REVISED March 15, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30198

ERROL HOUSTON, JR.,

Plaintiff - Appellant

v.

CITY OF NEW ORLEANS; LEON CANNIZZARO, District Attorney for the

Parish of Orleans; WARREN J. RILEY, Superintendent of the New Orleans

Police Department,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before BARKSDALE, GARZA, and ELROD, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In this action under, inter alia, 42 U.S.C. § 1983, Errol Houston, Jr.,

claims defendants violated his Fourteenth Amendment rights (to keep and bear

arms, incorporated from Second Amendment, and to due process) by retaining

his lawfully-seized firearm after the district attorney refused charges. The

action was dismissed under Federal Rule of Civil Procedure 12. AFFIRMED.

United States Court of Appeals

Fifth Circuit

F I L E D

March 14, 2012

Lyle W. Cayce

Clerk
No. 11-30198

2

I.

As noted, dismissal was under Rule 12, as also discussed infra.

Accordingly, the facts that follow are from the allegations in Houston’s

complaint.

Houston was arrested by New Orleans police officers on 5 July 2008.

Pursuant to that arrest, Houston’s firearm, a Glock 22 .40-caliber pistol, was

seized. Approximately a month later, the district attorney entered nolle prosequi

(abandonment of prosecution) on the charges against Houston.

Almost a year after his arrest, and following his requests for the return of

his firearm being denied by the district attorney’s office and the police

department, Houston filed this action on 2 July 2009, claiming, inter alia,

violations of the right to keep and bear arms and of due process, and seeking

primarily the return of his firearm. Houston alleged he had been informed that

the new district attorney had implemented a policy of not returning firearms

seized during arrests.

Just over a month later, Houston again was arrested by New Orleans

police officers. He was informed that a warrant for his arrest, on the charge of

illegal possession of a firearm, had issued at the request of the new district

attorney on 5 July, three days after this action was filed. That charge was also

“nolle prossed”. In an amended complaint, Houston added claims for retaliation

and unlawful arrest.

Regarding the district attorney, Houston’s right-to-keep-and-bear-arms

and due-process claims were dismissed under Rule 12(b)(6) (failure to state

claim). Subsequently, those claims against New Orleans and a former police

superintendent were also dismissed, under Rule 12(c) (judgment on pleadings).

In so ruling regarding the Second Amendment and the district attorney,

the district court concluded retention of the firearm was “reasonable . . . because

firearms are needed as evidence in instituting criminal prosecution” and,
No. 11-30198

3

“[f]urthermore”,that“[Houston] does not have a Second Amendment rightto the

particular firearm seized”. Order and Reasons, at 7 (20 Sept. 2010). In its

subsequent dismissal of that Second Amendment claim against New Orleans

and the former police superintendent,the courtfurther ruled: “law enforcement

has a compelling interest in seizing weapons pursuant to a lawful arrest and as

evidence of crimes”; and, “law enforcement narrowly tailors such seizures to

those firearms involved in crimes and those firearms in possession of arrestees”.

Order and Reasons, at 9 (10 Dec. 2010).

For the due-process claim, the court ruled the firearm’s retention did not

violate due process because, inter alia: the firearm was “not a basic necessity of

life”; defendants had an important interest in preserving evidence; and, Houston

had not alleged he had exhausted state-law remedies, such as a contradictory

motion (motion the non-moving party is likely, or should have the opportunity,

to contest) for return of his firearm. Order and Reasons, at 9-10 (20 Sept. 2010);

Order and Reasons, at 9 (10 Dec. 2010).

II.

In district court, following the dismissal of his Second Amendment and

due-process claims, Houston dismissed voluntarily his retaliation and unlawfularrest claims. At issue are only those concerning the Second Amendment and

due process.

Although both district court decisions noted factual allegations contained

not in the complaint, but in the parties’ memoranda for the motions, “matters

outside the pleadings [were not] presented to . . . the court”. Fed. R. Civ. P.

12(d). And, consistent with that, both decisions stated the issue as “whether

[Houston] has alleged sufficient facts to show that Defendants deprived [him] of

his constitutional rights”. (Emphasis added.) For these and other reasons, the

decisions were Rule 12 dismissals, not Rule 56 summary judgments.
No. 11-30198

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Rule 12(b)(6) and 12(c) dismissals are reviewed de novo. E.g., Jebaco, Inc.

v. Harrah’s Operating Co., 587 F.3d 314, 318 (5th Cir. 2009). All well-pleaded

facts are accepted as true and viewed in the light most favorable to Houston.

