Jordan Gallinger v. Xavier Becerra , 898 F.3d 1012 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORDAN GALLINGER; BRIAN HILL; No. 16-56125
BROOKE HILL; CRAIG DELUZ; SCOTT
DIPMAN; ALBERT DUNCAN; TRACEY D.C. No.
GRAHAM; LISA JANG; DENNIS 2:16-cv-02572-
SERBU; MICHAEL VEREDAS; BRO-AFM
FIREARMS POLICY FOUNDATION;
FIREARMS POLICY COALITION;
MADISON SOCIETY FOUNDATION; OPINION
THE CALGUNS FOUNDATION,
Plaintiffs-Appellants,
v.
XAVIER BECERRA, in his official
capacity as Attorney General of
California,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted February 7, 2018
Pasadena, California
Filed August 3, 2018
2 GALLINGER V. BECERRA
Before: M. Margaret McKeown, * William A. Fletcher,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
SUMMARY **
Civil Rights
The panel affirmed the district court’s dismissal of an
action challenging California’s 2015 amendment, Senate
Bill 707, to its Gun-Free School Zone Act.
In 1994, the California Legislature enacted the Gun-Free
School Zone Act, which banned the possession of firearms
on school grounds and within school zones (the area within
1,000 feet of school grounds). The Act exempted two
groups: (1) individuals licensed to carry a concealed firearm
under California law; and (2) retired peace officers
authorized to carry a loaded firearm. In 2015, the
Legislature passed Senate Bill 707, which preserved the
retired-officer exception for firearm possession on school
grounds, as well as within school zones, but prohibited
concealed carry weapon holders from possessing a firearm
on school grounds. Plaintiffs alleged that Senate Bill 707
*
Judge McKeown was drawn to replace Judge Reinhardt on the
panel following his death. Ninth Circuit General Order 3.2h. Judge
McKeown has read the briefs, reviewed the record, and listened to oral
argument.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GALLINGER V. BECERRA 3
violated the Equal Protection Clause of the Fourteenth
Amendment because it treated concealed weapon permit
holders differently from retired peace officers.
The panel first rejected plaintiff’s argument that Silveira
v. Lockyer, controlled the outcome. In Silveira, the court
held that the provision of California’s Assault Weapons
Control Act exempting retired peace officers from a
statewide ban on assault weapons violated the Equal
Protection Clause. 312 F.3d 1052, 1089-92 (9th Cir. 2002),
abrogated on other grounds by District of Columbia v.
Heller, 554 U.S. 570, 626 (2008). The panel held that there
was a meaningful difference between the conduct regulated
by the Assault Weapons Control Act and Senate Bill 707.
The panel held that permitting retired peace officers to carry
firearms other than assault weapons on school grounds was
sufficiently connected to the goal of ensuring such officers’
safety and public safety to survive rational-basis review.
The panel also rejected plaintiff’s contention that Senate
Bill 707 violates the Equal Protection Clause because it was
enacted to favor a politically powerful group and to disfavor
a politically unpopular one. The panel held that plaintiffs
failed to plausibly allege that the Legislature enacted Senate
Bill 707 to harm concealed carry permit holders.
COUNSEL
Stephen M. Duvernay (argued) and Bradley A. Benbrook,
Benbrook Law Group PC, Sacramento, California, for
Plaintiffs-Appellants.
John D. Echevarria (argued), Deputy Attorney General;
Mark R. Beckington, Supervising Deputy Attorney General;
4 GALLINGER V. BECERRA
Marc LeForestier, Acting Senior Assistant Attorney
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Los Angeles, California; for Defendant-
Appellee.
Ilya Shapiro and Thomas Berry, Cato Institute, Washington,
D.C., for Amicus Curiae Cato Institute.
