Altman v. County of Santa ClaraAltman v. County of Santa Clara
Case Information
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA 5 6 JANICE ALTMAN, et al., Case No. 20-cv-02180-JST
7 Plaintiffs, 8 ORDER DENYING PRELIMINARY v. INJUNCTION 9 Re: ECF No. 20 COUNTY OF SANTA CLARA, et al., Defendants.
We are in the midst of the COVID-19 pandemic. Over 1.8 million people in the United
States have been infected, and more than 20,000 new cases were reported yesterday alone. In order to limit the spread of this deadly disease, four Bay Area counties – among many others throughout the state – issued shelter-in-place orders limiting their residents’ ability to travel, eliminating gatherings, and closing businesses within their borders. The orders made exceptions for certain “essential businesses” to ensure their residents’ continued health, safety, and sanitation, but did not exempt firearms retailers or shooting ranges. Plaintiff firearms retailers, Second Amendment-related nonprofits, and individuals seeking to exercise their right to keep and bear arms now seek a preliminary injunction requiring the counties to exempt firearms retailers and shooting ranges from the shelter-in-place orders. ECF No. 20. Since the lawsuit was filed, three of the counties at issue now permit in-store retail, and the case is now moot as to those counties. Only the Alameda County order remains at issue.
Having carefully considered the extensive briefing submitted by the parties and the arguments presented by counsel, the Court concludes that Alameda County’s shelter-in-place order passes constitutional muster. The order has a real and substantial relation to the important goal of protecting public health; it reasonably fits that goal; it is facially neutral and does not target firearms retailers or shooting ranges in particular; and it is limited in time. Thus, the burden the order places on the exercise of the Second Amendment right is constitutionally reasonable.
The Court will deny the motion.
I. BACKGROUND
Our state, our country, and the entire world are in the middle of an unparalleled public
health emergency. The novel coronavirus and the disease it causes, COVID-19, “first appeared in
December 2019 and has since spread to most countries in the world, including the United States.”
ECF No. 46-6 ¶ 6. In the short time since, the virus “has thrust humankind into an unprecedented
global public health crisis.”
Gayle v. Meade
, No. 20-21553-CIV,
https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b4 8e9ecf6 (last visited June 2, 2020). In California alone, 115,908 have been infected and 4,235 have died. L.A. Times Staff, Tracking Coronavirus in California , L.A. Times (last visited June 2, 2020), https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/. In just the four counties that are the subject of this lawsuit, the numbers are 9,976 sick and 361 dead. Chronicle Digital Team, Coronavirus Tracker , S.F. Chronicle (last visited June 2, 2020), https://projects.sfchronicle.com/2020/coronavirus-map/. And these numbers, as shocking as they are, actually understate the damage inflicted by the virus, because a lack of testing masks the true number of infections and underreporting masks the true number of fatalities. See ECF No. 46-3 ¶ 5 (noting that “limited testing capacity means that case counts represent only a small portion of actual cases”).
In response to this extraordinary challenge, both the State of California and individual counties have issued what are known as “shelter-in-place” orders. Such orders typically require non-essential businesses to close; limit individuals’ ability to travel; and require individuals to avoid behaviors that make transmission of the virus more likely. The purpose of such orders is “[t]o slow virus transmission as much as possible, to protect the most vulnerable, and to prevent the health care system from being overwhelmed.” ECF No. 46-6 ¶ 10. The orders are formulated based on guidance from the Centers for Disease Control and Prevention, the California Department of Public Health, and other public health officials throughout the United States and around the world. See id. ; ECF No. 46-7 ¶ 6 (“Right now, shelter-at-home orders are being used worldwide to minimize the potential for people infected with the novel coronavirus to spread it.”), id. ¶ 10 (“Effective containment of the virus requires limiting people’s contact with each other because of the way that the virus is transmitted.”). Shelter-in-place orders have inarguably slowed the spread of the virus, ECF No. 46-6 ¶¶ 17, 20, resulting in the saving of innumerable lives. Defendants Santa Clara County, Alameda County, San Mateo County, and Contra Costa County first issued shelter-in-place orders on March 16, 2020. First Amended Complaint (“FAC”), ECF No. 19 ¶¶ 80, 93, 103, 114; see ECF No. 46-6 at 11-17 (“Mar. 16 Order”). The Orders required most businesses to “cease all activities at facilities located within the County.” [1] FAC ¶ 81. The Orders exempted 21 categories of “essential businesses,” id. , such as grocery stores, health care operations, and banks, see Mar. 16 Order ¶ 10.f. The Orders authorized law enforcement officials to “ensure compliance with and enforce this Order.” ¶ 11. Firearm and ammunition retailers and shooting ranges were not exempted. FAC ¶ 81.
