ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
This mаtter is before the Court on Defendants’ Eric Holder and Robert Mueller, III (collectively “Defendants”) Motion to Dismiss (Doc. #32) Plaintiffs’ Richard Enos (“Enos”), Jeff Bastasini (“Bastasini”), Louie Mercado (“Mercado”), Walter Groves (“Groves”), Manuel Monteiro (“Monteiro”), Edward Erickson (“Erickson”), and Vernon Newman (“Newman”) Second Amended Complaint (“SAC”) (Doc. # 27). The Motion to Dismiss is brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The above-named plaintiffs opposed the motion. A hearing on the motion to dismiss was held on January 25, 2012. For the reasons set forth below, the Court GRANTS the motion to dismiss.
I. FACTUAL ALLEGATIONS AND SUMMARY OF ARGUMENTS
Plaintiffs, each convicted in California of a misdemeanor crime of dоmestic violence over ten years ago, allege that they are allowed to possess a firearm under California law but are prohibited from possessing a firearm under federal law. Accordingly, they ask the Court for declaratory relief restoring their right to lawfully possess a firearm under federal law, and challenge the constitutionality of 18 U.S.C. § 922(g)(9), the federal statute which prohibits them from possessing a firearm.
Enos plead no contest to a misdemeanor charge under California Penal Code § 273.5(a) in 1991. In 1993 the California Legislature amended Penal Code § 12021 and added charges under Penal Code § 273.5(a) to the list of misdemeаnors which prohibit a person from acquiring a firearm for ten years after the date of conviction. After ten years, the right to possess a firearm is restored under California Penal Code 12021(c)(1).
Bastasini, Mercado, Groves and Monteiro each plead no contest or guilty to a misdemeanor charge under California Penal Code 273.5, between 1990-1992. They later petitioned for and received record clearance under California Penal Code § 1203.4. They each attempted to purchase a gun in July 2011, аnd were prohibited from doing so by NICS, after answering “YES” to questions ll.i on ATF Form 4473, which asks if a person has been convicted of a misdemeanor crime of domestic violence.
Erickson and Newman were both convicted of misdemeanor crimes of domestic violence, in 1996 and 1997, respectively. They later petitioned for and received record clearance under California Penal Code § 1203.4. Edwards and Newman both attempted to purchase firearms in July 2011 and were prohibited from doing so after answering “YES” to question ll.i on ATF Form 4473.
Plaintiffs allege that under California law they are permitted to own a firearm, but that they are рrohibited from doing so by federal law. Accordingly, Plaintiffs seek declaratory relief from the Court to restore their right to possess a firearm under federal law. The SAC also challenges 18 U.S.C § 922(g)(9) and 18 U.S.C. § 922(d)(9) as unconstitutional under the Second Amendment, both facially and as applied to Plaintiffs.
Defendants’ motion to dismiss raised a number of arguments in support of dismissing Plaintiffs’ claims, several of which were resolved at the hearing. The parties reached a stipulation (Doc. # 61) that Plaintiffs may add the United States of America as a defendant, to satisfy the requirements of 18 U.S.C. § 925A. Accordingly, “Defendants” in this order includes the United States of America. Plaintiffs concеded that they no longer seek to maintain their facial challenge to 18 U.S.C. § 922(g)(9), nor their facial and as-applied challenges to 18 U.S.C. § 922(d)(9).
II. OPINION
A. Legal Standard
1. Rule 12(b)(1) dismissal
A party may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). When a defendant brings a mo
2. Rule 12(b)(6) Dismissal
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes,
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to аmend the complaint pursuant to Federal Rule of Civil Procedure 15(a). “Absent prejudice, or a strong showing of any [other relevant] factor[ ], there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, L.L.C. v. Aspeos, Inc.,
3. Judicial Notice
Generally, the court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. There are two exceptions: when material is attached to the complaint or relied on by the complaint, or when thе court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. Sherman v. Stryker Corp.,
B. Claims for Relief
1. Declaratory Relief Claims
The first, second and third claims for relief in the SAC seek declaratory relief that Plaintiffs satisfy the requirements of 18 U.S.C. § 921(a)(33)(B)(ii) to possеss a firearm despite being convicted of a misdemeanor crime of domestic violence. 18 U.S.C. § 922(g)(9), also known as the Lautenberg Amendment, makes it unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Under 18 U.S.C. § 925A, any per
18 U.S.C. § 921(a)(33) defines a “misdemeanor crime of domestic violence” as a misdemeanor that has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parеnt or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse parent, or guardian of the victim. However, the statute provides that a person shall not be considered to have been convicted of such an offense unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case, and if the prosecution for an offense entitled the person to a jury trial, the case was tried by a jury or thе person knowingly and intelligently waived the right to a jury trial, by guilty plea or otherwise. 18 U.S.C. § 921(a)(33)(B)(i).
