissal inappropriate unless the plaintiffs’ complaint fails to ‘state a
17
claim to relief that is plausible on its face.’” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d
18
981, 989 (9th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
19
20
B. DEFENDANTS ARE NOT IMMUNE FROM SUIT.
21
Defendants are not immune from suit under the Eleventh Amendment because of their
22
direct connection to the plaintiffs’ claims, in particular, the Attorney General’s non-delegable
23
processing of firearms background checks, his general duty to prosecute violations of firearms
24
law, and his ability to assume the role of district attorney in any such prosecutions. 1Defendants
25
asserting an Eleventh Amendment immunity defense bear the burden of asserting and proving
26
27 those matters necessary to establish their defense. Sato v. Orange Cty. Dep't of Educ., 861 F.3d

28 923, 928 (9th Cir. 2017) (citing Del Campo v. Kennedy, 517 F.3d 1070, 1075 (9th Cir. 2008)).

–6–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 13 of 31

1 Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908) stands for the well-established
2 proposition that citizens may sue state officials in their official capacities for prospective
3 injunctive and declaratory relief arising from violations of federal laws. This exception to
4 Eleventh Amendment immunity applies only where the state official has “some connection with
5 the enforcement of the act.” Ex Parte Young, 209 U.S. at 157; Coalition to Defend Affirmative
6 Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2014). The connection of the state official to the
7 act at issue “must be fairly direct; a generalized duty to enforce state law or general supervisory
8 power over the persons responsible for enforcing the challenged provision will not subject an
9
official to suit.” Id. at 1134 (quoting Los Angeles Cty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Cir. 1992)).
11
In Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th
12
Cir. 2013) (“Quebec”), the Ninth Circuit held that defendant Becerra’s predecessor, Attorney
13
Attorneys at Law

General Harris, was not immune from suit where the combination of a statutory provision of
14
enforcement power to district attorneys and the Attorney General’s duty to prosecute as a district
15
attorney established sufficient enforcement power for purposes of the Ex Parte Young exception.
16
729 F.3d at 943–944. In Quebec, producers and sellers of foie gras brought an action seeking to
17
enjoin the California Attorney General from enforcing Health and Safety Code § 25983, a
18
statutory provision banning the sale of that product, as unconstitutionally vague. The Ninth
19
Circuit recognized that a generalized duty to enforce laws could not establish the “fairly direct”
20
connection between the Attorney General and the challenged statute; however, the specific
21
statute banning the sale of foie gras at issue also “expressly authorize[d] enforcement of the
22
statute by district attorneys and city attorneys.” Id. at 943. The Ninth Circuit held that this
23
24 provision “giv[ing] district attorneys the authority to prosecute violations” of the challenged

25 statute in combination with “the Attorney General's duty to prosecute as a district attorney

26 establishes sufficient enforcement power for Ex Parte Young.” Id. at 943–44.

27 In the present case, plaintiffs’ claims against the Attorney General and the DOJ actors

28 who are specifically responsible for promulgating and enforcing the firearm policies at issue are

–7–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 14 of 31

1 even stronger and more directly connected to the Attorney General than the circumstances
2 presented in Quebec. Attorney General Becerra is, by state constitution and statute, the chief law
3 enforcement officer of the state, and is the head of the Department of Justice. Cal. Gov. Code §
4 12510. And the Department of Justice is, by statute, the exclusive state agency or department
5 charged with running background checks for firearm sales, utilizing its own records, as well as
6 national records, to approve of or deny firearm sales. See Cal. Pen. Code § 28220. Indeed, the
7 Attorney General’s duty to run these criminal history checks is neither delegable nor
8 discretionary, but is mandatory. See, Braman v. State of California, 28 Cal.App.4th 344, 353
9
(1994) (the Legislature imposed a mandatory duty on the Department of Justice concerning the
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
investigation of prospective purchasers of concealable firearms); Bauer v. Becerra, 858 F.3d
11
1216, 1219 (9th Cir. 2017) (the statutory framework “requires the California Department of
12
Justice […] to run background checks prior to purchase, and to notify the dealer if a prospective
13
Attorneys at Law

firearm purchaser is prohibited from possessing a gun under federal law or under certain
14
provisions of California law relating to prior convictions and mental illness”), cert. denied, 138
15
S.Ct. 982 (2018).
16
To further cement this point, we reiterate the centralized role that the Attorney General
17
takes in the processing and the approval of all firearm transactions statewide. All firearm
18
transactions are all run through the Department, and this duty is not delegable to local law
19
enforcement agencies. “California regulates firearm sales and transfers through the Dealer's
20
Record of Sale (“DROS”) system, which was created a century ago and has been updated
21
throughout the intervening years. […] The DROS system today requires that “any sale, loan, or
22
transfer of a firearm” be made through a licensed dealer, Cal. Penal Code §§ 27545, 28050(a),
23
24 and it requires dealers to keep standardized records of all such transactions[.]” Bauer, 858 F.3d at

25 1218-1219 (citations omitted). “Citizens who want to purchase a firearm […] must pass a

26 background check to show that they do not fall into one of the prohibited classes. The

27 background check begins with the completion and submission of an application form that the gun

28 dealer electronically submits to the California DOJ.” Silvester v. Harris, 843 F.3d 816, 824–25

