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A. Reasonable suspicion for a traffic stop may exist when an officer reasonably believes that the registered owner’s driver’s license has been revoked.

Kansas v. Glover, 140 S. Ct. 1183 (2020)

Facts: In April 2016, Douglas County Kansas Sheriffs’ Office Deputy Mark Mehrer was on routine patrol in Douglas County when he observed a 1995 Chevrolet 1500 pickup truck with a Kansas license plate. Deputy Mehrer ran the license plate number through the Kansas Department of Revenue’s file service. The registration came back to a 1995 Chevrolet 1500 pickup truck and the files indicated the truck was registered to Charles Glover Jr. (“Glover”). The files also indicated that Glover had a revoked driver’s license in the State of Kansas. Deputy Mehrer assumed that the registered owner of the truck, Glover, was also the driver. Deputy Mehrer did not observe any traffic infractions and did not attempt to identify the driver of the truck up until this point. Based solely on the information that the registered owner of the truck had his driver’s license revoked, Deputy Mehrer initiated a traffic stop. Glover was in fact identified as the driver of the truck.

Kansas charged Glover with driving as a habitual violator. Glover filed a motion to suppress all evidence seized during the stop, claiming that the Deputy lacked reasonable suspicion to conduct the traffic stop. The District Court granted the motion. The Court of Appeals reversed, concluding that it was reasonable for Deputy Mehrer to infer that the driver was the owner of the vehicle because “there were specific and articulable facts from which the officer’s common-sense inference gave rise to a reasonable suspicion.”

The Kansas Supreme Court then reversed the decision of the Court of Appeals. The Kansas Supreme Court held that, absent reasonable suspicion of criminal activity, Deputy Mehrer violated the Fourth Amendment by stopping Glover. According to the court, Deputy Mehrer did not have reasonable suspicion to conduct the traffic stop because his inference that Glover was behind the wheel amounted to “only a hunch” that Glover was engaging in criminal activity.[1] The Kansas Supreme Court explained that Deputy Mehrer’s “hunch” involved “applying and stacking unstated assumptions that are unreasonable without further factual basis,” namely, that “the registered owner was likely the primary driver of the vehicle” and that “the owner will likely disregard the suspension or revocation order and continue to drive.”[2] The United States Supreme Court granted Kansas’s petition for a writ of certiorari.

Held: The United States Supreme Court noted that it had previously recognized that States have a “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles [and] that licensing, registration, and vehicle inspection requirements are being observed.” Delaware v. Prouse, 440 U. S. 648, 658 (1979). The Court explained that under its precedents, the Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (1981). “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is … obviously less than is necessary for probable cause.” Prado Navarette v. California, 572 U. S. 393, 397 (2014) (quotation altered). The Court stated that the standard “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ibid., at 402 (quoting Ornelas v. United States, 517 U. S. 690, 695 (1996) (internal quotation marks omitted)). Courts must permit officers to make “commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U. S. 119, 125 (2000).

The Court then considered whether the facts known to Deputy Mehrer at the time of the stop gave rise to reasonable suspicion. The Court noted that before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with a specific Kansas license plate number. He also knew that the registered owner of the truck had a revoked license and that the model of the truck noted in the records matched the observed vehicle. The Court concluded that from these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.

The Court added that the fact that the registered owner of a vehicle is not always the driver of the vehicle did not negate the reasonableness of Deputy Mehrer’s inference. The Court explained that the reasonable suspicion inquiry “falls considerably short” of 51% accuracy,[3] because “[t]o be reasonable is not to be perfect.” (Heien v. North Carolina, 574 U. S. 54, 60 (2014).)

The Court declared that although common sense sufficed to justify Deputy Mehrer’s inference, empirical studies demonstrated that drivers with suspended or revoked licenses frequently continued to drive.[4] Moreover, Kansas’ license-revocation scheme, which covered drivers who had already demonstrated a disregard for the law or were categorically unfit to drive, reinforced the reasonableness of the inference that an individual with a revoked license would continue to drive. The Court thus found that the concerns motivating the State’s various grounds for revocation lent further weight to the inference that a registered owner with a revoked Kansas driver’s license might be the one driving the vehicle.

The Court emphasized that the scope of its holding here was narrow. The Court explained that the reasonable suspicion standard takes into account the totality of the circumstances, and that the presence of additional facts might have dispelled reasonable suspicion. However, here, the deputy possessed no information sufficient to rebut the reasonable inference that Glover was driving his own truck. Thus, the Court concluded that under the totality of the circumstances observed by Deputy Mehrer, he drew an entirely reasonable inference that Glover was driving while his license was revoked. Accordingly, the United States Supreme Court reversed the judgment of the Kansas Supreme Court, and remanded.

Justice Sotomayor dissented. She disagreed with the majority’s view that seizing Glover’s vehicle was constitutional because drivers with revoked licenses (as opposed to suspended licenses) in Kansas had already demonstrated a disregard for the law or are categorically unfit to drive. Justice Sotomayor found nothing to indicate that Deputy Mehrer had any informed belief about the propensity of unlicensed drivers to operate motor vehicles in the area—much less that he relied on such a belief in seizing Glover. Justice Sotomayor explained that the consequence of the majority’s approach was to absolve officers from any responsibility to investigate the identity of a driver where feasible, and effectively permitted officers to make a stop based merely on a guess or hunch about the driver’s identity.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 12, available at

B. Eighth Amendment prohibits prison officials from disregarding known substantial risk of serious harm to inmate.

Wilk v. Neven, 2020 U.S. App. LEXIS 13079 (9th Cir. Apr. 23, 2020)

Facts: Units 7 and 8 at Nevada’s High Desert State Prison (“HDSP”) were protective units, where inmates were housed for their own safety. The units were located directly across from one another and shared a common yard. Inmates in Unit 7 were on a different schedule from inmates in Unit 8, limiting opportunities for contact between the two groups. However, opportunities for contact existed, for example, when inmates from the two units waited in the yard to go to classes or traveled through the yard on their way to medical appointments.

In October 2013, both Robert Wilk and Ysaquirle Nunley were housed in Unit 7. On or about October 20, 2013, Nunley threatened to attack and kill Wilk.

Wilk immediately reported the threat to his unit floor officer and was moved from Unit 7 to administrative segregation for his protection. Several days later, on October 29, 2013, Wilk participated in a full classification committee meeting to discuss his housing assignment. According to Wilk, Dwight Neven, the prison warden; Jennifer Nash, an associate warden; and Cary Leavitt, a caseworker all attended the classification meeting, either in person or through a representative. Of the three prison officials (collectively, “defendants”), Leavitt acknowledged that he was at the meeting, while Nash and Neven claimed that they were not at the meeting.

At the classification meeting, Wilk filled out documentation outlining his need for protection and requesting that Nunley be placed on his administrative “enemy list,” which would warn prison staff that Nunley posed a threat to him. Under normal prison procedures, such documentation would be submitted for review by the warden or his designee.

On October 30, 2013, Wilk was moved to Unit 8. He agreed to the move only because he believed Nunley had been removed from Unit 7 and had been put on his enemy list. However, Nunley had actually been returned to Unit 7 and had not been placed on Wilk’s enemy list. During another classification meeting in November, defendants incorrectly told Wilk that Nunley “was still in [disciplinary segregation].”