OPINION
OWENS, Circuit Judge:
Plaintiffs-Appellants (“Plaintiffs”), individuals with
permits to carry concealed weapons (and interested
organizations), appeal from the dismissal of their challenge
to California’s 2015 amendment to its Gun-Free School
Zone Act. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
A. California’s Gun-Free School Zone Act of 1995
and Senate Bill 707
In 1994, the California Legislature (“the Legislature”)
enacted the Gun-Free School Zone Act, which banned the
possession of firearms on school grounds and within school
zones (the area within 1,000 feet of school grounds). Gun-
Free School Zone Act of 1995, sec. 1, § 626.9(b), (e)(1),
1994 Cal. Stat. 6191, 6191–92. The Act exempted two
groups: (1) individuals licensed to carry a concealed firearm
under California law (“CCW permit holders”); and
(2) “retired peace officer[s] . . . authorized to carry a loaded
GALLINGER V. BECERRA 5
firearm” (“retired peace officers”). § 626.9(l)–(m), 1994
Cal. Stat. at 6193.
In 2015, the Legislature considered an amendment to the
Gun-Free School Zone Act, Senate Bill 707 (“SB 707”), that
would give school officials control “of who, if anyone,”
could bring firearms onto their campuses. See Cal. S.
Comm. on Pub. Safety, Analysis of S.B. 707, 2015–2016
Reg. Sess., at 5 (Apr. 13, 2015). SB 707, sponsored by State
Senator Lois Wolk, was introduced in response to the
“disturbing increase in the number of active shooter
incidents on . . . campuses across the country” and the
“alarming number of sexual assaults on college and
university campuses.” Id. Recognizing that “some gun
rights proponents in other states ha[d] sponsored legislation
to increase the opportunity for students and teachers to bring
firearms on school campuses with CCWs, claiming this will
deter” sexual assaults and active shooters, Senator Wolk
highlighted research “indicat[ing] that bringing more
firearms on campus will lead to more campus violence and
increase the danger to students and others on campus.” Id.
Senator Wolk thus introduced SB 707 to “ensure that
students and parents who expect a campus to be safe and
‘gun free’ can be confident that their expectation is being
met.” Id.
In returning control over firearm possession to school
officials, the version of SB 707 that Senator Wolk originally
introduced would have eliminated the Gun-Free School
Zone Act’s exception authorizing CCW permit holders and
retired peace officers to carry firearms “on school grounds,”
though it would have retained the exceptions authorizing
both groups to carry firearms “within school zones.” Id.; see
also S.B. 707, sec. 1, § 626.9(c)(5)–(6), (l), (o), 2015–2016
Reg. Sess. (Cal. 2015) (as introduced).
6 GALLINGER V. BECERRA
But after substantial opposition from law enforcement
organizations, 1 the Legislature passed a revised version of
SB 707 that preserved the retired-officer exception for
firearm possession on school grounds, as well as within
school zones. 2 See Cal. Assemb. Comm. on Pub. Safety,
Analysis of S.B. 707, 2015–2016 Reg. Sess., at 1 (July 13,
2015). Under the version of SB 707 that took effect, CCW
permit holders could possess a firearm within school zones,
but not on school grounds. 3 See Act of Oct. 10, 2015, sec.
1, § 626.9(b), (c)(5), 2015 Cal. Stat. 5689, 5690–92.
1
We GRANT Plaintiffs’ motion for judicial notice, which contains,
among other documents, pre-amendment letters of opposition from law-
enforcement organizations. See Arce v. Douglas, 793 F.3d 968, 978 n.4
(9th Cir. 2015).
2
To qualify under this exception, a peace officer must be honorably
retired from service and must obtain an endorsement from the agency
from which he retired stating that the officer should be permitted to carry
a concealed weapon. Cal. Penal Code § 626.9(o)(1) (2018); see also id.
§ 25455(a)–(c). In addition to retired sheriffs, sheriff’s deputies, and
municipal-police officers, the retired-officer exception covers certain
retired employees of, among other agencies, the California Departments
of (1) Fish and Game; (2) Parks and Recreation; and (3) Forestry and
Fire Protection, as well as marshals who served at the California State
Fair and retired federal agents. Id. § 626.9(o)(1); see also id.
§§ 25450(a), 830.1(a), 830.2(e)–(i).
3
The version of SB 707 enacted in 2015 allowed individuals to
possess firearms on school grounds with the written permission of a
school-district superintendent, his or her designee, or an equivalent
school authority. Act of Oct. 10, 2015, sec. 1, § 626.9(b), 2015 Cal. Stat.