On March 31, 2020, Defendant Counties issued additional orders superseding the March 16 Orders and extending the shelter-in-place period until May 3, 2020. FAC ¶ 83; see ECF No. 46-6 at 19-33 (“Mar. 31 Order”). These Orders also did not exempt firearm and ammunition retailers and shooting ranges as essential businesses. FAC ¶ 84. The March 31 Orders stated that “violation of any provision of this Order constitutes an imminent threat and menace to public health, constitutes a public nuisance, and is punishable by fine, imprisonment, or both.” Mar. 31 Order ¶ 15. On April 29, 2020, Defendant Counties issued a new set of Orders extending the shelter-in-place period until May 31, 2020. See ECF No. 46 at 13 n.5.
On May 15 and May 18, 2020, the Counties updated their Orders yet again. See ECF No. 50 at 25-44 (“May 18 Order”). [2] “[I]n light of progress achieved in slowing the spread of COVID- 19,” the new Orders permit a new category of “Additional Businesses,” including all retail businesses, to resume operation “subject to specified conditions and safety precautions to reduce associated risk of COVID-19 transmission.” See id. ¶ 1. These conditions include offering goods for curbside pickup and, in two Counties, delivery. See id. , App. C-1 ¶1(b)(i)(1). The May 15 and 18 Orders also permit the socially distanced operation of “Outdoor Businesses” as well as travel to and from all permitted activities. ¶¶ 3, 15.i, 15.l. Unlike their prior iterations, these Orders have no set end date. Rather, they specify that “[t]he Health Officer will continually review whether modifications to the Order are warranted” based on “progress on the COVID-19 Indicators[,]” including but not limited to new cases and hospitalizations, hospital, testing, and contract tracing capacity, and availability of personal protective equipment; “developments in epidemiological and diagnostic methods for tracing, diagnosing, treating, or testing for COVID- 19”; and “scientific understanding of the transmission dynamics and clinical impact of COVID- 19.” ¶ 11.
On May 29, 2020, San Mateo County issued a superseding Order that permits retail businesses to resume socially distanced in-store sales. ECF No. 58 at 20. Santa Clara County issued a similar Order on June 1, 2020, to take effect on June 5, 2020. ECF No. 59. Contra Costa County issued a similar Order on June 2, 2020, to take effect on June 3, 2020. ECF No. 60. [3]
On March 31, 2020, Plaintiffs filed a complaint challenging these orders and their effect on firearms retailers and shooting ranges. Plaintiffs make a single claim under the Second and Fourteenth Amendments of the United States Constitution and seek injunctive and declaratory relief. ECF No. 1. Plaintiffs fall into three categories: (1) eight individual residents of Defendant counties (“Individual Plaintiffs”) who wish to “exercise [their] right to keep and bear arms . . . and would do so, but for the reasonable and imminent fear of arrest and criminal prosecution under Defendants’ laws, policies, orders, practices, customs, and enforcement, and because Defendants’ orders and actions have closed firearm and ammunition retailers and ranges,” ¶¶ 6-12; (2) three firearms retailers located in three different Defendant counties (“Retailer Plaintiffs”) who “would conduct training and education, perform California [Firearm Safety Certificate (‘FSC’)] testing for and issue FSC certificates to eligible persons, and sell and transfer arms . . . but for the reasonable and imminent fear of criminal prosecution and loss of [their] licenses because of Defendants’ laws, policies, orders, practices, customs, and enforcement thereof,” id. ¶¶ 13-15; and (3) five nonprofit entities focused on Second Amendment rights (“Institutional Plaintiffs”) who bring the action on behalf of themselves and their members, id. ¶¶ 16-20. Defendants include the four Counties as well as various law enforcement and public health officials associated with them, along with the cities of San Jose, Mountain View, Pacifica, and Pleasant Hill and various officials associated with them. ¶¶ 21-40.
On April 10, 2020, Plaintiffs amended their complaint as of right, adding a second claim under the Fifth and Fourteenth Amendments and seeking declaratory and injunctive relief as well as nominal damages and attorney’s fees and costs. FAC ¶¶ 147-55. That same day, Plaintiffs filed a motion for temporary restraining order or, in the alternative, preliminary injunction. ECF No. 20. On April 10, finding that Plaintiffs had failed to make the required showing under Rule 65(b)(1), the Court denied the application for a temporary restraining order and set a hearing on the application for a preliminary injunction. ECF No. 22. On May 1, 2020, Defendants filed a consolidated opposition. ECF No. 46. Plaintiffs replied on May 8, 2020, ECF No. 48, and the Court held a video-conference hearing on May 20, 2020.
Plaintiffs filed a supplemental brief on May 22, 2020 addressing whether the case was mooted by the May 15 and 18 Orders. ECF No. 54. Defendants filed a supplemental opposition on May 27, ECF No. 55, and Plaintiffs replied on May 29, ECF No. 57. The Court took the matter under submission without an additional hearing.
II. JURISDICTION
This Court has jurisdiction pursuant to
III. LEGAL STANDARD
The Court applies a familiar four-factor test on a motion for a preliminary injunction.
