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Fortson v. Los Angeles City Attorney's Office

United States Court of Appeals, Ninth Circuit

April 7, 2017

Ben L. Fortson, Plaintiff-Appellant,
v.
Los Angeles City Attorney's Office; California Department of Justice, Bureau of Firearms; City of Los Angeles Police Department; Carmen A. Trutanich, individual and City Attorney, official capacity; Bernie Brown, individual and Supervising Attorney, official capacity; Victor Brown, individual and Detective II, Serial No. 30082, official capacity; Rick Tompkins, Detective Supervisor of Gun Unit, No. 27904, official capacity; Wong, L.A.P.D. Police Officer II, No. 21883, official capacity; Hernandez, L.A.P.D. Police Officer II, No. 36039, official capacity; Ross, L.A.P.D. Police Officer III, No. 25445, official capacity; Higa, D.O.J. Agent, official capacity; Torres, D.O.J. Agent, official capacity; Mejia, D.O.J. Agent, official capacity; Malaika Cole, individual and L.A. City Attorney, official capacity; Alin Cem Cem Sahagian, individual and L.A. City Attorney, official capacity; Gregory Alan Dorfman, individual and L.A. City Attorney, official capacity; Carol Parszik, Special Agent/Supervisor, official capacity; Kosal Bun, Individual and Los Angeles Police Officer, No. 33600, official capacity, Defendants-Appellees.

          Submitted February 6, 2017 [*] Pasadena, California

         Appeal from the United States District Court for the Central District of California D.C. No. 2:12-cv-05256-MWF-SP Michael W. Fitzgerald, District Judge, Presiding

          Benjamin L. Fortson, Lake Los Angeles, California, pro se Plaintiff-Appellant.

          Michael N. Feuer, City Attorney; Paul L. Winnemore, Deputy City Attorney; Office of the Los Angeles City Attorney, Los Angeles, California; for Defendants-Appellees.

          Before: Mary M. Schroeder, Andre M. Davis, [**] and Mary H. Murguia, Circuit Judges.

         SUMMARY[***]

         Civil Rights

         The panel affirmed the district court's dismissal of an action brought under 42 U.S.C. § 1983 alleging that law enforcement officials violated plaintiff's Second Amendment rights by seizing firearms and ammunition he kept in his home, and then prosecuting him for unlawful possession.

         Plaintiff previously had been convicted of misdemeanor domestic violence, which under California law, automatically triggers a ten-year prohibition on the ownership or possession of firearms and ammunition. The panel noted that this Court upheld a more restrictive federal lifetime ban for persons convicted of misdemeanor domestic violence in United States v. Chovan, 735 F.3d 1127, 1139-1141 (9th Cir. 2013). Applying Chovan, the panel upheld California's 10-year ban and determined that it was validly applied to plaintiff.

         The panel rejected plaintiff's claims that he was falsely arrested and maliciously prosecuted. The panel concluded that since the record reflected that plaintiff's arrest and prosecution were based on probable cause that he possessed the weapons unlawfully, he necessarily could not be granted relief on these claims. The panel further rejected plaintiff's claims that his Fifth and Fourteenth Amendment rights were violated because he was never read a warning regarding his rights per Miranda v. Arizona. Finally, the panel rejected plaintiff's official-capacity claims, determining that the California Bureau of Firearms was immune from suit under the Eleventh Amendment, and that plaintiff had not sufficiently alleged an underlying constitutional violation against the Los Angeles Police Department.

          OPINION

          SCHROEDER, Circuit Judge

         This appeal challenges the constitutionality of California's ten-year ban on possession of firearms after a conviction for misdemeanor domestic violence. Plaintiff Benjamin Fortson appeals the dismissal of his action under 42 U.S.C. § 1983 for failure to state a claim. He contends that the Los Angeles Police Department, the Los Angeles City Attorney's Office, the California Bureau of Firearms, and individual officers, agents, and attorneys violated his Second Amendment rights by seizing firearms and ammunition he kept in his home, and then prosecuting him for the unlawful possession of firearms and ammunition. Fortson had previously been convicted of misdemeanor domestic violence, which under California law, automatically triggers a ten-year prohibition on the ownership or possession of firearms and ammunition. Fortson's sentencing judge gave him a partial exception so Fortson could keep and possess firearms at his place of work as an armed security guard.

         Fortson challenges the California law both facially and as applied to him. Since we have already upheld the more restrictive federal lifetime ban for persons convicted of misdemeanor domestic violence, we now must uphold the California law as well. See United States v. Chovan, 735 F.3d 1127, 1139-41 (9th Cir. 2013). We also hold that the law was validly applied to Fortson.

         Fortson additionally maintains that defendants violated his Fourth and Fourteenth Amendment rights by falsely arresting him and maliciously prosecuting him. Since the record reflects that his arrest and prosecution were based on probable cause that he possessed the weapons unlawfully, he necessarily cannot be granted relief on these claims. See Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001) (holding that the existence of probable cause is a complete defense to a ยง 1983 claim alleging ...


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