5689, 5690–92. The Gun-Free School Zone Act has since been amended
by Assembly Bill 424, which eliminated the authority of school officials
to provide such permission. See Act of Oct. 14, 2017, sec. 1, § 626.9(b),
2017 Cal. Stat. 5950, 5950 (codified at Cal. Penal Code § 626.9(b)
(2018)). This amendment does not change our analysis.
GALLINGER V. BECERRA 7
B. This Lawsuit
In 2016, Plaintiffs filed suit, arguing that SB 707’s
differential treatment of CCW permit holders and retired
peace officers lacked a rational basis and thereby violated
the Equal Protection Clause of the Fourteenth Amendment.
The district court rejected that argument. While it agreed
that the CCW permit holders and retired peace officers were
“similarly situated” for constitutional purposes, the district
court reasoned that the Legislature had a rational basis for
treating retired peace officers differently on school
grounds—unlike CCW permit holders, they risked facing
enemies made during their law-enforcement careers, and this
need for self-protection did not end when officers stepped on
campus. “Therefore,” the district court concluded,
“allowing retired peace officers an exemption from the
general ban of carrying concealed weapons on school
property is rationally related to the legitimate state interest
of ensuring their protection.”
The district court also rejected Plaintiffs’ Equal
Protection argument that the Legislature impermissibly
favored retired peace officers over “unpopular” civilian gun
owners. Relying on U.S. Department of Agriculture v.
Moreno, 413 U.S. 528, 534 (1973), the district court
reasoned that “[a]bsent evidence of explicit legislative intent
to cause harm to civilian gun owners,” Plaintiffs could not
make out an Equal Protection violation.
Plaintiffs timely appealed.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of a motion to
dismiss. See Mahoney v. Sessions, 871 F.3d 873, 877 (9th
Cir. 2017). We take all factual allegations set forth in the
8 GALLINGER V. BECERRA
complaint as true and construe them in the light most
favorable to the plaintiffs. Id. “Conclusory allegations of
law,” however, “are insufficient to defeat a motion to
dismiss.” Id. (citation omitted).
III. DISCUSSION
“The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing
Plyler v. Doe, 457 U.S. 202, 216 (1982)).
In analyzing Equal Protection claims, our “first step . . .
is to identify the state’s classification of groups.” Country
Classic Dairies, Inc. v. Milk Control Bureau, 847 F.2d 593,
596 (9th Cir. 1988). Once we have identified a classified
group, we look for a control group, Freeman v. City of Santa
Ana, 68 F.3d 1180, 1187 (9th Cir. 1995), composed of
individuals who are similarly situated to those in the
classified group in respects that are relevant to the state’s
challenged policy, Ariz. Dream Act Coal. v. Brewer,
855 F.3d 957, 966 (9th Cir. 2017). If the two groups are
similarly situated, we determine the appropriate level of
scrutiny and then apply it. Id. at 969.
Here, retired peace officers are the classified group, and
Plaintiffs argue that CCW permit holders are the control
group that is similarly situated to retired peace officers for
purposes of scrutinizing SB 707. The State counters that
retired peace officers and CCW permit holders are not
similarly situated and would have us deny Plaintiffs’ Equal
Protection claim at this step. But we need not answer this
question because, even assuming that the two groups are
GALLINGER V. BECERRA 9
similarly situated, we hold that SB 707 does not violate the
Equal Protection Clause, given the applicable level of
scrutiny. See Nader v. Cronin, 620 F.3d 1214, 1218–19 (9th
Cir. 2010) (declining to address whether two groups are
similarly situated because the classification was rationally
related to a legitimate governmental interest).
The parties agree that rational-basis review is the
appropriate standard: SB 707 implicates neither a suspect
classification nor a fundamental right. See Nordyke v. King,
681 F.3d 1041, 1043 n.2 (9th Cir. 2012) (en banc); see also
McDonald v. City of Chi., 561 U.S. 742, 786 (2010) (“We
made it clear in Heller that our holding did not cast doubt on
such longstanding regulatory measures as . . . ‘laws
forbidding the carrying of firearms in sensitive places such
as schools . . . .’” (quoting District of Columbia v. Heller,
554 U.S. 570, 626 (2008)). The parties also agree on the
basic formulation of rational-basis review—that “legislation
is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest.” City of Cleburne, 473 U.S. at 440
(citations omitted). But their agreement ends there.
