Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney Gen. N.J.
Docket: No. 18-3170
Court: Court of Appeals for the Third Circuit; December 5, 2018; Federal Appellate Court
New Jersey enacted a law limiting firearm magazine capacity to ten rounds in response to increasing active and mass shooting incidents. The law was challenged on constitutional grounds, asserting violations of the Second Amendment, Fifth Amendment's Takings Clause, and Fourteenth Amendment's Equal Protection Clause. The court found that the law aligns with the state's public safety interests and does not unconstitutionally infringe on the right to self-defense in the home. It also ruled that the law does not violate the Takings Clause since it does not require the surrender of magazines but allows for modifications or registrations. The exemption for retired law enforcement officers possessing larger capacity magazines was deemed permissible under Equal Protection principles due to their distinct training and experience. Consequently, the court affirmed the District Court's denial of the Plaintiffs' motion for a preliminary injunction against the law. The law provides mechanisms for compliance, including modification, rendering inoperable, registration, transfer, or surrender of non-compliant magazines. Plaintiffs, including the Association of New Jersey Rifle and Pistol Clubs, filed the action under 42 U.S.C. § 1983, challenging the law's constitutionality and seeking to prevent its enforcement.
The District Court conducted a three-day evidentiary hearing regarding a request for a preliminary injunction related to the regulation of large capacity magazines (LCMs). During the hearing, the Court reviewed witness declarations and supporting documents, including prior case declarations on LCM bans, scholarly articles on firearm regulations, reports on the 1994 federal assault weapons ban, gun ownership statistics, news articles on shooting incidents, FBI active shooter reports, and historical materials on LCMs.
The evidence clarified the function and usage of LCMs, which enhance a firearm's ammunition capacity, allowing rapid firing without reloading. Millions of LCMs have been sold since 1994, with 63% of gun owners using them in modern sporting rifles, primarily for hunting, pest control, and self-defense. However, the evidence suggested that LCMs are not essential for self-defense and can lead to indiscriminate firing and severe consequences for bystanders. There is substantial evidence linking LCM usage to mass shootings, contributing to higher fatalities and injuries by allowing shooters to fire more rounds in less time, reducing escape or intervention opportunities for victims and law enforcement.
The record showed that shooters often legally acquire firearms, with a significant number of mass shooters obtaining their guns from legal sources or family members. New Jersey law enforcement regularly uses LCMs, having received training for their use in civilian environments. Ultimately, the District Court denied the motion for a preliminary injunction, finding the expert testimony credible but insufficient to demonstrate how the law would effectively reduce mass shootings or impede lawful gun owners' self-defense capabilities.
The Court found that while both expert witnesses, Kleck and Allen, were credible, their testimonies were based on questionable data and conflicting studies, indicating flaws in their methodologies and conclusions. The District Court upheld the constitutionality of the Act, which bans magazines capable of holding more than ten rounds, concluding that it implicates Second Amendment protections but does not violate them. The Court applied intermediate scrutiny, stating that the Act imposes a minimal burden on lawful gun owners and is appropriately tailored to New Jersey's aim of reducing casualties from mass shootings. Evidence suggested that reloading delays could provide opportunities for victims to escape or for bystanders to intervene.
The District Court dismissed the Plaintiffs' claims under the Fifth Amendment's Takings Clause and the Fourteenth Amendment's Equal Protection Clause. The Takings claim was deemed unmeritorious as property owners had options to comply with the law without losing their property. The Court also ruled that the exemption for retired law enforcement officers did not violate equal protection rights, citing their unique training and experience.
After finding that Plaintiffs failed to demonstrate a likelihood of success on their claims, the District Court denied their motion for a preliminary injunction, which the Plaintiffs have appealed. Plaintiffs contend that the Act is unconstitutional for banning a class of arms protected by the Second Amendment, lacking empirical support, and infringing on law-abiding citizens’ rights to self-defense. Conversely, the State argues that the Act is necessary for public safety and does not infringe on the rights of lawful gun owners.
To obtain a preliminary injunction, Plaintiffs must show a reasonable likelihood of success and that they will suffer irreparable harm without it. The Court will review the District Court’s findings of fact for clear error, legal conclusions de novo, and the overall decision for abuse of discretion. The analysis will determine if there is a reasonable probability that the Act violates the Second, Fifth, and Fourteenth Amendments. Each claim will be evaluated in detail.