E.g., Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.

2011). Viewing the facts, as pleaded, in that light, a motion to dismiss for

failure to state a claim or for judgment on the pleadings should not be granted

if the complaint provides “enough facts to state a claim to relief that is plausible

on its face”. Jebaco, Inc., 587 F.3d at 318 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

A.

The Second Amendment provides for “the right of the people to keep and

bear Arms”. U.S. Const. amend. II. That right belongs to the individual, and

“central” to it is the “core lawful purpose of self-defense”. District of Columbia

v. Heller, 554 U.S. 570, 628-30 (2008). The Amendment is “fully applicable to the

States” through the Fourteenth Amendment because the right to keep and bear

arms is “fundamental to our scheme of ordered liberty”. McDonald v. City of

Chicago, 130 S. Ct. 3020, 3026, 3036 (2010) (emphasis omitted).

Houston urges strict-scrutiny review of defendants’ alleged policy of

retaining seized firearms. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 16 (1973) (“strict judicial scrutiny [has been found] appropriate in

reviewing legislative judgments that interfere with fundamental constitutional

rights”). Before reaching that level-of-review question, however, whether the

Second Amendment encompasses the claimed right must be decided. Heller v.

District of Columbia, No. 10-7036, 2011 WL 4551558, at *5 (D.C. Cir. 4 Oct.

2011); Ezell v. City of Chicago, 651 F.3d 684, 701-02 (7th Cir. 2011); United

States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627

F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89

(3d Cir. 2010). But see Nordyke v. King, 644 F.3d 776, 783 (9th Cir. 2011) (“The
No. 11-30198

5

Supreme Court’s reasoning in Heller and McDonald suggests that heightened

scrutiny does not apply unless a regulation substantially burdens the right to

keep and to bear arms for self-defense.” (emphasis added)). Put another way, if

defendants’ alleged evidence-retention policy does not “impose[] a burden on

conduct falling within the scope of the Second Amendment’s guarantee”, our

inquiry is complete. Marzzarella, 614 F.3d at 89.

Just as some regulation of speech–e.g., of obscenity and defamation–is

“outside the reach” of the First Amendment, so, too, is some regulation of

firearms outside the reach of the Second. Ezell, 651 F.3d at 702 (quoting United

States v. Stevens, 130 S. Ct. 1577, 1584-85 (2010)). See also Heller, 554 U.S. at

626-27, 627 n.26 (noting “the right secured by the Second Amendment is not

unlimited” and listing “presumptively lawful” regulations). The right protected

by the Second Amendment is not a property-like right to a specific firearm, but

rather a right to keep and bear arms for self-defense. See Heller, 554 U.S. at

628-30.

Houston has not alleged defendants prevented his “retaining or acquiring

other firearms”. Walters v. Wolf, 660 F.3d 307, 318 (8th Cir. 2011) (holding no

Second Amendment violation when plaintiff’s firearm was not returned after

court dismissed criminal charge against him). Therefore, he has not stated a

violation of his Second Amendment right to keep and bear arms.

B.

The Due Process Clause of the Fourteenth Amendment provides: “[N]or

shall any State deprive any person of life, liberty, or property, without due

process of law”. U.S. Const. amend. XIV, § 1. To state a due-process claim,

Houston must allege: he has a property interest in the firearm; and, he has been

deprived of that interest without due process of law. E.g., Gentilello v. Rege, 627

F.3d 540, 542 (5th Cir. 2010). Property interests are “defined by existing rules

or understandings that stem from an independent source such as state law”. Bd.
No. 11-30198

6

of Regents v. Roth, 408 U.S. 564, 577 (1972). “Once it is determined that due

process applies,the question remains what process is due.” Morrissey v. Brewer,

408 U.S. 471, 481 (1972).

Determining “what process is due” generally requires consideration of: the

private interest affected; the risk of erroneous deprivation and the probable

value of additional or substitute procedures; and, the government interest,

including the burden of additional or substitute procedures. Mathews v.