In February 2014, Nunley attacked Wilk in the yard between Units 7 and 8. “Nunley allegedly exited his cell without authorization and attacked Wilk with stones, gravel, and his fists.” “Wilk suffered extreme physical, emotional, and mental pain,” including a broken nose and damaged eyes. According to Wilk, Nunley had been “released . . . from his cell for a medical appointment.” Defendants conceded that “Nunley broke [away] from his unit” while being transferred by correctional officers.[5] On the day of the incident, but after the attack, associate warden Nash updated Wilk’s enemy list to include Nunley.

Seeking redress, Wilk exhausted his administrative remedies and filed suit in state court under 42 U.S.C. section 1983 against the defendants, alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment. Defendants removed the action to federal court. Throughout the proceedings in state and federal court, Wilk was pro se.

The District Court granted defendants’ motion for summary judgment. The District Court held that defendants were entitled to qualified immunity because Wilk’s evidence, even if true, did not establish an Eighth Amendment violation. The District Court concluded that there was no violation by defendants Neven and Nash because they had no subjective knowledge of the risk Nunley posed to Wilk. The District Court further concluded that there was no violation by Leavitt because Wilk had not shown “Leavitt was aware of an excessive or intolerable risk to Wilk’s health or safety,” and because Leavitt responded reasonably to any risk he did perceive. Wilk appealed.

Held: The Ninth Circuit Court of Appeals explained that the Eighth Amendment requires prison officials to protect inmates from violence. Farmer v. Brennan, 511 U.S. 825, 833 (1994).[6] A prison official violates an inmate’s Eighth Amendment right only if that official is “deliberately indifferent”—in other words, if the official is subjectively aware of a substantial risk of serious harm to an inmate and disregards that risk by failing to respond reasonably. Id. at 837, 844-45.

Discussing the two-part test for determining qualified immunity, the Court explained that in addition to considering whether a constitutional violation is alleged, courts ask whether the applicable law was “clearly established” at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Officials are subject to suit only for actions that they knew or should have known violated the law. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Law is “clearly established” for the purposes of qualified immunity if “every reasonable official would have understood that what he is doing violates th[e] right” at issue.[7] “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances”—i.e., even without a prior case that had “fundamentally similar” or “materially similar” facts. Hope, 536 U.S. at 741.

The Ninth Circuit noted that it had recently addressed clearly established Eighth Amendment law with respect to failure-to-protect claims. “The Supreme Court need not catalogue every way in which one inmate can harm another for us to conclude that a reasonable official would understand that his actions violated [the Eighth Amendment].” Castro v. County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016) (applying Eighth Amendment standards to a pretrial detainee’s case because, under City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983), pretrial detainees are entitled to at least as much protection as post-conviction inmates). Once an official is subjectively aware of a substantial risk of serious harm, “clearly established” law requires “only that the [official] take reasonable measures to mitigate the substantial risk.” Castro, supra, at 1067.

Wilk alleged that Leavitt, Nash, and Neven each violated his Eighth Amendment right by failing to protect him from Nunley. Wilk argued that defendants knew from the classification meeting about the risk Nunley posed to Wilk and failed to respond reasonably when they placed Wilk and Nunley back in Units 7 and 8; misled Wilk by telling him Nunley was still in administrative segregation; and failed to update Wilk’s enemy list.

Substantial Risk of Serious Harm

Regarding Farmer v. Brennan’s deliberate indifference standard, the Ninth Circuit first considered whether defendants were aware that there was a substantial risk of serious harm to Wilk. The Court explained that Nunley’s threat to Wilk meant that there was substantial risk that he would attack Wilk and cause him serious harm.

Caseworker Leavitt admitted that he was at the initial classification meeting, which specifically focused on the threat posed by Nunley. Leavitt argued, however, that after Nunley was returned to Unit 7 and Wilk to Unit 8, Leavitt was correct in perceiving that Nunley no longer posed a substantial risk of serious harm. However, the Court found Leavitt’s contention to be inconsistent with Wilk’s evidence. The Court observed that Wilk’s relocation to Unit 8, which Leavitt conceded allowed contact with Unit 7, occurred shortly after Nunley’s threat. At that time, nothing about Wilk’s circumstances had changed. There was no reason to believe that Nunley no longer wished to attack Wilk, and Leavitt knew that Units 7 and 8 shared the same yard. The Court concluded that a reasonable juror could find that Leavitt was subjectively aware of the substantial risk of serious harm to Wilk.

Nash did not concede that she attended the initial classification meeting. However, the Court explained that because the case was before the Ninth Circuit on a grant of summary judgment for the defendants, the Court must view the evidence in the light most favorable to Wilk, the non-moving party.[8] According to Wilk, Nash was present at the meeting, either in person or through a representative. The sole purpose of that meeting was for Wilk to report Nunley’s threat and to express his fear of Nunley. The Court concluded, that, viewing the facts in the light most favorable to Wilk, a reasonable jury could conclude that Nash was either present at the meeting or received a report from the meeting, and that she was therefore subjectively aware of the risk Nunley posed to Wilk.

Neven also denied that he attended Wilk’s classification meeting, but according to Wilk, Neven was present at the meeting, either in person or through a representative. As with Nash, the Court found that a reasonable jury could conclude that Neven knew what happened at the meeting.

The Court noted, moreover, that Neven supervised the processing of requests to add someone to an inmate’s enemy list. According to defendants’ own evidence, caseworkers could not, on their own, add individuals to an enemy list. The warden or his designee was required to review and approve such requests. Wilk submitted the request to add Nunley to his enemies list on October 29, 2013, and the attack did not occur until over three months later. Construing the evidence in the light most favorable to Wilk, the Court held that a reasonable fact-finder could conclude that Warden Neven was personally aware of the risk posed by Nunley because of his role in supervising the enemy list revision process.

Failure to Respond Reasonably to the Substantial Risk of Serious Harm

The Ninth Circuit next considered that whether defendants responded reasonably to the known substantial risk that Nunley posed to Wilk. The Court concluded that taking Wilk’s evidence as true and viewing it in the light most favorable to him, Leavitt’s response was not reasonable.

The Court explained that Leavitt knew that inmates in Unit 7 and Unit 8 sometimes interacted. Yet he still placed Wilk in Unit 8, knowing that Nunley was in Unit 7 and would have a chance to attack Wilk. The Court also stated that a reasonable jury could find that Leavitt was responsible for submitting Wilk’s request to add Nunley to his enemy list and that he failed to do so.

The Ninth Circuit noted that Leavitt never asserted that he had indeed processed Wilk’s form. Leavitt stated only that it was his usual custom to process the forms, and that he could have made a mistake. The Court explained that because Nunley was not on Wilk’s enemy list, other prison officials had no way of knowing that Wilk needed protection from Nunley. The Court also determined that Leavitt actively misled Wilk by telling him that Nunley remained in disciplinary segregation when instead he had been moved to Unit 7. The Court explained that not only did Leavitt fail to protect Wilk and reduced the ability of other officers to protect Wilk, but he also inhibited Wilk’s own ability to protect himself.

The Ninth Circuit held that any reasonable prison official in the defendants’ position would know that the actions defendants took, and failed to take, violated the Eighth Amendment. None of the defendants could claim ignorance to a prisoner’s right to be protected from violence at the hands of other inmates because that right had been clearly established since the Supreme Court’s decision in Farmer v. Brennan in 1994. See 511 U.S. at 833; Castro, 833 F.3d at 1067. The Court explained that it had recently and explicitly held that it was clearly established that prison officials must “take reasonable measures to mitigate the [known] substantial risk[s]” to a prisoner. Castro, 833 F.3d at 1067.