The Second Amendment states that individuals have the right to keep and bear arms, and in District of Columbia v. Heller, the Supreme Court affirmed that this right protects individual firearm possession for self-defense. The current legal challenge pertains to whether magazines, specifically those with large capacities (LCMs), qualify as arms under the Second Amendment. Magazines are deemed arms since they hold ammunition necessary for firearms to function.
The analysis follows a two-step framework: first, determining if the regulation burdens conduct protected by the Second Amendment, and second, applying an appropriate level of scrutiny if a burden exists. The evidence shows that millions of magazines are owned for lawful purposes, indicating they fall within the Amendment's protection.
The level of scrutiny applied depends on whether the regulation affects the core right of self-defense. The law in question does not severely burden this right for several reasons: it only restricts magazines over ten rounds, does not ban an entire class of firearms, and does not significantly impair self-defense capabilities since other firearm options remain available. Additionally, the law does not prevent firearms from operating as intended, allowing for possession of magazines with fewer rounds. Overall, alternative options for self-defense are still accessible to law-abiding citizens, and the right to possess firearms for self-defense is not absolute under all circumstances.
Any firearm possessed in the home is protected for self-defense under the Second Amendment, implying that the New Jersey Act, which regulates magazine capacity, does not severely burden this right. Intermediate scrutiny applies, requiring the government to demonstrate a significant interest and ensure a reasonable fit between that interest and the law. New Jersey has a substantial interest in public safety, particularly in reducing the lethality of mass shootings. The law banning large-capacity magazines (LCMs) aligns with this interest by limiting the number of shots a shooter can fire before needing to reload, thus increasing opportunities for victims to escape and bystanders to intervene. Evidence supports that reloading pauses can significantly impact the outcome of such incidents, as shown in past mass shootings. The court found that the LCM ban is justified given the frequency and severity of mass shootings, and it imposes no undue restrictions on law-abiding gun owners regarding the number of firearms or ammunition they may possess. Therefore, the Act withstands intermediate scrutiny, affirming that laws limiting magazine capacity to ten rounds do not violate the Second Amendment. Additionally, the plaintiffs' Fifth Amendment Takings claim is dismissed, as the Takings Clause requires just compensation for property taken for public use, which is not applicable in this context.
A direct government appropriation or physical invasion of private property typically necessitates just compensation. Government regulations can also lead to a regulatory taking if they are excessively burdensome. However, the compliance measures outlined in the Act do not constitute either an actual or regulatory taking. Property owners can either transfer or sell their large capacity magazines (LCMs), modify them to hold fewer than ten rounds, or register those that cannot be modified, thereby negating any requirement to surrender them to law enforcement. The Act does not deprive gun owners of all economically beneficial uses of their magazines, as modifying them does not eliminate their functionality for intended use.
Furthermore, the plaintiffs' Equal Protection claim is unsubstantiated. The Equal Protection Clause mandates equal treatment for similarly situated individuals. The plaintiffs argue that the Act's allowance for retired law enforcement officers to possess LCMs, while banning retired military members and civilians from doing so, violates this clause. However, the plaintiffs fail to demonstrate that retired law enforcement officers are similarly situated to other New Jersey residents, given their extensive training and experience in firearms handling, which is not matched by the general public or military personnel. Law enforcement officers receive rigorous ongoing training, including firearms qualifications, that distinguishes them from ordinary citizens. Consequently, the exemption for retired law enforcement officers from the LCM ban does not infringe upon the Equal Protection Clause. The order denying the plaintiffs' motion for a preliminary injunction is affirmed, emphasizing that the Second Amendment must be treated with the same seriousness as other constitutional rights, as articulated in the Supreme Court's Heller decision.
The majority's treatment of the Second Amendment diverges from the approach applied to other rights in two significant ways. First, it improperly weighs the case's merits to determine a tier of scrutiny, whereas other rights establish scrutiny levels based solely on whether a law impairs the core right. The core right under the Second Amendment is identified as the right to possess weapons for self-defense in the home. Given that the majority acknowledges this core, strict scrutiny should apply when a law encroaches upon it, which is the case here.