See
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.
,
IV. DISCUSSION
Under California’s firearm regulations, an individual is generally required to obtain an
FSC, undergo a background check, and wait ten days before acquiring a gun.
See
Plaintiffs argue that they are likely to succeed on their Second Amendment and due process claims and that these constitutional violations constitute irreparable injury that tips the public interest and balance of the equities in their favor. at 28-29. A. Mootness Plaintiffs’ FAC challenges only the March 16 and March 31 orders. At the hearing, Plaintiffs stipulated that they also challenged the Orders issued on April 29, May 15, and May 18. ECF No. 53. The Court ordered supplemental briefing on whether the May 15 and 18 Orders, which allow for curbside retail sales and, in two Counties, delivery retail, mooted Plaintiffs’ claims. After this briefing had been submitted, San Mateo, Santa Clara, and Contra Costa
Counties requested judicial notice of their May 29, June 1, and June 2 Orders, respectively, which permit the resumption of all in-store retail sales, subject to certain social distancing requirements. See ECF Nos. 58, 59, 60.
The doctrine of mootness requires a court to dismiss a case “when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
Already, LLC v.
Nike, Inc.
,
Because Plaintiffs in San Mateo, Santa Clara, and Contra Costa Counties are now clearly able to purchase firearms and ammunition (or will be once the Orders go into effect), the Court holds that the case is moot as to those Defendants. The San Mateo, Santa Clara, and Contra Costa Defendants are hereby dismissed.
As for Alameda County, Plaintiffs argue that existing state and federal statutes and
regulations prohibit them from purchasing firearms or ammunition curbside or via delivery.
[4]
ECF
No. 54 at 4-7. Under California law, anyone selling, leasing, or transferring a firearm must obtain
a license,
Plaintiffs argue that a plain reading of these statutes mandates that firearms transactions
occur “in the licensee’s building,” not on an adjacent sidewalk or parking lot. ECF No. 54 at 6;
ECF No. 57 at 2;
see also
The Court need not resolve these questions definitively now. It is sufficient to hold that,
given the uncharted legal landscape for selling firearms and ammunition curbside or via delivery,
Defendants have not met their “heavy burden” to establish mootness as to the Alameda County
Defendants.
See Rosemere
,
B. Likelihood of Success on the Merits
1. Second Amendment Claim
“The Second Amendment protects an individual right to keep and bear arms . . . that is
fully applicable to the states and municipalities.”
Fyock v. Sunnyvale
,
balancing test, including tiered scrutiny, is inappropriate under
Heller
.” at 20. Plaintiffs
acknowledge their suggested approach is contrary to Ninth Circuit law,
see
ECF No. 20-1 at 20,
which applies either intermediate or strict scrutiny to laws that burden Second Amendment rights
depending on “how close the law comes to the core of the Second Amendment right” and “the
severity of the law’s burden on the right,”
Wilson v. Lynch
,
Defendants, meanwhile, urge the Court to review the Order under the “deferential
standards for emergency directives.”
[6]
ECF No. 46 at 13-15. They rely on
Jacobson v.
Massachusetts
,
Given that smallpox was “prevalent and increasing” in Cambridge, the Court held that the vaccination program had a “real or substantial relation to the protection of the public health and the public safety.” Because the law was “applicable equally to all in like condition” and because “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand,” the Court concluded that mandatory vaccination could not “be affirmed to be, beyond question, in palpable conflict with the Constitution.” at 29-31. It noted, however, that
the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. at 38.
Although Plaintiffs attempt to dismiss
Jacobson
as “arcane constitutional jurisprudence,”
ECF No. 48 at 6, the case remains alive and well – including during the present pandemic.
See S.
Bay United Pentecostal Church v. Newsom
, No. 19A1044,
Plaintiffs also seek to distinguish Jacobson by characterizing the case as “bottomed on a substantial degree of legislative deference to which Defendants’ Orders and enforcement practices are simply not entitled.” ECF No. 48 at 8. This argument misrepresents the case. At issue in Jacobson were two laws: (1) a state statute providing that “the board of health of a city or town, if, in its opinion, it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants thereof . . . ,” and (2) a Cambridge board of health regulation mandating vaccination to combat the smallpox outbreak. Jacobson , 197 U.S. at 12. While the Jacobson plaintiff challenged only the state statute, the Court considered the interplay of state and local power in setting a deferential standard:
According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. . . . It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. at 25 (internal citations omitted). The Court further held that “surely it was appropriate for the legislature to refer” the question of when to impose mandatory vaccination “to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions.” at 27.
We find ourselves in much the same situation here. The Order in this case was imposed by
Alameda County’s health officer, pursuant to authority granted to her by the California Health and
Safety Code.
See
ECF No. 46 at 9;
The Court need not decide whether
Jacobson
or the Ninth Circuit’s Second Amendment
framework applies here because, as explained below, the Court concludes that the Order survives
review under either test.