18 U.S.C. § 921(a)(33)(B) further provides that “a person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or recеive firearms.” 18 U.S.C. § 921(a)(33)(B)(ii).
Plaintiffs argue that under federal law they should be considered as having had their civil rights restored, because by operation of law (the passage of ten years as provided for by Penal Code 12021) their right to possess a firearm has been restored by the State of California. Alternatively they argue that they were not convicted of misdemeanor domestic violence under 18 U.S.C. § 921(a)(33)(B)(i) because they were unable to make a knowing and intelligent waiver of their right to a jury trial at the time of their convictions, since 18 U.S.C. § 922(g)(9) had not yet been enacted.
Defendants moved to dismiss the declaratory relief claims, arguing that Plaintiffs were convicted of misdemeanor domestic violence because they knowingly and intelligently waived their rights to a jury trial, and that restoration by operation of California law of Plaintiffs’ right to possess a firearm does not qualify as restoration of civil right under 18 U.S.C. § 921(a)(33)(B)(ii).
a. Waiver of Right to Jury Trial
As an initial matter, Plaintiffs cited no authority for the proposition that, in a civil proceeding brought under 18 U.S.C. § 925A, the Court would have jurisdiction to determine that an individual’s waiver of his or her right to a jury trial that was made in a state criminal proceeding was not knowing and intelligent. Even assuming the Court has jurisdiction, Plaintiffs’ arguments lack merit because when a person enters a guilty or no contest plea, he or she must only be advised of all direct consequences of the conviction. Bunnell v. Superior Court,
Plaintiffs contend that Padilla v. Kentucky, — U.S. -,
■ b. Restoration of Civil Rights
Defendants also argue that Plaintiffs have not had their civil rights restored, and have not otherwise satisfied the requirements of 18 U.S.C. § 921(a)(33)(B)(ii) to regain their right to possess a firearm. Though Plaintiffs sought relief under California Penal Code § 1203.4 to have their records cleared, the Ninth Circuit has already held that this does not qualify as expungement under 18 U.S.C. § 921(a)(33)(B)(ii). Jennings v. Mukasey,
Defendants assert that, as has been recognized by numerous courts, the test for whether civil rights have been restored is whether an individual’s right to vote, sit on a jury, or hold elected office has been restored. See United States v. Andaverde,
Because Plaintiffs do not allege they lost the right to vote, sit on a jury or hold public office, Defendants argue they cannot allege that their rights have been restored within the meaning of the statute. See Logan v. United States,
Plaintiffs contend that following the Supreme Court’s decisions in District of Columbia v. Heller,
In response, Defendants argue that the Court should still follow Brailey; that its timing as a pr e-Heller case is inconsequential for several reasons. First, the right to bear arms recognized by Heller is not among the cluster of rights (the right to vote, sit on a jury, and hold public office) typically recognized by courts when analyzing whether an individual’s civil rights have been restored. See e.g. Andaverde,
Second, Defendants note that 18 U.S.C. § 921(a)(33)(B)(ii) refers to civil rights in the plural, thus even if the right to possess a firearm was recognized under state law as having been restored, this would be insufficient to fulfill the restoration of rights contemplated by the statute. See e.g. United States v. Keeney,
Having carefully reviewed the Heller and McDonald opinions, the Court notes that throughout both opinions the majority refers to a singular right to keep and bear arms protected by the Second Amendment. The Heller majority did note that Justice Stevens in his dissent “believes that the unitary meaning of ‘keep and bear Arms’ ” is established by the Second Amendment’s calling it a “right” (singular) rather than “rights” (plural) ... There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” Heller at 591,
Lastly, Defendants urge the Court to look to congressional intent, reasoning that Congress, when enacting § 922(g)(9) and § 921 and in 1996, did not intend for the right to bear arms to be included as a “civil right” for purposes of restoration under 18 U.S.C. § 921(a)(33)(B)(ii). Indeed, as Defendants argue, common sense dictates that the Legislature in 1996 could not have intended “civil rights” to include a right that the Supreme Court did not recognize until Heller in 2008.