Second, although the majority claims to employ intermediate scrutiny, it essentially reverts to the rational-basis test, which is inconsistent with the precedent set in Heller. The majority's reliance on evidence not considered by the District Court, alongside expert testimony deemed unhelpful by the court, shifts the burden of proof onto challengers, presuming that both contested evidence and absence of evidence favor the government. Regardless of the scrutiny tier, there must be substantial evidence showing that the law effectively furthers a legitimate government interest and is appropriately tailored. The majority, however, substitutes anecdotal reasoning for the concrete proof required under heightened scrutiny.
New Jersey has not provided expert studies demonstrating the effectiveness of its magazine restrictions, nor has the District Court identified sufficient evidence linking the law to a reduction in mass shooting incidents. The state must demonstrate that existing regulations are inadequate. While other circuits have upheld similar magazine limits, they incorrectly apply less stringent scrutiny and demand minimal proof.
The author asserts that strict scrutiny should apply to any law that infringes upon the core Second Amendment right of self-defense in the home, and contends that the law in question fails this scrutiny. Unlike other constitutional rights, the Supreme Court has not established a formal tiered scrutiny system for gun regulations, potentially by design. However, precedent indicates that strict scrutiny should apply to the core Second Amendment right, as acknowledged by the majority.
The Free Speech Clause prohibits restrictions on speech based solely on its offensiveness, requiring strict scrutiny for content-based speech laws. Similarly, the Free Exercise Clause protects against laws that discriminate based on religion, also warranting strict scrutiny. The Equal Protection Clause targets discriminatory classifications, particularly those based on race, which likewise receive strict scrutiny. The Second Amendment centers on self-defense in the home, as confirmed by the Heller and McDonald decisions, necessitating strict scrutiny for laws that impede this right. While not all gun regulations affect self-defense, laws that do impair this function must be subjected to strict scrutiny. A ban on large magazines is particularly burdensome, as it applies to the home and is common in use. The government's argument that smaller magazines necessitate more reloading, which may hinder effectiveness, also applies to self-defense situations. Testimony from law enforcement supports the view that large magazines provide a tactical advantage in conflicts. Although the law does not completely ban magazines, it still infringes upon the core Second Amendment right, thereby invoking strict scrutiny for constitutional evaluation.
The majority's rationale for applying intermediate scrutiny is fundamentally flawed in two significant respects. Firstly, it engages in forbidden interest-balancing by weighing the importance of the right to possess large magazines. The majority incorrectly interprets a reference from *Marzzarella*, insisting that a law must "severely burden the core Second Amendment right to self-defense in the home" to warrant strict scrutiny. It further demands evidence indicating that large magazines are commonly used for self-defense, noting that the record lacks clarity on the frequency of their use. Additionally, the majority argues that smaller magazines and alternative firearm options are sufficient, which misinterprets the Second Amendment's protection of arms possession, not merely their use.
This analysis improperly prioritizes the severity of a law's burden before determining the appropriate scrutiny tier, contravening the guidelines established in *Heller*. Such an approach resembles Justice Breyer's dissent in *Heller*, which was explicitly rejected by the majority in that case. The majority's focus on the availability of alternatives to large magazines fails to address the core issue: whether the ban impairs the self-defense function of firearms within the home. The Supreme Court has already established that the right to keep and bear arms is essential and does not require data on defensive use to validate its significance. This principle mirrors the treatment of other constitutional rights, where scrutiny remains consistent regardless of the popularity or burden of the speech or action involved.
In the analysis of gun laws, the excerpt emphasizes that the availability of alternatives does not lessen the level of scrutiny applied to regulations impacting constitutional rights. It draws parallels to other rights, such as freedom of speech and religion, which undergo strict scrutiny regardless of whether alternative expressions exist. The discussion critiques the majority's interpretation of prior rulings, asserting that the core of the Second Amendment extends beyond mere handgun bans and encompasses broader restrictions, including limits on magazine capacities for self-defense.
The author contends that strict scrutiny should be applied to any law that impairs this core right, arguing that the majority's approach effectively limits the application of Heller to handguns, which is inconsistent with how other rights are treated. The author insists that under both strict and true intermediate scrutiny, the law in question fails, highlighting that the majority's analysis is inadequate, relying on anecdotal evidence rather than rigorous standards of proof. The excerpt concludes by asserting that intermediate scrutiny must be robust and should not devolve into a mere rational-basis review, as established by prior Supreme Court precedents.