–8–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 15 of 31

1 (9th Cir. 2016). All background checks on prospective firearm purchasers are specifically
2 conducted by the Department’s Bureau of Firearms (BOF). Silvester v. Harris, 41 F.Supp.3d
3 927, 946–47 (E.D. Cal. 2014).
4 Therefore, all defendants here have a direct, non-delegable and statutorily-mandated
5 connection to enforcement of the statutes in question, California Pen. Code §§ 29800 and 30305,
6 as they are being applied to plaintiffs. More to the point, plaintiffs are specifically challenging
7 the defendants’ policies, practices, and customs, as promulgated, implemented and enforced by
8 the defendants, which refuse to honor the judgments of other states that vacated or otherwise
9
exonerated those disqualifying convictions, and which otherwise refuse to honor the out-of-state
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
restoration of an individual’s firearms rights. (Complaint, ¶ 3). These are not just theoretical
11
concerns, but plaintiffs are challenging the defendants’ direct enforcement of these policies as
12
they have been applied to plaintiffs.
13
Attorneys at Law

Attorney General Becerra has a battery of combined powers, including the background
14
check approval system obligated to him, his general duty to prosecute violations of firearms law,
15
and his ability to assume the role of district attorney in any such prosecutions, all of which
16
establish a sufficient connection under Ex Parte Young. See also, Welchen v. Cty. of Sacramento,
17
No. 2:16-cv-0185-TLN-KJN, 2016 WL 5930563, at *5 (E.D. Cal. Oct. 11, 2016) (the Attorney
18
General’s direct supervision over the district attorneys of this State, and the ability to take full
19
charge of any investigation or prosecution of violations of law was sufficient to establish the
20
direct connection). Defendant Horan is sued in his capacity as the Acting Chief of the BOF.
21
(Complaint, ¶ 12). Defendant Horan is further responsible for “the implementation and
22
enforcement of the statutes, regulations and policies regarding prohibited persons, and the Armed
23
24 Prohibited Persons System (“APPS”) program.” (Id.) The APPS program, too, is a statutorily-

25 mandated program that requires the Attorney General to identify persons who are prohibited

26 from owning firearms but have previously passed background checks but still own firearms.

27 Bauer, 858 F.3d at 1219; Cal. Pen. Code §§ 30000, 30005. Indeed, this is the enforcement unit

28 which seized firearms from the home of plaintiff Linton. (Complaint, ¶ 32). And defendant

–9–
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 16 of 31

1 Robert D. Wilson, also sued in his official capacity (Complaint, ¶ 13), is the DOJ official who
2 made the determination that the Washington State restoration of plaintiff’s firearm rights would
3 not be honored in California (Id., ¶¶ 32-33), ordered the seizure of Mr. Linton’s firearms, and
4 subsequently persisted in stating the DOJ policy would not honor the set-aside of foreign state
5 convictions, nor the out-of-state restoration of firearm rights. (Id.,¶ 36; Exhibit H).
6 In summary, the defendants’ connection to the enforcement of their own policies,
7 customs and practices which prohibit the possession of firearms by persons convicted of non-
8 violent felonies in other states – notwithstanding the restoration of their Second Amendment
9
rights by courts in those jurisdictions – is direct and specifically emanates from them, and can
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
hardly be characterized as “a generalized duty to enforce state law or general supervisory power
11
over the persons responsible for enforcing the challenged provision[s]” under Coal. to Defend
12
Affirmative Action, 674 F.3d at 1134. Indeed, the plaintiffs’ ongoing injuries here “are not the
13
Attorneys at Law

result of ‘the independent action of some third party not before the court[,]’ […] [n]or is the
14
Attorney General’s conduct simply a single link in an ‘attenuated chain of possibilities.’”
15
Planned Parenthood Arizona, Inc. v. Brnovich, 172 F.Supp.3d 1075, 1096 (D. Ariz. 2016)
16
(finding connection between enforcement of the law and the plaintiffs’ claims sufficient). Their
17
claims, in fact, arise from the direct and ongoing injury at the hands of defendants in preventing
18
the exercise of plaintiffs’ constitutional rights under the Second Amendment, and which will
19
continue unless the defendants are not enjoined as requested.
20
Defendants are therefore not immune from suit under the Eleventh Amendment.
21
22
C. PLAINTIFFS HAVE STANDING TO BRING SUIT.
23
1. Individual Plaintiffs Linton and Stewart
24
Defendants’ motion asserts that all of the plaintiffs, including individual plaintiffs Linton
25
and Stewart, lack standing to bring the third claim for relief under the Privileges and Immunities
26
27 Clause of both Article IV and the Fourteenth Amendment. Because the plaintiffs’ standing

28 becomes manifest with their statement of the claim generally, based upon a constitutionally-

– 10 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 17 of 31

1 protected right to travel, the standing argument is discussed below, at p. 21.


2 2. Associational Standing Exists to Bring These Claims.
3 “It is common ground that the respondent organizations can assert the standing of their
4 members.” Summers v. Earth Island Inst., 555 U.S. 488, 494, 129 S.Ct. 1142, 1149 (2009). It is
5 also well recognized that civil rights advocacy organizations have been permitted to assert the
6 constitutional rights of their members. Washington v. Trump, 847 F.3d 1151, 1160 (9th Cir.
7 2017) (citing NAACP v. Alabama, 357 U.S. 449, 78 S.Ct.1163 (1958)). At a very preliminary
8 stage of the litigation, the plaintiffs may rely upon the allegations of the complaint to support
9 standing. Trump, 847 F.3d at 1159.
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10 To establish associational standing, an organization must show: (a) its members would
11
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
12
to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires
13
the participation of individual members in the lawsuit. Hunt v. Washington State Apple
Attorneys at Law