[7]
See Robinson
,
b.
Jacobson
Standard
Under
Jacobson
, an emergency “statute purporting to have been enacted to protect the
public health, the public morals, or the public safety” must yield to a fundamental right if it “has
no real or substantial relation to those objects, or is, beyond all question, a plain, palpable
invasion” of the right.
Defendants argue that the Order substantially relates to “their objectives – minimizing COVID-19 transmission rates and conserving healthcare resources – by limiting the number and types of organizations that can expose their employees, customers, and business partners to infection.” ECF No. 46 at 14. In support, they submit a declaration from Dr. Erica Pan, the Interim Health Officer for the Alameda County Public Health Department, explaining that the goal of such orders is: to lower the number of total people who become sick and to save lives by slowing the spread of the coronavirus in order to ensure that communities have enough space and resources in their hospitals for people who develop severe illness. Sheltering in place is proven to slow the spread of the virus if everyone decreases the number of people with whom they come in contact because it decreases the number who might get sick from someone who is infected.
ECF No. 46-6 ¶ 12. Dr. Pan states that her decision to issue the Order “was based on evidence of the rapidly increasing case rate of COVID-19 within Alameda County and surrounding Bay Area counties and scientific evidence and best practices regarding the most effective approaches to slow the transmission of COVID-19,” id. ¶ 14, and that it is informed by “consideration of guidance from the Centers for Disease Control and Prevention, the California Department of Public Health, and other public health officials throughout the United States and around the world,” id. ¶ 10. Addressing the need for the additional restrictions contained in the March 31 Order as well as the effectiveness of shelter-in-place orders, Dr. Pan states:
The need for the March 31 orders could not be starker. When I and the other Bay Area health officers issued shelter-in-place orders on March 31, 2020, the public health emergency had substantially worsened since our March 16, 2020 shelter-in-place orders, with a significant escalation in the number of positive cases, hospitalizations, and deaths, and a corresponding increasing strain on health care resources. At the same time, evidence suggested that the restrictions on mobility and social distancing requirements imposed by the prior orders were slowing the rate of increase in community transmission and confirmed cases by limiting interactions among people, consistent with scientific evidence of the efficacy of similar measures in other parts of the country and world. Id. ¶ 17.
Defendants also submit a declaration from Dr. George W. Rutherford, an epidemiologist who is leading a COVID-19 contact tracing program in San Francisco at the request of the city’s Department of Public Health. ECF No. 46-7. Dr. Rutherford states that because “[t]he effectiveness of containment measures depends not only on how soon they are enacted but how strict they are[,] . . . [e]xceptions must be narrowly defined because each exception increases the risks of community transmission.” ¶ 11. Dr. Rutherford also provides empirical evidence of the success of shelter-in-place orders in reducing the transmission of COVID-19 in Italy, as well as comparisons of United States jurisdictions showing that earlier implementation of shelter-in- place has led to a slower spread of the disease. ¶¶ 9, 17-18.
19
Plaintiffs dispute neither the need for the Order nor whether the Order has a real or 20
substantial relationship to the legitimate public health goal of reducing COVID-19 transmission 21
and preserving health care resources, and the Court easily concludes that the Order bears such a 22
relationship to this goal.
See Rutledge
,
23
interest in conserving PPE resources and limiting social contact among patients, healthcare 24
providers, and other staff is clearly and directly related to public health during this crisis.”); 25
Abbott
,
bears ‘no real or substantial relation’ to the state’s goal of protecting public health in the face of 27
the COVID-19 pandemic.”) (quoting
Jacobson
,
28
The Court next turns to whether the Order effects a “plain, palpable invasion” of Plaintiffs’
Second Amendment rights.
See Jacobson
,
purpose of self-defense.”
McDonald
,
Plaintiffs argue that “the effect of Defendants’ expansive Orders and actions, among other
restrictions,” is an absolute firearm ban of the kind rejected in
Heller
. ECF No. 20-1 at 18. They
contend that, “[d]ue to the ever-expanding nature of the laws regulating firearm transfers, in-
person visits to gun stores and retailers are the only legal means for ordinary, law-abiding citizens
to acquire and purchase” firearms and ammunition within California.
Id.
at 18-19. These laws
include requirements that all firearm transfers be processed through licensed dealers,
of firearms, it makes it less convenient for Plaintiffs to exercise their right to acquire firearms rather than eliminating the right all together. ECF No. 55 at 2. As discussed in the mootness section above, see supra IV.A., it is far from clear that curbside pickup and delivery of firearms is permitted under California law. Accordingly, the Court will treat the Order as barring most individuals in Alameda County from purchasing firearms. Because it is undisputed that outdoor shooting ranges have been permitted to operate in all Defendant Counties since the April 29 Orders, however, any infringement on the right to maintain proficiency with firearms is clearly not categorical.
As to the prohibition on in-store sales of firearms and ammunition, Defendants argue that
the Order’s “temporal limits make any categorical analysis inappropriate.” ECF No. 46 at 22.
