Case 3:18-cv-07653-JD Document 18 Filed 03/22/19 Page 1 of 15

1 XAVIER BECERRA
Attorney General of California
2 ANTHONY R. HAKL
Supervising Deputy Attorney General
3 MAUREEN C. ONYEAGBAKO
Deputy Attorney General
4 State Bar No. 238419
1300 I Street, Suite 125
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916) 210-7324
Fax: (916) 324-8835
7 E-mail: Maureen.Onyeagbako@doj.ca.gov
Attorneys for Attorney General Xavier Becerra,
8 Martin Horan, and Robert D. Wilson

9 IN THE UNITED STATES DISTRICT COURT

10 FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12

13
CHAD LINTON, an individual; PAUL 3:18-cv-7653-JD
14 MCKINLEY STEWART, an individual;
FIREARMS POLICY FOUNDATION;
15 FIREARMS POLICY COALITION;
SECOND AMENDMENT FOUNDATION; DEFENDANTS’ REPLY IN SUPPORT
16 THE CALGUNS FOUNDATION; and OF MOTION TO DISMISS COMPLAINT
MADISON SOCIETY FOUNDATION, FOR DECLARATORY AND
17 INJUNCTIVE RELIEF
Plaintiffs,
18
v.
19

20 XAVIER BECERRA, in his official capacity Date: May 2, 2019

as Attorney General of California; Time: 10:00 a.m.
21 MARTIN HORAN, in his official capacity Dept: 11
as Acting Chief of the Department of Justice Judge: The Honorable James Donato
22 Bureau of Firearms; and ROBERT D. Trial Date: Not Set
WILSON, in his official capacity as Deputy Action Filed: December 20, 2018
23 Attorney General,

24 Defendants.

25

26

27

28

Defs.’ Reply ISO Mot. to Dismiss Compl. (3:18-cv-7653-JD)

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1 TABLE OF CONTENTS
2 Page
3 Introduction ..................................................................................................................................... 1
Discussion ....................................................................................................................................... 1
4
I. Defendants Are Immune from Suit Because Plaintiffs Have Not
5 Established More Than a Generalized Duty to Enforce State Law ........................ 1
II. Plaintiffs Lack Standing .......................................................................................... 3
6
A. Associational Standing ................................................................................ 3
7 B. The Individual Plaintiffs Lack Standing ..................................................... 4
8 C. Plaintiffs Lack Standing Under the Privileges and Immunities
Clause .......................................................................................................... 5
9 III. Plaintiffs Do Not Sufficiently Allege a Second Amendment Claim ...................... 6
10 IV. Plaintiffs Fail to State a Claim Under the Full Faith and Credit Clause ................. 8
V. Plaintiffs Have Not Stated a Privileges and Immunities Claim .............................. 9
11
VI. Plaintiffs Have Not Stated a Fourteenth Amendment Privileges or
12 Immunities Claim .................................................................................................. 10
Conclusion .................................................................................................................................... 10
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1 TABLE OF AUTHORITIES
2 Page
3
CASES
4
Am. Baptist Churches in the U.S.A. v. Meese
5 712 F. Supp. 756 (1989)..............................................................................................................4
6
Associated General Contractors of America v. California Department of
7 Transportation
713 F.3d 1187 (9th Cir. 2013).....................................................................................................4
8
Association des Eleveurs de Canards et d’Oies du Quebec v. Harris
9 729 F.3d 937 (9th Cir. 2013)...................................................................................................1, 2
10 Baker v. Gen. Motors Corp.
522 U.S. 222 (1998) ..............................................................................................................9, 10
11

12 Bano v. Union Carbie Corp.

361 F.3d 696 (2d Cir. 2004) ........................................................................................................3
13
Binderup v. Attorney General
14 836 F.3d 336 (3d Cir. 2016) ........................................................................................................7
15 Bolbol v. Brown
120 F. Supp. 3d 1010 (N.D. Cal. 2015) ......................................................................................2
16
Council of Ins. Agents & Brokers v. Molasky-Arman
17
522 F.3d 925 (9th Cir. 2008).......................................................................................................5
18
Durfee v. Duke
19 375 U.S. 106 (1963) ....................................................................................................................9

20 Finstuen v. Crutcher
496 F.3d 1139 (10th 2007) ..........................................................................................................8
21
Hunt v. Washington State Apple Advertising Comm’n
22
432 U.S. 343 (1977) ....................................................................................................................3
23
Jackson v. City and Cty. of San Francisco
24 746 F.3d 953 (9th Cir. 2014).......................................................................................................6