Taking Wilk’s evidence as true and viewing it in the light most favorable to him, the Court thus concluded that defendants violated his Eighth Amendment right to be protected from serious harm while incarcerated. Accordingly, the Ninth Circuit Court of Appeals reversed, and remanded for additional matters.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 17, available at

C. The Fourth Amendment did not require suppression of evidence of defendant’s cell phone number, obtained from his phone after arrest, because discovery of the number was inevitable.

People v. Fayed, 9 Cal. 5th 147 (2020)

Facts: Soon after initiating divorce proceedings in October 2007, defendant James Michael Fayed arranged for Pamela Fayed’s murder by paying the couple’s employee, Jose “Joey” Moya, $25,000 to kill Pamela. Moya enlisted two others. In July 2008, Pamela was stabbed to death in a parking garage, moments after she had left a meeting with defendant and their respective attorneys. At the time of her murder, defendant and Pamela were under federal investigation for allegedly laundering money for Ponzi schemes through their e-currency business, Goldfinger Coin & Bullion (“Goldfinger”).

The day after Pamela was killed, defendant called the Ventura County Sheriff’s Office to request a welfare check on his nine-year-old daughter who lived with Pamela in Camarillo. Earlier that morning, a Los Angeles Police Department (“LAPD”) detective had gone to the Camarillo residence to tell Pamela’s daughters of their mother’s death. After receiving word that defendant was heading over to the Ventura County Sheriff’s Office with his attorneys, the detective met defendant there. He told defendant that he was under arrest for Pamela’s murder and that he would be transported to the LAPD West Los Angeles Station. Officers searched defendant incident to arrest and took his Motorola cell phone, which they placed in the front seat of the vehicle. They handcuffed defendant and placed him in the backseat.

The LAPD detective drove defendant some 45 miles from Camarillo to the West Los Angeles Police Station. At the station, defendant invoked his right to remain silent and refused to speak to investigators. An LAPD officer testified that he obtained and possessed defendant’s cell phone for an hour and that he “manipulated” the phone to find the number associated with the phone before handing the cell phone to an FBI agent. Defendant was released two hours later without his Motorola cell phone. Officers returned the cell phone the following Friday when they were serving a search warrant at defendant’s home.

Defendant was later arrested by federal agents. Defendant subsequently admitted to his cellmate, in a conversation that was secretly recorded by the cellmate (and later played for the jury), that defendant had paid Moya to murder Pamela. In this same conversation, defendant asked the cellmate to solicit a hitman to kill Moya to eliminate him as a witness.

In October 2009, defendant filed a pretrial motion under Penal Code section 1538.5 to suppress, arguing evidence was seized from the illegal search of his cell phone. At the pretrial hearing on the suppression motion, the trial court agreed with the prosecution that the only information officers took from that cell phone was the number itself. With this cell phone number, the LAPD in conjunction with the FBI Fugitive Task Force, sought and obtained a court order authorizing the use and installation of wiretap devices for the “Subject Telephone Number.”

After hearing testimony from LAPD detectives, the trial court concluded the search of the cell phone was “illegal,” even if it was incident to a valid arrest. However, it agreed with the prosecution that because there were different sources from which to discover defendant’s cell phone number, including Pamela’s contacts in her cell phone, the evidence was admissible based on the inevitable discovery doctrine.

A Los Angeles County jury found defendant guilty of the first degree murder and of conspiracy to commit murder. The jury further found true the special circumstance allegations of financial gain and lying in wait. Following the penalty phase, the jury returned a verdict of death. The trial court denied defendant’s automatic application for modification of the verdict and sentenced defendant to death. An automatic appeal followed.

Held: The California Supreme Court explained that “[t]he Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365.) A warrantless search is per se unreasonable. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” (Brigham City v. Stuart (2006) 547 U.S. 398, 403.) One such exception, as relevant here, is a search incident to arrest. (United States v. Robinson (1973) 414 U.S. 218, 224.) Another exception, also relevant here, is the inevitable discovery exception. (Nix v. Williams (1984) 467 U.S. 431, 440–450; People v. Robles (2000) 23 Cal.4th 789, 800–801.)

Defendant argued many claims on appeal. In a pretrial motion to suppress evidence seized during several searches, defendant had unsuccessfully argued that his Fourth Amendment right was violated based on the warrantless search and seizure of his cell phone. On appeal, he reiterated the claim, contending that the trial court erred in refusing to suppress.

The Attorney General conceded that the trial court was likely correct that the search of defendant’s Motorola cell phone was unlawful.[9] However, the Supreme Court explained that, even if the search or arrest, or both, were unlawful, the evidence might nevertheless be admissible under the exception of inevitable discovery. (See Nix v. Williams, supra, 467 U.S. 431; People v. Robles, supra, 23 Cal.4th at pp. 800–801.)

The Court explained that under the inevitable discovery doctrine, “illegally seized evidence may be used where it would have been discovered by the police through lawful means.…Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.’ (Murray v. United States (1988) 487 U.S. 533, 539.) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct.” (People v. Robles, supra, 23 Cal.4th at p. 800.) The inevitable discovery rule “applies only to evidence obtained as the indirect product, or fruit, of other evidence illegally seized.” (Hernandez v. Superior Court (1980) 110 Cal.App.3d 355, 361.) The prosecution must prove “by a preponderance of the evidence that the information inevitably would have been discovered by lawful means.” (People v. Coffman and Marlow, 34 Cal.4th 1, 62.)

The Supreme Court observed that at the suppression hearing, the prosecution presented evidence that shortly after police recovered Pamela’s cell phone at the crime scene, they accessed the phone’s list of contacts, which included the cell phone number for defendant. The police also “obtained independently” defendant’s cell phone number from a search of Moya’s cell phone. Moreover, the search of Goldfinger’s office led to defendant’s cell phone number. In light of these other sources leading to the discovery of defendant’s cell phone number, the Court concluded that substantial evidence supported the trial court’s finding that the inevitable discovery rule applied and that the evidence of defendant’s cell phone number was admissible. Finding defendant’s other claims also failed, the California Supreme Court affirmed accordingly.

D. County jail inmate plaintiffs do not have standing to contend telecommunication commissions passed on as phone fees to inmates and their families are an unconstitutional tax.

Cty. Inmate Tel. Serv. Cases, 2020 Cal. App. LEXIS 347 (2nd Dist. Apr. 28, 2020)

Facts: Plaintiff inmates in county jails in nine California counties challenged the exorbitant commissions paid by telecommunications companies to the nine counties under contracts giving the telecommunications companies the exclusive right to provide telephone service for the inmates. The telecommunications companies passed on the cost of the commissions to the inmates and their families in the fees charged to use the inmate calling system, the only telephone system available to them. The rates charged to inmates were far greater than those paid for ordinary telephone service. The phone rates would have been much lower if they did not include charges to recoup the commissions paid to the counties. The rates were not related to the cost of the services provided.

The defendants’ share of the revenue collected from inmate calls was referred to as a “site commission,” and in all cases was more than 50 percent of the revenue from inmate calls. For example, Los Angeles County’s agreement with its service provider guaranteed the county the greater of $15 million annually or 67.5 percent of the revenues for specified charges described in the contract.