Plaintiffs were unable to cite to any case supporting their argument that the restoration of an individual’s right to possess a firearm constitutes a restoration of “civil rights” under 18 U.S.C. § 921(a)(33)(B)(ii). To find that Plaintiffs have stated a claim for the declaratory relief that they sеek, this Court would be required to interpret 18 U.S.C. § 921 (a)(33)(B)(ii) in a way that no other court has, thus far, interpreted this statute. Likewise, Plaintiffs were unable to cite to any case law in support of their argument that Brailey and the cases cited above regarding the meaning of “civil rights restored” should no longer be followed because they were decided prior to Heller. The Court finds that as a matter of law, Plaintiffs have not alleged facts showing that their civil rights have been restored. Even Enos, whose record clearance was granted by a Superior Court judge, has not shown that he meets the requirements of 18 U.S.C. § 921(a)(33)(B)(ii).
Though Plaintiffs ask the Court to base a new interprеtation of the statute on the Supreme Court’s holdings in Heller and McDonald, this Court finds greater merit in Defendants argument that it is the role of the legislature, not this Court, to change or re-write the statute at issue in this case. As was discussed at the hearing, nothing prevents Plaintiffs from petitioning Congress to change the law, as citizens often do when they are unhappy with the way a bill is written. Defendants argued that Plaintiffs are free to ask their legislator(s) to sponsor a bill before Congress to change the language of 18 U.S.C. § 921(a)(33)(B)(ii), and raise before Congress the same arguments that Plaintiffs raise before this Court.
2. Second Amendment Constitutional Claim
Plaintiffs’ fourth claim for relief argues that absent declaratory relief from the Court finding that they have satisfied the requirements of 18 U.S.C. § 921(a)(33)(B)(ii), 18 U.S.C. § 922(g)(9) amounts to a lifetime ban on their right to own a firearm, in violation of the Seсond Amendment. Defendants contend that the SAC fails to state a claim, because 18 U.S.C. § 922(g)(9) is constitutional, even when, as alleged by Plaintiffs, it results in a lifetime ban on firearm possession.
In United States v. Vongxay,
The Ninth Circuit did not apply any level of scrutiny in reaching their decision on the constitutionality of § 922(g)(1) undеr the Second Amendment. It was not until the Court analyzed the accompanying equal protection claim that they applied constitutional scrutiny. No equal protection claim is alleged in the SAC, and Defendants urge this Court to follow the Ninth Circuit by deciding the Second Amendment claims without applying constitutional scrutiny. Though the parties argued at length during oral argument about the appropriate level of scrutiny to apply to a Second Amendment challenge, the appropriate level of scrutiny has not been designated by the Supreme Court or the Ninth Circuit, and this Court need not reach that question in order to decide this motion.
Numerous courts have found 18 U.S.C. § 922(g)(9) to be presumptively lawful under District of Columbia v. Heller,
Defendants argue that the Ninth Circuit has already held that felons are not protected by the Second Amendment in Vongxay, and the Court should extend similar reasoning to domestic violence misdemeanants. All felons, whether violent or not, are disqualified from protection under the Second Amendment. Vongxay,
Plaintiffs have argued that unless the Court agrees to reinterpret § 921(a)(33)(B)(ii) and grant Plaintiffs’ the declaratory relief that they seek, then § 921(a)(33)(B)(ii) along with § 922(g)(9) results in an unconstitutional lifetime ban on Plaintiffs’ ability to possess firearms. Plaintiffs did not cite to any cases which have found § 922(g)(9) to be constitutionally suspect, but argue that without a means to restore their rights or have their convictions set aside or otherwise pardoned or expunged, § 922(g)(9) cannot pass constitutional muster.
Defendants note that courts have said that for the same reasons the Supreme Court articulated for stating that the long standing prohibitions referred to in Heller remain presumptively lawful (i.e., the prohibitions pertaining to felons and the mentally ill), there is an even stronger reason for finding that persons convicted of misdemeanor crimes of domestic violence should not be protected by the Second Amendment. See e.g. Smith,
Thus, even if § 922(g)(9) imposes a lifetime'ban on a domestic violеnce misdemeanant’s ability to possess a firearm, Defendants argue that such a result is constitutional due to the nature of the specific crime committed. Defendants cite Skoien,
It is clear from the federal law that the majority of domestic violence offenders will not regain their firearms possession right. However, there are procedures for the restoration of the right ... It is up to state legislatures to constrict or expand the ease with which convicted misdemeanants may apply for a receive relief under these measures.