Intermediate scrutiny requires the government to demonstrate that a law advances a substantial governmental interest and to provide concrete evidence supporting its predictive judgments. While some deference may be afforded to the legislature, this deference is limited and must be backed by real evidence, as established in various case law. The government must also prove that its law does not impose more restrictions than necessary, though it is not required to use the least restrictive means. In this case, New Jersey has not met its burden under intermediate scrutiny. While the state claims a compelling interest in reducing mass shooting harm, it fails to show how its ban on large-capacity magazines advances this interest or provides evidence of tailoring the law to achieve its goals.
The record lacks evidence linking magazine restrictions to a reduction in mass shooting deaths. The District Court's rationale for upholding the ban, including arguments about smaller magazines and deference to legislative judgment, does not hold up under scrutiny. The court's reliance on Justice Breyer's dissent in Heller undermines its position, and the expert testimony it reviewed was deemed insufficient to support the law's effectiveness in enhancing self-defense or reducing mass shooting harm.
The government's burden of proof was not met, as the only expert finding available was vague and generalized, suggesting that reloading delays might allow victims to escape or bystanders to intervene. This assertion, based on speculation that smaller magazines necessitate more frequent pauses for reloading, lacks a concrete causal link to mass shooting fatalities. The majority opinion attempts to connect large magazines to mass shooting harm by referencing a variety of record sections overlooked by the District Court, including mass shooting statistics and anecdotal evidence about potential escape opportunities during reloads. However, the District Court explicitly rejected reliance on such anecdotal evidence and noted the inadequacy of the record to establish how often large magazines are used in mass shootings or the specifics of reload timing.
Furthermore, the majority's analysis does not provide any record citations or substantial evidence supporting a direct relationship between large magazines and mass shooting deaths. The government's best supporting evidence was a CNN article mentioning a study linking large magazines to mass shootings, but the study itself and its data were never presented or peer-reviewed. The majority's reasoning, which hinges on a general statement about reloading opportunities, effectively shifts the burden of proof and lacks a limiting principle, suggesting that even a one-round magazine limit could be justified by similar logic.
Additionally, the majority does not require evidence of tailoring, which is a necessary consideration that extends beyond the First Amendment, as established by precedent. Without substantial evidence linking magazine size restrictions to reduced mass shooting incidents, a preliminary injunction should be granted.
Tailoring is essential for intermediate scrutiny, as established in prior cases. New Jersey has laws in place that restrict firearm magazine capacities, notably a ban on magazines holding more than fifteen bullets, which the challengers do not dispute. However, the evidence fails to demonstrate the necessity of a ten-round limit. Existing laws already address gun control, and New Jersey must prove that these laws are insufficient, which it has not done. The state’s may-issue permitting law allows concealed carry only for individuals with a "justifiable need," including those facing specific threats, thus rendering the large magazine ban particularly harmful to those who require self-defense. The government does not adequately justify the need for an additional ban, suggesting instead that the existing permitting requirement should extend to the home rather than imposing a total ban on large magazines.
The majority's analysis lacks clarity, especially regarding defensive gun uses. It inconsistently acknowledges that large magazines can be used for self-defense while simultaneously arguing that their usage is unclear. This inconsistency undermines the ban, as New Jersey has not met its burden of proof. The majority's interpretation of "intermediate scrutiny" appears to equate it with a lower standard of rational-basis review, which would not withstand the rigorous scrutiny applied in other contexts, such as free speech or sex discrimination cases.
The majority acknowledges that it is not applying conventional intermediate scrutiny in evaluating the law, admitting that its rationale does not derive from any constitutional provision, citing only the inherent danger of guns as justification. It references a Tenth Circuit case but fails to recognize that, as established in *Heller*, other constitutional rights also impact public safety without being treated differently. The dissent argues that the Second Amendment must be held to the same standards as other rights in the Bill of Rights, asserting that the majority's interpretation of intermediate scrutiny is insufficiently rigorous. The dissent emphasizes that strict scrutiny should apply to protect the fundamental right to self-defense, necessitating a high burden of proof for the government to demonstrate that magazine restrictions are effective and tailored to reduce gun violence. It criticizes the lack of concrete evidence provided by the government to justify the law, suggesting that the law could irreparably harm challengers' constitutional rights. The dissent calls for a remand to allow the government to present actual studies and evidence regarding the effectiveness of large magazine bans, noting that as of spring 2018, eight states and D.C. had enacted similar restrictions.