Plaintiffs filed a putative class action lawsuit “to put an end to this unconscionable practice by California counties.” Plaintiffs alleged the telecommunications companies made a substantial profit even after payment of the commissions; that without the commissions, the charges would have been substantially lower; and the commissions were not based on the actual cost or reasonable value of the inmate calling service. Plaintiffs alleged the full amount of the charges due to the counties was incurred by the customers of the telecommunications company, and not by the telecommunications company itself.

Plaintiffs alleged, among other things, that these fees were unlawful taxes under Proposition 26, which required voter approval of “any levy, charge or exaction of any kind imposed by a local government” unless limited to the reasonable cost or value. (Cal. Const., art. XIII C, section 1, subd. (e).) Because none of the commissions were approved by voters, plaintiffs contended they were entitled to a refund of the illegal taxes.

Defendants demurred to the complaint. The trial court sustained the demurrer without leave to amend, ruling that plaintiffs did not have standing to contend the commissions were an unconstitutional tax. The court entered judgment, and Plaintiffs appealed.

Held: The California Second District Court of Appeal explained that under the California Constitution, all taxes imposed by any local government are subject to voter approval. (Cal. Const., art. XIII C, section 2.). Proposition 26, adopted in 2010, expanded the definition of a “tax” to include “any levy, charge, or exaction of any kind imposed by a local government” (Id., section 1, subd. (e).) A person may not sue to recover excess taxes paid by someone else, “who pays the tax by design or mistake.” (Grotenhuis v. County of Santa Barbara (2010) 182 Cal.App.4th 1158, 1165.)

The Court observed that Plaintiffs “may have paid exorbitant charges to the telephone provider, but they did not make any payment to the county and they had no legal obligation to do so.” The Court stated that Plaintiffs essentially argued that a customer, who paid higher prices because of a tax on a vendor who raises prices in order to recover the amount of the tax from the customer, had standing to seek a refund. The Second District explained that it found no case “where a person who ha[d] not paid the tax to the taxing authority, and who ha[d] no legal responsibility to do so, ha[d] been found to have standing to seek a refund of the tax.” The Court found that no precedents supported Plaintiffs’ claim that a consumer who paid charges to a third party vendor—including one that had inflated its prices to recover the cost of a tax it pays to a local government—had standing to seek a refund of those charges from the taxing authority.

The Court also stated that there was no basis for treating purported Proposition 26 taxes, for standing purposes, differently than sales taxes, or property taxes, or telephone user taxes, or airplane fuel taxes, or any other taxes. The Second District explained that the change that Proposition 26 effected was an expansion in the definition of a tax. The Court explained that the change effected was not an expansion in long-established principles governing who may sue for a refund of that tax – “[t]hat continues to be the person upon whom the tax is imposed by the taxing authority or who has a legal obligation to pay it to the taxing authority. That is not the plaintiffs.”

The Court added that it was the legislative branch, not the courts, that must provide the remedy for the exorbitant telephone charges the inmates paid.

Accordingly, the Court affirmed.


Employer did not wrongfully terminate plaintiff in violation of Labor Code section 432.7 based on plaintiff’s participation in Arizona’s domestic nonviolence diversion program.

Tilkey v. Allstate Ins. Co., 2020 Cal. App. LEXIS 322 (4th Dist. Apr. 21, 2020)

Facts: In August 2014, Michael A. Tilkey got into an argument with his girlfriend while at her apartment in Arizona. When Tilkey stepped out of the apartment onto the enclosed patio, his girlfriend locked the door behind him. Tilkey banged on the door, demanding to be let in to get his belongings, which were in the bedroom where his girlfriend’s grandson was sleeping. His girlfriend called police. Police arrested Tilkey and charged him under Arizona law with criminal damage deface, possession or use of drug paraphernalia, and disorderly conduct-disruptive behavior. A domestic violence label was attached to the criminal damage and disorderly conduct charges.

Tilkey pled guilty to the disorderly conduct charge only, and the other two charges were dropped. After Tilkey completed a domestic nonviolence diversion program, the disorderly conduct charge was dismissed. Before the disorderly conduct charge was dismissed, Allstate Insurance Company (“Allstate”), Tilkey’s employer for 30 years, terminated his employment based on his arrest for a domestic violence offense and his participation in the diversion program. Allstate informed Tilkey it was discharging him for threatening behavior and/or acts of physical harm or violence to another person.

Tilkey sued Allstate for wrongful termination in violation of Labor Code section 432.7. At trial, Allstate presented evidence that it would have terminated his employment based on after-acquired evidence that Tilkey had circulated obscene and inappropriate e-mails using company resources.

The jury returned a verdict in Tilkey’s favor on all causes of action and awarded him compensatory and punitive damages. The jury advised the court that it did not find Allstate’s after-acquired evidence defense credible, and the trial court agreed. Allstate moved for a judgment notwithstanding the verdict (“JNOV”) and for a new trial. After the trial court denied the motions, Allstate appealed.

Held: The California Fourth District Court of Appeal held that Allstate did not violate Section 432.7 when it terminated Tilkey’s employment based on his plea and his participation in the Arizona domestic nonviolence program. The Court accordingly reversed the order denying Allstate’s motion for JNOV regarding wrongful termination for violation of Section 432.7. The Fourth District remanded to the trial court with directions to enter a judgment for Allstate on these causes of action.

The Court explained that the parties’ disagreement turned on the interpretation of Section 432.7(a)(1), which prohibits employers from utilizing as a factor in employment decisions (1) any record of arrest or detention that did not result in conviction or (2) any record regarding referral to or participation in any pretrial or posttrial diversion program. (Emphasis added.)

The Court observed that the section defined a “conviction” to include “a plea, verdict, or finding of guilt, regardless of whether a sentence is imposed by the court.” (Section 432.7(a)(3)(A).) The Fourth District concluded that Section 432.7 defined conviction to include a plea, regardless of whether the trial court ultimately imposed a sentence. The Court found additional support in the statute’s legislative history for this conclusion.

The Court found that because Tilkey appeared before the Arizona court and entered a guilty plea, which the court accepted, Tilkey’s guilty plea was a conviction under Section 432.7. The Court also found that this information was used by Allstate to terminate Tilkey’s employment in May 2015, before the charges against Tilkey were dismissed in July 2015. Thus, the Fourth District concluded that Allstate did not violate Section 432.7 by using Tilkey’s Arizona arrest as a factor in its decision to terminate his employment.

With regards to Tilkey’s referral to and participation in a nondomestic violence diversion program, the Court noted that Section 432.7 defined a pretrial or posttrial diversion program as any program under various provisions not at issue here, “or any other program expressly authorized and described by statute as a diversion program.” (Section 432.7(j), italics added.)

The Court noted that California abolished domestic violence diversion programs about a decade before Tilkey engaged in the domestic nonviolence program in Arizona. This was due to California’s public policy opposing diversion for domestic violence offenses. The Court accordingly concluded that Section 432.7’s reference to diversion programs excluded out-of-state domestic violence programs, and that Allstate’s consideration of Tilkey’s participation in one did not violate the section.


A. Southern District of California grants preliminary injunction enjoining ammunition background check and ammunition anti-importation laws.