14
Advertising Comm'n, 432 US 333, 343, 97 S.Ct. 2434, 2441 (1977); Associated Gen. Contractors
15
of Am., San Diego Chapter, Inc. v. California Dep't of Transp., 713 F.3d 1187, 1194 (9th Cir.
16
2013). However, where at least one identified member of an organization is able to demonstrate
17
that he or she has suffered harm, or would suffer harm, it is common to permit that
18
organization’s claims to go forward. See, Associated Gen. Contractors of Am., 713 F.3d at 1194
19
(citing Summers, 555 U.S. at 498); W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 483
20
(9th Cir. 2011); Kaahumanu v. Hawaii, 682 F.3d 789, 797 (9th Cir. 2012).
21
Here, plaintiffs Linton and Stewart, who have directly suffered injury and are suing for
22
prospective relief, are members of FPF, FPC, CGF and SAF. (Complaint, ¶¶ 4-5.) Although
23
they were not members of MSF at the time the complaint was filed, that issue will be cured by
24
25 the time this matter is heard. However, it may not be necessary for adjudication of the issue,

26 since “the presence in a suit of even one party with standing suffices to make a claim

27 justiciable[.]” Montana Shooting Sports Ass'n v. Holder, 727 F.3d 975, 981 (9th Cir. 2013)

28 (citing Brown v. City of L.A., 521 F.3d 1238, 1240 n. 1 (9th Cir. 2008), and Rumsfeld v. Forum

– 11 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 18 of 31

1 for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n. 2, 126 S.Ct. 1297 (2006) (declining
2 to address standing of additional plaintiffs “because the presence of one party with standing is
3 sufficient to satisfy Article III's case-or-controversy requirement”)).
4 By virtue of the injuries and relief sought on behalf of its members, plaintiffs Linton and
5 Stewart, the organizational plaintiffs have established associational standing.
6
7 D. PLAINTIFFS STATE A CLAIM FOR VIOLATION OF THE SECOND AMENDMENT.
8 1. A “Presumptively Lawful Regulation” Does Not Simply End the Inquiry
9 Required in As-Applied Second Amendment Claims.
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10 In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008), the Court

11 affirmed an individual right to possess a firearm “unconnected with militia service.” 554 U.S. at
12 582. At the core of the Second Amendment is the right of “law-abiding, responsible citizens to
13 use arms in defense of hearth and home.” Id. at 634-35. And in McDonald v. City of Chicago,
Attorneys at Law

14 561 U.S. 742, 130 S.Ct. 3020 (2010), the Court held that the Fourteenth Amendment
15 incorporates the right recognized in Heller, as a right fundamental to our system of ordered
16 liberty. 561 U.S. at 778, 791. At the same time, the Court explained that its recognition of an
17 individual right to bear firearms would not “cast doubt on longstanding prohibitions on the
18 possession of firearms by felons[,]” among other restrictions. Heller, 554 U.S. at 626;
19 McDonald, 561 U.S. at 786. The practice of barring convicted felons from possessing firearms
20
was described as one example as a “presumptively lawful regulatory measure[].” Heller, 554
21
U.S. at 627, n.26.
22
Defendants here cite both Heller and United States v. Vongxay, 594 F.3d 1111 (9th Cir.
23
2010) as cases which simply foreclose, “as a matter of law,” the possession of firearms by felons,
24
without further analysis without any further inquiry into the level of scrutiny required, or
25
applying it. We think the matter bears more careful examination, and that plaintiffs’ claims
26
survive at this stage against such an extreme position.
27
In Vongxay, a case in which the defendant appealed his conviction for being a felon in
28
– 12 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 19 of 31

1 possession of a firearm, in an apparent facial and as-applied challenge to the federal felon-in-
2 possession statute, 18 U.S.C. § 922(g)(1). The Ninth Circuit affirmed the conviction, holding
3 that section 922(g)(1) (which prohibits firearm possession by any person “who has been
4 convicted in any court of, a crime punishable by imprisonment for a term exceeding one year”)
5 had not been brought into question by Heller. 594 F.3d at 1114 (“Nothing in Heller can be read
6 legitimately to cast doubt on the constitutionality of § 922(g)(1).”) In so holding, Vongxay stated
7 that “felons are categorically different from the individuals who have a fundamental right to bear
8 arms.” 594 F.3d at 1115. Vongxay was decided before the various circuit courts began applying
9
a common two-part test in considering Second Amendment claims, discussed below.
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Of course, plaintiffs here are not challenging section 922(g)(1), and indeed, federal law
11
actually assists their claims here. 18 U.S.C. § 921, further defining what it means to have been
12
previously convicted of such disqualifying crimes, states:
13
Attorneys at Law

What constitutes a conviction of such a crime shall be determined in accordance with


14 the law of the jurisdiction in which the proceedings were held. Any conviction which
has been expunged, or set aside or for which a person has been pardoned or has had
15 civil rights restored shall not be considered a conviction for purposes of this chapter,
unless such pardon, expungement, or restoration of civil rights expressly provides that
16
the person may not ship, transport, possess, or receive firearms.
17
18 U.S.C. § 921, subdiv. (a)(20)(B) (emphasis added). The severity of the federal lifetime ban
18
on possession of firearms by felons is therefore mitigated by this qualifying provision, into
19
which the individual plaintiffs here would fall. However, California provides for no such
20
allowance for grace as federal law does.
21
The absolutism that amounts to defendants’ assertion here – that plaintiffs and others
22
similarly situated simply fall into a category of prohibited persons forever, i.e., the approach
23
taken by Vongxay – is no longer the proper analysis. Indeed, defendants expressly acknowledge
24
that plaintiffs’ Second Amendment claims are subject to a two-step inquiry (Motion at 12:20-21,
25
citing Jackson v. City and County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014)), but
26
27 simply presume that plaintiffs’ claims would never pass the first step because the laws at issue

