United States District Court, N.D. California
ORDER RE: MOTION TO DISMISS COUNT ONE OF THE INFORMATOIN
MARIA-ELENA JAMES, Magistrate Judge.
Defendant Francisco Javier Lopez Madrid ("Defendant") is charged with violations of: (1) 18 U.S.C. § 13, assimilating California Penal Code section 25400(a)(1) - carrying a concealed weapon, a Class A misdemeanor; and (2) 21 U.S.C. § 844(a) - Possession of a Controlled Substance, a Class B misdemeanor. Dkt. No. 1 ("Information"). He now moves to dismiss Count I of the Information on the ground that California Penal Code section 24500(a)(1), and the policies implementing that statute, are facially unconstitutional and burden the Second Amendment right to keep and bear arms as applied in San Francisco. Dkt. No. 10. For the reasons set forth below, the Court DENIES Defendant's Motion to Dismiss Count I of the Information.
On October 6, 2013, at approximately 2:46 p.m., Defendant flagged down United States Park Police Officer William Corn to ask for assistance in recovering his keys from his locked car. Linker Decl., Ex. 3 ("Incident Rpt."), p. 3, Dkt. No. 11. While waiting for a "lock out kit" to arrive, the officer smelled marijuana and inquired when Defendant had last smoked. Id. Defendant admitted to smoking marijuana every day. Id. When asked if he had any more marijuana, Defendant produced a small bag from his pocket and a jar containing approximately two ounces of marijuana from his backpack. Id. Defendant gave Officer Corn permission to search his car. Id. The search revealed a loaded handgun underneath the driver's seat. Id.
Defendant was then arrested, processed and released. Id. He was charged with violation of: (1) 18 U.S.C. § 13, assimilating California Penal Code section 25400(a)(1) - carrying a concealed weapon, a Class A misdemeanor; and (2) 21 U.S.C. § 844(a) - Possession of a Controlled Substance, a Class B misdemeanor. Information, at 1. At the time Defendant was arrested, he was 20 years old. Incident Rpt., p. 1. Among other criteria, a person must be at least 21 years of age to be eligible to apply for a concealed weapons permit in San Francisco. Linker Decl., Ex. A ("S.F.P.D. Concealed Carry Permit Pol."), p. 1; Linker Decl., Ex. B ("S.F. Sheriff's Dept. Concealed Carry Permit Pol."), p. 1.
On March 27, 2013, Defendant moved to dismiss Count One of the Information charging him with violation of 18 U.S.C. § 13 pursuant to Federal Rules of Criminal Procedure 12(b)(2) and (3), on the grounds that the charged California Penal Code statute and the policies implementing that statute are facially unconstitutional and burden his Second Amendment right to keep and bear arms. Dkt. No. 10. The Government filed an Opposition on April 15, 2014 (Dkt. No. 12), and Defendant filed a Reply on April 29, 2014 (Dkt. No. 15). The Court heard oral argument on May 22, 2014.
Under Federal Rule of Criminal Procedure 12(b), "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). A motion to dismiss is generally "capable of determination" before trial "if it involves questions of law rather than fact." United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993) (citations & internal quotations omitted); United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986). When considering a pretrial motion to dismiss all or part of an information, the court "must presume the truth of the allegations in the charging instruments." United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). A Rule 12(b) motion to dismiss is not the proper way to raise a factual defense. Nukida, 8 F.3d at 669 (citing United States v. Smith, 866 F.2d 1092, 1096 n. 5 (9th Cir. 1989)).
Defendant argues that based on the recent Ninth Circuit decision in Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), California Penal Code section 25400(a)(1), is unconstitutional as it is applied in San Francisco because it operates as an outright ban on carrying concealed weapons for self-defense, which burdens his Second Amendment right to bear arms. Mot. at 3. The Government argues that the motion should be denied because: (1) Peruta did not invalidate section 25400(a)(1); and (2) even if Peruta invalidated the portion of San Francisco's concealed carry permit policy which requires an applicant to establish "good cause" for such a permit, Defendant did not and could not have satisfied the other requirements for obtaining the permit. Opp'n at 1-2.
A. Whether Dismissal Is Required under Peruta
In Peruta, citizens who were unable to get a permit to carry a concealed weapon under San Diego's "good cause" requirements filed a federal civil rights action challenging the constitutionality of California Penal Code sections 26150 and 26155 as applied by San Diego County. Peruta, 742 F.3d at 1148. The Ninth Circuit held that the Second Amendment's guarantee of an individual right to bear arms specifically protects "the carrying of an operable handgun outside the home for the lawful purpose of self-defense." Id. at 1166. After articulating this right, Peruta further held that San Diego County's policies for acquiring a concealed carry permit infringed that constitutional right because the county's "good cause" requirement prevented typical responsible law abiding citizen in San Diego County from bearing arms in public for self-defense:
In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for "one's personal safety alone" does not satisfy the "good cause" requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show "a set of circumstances that distinguish [him] from the mainstream and cause[ ] him... to be placed in harm's way." Given this requirement, the "typical" responsible, law-abiding citizen in San ...