Rhode v. Becerra, 2020 U.S. Dist. LEXIS 71893 (S.D. Cal. Apr. 23, 2020)

Facts: Passed in November 2016, Proposition 63 (the “Safety for All Act of 2016”) amended the California Penal Code to regulate the purchase of all firearm ammunition, extending the concept of background checks for firearms. The proposition requires that ammunition sales, deliveries, or transfers in California be conducted by a state-licensed ammunition vendor in a face-to-face transaction. (Penal Code section 30312(a)-(b).[10]) The initiative also mandates that a California resident who seeks to buy firearm ammunition must first pay for and pass an electronic background check each time he or she wanted to make a purchase. Moreover, a resident may not purchase from vendors outside of California, whether in person or through an internet transaction, unless the ammunition is delivered directly to a California-licensed ammunition vendor, whereupon the resident must then pay for and pass the background check in a face-to-face transaction. Id.; Section 30314.

A group of U.S. citizens residing in California,[11] an association of firearm owners, and several out-of-state ammunition sellers (“Plaintiffs”) sought a preliminary injunction enjoining California’s new laws pertaining to ammunition. Plaintiffs brought a facial challenge through 42 U.S.C. section 1983 seeking a declaratory judgment that Penal Code sections 30312, 30314, 30342, 30347, 30348, 30350, 30352, 30370, 30385, 30390, and 30395, as well as California Code of Regulations, title 11 section 4263, were unconstitutional on their face or, alternatively, as applied to plaintiffs, because these sections violated the Second and Fourteenth Amendments to the United States Constitution.

Plaintiffs also claimed that the anti-importation provisions of Proposition 63, codified at Sections 30312, 30314, 30370, and 30385, violated the dormant Commerce Clause, Article I, section 8 of the United States Constitution. In the motion for preliminary junction, Plaintiffs also sought a declaratory judgment that these Penal Code sections, as well as California Code of Regulations, title 11 section 4263, were unconstitutional on their face because they discriminated against interstate commerce in violation of the Commerce Clause by erecting a barrier to ammunition sellers in other states, thereby favoring California businesses.

In other words, Plaintiffs’ motion for preliminary injunction sought to keep the status quo as it was previously by enjoining the State from enforcing the ammunition background check system that went into effect on July 1, 2019 and the anti-importation laws that went into effect on January 1, 2018.

Held: The Second Amendment, part of the United States Constitution’s Bill of Rights, provides that “the right of the people to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. The Southern District Court explained that a state’s claim to public safety may not “eviscerate a citizen’s Second Amendment rights.” The Court explained that this right to keep and bear arms is fundamental and is incorporated against the states under the Fourteenth Amendment. McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010). Thus, as the United States Supreme Court made clear in District of Columbia v. Heller (554 U.S. 570 (2008)), “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636.

Although the Second Amendment does not explicitly mention ammunition, “the right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them.” Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (quotation marks omitted). The right to bear arms includes at least the right to keep and carry ammunition for both self-defense and to be ready to serve in a militia. United States v. Miller, 307 U.S. 174, 179-80 (1939).[12]

The District Court observed that with regards to related California law, “the State has enacted incrementally a burdensome web of restrictions on the Second Amendment rights of law-abiding responsible gun owners. The ammunition background check system and anti-importation laws add even more complexity….”[13] The Court discussed the ammunition background check system, detailing the obstacles, financial and otherwise, that different types of would-be ammunition purchasers encountered at various points in the process.

In their motion for preliminary injunction, Plaintiffs argued that the new ammunition background check system violated the Second Amendment. In arguing against the motion for preliminary injunction, the California Attorney General contended that the system successfully prevented prohibited persons from acquiring ammunition and that rejections to lawful would-be purchasers were easily resolved. The Attorney General argued that the background check system was a reasonable fit to achieve the State’s legitimate public safety interest of keeping ammunition out of the hands of prohibited Californians.

Considering the likelihood of the petition’s success on the merits, the Southern District observed that for a Second Amendment challenge in the Ninth Circuit, courts look at how close the challenged statute strikes at the core of the Second Amendment right, followed by a determination of how severe the statute burdens the Second Amendment right.

Here, the Southern District found that the California statutes directly burdened the Second Amendment right directly to its core, which was the right to defend one’s self, family, and home because under California law resulting from Proposition 63, a citizen resident unable to pass the background check for whatever reason may not purchase ordinary ammunition at all. The Court also found that the California state statutes not only burdened the core of the Second Amendment, but often imposed upon the core the most severe burden — a complete ban. The Court noted that at least 101,047 or 16.4% of applying citizen residents had not been able to buy ammunition, thereby suffering the severest burden. The Court explained that “because a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny.”

The Southern District nonetheless proceeded to apply the “overly relaxed” standard of intermediate scrutiny to the challenged law, which the Attorney General argued was appropriate. The intermediate scrutiny test under the Second Amendment requires that “(1) the government’s stated objective … be significant, substantial, or important; and (2) there…be a ‘reasonable fit’ between the challenged regulation and the asserted objective.” Silvester v. Harris, 843 F.3d 816, 821-22 (9th Cir. 2016) (quoting United States v. Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013)).

The Southern District determined that the Attorney General identified a public safety interest in preventing criminals from buying ammunition at gun shops, sporting goods stores, and other lawful vendors, in preventing violent felons and other persons prohibited from possessing firearms and ammunition to perpetuate gun violence. Thus, the State’s objective passed the first prong of the intermediate scrutiny test.

What remained was the second prong of the test. Under intermediate scrutiny, the government must carry the burden of establishing that its regulations are reasonably and narrowly tailored to the government’s significant objective.

The Court noted that California already criminalized the possession of ammunition by felons, prohibited persons, and aliens unlawfully in the United States, even without the background check system as implemented under Proposition 63. This prompted to Court to ask: “Is a state-wide blanket background check system and anti-importation barriers for purchasing ammunition on top of existing felon-in-possession and alien-in-possession laws a reasonable fit for achieving these important goals?” The Court was skeptical.

Here, the Court explained that the government had not demonstrated that the blanket background check system would alleviate harm in a direct and material way without unnecessarily burdening the rights of citizens. The Court explained that so far, the benefit of the background check laws was “that a very small number of prohibited persons have been denied authorization to buy ammunition at a licensed ammunition vendor.”

Considering the burden on the other hand, the Court observed that over 101,047 citizen residents who were not prohibited persons, yet still failed a background check, were unable to exercise their Second Amendment right to acquire ammunition for their firearms. The Court stated that the California background check system’s long-term average rejection rate of 16.4% suggested that the system was deeply flawed, observing that Californians purchasing firearms using the federal NICS background system failed background checks at a much lower rate of approximately 1.1%.[14]

The Court also believed that “an untold additional number of ammunition purchasers were turned away or deterred and did not even start a background check” due to the difficulties of passing through the main entry point into the ammunition background check system. The Court posited that the background checks could have had “incredibly chilling effects on law-abiding gun owners,” or possibly “the onerous and inescapable burden these background check laws impose are forcing purchasers to find alternative, possibly illicit, sources.” Moreover, only 14% of the 4.5 million California gun owners on the electronic Automated Firearms System (“AFS”) list had tried to buy ammunition with a background check.

The Southern District Court cited an obvious absence of legislative history for California’s ammunition background check “experiment” to support the State’s cause. As for studies in the record proffered by the State, the Court determined that none of the studies suggested that the new regulations would achieve the State’s interest of reducing gun violence. The Court found that the State’s “experiment [wa]s based on a naive assumption that prohibited persons will subject themselves to background checks to buy ammunition,” adding that “criminals, tyrants, and terrorists don’t do background checks.” Meanwhile, the Court stated that these ammunition statutes unduly and severely burdened the Second Amendment rights of responsible, gun-owning citizens who desired to lawfully buy ammunition. The Southern District determined that the evidence did not support the notion that Proposition 63’s background check and anti-importation provisions for ammunition acquisition would make the public safer.