28 are “presumptively lawful” regulations. In the first place, even if we were to engage in a lively

– 13 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 20 of 31

1 debate as to whether the state statutes prohibiting firearm possession by felons, Cal. Pen. Code
2 §§ 29800 (firearms) and 30305 (ammunition) are “longstanding prohibitions” – a conclusion that
3 defendants do not support – those statutes are not really the issue. Instead, they are the
4 defendants’ policies which refuse to honor out-of-state judgments vacating or setting aside those
5 felony convictions, or expressly restoring a person’s Second Amendment rights in their states of
6 origin. Defendants’ motion does not cite or even mention these policies, which is really the crux
7 of the matter. Moreover, even if defendants’ policies amount to presumptively lawful
8 regulations, it remains in doubt whether they could withstand the State’s burden under either
9
strict or intermediate scrutiny, an analysis which the defendants’ motion likewise skips entirely.
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Defendants’ absolutist position is simply no longer tenable. “[T]here are good reasons to
11
be skeptical of the constitutional correctness of categorical, lifetime bans on firearm possession
12
by all felons.” United States v. Phillips, 827 F.3d 1171, 1174 (9th Cir. 2016) (emphasis
13
Attorneys at Law

original). In Phillips, the court affirmed the defendant’s conviction under section 922(g)(1), but
14
noted the scholarly disagreement over whether the practice of lifetime bans on firearm ownership
15
by felons was historically justified, and under what theory. 827 F.3d at 1174 n.2. Ultimately,
16
though the court affirmed the conviction, it noted that “there may be some good reasons to be
17
skeptical about the correctness of the current framework of analyzing the Second Amendment
18
rights of felons.” Id. at 1176.
19
2. Under the Two-Part Test in Chovan, Plaintiffs Have Stated a Claim.
20
Does the two-step approach now adopted by the Ninth Circuit, and its dicta in Phillips,
21
expose the possibility that persons who have had their felony convictions set aside in their
22
respective states may regain Second Amendment rights? This is the logical conclusion, and it is
23
not without precedent. In Binderup v Attorney General, 836 F.3d 336 (3d Cir. 2016), cert.
24
25 denied 137 S.Ct. 2323 (2017), the Third Circuit, sitting en banc, held that section 922(g)(1) could

26 not bar the plaintiffs from firearm possession as a result of their earlier disqualifying state law

27
28
– 14 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 21 of 31

1 misdemeanor convictions.2 In a well-considered opinion, the en banc court held that section
2 922(g)(1) violated the Second Amendment as applied to those individual plaintiffs based on
3 different triggering state law offenses. Binderup, 836 F.3d at 340-41. In that case, the plaintiffs’
4 rights to possess firearms was expressly restored to them by a state court, but they continued to
5 be barred under federal law, section 922(g)(1). Id. at 340.
6 The Third Circuit applied the two-part test under United States v. Marzzarella, 614 F.3d
7 85 (3d Cir. 2010), a test now expressly adopted by this Circuit in United States v. Chovan, 735
8 F.3d 1127 (9th Cir. 2013). The first step put the burden on the plaintiffs to show that a
9
presumptively lawful regulation burdened their Second Amendment rights. Binderup held that a
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
challenger must clear two hurdles: “[H]e must (1) identify the traditional justifications for
11
excluding from Second Amendment protections the class of which he appears to be a member,
12
[…] and then (2) present facts about himself and his background that distinguish his
13
Attorneys at Law

circumstances from those of persons in the historically barred class[.]” Binderup, 836 F.3d at
14
347. That burden lay upon the plaintiffs and was described as a necessarily strong showing. Id.
15
The Third Circuit held that if the plaintiff was able to distinguish the seriousness of his
16
disqualifying federal conviction from “serious crimes” at this first step, the next step required the
17
government to show that the regulation as applied satisfied intermediate scrutiny. Binderup, 836
18
F.3d at 356. The court further instructed district courts within that circuit to require the
19
government to make the showing as to whether a person should be disarmed for life, which turns,
20
in part, on the likelihood that a challenger would commit crimes in the future. Id. at 354 n.7.
21
Ultimately, the en banc court in Binderup concluded that the law was unconstitutional as
22
23
24 2
The court’s opinion in Binderup left the door open to possible challenges based upon non-
25 violent felony offenses as well, when it stated: “We are not confronted with whether an as-
applied Second Amendment challenge can succeed where the purportedly disqualifying offense
26 is considered a felony by the authority that created the crime. On the one hand, it is possible to
read Heller to leave open the possibility, however remote, of a successful as-applied challenge
27 by someone convicted of such an offense. At the same time, even if that were so, the individual’s
burden would be extraordinarily high—and perhaps even insurmountable.” 836 F.3d at 353, n.6.
28
– 15 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 22 of 31