Eldridge, 424 U.S. 319, 335 (1976). “The fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in a meaningful

manner.” Id. at 333 (internal quotation marks omitted).

Pursuant to accepting as true the well-pleaded fact in the complaint that

Houston owns the seized firearm, he has alleged a deprivation of a property

interest. Defendants maintain Houston did not allege that the deprivation has

occurred without due process, however, because he did not allege he utilized the

below-described procedure that could have afforded him a meaningful

opportunity to be heard. Houston contends he nevertheless stated a due-process

claim, without alleging he utilized that procedure, because, as a matter of law:

the procedure was not available to him; or, in the alternative, due process

required defendants to notify him of the procedure.

1.

Louisiana Revised Statutes § 15:41(C) provides, in relevant part: “Where

the release of seized property is sought by a person claiming to be the owner, it

shall be released only upon motion contradictorily with the clerk of court”.

Houston contends, as he did in district court, that the procedural remedy

afforded by § 15:41 is unavailable where the seized property is a firearm.

Houston maintains § 15:41 (disposition of seized property) is displaced by

Louisiana Revised Statutes § 40:1798 (disposition of seized firearms), which

applies to law enforcement, because the former is prefaced, “If there is a specific
No. 11-30198

7

statute concerning the disposition of the seized property, the property shall be

disposed of in accordance with the provisions thereof”. La. Rev. Stat. § 15:41(A).

But the plain language of the mandate to law enforcement contained in

§40:1798–which contains no procedural remedy for the owner of the seized

property–does not preclude the remedy under § 15:41(C).

Instead, the better reading is that § 40:1798 displaces only § 15:41(B): “If

there is no such specific statute, the following governs the disposition of property

seized . . . .” La. Rev. Stat. §15:41(B) (emphasis added) (instructing property be

returned, sold, transferred, or destroyed). See also Foster v. Graves, No. 09-0657-

JJB-CN, 2010 WL 3724314 (M.D. La. 10 Aug. 2010) (Mag. J. Rep. & Rec.)

(plaintiff sought return of seized firearms by § 15:41 motion), adopted, 2010 WL

3724195 (M.D. La. 16 Sept. 2010); State v. Baynes, 678 So. 2d 959 (La. Ct. App.

1996) (same), overruled on other grounds by In re Matter Under Investigation, 15

So. 3d 972 (La. 2009); State v. Feeback, 434 So. 2d 466 (La. Ct. App. 1983)

(same).

2.

In the alternative, Houston maintains: “[T]he Due Process clause requires

that the [district attorney] advise Houston not only of his right to petition for

recovery of his firearm, but also of the manner in which such petition may be

submitted”. For that proposition, Houston cites Ford v. Turner, 531 A.2d 233

(D.C. 1987), which held plaintiff, an administratrix seeking the return of her

deceased sister’s firearms, was not given “notice reasonably calculated, under all

the circumstances, to apprise [her] of the pendency of the action and afford [her]

an opportunity to present [her] objections”. Id. at 236 (quoting Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In Ford, the police did not

notify plaintiff of the initial seizure. Id. at 237. Nor did the D.C. Code provide

constructive notice of plaintiff’s right to contest the seizure because there were

numerous statutes, with varying provisions, applicable to seized property. Id.
No. 11-30198

8

In contrast, Houston obviously had notice of the seizure of his firearm and

the reason(s) for its being seized. Beyond that, defendants were “under no

constitutional obligation to provide notice to the plaintiff of [the means for

seeking return of his property]”. Baird v. Holton, No. 10-0451 (BAH), 2011 WL

3663753, at *4 (D.D.C. 22 Aug. 2011) (holding due process did not require

defendant, after criminal proceeding, to notify plaintiff of criminal procedure by

which he could move for return of property). See also Leyland v. Edwards, 797

F. Supp. 2d 7 (D.D.C. 2011) (same). Similar to Baird and Leyland, 797 F. Supp.

2d at 11 n.5–where “the criminal proceeding in which Plaintiff was being

prosecuted is governed by the Superior Court’s Rules of Criminal Procedure [in

the District of Columbia], and [D.C.] Rule 41(g) outlines the procedure by which

seized items may be returned”–the provision outlining the procedural remedy

available to Houston is found in the “Criminal Procedure” title and the “Code of

Criminal Procedure Ancillaries” chapter of the Louisiana Revised Statutes.

