Rodriguez v. City of San Jose

930 F.3d 1123

Lori RODRIGUEZ; Second Amendment Foundation, Inc. ; Calguns Foundation, Inc., Plaintiffs-Appellants,

v.CITY OF SAN JOSE; San Jose Police Department; Steven Valentine, Defendants-Appellees.

No. 17-17144

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 14, 2019 San Francisco, California

Filed July 23, 2019

Donald E. J. Kilmer Jr. (argued), San Jose, California, for Plaintiffs-Appellants.

Matthew W. Pritchard (argued), Deputy City Attorney; Margo Laskowska, Senior Deputy City Attorney; Nora Frimann, Assistant City Attorney; Richard Doyle, City Attorney; Office of the City Attorney, San Jose, California; for Defendants-Appellees.

Joseph G.S. Greenlee, Millennial Policy Center, Denver, Colorado, for Amicus Curiae Millennial Policy Center.

C.D. Michel, Alexander A. Frank, Sean A. Brady, and Anna M. Barvir, Michel & Associates P.C., Long Beach, California, for Amicus Curiae California Rifle & Pistol Association Inc.

Sharon Kim, Christopher Y. L. Yeung, and Philip A. Irwin, Covington & Burling LLP, New York, New York; Joshua Scharff and Jonathan E. Lowy, Brady Center to Prevent Gun Violence, Washington, D.C., for Amicus Curiae Brady Center to Prevent Gun Violence.

T. Peter Pierce, Steven A. Nguy, and Kyle H. Brochard, Richards, Watson & Gershon, San Francisco, California, for Amici Curiae League of California Cities and International Municipal Lawyers Association.

Before: J. Clifford Wallace, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges.

FRIEDLAND, Circuit Judge:

Immediately after detaining Edward Rodriguez for a mental health evaluation in response to his wife Lori Rodriguez’s 911 call, San Jose police officer Steven Valentine seized twelve firearms from the Rodriguez residence without a warrant.¹ The City of San Jose ("the City") later petitioned in California Superior Court to retain the firearms under California Welfare & Institutions Code § 8102 on the ground that the firearms would endanger Edward or another member of the public. Lori objected that the confiscation and retention of the firearms, in which she had ownership interests, violated her Second Amendment right. The court granted the City’s petition over Lori’s objection. Lori appealed that decision, and the California Court of Appeal affirmed.

After Lori re-registered the firearms in her name alone and obtained clearances to own the guns from the California Department of Justice ("California DOJ"), the City still declined to return the guns. Lori sued the City, the San Jose Police Department, and Officer Valentine (collectively, "Defendants") in federal district court. She argued that the seizure and retention of the firearms violated her rights under the Second, Fourth, Fifth, and Fourteenth Amendments, and that she was also entitled to return of the firearms under California Penal Code § 33800 et seq. The district court rejected these arguments and accordingly granted summary judgment for Defendants. Lori appealed. We hold that Lori’s Second Amendment claim is barred by issue preclusion and that her Fourth Amendment claim fails on the merits. We therefore affirm.²

I.

A.

Late one night in January 2013, Lori called 911 to ask the San Jose Police Department to conduct a welfare check on her husband, Edward. This was not the first time that Lori had made such a call—San Jose police officers had been to the Rodriguez home on prior occasions because of Edward’s mental health problems. Before they arrived, Officer Valentine and the other responding officers learned that there were guns in the home.

At the Rodriguez home, Officer Valentine found Edward ranting about the CIA, the army, and people watching him. Edward also mentioned "[s]hooting up schools" and that he had a "gun safe full of guns." When asked if he wanted to hurt himself, Edward attempted to break his own thumb.

Concluding that Edward was in the midst of an acute mental health crisis that made him a danger to himself and others, Officer Valentine and other officers on the scene decided to seize and detain him pursuant to California Welfare & Institutions Code § 5150 for a mental health evaluation. Section 5150 allows an officer, upon probable cause that an individual is a danger to himself or another because of a mental health disorder, to take the person into custody and place him in a medical facility for 72-hour treatment and evaluation. Cal. Welf. & Inst. Code § 5150 (2013); see also Cal. Welf. & Inst. Code § 5150(a) (2019) (same). The officers detained Edward and placed him in restraints in an ambulance to travel to a nearby hospital for a psychological evaluation.