1 applied, but was split on the reasoning. The narrowest ground supporting the judgment held that
2 those who committed serious crimes had “forfeited” their Second Amendment right to bear arms,
3 836 F.3d at 349, and that the “passage of time or evidence of rehabilitation” could not restore the
4 lost right. Only the seriousness of the original crime was relevant to determine if a convicted
5 person fell outside of the scope of the Second Amendment. Id. at 349-350. Applying this
6 reasoning, the majority3 held that the plaintiffs’ misdemeanor crimes there were not sufficiently
7 serious to warrant lifetime disarmament. Id. at 353.
8 Likewise, and in the present case, the simple categorical approach taken in Vongxay can
9
no longer be considered determinative of this issue. Instead, the Ninth Circuit’s test is now
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
articulated in Chovan, where the court considered the defendant’s facial and as-applied challenge
11
to a conviction under 18 U.S.C. § 922(g)(9), which prohibits persons convicted of domestic
12
violence misdemeanors from possessing firearms for life. After surveying the law of other
13
Attorneys at Law

circuits, the court expressly adopted the test undertaken by the Third Circuit in Marzzarella,
14
among others, which test requires the court to examine whether the challenged law “burdens
15
conduct protected by the Second Amendment,” and if so, “directs courts to apply an appropriate
16
level of scrutiny.” Chovan, 735 F.3d at 1136 (citing Marzzarella, 614 F.3d at 89); see also
17
Teixeira v. Cty. of Alameda, 873 F.3d 670, 682 (9th Cir. 2017), cert. denied sub nom. Teixeira v.
18
Alameda Cty., Cal., 138 S.Ct. 1988 (2018). In so examining, Chovan found that although
19
section 922(g)(9) did not implicate the “core Second Amendment right,” it did place “a
20
substantial burden on the right[,]” and thus applied intermediate scrutiny4 to his claims. Chovan,
21
22
23 3
Five judges of the en banc court disagreed with the seriousness test, and took the view that non-
dangerous persons convicted of offenses unassociated with violence may rebut the presumed
24 constitutionality of the prohibiting statute, on an as-applied basis. Id. at 357-358 (Hardiman, J.,
25 concurring in the judgment.) Seven judges dissented and would have rejected the as-applied
challenge entirely, but agreed that the proper focus was on the seriousness of the crime, and were
26 ultimately satisfied that the crimes were sufficiently serious to warrant lifetime disarmament. Id.
at 381 (Fuentes, J., dissenting).
27
4
28 The court determined that intermediate, rather than strict scrutiny, was appropriate, in part,
because the statute contained an exemption for those with expunged, pardoned, or set-aside
– 16 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 23 of 31

1 735 F.3d at 1138. Applying that standard, the court ultimately rejected the defendant’s argument
2 that section 922(g)(9) could not constitutionally apply to him. However, the court at least went
3 through the analysis in determining that because section 922(g)(9) was substantially related to an
4 important government interest in preventing domestic gun violence generally, it passed scrutiny.
5 735 F.3d at 1141.
6 In this case, defendants’ motion does not cite to Chovan, and for understandable reasons.
7 Chovan expressly held that a lifetime prohibition on firearm ownership by certain
8 misdemeanants did substantially burden the Second Amendment right of the defendant, and at
9
least put the government to the test to justify the means using an appropriate level of scrutiny.
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Plaintiffs here have properly alleged that they are now responsible, law-abiding citizens
11
with no history of violent behavior or conduct that would suggest that they pose any elevated
12
threat or danger to others. (Complaint, ¶ 57.) Neither of the individual plaintiffs were sentenced
13
Attorneys at Law

to a term in prison, and both successfully completed the terms of their probation. (Id.) The
14
crimes for which they were convicted are each more than thirty years old, were for non-violent,
15
lesser-classified felonies, and did not involve the use of force. (Id., ¶ 60). The sentences
16
imposed upon the plaintiffs were minor, and most importantly, their convictions were eventually
17
adjudged to have been vacated, expunged, or set aside under the laws of those states by courts of
18
competent jurisdiction. (Id.)
19
But notwithstanding the non-violent nature of those convictions, and the subsequent
20
restoration of plaintiffs’ rights by courts in the states of Washington and Arizona, defendants’
21
policies as applied to the plaintiffs amount to a total and permanent deprivation of their
22
fundamental, individual right to keep and bear arms, as guaranteed by the Second Amendment,
23
24 and are therefore an infringement upon those rights. (Id.) The circumstances surrounding these

25
26 convictions, or those who have had their civil rights restored, which exceptions “lightened” the
burden on the right. 735 F.3d at 1138; Fisher v. Kealoha, 855 F.3d 1067, 1071 n.2 (9th Cir.
27 2017). That is the issue here, as defendants are expressly refusing to recognize that such
circumstances – when granted by other states – would restore the plaintiffs’ Second Amendment
28 rights here in California.
– 17 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 24 of 31

1 individual plaintiffs’ convictions should therefore be distinguishable from those persons that
2 have been historically excluded from the right to keep and bear arms.
3 This is not something that can be decided on a motion to dismiss, and in particular, where
4 the defendants fail firstly to offer up their policies for examination as “long-standing
5 prohibitions,” and secondly, to engage in any analysis regarding both steps required under
6 Chovan. If the plaintiffs’ claims are to be given credit, which this Court should, following the
7 approach in Binderup, they ought to bear the burden of demonstrating that their crimes were not
8 serious enough to warrant a lifetime prohibition of an important enumerated right, and in
9
particular, where those convictions have been set aside in their respective states of origin. But
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
under Chovan, if that burden is met, the burden would then shift to the defense under an
11
appropriate heightened level of scrutiny. In any event, plaintiffs have at least stated a Second
12
Amendment claim, worthy of inquiry under both prongs of the two-part approach undertaken in
13
Attorneys at Law

Chovan, and defendants’ motion should be denied.


