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Richard Enos, Jeff Bastasini, Louie v. Eric Holder

February 28, 2012

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



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter 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 2 was held on January 25, 2012. For the reasons set forth below, 3 the Court GRANTS the motion to dismiss. 4 5

I. FACTUAL ALLEGATIONS AND SUMMARY OF ARGUMENTS

Plaintiffs, each convicted in California of a misdemeanor 7 crime of domestic violence over ten years ago, allege that they are 8 allowed to possess a firearm under California law but are 9 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 misdemeanors 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).*fn1 In 1996, Congress amended the Violence Against Women Act to include 18 U.S.C. § 922(g)(9), a prohibition against the possession of firearms by misdemeanants convicted of domestic violence. In 1999, Enos petitioned for and received a record clearance under California Penal Code § 1203.4. He also filed a petition for restoration of civil rights under Penal Code § 12021(c)(3),*fn2 which was granted by the Honorable Thang 2 N. Barrett. Accordingly, Enos was permitted to own a firearm by 3 the State of California at that time. However, when he attempted 4 to purchase a gun in 2004, he was denied the purchase and advised 5 that the denial was being maintained by the U.S. Department of 6 Justice, Federal Bureau of Investigation, and the National Instant 7 Criminal Background Check System (NICS). 8

Bastasini, Mercado, Groves and Monteiro each plead no contest 9 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, and were prohibited from doing so by NICS, after answering "YES" to questions 11.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 11.i on ATF Form 4473.

Plaintiffs allege that under California law they are permitted to own a firearm, but that they are prohibited 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. 2 § 922(d)(9) as unconstitutional under the Second Amendment, both 3 facially and as applied to Plaintiffs. 4

Defendants' motion to dismiss raised a number of arguments in 5 support of dismissing Plaintiffs' claims, several of which were 6 resolved at the hearing. The parties reached a stipulation (Doc. 7 #61) that Plaintiffs may add the United States of America as a 8 defendant, to satisfy the requirements of 18 U.S.C. § 925A. 9

Accordingly, "Defendants" in this order includes the United States of America. Plaintiffs conceded 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).*fn3

Accordingly those allegations are dismissed from the SAC.

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 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 Rule of 2 Civil Procedure 12(b)(6). In considering a motion to dismiss, the 3 court must accept the allegations in the complaint as true and draw 4 all reasonable inferences in favor of the plaintiff. Scheuer v. 5 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 6 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 7 322 (1972). Assertions that are mere "legal conclusions," however, 8 are not entitled to the assumption of truth. Ashcroft v. Iqbal, 9 129 S. Ct. 1937, 1950 (2009), (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a 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 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. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Dismissal with prejudice and without ...


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