William Drummond v. Township of Robinson ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1394
____________
WILLIAM DRUMMOND; GPGC LLC; SECOND AMENDMENT FOUNDATION, INC.,
Appellants
v.
TOWNSHIP OF ROBINSON; MARK DORSEY, Robinson Township Zoning Officer,
in his official and individual capacities
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-18-cv-01127)
District Judge: Honorable Marilyn J. Horan
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 2, 2019
Before: SHWARTZ, FUENTES and FISHER, Circuit Judges.
(Filed: November 14, 2019)
____________
OPINION*
____________
FISHER, Circuit Judge.
Pursuant to a local zoning ordinance, Robinson Township denied William
Drummond’s application to open and operate a gun club. Drummond, the Greater
Pittsburgh Gun Club, LLC, and the Second Amendment Foundation, Inc. (collectively,
“Drummond”) then brought suit, alleging that Robinson Township and Zoning Officer
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Mark Dorsey (collectively, the “Township”) had infringed their Second and Fourteenth
Amendment rights.
The District Court granted the Township’s motion to dismiss, and it denied
Drummond’s request for a preliminary injunction as moot. We will vacate and remand
for further proceedings with respect to the facial Second Amendment challenges
contained in Counts I and II1 and the request for a preliminary injunction. We will affirm
the District Court’s judgment in all other respects.2
Second Amendment challenges are evaluated using a two-step framework.3
First, courts must “ask whether the challenged law imposes a burden on conduct falling
within the scope of the Second Amendment’s guarantee.”4 Then, if the law imposes
such a burden, courts must evaluate it “under some form of means-end scrutiny.”5
Drummond argues that the District Court erred in holding, at Step One, that Sections
601 and 311(D) of the Robinson Township Zoning Ordinance do not burden his Second
Amendment rights and that, as a result, the District Court also erred by failing to reach
Step Two.
1
Counts I, II, and III also contain as-applied Second Amendment challenges to the
zoning ordinance. The District Court properly held that as-applied challenges are not
ripe until the plaintiff “give[s] the local zoning hearing board the opportunity to review
the zoning officer’s decision.” J.A. 17. Because Drummond has not done so, we will
affirm the dismissal of the as-applied challenges.
2
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1). “[T]he District Court’s decision on a
motion to dismiss” is reviewed de novo. Taksir v. Vanguard Grp., 903 F.3d 95, 96 (3d
Cir. 2018). “With respect to the denial of a preliminary injunction, we review findings
of fact for clear error, legal conclusions de novo, and the decision to grant or deny the
injunction for an abuse of discretion.” Holland v. Rosen, 895 F.3d 272, 285 (3d Cir.
2018).
3
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).
4
Id.5
Id.2
“In order to uphold the constitutionality of a law imposing a condition on the
commercial sale of firearms, a court necessarily must examine the nature and extent of
the imposed condition.”6 The District Court determined, at Marzzarella Step One, that
the nature and extent of Sections 601 and 311(D) of the Robinson Township Zoning
Ordinance do not substantially burden Second Amendment rights because they leave
open alternative channels for law-abiding citizens to acquire a firearm or maintain
proficiency in the use of firearms through use of a time, place, and manner test.
We agree with Drummond that this was error. The District Court essentially
collapsed the two-step Marzzarella test when it used a time, place, and manner test to
evaluate the Step One inquiry—whether the law places a burden on Second Amendment
rights. Marzzarella demonstrates that in determining whether the law places a burden
on Second Amendment rights, a textual and historical analysis is required.7 This
analysis should apply the textual and historical understanding of the Second
Amendment as enunciated in Heller to the conduct at issue: acquiring firearms and
maintaining proficiency in their use.8 A time, place, and manner test is not an
6
Id. at 92 n.8.
7
Id. at 89-93. (“Our threshold inquiry, then, is whether § 922(k) regulates conduct that
falls within the scope of the Second Amendment. . . . In defining the Second
Amendment, the Supreme Court began by analyzing the text . . . .”; “This reading is
also consistent with the historical approach Heller used to define the scope of the
right. . . .”).
8
See District of Columbia v. Heller, 554 U.S. 570, 579-619 (2008). Our sister circuits
have conducted such an analysis and their opinions are illustrative. See, e.g., Teixeira
v. Cty. of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (“[T]he core Second
Amendment right to keep and bear arms for self-defense ‘wouldn’t mean much’
without the ability to acquire arms. (quoting Ezell v. City of Chicago, 651 F.3d 684,
704 (7th Cir. 2011))); Ezell, 651 F.3d at 708 (“[T]he right to maintain proficiency in
firearm use [is] an important corollary to the meaningful exercise of the core right to
possess firearms for self-defense.”).
3
appropriate means to determine, at Step One, whether a burden has been placed on
Second Amendment rights, and is instead appropriate under the Step Two inquiry.9 The
District Court erred when it did not perform a textual and historical analysis, but rather
skipped ahead to the time, place, and manner question.
Drummond’s remaining constitutional arguments fail. The zoning officer’s
conduct did not violate his Fourteenth Amendment rights to substantive due process
because the zoning officer’s conduct is not conscience-shocking. Stalling, delay, and
failure to notify about meetings do not rise to the level of the “most egregious” official
conduct, which is required in order to shock the conscience.10
Section 601 does not violate the Fourteenth Amendment’s Equal Protection
Clause by requiring gun clubs to operate as nonprofits while allowing other businesses
within the zoning district to operate for a profit. Because gun clubs are not a protected
class under the Equal Protection Clause, the ordinance is subject to only rational-basis
review.11 The profit versus nonprofit distinction in Section 601 bears a rational
relationship to the Township’s permissible objective of nuisance prevention because the
commercial nature of a shooting range is reasonably related to the intensity of land use
and the impact that such use may have on neighboring properties.
9
Marzzarella, 614 F.3d at 95-99 (borrowing from First Amendment time, place, and
manner analysis in determining appropriate level of scrutiny).
10
Eichenlaub v. Township of Indiana, 385 F.3d 274, 285 (3d Cir. 2004) (quoting United
Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 399 (3d Cir.
2003)).
11
Congregation Kol Ami v. Abington Township, 309 F.3d 120, 133 (3d Cir. 2002)
(“[L]and use ordinances that do not classify by race, alienage, or national origin, will
survive an attack based on the Equal Protection Clause if the law is ‘reasonable, not
arbitrary’ and bears ‘a rational relationship to a (permissible) state objective.’” (quoting
Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974))).
4
After dismissing Drummond’s constitutional claims, the District Court denied
his request for a preliminary injunction as moot. In light of our decision to vacate and
remand for further proceedings on the facial Second Amendment claims, Drummond’s
preliminary injunction request is no longer moot to the extent it is based on those claims.
For the foregoing reasons, we will vacate and remand with respect to
Drummond’s facial Second Amendment claims and the denial of the preliminary
injunction. We will affirm in all other respects.
5