                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 23 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LORI RODRIGUEZ; et al.,                         No.    17-17144

                Plaintiffs-Appellants,          D.C. No. 5:15-cv-03698-EJD

 v.
                                                MEMORANDUM*
CITY OF SAN JOSE; et al.,

                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

Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.

      Plaintiff-Appellant Lori Rodriguez (“Lori”) and two organizational co-

plaintiffs appeal from the district court’s summary judgment for the City of San

Jose (“the City”), the San Jose Police Department, and Officer Valentine

(collectively, “Defendants”). Lori argues that the district court erred in concluding

there was no genuine dispute of material fact on her claims that the seizure and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
retention of her firearms violated her rights under the Second, Fourth, Fifth, and

Fourteenth Amendments, and under California Penal Code § 33800 et seq. We

affirm the summary judgment in favor of Defendants on the Second and Fourth

Amendment claims in a concurrently filed opinion, and we address the remaining

claims herein. We affirm judgment for Defendants on those claims as well.

      First, Lori argues that the City’s refusal to return the firearms after Lori had

complied with the procedures set forth in Penal Code § 33800 et seq. violates her

right to procedural due process. We disagree.

      Generally, procedural due process claims have “two distinct elements: (1) a

deprivation of a constitutionally protected liberty or property interest, and (2) a

denial of adequate procedural protections.” Brewster v. Bd. of Educ., 149 F.3d

971, 982 (9th Cir. 1998). As a preliminary matter, Lori does not argue, nor could

she, that the City initially retained the firearms without adequate process. She was

allowed to intervene in proceedings before the state trial court concerning the

City’s petition to retain the weapons, including in a hearing in which she offered

evidence and contested the City’s evidence before a neutral decisionmaker and in

which the City had the burden of showing the firearms should not be returned.

Instead, she challenges the process she received when the City refused to return her

guns for a second time. In our view, however, Lori misunderstands California

Penal Code § 33800 et seq. in arguing that she obtained a new property interest,


                                           2
and therefore was entitled to additional process, after she fulfilled the statute’s two

requirements.

      Obtaining gun clearance releases from the California Department of Justice

and re-registering the guns in her name may have made Lori eligible for the return

of her firearms, but that eligibility did not supersede any existing prohibitions on

returning the firearms—including, in this case, the trial court’s order that

Defendants could retain the guns under California Welfare & Institutions Code §

8102. See Cal. Penal Code § 33800(c) (“Nothing in this section is intended to

displace any existing law regarding the seizure or return of firearms.”). In other

words, completing the procedures outlined in § 33800 et seq. did not give Lori an

additional property interest in her guns, so she was not due any additional process.

See Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017) (explaining

that property interests “arise[] only where there is a legitimate claim of entitlement,

not merely an abstract need or desire for [a] particular benefit”).1

      Second, Lori contends that because the Takings Clause applies to personal

property, Defendants’ seizure and retention of her firearms means her private



      1
         Lori’s state law claim mirrors her procedural due process claim, as she
asserts that Penal Code § 33800 et seq. creates an independent cause of action
entitling her to the return of her firearms. Because we conclude that the procedures
under § 33800 et seq. do not supersede a determination that it would be unsafe to
return the firearms under Welfare & Institutions Code § 8102, Lori’s state claim
falls with her procedural due process claim.

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property was taken for public use without just compensation, violating the Fifth

Amendment. Again, her arguments are unavailing.

      The Takings Clause, as relevant here, protects “against a direct appropriation

of property—personal or real,” Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2427

(2015), and such an appropriation “triggers a ‘categorical duty to compensate the

former owner’ under the Takings Clause.” Fowler v. Guerin, 899 F.3d 1112, 1117

(9th Cir. 2018) (quoting Brown v. Legal Found. of Wash., 538 U.S. 216, 233

(2003)). As she conceded at oral argument, Lori still has title to her property and

can sell it to a third-party licensed firearms dealer, see Cal. Penal Code § 33870(a),

and Defendants have agreed that Lori can still store her firearms at a location other

than her home or even keep them in her home if they are rendered inoperable.

Lori’s Takings Clause claim therefore fails. Cf. Horne, 135 S. Ct. at 2428

(explaining that raisin growers had an actionable Takings Clause claim because

they lost “the entire ‘bundle’ of property rights in the . . . raisins [the government

appropriated]—‘the rights to possess, use and dispose of’ them” (citation

omitted)).

      AFFIRMED.




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