Plaintiffs argue that our decision in Silveira v. Lockyer,
312 F.3d 1052 (9th Cir. 2002), abrogated on other grounds
by Heller, 554 U.S. 570, requires that we deviate from the
traditional application of rational-basis review by limiting
the range of legitimate governmental interests available to
sustain the classification drawn by SB 707. In Silveira, we
held that the provision of California’s Assault Weapons
Control Act (“AWCA”) exempting retired peace officers
from a statewide ban on assault weapons violated the Equal
10 GALLINGER V. BECERRA
Protection Clause. 4 Id. at 1089–92. In applying rational-
basis review to this law, we noted that “the retired officers’
exception [was] contrary to the legislative goals of the
AWCA.” Id. at 1091. According to Plaintiffs, this and
similar language in Silveira requires that we “scrutinize the
connection, if any, between the goal of a legislative act and
the way in which individuals are classified in order to
achieve that goal,” rather than consider any legitimate
governmental interest in creating the classification. Further,
Plaintiffs contend, the Legislature’s stated purpose in
enacting SB 707 was to reduce the number of guns on school
grounds, so, if we are to uphold the legislation, we must find
the retired-officer exception—which would presumably
increase the number of guns on campuses—rationally
related to this specific goal. We disagree.
In reviewing the AWCA’s retired-officer exception, the
Silveira court noted that the classification was “wholly
unconnected to any legitimate state interest,” id. at 1091
(emphasis added), and recognized its duty to “identify any
hypothetical rational basis for the exception,” id. at 1090.
And if this language from Silveira did not persuade us to
consider reasons for the classification beyond the
Legislature’s stated purpose for SB 707, the Supreme Court
has made clear that we should. See, e.g., Heller v. Doe ex
rel. Doe, 509 U.S. 312, 320 (1993) (“[A] classification must
4
More specifically, Silveira struck down a provision of the AWCA
that allowed designated California agencies to sell or transfer assault
weapons to sworn peace officers upon an officer’s retirement. 312 F.3d
at 1090–92. In 2010, the California Attorney General’s Office issued an
opinion concluding, in light of Silveira, that the AWCA also precludes
retired peace officers who had purchased and registered assault weapons
as active-duty officers from possessing those weapons in their
retirement. See Opinion No. 09-901, 93 Ops. Cal. Atty. Gen. 130 (Dec.
31, 2010).
GALLINGER V. BECERRA 11
be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.” (emphasis added)
(internal quotation marks omitted)); Moreno, 413 U.S. at
534 (explaining that because the “challenged statutory
classification . . . is clearly irrelevant to the stated purposes
of the Act,” it “must rationally further some legitimate
governmental interest other than those specifically stated in
the congressional ‘declaration of policy’” in order “to be
sustained”).
In applying rational-basis review, we thus find ourselves
free to consider any “legitimate governmental interest” the
State has in permitting retired peace officers to carry
firearms on school grounds. Moreno, 413 U.S. at 534. The
State claims two such interests: (1) the protection of retired
peace officers and (2) public safety. Plaintiffs contest the
validity of both.
First, Plaintiffs argue that the classification is both too
broad and too narrow to be rationally related to retired-
officer and public safety: It is too broad in that it includes
many desk officers who have never carried or needed a
firearm, and it is too narrow in that it leaves out people who
have real and dangerous enemies. But this type of reasoning
runs contrary to the Supreme Court’s clear precedent
upholding classifications that are “to some extent both
underinclusive and overinclusive” under rational-basis
review. Vance v. Bradley, 440 U.S. 93, 108 (1979). “[I]n a
case like this perfection is by no means required.” Id.
(citations omitted); see also United States v. Thornton,
901 F.2d 738, 740 (9th Cir. 1990).
Second, Plaintiffs argue that Silveira forecloses victory
for the State. Because we purportedly considered all
possible reasons for the retired-officer exception in Silveira,
12 GALLINGER V. BECERRA
see 312 F.3d at 1091, Plaintiffs contend that in so doing we
necessarily held that a classification permitting retired peace
officers to carry any kind of firearm on school grounds
cannot be rationally related to retired-officer or public
safety. Plaintiffs’ argument requires a logical leap that we
decline to take.