The Court observed that the ammunition background check laws were not tailored to differentiate between different amounts and types of ammunition, nor between different types of people (e.g. between a former law enforcement officer and an edgy-looking, furtive-glancing, impatient and angry customer). The laws were not tailored to differentiate between ammunition needs in rural and urban areas.

For these reasons, the Court concluded the government had not carried its burden of demonstrating that the restriction of Second Amendment rights resulting from the laws here were a reasonable fit for the asserted substantial interest.

The Southern District accordingly concluded that Plaintiffs had made a sufficient showing of their likelihood of succeeding on the merits of the Second Amendment claims.

Plaintiffs also claimed that Proposition 63’s anti-importation provisions violated the Commerce Clause because they favored businesses in California by erecting a barrier to ammunition sellers in other states. The Commerce Clause, Article I, section 8, clause 3 of the United States Constitution, gives Congress the power “[t]o regulate commerce … among the several states.” Courts have consistently held that this affirmative grant of power to Congress includes a negative implication, which restricts the ability of states to regulate and interfere with interstate commerce. Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019); Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 571 (1997). That restriction upon the states, referred to as the dormant Commerce Clause, “prohibits economic protectionism — that is, ‘regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’” Fulton Corp. v. Faulkner, 516 U.S. 325, 330 (1996).

The Supreme Court has held that “in all but the narrowest circumstances state laws violate the Commerce Clause if they mandate differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Granholm v. Heald, 544 U.S. 460, 472, (2005) (citing Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 99 (1994)); see also New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274 (1988). The Southern District explained that under Proposition 63, the sole circumstance of residence in another state foreclosed a vendor of ammunition from selling directly to California residents, despite Granholm’s declaration that “[t]he mere fact of non-residence should not foreclose a producer in one State from access to markets in other States.” Id. (citing H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539 (1949)).

Before January 1, 2018, any merchant physically located outside California was permitted to sell ammunition directly to a customer in California, whether the transaction was accomplished by U.S. Mail, email, an internet web store, a text message, or a telephone. Proposition 63 prohibited a seller of ammunition physically located beyond California from selling directly to customers in California. (Section 30312(b)). Now an out-of-state merchant must open a physical store in California and obtain a California ammunition vendor license to conduct such transactions. The only alternative is to hire and arrange for a third-party California-based and California-licensed ammunition vendor to complete the delivery. The out-of-state product must be delivered first to the California vendor and then from the California vendor to the California customer. In-state ammunition merchants are not required to accept such a delivery from a non-California merchant.

The Court observed that due to the face-to-face delivery requirement in Proposition 63, out-of-state businesses who want to continue to sell directly to their California customers will have to open not just one store inside California, but stores in every local market inside California in which they seek to sell ammunition. Consequently, California’s resident businesses are the only businesses that may sell directly to ammunition consumers. Sales of any quantity, by all other sellers, anywhere else in the country, must be funneled through a California resident vendor licensed to sell ammunition.

The District Court explained that courts analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach. Pharm. Research & Mfrs. Of Am. v. Alameda, 768 F3d 1037, 1041 (9th Cir. 2014). The first tier test is whether the state law discriminates directly against interstate commerce or directly regulates interstate commerce. Id. If the state law does either, “it violates the Commerce Clause per se, and we must strike it down without further inquiry.” Id. (citation omitted). The Court concluded that Proposition 63 did both and thus directly violated the dormant Commerce Clause.

The Court found reason to infer that Proposition 63 would significantly burden interstate commerce in ammunition, noting that out-of-state firms could administer the same background checks for ammunition purchases as California sellers did.

The Attorney General contended that stopping the flow of ammunition into the state was a matter of public safety, but the Southern District found that the State had not provided any evidence that out-of-state ammunition businesses had been selling ammunition to prohibited persons in California. The Court speculated that impatient or circumspect criminals would not be likely to attempt to purchase from out-of-state vendors. The Court concluded that, under Granholm, which “require[d] the clearest showing to justify discriminatory state regulation” (Id., 544 U.S. at 490), California’s purely legal argument without evidence did not suffice.

The United States District Court for the Southern District of California accordingly granted Plaintiffs’ motion for preliminary injunction, and enjoined the State of California from enforcing the ammunition sales background check provisions in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a).

The next day after the District Court’s entering a preliminary injunction, the Ninth Circuit issued a stay of the preliminary injunction following the filing of an interlocutory appeal and request for stay by the Attorney General. As such, at the time of this writing, the preliminary injunction issued by the District Court enjoining the State of California from enforcing the ammunition sales background check provisions set forth in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a), currently is stayed.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 14, available at

B. Supreme Court “ducks” concerning whether New York City ordinance imposing travel restrictions upon handgun licensees violates the Second Amendment.

N.Y. State Rifle & Pistol Ass’n v. City of N.Y., 2020 U.S. LEXIS 2528 (Apr. 27, 2020)

Facts: In 2013, three individuals and one organization representing New York gun owners (collectively, “Petitioners”) brought suit under 42 U.S.C. section 1983 against New York City (“City”) and the License Division of the New York City Police Department (“NYPD”). The petitioners claimed that a City rule restricting the transport of firearms (38 N. Y. C. R. R. section 5-23 (“Section 5-23”)) violated the Second Amendment. They sought declaratory and injunctive relief against enforcement of Section 5-23, insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the City.

The ordinance that the individuals challenged was adopted in 2001. Before then, the NYPD issued both premises licenses, which allowed licensees to keep the registered handgun at a home or business, and so-called “target licenses,” which allowed licensees to transport their handguns to specified, preapproved ranges outside of the City. Target licenses were eliminated in 2001, and premises licensees could practice with their guns only if they traveled “directly to and from an authorized small arms range/shooting club,” among other restrictions. Section 5-23(a)(3) (in effect prior to July 21, 2019) (emphasis added). The only “authorized” ranges or clubs were seven ranges located in New York City.

Each individual petitioner stated that he regularly traveled outside the City to ranges and shooting competitions before learning of the restriction imposed by Section 5-23. Petitioners’ amended complaint maintained that the Second Amendment requires “unrestricted access to gun ranges and shooting events in order to practice and perfect safe gun handling skills.” The amended complaint’s prayer for relief sought an injunction against enforcement of the travel restriction, as well as attorney’s fees, costs of suit, declaratory relief . . . and “[a]ny such further relief as the [c]ourt deems just and proper.” The City argued that the rule was lawful because travel restrictions were “necessary to protect the public safety insofar as the transport of firearms outside the home potentially endangers the public.”

The District Court denied petitioners’ motions for preliminary injunction and summary judgment and granted the City’s cross-motion for summary judgment. The District Court deemed any burden on petitioners’ Second Amendment right “minimal or, at most, modest.” The Second Circuit Court of Appeals affirmed, characterizing the ordinance’s burdens on petitioners’ Second Amendment right as “trivial.”

The Supreme Court granted certiorari in January 2019. The City subsequently amended their rule so that holders of premises licenses were allowed to transport firearms to a second home or shooting range outside of the City, provided that the licensees traveled “directly” between their residences and the permitted destinations. The State of New York amended its firearm licensing statute, abrogating any local law, rule, or regulation that prevented the holder of a premises license from transporting a licensed handgun “directly to or from” an authorized range, competition, or second home.