The Court finds Defendants’ arguments, and the case law, to be persuasive that § 922(g)(9) is a presumptively lawful categorical ban on firearm possession. Keeping guns out of the hands of those convicted of domestic violence fits squarely into the prohibitions noted by Heller. Plaintiffs, as convicted domestic violence misdemeanants, fall within that categorical ban, thus the Second Amendment does not apply to them. Indeed, Plaintiffs themselves do not argue against the extensive case law that has found § 922(g)(9) to be presumptively lawful.
Upon determining that the statute is presumptively lawful, a court may end its inquiry there. See e.g. White,
The SAC also attempts to plead an as-applied challenge. To raise a successful as-applied challenge, a plaintiff must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Sеcond Amendment protections. United States v. Barton,
The Court notes that at oral argument, for the first time, Defendants raised the issue that Plaintiffs’ Second Amendment “as-applied” challenge could actually be characterized as a facial overbreadth challenge, because § 922(g)(9) has not bеen “applied” to Plaintiffs. Defendants argue that it has not been applied because Plaintiffs have not been arrested and charged with possession of a firearm in violation of § 922(g)(9), which is the route by which challenges to § 922(g)(9) typically reach courts. Defendants stated that Plaintiffs would have standing to bring an over-breadth challenge, but. did not explicitly argue that Plaintiffs lack standing to bring an “as-applied” challenge. Plaintiffs for their part did not dispute the characterization of their challenge as being one of overbreadth, though the SAC pleads that the statute is unconstitutional as applied to them, not that Congress overrеached by creating a perpetual disqualification for persons convicted of misdemeanor domestic violence.
Such an overbreadth argument was advanced by the defendant in Skoien, 614
Here, the parties did not engage in extensive argument over whether the SAC presents an overbreadth or as-applied challenge, and Defendants did not brief the issue in their motion to dismiss or reply briefs. However, in the Court’s view the characterization of the precise nature of Plaintiffs’ Second Amendment challenge does not change the outcome. Whether this Court views the SAC as bringing an as-applied challenge or an оverbreadth challenge, the Court does not find that Plaintiffs have stated a claim for violation of the Second Amendment. The Court finds that § 922(g)(9) is a presumptively lawful categorical ban under Heller, and extends the Ninth Circuit’s ruling in Vongxay to hold that § 922(g)(9) does not violate the Second Amendment as applied to Plaintiffs, convicted domestic violence misdemeanants. Plaintiffs have not set forth facts to rebut that presumption of lawfulness, distinguishing them from other domestic violence misdemeanants sufficiently to state an as-applied or over-breadth challenge. Accordingly, Plaintiffs’ have not stated a claim for violation of the Second Amendment. Plaintiffs have already amended the complaint twice and further amendment would be futile. Accordingly the dismissal is with prejudice.
III. ORDER
The Motion to Dismiss is GRANTED, and Plaintiffs’ SAC is DISMISSED, WITH PREJUDICE. The March 21, 2012 hearing on Plaintiffs motion for summary judgment is vacated.
IT IS SO ORDERED.
Notes
. Effective January 1, 2012, California Penal Code § 12021(c)(1) was repealed and reenacted without substantive change as California Penal Code § 29805. For purposes of
. Effective January 1, 2012, California Penal Code § 12021(c)(3) was repealed and reenacted without substantive change as California Penal Code § 29860. For purposes of clarity, this opinion will continue to refer to the statute as California Penal Code § 12021(c)(3).
. 18 U.S.C. § 922(d)(9) makes it unlawful for any person to sell a firearm or ammunition to a person who has been convicted of misdemeanor domestic violence.
. The Court notes however that the Skoien Court’s subsequent statement, that California law provides a means for expungement of misdemeanor domestic violence convictions through California Penal Code 1203.4a, is a misstatement of California law. Additionally, the California legislature recently amended 1203.4a foreclosing Plaintiffs' ability to seek relief through that statute. As discussed at oral argument, neither 1203.4 or 1203.4a are available to Plaintiffs to seek the equivalent of an expungement or set aside of their convictions under 18 U.S.C. § 921 (a)(33)(B)(ii).