Defendants also emphasize certain exceptions to California’s requirement that licensed dealers
participate in firearms transactions. at 23. For example, firearms may be transferred between
family members, presuming the acquirer has a valid FSC,
see
Defendants also make a brief argument that Individual Plaintiffs do not have standing
because the Order “only limit[s] arms-related commerce: the ability to acquire
new
weapons,
more
ammunition, and to target-shoot at commercial facilities,” and “[n]one of the individual Plaintiffs
claims he or she did not already own guns and ammunition before the Health Orders issued, and
none of their organizational counterparts claim their members are so situated either.” ECF No. 46
at 23-24. Because “there is no evidence that any of these Plaintiffs has been deprived – even
temporarily – of the core Second Amendment right to self-defense,” Defendants argue, Plaintiffs
lack standing “to argue that [the Order] would be unconstitutional if applied to third parties in
hypothetical situations.” at 24 (quoting
Cty. Ct. of Ulster Cty., N.Y. v. Allen
,
proposition that the
Heller
right is limited to a single firearm. Moreover, the Ninth Circuit has
observed that “permitting an overall ban on gun sales ‘would be untenable under
Heller
’ because a
total prohibition would severely limit the ability of citizens to
acquire
firearms.”
Teixeira
, 873
F.3d at 688 (quoting
United States v. Marzzarella
,
Turning to the merits of Plaintiffs’ argument, the Court concludes that the Order is not the
equivalent of the handgun ban in
Heller
. The District of Columbia made it a crime to carry an
unregistered firearm and prohibited the registration of handguns, thus “totally ban[ning] handgun
possession in the home.”
Heller
,
The same reasoning leads the Court to conclude that the Order does not effect a “plain, palpable invasion” of Plaintiffs’ Second Amendment rights. This conclusion is supported by the fact that the Order, like the vaccination law in Jacobson and unlike the handgun ban in Heller , is facially neutral. Apart from a reference to “shooting and archery ranges” as an example of recreational facilities that were forced to close by the early Orders, see Mar. 31 Order ¶ 13.a.iii.3., [9] none of the Orders have mentioned firearms. While Plaintiffs provide examples of the Orders being enforced against firearms retailers, see ECF No. 20-1 at 10-12, 14, they do not argue that the Orders are being selectively enforced, i.e., that other non-exempt businesses are not also being forced to close. Plaintiffs make a passing reference to “Defendants’ motivations,” but offer in support only a statement attributed to the mayor of San Jose: “We are having panic buying right now for food. The one thing we cannot have is panic buying of guns.” ECF No. 20-1 at 25; ECF No. 20-2 at 56. The mayor’s statement postdates the issuance of the Orders and was not made by a decision-maker in any of the four Counties – much less the County that remains a Defendant in this case – and so provides no basis to question Defendants’ motivations. Nor does it undermine the facial neutrality of the Orders.
Courts applying
Jacobson
to other COVID-19 restrictions have found that facial neutrality
weighed in favor of upholding them.
See Abbott
,
For these reasons, the Court concludes that the Order cannot “be affirmed to be, beyond
question, in palpable conflict with” the Second Amendment.
See Jacobson
,
c. Second Amendment Standard
“To evaluate post-
Heller
Second Amendment claims, the Ninth Circuit, consistent with the
majority of our sister circuits, employs a two-prong test: (1) the court ‘asks whether the challenged
law burdens conduct protected by the Second Amendment’; and (2) if so, what level of scrutiny
should be applied.’”
Fyock
,
i. Burden on Conduct Protected by Second Amendment
Defendants argue that Individual and Retailer Plaintiffs’ claims fail at step one of the
Chovan
test because “the Constitution does not confer a freestanding right on commercial
proprietors to sell firearms.” ECF No. 46 at 21 (quoting
Teixeira
,
“The appropriate level of scrutiny for laws that burden conduct protected by the Second
Amendment ‘depend[s] on (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.’”
Lynch
,
The Court now turns to the severity of that burden. In the Ninth Circuit, “laws which
regulate only the ‘manner in which persons may exercise their Second Amendment rights’ are less
burdensome than those which bar firearm possession completely.”
Jackson
,
Because the Order regulates the purchase and sale of firearms rather than barring their
“possession completely,”
Jackson
,
Pushing the other way is the fact that, unlike the regulations in
Lynch
, the Order does not
“leave open alternative channels for self-defense.”
See Jackson
,
Plaintiffs argue that this burden merits strict scrutiny, but they cite no case in which the
Ninth Circuit – or any other circuit – has applied anything but intermediate scrutiny to a law that
burdens a Second Amendment right. Presumably, this is because “[t]here is . . . near unanimity in
the post-
Heller
case law that when considering regulations that fall within the scope of the Second
Amendment, intermediate scrutiny is appropriate.”
Silvester
,
did not raise it.
