US judge disagrees with government that gun stores are essential businesses

Just days after Los Angeles County Sheriff Alex Villanueva announced he would not close gun stores during the coronavirus lockdown, following the Department of Homeland Security guidance that they are essential businesses, a federal judge has given him back that option.

U.S. District Judge Andre Birotte Jr. ruled Monday in Los Angeles against plaintiffs seeking a temporary restraining order to keep gun stores open. This is despite the fact Villanueva dropped the policy a week earlier, following an advisory memorandum from the Department of Homeland Security.

However, Villanueva said on Tuesday he had no plans to order the stores to close again.

“Even though a federal judge validated Sheriff Villanueva’s position regarding gun stores being ‘non-essential businesses’ under the safer-at-home orders, at this time he will not be changing his last directive given on March 30, 2020,” Deputy Trina Schrader said in an emailed statement.

Reached on Tuesday, the Firearms Policy Coalition Inc., which is one of the plaintiffs in the complaint, sent a statement critical of the ruling. Brandy v. Villanueva, 2:20-cv-02874-AB-SK (C.D. Cal., filed March 27, 2020).

The statement did note Birotte found Gov. Gavin Newsom’s executive order also did not force the closure of gun stores.

“The court’s utterly absurd and misguided constitutional analysis allowed the city of Los Angeles and other defendants to continue violating the fundamental, individual rights of millions of people,” the coalition said in part.

George M. Lee of Seiler Epstein LLP in San Francisco filed the complaint on behalf of two individuals, a pair of gun stores and a coalition of groups including the National Rifle Association of America. The complaint claimed closing gun stores violates the Second Amendment, citing District of Columbia v. Heller, 554 U.S. 570, 592 (2008), as well as the 14th Amendment. Attempts to reach Lee Tuesday were unsuccessful.

In his order, Birotte noted Villanueva dropped the policy and declared the case moot. But the judge left the door open for Villanueva to change his mind.

“This change in policy is not reflected in changes in ordinances or regulations, but rather came from Sheriff Villanueva’s public announcement,” he wrote. “Accordingly, because Sheriff Villanueva’s shift in policy could easily be abandoned or altered in the future, plaintiffs’ Second Amendment claim against the county order has not lost its character as a present, live controversy.”

Indeed, Villanueva’s attorneys went ahead with a reply brief filed on Friday. According to arguments submitted by Paul B. Beach, a shareholder with Lawrence Beach Allen & Choi PC in Glendale, the plaintiffs’ arguments are moot but also “without merit.” Beach did not return a call and email seeking comment.

“Plaintiffs’ fundamental contention is that the county defendants designated ... firearms and ammunition retailers as ‘non-essential’ businesses subject to closure. ... However, neither this order, nor any other COVID-19 response-related order issued by the Department of Public Health ever indicated that firearms retailers operating in the county of Los Angeles would be deemed to be ‘non-essential’ businesses subject to immediate closure,” Birotte wrote.

But Birotte went further, saying the plaintiffs’ claim was not ripe and the plaintiffs failed to “demonstrate a likelihood of success on the merits of their Second Amendment claim.”

He invoked a two-step test of whether a policy burdens Second Amendment rights and if an appropriate level of scrutiny has been applied, citing United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). He found intermediate scrutiny was appropriate because the policy stopped well short of a sweeping ban on guns.

Villanueva’s original order came in the wake of a March 4 emergency declaration from Newsom and a subsequent executive order. California Public Health Officer Sonia Angell issued subsequent guidance that suggested gun stores were considered non-essential. The U.S. government issued with its own guidance, reiterated by the Homeland Security directive.

New Jersey Gov. Philip Murphy dropped his own order closing gun stores last week after being hit with a similar legal challenge. But according to the National Rifle Association’s website, Massachusetts and New York have all closed gun stores, saying it is due to the virus. The group sued New York last week over the closures. The association lists California as one of four states where policies are “inconsistent/developing.”

Kris Brown, president of the gun control group Brady, issued a statement on Monday praising the ruling.

“The NRA is exploiting the current crisis to further a radical misinterpretation of the Second Amendment, one in which the public right to live safely can be infringed by a supposed individual right to buy a gun immediately, without restriction,” Brown said. “No court case has held that the Second Amendment includes such unlimited rights.”