A "large capacity ammunition magazine" (LCM) in New Jersey is defined as any container holding more than 10 rounds of ammunition for semi-automatic firearms, excluding devices for .22 caliber rimfire ammunition. Before the 2018 Act, LCMs holding over 15 rounds were prohibited. Retired law enforcement officers can be exempt from this prohibition by meeting specific requirements, including procedural compliance, semi-annual qualification, and associated costs. The law allowed 180 days for compliance after its effective date of June 13, 2018.
The case involves plaintiffs Ellman and Dembrowski, both experienced in gun ranges, with Dembrowski being a Marine Corps veteran. Expert witnesses presented include Gary Kleck for the plaintiffs and three for the defendants: Lucy Allen, Glen Stanton, and John Donohue. Allen testified that most defensive gun uses involve 2-3 rounds, while Kleck cited an extrapolated number of 4,663 incidents where more than ten rounds were used in self-defense, based on outdated data and questionable methodology. Amicus Everytown for Gun Safety criticized this figure, noting its reliance on a specific data set that may not represent general trends in defensive gun use. The District Court found discrepancies in definitions of "mass shootings" across various studies and articles, which affected the weight given to those materials in the court's analysis.
The District Court evaluated specific instances of LCM (large capacity magazine) usage despite questioning the reliability of the statistics. Active military members and law enforcement officers are exempt from the LCM ban due to their duties requiring access to these items. Contrary to the dissenting opinion, the Court did not dismiss all expert testimony; it found the testimonies of Kleck and Allen to be unhelpful but relied on evidence from Donohue, Stanton, and other sources to support its conclusion. The District Court had jurisdiction under 28 U.S.C. § 1331, while appellate jurisdiction was established under 28 U.S.C. § 1292(a)(1). The plaintiffs' assertion that the clear error standard does not apply to legislative facts was deemed unpersuasive. Legislative facts encompass general knowledge known to the industry, facts that inform policy decisions, and those not limited to the parties involved. The plaintiffs failed to demonstrate that New Jersey's legislative facts could not be reasonably believed by decision-makers. Additionally, many facts presented were not considered legislative facts, as they are not widely known, such as specifics about magazine reloading times or active shooter incidents. Therefore, the clear error standard applies, and the Court declined to review the District Court's factual findings de novo. The principles established in Heller apply beyond the handgun ban, indicating that "common use" is not the sole determinant for protection, especially for weapons that may be illegal at the time of litigation.
The Second Amendment, as interpreted in Heller, is not absolute and requires an evaluation of whether firearms are commonly possessed for lawful purposes and if they are "dangerous and unusual." References to case law indicate that machine guns are not protected under the Second Amendment due to their extreme danger and lack of common lawful use. Large-capacity magazines (LCMs), while not deemed unusual, are recognized for their capability to cause significant harm due to rapid-fire potential. Heller warns against assuming that disproportionate criminal use invalidates lawful possession. Historically, LCM regulations began in the 1920s but were largely overturned by the 1970s, with a federal ban enacted in 1994 and expired in 2004. Lack of longstanding regulation does not inherently render it unlawful. The document emphasizes that rational basis review is inappropriate for Second Amendment burdens, and Heller's ruling on handgun bans does not directly apply to LCM bans, as the latter does not prevent the use of firearms with smaller magazines. Courts have generally not applied strict scrutiny to LCM bans, viewing them as not significantly impeding Second Amendment rights. Various courts have used intermediate scrutiny or evaluated the historical context and practical implications for self-defense regarding LCM regulations. The dissenting opinion's call for interest-balancing is clarified as inconsistent with the adopted analytical approach.
The scrutiny analysis in question does not employ the interest-balancing method proposed by Justice Breyer, which was dismissed by the Heller majority. Instead, the analysis follows the two-step framework established in Marzzarella. The first step assesses the burden of the Act on the core Second Amendment rights without considering government interests. The second step identifies a substantial government interest and examines whether the legislation reasonably fits that interest, with no balancing involved at either step.
Although the dissent argues that the burden of proof rests on the plaintiffs, it is actually the State's responsibility to demonstrate the Act's constitutionality under heightened scrutiny. The State has provided sufficient evidence, including instances where pauses due to reloading have allowed for intervention and escape during active shooter situations. The dissent's demand for empirical studies linking the LCM ban to reduced mass shooting fatalities is unnecessary; intermediate scrutiny only requires a reasonable fit between the ban and the State's goals, which is supported by anecdotal evidence.