See Bateman v. Perdue
, No. 5:10-cv-265, ECF Nos. 54 (Dec. 15, 2010), 61 (Dec.
16, 2010), 64 (Dec. 16, 2010), 73 (Jan. 10, 2011). Thus, the
Bateman
court had no occasion to
determine whether the
Jacobson
framework applied. Also, the restrictions at issue in
Bateman
were more onerous than that at issue here, because they were certain to recur – and recur
frequently.
Bateman
,
Weighing these considerations, the Court concludes that intermediate scrutiny is
appropriate. Without question, the Order burdens the core Second Amendment right “to possess a
handgun in the home for the purpose of self-defense.”
McDonald
,
iii. Application of Intermediate Scrutiny
Intermediate scrutiny is a two-step test that requires “(1) the government’s stated objective
to be significant, substantial, or important; and (2) a reasonable fit between the challenged
regulation and the asserted objective.”
Jackson
,
The stated objective of the Orders is “to slow the spread of COVID-19.” May 18 Order
¶ 2. Defendants’ second stated objective – conserving health care resources,
see id.
; ECF No. 46
at 14 – follows naturally from this first goal. Plaintiffs concede that “Defendants have a legitimate
interest in reducing the population’s exposure to COVID-19,” a pandemic that is “serious in
nature.” ECF No. 20-1 at 6-7, 30. They argue, however, that “a governmental interest that is as
inconsistently pursued as Defendants’ here is not and cannot be a substantial one for constitutional
purposes.” at 24. But this argument is really about fit, not interest. Defendants do not
seriously contest that preventing the spread of a deadly global pandemic is a “significant,
substantial, or important” government interest.
See Jackson
,
As for fit, Defendants submit declarations from public health officials and experts supporting their argument that the shelter-in-place order is necessary to prevent the spread of COVID-19. Dr. Pan, the Alameda County health officer, states that “[c]oronaviruses spread through the air by coughing or sneezing and close personal contact, or by touching contaminated objects or surfaces and then touching your mouth, nose, or eyes.” ECF No. 46-6 ¶ 8. Moreover, it is not possible to know who is infected, because “[s]ome people who are infected remain asymptomatic and spread the virus.” Id. That means that a person might be at risk for contracting COVID-19 if “they were in close contact (within six feet for a prolonged period of time) with a person confirmed to have COVID-19, for up to 48 hours before the onset of symptoms, or in contact with an asymptomatic carrier of the virus.” Id. Accordingly, Dr. Pan concludes that “[c]ompliance with social distancing guidelines is critical because people without symptoms could be contagious.” Id. Sheltering in place, which is “more rigorous than social distancing,” id. ¶ 11, “is proven to slow the spread of the virus if everyone decreases the number of people with whom they come in contact because it decreases the number who might get sick from someone who is infected,” id. ¶ 12. The “restrictions on mobility and social distancing requirements imposed by the prior orders” are “slowing the rate of increase in community transmission and confirmed cases by limiting interactions among people, consistent with scientific evidence of the efficacy of similar measures in other parts of the country and world.” Id. ¶ 17.
Dr. Rutherford, the epidemiologist leading the COVID-19 contact tracing project, states that “[t]he effectiveness of containment measures depends not only on how soon they are enacted but how strict they are.” ECF No. 46-7 ¶ 11. “Exceptions must be narrowly defined because each exception increases the risks of community transmission.” “Implementing social distancing protocols for non-essential activities and businesses lowers but does not eliminate the increased transmission risks those activities and businesses create.” ¶ 12. Thus, for example, Alameda County’s March 16 Order “prohibited all public and private gatherings of any number of people occurring outside a household or living unit, except for the limited purposes of performing [e]ssential [a]ctivities, such as obtaining food and medication, visiting a health care professional, or obtaining products needed to maintain safety and sanitation”; “prohibited all travel, except [e]ssential [t]ravel”; and required “[a]ll businesses with a facility in the County, except [e]ssential [b]usinesses . . . to cease all activities except certain [m]inimum [b]asic [o]perations. . . .” ECF No. 46-6 ¶¶ 13. This Order was issued “based on evidence of increasing occurrence of COVID-19 within the County and throughout the Bay Area, scientific evidence and best practices regarding the most effective approaches to slow the transmission of communicable diseases generally and COVID-19 specifically, and evidence that the age, condition, and health of a significant portion of the population of the County places it at risk for serious health complications, including death, from COVID-19. ” ECF No. 46-6 at 21.
Plaintiffs do not challenge the accuracy or credibility of this evidence. Rather, they fault
these declarations for not offering “any explanation as to why less restrictive alternatives – like
those used in other retail settings Defendants consider essential – cannot be applied to firearm and
ammunition retailers, why Plaintiffs and others like them must be prevented from travelling to and
from firearms retailers in other jurisdictions, or how the orders are narrowly tailored as to them.”
ECF No. 48 at 14. The Ninth Circuit, however, does not require narrow tailoring for firearm
regulations subject to intermediate scrutiny.