14
15
E. PLAINTIFFS STATE A CLAIM FOR VIOLATION OF THE FULL FAITH AND CREDIT
16 CLAUSE.
17 The heart of this action is whether California is required to honor the judgments of courts
18 in other states that have set aside or vacated the plaintiffs’ underlying felony convictions, and
19
expressly restored their Second Amendment rights to them. Defendants claim the Full Faith and
20
Credit Clause does not prohibit California’s prohibition, based on their policy concerns alone.
21
However, defendants completely miss the mark by citing cases applying the Full Faith and
22
Credit Clause to other states’ legislative acts, and not involving court judgments. The latter
23
types of cases are judged by different (“exacting”) standards, and do not involve a “public
24
policy” exception.
25
Article IV, section 1 of the United States Constitution provides that “Full Faith and
26
Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every
27
other State.” “That Clause requires each State to recognize and give effect to valid judgments
28
– 18 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 25 of 31

1 rendered by the courts of its sister States.” V.L. v. E.L., -- U.S. --, 136 S.Ct. 1017, 1020 (2016).
2 The Supreme Court has explained that the “animating purpose” of this Clause was:
3 to alter the status of the several states as independent foreign sovereignties, each free
to ignore obligations created under the laws or by the judicial proceedings of the
4 others, and to make them integral parts of a single nation throughout which a remedy
5 upon a just obligation might be demanded as of right, irrespective of the state of its
origin.
6
Baker v. Gen. Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 663 (1998) (quoting Milwaukee
7
County v. M.E. White Co., 296 U.S. 268, 277, 56 S.Ct. 229 (1935)).
8
Baker made it clear to distinguish the Clause’s command as between legislative acts of
9
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

other states, and state court judgments. Specifically, the Court stated that the Clause “does not
10
compel ‘a state to substitute the statutes of other states for its own statutes dealing with a subject
11
matter concerning which it is competent to legislate.’” Baker, 522 U.S. at 232 (citing Pacific
12
Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501, 59 S.Ct. 629, 632 (1939)).
13
Attorneys at Law

14 The Court further clarified: “Regarding judgments, however, the full faith and credit obligation

15 is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over

16 the subject matter and persons governed by the judgment, qualifies for recognition throughout

17 the land.” Baker, 522 U.S. at 233 (citing Matsushita Elec. Industrial Co. v. Epstein, 516 U.S.

18 367, 373, 116 S.Ct. 873 (1996), and Kremer v. Chemical Constr. Corp., 456 U.S. 461, 485, 102

19 S.Ct. 1883, 1899 (1982)).

20 Importantly, the Court held that there is no “roving public policy exception” to the full

21 faith and credit due judgments, and that the Clause orders submission even to the hostile policies
22 reflected in the judgment of another state. Baker, 522 U.S. at 233. See also, Estin v. Estin, 334
23 U.S. 541, 546 (1948); Williams v. North Carolina, 317 U.S. 287 (1942) (requiring North
24 Carolina to recognize change in marital status effected by Nevada divorce decree contrary to the
25 laws of North Carolina); V.L. v. E.L., 136 S.Ct. at 1020 (a state may not disregard the judgment
26 of a sister state because it deems it to be wrong on the merits) (citing Milliken v. Meyer, 311 U.S.
27 457, 462, 61 S.Ct. 339 (1940)).
28 Defendants’ motion appears to recognize the distinction between the Full Faith and
– 19 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 26 of 31

1 Credit Clause’s application to legislative acts, and the court judgments of the other states.
2 However, their motion confoundingly cites three cases all of which pertain to legislative acts, not
3 court judgments of sister states. See, Pac. Employers Ins. Co., 306 U.S. 493 (involving
4 conflicting workers’ compensation statute); Nevada v. Hall, 440 U.S. 410 (1979) (the Clause did
5 not require California to apply a statutory defense limiting tort damages against the State of
6 Nevada); Alaska Packers Ass'n v. Indus. Acc. Comm'n, 294 U.S. 532, 548, 55 S. Ct. 518, 524
7 (1935) (“It follows that not every statute of another state will override a conflicting statute of the
8 forum by virtue of the full faith and credit clause”) (all cited in defendants’ Motion at 14:5-15).
9
And thus, when defendants conclude that plaintiffs “are asking this Court to give full faith and
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
credit to foreign statutes that offend and stand in conflict with California firearms laws,” (Motion
11
at 14:27-28), they know that is simply incorrect. Plaintiffs here are challenging the defendants’
12
refusal to honor the court judgments of other states, not their legislative enactments.
13
Attorneys at Law

Defendants suggest that there is some generalized “public safety” concern in giving
14
individuals with vacated out-of-state felony convictions the right to possess firearms in
15
California. (Motion at 3:2-3). Aside from this innuendo, however, defendants never exactly
16
state what the public policy is that should prevent citizens who have had felony convictions set
17
aside, vacated and their civil rights expressly restored to them, from owing firearms. But
18
ultimately, it does not matter, for public policy is not a reason to deny a person legal rights
19
expressly adjudicated elsewhere. In Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), the
20
Tenth Circuit held that an Oklahoma statute that refused to recognize an adoption “by more than
21
one individual of the same sex from any other state or foreign jurisdiction” was unconstitutional,
22
and required Oklahoma to issue an amended birth certificate listing as parents both members of a
23
24 California same-sex couple who legally adopted a child born in Oklahoma. Id. at 1141-42. The

25 Tenth Circuit granted relief in an action brought under section 1983. The “public policy”

26 codified by Oklahoma statute was plainly meant to prevent recognition of adoptions by same-sex

27 couples. Finstuen, 496 F.3d at 1148. And although the State of Oklahoma was understandably

28 squeamish about expressly restating those “public policy” goals on appeal, it did contend “that

– 20 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 27 of 31

1 requiring Oklahoma to recognize an out-of-state adoption judgment would be tantamount to


