Teixeira v. County of Alameda

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Quote Of The Day

February 12, 2018 by 1 Comment

The quote of the day comes from a mid-20th century science fiction story called “The Weapon Shops of Isher” by A.E. van Vogt.

THE RIGHT TO BUY WEAPONS IS THE RIGHT TO BE FREE

Given that the US Supreme Court is considering whether to grant certiorari to Teixeira v. Alameda County, I thought it was highly timely. A post by David Kopel at the Volokh Conspiracy regarding an amicus brief he submitted on behalf of the Cato Institute, JPFO, the Independence Institute, and the Millennial Policy Center is what clued me into the book. It is still available on Amazon as a Kindle book as well as in a more expensive paperback and hardback edition.

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Gun Store Zoning Case Appealed To The Supreme Court

January 10, 2018 by

Alameda County, California includes cities such as Oakland, Pleasanton, and Berkeley. It also plays fast and loose with its zoning laws and how they interpret distances. John Teixeira and some associates wanted to open a gun store in an unincorporated area of Alameda County back in 2012. The zoning law there forbids gun stores within 500 feet of a residence, school, or liquor store. Teixeira met those requirements and was given a conditional use permit and variance from his local zoning board of adjustment. Then the Alameda County Board of Supervisors decided to change how distance was measured for zoning purposes. Thus, a survey of all empty lots showed that Teixeira could not meet the “new and improved” standards anywhere in the unincorporated areas of the county.

What the county did was institute a variant of “redlining”. In this case it was used to ban gun stores. In the past it was used to make sure that blacks and other minorities were restricted to living in certain areas. Both are a violation of civil rights.

Given this, Mr. Teixeira sued and was joined in his suit by the Second Amendment Foundation, the California Association of Federal Firearm Licensees, and the Calguns Foundation along with two other individual plaintiffs. The case was lost in US District Court but was initially a win before a three-judge panel of the 9th Circuit Court of Appeals. I’m sure you can guess the rest of the story. The anti-gun judges of the 9th Circuit forced it into an en banc hearing in which they agreed with the District Court and negated the win.

Yesterday the plaintiffs in the case filed an appeal with the US Supreme Court asking for a writ of certiorari. The attorneys on the case are Don Kilmer and Alan Gura. The brief can be found here.

The plaintiffs issued the following statement of the appeal:

Supreme Court Asked to Review Alameda County Gun Store Ban

WASHINGTON, D.C. (January 9, 2018)­­­­­­ – Attorneys for three civil rights advocacy organizations and three individuals have filed a petition seeking United State Supreme Court review of a controversial 2017 decision by the Ninth Circuit Court of Appeals that upheld an Alameda County, California law effectively banning gun stores within the unincorporated area of the county. A copy of the petition (and other case documents) can be viewed at https://www.calgunsfoundation.org/teixeira.

The lawsuit, first filed in 2012, challenged a county ordinance that prohibits gun stores from being located within 500 feet of places that include residentially zoned districts. But, according to a scientific study conducted by the plaintiffs that included a Geographic Information Systems (GIS) evaluation of all parcels in Alameda County, there are no lots within the unincorporated county that meet the ordinance’s 500-foot-rule requirements.

On appeal, the plaintiffs won before a three-judge panel of the Ninth Circuit. But that opinion was vacated and reversed following an en banc rehearing before the full appeals court. Now the case is being appealed to the nation’s highest court.

“You simply cannot allow local governments to ignore the Second Amendment because they don’t like how the Supreme Court has ruled on the amendment twice in the past ten years,” noted Second Amendment Foundation founder and Executive Vice President Alan M. Gottlieb. “You shouldn’t be able to zone the Second Amendment out of the Bill of Rights.”

“Local neighbors who live eight lanes across an interstate and the anti-rights politicians that cater to them can’t redline gun stores and the right to buy arms out of existence,” noted The Calguns Foundation’s Chairman, Gene Hoffman. “Since this case was filed multiple local city and county governments have used unconstitutional zoning laws to stop new gun stores from opening and close down existing gun stores. If this was a book store or an abortion clinic, the Ninth Circuit would not have hesitated in striking this zoning regulation unanimously.”

“The Supreme Court declared that the Second Amendment was not a second-class right, but lower courts are ignoring that and holding otherwise—and so far, they’ve been getting away with it. We hope this case gets individual liberty back on track,” added California Association of Federal Firearms Licensees’ founder and Executive Vice President Brandon Combs.