25 Kaahumanu v. Hawaii
682 F.3d 789 (9th Cir. 2012).......................................................................................................4
26
L.A. Cty. Bar Ass’n v. Eu
27 979 F.2d 697 (9th Cir. 1992).......................................................................................................2
28
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1 TABLE OF AUTHORITIES
(continued)
2 Page
3 McDonald v. City of Chicago
561 U.S. 742 (2010) ..................................................................................................................10
4
Rosin v. Monken
5
599 F.3d 574 (7th Cir. 2010).......................................................................................................9
6
Slaughter-House Cases
7 83 U.S. 36 (1872) ......................................................................................................................10

8 Summers v. Earth Island Institute

555 U.S. 488 (2009) ....................................................................................................................4
9
Underwriters Nat. Assur. Co. v. N. Carolina Life & Acc. & Health Ins.
10 Guar. Ass’n
11 455 U.S. 691 (1982) ....................................................................................................................9

12 United States v. Chovan

735 F.3d 1127 (9th Cir. 2013).................................................................................................6, 7
13
United States v. Vongxay
14 594 F.3d 1111 (9th Cir. 2010).....................................................................................................7
15 V.L. v. E.L.
136 S. Ct. 1017 (9th Cir. 2016) ...................................................................................................8
16

17 Walsh v. City and County of Honolulu

423 F. Supp. 2d 1094 (D. Haw. 2006) ........................................................................................5
18
Warth v. Seldin
19 422 U.S. 490 (1975) ....................................................................................................................3
20 Western Watersheds Project v. Kraayenbrink
632 F.3d 472 (9th Cir. 2011).......................................................................................................4
21

22 Williams v. State of N.C.

325 U.S. 226 (1945) ....................................................................................................................9
23
STATUTES
24
United States Code
25 Title 18, § 922(g)(9) ....................................................................................................................7
26 California Penal Code
§ 29800 ....................................................................................................................................1, 6
27
§ 30305 ....................................................................................................................................1, 6
28
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1 INTRODUCTION

2 Plaintiffs’ opposition glosses over the numerous deficiencies of their Complaint. Plaintiffs

3 cannot identify any direct involvement by Defendants in the conduct alleged or how Defendants

4 acted on more than a generalized duty to enforce California laws. Additionally, Plaintiffs’

5 cursory standing arguments do not address the need for individualized proof to establish

6 associational standing. As for the Second Amendment claim, California Penal Code section

7 29800 and 30305 fall within the category of laws that are presumptively valid and do not burden

8 conduct regulated by the Second Amendment. Moreover, Plaintiffs’ Full Faith and Credit

9 argument is non-responsive to the fact that the set-aside orders 1 from Washington and Arizona do

10 not constitute judgments and that the convictions are still recognized in those states under certain

11 circumstances. Finally, Plaintiffs concede that the Privileges or Immunities Clause of the

12 Fourteenth Amendment does not recognize the right to bear arms, and this Court should reject

13 any attempt to evade a motion to dismiss with a purported due process claim that is not alleged in

14 the Complaint. Accordingly, the Court should dismiss the Complaint with prejudice.

15 DISCUSSION

16 I. DEFENDANTS ARE IMMUNE FROM SUIT BECAUSE PLAINTIFFS HAVE NOT

ESTABLISHED MORE THAN A GENERALIZED DUTY TO ENFORCE STATE LAW
17

18 The Opposition argues that Defendants are not immune from suit because “plaintiffs are

19 specifically challenging the defendants’ policies, practices, and customs, as promulgated,

20 implemented and enforced by the defendants, which refuse to honor the judgments of other states

21 that vacated or otherwise exonerated those disqualifying convictions, and which otherwise refuse

22 to honor the out-of-state restoration of an individual’s firearms rights.” (Opp’n 5 (citing Compl.

23 ¶ 3).) Plaintiffs also rely heavily on Association des Eleveurs de Canards et d’Oies du Quebec v.

