James Rothery; Andrea Hoffman v. County of Sacramento;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ROTHERY; ANDREA
HOFFMAN,
Plaintiffs-Appellants,
and
DEANNA SYKES; et al.,
Plaintiffs,
v.
COUNTY OF SACRAMENTO; et al.,
Defendants-Appellees.
No. 09-16852
D.C. No. 2:08-cv-02064-JAM-KJM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges
James Rothery and Andrea Hoffman appeal from the district court’s
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 8 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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judgment dismissing their 42 U.S.C. § 1983 action alleging violations of their
constitutional rights arising from the denial of a license to carry concealed firearms
in public. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Peruta v. County of San Diego, 824 F.3d 919, 925 (9th Cir. 2016) (en banc)
(constitutional issues); Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988
(9th Cir. 2017) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.
The district court properly dismissed plaintiffs’ Second Amendment claim
because “the Second Amendment does not protect, in any degree, the carrying of
concealed firearms by members of the general public.” Peruta, 824 F.3d at 942.
The district court properly dismissed plaintiffs’ derivative claim under the
Privileges and Immunities Clause. See Peruta, 824 F.3d at 942 (holding that a
derivative privilege and immunities claim was “necessarily resolve[d]” by the
court’s Second Amendment holding).
The district court properly dismissed plaintiffs’ equal protection claim
because plaintiffs failed to allege facts sufficient to state a plausible claim for
relief. See Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law neither burdens a
fundamental right nor targets a suspect class, [the Supreme Court] will uphold the
legislative classification so long as it bears a rational relation to some legitimate
end.”); Silveira v. Lockyer, 312 F.3d 1052, 1088 (9th Cir. 2002) (“[F]or a state
action to trigger equal protection review at all, that action must treat similarly

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situated persons disparately.”), abrogated on other grounds by District of
Columbia v. Heller, 554 U.S. 570 (2008); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“To survive a motion to dismiss, a plaintiff must aver in the complaint
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” (citation omitted)).
The district court properly dismissed plaintiffs’ claim alleging a Ninth
Amendment violation because “the Ninth Amendment does not encompass an
unenumerated, fundamental, individual right to bear firearms.” San Diego Cty.
Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996).
The district court did not abuse its discretion by dismissing plaintiffs’ action
without leave to amend because leave to amend would have been futile. See
Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A district
court acts within its discretion to deny leave to amend when amendment would be
futile[.]”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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