Moreover, the notes to the Rule of Criminal Procedure governing the disposition

of seized property cross-reference § 15:41. La. Code Crim. Proc. Ann. art. 167

(West, Westlaw through 2011 Reg. Sess.).

The earlier-cited Walters v. Wolf, 660 F.3d 307 (8th Cir. 2011), recently

decided a case similar to the one at hand. In Walters, plaintiff claimed a city in

Missouri and its police chief violated, inter alia, due process by refusing his

informal requests for his seized firearm after a state court dismissed the charge

against him. Id. at 309-10. The Eighth Circuit agreed, reasoning: the Mathews

analysis, described supra, usually requires “some kind of a hearing before the

State deprives a person of liberty or property”, id. at 312 (quoting Zinermon v.

Burch, 494 U.S. 113, 127 (1990) (emphasis in original)); and, the “pivotal

deprivation” was defendants’ refusal to return the firearm after the charge was

dismissed,id. at 315. The summary judgment for defendants was vacated, based
No. 11-30198

9

on the court’s holding: “[R]elegation to a post-hoc state tort action to address the

deprivation is inherently insufficient”. Id.

Unlike in Louisiana, the Missouri statute governing disposition of seized

property does not afford a procedural remedy to owners of “weapons seized by

an officer incident to an arrest”. Mo. Rev. Stat. § 542.301.1(2). Rather, the only

available remedy for the owner of a seized firearm is a separate action for

replevin. Lathon v. City of St. Louis, 242 F.3d 841, 844 (8th Cir. 2001); Elam v.

Dawson, 156 S.W.3d 807, 809 n.2 (Mo. Ct. App. 2005); Castelli v. City of

Bridgeton, 792 S.W.2d 909, 910 (Mo. Ct. App. 1990). In Louisiana, on the other

hand, the owner of a seized firearm may request its return simply by filing a

contradictory motion in the criminal proceeding. La. Rev. Stat. § 15:41(C). See

also Matter Under Investigation, 15 So. 3d at 984 (“a motion for return of

property filed pursuant to La. R.S. 15:41 is part and parcel of a criminal

proceeding”).

As discussed, under Louisiana law, the proper remedy for seeking the

return of seized property is to file a motion under § 15:41. See Leyland, 797 F.

Supp. 2d at 10 (“the proper remedy for seeking the return of such property [in

the District of Columbia] is to simply file a motion under Rule 41(g)”). Houston’s

complaint does not allege that he has done so; and, his justifications, as a matter

of law, for not so alleging fail. Accordingly, he has not stated a due-process

claim.

III.

For the foregoing reasons, the judgment is AFFIRMED.
No. 11-30198

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JENNIFER WALKER ELROD, Circuit Judge, dissenting:

In holding that Houston’s claim does not implicate the Second

Amendment, the majority contravenes the Supreme Court’s recent decisions in

District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of

Chicago, 130 S. Ct. 3020 (2010). As several of our sister circuits have recognized,

Heller and McDonald dictate that the scope of the Second Amendment be

defined solely by reference to its text, history, and tradition. Yet without textual

exegesis or historical evidence, the majority concludes that Houston’s claimed

right to his firearm falls outside the scope of Second Amendment protection. In

reaching this conclusion, it holds that the Second Amendment does not protect

an individual’s “property-like right to a specific firearm” unless the government

has prevented him from “retaining or acquiring other firearms.” This exception

to the Second Amendment cannot be reconciled with Heller and McDonald.

Given my conclusion that Houston’s claim implicates the Second

Amendment, I must reach the question of what test courts should apply in

evaluating Second Amendment claims, an open question in this circuit. In

applying Heller and McDonald, most of our sister circuits have adopted a twostep approach to Second Amendment claims, step one of which is to determine

whether the regulated activity falls within the scope of the Amendment—an

exclusively textual and historical inquiry—and step two of which is to apply

some level of heightened scrutiny (strict or intermediate) to regulations of

Second Amendment-protected activity. Recently, however, Judge Kavanaugh

of the D.C. Circuit has articulated an alternative approach, which dispenses

with step two on the ground that Heller and McDonald rule out scrutiny

analysis. In my view, unless and until the Supreme Court says differently,

Judge Kavanaugh is correct that “Heller and McDonald leave little doubt that

courts are to assess gun bans and regulations based on text, history, and

tradition, not by a balancing test such as strict or intermediate scrutiny.” Heller
No. 11-30198

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v. Dist. of Colum., — F.3d —, 2011 WL 4551558, at *23 (D.C. Cir. Oct. 4, 2011)

(Kavanaugh, J., dissenting). The parties have not addressed whether the

district attorney’s policy is sufficiently rooted in the Second Amendment’s text,

history, and tradition. I would remand for the district court to consider that

question in the first instance.