The legislation at issue in Silveira was the AWCA, a law
that bans the possession of assault weapons anywhere in the
state without a permit. 5 Id. at 1057. Silveira tells us that
exempting retired peace officers from that state-wide general
ban and permitting them to carry assault weapons on school
grounds is not rationally related to permissible legislative
goals, including retired officer or public safety. At the same
time, Silveira says nothing about the rational relationship
between permissible legislative goals and SB 707’s
classification permitting retired peace officers to carry other
kinds of firearms on school grounds. 6 Nor should it.
There is a meaningful difference between the conduct
regulated by the AWCA and SB 707. This is true for the
commonsense reason that assault weapons are more
dangerous than other kinds of firearms. The particular
danger posed by assault weapons motivated the Legislature
to enact the AWCA in 1989. See Silveira, 312 F.3d at 1057
(citing Roberti-Roos Assault Weapons Control Act of 1989,
sec. 3, § 12275.5, 1989 Cal. Stat. 60, 64 (codified as
amended at Cal. Penal Code § 30505(a))). More
specifically, it was the “random shooting” that year by an
5
The AWCA defines “assault weapon” both by reference to specific
makes and models, see Cal. Penal Code § 30510, and certain generic
characteristics, see id. § 30515. See also id. § 16200.
6
SB 707 defines “firearm” by reference to California Penal Code
§ 16520(a)–(d). See Cal. Penal Code § 626.9(e)(2).
GALLINGER V. BECERRA 13
individual with an AK-47 semi-automatic weapon that left
five children dead, as well as one teacher and twenty-nine
children wounded, at a California elementary school. Id.
Nearly thirty years later, these same dangers persist.
Evidenced by the mass shootings perpetrated by individuals
with military-style rifles and detachable magazines in
Newtown, Connecticut; Aurora, Colorado; San Bernardino,
California; Orlando, Florida; Binghamton, New York;
Tucson, Arizona; and Las Vegas, Nevada, among others,
these dangers have moved other state and local legislatures
to enact their own bans on assault weapons and detachable
large-capacity magazines in more recent years. See, e.g.,
Kolbe v. Hogan, 849 F.3d 114, 120 (4th Cir. 2017) (en banc)
(upholding Maryland’s Firearm Safety Act); N.Y. State Rifle
& Pistol Ass’n v. Cuomo, 804 F.3d 242, 249–51, 261–64 (2d
Cir. 2015) (upholding prohibitions on assault weapons and
large-capacity magazines in New York’s Secure
Ammunition and Firearms Enforcement Act and
Connecticut’s Act Concerning Gun Violence Prevention and
Children’s Safety); Friedman v. City of Highland Park,
784 F.3d 406, 407, 412 (7th Cir. 2015) (upholding City of
Highland Park’s ordinance prohibiting possession of assault
weapons and large-capacity magazines); Heller v. District of
Columbia, 670 F.3d 1244, 1263–64, 1269 (D.C. Cir. 2011)
(upholding District of Columbia’s Firearms Registration
Amendment Act). As the Fourth Circuit recognized in
upholding Maryland’s ban on such arms in Kolbe, when
“assault weapons and large-capacity magazines are used,
more shots are fired and more fatalities and injuries result
than when shooters use other firearms and magazines.” 7
7
The legislation at issue in Kolbe, Maryland’s Firearm Safety Act,
contained an exemption permitting retired officers to carry assault
weapons that was challenged under the Equal Protection Clause.
14 GALLINGER V. BECERRA
Kolbe, 849 F.3d at 127; see also Friedman, 784 F.3d at 409
(“We know . . . that semi-automatic guns with large-capacity
magazines enable shooters to fire bullets faster than
handguns equipped with smaller magazines.”).