Petitioners argued that the new rule might still infringe their rights because they may not be allowed to stop for coffee, gas, food, or restroom breaks on the way to their second homes or shooting ranges outside of the city. The City countered that such routine stops were entirely permissible under the new rule.

Majority View

The Supreme Court did not engage in the dispute about the City’s new rule, however. The Court instead found that the City’s changes to the rule provided the “precise relief that petitioners requested in the prayer for relief in their complaint,” and concluded that Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule was therefore moot.

Citing Lewis v. Continental Bank Corp.,[15] the Court explained its disposition: “Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. [Internal citations omitted.] However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully. See Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 415, 92 S. Ct. 574, 30 L. Ed. 2d 567 (1972).” Accordingly, the Supreme Court vacated the judgment of the Second Circuit Court of Appeals.

The Court also remanded for further proceedings as appropriate, explaining that on remand, the Court of Appeals and the District Court could consider whether petitioners could still add a claim for damages in this lawsuit with respect to the City’s old rule.

Justice Kavanaugh concurred with the majority that the petitioners’ claim against the old rule was moot and that their new claims should be addressed on remand by the Court of Appeals and District Courts. However, he also shared the concern expressed by the dissenting opinion that some federal and state courts may not be properly applying Heller and McDonald v. Chicago, 561 U. S. 742 (2010). Justice Kavanaugh referred to the several Second Amendment cases with petitions for certiorari pending before the Court as potential paths to address this concern.

The Dissent

Justice Alito, joined by Justice Gorsuch and Justice Thomas,[16] dissented. The dissent maintained that the case was not moot, explaining that “‘a case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”‘ Chafin v. Chafin, 568 U. S. 165, 172 (2013) (emphasis added). The dissent said it was entirely possible for petitioners to obtain more relief, and therefore the case was not moot. The dissent observed that Petitioners had asserted in their complaint that the Second Amendment guaranteed them, as holders of premises licenses, “unrestricted access” to ranges, competitions, and second homes outside of New York City, but the dissent stated that the new laws did not provide them that result. Moreover, the dissent maintained that had the Supreme Court held that the old City rule violated the petitioners’ Second Amendment right, the District Court on remand could award damages.[17]

Having determined the case was not moot, the dissent next addressed the merits of the claim. Characterizing it as “not a close question,” the dissent determined that the old City rule violated the Second Amendment. The dissent stated that its conclusion followed directly from the Supreme Court’s decision in District of Columbia v. Heller, which held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, the Supreme Court’s decision in McDonald v. Chicago established that this right was fully applicable to the states.

Expanding on Heller, the dissent explained that Court there had held that a District of Columbia rule that effectively prevented a law-abiding citizen from keeping a handgun in the home for purposes of self-defense constituted a core violation of the Second Amendment.[18] Heller based this decision on the scope of the right to keep and bear arms as it was understood at the time of the adoption of the Second Amendment.[19] Heller recognized that history supported the constitutionality of some laws limiting the right to possess a firearm, such as laws banning firearms from certain sensitive locations and prohibiting possession by felons and other dangerous individuals. See id., at 626-627; see also McDonald, 561 U. S., at 787, 904. However, history provided no support for laws like the District of Columbia’s rule. See 554 U. S., at 629-634.

The dissent declared that the same core Second Amendment right was at issue in the instant case, the right to keep a handgun in the home for self-defense. The dissent explained that a necessary concomitant of this right was the right to take a gun outside the home for certain purposes, such as for maintenance or repair, or to transfer ownership lawfully, which City law allowed. Another corresponding purpose, the dissent explained, was to take a gun to a range in order to gain and maintain the skill necessary to use it responsibly. As Heller expressed, “‘to bear arms implies something more than the mere keeping [of arms]; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use.’” 554 U. S., at 617-618 (quoting T. Cooley, Constitutional Law 271 (1880)); see also Luis v. United States, 578 U. S. ___, ___, 136 S. Ct. 1083, 194 L. Ed. 2d 256, 272 (2016) (Thomas, J., concurring in judgment) (“The right to keep and bear arms . . . ‘implies a corresponding right . . . to acquire and maintain proficiency in their use’”); Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011) (“[T]he core right wouldn’t mean much without the training and practice that make it effective”).

The City argued that municipalities restricted the places within their jurisdiction where a gun could be fired, noting that the Second Amendment surely did not mean that a New York City resident with a premises license was allowed to practice in Central Park or Times Square. The dissent rejected this argument as inapposite here because Petitioners had not claimed the right to fire weapons in public places within the City. Instead, they claimed they had a right to practice at ranges and competitions outside the City, and there had been no showing by the City, or the courts below, that had demonstrated that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.

Beyond the absence of historical support, the dissent stated that the weakness of the City’s showing that its travel restriction significantly promoted public safety left no doubt that the New York City ordinance was unconstitutional. The City relied heavily on statements by the commanding officer of the NYPD License Division. The dissent decided these statements were not persuasive and irrelevant to the justification for drawing a distinction between trips to a range in the City and trips to a range in a neighboring jurisdiction.

In sum, the dissent determined that the City’s travel restriction burdened the core right recognized in Heller. History provided no support for such a restriction, nor did the City’s weak and unsubstantiated public safety arguments. Because the dissent concluded that the case was not moot, and that the City’s rule was unconstitutional, the dissent would have reversed and remanded the case to the District Court to provide appropriate relief. The dissent also expressed concern that the treatment of Heller by the lower courts in this case was typical of how lower courts had treated Heller in other cases. Justice Kavanaugh expressed in his concurrence that he shared this concern.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 16, available at


Defendant committed substantial step toward committing robbery by arming himself, driving toward targeted warehouse, and turning around only when he knew there was a large police presence.

United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020)

Facts: In August 2011, Monico Dominguez and Milton Fierro robbed the Garda Cash Logistics armored car warehouse in Santa Rosa, California. Wearing masks and armed with an AK-47 rifle and either a 9-millimeter or a .45 caliber handgun, the two men snuck into the Garda warehouse. They pointed their guns at two guards, put them on the ground, tied their hands and feet with rope, and demanded access to the vault. The robbers made off with over $900,000 in cash and two guns belonging to one of the guards.

About a year later, Dominguez approached his friend Kevin Jensen and offered him $100,000 to participate in another Garda robbery, this time of a Garda armored car. When Jensen found out that the FBI was offering a $100,000 reward for information about the previous year’s Garda robbery, he contacted the FBI and became a confidential informant. The FBI was consequently able to thwart the second robbery before it was completed.

In August 2012, Dominguez and Jensen drove toward the Garda warehouse intending to hold up an armored car. This time, Dominguez was armed with a .357 revolver. Tipped off by Jensen, the FBI and local enforcement officers staged a fake crime scene near the warehouse to make it difficult for a vehicle to get close to it. While en route to the warehouse, Dominguez received a phone call, after which Dominguez told Jensen they had to terminate the plan because of the unusual law enforcement activity near the Garda building. Dominguez drove to within about a block or so of the warehouse before turning around. Dominguez was arrested the following day and charged with Hobbs Act robbery of the Garda warehouse in 2011, attempted Hobbs Act robbery of a Garda armored car in 2012, possession of firearms in furtherance of both crimes, conspiracy, money laundering, and structuring transactions.