2 giving the sister state control over the effect of its judgment in Oklahoma.” Id. at 1153. The
3 court rejected that argument. Although the consolidated matter had been brought by several
4 groups of plaintiffs asserting different theories, including equal protection and due process,
5 ultimately the Tenth Circuit decided the matter under the Full Faith and Credit Clause, and held
6 that Oklahoma’s “refusal to recognize final adoption orders of other states that permit adoption
7 by same-sex couples” was unconstitutional. Id. See also, V.L. v. E.L., 136 S.Ct. at 1020 (the
8 Full Faith and Credit Clause required Alabama to recognize a same-sex couple’s adoption order
9
awarding the petitioner custody in Georgia).
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Here, defendants’ generalized complaint about the supposed subordination of the State’s
11
public policy – even though they do not state what that policy actually is – is simply not relevant.
12
Plaintiffs’ complaint has properly alleged that defendants’ policies, which amount to a refusal to
13
Attorneys at Law

honor the judgments of other states, violate the Constitution’s Full Faith and Credit Clause, and
14
its enabling statute, 28 U.S.C. § 1738.
15
16
F. PLAINTIFFS STATE A CAUSE OF ACTION UNDER BOTH THE PRIVILEGES AND
17 IMMUNITIES CLAUSE (ART. IV. § 2) AND THE PRIVILEGES OR IMMUNITIES CLAUSE OF
THE FOURTEENTH AMENDMENT.
18
19 The essence of plaintiffs’ third claim is that the State of California permits a process in

20 which persons convicted of non-violent felonies in California, and which did not result in a state

21 prison sentence, may seek post-conviction reduction of the California conviction to a

22 misdemeanor. And through that process, the State of California does permit restoration of a

23 California felon’s civil rights, including the right to purchase and possess firearms. (Complaint,

24 ¶¶ 69-70.) However, as shown, defendants are refusing to honor a comparable process, i.e., the
25 setting aside of felony convictions, and restoration of Second Amendment rights, when they
26 emanate from other states. (Id., ¶ 72.) Plaintiffs’ complaint alleges that this disparate treatment
27 of persons convicted in California and persons convicted of crimes in the other states violates
28 two provisions of the Constitution, Article IV, § 2, cl. 1 (the “Privileges and Immunities Clause,”
– 21 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 28 of 31

1 sometimes called the Comity Clause), and § 1 of the Fourteenth Amendment (the Privileges or
2 Immunities Clause). Both are rooted in not only the obligation of states to treat all U.S. citizens
3 equally, but the well-established constitutional right to travel.
4 1. Plaintiffs Have Standing and Have Stated a Claim.
5 As a threshold matter, contrary to defendants’ argument, all plaintiffs, including
6 individual plaintiffs Linton and Stewart, have standing to bring this claim. Defendants’ motion
7 does not cite any authority for the proposition that a resident of a state may not bring a claim for
8 violation of the Clause. Furthermore, both the Privileges and Immunities Clause (Art. IV), and
9 the Privileges or Immunities Clause of the Fourteenth Amendment protect a constitutional right
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10 to travel, for which there is no residency standing requirement. Plaintiffs have directly asserted
11
deprivation of this right to travel in their Complaint. (Complaint, ¶ 74.)
12
Even as a stand-alone claim involving the Privileges and Immunities Clause of Art. IV, as
13
long as the plaintiffs have sufficiently alleged the three elements of Article III standing, it is
Attorneys at Law

14
immaterial where they currently reside. If defendants’ discriminatory policies have treated them
15
differently because of where they have come from, that is sufficient to allege standing. See, e.g.,
16
Walsh v. City and County of Honolulu, 423 F.Supp.2d 1094 (D. Haw. 2006) (individual plaintiff
17
had standing to challenge a residency requirement for state employment, under the Article IV
18
Clause, notwithstanding that he subsequently moved to Hawaii.)
19
But stepping back and realizing the bigger picture, one can and in most instances will be
20
a resident of the state that is discriminating against him or her, when such disparate treatment
21
amounts to an impermissible infringement upon the constitutional right to travel protected by
22
both the Article IV Clause, and the Privileges or Immunities Clause of the Fourteenth
23
Amendment. That right to travel, now long recognized and firmly established, was reaffirmed in
24
25 Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518 (1999), where the Court considered a challenge to

26 California statute limiting the welfare benefits available to new residents of the state. 526 U.S. at

27 492. Through Justice Stevens’s majority opinion affirming the Ninth Circuit and the district

28 court below in enjoining the statute, the case largely stands for and affirms a constitutional right

– 22 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 29 of 31

1 to travel. In discussing this right, the majority noted that a right to travel, “firmly embedded in
2 our jurisprudence[,]” embraces at least three different components. Id. at 498-99. The first
3 component is the right of a citizen to enter and leave another state. The second component is the
4 right to be treated “as a welcome visitor rather than an unfriendly alien when temporarily present
5 in the second state. This second component is protected by the Privileges and Immunities Clause
6 of Art. IV, § 2 of the Constitution. The third component of the right to travel is the right of a
7 newly arrived citizen to the same privileges and immunities enjoyed by citizens of that same
8 state, a right protected not only by the new arrival’s status as a state citizen, but also by his or her
9
status as a citizen of the United States. Id. at 502. This is a right that is protected by the
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
Privileges or Immunities Clause of the Fourteenth Amendment. Therefore, the Court concluded,
11
the statute unconstitutionally discriminated between established and newly-arrived residents of
12
California. Id. at 505. Moreover, such discriminatory treatment of residents was subject to strict
13
Attorneys at Law

scrutiny. Id. (citing Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331 (1969) (any
14
classification which serves to penalize the exercise of that right, unless shown to be necessary to
15
promote a compelling governmental interest, is unconstitutional.))
16
Plaintiffs therefore have stated a claim – and have demonstrated standing – in contesting
17
defendants’ policies that infringe upon the constitutional right of travel.
18
2. The Privileges or Immunities Clause of the Fourteenth Amendment Protects
19 all Constitutional Rights – Including Those Guaranteed by the Second
Amendment.
20
21 Finally, defendants argue that plaintiffs have not stated a claim under the Privileges or

22 Immunities Clause of the Fourteenth Amendment at all, because the right to keep and bear arms

23 is not “implicated by the narrow category of rights protected under the Fourteenth Amendment.”