I also disagree with the majority’s procedural due process analysis.

Without any discussion or citation to relevant authority, the majority imposes

the novel requirement that a well-pleaded due process claim must include an

allegation that the plaintiff has attempted to vindicate his interest through the

available judicial remedy provided by the state—the very remedy that Houston

challenges as constitutionally inadequate. I would adhere to settled procedural

due process principles and hold that Houston has stated a due process claim.

Louisiana’s postdeprivation judicial remedy is inadequate because this case does

not fall within the Paratt v. Taylor exception to the general rule that “the

Constitution requires some kind of a hearing before the State deprives a person

of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990).

I.

Heller and McDonald make clear that courts may consider only the text

and historical understanding of the Second Amendment when delimiting the

Amendment’s scope. The Supreme Court explained in Heller that it would

require “an exhaustive historical analysis” to delineate “the full scope of the

Second Amendment.” 554 U.S. at 626. While declining that undertaking, the

Heller Courtidentified as permissible severaltypes of“longstanding” regulatory

measures. Id. at 626–27. Heller then looked to “historical tradition” alone to

reach its conclusion that the government may ban certain classes of “dangerous

and unusual weapons.” Id. at 627. Accordingly, the Court interpreted its prior

decision in United States v. Miller, 307 U.S. 174 (1939), as establishing “only

that the Second Amendment does not protect those weapons not typically
No. 11-30198

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possessed by law-abiding citizens for lawful purposes, such as short-barreled

shotguns,” because “[t]hat accords with the historical understanding ofthe scope

of the right.” Heller, 554 U.S. at 625. In summing up its methodological

approach,the Court emphasized that“[c]onstitutional rights are enshrined with

the scope they were understood to have when the people adopted them, whether

or notfuture legislatures or (yes) even future judges think that scope too broad.”

Id. at 634–35. The Court then reiterated that exceptions to the scope of the

Second Amendment depend on “historical justifications.” Id. at 635. Two years

later in McDonald,the Court confirmed its historical approach, reassuring state

governments that Heller “did not cast doubt on [certain categories of]

longstanding regulatory measures.” 130 S. Ct. at 3047 (controlling opinion of

Alito, J.).

Several of our sister circuits have recognized that Heller and McDonald

require a textual and historical approach to the Second Amendment’s scope. See

Ezell v. City of Chi., 651 F.3d 684, 702–03 (7th Cir. 2011) (under Heller and

McDonald, some gun regulations are categorically beyond the scope of the

Second Amendment because they regulate activity unprotected by the right to

keep and bear arms as publicly understood at the time of ratification); United

States v. Chester, 628 F.3d 673, 678 (4th Cir. 2010) (Heller established that

“determining the limits on the scope of the [Second Amendment] right is

necessarily a matter of historical inquiry”); United States v. Rene E., 583 F.3d 8,

12 (1st Cir. 2009) (Heller “identified limits deriving from various historical

restrictions on possessing and carrying weapons. . . . These restrictions, as well

as others similarly rooted in history, were left intact by the Second Amendment

and by Heller.”). But see Nordyke v. King, 644 F.3d 776, 783 (9th Cir. 2011)

(“heightened scrutiny does not apply unless a regulation substantially burdens

the right to keep and to bear arms for self-defense”). The fundamental flaw in

the majority’s analysis is its failure to confine itself to text and history in
No. 11-30198

1 The majority’s analogy to classes of speech that are unprotected by the First

Amendment further underscores the need for historical evidence to establish a categorical

exception. Only “historically unprotected” categories of speech are beyond the scope of the

First Amendment. United States v. Stevens, 130 S. Ct. 1577, 1586 (2010). 