24 Harris, 729 F.3d 937 (9th Cir. 2013) (“Quebec”), for the contention that where a combination of

25 statutory provision of enforcement power and duty to prosecute exist, the Attorney General

26 cannot avoid the Ex Parte Young exception. (Opp’n 4.) From this, Plaintiffs argue that the

27
1
Defendants’ short-hand reference to “set-aside” order includes both types of orders
28 issued by the Washington and Arizona courts with respect to the Individual Plaintiffs.
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1 Department of Justice’s exclusive responsibility for running background checks for firearms sales

2 and the Attorney General’s mandatory duty to run criminal history checks, and the running of

3 background checks by the Bureau of Firearms, are sufficient to subject Defendants to suit. (Id.

4 at 5; see also id. at 5 (“all defendants here have a direct, non-delegable and statutorily-mandated

5 connection to enforcement of the statutes in question.”).)

6 The Complaint here does not establish the combination of powers that were present in

7 Quebec. Absent express provisions that require Defendants to enforce the law and prosecute, the

8 Ex Parte Young exception remains intact. Cf. Bolbol v. Brown, 120 F. Supp. 3d 1010, 1019 (N.D.

9 Cal. 2015) (Attorney General entitled to Eleventh Amendment immunity because statute in

10 question “does not empower district attorneys to enforce the law, and accordingly the Attorney

11 General’s enforcement power is limited to her general duty to enforce the law.”) The fact that the

12 Department of Justice’s Bureau of Firearms provides the mechanism for regulating firearms,

13 conducting background checks, and managing the Armed Prohibited Persons System (“APPS”)

14 program, for example, does not change the analysis. Cf. id. (“[Statute] simply provides the

15 mechanism by which a restraining order or injunction is provided to local law enforcement whose

16 responsibility it will be to ensure the respondent complies with its terms.”).

17 Even if this Court were to find that the Attorney General has the alleged combination of

18 power and duty, that same combination does not extend to Director Horan and Deputy Wilson

19 here. They have no independent duty or authority to execute the alleged policy and are

20 unnecessary defendants. At most, they are simply part of the mechanism by which the Attorney

21 General executes his general law enforcement powers and they should not be subject to suit. See,

22 e.g., L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (“This connection must be

23 fairly direct; a generalized duty to enforce state law or general supervisory power over the

24 persons responsible for enforcing the challenged provision will not subject an official to suit.”)

25 (citations omitted).

26 The Complaint contains no factual allegations from which this Court can plausibly

27 conclude Defendants have a “fairly direct” connection with the enforcement of the alleged

28 policies beyond a general duty to enforce California law.

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1 II. PLAINTIFFS LACK STANDING

2 A. Associational Standing

3 The Opposition does not contest that the Entity Plaintiffs lack direct Article III standing,

4 and therefore Plaintiffs concede that point. The Opposition also concedes that Plaintiffs Linton

5 and Stewart are not members of the Madison Society Foundation (MSF). (Opp’n 7.)

6 Accordingly, MSF lacks direct and associational standing and should be dismissed.

7 The Opposition also fails to address the fact that the claims asserted and relief requested

8 require the participation of the individual members. (Defs.’ Mem. 10.) Under Hunt v.

9 Washington State Apple Advertising Comm’n, 432 U.S. 343 (1977), an association only has

10 standing if “neither the claim asserted nor the relief requested requires the participation of

11 individual members in the lawsuit.” Hunt, 432 U.S. at 343. The Entity Plaintiffs here lack

12 associational standing because granting the relief requested requires this Court to conduct an

13 individualized review of the laws setting aside convictions and restoring firearms rights in

14 Arizona and Washington, and any other state where “similarly situated” members may be found.

15 See, e.g., Bano v. Union Carbie Corp., 361 F.3d 696, 714 (2d Cir. 2004) (“where the organization

16 seeks a purely legal ruling without requesting the federal court award individualized relief to its

17 members, the Hunt test may be satisfied”) (emphasis added).

18 Here, the Complaint does not distinguish which Plaintiffs seek which relief and collectively

19 requests declarations “as applied to Individual Plaintiffs and others similarly-situated to them[.]”

20 (Compl., Prayer for Relief, ¶¶ 1, 2, 3.) This is not a case where once issues are proved as to some

21 members, it will be proved as to all. Laws differ from state to state, and the Entity Plaintiffs have

22 members in multiple states. It is also easy to envision a scenario where a set-aside decision could

23 be complicated by subsequent criminal history or circumstances that will vary by individual. As

24 such, the Entity Plaintiffs cannot adequately serve in a representative capacity for all of its

25 members. Id. at 343 (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975) (“[S]o long as the nature

26 of the claim of the relief sought does not make the individual participation of each injured party

27 indispensable to proper resolution of the case, the association may be an appropriate

28
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1 representative for its members[.]”); see also Am. Baptist Churches in the U.S.A. v. Meese, 712 F.

