McKinney v. Fresno County Sheriff's Office ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL GENE MCKINNEY, Case No. 1:22-cv-00475-ADA-EPG 11 Plaintiff, 12 v. ORDER REQUIRING JOINT STATUS REPORT 13 FRESNO COUNTY SHERIFF’S OFFICE, et al., (ECF Nos. 5, 9, 14) 14 Defendants. 15 16 17 Plaintiff Michael Gene McKinney, proceeding pro se, filed this lawsuit on April 21, 2022, 18 against Defendants Fresno County Sheriff’s Office, Fresno County Sheriff Margaret Mims, and 19 Fresno County Sheriff’s Captain Ryan Hushaw. (ECF No. 1). The complaint alleges that Defendants denied Plaintiff due process when he applied for a concealed carry license. 20 On June 2, 2022, Defendants filed a motion to dismiss Plaintiff’s complaint for 21 insufficient service of process and failure to state a claim for which relief can be granted. (ECF 22 No. 5). This motion was referred to the undersigned on September 12, 2022. (ECF No. 13). 23 Among other arguments, Defendants contend that Plaintiff has failed to allege that he meets 24 California’s requirements for a concealed carry license: 25 Finally, McKinney has not alleged that me meets the minimum requirements that 26 California law requires for the issuance of a CCW. Cal. Pen. Code, § 26150. California law only provides that “the sheriff of a county may issue a license to 27 that person” if that person proves that the person meets minimum qualifications. Cal. Penal Code, § 26150. Absent proof that McKinney meets the minimum legal 28 1 requirements for a CCW in California, the Sheriff does not have any discretion at all to issue him a CCW. 2 (Id. at 12). On June 28, 2022, Plaintiff moved to continue the hearing on the motion to dismiss 3 (although then presiding District Judge Dale A. Drozd had advised the parties that no hearing 4 would be held) stating that Plaintiff intended to obtain counsel. (ECF Nos. 6, 9). This motion 5 remains pending, and no counsel has yet appeared on behalf of Plaintiff. 6 On September 13, 2022, the parties submitted a joint status report to now presiding 7 District Judge Ana de Alba, noting that they “have stipulated to proper service of the complaint 8 and summons” and “[c]onsequently, argument III.A at pages 5-9 of Defendants’ motion to 9 dismiss (ECF No. 5) is moot and no longer requires a ruling from this court.” (ECF No. 14, p. 2). 10 Moreover, the parties state that they “intend to see whether any agreement can be reached 11 as to partial resolution of some pending issues” and will confer “within the next two weeks 12 following the filing of [the] Joint Status Report.” (Id. at 3). 13 Lastly, the Court notes that Defendants have filed a notice of supplemental authority 14 identifying, without elaboration, New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 15 2111 (2022) as a case that “may be relevant.” (ECF No. 10). This filing likely stems from § 26150(a)(2)’s requirement that “[g]ood cause exist[] for the issuance” of a concealed carry 16 license in California. Since the filing of the motion to dismiss, the Supreme Court concluded that 17 New York’s “proper-cause requirement violates the Fourteenth Amendment in that it prevents 18 law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear 19 arms.” Bruen, 142 S. Ct. at 2156. And the Supreme Court noted that California’s § 26150 was an 20 analogous statute to New York’s. Id. at 2124 n. 2. Regarding the implications of Bruen, the 21 Northern District of California has observed as follows: 22 The weightiest consideration is that . . . Bruen does not prohibit a state from 23 implementing a license requirement to carry a firearm . . . . Bruen has simply required California to discontinue application of its discretionary “good cause” 24 requirement in its licensing scheme. 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (observing, “the 6 States including New York [and California] 25 potentially affected by today’s decision may continue to require licenses for 26 carrying handguns for self-defense so long as those States employ objective licensing requirements” such as “fingerprinting, a background check, a mental 27 health records check, and training in firearms handling and in laws regarding the use of force”). This, indeed, is what California has done. See Legal Alert No. 28 1 OAG-2022-02, California Department of Justice, Office of the Attorney General (June 24, 2022) (providing guidance to local law enforcement officials about 2 California’s licensure requirements post-Bruen, including that the “good cause” 3 requirements in Cal. Penal Code §§ 26150(a)(2) and 26155(a)(2) “are inconsistent with the Second and Fourteenth Amendments”). 4 Dykes, v. Broomfield, No. 11-CV-04454-SI, 2022 WL 4227241, at *4 (N.D. Cal. Sept. 13, 2022). 5 Given the circumstances described above, the Court finds it prudent to obtain a joint status 6 | report from the parties. Accordingly, IT IS ORDERED as follows: 7 By no later than October 13, 2022, the parties shall file a joint status report addressing the 8 | following topics: 9 a. Whether the parties have been able to resolve any more issues in this case that 10 would affect the Court’s review of the pending motion to dismiss. 11 b. Whether the Court should order briefing on the applicability of New York State 12 Rifle & Pistol Ass’n, Inc. v. Bruen, 142 8S. Ct. 2111 (2022) to this case. 13 c. Whether Plaintiff still intends to obtain counsel, and if so, when Plaintiff 14 anticipates doing so. 1s d. And, if Defendants intend to proceed on the pending motion to dismiss, the parties 16 shall propose a briefing schedule for Plaintiff’s opposition brief and Defendants’ reply, if any. 17 18 | IT IS ORDERED. 19 a9 | Dated: _September 14, 2022 [Jee hey UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28