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Richard Enos, Jeff Bastasini, Louie v. Eric Holder

July 7, 2011

RICHARD ENOS, JEFF BASTASINI, LOUIE MERCADO, WALTER GROVES, MANUEL MONTEIRO, EDWARD ERIKSON, VERNON NEWMAN, JEFF LOUGHRAN AND WILLIAM EDWARDS,
PLAINTIFFS,
v.
ERIC HOLDER, AS UNITED STATES ATTORNEY GENERAL, AND ROBERT MUELLER, III, AS DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS.



ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‟ MOTION TO DISMISS

This matter is before the Court on Defendants‟ Eric Holder and Robert Mueller, III (collectively "Defendants") Motion to Dismiss (Doc. #11) Plaintiffs‟ Richard Enos ("Enos"), Jeff Bastasini ("Bastasini"), Louie Mercado ("Mercado"), Walter Groves ("Groves"), Manuel Monteiro ("Monteiro"), Edward Erickson ("Erickson"), Vernon Newman ("Newman"), Jeff Loughran ("Loughran") and William Edwards ("Edwards") First Amended Complaint ("FAC") (Doc. #8). The above-named plaintiffs opposed the motion. A hearing on the motion to dismiss was held on May 4, 2011. At the close of the hearing, the Court dismissed plaintiffs Edwards and Loughran, for improper 2 joinder and venue (Doc. #20) and ordered further briefing on 3

Defendants‟ supplemental authorities. Having reviewed the 4 additional briefing, and based on the moving papers and oral 5 argument, the Court GRANTS in part and DENIES in part the motion to 6 dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

Enos, Bastasini, Mercado, Groves, Monteiro, Erickson, and Newman (collectively "Plaintiffs") have each been convicted of misdemeanor domestic violence in California, and allege that they wish to purchase a gun but are prevented from doing so by federal law. Plaintiffs challenge the government‟s interpretation of 18 U.S.C. § 922(g)(9), which makes it a federal offense for any person who has been convicted of a misdemeanor crime of domestic violence to possess a firearm, and the government‟s interpretation of 18 U.S.C. § 922(d)(9), which makes it unlawful to sell a firearm or ammunition to a person who has been convicted of misdemeanor domestic violence. Though California law allows for the restoration of gun rights after a period of ten years from the misdemeanor domestic violence conviction, (see CA Penal Code § 12021(c)(1) and (3)), the FAC alleges that federal law only provides for the restoration of gun rights for those with felony convictions. Accordingly, Plaintiffs allege that federal law creates a lifetime ban on gun ownership for those with misdemeanor domestic violence convictions.

Plaintiffs allege that they were each convicted of misdemeanor domestic violence over ten years ago, and under California law their gun rights have been restored. Accordingly, they argue that 2 the federal law barring them from gun ownership is a violation of 3 their constitutional rights. Plaintiffs allege that 18 U.S.C. § 922(g)(9) and (d)(9) violate their Second, First, Tenth, and 5 Fifth Amendment rights. Plaintiffs also seek declaratory and 6 injunctive relief that they are not subject to the prohibitions set 7 forth in 18 U.S.C. § 922(d)(9) and 922(g)(9) and that these two 8 statutes are unconstitutional on their face and as applied to 9

Plaintiffs. Defendants argue that most of the plaintiffs lack standing to challenge the law, and should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1). Defendants further argue that the constitutional claims fail under Federal Rules of Civil Procedure 12(b)(6), for failure to state a claim.

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 Rules of Civil Procedure 12(b)(1). When a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff has the burden of establishing subject matter jurisdiction. See Rattlesnake Coalition v. United States Envtl. Protection Agency, 509 F.3d 1095, 1102, FN 1 (9th Cir. 2007).

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 Rules 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 2 all reasonable inferences in favor of the plaintiff. Scheuer v. 3 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 4 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 5 322 (1972). Assertions that are mere "legal conclusions," however, 6 are not entitled to the assumption of truth. Ashcroft v. Iqbal, 7 129 S. Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 8 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a 9 plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rules 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. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Id.

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 the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. Sherman v. Stryker Corp., 2009 2 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations 3 omitted). Here, Plaintiffs request judicial notice of ATF Form 4 4473, the form that must ...


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