2 Supp. 756 (1989).

3 Plaintiffs unpersuasively rely on three cases in support of their associational standing

4 contentions. (Opp’n 7.) Associated General Contractors of America v. California Department of

5 Transportation, 713 F.3d 1187, 1194–95 (9th Cir. 2013), is unavailing because the association

6 was the sole plaintiff and the case did not address circumstances where individual members are

7 also named as plaintiffs seeking to vindicate their own rights, which is the situation here. 2

8 Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), involved an action by

9 intervenors seeking associational standing on behalf of its members. Id. at 482. The decision

10 does not reflect that the individual plaintiff was a member of the intervenor associations or that he

11 was suing to vindicate his own rights, as is the case here. And Kaahumanu v. Hawaii, 682 F.3d

12 789 (9th Cir. 2012), is of limited value because it makes no mention of whether the individual

13 plaintiff there was a member of the plaintiff associations. The court found that the organization

14 had standing based on declarations from its members, none of whom was the individual plaintiff.

15 Id. at 796–97. Where, as here, the Individual Plaintiffs are vindicating their own rights and the

16 organizations have not shown that any other members suffer a similar fate, an association is not

17 adequate to sue on behalf of members other than the Individual Plaintiffs. Thus, this Court

18 should dismiss the Entity Plaintiffs because they have not adequately alleged direct or

19 associational standing.

20 B. The Individual Plaintiffs Lack Standing

21 The Individual Plaintiffs have filed suit based on Defendants’ alleged policy of failing to

22 recognize judgments from other states. But Plaintiffs have not sufficiently alleged or otherwise

23 shown that the Washington and Arizona set-aside orders for Linton and Stewart, respectively, in

24 fact constitute judgments from those states. Thus, Plaintiffs have not shown, and cannot show,

25
2
Associated General Contractors of America cites to Summers v. Earth Island Institute,
26 555 U.S. 488 (2009), which reinforces the need for courts to be vigilant when examining
associational standing. “A major problem with the dissent’s approach is that it accepts the
27 organizations’ self-descriptions of their membership, on the simple ground that ‘no one denies’
them[.] But it is well established that the court has an independent obligation to assure that
28 standing exists[.]” Summers, 555 U.S. at 499.
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1 any injury from any failure to recognize any judgment. For this reason, Linton and Stewart lack

2 individual standing.

3 C. Plaintiffs Lack Standing Under the Privileges and Immunities Clause

4 Plaintiffs argue that they have stated a Privileges and Immunities Clause claim because they

5 directly asserted a deprivation of the right to travel in paragraph 74 of the Complaint. (Opp’n 14.)

6 But paragraph 74 does not contain any factual allegations, only conclusions of law that are

7 insufficient to state a claim for relief. (See Compl. ¶ 74.) Plaintiffs also argue that as long as they

8 “have sufficiently alleged the three elements of Article III standing, it is immaterial where they

9 currently reside” for purposes of a Privileges and Immunities Clause claim. (Opp’n 14.) But as

10 discussed above, the Entity Plaintiffs lack direct or associational standing. And based on the fact

11 that the Individual Plaintiffs have not presented final judgments from Arizona and Washington,

12 but rather orders from those states, they lack standing as well.

13 Plaintiffs also argue that there is no residency requirement for a Privileges and Immunities

14 claim but they do not address how that squares with the purpose of the clause, which is to bar

15 discrimination against citizens of other states where there is no substantial reason for the

16 discrimination beyond their status as residents of other states. Council of Ins. Agents & Brokers

17 v. Molasky-Arman, 522 F.3d 925, 934 (9th Cir. 2008). Further, Plaintiffs citation to Walsh v. City

18 and County of Honolulu, 423 F. Supp. 2d 1094 (D. Haw. 2006), for the proposition that the

19 presence of a discriminatory policy is sufficient to allege standing, is misplaced. (Opp’n 14.)

20 Walsh involved a challenge to the constitutionality of Hawaii’s pre-employment residency

21 requirement and the rejection of plaintiffs’ employment applications because they were not legal

22 residents of Hawaii at the time of their applications. Walsh, 423 F. Supp. 2d at 1097–98. While

23 one of the plaintiffs subsequently moved to Hawaii, he was still not considered a Hawaii resident.

