Teixeira v. County of Alameda

[Al Norris]

A new case has been filed: Teixeira et al v. County of Alameda et al

The plaintiffs are John Teixeira, Steve Nobriga, Gary Gamaza, Calguns Foundation (CGF), Inc., Second Amendment Foundation (SAF), Inc. and the California Association of Federal Firearms Licensees (Cal-FFL).

The defendants are the County of Alameda, the Alameda Board of Supervisors and 3 of the supervisors.

The case was filed yesterday (June 25th) in the CA Northern District (San Francisco) and is case #4:12-cv-03288. Attorneys for the plaintiffs are Don Kilmer and Jason Davis.

The SAF made the announcement, today.

SAF SUES ALAMEDA COUNTY FOR CIVIL RIGHTS VIOLATION IN GUN SHOP CASE​

For Immediate Release: 6/26/2012

BELLEVUE, WA – The Second Amendment Foundation today filed a federal lawsuit against Alameda County, California and the county’s Board of Supervisors for violating the constitutional rights of three businessmen by wrongfully denying them permits to open a gun shop.

SAF is joined by the Calguns Foundation, California Association of Federal Firearms Licensees and businessmen John Teixeira, Steve Nobriga and Gary Gamaza. They are represented by attorneys Donald Kilmer of San Jose and Jason Davis of Rancho Santa Margarita.

“The facts in this case are outrageous,” said SAF founder and Executive Vice President Alan Gottlieb. “In the fall of 2010, Gamaza, Nobriga and Teixeira formed a business partnership with the intention of opening a gun store in Alameda County. When they began the process of getting permits to open their shop, they were advised of a requirement that gun stores not be located within 500 feet of any school, liquor store or residence.

“After carefully measuring distances between the shop’s front door and the front door of the nearest property,” he continued, “they found that they were well beyond the 500-foot limit. But then the county changed the measurement requirements.”

According to the lawsuit, the county next allowed an objection to be filed even though the deadline had passed for such objections, and even though the West County Board of Zoning Adjustments had voted to approve a conditional use permit and allow the gun store to operate.

“It is clear from the county Board of Supervisors’ behavior that they have gone out of their way to prevent three businessmen from opening a gun store in their jurisdiction,” Gottlieb stated. “This is a violation of their rights of equal protection and due process under the Fourteenth Amendment, and cannot be allowed to stand.”

“Social bigotry is bad enough when practiced by the media and the gun prohibition lobby,” Gottlieb concluded, “but when it becomes the official policy of an elected government panel, it then becomes necessary, if not imperative, for the courts to intervene.”

The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. In addition to the landmark McDonald v. Chicago Supreme Court Case, SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; New Orleans; Chicago and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and numerous amicus briefs holding the Second Amendment as an individual right.

The Docket is here: http://www.archive.org/download/gov.uscourts.cand.256462/gov.uscourts.cand.256462.docket.html You will note that the complaint is not on the docket. The docket was modified today and the complaint has yet to be listed.

I'll place this in the 2A Cases thread as soon as the complaint appears.

 

[Al Norris]

The complaint has been posted. http://www.archive.org/download/gov.uscourts.cand.256462/gov.uscourts.cand.256462.1.0.pdf

There are 4 claims against Alameda County.

1. Plaintiffs were denied Due Process (14th amend) by the actions of the county by violating their own appellate deadline rules.
2. Plaintiffs were denied Equal Protection (14th amend) by the county accepting unreasonable measurements against similarly situated business who have been granted zoning variances.
3. A Facial Challenge to the requirement that gun stores must be located at least 500 feet away from residential properties as such a rule violates the 2A RKBA.
4. An As Applied Challenge to the same.

In short, the plaintiffs were told that the distance requirement (Alameda County Land Use Regulations - Conditional Uses -Firearms Sales. 17.54.131) was measured from the closest door of the subject property to the front door of the disqualifying property.

The selected building has only one door - the front of the building facing the street. Plaintiffs were granted the variance (Resolution Z-11-70) on Dec. 14, 2011. Any appeals to this variance had until Dec. 26th to be filed.

The San Lorenzo Village Home Association filed an appeal (with measurements from the back wall of the building) with the County Board of Supervisors on Dec. 29th.

The plaintiffs were notified of this, by email, on Feb. 23rd. On Feb. 28, 2012, The Board voted to sustain the late filed appeal and overturned the decision of County Board of Zoning.

 

[ltc444]

I like to see 14th Amendment arguments. They are powerful and the plaintiffs can use the very words and decisions of Uber Liberal Judges in the 9th Circuit to support a subject which the Judges are loath to support.

 

[KyJim]

I'll just interject a definitely inexpert observation here. When you get to zoning ordinance, variances, and appeals, layers of complexity increase. I hope one of the attorneys has a good grounding in zoning and property law.

 

[hermannr]

This being a SAF suit, and that the SAF is based in Bellevue, WA..they should know about the law suit about zoning fight with the Buddhist temple in Bellevue.

Basically, the outcome was that zoning could NOT be used to restrict a constitutional RIGHT (freedom of worship)

 

[Aguila Blanca]

I'll just interject a definitely inexpert observation here. When you get to zoning ordinance, variances, and appeals, layers of complexity increase. I hope one of the attorneys has a good grounding in zoning and property law.

It doesn't take a land use expert to argue that once a municipality (or other level of government entity) promulgates a law, that law must be applied and enforced equally, objectively and uniformly. Otherwise, the government entity runs afoul of the equal protection clause in the Constitution, and their actions become "arbitrary and capricious." I'm not a lawyer, but I suspect this is probably first year law school subject matter.

The summary of the claims in the complaint are (as stated above):

There are 4 claims against Alameda County.

• Plaintiffs were denied Due Process (14th amend) by the actions of the county by violating their own appellate deadline rules.
• Plaintiffs were denied Equal Protection (14th amend) by the county accepting unreasonable measurements against similarly situated business who have been granted zoning variances.
• A Facial Challenge to the requirement that gun stores must be located at least 500 feet away from residential properties as such a rule violates the 2A RKBA.
• An As Applied Challenge to the same.

Note that the first two are based on the 14th amendment, so these don't require any special knowledge of land use law. The third is a simple challenge to enacting a land use law that contravenes a Constitutionally-guaranteed right. For the fourth, IANAL and I have no idea what an "as applied" challenge means.

 

[KyJim]

Note that the first two are based on the 14th amendment, so these don't require any special knowledge of land use law.

Ah, but are the appellate deadlines "jurisdictional" or can they also be waived? What similarly situated businesses are there? We've just seen in another case that the courts there are going to demand specific examples and then you can debate whether a meat packing plant (or whatever) is similar to a gun shop in a zoning context. I don't think it's at all simple. I hope I'm wrong.