2

Indeed, the Supreme Court has expressly rejected this sort of reasoning in the First

Amendment context: “‘[O]ne is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be exercised in some other place.’”

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (quoting Schneider v. State

of New Jersey, Town of Irvington, 308 U.S. 147, 163 (1939)). Heller itself rejected a strikingly

similar argument: “It is no answer to say . . . that it is permissible to ban the possession of

13

determining the scope of the Second Amendment, as Heller and McDonald

require. Because the government has not marshaled any historical evidence

that the Second Amendment categorically does not protect particular firearms,

the majority errs in recognizing such an exception in this case.1

McDonald provides yet another reason why today’s holding cannot be

correct. McDonald emphatically rejected the notion thatthe Second Amendment

is “a second-class right, subject to an entirely different body of rules than the

other Bill of Rights guarantees.” 130 S. Ct. at 3044–48; see also Valley Forge

Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S.

464, 484 (1982) (“[W]e know of no principled basis on which to create a hierarchy

of constitutional values.”). Today’s holding cannot be squared with this guiding

principle. In the context of other enumerated constitutional rights, an

equivalent per se exception for particular exercises of the right at stake (so long

as other exercises of that right are permitted) would be intolerable. Consider,

for example, a court holding that the Free Speech Clause affords no protection

against the government preventing the publication of a particular editorial in

the New York Times because there are plenty of other newspapers that might

publish the piece. Or consider a court holding that the Fourth Amendment is

inapplicable to the unreasonable seizure of a specific automobile so long as the

government does not prevent the owner from borrowing, renting, or purchasing

a replacement vehicle.2 These examples should suffice to show the absurdity of
No. 11-30198

handguns so long as the possession of other firearms ( i.e., long guns) is allowed.” 554 U.S. at

629; see also Heller, 2011 WL 4551558, at *39 (“[T]hat’s a bit like saying books can be banned

because people can always read newspapers.”).

3

It bears emphasis that I include these examples not because I fear that today’s rule

will facilitate the adoption of equivalent exceptions to other Bill of Rights guarantees. Instead,

I include these examples to illustrate just how anomalous today’s holding is.

4 The majority also cites Heller for the proposition that “[t]he right protected by the

Second Amendment is not a property-like right to a specific firearm, but rather a right to keep

and bear arms for self-defense.” This citation is misleading, and Heller contains no such

statement. Heller unquestionably supports the second clause ofthe quoted sentence—thatthe

Second Amendment protects the right to keep and bear arms for self-defense—but provides

no support for the first clause. Rather, as discussed, the notion that the Second Amendment

does not protect specific firearms is incompatible with Heller.

14

courts recognizing categorical exceptions for each particular exercise of those

rights.3In carving out such an exception from the Second Amendment, today’s

majority impermissibly treats the Amendment as a “second-class right.”

McDonald, 130 S. Ct. at 3044.

Instead of undertaking the historical inquiry required by Heller and

McDonald, the majority relies entirely on Walters v. Wolf, 660 F.3d 307 (8th Cir.

2011), for its conclusion that Houston’s claimed right to his particular firearm

does notimplicate the Second Amendment.4 Walters, however, emphasized that

it did not endorse the per se rule that the Second Amendment does not protect

particular firearms. Id. at 318 (“We do not foreclose the possibility that some

plaintiff could show that a state actor violated the Second Amendment by

depriving an individual of a specific firearm.”). Moreover, although Walters’s

Second Amendment holding is not entirely clear, it appears to be dependent, at

least in part, on the court’s prior determination that the plaintiff had stated a

valid procedural due process claim. Id. at 317 (“We believe Walters’s valid Due

Process claim addresses the gravamen of his complaint.”). Most importantly,

insofar as Walters does supportthe majority’s dismissive treatment of Houston’s

Second Amendment claim, we should not follow it. Like today’s holding, Walters
No. 11-30198

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is at odds with the Supreme Court’s command that courts may consider only text

and history in determining the scope of the Second Amendment.