24 Id. at 1100–01, see also id. at 1100 (quoting from plaintiff’s declaration, which confirmed his

25 non-resident status). Plaintiffs’ status as California residents is not in dispute here. Thus,

26 Plaintiffs lack standing to bring a claim under the Privileges and Immunities Clause under

27 Article IV of the Constitution, and this Court should reject their arguments to apply heightened

28 scrutiny to the claim. (Opp’n 14.)

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1 III. PLAINTIFFS DO NOT SUFFICIENTLY ALLEGE A SECOND AMENDMENT CLAIM

2 In their Second Amendment argument, Plaintiffs contend that “California Penal Code

3 sections 29800 and 30305 “are not really the issue.” (Opp’n 8.) Instead, Plaintiffs contest

4 Defendants policies, “which refuse to honor out-of-state judgments vacating or setting aside those

5 felony convictions, and expressly restoring a person’s Second Amendment rights in their states of

6 origin.” (Id.) Plaintiffs misstate these alleged policies and practices, which are simply

7 Defendants’ ordinary application of the California Penal Code to the circumstances at hand. In

8 applying those laws, Defendants need not ask whether the law in any other state would permit the

9 result. Nor must Defendants bend California law to the law of other states. And even if this

10 Court were to assume, arguendo, that a policy refusing to accept sister-state judgments exists,

11 which it does not, the Complaint still fails because the set-aside orders from the other states do

12 not constitute judgments, a fact that Plaintiffs fail to address.

13 Plaintiffs also erroneously contend that Defendants provide no support for the argument

14 that California Penal Code sections 29800 and 30305 qualify as longstanding prohibitions that are

15 presumptively lawful and outside of Second Amendment regulation. (Id.) Defendants’

16 memorandum cited to relevant case law and the 1917 Dangerous Weapons Control Act, which

17 was the predecessor to sections 29800 and 30305. (Defs.’ Mem. 13.) Analogous support also

18 comes from United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), which discusses how the

19 Federal Firearms Act of 1938 restricted firearm possession for individuals convicted of a “crime

20 of violence,” the definition of which included mayhem and burglary. Chovan, 735 F.3d at 1137.

21 The Individual Plaintiffs’ convictions for attempting to evade a police officer and first degree

22 burglary fall squarely into this category. Thus, the Second Amendment claim cannot go forward

23 because sections 29800 and 30305 are presumptively valid regulations and Plaintiffs cannot show

24 that those laws, or the alleged policies enforcing those laws, “burden[] conduct protected by the

25 Second Amendment.” Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir.

26 2014).

27 Further, this Court should not accept Plaintiffs’ attempts to force the second step of the

28 Second Amendment analysis by characterizing their offenses as non-serious and analogizing

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1 Plaintiffs Linton and Stewart to the misdemeanants in Binderup v. Attorney General, 836 F.3d

2 336 (3d Cir. 2016), and United States v. Chovan. Plaintiffs highlight Binderup for the proposition

3 that “[o]nly the seriousness of the original crime was relevant to determine if a convicted person

4 fell outside the scope of the Second Amendment . . . and that the plaintiffs’ crimes [in Binderup]

5 were not sufficiently serious to warrant lifetime disarmament.” (Opp’n 10 (citing Binderup, 836

6 F.3d at 349–50, 353).) But the fact that the Binderup plaintiffs were convicted of misdemeanors

7 (corrupting a minor and driving while intoxicated) played a significant role in the Third Circuit’s

8 finding that the statute was unconstitutional as applied to those individuals. Binderup, 836 F.3d

9 at 340. Those facts do not present themselves in a case for felony convictions involving

10 attempting to evade a police officer and first degree burglary. Thus, Plaintiffs cannot distinguish

11 Plaintiffs Linton and Stewart from those who are traditionally disarmed as a result of prior

12 criminal conduct.

13 Similarly, Plaintiffs’ interpretation of United States v. Chowan fails to accept the

14 significance of the domestic violence misdemeanor conviction in that case. It was determinative

15 in deciding whether 18 U.S.C. § 922(g)(9) substantially burdened plaintiff Chovan’s Second

16 Amendment rights. Chovan, 735 F.3d at 1138; see also id. at 1144 (Bea, J., concurring) (“At

17 common law, there was a fundamental difference between felons and misdemeanants. . . .