The exceptional lethality of such arms was not the Fourth
Circuit’s only reason for upholding the legislature’s ban in
Kolbe. The court also highlighted a “lack of evidence that
the banned assault weapons and large-capacity magazines
are well-suited to self-defense.” Kolbe, 849 F.3d at 127; see
also Heller, 670 F.3d at 1262 (citing Gary Kleck & Marc
Gertz, Armed Resistance to Crime: The Prevalence and
Nature of Self-Defense with a Gun, 86 J. Crim. L. &
Criminology 150, 177 (1995), for the “finding that of
340,000 to 400,000 instances of defensive gun use in which
the defenders believed the use of a gun had saved a life,
240,000 to 300,000 involved handguns”). This is consistent
with the Supreme Court’s Heller decision, which recognized
that “handguns are the most popular weapon chosen by
Americans for self-defense.” 554 U.S. at 629. In short,
while the inherent risks that accompany carrying assault
weapons for self-defense or public-safety purposes may
outweigh any increased benefits to a retired officer’s or the
public’s safety, the same need not be true for other kinds of
firearms.
849 F.3d at 146. The Fourth Circuit upheld the exemption, concluding
that retired officers and the general public are not “similarly situated . . .
with respect to the banned assault weapons and large-capacity
magazines.” Id. at 147. In so doing, the Fourth Circuit acknowledged
its split from Silveira. See id. at 147 n.18. Because we hold that the
classification in SB 707 is rationally related to legitimate governmental
interests, we need not and do not address whether CCW permit holders
are similarly situated to retired peace officers for purposes of SB 707.
GALLINGER V. BECERRA 15
And when we consider the distinction between assault
weapons and other firearms through the lens of rational-basis
review, we easily conclude that Silveira does not control the
outcome here. To survive rational-basis review, the “State
may not rely on a classification whose relationship to an
asserted goal is so attenuated as to render the distinction
arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.
A classification will be upheld, however, when “the statute
is rationally related to a legitimate interest.” Id. at 440.
With regard to retired-officer safety, in Silveira we held
that permitting retired peace officers to carry assault
weapons was too attenuated from the goal of ensuring their
safety. Here, we hold that permitting retired peace officers
to carry other kinds of firearms on school grounds is
sufficiently connected to the goal of ensuring such officers’
safety to survive rational-basis review. In so doing, we
refuse to second-guess the Legislature’s determination that
(1) retired peace officers are at a heightened risk of danger
based on their previous exposure to crime, and (2) allowing
them to carry firearms other than assault weapons on school
grounds mitigates that risk and increases officer safety.
This brings us to the second reason the State advances
for upholding this classification: public safety. While
Silveira recognized that the Legislature’s interest in public
safety was too attenuated from the retired-officer
classification in the context of assault weapons, see 312 F.3d
at 1091, here we hold that the Legislature’s interest in public
safety is sufficiently connected to permitting retired peace
officers to carry other kinds of firearms on school grounds.
As the State argues, the Legislature is free to conclude that
retired peace officers, as a class, are more skilled in the use
of firearms due to the extensive training in the safe storage
and operation of firearms that law enforcement personnel
16 GALLINGER V. BECERRA
receive. And as the California College and University Police
Chiefs Association argued in opposing the original version
of SB 707 that applied the school-grounds ban equally to
retired peace officers, their training further permits the
Legislature’s conclusion that retired peace officers offer “a
distinct asset in [the] ability to carry out” the mission of
campus safety. See Cal. S. Comm. on Pub. Safety, Analysis
of S.B. 707, 2015–2016 Reg. Sess., at 6 (Apr. 13, 2015).
Accordingly, the Legislature may legitimately decide to
authorize retired peace officers, and retired peace officers
alone, to carry firearms other than assault weapons on school
grounds.
Finally, we turn to Plaintiffs’ argument that SB 707
violates the Equal Protection Clause because it was enacted
to “favor[] a politically powerful group and to disfavor a
politically-unpopular one.” Plaintiffs, as well as the Cato
Institute as amicus curiae, argue that the district court erred
in holding that Plaintiffs could not establish a violation of
the Equal Protection Clause because they failed to present
“evidence of explicit legislative intent to cause harm to
civilian gun owners.” It is true that animus need not be
explicit in the legislative history for a plaintiff to establish
impermissible intent. See City of Cleburne, 473 U.S. at 447–
50. At the same time, we do not credit conclusory
allegations of law that are unsupported by specific factual
allegations. See Mahoney, 871 F.3d at 877.
Here, Plaintiffs have not made any factual allegations to
support their theory of “impermissible animus.” Animal
Legal Def. Fund v. Wasden, 878 F.3d 1184, 1200 (9th Cir.