“The federal courts exist, in part, to protect fundamental rights that might not be popular in certain jurisdictions,” noted California attorney Don Kilmer, who represents the plaintiffs. “Today, in the Ninth Circuit, those are gun rights. Tomorrow, who knows? One question presented by this case is whether our rights are subject to only one Constitution, or do those rights change from state to state?”

Second Amendment Foundation (SAF) is joined in the case by California Association of Federal Firearms Licensees (CAL-FFL), The Calguns Foundation (CGF), and three businessmen, John Teixeira, Steve Nobriga, and Gary Gamaza. They are represented by Virginia attorney Alan Gura and California attorney Don Kilmer.

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Another Second Amendment Lawsuit Filed In California

June 27, 2012 by 1 Comment

The Second Amendment Foundation, the CalGuns Foundation, and the California Association of Federal Firearms Licensees have filed suit in US District Court against Alameda County, California due to the county’s use of a zoning law to present a gun shop from opening. They are joined in the suit by John Teixeira, Steve Nobriga and Gary Gamaza who had attempted to open a gun shop there.

The County of Alameda requires that all gun shops be 500 feet away from the nearest residence, liquor store, or school. The location chosen by the businessmen above had met that standard until the county changed how it measured the distance. Alameda County Board of Supervisors made this change after the gun shop had been given a condition use permit and a variable by the local Board of Adjustment. In doing so, the supervisors negated the variance that had been issued by the Board of Adjustment.

I have served on my local Board of Adjustment for over 18 years and am the current vice-chair of the Board. The actions by the Alameda County Board of Supervisors to change the ordinance after the fact and nullify the variance is most unusual. As boards of adjustment are quasi-judicial bodies, appeals of their decisions are usually made in the local Superior Court.

Below is the joint press release on Teixeira et al v. County of Alameda et al.

SAN FRANCISCO, CA – The County of Alameda’s zoning law requiring that gun stores be located 500 feet away from residential properties is not rational and cannot withstand any form of constitutional scrutiny, argues a new federal civil rights lawsuit filed yesterday in San Francisco, California. Businessmen John Teixeira, Steve Nobriga and Gary Gamaza are joined by the Second Amendment Foundation, The Calguns Foundation, and California Association of Federal Firearms Licensees as plaintiffs in the case. They are represented by attorneys Donald Kilmer of San Jose and Jason Davis of Rancho Santa Margarita.

The complaint describes how plaintiffs Teixeira, Nobriga, and Gamza had actually been granted a Conditional Use Permit and variance for the property on which they intended to open a gun store until the variance was revoked by the Alameda Board of Supervisors. “John, Steve, and Gary did everything right. They had their paperwork in order,” said attorney Donald Kilmer. “Their store was moving forward, things were going great, and then they were blindsided by the County long after putting money, labor, and time into opening their store. That’s a serious due process problem for the County.”

“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.”

The City of Sunnyvale recently conducted a study that showed gun stores had no correlation with area crime. “The right to buy firearms is just as much a protected part of the Second Amendment as the right to buy books is protected under the First Amendment,” said Calguns Foundation chairman Gene Hoffman. “Just like we saw in the Nordyke case, Alameda County continues it’s long-running effort to undermine the fundamental civil rights of it’s citizens to purchase firearms that they have a right to buy.”

According to the lawsuit, the county allowed an objection to the businessmen’s permit to be filed even though the deadline had passed for such objections and the West County Board of Zoning Adjustments had voted to approve a conditional use permit and allow the gun store to operate. “The outcome of this lawsuit may very well have far-reaching implications for firearms dealers not just in California, but across the United States,” noted co-counsel Jason Davis. “Hopefully we can address these issues for dealers once and for all.”

“Alameda County has a long track record of denying Second Amendment Rights to its residents, even those enumerated in our Constitution,” explained Cal-FFL president Brandon Combs. “We’ve seen over and over again how local rules like those Alameda County adopted are sold to municipalities by anti-gun extremist groups like New York Mayor Bloomberg’s Mayors Against Illegal Guns, Law Center To Prevent Gun Violence, Brady Campaign, and other Joyce Foundation-funded spinoffs.”

“They want to read the Second Amendment out of the Constitution, but that’s simply not going to happen on our watch. We will make sure Americans have a neighborhood gun dealer to sell them the tools they need to defend themselves from violent attackers.”

The case is captioned as Teixeira, et al. v. County of Alameda, et al. The docket and filings as they become available can be viewed at http://ia600408.us.archive.org/19/items/gov.uscourts.cand.256462/gov.uscourts.cand.256462.docket.html.