See Pena
,
The Court concludes that Defendants have demonstrated a reasonable fit between the
burden the Order places on Second Amendment rights and Defendants’ goal of reducing COVID-
19 transmission. In
Jackson
, the Ninth Circuit found that San Francisco’s ban on the sale of
“hollow-point ammunition,” which the city had found more fatal than other types of ammunition,
was substantially related to the city’s interest in reducing the fatality of shootings. 746 F.3d at
969-70. The court rejected the plaintiff’s arguments that “San Francisco could have adopted less
burdensome means of restricting hollow-point ammunition, for example by prohibiting the
possession of hollow-point bullets in public, but allowing their purchase for home defense.”
Id.
at
969. Even if this were correct, the Court held, “intermediate scrutiny does not require the least
restrictive means of furthering a given end.”
Id.
Rather, a “city must be allowed a reasonable
opportunity to experiment with solutions to admittedly serious problems.”
Id.
at 969-70 (quoting
City of Renton v. Playtime Theatres, Inc.
,
The fit between the Order and Alameda County’s interest in reducing the spread of
COVID-19 is much closer than the fits upheld in
Jackson
,
Lynch
, and
Silvester
. While the
regulations in all of those cases affected some number of people who did not actually pose the
danger the regulations were intended to abate, here, every resident of Alameda County is a
potential vector for COVID-19. Defendants have produced evidence that any decrease in human
contact and in-person interaction helps slow the virus’s spread, and thus that any exception to the
shelter-in-place order makes the order less effective at achieving its goal. This evidence
forecloses Plaintiffs’ argument that allowing firearms and ammunition retailers to operate under
social distancing and sanitation guidelines would constitute a less restrictive alternative that would
further Defendants’ goals. According to the evidence Defendants have submitted, adding these
retailers to the list of essential businesses exempted from the Order would “increase[] the risks of
community transmission” even when social distancing protocols are followed, as those protocols
“lower[] but do[] not eliminate the increased transmission risks.” ECF No. 46-7 ¶¶ 11-12. And
even if this alternative did further the County’s goals, “intermediate scrutiny does not require the
least restrictive means of furthering a given end.”
Jackson
,
By contrast, Defendants here have offered a “convincing reason” for exempting the
essential businesses enumerated in the Orders.
See
ECF No. 46-7 ¶ 11 (explaining that exempted
businesses “such as grocery stores, pharmacies, laundromats/dry cleaners, and hardware stores are
deemed essential because they provide for the basic needs of residents for food, medicine,
hygiene, and shelter. If people have no opportunity to wash their clothes, they can get fleas and
ticks, which can spread other infectious diseases, such as flea-borne (murine) typhus and trench
fever. . . . And hardware stores provide supplies needed to maintain shelter, such as heat, indoor
plumbing, and refrigeration, that will require maintenance and repair to keep them working.”).
Perhaps a different governmental entity could conclude that firearms and ammunition retailers and
shooting ranges are essential, and some have.
See
Cybersecurity & Infrastructure Security
Agency,
Guidance on the Essential Critical Infrastructure Workforce
(last revised Apr. 24, 2020),
https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_
Critical_Infrastructure_Workers_4.pdf (guidance from United States Department of Homeland
Security recommending that state and local jurisdictions classify “[w]orkers supporting the
operation of firearm, or ammunition product manufacturers, retailers, importers, distributors, and
shooting ranges” as essential).
[11]
Unlike the regulatory scheme in
Greater New Orleans
, however,
the efficacy of the Order is not “undermine[d]” or “counteract[ed]” by the exclusion of firearms
and ammunition retailers from the list.
For these reasons, the Order survives intermediate Second Amendment scrutiny and Plaintiffs have failed to demonstrate a likelihood of success on their Second Amendment claim. 2. Due Process Claim
Plaintiffs premise their due process claim on the argument that the Order and Defendants’
enforcement of it is “arbitrary and capricious, overbroad, [and] unconstitutionally vague.” ECF
No. 20-1 at 26. To the degree Plaintiffs intend to invoke substantive due process to argue that the
Order arbitrarily designates certain businesses as exempt or overbroadly bars other businesses
from operating under the essential business exemption, this claim is precluded by the principle that
“if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process.”
County of Sacramento v. Lewis
, 523
U.S. 833, 843 (1998) (quoting
United States v. Lanier
,
For these reasons, Plaintiffs fail to show a likelihood of success on the merits of their due process claim.
C. Other Factors
Defendants do not dispute that, had Plaintiffs been able to establish a likelihood of success
on the merits, they would also have established irreparable harm. ECF No. 46 at 29;
see
Melendres v. Arpaio
,
In the First Amendment context, “[t]he public interest in maintaining a free exchange of
ideas, though great, has in some cases been found to be overcome by a strong showing of other
competing public interests, especially where the First Amendment activities of the public are only
limited, rather than entirely eliminated.”
