Posted by: Patricia Salkin | September 15, 2016

9th Circuit Court of Appeals Holds Denial of Permit Required By the County’s Zoning Ordinance to Open a Gun Shop Did Not Violate the Equal Protection Clause

Editor’s Note: This summary is reposted from the Illinois Municipal League’s Caselaw Summaries here: http://legal.iml.org/page.cfm?key=16543&parent=4196

The plaintiffs sought to open a gun shop in an unincorporated area of the county. The county ultimately denied the necessary zoning permits to allow the gun shop to open in the proposed location because it was less than 500 feet from a residential unit, in violation of the county’s zoning code. According to the county, the ordinance requiring the 500 feet distance was enacted to minimize the secondary effects of gun shops and to maintain the aesthetics of nearby neighborhoods. The plaintiffs filed suit against the county, claiming that the zoning permit denial violated Equal Protection, and that the zoning ordinance violated the Second Amendment both facially and as applied. Using rational basis review, the district court granted the county’s motion to dismiss for failure to state a claim.

The Ninth Circuit Court of Appeals affirmed in part and reversed in part. The court affirmed the dismissal of plaintiffs’ Equal Protection claim because (1) they failed to state a class-of-one claim in that they neglected to identify a similarly-situated business that was treated differently, and (2) the issue was more appropriately analyzed under the Second Amendment.  The court, however, reversed the district court’s dismissal of plaintiffs’ Second Amendment claims. The court held that the ordinance was subjected to heightened scrutiny — something beyond mere rational basis review — because the ordinance burdened conduct protected by the Second Amendment. Under heightened scrutiny, the county bore the burden of justifying its ordinance and permit denial. Because the district court failed to use heightened scrutiny, the Ninth Circuit remanded the matter for the court to examine the ordinance and to require the county to provide some evidentiary showing that the ordinance and the denial of plaintiffs’ permit meet the legitimate purposes espoused.

Teixeira v. County of Alameda, No. 13-17132 (9th Cir. May 16, 2016).


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