It is particularly unfortunate for our circuit to endorse the atextual,

ahistorical rule that the Second Amendment does not protect particular

firearms. In United States v. Emerson, 270 F.3d 203, 218–60 (5th Cir. 2001)

(Garwood, J.), after an extensive consideration of the text and historical

understanding of the Second Amendment, we held that the Amendment

“protects the right of individuals, including those not then actually a member of

any militia or engaged in active military service or training, to privately possess

and bear their own firearms.” We were the first circuit so to hold. See Parker

v. Dist. of Columbia, 478 F.3d 370, 380 (D.C. Cir. 2007) (“Federal appellate

courts have largely adopted the collective right model [of the Second

Amendment]. Only the Fifth Circuit has interpreted the Second Amendment to

protect an individual right.”). Heller vindicated Emerson. Yet today’s majority

flouts Heller and its imperative to consider only text and history in delimiting

the Second Amendment’s scope.

II.

The majority leaves for another day the question of what test applies to

Second Amendment claims. Unlike the majority, I must reach this question

because in my view Houston’s claim implicates the Second Amendment.

Until recently, almost every circuit court to address this issue has framed

the question as a choice between intermediate and strict scrutiny. See, e.g.,

Heller, 2011 WL 4551558, at *8; Ezell, 651 F.3d at 701; Chester, 628 F.3d at 682;

United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010); United States v.

Marzzarella, 614 F.3d 85, 96–97 (3d Cir. 2010). Judge Kavanaugh has recently

elucidated an alternative approach, explaining that the Supreme Court’s

rejection of an interest-balancing approach also rules out strict and intermediate

scrutiny—both forms of judicial balancing. Heller, 2011 WL 4551558, at *26–32
No. 11-30198

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(Kavanaugh, J., dissenting). Judge Kavanaugh’s dissenting opinion also

carefully demonstrates that both Heller and McDonald repeatedly emphasized

the central role of text, history, and tradition in analyzing Second Amendment

claims. Id. at *23–32. Indeed, Heller “prospectively blessed certain laws for

reasons that could be (and were) explained only by history and tradition, not by

analysis under a heightened scrutiny test.” Id. at *30.

For essentially the reasons articulated in Judge Kavanaugh’s convincing

dissent, I would hold that the proper test for evaluating Second Amendment

claims is as follows:

Gun bans and gun regulations that are longstanding—or, put

another way, sufficiently rooted in text, history, and tradition—are

consistent with the Second Amendment individual right. Gun bans

and gun regulations that are not longstanding or sufficiently rooted

in text, history, and tradition are not consistent with the Second

Amendment individual right.

Id. at *35. Because the parties have not briefed whether the district attorney’s

policy passes muster under this test, I would remand to the district court for

consideration of this question.

III.

With regard to Houston’s procedural due process claim, I do not agree that

Houston’s claim fails because he has not alleged that he has utilized the judicial

remedy provided by the state. The majority cites no authority for imposing this

novel requirement and offers no justification for why this case requires us to

announce this new rule. Thus, even assuming that the majority is correct that

Houston could have filed a motion in state court under La. Rev. Stat. § 15:41(C)

for the return of his firearm,thatis irrelevantto the proper due process analysis

in this case. When Houston filed his complaint, he had no reason to expect that

his case would be thrown out for his failure to allege that he has sought relief

pursuant to the very state procedure that he alleges is constitutionally

inadequate.
No. 11-30198

5 The relevant deprivation of property occurred at the moment the District Attorney

dropped charges against Houston but decided to retain, rather than return, his firearm. There

was, of course, a prior deprivation when the government initially seized the weapon, but this

was lawful because the seizure was supported by probable cause. Only the second deprivation

is at issue. See Walters, 660 F.3d at 314–15 (distinguishing between these two distinct

deprivations).

17

I would resolve this case by applying established due process principles.

Although the majority has not bothered to address the question, in my view, the

proper approach is to begin by resolving the parties’ dispute about whether to

classify § 15:41 as a predeprivation or postdeprivation remedy.5 The answer to

this question is not perfectly straightforward because § 15:41 allows for the filing

of a motion at any time, either before or after the district attorney “nolle

prossed” the charges against Houston. But the problem with classifying § 15:41

as a predeprivation remedy is that Houston could not have utilized § 15:41 to

challenge the government’s retention of his firearm after dropping charges until

Houston knew that the District Attorney actually dropped charges and refused

to return his firearm. Thus, I would analyze § 15:41 as a postdeprivation

remedy.

