FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LORI RODRIGUEZ; SECOND No. 17-17144 AMENDMENT FOUNDATION, INC.; CALGUNS FOUNDATION, INC., D.C. No. Plaintiffs-Appellants, 5:15-cv-03698- EJD v. CITY OF SAN JOSE; SAN JOSE POLICE OPINION DEPARTMENT; STEVEN VALENTINE, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding Argued and Submitted January 14, 2019 San Francisco, California Filed July 23, 2019 Before: J. Clifford Wallace, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Friedland 2 RODRIGUEZ V. CITY OF SAN JOSE SUMMARY * Civil Rights/Second Amendment The panel affirmed the district court’s summary judgment for defendants City of San Jose, its Police Department and a police officer in an action brought by husband and wife, Edward and Lori Rodriguez, alleging civil rights violations when police seized firearms from their residence after detaining Edward for a mental health evaluation in response to a 911 call, and then declined to return the firearms. The City petitioned in California Superior Court to retain the firearms on the ground that the firearms would endanger Edward or another member of the public. Lori objected that the confiscation and retention of the firearms, in which she had ownership interests, violated her Second Amendment rights. The Superior Court granted the City’s petition over Lori’s objection and the California Court of Appeal affirmed. After Lori re-registered the firearms in her name alone and obtained gun release clearances from the California Department of Justice, the City still declined to return the guns, and Lori sued in federal court. The panel held that Lori’s Second Amendment claim was barred by issue preclusion under California law. The panel first held that although defendants failed to raise a preclusion defense in either district court or in their principal brief on appeal, it would forgive defendants’ forfeiture given the significant public interests in avoiding a result * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RODRIGUEZ V. CITY OF SAN JOSE 3 inconsistent with the California Court of Appeal’s decision on an important constitutional question and in not wasting judicial resources on issues that had already been decided by two levels of state courts. The panel held that the California Court of Appeal had considered and rejected a Second Amendment argument identical to the one before the panel and that the Court’s decision was a final decision on the merits. The panel rejected Lori’s contention that her subsequent re-registration of the guns as separate property and the Department of Justice’s ownership clearance were changes that affected the state court’s Second Amendment analysis. The panel noted that the state court had already assumed Lori’s ownership interest under California’s community property laws and must have considered Lori’s exclusive ownership of her personal handgun given it was undisputed that the handgun was her separate property. The panel held that the organizational plaintiffs that had joined ...
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