18 [T]oday, felons can suffer numerous restrictions on their constitutional rights. . . . Indeed, as this

19 court has held, ‘felons are categorically different from the individuals who have a fundamental

20 right to bear arms.’”) (citing cases, including United States v. Vongxay, 594 F.3d 1111, 1115 (9th

21 Cir. 2010)).

22 The felony convictions at issue in this case are inapposite to the misdemeanor convictions

23 in Binderup and Chovan regardless of the crime-free story that the Complaint tries to emphasize

24 about the Individual Plaintiffs’ lives since their convictions. Thus, this Court need not move

25 beyond the first step of the Second Amendment analysis that asks whether the challenged law

26 burdens conduct protected by the Second Amendment analysis. The claim should be dismissed

27 without leave to amend.

28
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1 IV. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE FULL FAITH AND CREDIT CLAUSE

2 The Opposition reflects Plaintiffs’ understanding that the Full Faith and Credit Clause does

3 not require California to subordinate its statutes to those of other states. (Opp’n 12.) So all

4 Plaintiffs are left with is an argument about not recognizing judgments from other states. But the

5 Opposition fails to address the fact that the set-aside orders in Washington and Arizona do not

6 constitute judgments of those states. (Compare Defs.’ Mem. 14–15 and Opp’n 12–13.) The

7 distinction between orders and judgments is underscored by the fact that the Individual Plaintiffs’

8 convictions are still recognized in Washington and Arizona in a variety of contexts despite the

9 set-aside orders. (See Defs.’ Mem. 14.) So even if this Court were to accept the argument that

10 this case is not about the statutes but rather a policy to not recognize sister-state judgments,

11 Plaintiffs lack standing because they have not shown there is a judgment that has not been

12 recognized, and nothing in the Full Faith and Credit Clause requires Defendants to subordinate

13 California law to set-aside orders from other states.

14 Plaintiffs argue that a public safety concern is not relevant to California’s decision to

15 recognize an out-of-state order but the cases they rely on do not support their cause because the

16 cases are specifically about judgments from other states, not orders. (Opp’n 12–13.) Plaintiffs

17 cite to a Tenth Circuit decision and argue that “notwithstanding Oklahoma’s public policy, its

18 refusal to recognize final adoption orders of other states that permit adoption by same-sex couples

19 was unconstitutional.” (Id. at 13 (citing Finstuen v. Crutcher, 496 F.3d 1139, 1153 (10th 2007)).)

20 But Finstuen did not address adoption orders. It expressly discussed “out-of-state adoption

21 judgments” and ruled that “with respect to final judgments entered in a sister state, it is clear there

22 is no ‘public policy’ exception to the Full Faith and Credit Clause.” (Finstuen, 496 F.3d at 1152,

23 1153.) Plaintiffs also cite to the Supreme Court’s decision in V.L. v. E.L., 136 S. Ct. 1017 (9th

24 Cir. 2016), but that case says nothing about orders and is squarely focused on “a final judgment of

25 adoption.” (V.L., 136 S. Ct. at 1019.) Because Plaintiffs have not established that the set-aside

26 orders should be treated as judgments, they fail to state a full faith and credit claim.

27 Even if the orders were considered judgments for purposes of the Full Faith and Credit

28 Clause, California would still not have to give it effect. California is required to recognize sister
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1 state judgments in order to implement res judicata principles. See Baker v. Gen. Motors Corp.

2 (1998) 522 U.S. 222, 233. But there is a caveat to this otherwise strict rule: “a judgment of a

3 court in one State is conclusive upon the merits in a court in another State only if the court in the

4 first State had power to pass on the merits—had jurisdiction, that is, to render the

5 judgment.” Durfee v. Duke, 375 U.S. 106, 110 (1963); accord Baker, 522 U.S. at 233. “The

6 Constitution did not mean to confer (upon the States) a new power or jurisdiction, but simply to

7 regulate the effect of the acknowledged jurisdiction over persons and things within their

8 territory.” Williams v. State of N.C., 325 U.S. 226, 228 (1945) (Nevada court could not nullify

9 power of North Carolina to grant a divorce). Thus, “[i]f [the court rendering judgment] did not

10 have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be

11 given.” Underwriters Nat. Assur. Co. v. N. Carolina Life & Acc. & Health Ins. Guar. Ass’n, 455