In his closing argument, the prosecutor argued that Dominguez had completed a “substantial step” toward the 2012 attempted robbery, because he turned his car around only in response to law enforcement presence, not because he’d had a change of heart. Dominguez’s counsel did not object to the prosecutor’s arguments, and conceded (with his client’s consent) the defendant’s guilt of the attempted robbery.

The jury convicted Dominguez of several counts, including attempted Hobbs Act robbery for the August 2012 events and Hobbs Act robbery. The District Court sentenced Dominguez to prison. Dominguez appealed.

Held: The Ninth Circuit Court of Appeals held that the evidence was sufficient to support Dominguez’s conviction of attempted Hobbs Act robbery. The Court explained that to sustain the attempted robbery conviction, the government must prove that (1) Dominguez had the intent to commit the robbery; and (2) Dominguez “took a substantial step toward” committing that robbery. United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995). Dominguez conceded that the government’s evidence of his intent to commit the August 2012 robbery was not subject to reasonable dispute.

The Court noted that Dominguez’s counsel had repeatedly conceded Dominguez’s guilt of the attempted robbery.[20] Moreover as to the second “substantial step toward” element, the Court found that the evidence overwhelmingly showed that Dominguez had the specific intent to commit the robbery and had taken a “substantial step” toward its completion – arming himself with a handgun and driving to within about a block of the planned robbery with his accomplice, turning around only because he got ensnared in the fake crime scene.

Dominguez argued that he did not take a substantial step toward the robbery because he turned around about a block away from the warehouse, a physical distance greater than the proximity of the would-be robbers in United States v. Buffington[21] and United States v. Still[22] (cases in which the Ninth Circuit had found that the evidence was insufficient to show that defendants had taken a substantial step). However, the Court explained that what mattered was whether the defendants had progressed far enough that, absent independent circumstances, they would complete the robbery.

In light of recent Supreme Court cases, the Ninth Circuit reiterated its previous holding that Hobbs Act armed robbery was a crime of violence for purposes of 18 U.S.C. section 924(c)(3)(A). See United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993). The Court held that when a substantive offense was a crime of violence under Section 924(c)(3)(A), an attempt to commit that offense was also a crime of violence.[23]

The Ninth Circuit stated that attempted Hobbs Act armed robbery was a crime of violence for purposes of Section 924(c) because its commission required proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion. The Court explained that it did not matter that the substantial step was not itself a violent act or even a crime; what mattered was that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it. The Court observed that the definition of “crime of violence” in Section 924(c)(3)(A) explicitly included not just completed crimes, but those felonies that had the “attempted use” of physical force as an element; and that it was impossible to commit attempted Hobbs Act robbery without specifically intending to commit every element of the completed crime, which included the commission or threat of physical violence.

The Ninth Circuit reversed the conviction for money laundering, but affirmed the remainder of the judgment. Dissenting in part, Judge Nguyen wrote that attempted Hobbs Act robbery plainly did not fit the definition of a crime of violence under the elements clause, Section 924(c)(3)(A), because attempted Hobbs Act robbery could be committed without any actual use, attempted use, or threatened use of physical force.

[1] 308 Kan. 590, 591, 422 P. 3d 64, 66 (2018).

[2] Id., at 595-597, 422 P. 3d, at 68-70.

[3] See United States v. Arvizu, 534 U. S. 266, 274 (2002).

[4] See, e.g., 2 T. Neuman et al., National Coop. Hwy. Research Program Report 500: A Guide for Addressing Collisions Involving Unlicensed Drivers and Drivers With Suspended or Revoked Licenses, p. III-1 (2003) (noting that 75% of drivers with suspended or revoked licenses continue to drive).

[5] The quotes in the paragraph are taken the federal District Court’s recount of the attack.

[6] The Ninth Circuit cited its applications of Farmer v. Brennan in Lemire v. California Department of Corrections and Rehabilitation, 726 F.3d 1062, 1068 (9th Cir. 2013); Clem v. Lomeli, 566 F.3d 1177, 1180 (9th Cir. 2009); and Cortez v. Skol, 776 F.3d 1046, 1049 (9th Cir. 2015).

[7] Taylor v. Barkes, 575 U.S. 822, 135 S.Ct. 2042, 2044, 192 L. Ed. 2d 78 (2015) (per curiam) (quotation marks omitted).

[8] See, e.g., Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017).

[9] See Riley v. California (2014) 573 U.S. 373, 387: “[o]nce an officer has secured a phone and eliminated any potential physical threats … data on the phone can endanger no one”.

[10] (a)

(1) Commencing January 1, 2018, the sale of ammunition by any party shall be conducted by or processed through a licensed ammunition vendor.

(2) When neither party to an ammunition sale is a licensed ammunition vendor, the seller shall deliver the ammunition to a vendor to process the transaction. The ammunition vendor shall promptly and properly deliver the ammunition to the purchaser, if the sale is not prohibited, as if the ammunition were the vendor’s own merchandise. If the ammunition vendor cannot legally deliver the ammunition to the purchaser, the vendor shall forthwith return the ammunition to the seller. The ammunition vendor may charge the purchaser an administrative fee to process the transaction, in an amount to be set by the Department of Justice, in addition to any applicable fees that may be charged pursuant to the provisions of this title.

(b) Commencing January 1, 2018, the sale, delivery, or transfer of ownership of ammunition by any party may only occur in a face-to-face transaction with the seller, deliverer, or transferor, provided, however, that ammunition may be purchased or acquired over the Internet or through other means of remote ordering if a licensed ammunition vendor initially receives the ammunition and processes the transaction in compliance with this section and Article 3 (commencing with Section 30342) of Chapter 1 of Division 10 of Title 4 of this part.

[11] The group included an Olympic medalist in skeet and double trap shooting who used specialized competition ammunition and a Master Hunter Education Instructor under the California Department of Fish and Wildlife Hunter Education Program.

[12] See also Luis v. United States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (quoting Jackson, 746 F.3d at 967): “Constitutional rights thus implicitly protect those closely related acts necessary to their exercise . . . The right to keep and bear arms, for example ‘implies a corresponding right to obtain the bullets necessary to use them.’”

[13] The Court observed that “California already has an universal background check for firearms, an ‘assault weapon’ ban, a ban on magazines holding more than 10 rounds, a gun registry, firearm confiscation orders, a minimum gun purchase age of 21 years, a limit of one firearm purchase per month, a requirement that would-be gun buyers first earn a safety certificate, a 10-day waiting period on gun purchases even for persons who already own a firearm, a ban on campus carry for self-defense, a ban on K-12 teachers being armed for self-defense, a ban on openly carrying a firearm, a highly restrictive concealed carry law, and a moribund roster of handguns permitted for retail sale, among others.”

[14] U.S. Department of Justice, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2015 Statistical Tables, (Nov. 2017) at Table 3.

[15] 494 U. S. 472, 482-483 (1990).

[16] Justice Thomas did not join Part IV-B of the dissent.

[17] Section 1983 claims permit the recovery of damages.

[18] 554 U.S., at 635.

[19] Id., at 577-605, 628-629.

[20] See, e.g., United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991).

[21] 815 F.2d 1292 (9th Cir. 1987).

[22] 850 F.2d 607 (9th Cir. 1988).

[23] See United States v. Ingram, 947 F.3d 1021 (7th Cir. 2020); United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018); Hill v. United States, 877 F.3d 717 (7th Cir. 2017).