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Ninth Circuit:
Dismissal of Action ‘Without Prejudice’ Vacated
Panel Reinstates Lawsuit Based on Ejecting Second Amendment Advocates From Gun ‘Buy Back’ Event Co-Sponsored by a City and a Private Group
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday vacated an order dismissing an action against the City of Santa Barbara and others in which the plaintiffs, who are Second Amendment advocates, contest the lawfulness of their ejection from a “buy-back” event at which members of the public who surrendered “guns” and were given gift certificates, arguing that they had a right to be present and challenge the legitimacy of the program.
Reversal came because Senior District Court Judge Terry J. Hatter Jr. of the Central District of California, though dismissing the action “without prejudice,” did not specify that the plaintiffs had leave to amend.
Four plaintiffs— Bruce Boyer, David Wayne Griggs, Kimberly Colleen Griggs, and Jonathan Boyer—verbalized their view at the buy-back that the city and its police department were unlawfully lending government assistance to the cause of a private organization—The Coalition Against Gun Violence—in staging the event on Aug. 21, 2021, at the Earl Warren Showgrounds in Santa Barbara.
The plaintiffs were threatened by police with arrest if they did not leave after they insisted that ads offered the gift certificates in return for surrendering a “gun” without specifying the type, and that they were entitled to a reward for giving up their toy pistols.
Allegations of Complaint
Their Feb. 15, 2024 first amended complaint, drafted by Valley Village attorney Joel S. Farkas, sets forth (with paragraph numbering omitted):
“Defendants, while acting under the color of stale law, sought to deprive Plaintiffs of their rights to free speech and freedom of assembly, in violation of the First Amendment of the United States Constitution, their protection from unreasonable seizures, in violation of the Fourth Amendment of the United States Constitution, and their right to liberty, in violation of the Fourteenth Amendment of the United States Constitution.
“Defendants, while acting under the color of state law, deprived Plaintiffs of their right to remain at the event and continue their peaceful protest.
“Defendants, while acting under the color of state law, wrongfully seized Plaintiffs’ personal property—their toy ‘guns.’ ”
Hatter’s Ruling
Hatter on Aug. 1 of last year ordered “that this case be, and hereby is, Dismissed without prejudice.”
A three-judge panel said yesterday in a memorandum opinion that because Hatter dismissed “ ‘this case’—and not merely the complaint—without prejudice,” there “is a final, appealable order.”
The panel—comprised of Circuit Judges Eric D. Miller and Jennifer Sung, along with Senior Circuit Judge Andrew D. Hurwitz—said, in reviving the action:
“The district court erred in dismissing the action without acknowledging Plaintiffs’ request to amend their First Amended Complaint if the court determined that the complaint did not state a claim upon which relief could be granted. In dismissing Plaintiffs’ action, the district court implicitly denied leave to amend the First Amended Complaint….The district court did not address Plaintiffs’ amendment request, let alone explain its implicit denial of the request. This was an abuse of discretion….We vacate and remand so that the district court can address the amendment request.”
The case is Boyer v. City of Santa Barbara, 24-5393.
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