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Ninth Circuit:
Four-Year Seizure of Innocent Man’s Guns Is Constitutional
Majority Says Failure of Plaintiff to Comply With Law Requiring Application Process for Return Undermines Claims, Even Though Firearms Were Taken in Search Only Targeting Houseguest, Drawing Dissent
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday, in a 2-1 decision, that the City of Riverside, and related parties, did not run afoul of the U.S. Constitution by failing to return 10 firearms seized, more than four years ago, during a search of the plaintiff’s home targeting a houseguest who had been threatening his estranged wife without the homeowner’s knowledge.
Pointing to California Penal Code §33850, which requires “[a]ny person who claims title to any firearm…that is in the custody…of a…law enforcement agency…shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm,” the defendants argue that the years-long retention of the firearms was out of their hands due to the plaintiff’s failure to comply with the section.
In a memorandum opinion, signed by Senior Circuit Judge Mary M. Schroeder and Circuit Judge Eric D. Miller, the court agreed, saying:
“[T]he City does not need to hand over the firearms, no questions asked, when someone claiming to be [the owner] shows up and asks for them. Indeed, our precedent suggests that it would be appropriate to require owners of seized property to present identification ….At oral argument, [the plaintiff’s] counsel effectively conceded as much, acknowledging that it would be constitutional for the City to require someone picking up an impounded car to present a valid driver’s license….That requirement is materially identical to the one at issue here—filling out a form to establish that [the owner] is who he says he is and may legally possess firearms. [This] concession…undermines any claim that the continued retention of his firearms is attributable to the City rather than to his unwillingness to comply with the ministerial requirements of the statute.”
Circuit Judge Ryan D. Nelson agreed with the majority that the initial seizure was valid but argued that the continued retention of the guns violated the Constitution. He wrote:
“The City of Riverside has refused to return John Brandstetter’s firearms for nearly four-and-a-half years. And it has no justification for keeping them. Because that violates the Second and Fourth Amendments, I dissent in part.”
Search of Home
The dispute arose after a June 19, 2020, search at plaintiff John Brandstetter’s Rosemead home. FBI Swat team members joined the Riverside Police Department investigators in the search, which was executed pursuant to a warrant obtained based on evidence that Brandstetter’s houseguest, Kevin Gleason, had been attempting to extort his wife based on photographs and videos of a sexual nature.
Officers were authorized in the warrant to seize any firearms they found in the residence. There is no dispute that the 10 guns seized during the execution of the warrant bore no connection to any criminal activity.
Brandstetter requested the return of the firearms in two letters, dated July 24, 2020, and Aug. 20, 2020. In the August letter, the plaintiff informed law enforcement that Gleason had not resided at his home since June 19 and would not be allowed to return.
After his requests were denied, Brandstetter filed a complaint, under 42 U.S.C. §1983, against the city, the police department, Police Chief Larry V. Gonzalez, Detective Jolynn Turner, and other unnamed defendants, asserting a Fourth Amendment challenge to the warrant and to the retention of his firearm as well as a violation of the Second Amendment.
District Court Judge Fernando Aenlle-Rocha of the Central District of California granted summary judgment to the defendants. Friday’s opinion affirmed the judgment in their favor.
Ninth Circuit’s View
Addressing his Fourth Amendment seizure claim, Schroeder and Miller wrote:
“Brandstetter claims that the City no longer has a justification under the Fourth Amendment for its retention of his firearms. But he has not met his burden to show that the government’s continued retention of the firearms is a seizure at all—in other words, that it is a ‘meaningful interference with’ his ‘possessory interests in that property.’…Brandstetter has offered no evidence that filling out the required form would be costly or burdensome, or that the requirement that he complete the form meaningfully interferes with his ability to regain possession of his firearms.”
Turning to the Second Amendment challenge, they quoted from a footnote in the 2022 U.S. Supreme Court case of New York State Rifle & Pistol Association Inc. v. Bruen and remarked:
“Brandstetter’s Second Amendment claim fails too. Section 33850 is reasonably designed ‘to ensure only that those [keeping] arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” ’….Critically, Brandstetter has presented no evidence that section 33850 was ‘put toward abusive ends’ or that the State has employed ‘lengthy wait times in processing [section 33850] applications or exorbitant fees [to] deny ordinary citizens their right to’ possess firearms….Nor has he presented evidence that the State uses anything but ‘narrow, objective, and definite standards’ in applying the statute.”
Nelson’s View
Nelson noted:
“The Fourth Amendment required the City to return Brandstetter’s firearms once its justification for seizing them expired. ‘[A] seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests.’….Once the government’s justification for seizing property wears off, the government must ‘cease the seizure or secure a new justification.’ ”
He pointed out that “[t]he majority reasons that the application and fee that the City requires are so minimal that they do not ‘meaningfully interfere[]’ with Brandstetter’s ability to ‘regain possession of his firearms.’ ” Unpersuaded, he wrote:
“The majority’s reasoning puts the cart before the horse. It’s the continued seizure of Brandstetter’s firearms that violates the Fourth Amendment—not the application and fee….The Fourth Amendment is implicated because the City forcefully took Brandstetter’s guns and refuses to return them—and the Fourth Amendment remains implicated whether or not California’s bureaucratic niceties are burdensome.”
The jurist added:
“By concluding that the City has not meaningfully interfered with Brandstetter’s possessory interest in his guns, the majority suggests that once an initial seizure is complete, the Fourth Amendment no longer has anything to say about a government’s obligation to return the property.
“The trouble is, ….[u]nder our precedent, ‘the Fourth Amendment is implicated by a delay in returning the [lawfully seized] property.’ ”
Turning to the Second Amendment challenge, he said that there are “problems” with the majority’s reasoning, remarking:
“[I]t flips the burden. Under Bruen, Brandstetter need not show that the City’s conduct is unconstitutional. Instead, the City must show that its practice falls within the Nation’s tradition of firearm regulation….The majority errs by forgiving the City’s failure to meet its burden and errs again by placing that burden on Brandstetter.”
Saying “we are to compare each firearm regulation to analogous, historical laws,” he also faulted the opinion for “engag[ing] in means-end balancing” and commented that “the majority errs in suggesting that Brandstetter can’t state a Second Amendment claim unless he shows that the City’s application and fee are burdensome.”
Nelson pointed out that “the majority rests on a footnote from Bruen that, the majority suggests, held that firearm licensing schemes are unconstitutional only if they are subjective, unduly burdensome, or put to abusive ends,” but declared:
“[T]he footnote that the majority relies on expressly disclaims the proposition for which the majority cites it. The footnote does not hold that objective and unburdensome licensing schemes are constitutional. To the contrary, the Court declined to ‘rule out constitutional challenges’ to such licensing regimes….The constitutionality of such laws depends, as with any other firearm regulation, on their consistency with the Nation’s tradition of firearm regulation….And, again, neither the majority nor the City has shown that the City’s conduct is.”
The case is Brandstetter v. City of Riverside, 23-55739.
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