United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS [Re Docket No. 24]
RONALD M. WHYTE, District Judge.
Defendants Monterey County District Attorney's Office and Ryan McGuirk move to dismiss plaintiff Salvador Reynaga's First Amended Complaint (FAC). The FAC alleges that the defendants' refusal to return plaintiff's gun to him until he completes a required background check is a violation of his Fourth Amendment rights. For the reason explained below, the court grants defendants' motion to dismiss without prejudice to seeking relief in state court.
Reynaga was a police officer in Seaside, California. He was arrested on or about March 7, 2011, for sexual advances he allegedly made toward an individual while on duty. As part of the investigation, personnel from the District Attorney's Office searched plaintiff's home pursuant to a search warrant and seized his iPhone and Glock 40 gun.
After Reynaga was acquitted in November 2012 of the various sexual assault charges, the Monterey County Superior Court ordered the District Attorney's Office to return Reynaga's iPhone and Glock. See Dkt. No. 24-2, Ex. A2 at 5 (Hearing Tr.). The Superior Court also opined that it did not see a misdemeanor as prohibiting Reynaga from owning a gun. Id. The court did not explicitly discuss the applicability of California Penal Code §§ 33850 et seq., and whether a background check would be necessary before the firearm was returned to Reynaga. Id.
After the court's order, Reynaga attempted to retrieve his property from the District Attorney's Office. After some delay, the iPhone was returned. Supervising District Attorney Investigator Ryan McGuirk, however, advised Reynaga that the Glock would not be returned until he submitted a form pursuant to California Penal Code §§ 33850 et seq. showing proof of eligibility from the California Department of Justice (Cal DOJ).
California Penal Code §§ 33850 et seq. outline the procedures for the return of a firearm in the custody of a court or law enforcement agency. A claimant seeking the return of a firearm from a court or law enforcement agency must submit an application to Cal DOJ that includes identifying information about the claimant and descriptive information (make, model, serial number, etc.) about the firearm. Cal. Penal Code § 33850. Cal DOJ then performs a background check to be sure the claimant is eligible to receive the firearm. Id. § 33865 (a). If the claimant is eligible, then the applicant is given a written notification to present to the agency for the return of the firearm. Id. § 33865(c)(3). Section 33855 allows a law enforcement agency or court that has taken custody of any firearm to return a firearm only on one of two conditions:
a. The individual presents to the agency or court notification of a determination by the department pursuant to Section 33865 that the person is eligible to possess firearms.
b. If the agency or court has direct access to the Automated Firearms System, the agency or court has verified that the firearm is not listed as stolen pursuant to Section 11108, and that the firearm has been recorded in the Automated Firearms System in the name of the individual who seeks its return....
Because Reynaga believes the District Attorney's Office is illegally refusing to return his gun, he filed a complaint under 42 U.S.C. § 1983 in this court alleging, among other things, that retention of his gun violates his Fourth Amendment rights.
The only remaining claim in this case is Reynaga's § 1983 claim. The District Attorney's Office and McGuirk move to dismiss it. Defendants' position is that California Penal Code § 33850 requires a background check prior to returning the Glock. Reynaga has not alleged that § 33850 is unconstitutional, and defendants maintain that requiring compliance with the statute cannot be a violation of Reynaga's civil rights. See Dkt No. 24. Reynaga contends that issue preclusion prohibits the defendants from requiring a background check because the Monterey County Superior Court already ordered the return of the gun. Reynaga also contends that forcing him to complete the background check is an unreasonable seizure under the Fourth Amendment.
A. Retention of Glock Did Not Constitute a Seizure
Reynaga asserts that requiring a background check is a violation of his Fourth Amendment rights. The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. Reynaga does not contest the lawfulness of the original seizure of his Glock on March 7, 2011. However, he claims that the District Attorney's Office by continuing to withhold his Glock after the Superior Court ordered it returned constitutes a seizure in violation of his Fourth Amendment rights. However, "the Fourth Amendment protects an individual's interest in retaining possession of property but not the interest in regaining possession of property." See Fox v. Van Oosterum, 176 F.3d 342, 350 (6th Cir. 1999). Here, the initial seizure was lawful and the plaintiff does not contest the seizure of items taken from his home on March 7, 2011. See Dkt No. 23. The refusal to return the Glock neither brought about an additional seizure nor changed the character ...