Sammartano v. First Judicial Dist. Ct.
,
Given Defendants’ showing that any loosening of the shelter-in-place order would increase the risk of transmission of COVID-19 – not just for those who visit particular retailers, but for everyone in the community – the Court concludes that this case also presents a situation in which “otherwise avoidable human suffering” would result from the issuance of the requested injunction. ; see also City and County of San Francisco v. U.S. Citizenship & Immigration Servs. , 408 F. Supp. 3d 1057, 1127 (N.D. Cal. 2019) (finding that public interest “in decreasing the risk of preventable contagion” weighed in favor of enjoining rule that would lead to Medicaid disenrollment and thus decreased vaccination rates). The Court thus finds that the public’s interest in controlling the spread of COVID-19 outweighs its interest in preventing the constitutional violations alleged here, especially given that Plaintiffs have failed to establish a likelihood of success on the merits. For these reasons, the balance of equities and public interest weigh against a preliminary injunction.
CONCLUSION
For the foregoing reasons, Plaintiffs are not entitled to the “extraordinary remedy” of a
preliminary injunction.
See Winter
,
IT IS SO ORDERED.
Dated: June 2, 2020 ______________________________________ JON S. TIGAR United States District Judge
Notes
[1] In their motion, Plaintiffs refer to the Orders as “substantively identical.” ECF No. 20-1 at 10, 12, 13. Unless otherwise indicated, the Court looks to Alameda County’s Orders, see ECF No. 46-6 at 11-17, 19-33, as representative of all four Counties’ Orders.
[2] The Court grants Defendants’ request for judicial notice of these four Orders, which are matters
26
of public record.
See
ECF No. 50;
see
[3] The Court grants all three Counties’ requests for judicial notice of these Orders. See supra , 2 28 n.3. The Court is not aware of a new order issued by Alameda County.
[4] Defendants argued at the hearing and in their supplemental brief that, beginning with the April 26 29 Orders, outdoor shooting ranges have been permitted to operate. See ECF No. 55 at 7. Plaintiffs do not dispute this interpretation of the Orders. See ECF No. 57 at 2 (arguing only that 27 use of an indoor range is prohibited). The Court will address this issue in its consideration of Plaintiffs’ likelihood of success on their Second Amendment claim. 28
[5] Plaintiffs submit a supplemental declaration from Plaintiff Roman Kaplan, co-owner of Plaintiff
27
City Arms East LLC, in support of this argument. ECF No. 57-1. The Court disregards this
evidence because it was presented for the first time on reply.
See In re Hansen Natural Corp. Sec.
28
Litig.
,
[6] Defendants also alternatively argue that the Court should apply rational basis review because the Order is a “neutral and generally applicable regulation[]” that only “incidentally implicates arms.” ECF No. 46 at 15. Defendants admit that this approach “has not been applied in Second Amendment contexts,” citing only two dissents by Ninth Circuit judges as support for applying it here. at 20. The Court will not apply rational basis review.
[7] Jacobson , which involved a Fourteenth Amendment claim, appears to apply to all constitutional claims. Defendants do not argue, however, that Jacobson should govern Plaintiffs’ due process claim. Because the Court finds that Plaintiffs have not demonstrated a likelihood of success on the merits of that claim under the traditional due process framework, the Court need not consider whether the claim would also be precluded under Jacobson .
[8] In their reply brief, Plaintiffs mention in a footnote that they “cannot even privately transfer
25
firearms and ammunition under State law.” ECF No. 48 at 15 n.4. Without further explanation of
why the exceptions cited by Defendants do not apply in the current circumstances, the Court
26
disregards this argument.
See Estate of Saunders v. Comm’r
,
[9] This Order sweeps broadly to include “shared facilities for [any] recreational activities outside of residences, including, but not limited to, golf courses, tennis and pickle ball courts, rock parks, climbing walls, pools, spas, shooting and archery ranges, gyms, disc golf, and basketball courts.” Id. Moreover, outdoor shooting ranges have, along with other outdoor recreational facilities, been permitted to reopen starting with the April 29 Orders. See supra , 7 n.5.
[10] The Court notes that, given that the current Order allows outdoor shooting ranges to operate, it leaves ample opportunity to maintain proficiency in firearms use and thus any remaining burden on this right is insubstantial.
[11] While Plaintiffs attempted to submit this guidance via their counsel’s declaration,
see
ECF No.
20-2 at 129-30, the exhibit omits the pertinent portion of the guidance. The Court thus takes sua
sponte judicial notice of this document, which is a public record.
See
[12] Plaintiffs briefly argue that the Order is “made even more constitutionally suspect because it bypassed the constitutionally authorized method for enacting laws,” thus “violat[ing ] separation of powers.” ECF No. 20-1 at 27. As Plaintiffs provide no authority for this argument and do not respond to Defendants’ counter-arguments in their reply brief, the Court declines to consider this argument.