Under the Supreme Court’s case law, postdeprivation remedies are only

adequate in the narrow circumstances governed by Parratt v. Taylor, 451 U.S.

527 (1981), which “represent[s] a special case ofthe general Mathews v. Eldridge

analysis.” Zinermon v. Burch, 494 U.S. 113, 128 (1990). Under the Parratt rule,

postdeprivation remedies are acceptable only where the deprivation results from

“a random and unauthorized act by a state employee” rather than “some

established state procedure.” Parratt, 451 U.S. at 541. In that circumstance,

because “the State cannot predict precisely when the loss will occur,” id., “the

State cannot be required constitutionally to do the impossible by providing

predeprivation process.” Zinermon, 494 U.S. at 129.
No. 11-30198

6 Houston alleges that “[o]n approximately November 24, 2008, Mr. Houston was told

that the new District Attorney, Defendant Cannizzaro, had implemented a new policy

providing that firearms seized during arrests would not be returned.” At oral argument,

counsel for the district attorney reaffirmed this policy.

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This case is not governed by Paratt, but by the ordinary rule that “the

Constitution requires some kind of a hearing before the State deprives a person

of liberty or property.” Id. at 127. According to Houston’s complaint, the District

Attorney refused to return Houston’s firearm after dropping charges pursuant

to an “established state procedure.”6 Parratt, 451 U.S. at 541. Thus, the

deprivation was not “a random and unauthorized act by a state employee” that

would make it impossible for the state to predict the deprivation and afford

predeprivation process. Id. This conclusion also follows from this circuit’s case

law applying the Parratt rule. In Caine v. Hardy, the en banc court held that

Parratt bars a § 1983 procedural due process claim only if there are adequate

state postdeprivation procedures and each ofthe following conditions is present:

(1) “the deprivation must truly have been unpredictable or unforeseeable”;

(2) “pre-deprivation procedures must have been impotent to counter the state

actors’ particular conduct”; and (3) “the conduct must have been ‘unauthorized’

in the sense that it was not within the officials’ express or implied authority.”

943 F.2d 1406, 1413 (5th Cir. 1991) (en banc). Not one of these conditions is met

here.

Even if § 15:41 is construed to be a predeprivation remedy, I still would

hold, under a straightforward application of Mathews v. Eldridge, 424 U.S. 319

(1976), that the district court erred in dismissing Houston’s procedural due

process claim. In my judgment, the district court undervalued the private

interest and overvalued the government’s interest. The district court

downplayed the weight of the private interest by reasoning that gun possession

“is not a basic necessity of life, such as [welfare benefits] or employment.” But
No. 11-30198

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this analysis fails to account for the Supreme Court’s description of the Second

Amendment right to gun ownership as “fundamental,” McDonald, 130 S. Ct. at

3037, and the reality that, in certain situations, an individual’s ability to utilize

a firearm in self-defense will be nothing less than a matter of life or death. See

Heller, 554 U.S. at 599 (individual self-defense is the “central component” of the

Second Amendment). The district court also gave significant weight to the

government’s “important interest in preserving evidence of crimes.” There is no

doubt that this is a powerful interest, but in my view it loses some of that

strength where, as here, the government has dropped charges, has expressed no

interest in re-indicting Houston, and has given no other indication of a need to

retain the firearm. If, in a particular case, the government does still have a

strong interestin preserving the firearm as evidence (for example, ifthe weapon

is also evidence of another crime for which charges or an investigation are

pending), it may assert that interest at the due process hearing.

In sum, I would hold that Houston has stated a due process claim because

the postdeprivation judicial remedy provided for in § 15:41 is inadequate under

these circumstances. If Houston prevailed on the merits of that claim, I would

leave it to the district court, in the first instance, to grapple with what specific

procedures the state must provide.

IV.

“Constitutional rights are enshrined with the scope they were understood

to have when the people adopted them, whether or not future legislatures or

(yes) even future judges think that scope too broad.” Heller, 554 U.S. at 634–35.

As lower court judges, our narrow province in constitutional adjudication is to

faithfully apply the Constitution as interpreted by the Supreme Court. Because

today’s decision runs afoul of Heller, McDonald, and Zinermon—all binding

Supreme Court precedents—and our en banc precedent in Caine, I respectfully

dissent.
No. 11-30198

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