2018) (citation omitted). They rely on SB 707’s legislative
history, as well as letters and newspaper articles of which we
have taken judicial notice, to demonstrate that the
Legislature retained the retired-officer exception as the
GALLINGER V. BECERRA 17
result of “political pressure,” after “potent lobbying efforts
by the law enforcement community.” Undeniably, this
record demonstrates that the retired-officer exception was a
product of lobbying efforts by law-enforcement
organizations. But the right to lobby is constitutionally
protected. Cf. Regan v. Taxation With Representation of
Washington, 461 U.S. 540, 545 (1983). A plaintiff cannot
establish invidious discrimination by merely alleging that a
legislature responded to such efforts, and, not surprisingly,
Plaintiffs fail to cite any authority to the contrary. 8
Accommodating one interest group is not equivalent to
intentionally harming another. Moreno and City of
Cleburne, the two cases upon which Plaintiffs rely, make
this distinction clear. In Moreno, the Supreme Court held
that a classification making federal food stamps available to
households of related persons but not to households of
unrelated persons violated the equal-protection component
of the Fifth Amendment’s Due Process Clause because the
legislative history revealed Congress’s purpose “to prevent
socalled ‘hippies’ and ‘hippie communes’ from participating
in the food stamp program.” 413 U.S. at 534 (citation
omitted). Similarly, in City of Cleburne, the Court found
that a municipal zoning ordinance requiring special-use
permits for the operation of a group home for the
intellectually disabled violated the Equal Protection Clause
8
Plaintiffs do not allege that the lobbying efforts by law-
enforcement agencies advocated harming CCW permit holders. We do
not suggest that legislatures may legitimately give effect to lobbying
efforts that advocate harming another interest group. See City of
Cleburne, 473 U.S. at 448 (“[T]he City may not avoid the strictures of
[the Equal Protection] Clause by deferring to the wishes or objections of
some fraction of the body politic.”); Palmore v. Sidoti, 466 U.S. 429, 433
(1984) (“Private biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect.”).
18 GALLINGER V. BECERRA
because the permitting requirement “appear[ed] to rest on an
irrational prejudice against” and “negative attitudes, or fear,”
about those with special needs. 473 U.S. at 448, 450.
“[B]are [legislative] desire to harm a politically unpopular
group cannot constitute a legitimate governmental interest.”
Moreno, 413 U.S. at 534.
In asserting that the Legislature exempted retired peace
officers from the school-grounds firearm ban due to “potent
lobbying efforts by the law enforcement community,”
Plaintiffs have not plausibly alleged that the Legislature
enacted SB 707 to harm CCW permit holders. Accordingly,
we do not find that “impermissible animus toward an
unpopular group prompted the statute’s enactment.” Animal
Legal Def. Fund, 878 F.3d at 1200 (citation omitted).
In any event, we have already concluded that the
classification at issue serves legitimate state interests in
retired-officer and public safety. This conclusion, on its
own, prevents Plaintiffs from succeeding on their Equal
Protection claim. 9 See id. (“[A] court may strike down [a]
statute under the Equal Protection Clause if the statute serves
no legitimate governmental purpose and if impermissible
animus toward an unpopular group prompted the statute’s
9
A plaintiff arguing that impermissible animus motivated a
legislature’s enactment of a law typically asks that we “apply a ‘more
searching’ application of rational basis review” if we agree that the law
was enacted, at least in part, “to harm an unpopular group.” Animal
Legal Def. Fund, 878 F.3d at 1200 (quoting Lawrence v. Texas, 539 U.S.
558, 580 (2003) (O’Connor, J., concurring in the judgment)). Here,
Plaintiffs did not argue for a more searching rational-basis review based
on their animus argument, and, regardless, we find that SB 707 was not
enacted to harm CCW permit holders. Ordinary rational-basis review is
thus appropriate.
GALLINGER V. BECERRA 19
enactment.” (citations and internal quotation marks
omitted)).
We therefore affirm the district court. 10
AFFIRMED.
10
The district court did not abuse its discretion in dismissing
Plaintiffs’ complaint with prejudice. Plaintiffs cannot set forth facts that
will establish an Equal Protection violation given the deferential nature
of rational-basis review. Amendment would therefore be futile.