Requiring empirical studies would impede timely legislative action to protect public safety. Additionally, the dissent's critique of the review process for factual determinations is misplaced, as clear error review necessitates a comprehensive examination of the entire record to ensure the District Court's conclusions are supported by evidence. If the record indicates that the District Court's findings are not baseless, those findings must be upheld.
The review process allows for an assessment of the factual findings based on the entire record, rather than solely on facts specifically mentioned by the Court. Factual findings can be substantiated by a variety of evidence, such as eyewitness accounts, law enforcement declarations, and video footage. In this case, evidence supports the finding that pauses in shooting during the Las Vegas incident facilitated escape and intervention. Plaintiffs argue that the ban on large capacity magazines (LCMs) infringes upon the rights of lawful gun owners, positing that LCMs provide tactical advantages in self-defense scenarios, especially given average citizens' shooting accuracy and the threat of multiple assailants.
The Second Amendment prioritizes the rights of responsible citizens to defend their homes, yet evidence indicates that most homeowners typically require only two to three rounds for self-defense, contrasting their needs with those of law enforcement and active shooters who may require LCMs. The dissent’s claim of a lack of a limiting principle is countered by the established principle of assessing whether the law significantly burdens the core right of self-defense at home.
The Court's ruling is confined to the constitutionality of New Jersey's ten-round magazine capacity limit, rejecting the broader implications presented. Plaintiffs' reliance on expert testimony suggesting higher ammunition needs is deemed speculative. They also propose applying First Amendment standards to evaluate the Second Amendment challenge, arguing that the Act must not suppress the right to possess firearms, must effectively address harm, and should consider less restrictive alternatives. However, the Court emphasizes adherence to established Second Amendment jurisprudence, indicating that it does not fully incorporate First Amendment standards into its analysis.
The Second Amendment right is distinct from other fundamental rights due to the inherent risks associated with firearms and weapons. Courts recognize that the standards of scrutiny applicable to the First Amendment do not necessarily transfer to the Second Amendment. Specifically, the Second Circuit has emphasized the differences in the state's regulatory authority over First and Second Amendment rights. As a result, courts have maintained established standards from previous cases like Drake and Marzzarella for Second Amendment challenges.
Plaintiffs argue against a New Jersey law banning large capacity magazines (LCMs), citing Justice Kennedy's opinion that cities cannot regulate the secondary effects of speech by suppressing the speech itself. However, the court distinguishes this case, asserting that the law aims to improve public safety and reduce mass shooting lethality, rather than suppress Second Amendment rights.
Plaintiffs further contend that the law must demonstrably alleviate the issues it addresses. Evidence in the record supports the law's effectiveness in enhancing public safety by potentially saving lives through pauses in shooting when a shooter must reload due to the LCM ban.
Lastly, plaintiffs claim that New Jersey did not thoroughly consider less restrictive alternatives when enacting the law. The court references a precedent that requires states to demonstrate that less restrictive alternatives were either tried and failed or rigorously examined. The court notes that New Jersey has a history of implementing gun regulations to prioritize public safety, and alongside the LCM ban, it passed several other laws addressing background checks, mental health limitations, concealed carry requirements, and restrictions on armor-piercing ammunition.
A state is not obligated to pursue a single method to achieve its objectives before assessing efficacy. The suggestion from Plaintiffs to restrict magazine use to homes is already covered by New Jersey's concealed carry law. Other proposed alternatives, such as background checks and registration, would not effectively address the issue, as 71% of active and mass shooters legally possessed their firearms. A recent non-precedential ruling by the Ninth Circuit affirmed a district court's injunction against California's large capacity magazine (LCM) ban, based on specific factual findings rather than a broad interpretation of Second Amendment rights. Similarly, Massachusetts's LCM ban faced a Second Amendment challenge that was rejected. The Takings Clause applies to states via the Fourteenth Amendment, but New Jersey's LCM ban is designed for public safety, thus not constituting a compensable taking. A taking does not occur when property use is prohibited under police powers. Although Plaintiffs cite Horne v. Department of Agriculture as precedent for a taking, that case involved government use of property, which is not relevant here.
