While it remains in the forefront of national controversy for other reasons, the Second Amendment has not been the focus of many land use cases. The recent Ninth Circuit decision of Teixeira v. County of Alameda may signal a new era for this kind of litigation. In Teixeira the court held that the application of zoning regime that unduly restricts a person’s ability to sell firearms may run afoul of the Second Amendment—a development, which may trigger copycat litigation throughout California. [Teixeira v. County of Alameda, ___F.3d___, Case No. (9th Cir. May 16, 2016).]

The Teixeira case began in 2010 when plaintiffs decided to open a gun store in unincorporated Alameda County, California (County). They needed a conditional use permit (CUP) from the County in order to do so. The issuance of such a permit depended on the applicant possessing the requisite state and federal licenses, lawful storage of firearms and ammunition, and the store not being located within 500 feet of a residential district, school, liquor store, or other gun store.
The County’s planning department told the plaintiffs that the 500-foot boundary was measured door to door. Based on that information, the plaintiffs found and leased a location that was 532 feet away from the nearest residence, door to door.
The plaintiffs’ application went before the County’s West County Board of Zoning Adjustment (Board). The Board voted to grant the permit and variance given the fact that Interstate 880 ran directly between the proposed store site and the residential area. A local homeowners association appealed the decision, and the Alameda County Board of Supervisors (Supervisors) voted to overturn the Board’s determinations granting the permit and variance.

The Ninth Circuit noted that the analysis of the Second Amendment claims entailed two prongs: first, whether the County’s zoning ordinance burdened constitutionally protected conduct under the Second Amendment, and second, if the conduct were so burdened, whether the County could justify it under the appropriate level of scrutiny.

The County argued that its zoning standards were to protect public safety. But it did not present any evidence that a gun store increases crime in its neighborhood. Moreover, plaintiffs argued that the 500-foot limit as applied effectively precluded all gun stores in the unincorporated parts of the County, and the court noted that if this were in fact the case something more than intermediate scrutiny would be required.
Accordingly, because the County was not entitled to a dismissal of the plaintiffs’ complaint, the Ninth Circuit remanded the case to the District Court.
Conclusion and Implications
As the debate over gun rights and the Second Amendment continues unabated, the Teixeira decision may be the harbinger of more land use litigation relating to gun stores, particularly in California.
(Matthew Henderson)