12 U.S. 691, 705 (1982); accord Rosin v. Monken, 599 F.3d 574, 577 (7th Cir. 2010) (sex offender

13 exempt from registration requirements in New York not exempt from registration requirements in

14 Illinois; “Illinois need not dispense with its preferred mechanism for protecting its citizenry by

15 virtue merely of a foreign judgment that envisioned less restrictive requirements’ [sic] being

16 imposed on the relevant sex offender. Illinois, as a state of the Union, has police power over the

17 health and welfare of its citizens.”) Here, Washington and Arizona had no jurisdiction to give the

18 Individual Plaintiffs the right to possess firearms while they are in California and subject to

19 California’s laws. California has the police power to protect the welfare of its citizens and may

20 use its preferred mechanism for doing so, which includes enforcing its restrictions on who may

21 possess firearms within its borders. Thus, the Full Faith and Credit Clause does not require

22 California to recognize the set-aside orders even if they are considered judgments.

23 V. PLAINTIFFS HAVE NOT STATED A PRIVILEGES AND IMMUNITIES CLAIM

24 Plaintiffs seem to argue that because California has a mechanism for restoring rights to

25 individuals convicted of wobbler offenses, its process is similar to that of Washington and

26 Arizona and, thus, California should recognize the set-aside orders from those states. (Opp’n 13.)

27 But California has exclusive jurisdiction over adjudication of its offenses, just as Arizona and

28 Washington have exclusive jurisdiction over adjudication of offenses within their borders.
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1 Similar to the full-faith-and-credit argument, because California has no control over the manner

2 in which those states reinstate the right to possess firearms and ammunition within their borders,

3 California must not be compelled to accept orders from those states. Cf. Baker, 522 U.S. at 235

4 (“Orders commanding action or inaction have been denied enforcement in a sister State when

5 they purported to accomplish an official act within the exclusive province of that other State[.]”).

6 VI. PLAINTIFFS HAVE NOT STATED A FOURTEENTH AMENDMENT PRIVILEGES OR

IMMUNITIES CLAIM
7

8 Plaintiffs concede that McDonald v. City of Chicago, 561 U.S. 742 (2010), did not disturb

9 the reasoning in the Slaughter-House Cases, 83 U.S. 36 (1872), or its conclusion that the

10 Privileges or Immunities Clause of the Fourteenth Amendment does not encompass the right to

11 bear arms. While the McDonald court noted disagreement in the reasoning of the Slaughter-

12 House Cases, it did not, as Plaintiffs contend here, find that the reasoning was not creditable.

13 (Opp’n 15.) Rather, the court found “no need to reconsider that interpretation here.” McDonald,

14 561 U.S. at 758. Unable to get around that fact, Plaintiffs claim it does not matter because the

15 right to bear arms applies to the states through the Fourteenth Amendment’s Due Process Clause.

16 (Opp’n 15.) But the Complaint does not state a due process claim and this Court should reject

17 any attempt to amend by converting the Privileges or Immunities claim into a due process claim.

18 Because the Complaint does not allege facts sufficient to support a Privileges or Immunities

19 claim under the Fourteenth Amendment, it should be dismissed without leave to amend.

20 CONCLUSION
21 For the foregoing reasons, the Court should dismiss the entire Complaint with prejudice.

22 Dated: March 22, 2019 Respectfully Submitted,

23 XAVIER BECERRA
Attorney General of California
24 ANTHONY R. HAKL
Supervising Deputy Attorney General
25 /S/ MAUREEN C. ONYEAGBAKO
MAUREEN C. ONYEAGBAKO
26 Deputy Attorney General
Attorneys for Attorney General Xavier
27 Becerra, Martin Horan, and Robert D.
Wilson
28 SA2019100119 / 13573489.docx
10
Defs.’ Reply ISO Mot. to Dismiss Compl. (3:18-cv-7653-JD)
 Case 3:18-cv-07653-JD Document 18 Filed 03/22/19 Page 15 of 15

CERTIFICATE OF SERVICE
Case Name: Linton, Chad, et al v. Xavier No. 3:18-cv-7653-JD
Becerra

I hereby certify that on March 22, 2019, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF

I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on March 22, 2019, at Sacramento, California.

Eileen A. Ennis /s/ Eileen A. Ennis

Declarant Signature

SA2019100119
13575366.docx