                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            JUL 08 2013

                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

DAVID K. MEHL; et al.,                           No. 08-15773

             Plaintiffs - Appellants,            D.C. No. 2:03-CV-02682-MCE-
                                                 KJM
  and

FRANK FLORES,                                    MEMORANDUM*

             Plaintiff,

  v.

LOU BLANAS; et al.,

             Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Morrison C. England, Chief District Judge, Presiding

                     Argued and Submitted December 10, 2012
                               Pasadena, California

Before: SCHROEDER, ROTH**, and BERZON, Circuit Judges.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Jane R. Roth, Senior Circuit Judge for the U.S. Court
of Appeals for the Third Circuit, sitting by designation.
      California generally prohibits the carrying of concealed firearms, see Cal.

Penal Code § 25400, but provides for county sheriffs to license individuals to carry

concealed firearms pursuant to certain requirements, see id. §§ 26150 et seq.1

During the tenure of former Sheriff Lou Blanas, plaintiffs unsuccessfully applied

to the Sacramento County Sheriff’s Department for concealed-carry licenses. They

contend that Sacramento County’s implementation of the California concealed-

carry licensing scheme, as applied to them, violated the Equal Protection Clause of

the Fourteenth Amendment.2

      1. Plaintiff Mehl lacks standing to challenge Sacramento County’s

concealed-carry policies, because he failed fully to complete the county’s

application process as directed, even after he was informed of the deficiencies.

“[A] plaintiff lacks standing to challenge a rule or policy to which he has not

submitted himself by actually applying for the desired benefit.” Madsen v. Boise



      1
        At the time this appeal was filed, the relevant provisions were codified at
Cal. Penal Code § 12025 and § 12050 et seq. Pursuant to the Deadly Weapons
Recodification Act of 2010, the provisions were recodified effective January 1,
2012. See Cal. Penal Code § 16005. The recodification was not “intended to
substantively change the law relating to deadly weapons.” Id. We, therefore, cite
throughout to the recodified Penal Code.
      2
        At oral argument, plaintiffs clarified that they are not challenging
California’s concealed-carry ban or licensing scheme as violative of the Second
Amendment. Plaintiffs’ counsel stated: “This is more of an equal protection case.
But the Second Amendment issue comes into play because it involves a
fundamental right under the Equal Protection Clause.”
State Univ., 976 F.2d 1219, 1220 (9th Cir. 1992) (per curiam). We, therefore,

affirm the district court’s grant of summary judgment in favor of the defendants as

to all of Mehl’s claims.

      2. Unlike Mehl, plaintiff Lau did complete and submit the concealed-carry

license application form. He therefore does have standing with regard to his

contention that the Sheriff’s Department impermissibly discriminated by issuing

concealed-carry licenses to Blanas’s political supporters while denying them to

non-supporters.

      Lau argues that a strict scrutiny standard applies to equal protection claims

concerning the right to carry firearms, relying on District of Columbia v. Heller,

554 U.S. 570 (2008), as establishing that right as fundamental. See Mass. Bd. of

Retirement v. Murgia, 427 U.S. 307, 313 (1976) (“[E]qual protection analysis

requires strict scrutiny . . . when the classification impermissibly interferes with the

exercise of a fundamental right.”). Even if Lau is correct as to the level of scrutiny

— which we do not decide — viewing the evidence in the light most favorable to

Lau as the nonmoving party, there is no genuine issue for trial on his claims. See

Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999) (en banc).

      For “state action to trigger equal protection review at all, that action must

treat similarly situated persons disparately.” Silveira v. Lockyer, 312 F.3d 1052,


                                           3
1088 (9th Cir. 2002), abrogated on other grounds by Heller, 554 U.S. 570.

Although Lau offered evidence that some supporters of Blanas received concealed-

carry licenses, he did not present evidence that applications of similarly situated

non-supporters were routinely rejected. To the contrary, the record evidence shows

that over 200 non-contributors received licenses during Blanas’s tenure, while

several Blanas donors had their applications denied or, when they made inquiries

to Blanas directly, were told they must apply through the regular application

process.

      Nor is Lau’s own application a useful comparison. Lau stated in his

application that he needed a concealed-carry license due to lingering dangers from

his services as an FBI agent. But Lau also submitted documents to the Sheriff’s

Department in which the FBI stated that it was “not aware” of any lingering

dangers to Lau’s safety. Also, the committee that reviewed Lau’s application

unanimously agreed to deny his application and noted that he had “too many

issues,” an assessment with support in the record concerning problems during his

FBI career and his subsequent disability status. Lau did not present any evidence

that similarly situated Blanas supporters — i.e., applicants whose own application

materials included third-party statements negating their purported reasons for




                                           4
needing to carry a concealed firearm and a substantive basis for rejecting the

application — received concealed-carry licenses.

      3. Lau also maintains that Sacramento County impermissibly discriminated

in denying him a concealed-carry license because, under the retired-officer

exception to the concealed-carry licensing requirement, see Cal. Penal Code §

25450, honorably retired California peace officers may carry concealed firearms

without a license. As to this issue, Lau lacks standing, as he does not explain how

he has suffered any “injury in fact” as a result of that exception. See United States

v. City of Arcata, 629 F.3d 986, 989 (9th Cir. 2010). Lau is not seeking to

invalidate the concealed-carry licensing requirement itself, and there is nothing in

the record to suggest that the decision on Lau’s licensing application would have

been any different had there been no retired officer exception.

      AFFIRMED.




                                           5