After removing Edward from the home, the officers spoke with Lori, who confirmed that there were firearms in the home in a gun safe. Officer Valentine informed her that, pursuant to California Welfare & Institutions Code § 8102, he would have to confiscate the guns. Section 8102(a) requires law enforcement officers to confiscate any firearm or other deadly weapon that is owned, possessed, or otherwise controlled by an individual who has been detained under California Welfare & Institutions Code § 5150.

With Lori providing the keys and the combination code, the officers opened the safe and found twelve firearms, including handguns, shotguns, and semi-automatic rifles. One of the firearms was a personal handgun registered to Lori alone, which she had obtained prior to marrying Edward. The other eleven were either unregistered or registered to Edward. Lori gathered cases for the guns while the officers packed up and documented them. She specifically objected to the removal of her personal handgun, but the officers confiscated it along with the other eleven firearms.

Meanwhile, in the ambulance, Edward repeatedly broke the restraints holding him to a gurney. Once at the hospital, Edward was evaluated and determined to be a danger to himself, so he was admitted.³ He was discharged approximately one week later.

B.

One month after the officers confiscated the firearms, the City filed a petition in California Superior Court under California Welfare & Institutions Code § 8102(c), seeking an order of forfeiture based on a determination that the guns’ return would likely endanger Edward or others. Edward did not respond to the petition, but Lori intervened, asserting outright ownership of her personal handgun and community property ownership of the other firearms. Lori argued that the court had no power to interfere with her Second Amendment right to keep and bear arms because, even if Edward was prohibited from possessing and owning guns, she was not prohibited. In support, she emphasized that she had obtained a notice of eligibility to own and possess guns from the California DOJ Bureau of Firearms. Lori further represented to the court that, if returned, the guns would be secured in her gun safe and that she had changed the combination code so that Edward would not have access to them. The return of the guns, she contended, therefore would not present a danger to Edward or others.

The court granted the City’s petition. The court acknowledged that Lori could legally "walk ... into any gun store and qualify to buy a handgun ... and put [it] in that gun safe." But it held that the City was nevertheless authorized to take the "low hanging fruit" of the guns the Rodriguezes already owned, irrespective of Lori’s ability to buy more, because of the danger that Edward presented. Stating that it was not "ignoring [Lori’s] Constitutional Rights," the court concluded that it was not appropriate to return the firearms given the public safety concerns at stake.

Lori appealed to the California Court of Appeal, arguing that the superior court order was not supported by substantial evidence of danger and that it violated her Second Amendment right to keep and bear arms. In April 2015, the appellate court affirmed. City of San Jose v. Rodriguez , No. H40317, 2015 WL 1541988 (Cal. Ct. App. Apr. 2, 2015) (" Rodriguez I "). The court held that there was substantial evidence supporting the superior court’s determination that returning the guns to the Rodriguez home would likely result in endangering Edward or others. Id. at *5–6, 9. On the constitutional issue, the court held that Lori had not demonstrated a viable Second Amendment claim under the United States Supreme Court’s case law. Id. at *6–9. The court also explained that Lori had "other viable options," including selling or storing the guns outside the home, and "that the procedure provided by [California Penal Code] section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori."⁴ Id. at *7–8. Ultimately, the court concluded "that Lori ha[d] failed to show that the trial court’s ... order violate[d] the Second Amendment." Id. at *9.

Lori did not seek review in the California Supreme Court or the United States Supreme Court.

Following the California Court of Appeal’s decision, Lori took the necessary steps under Penal Code §§ 33850 –65 to become eligible for the City to return her the firearms. She changed the registration and ownership so that all twelve guns were in her name only and obtained gun release clearances from the California DOJ. She then asked the City again to return the guns. The City denied the request one month later.

Lori subsequently sued Defendants under 42 U.S.C. § 1983 in the United States District Court for the Northern District of California. Lori was joined in the lawsuit by co-plaintiffs the Second Amendment Foundation, Inc. ("SAF") and the Calguns Foundation, Inc. ("CGF") (collectively, "Plaintiffs"). The Complaint alleged violations of Lori’s Second, Fourth, Fifth, and Fourteenth Amendment rights, as well as a state law claim under California Penal Code § 33800 et seq. Plaintiffs sought return of the guns, damages to compensate Lori, and injunctive and declaratory relief to prevent future violations of Lori’s rights and the rights of the organizations’ members.

Defendants moved for summary...