24 (Motion at 16:18-20.) Assuming that defendants meant to say that the right to keep and bear
25 arms is not protected specifically by the Privileges or Immunities Clause of the Fourteenth
26 Amendment, it is still a strange assertion to make in light of McDonald v. City of Chicago.
27 Defendants rely almost exclusively on the Slaughter-House Cases, 83 U.S. 36 (1872) in
28 support of this proposition. Without delving deeply into the matter, it is beyond question that
– 23 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 30 of 31

1 any reliance upon the enduring holding of the Slaughter-House Cases is tenuous at best. It
2 suffices to say here that the Court’s interpretation of the Privileges or Immunities Clause in the
3 Slaughter-House Cases has inspired a substantial amount of scholarship, and that “many [of
4 these] legal scholars dispute the correctness of the narrow Slaughter–House interpretation.”
5 McDonald, 561 U.S. at 756, 130 S.Ct. at 3029. Indeed, the Court implicitly recognized that
6 “[v]irtually no serious modern scholar—left, right, and center—thinks that this [interpretation] is
7 a plausible reading of the [Fourteenth] Amendment[.]” McDonald, 561 U.S. at 756 (citing Akhil
8 Reed Amar, Substance and Method in the Year 2000, 28 Pepp. L. Rev. 601, 631 n.178 (2001)).
9
That the majority in McDonald elected to incorporate a right to bear arms to the states through
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
the Due Process Clause of the Fourteenth Amendment, and expressly declined to decide the
11
matter on the Privileges or Immunities Clause (see McDonald, 561 U.S. at 758), does not mean
12
that the narrow-rights view of the Privileges or Immunities Clause expressed in the Slaughter-
13
Attorneys at Law

House Cases is even creditable. In the end, it did not matter, because McDonald ultimately
14
concluded, in a plurality opinion, that the right to keep and bear arms applies to the states
15
through the Fourteenth Amendment's Due Process Clause, as it is “fundamental” to the
16
American “scheme of ordered liberty.” 561 U.S. at 767, 130 S.Ct. at 3036. The crucial fifth
17
vote was authored by Justice Thomas, whose extensive concurring opinion5 rested primarily on
18
the Privileges or Immunities Clause, and which neither the majority opinion nor the dissenting
19
opinions quarreled with.
20
Frankly, given the underlying purpose of enacting the Privileges or Immunities Clause of
21
22
5
Justice Thomas’s concurring opinion in McDonald, surveying the Clause’s history, concluded
23 that the evidence “plainly shows that the ratifying public understood the Privileges or Immunities
24 Clause to protect constitutionally enumerated rights, including the right to keep and bear arms.
As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second
25 Amendment against the States. […] In my view, this is because the right to keep and bear arms
was understood to be a privilege of American citizenship guaranteed by the Privileges or
26 Immunities Clause.” McDonald, 561 U.S. at 837–38, 130 S.Ct. at 3077 (Thomas, J., concurring
and concurring in the judgment). Should this Court desire to entertain defendants’ argument
27 further on this point, we would request the opportunity to provide further briefing on this subject,
for which there is an extensive amount of scholarship and commentary.
28
– 24 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD
Case 3:18-cv-07653-JD Document 14 Filed 03/08/19 Page 31 of 31

1 the Fourteenth Amendment in seeking to permit former slaves full and equal citizens and in all of
2 the blessings of citizenship, it is surprising that an Attorney General of a modern state in 2019 is
3 advocating for limiting the Fourteenth Amendment by keeping the Slaughter-House Cases alive.
4 See, Saenz, 526 U.S. at 503 n.15 (“The [Fourteenth] Amendment's Privileges or Immunities
5 Clause and Citizenship Clause guaranteed the rights of newly freed black citizens by ensuring
6 that they could claim the state citizenship of any State in which they resided and by precluding
7 that State from abridging their rights of national citizenship”); Philip Hamburger, Privileges or
8 Immunities, 105 Nw. U. L. Rev. 61 (2010).
9
But here, it is simply enough to say that the Privileges or Immunities Clause provides the
SEILER EPSTEIN ZIEGLER & APPLEGATE LLP

10
constitutional basis for plaintiffs’ claims, and which undisputedly includes a right to travel and
11
become a permanent resident of the state. “Despite fundamentally differing views concerning
12
the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably
13
Attorneys at Law

expressed in the majority and dissenting opinions in the Slaughter–House Cases […], it has
14
always been common ground that this Clause protects the third component of the right to travel.”
15
Saenz, 526 U.S. at 503, 119 S.Ct. at 1526. Plaintiffs have therefore stated a Fourteenth
16
Amendment claim on this ground alone.
17
18
IV. CONCLUSION
19
For the foregoing reasons, plaintiffs respectfully request that this Court deny defendants’
20
motion to dismiss, and permit this case to proceed.
21
Dated: March 8, 2019 SEILER EPSTEIN ZIEGLER & APPLEGATE LLP
22
23
/s/ George M. Lee
24 George M. Lee
25
Attorneys for Plaintiffs
26
27
28
– 25 –
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
CASE NO. 3:18-cv-07653-JD