MEMORANDUM *

Plaintiff SYLDYLD, Inc., filed this action seeking injunctive relief and damages arising from the enforcement of towing ordinances by Defendants, the City of San Jose and San Jose Police Chief Bill Lans-downe. Plaintiff appeals from the district court’s dismissal of its case for failure to state a claim.

*802Shortly after Plaintiff filed its notice of appeal, this court held that the Federal Aviation Administration Authorization Act preempts towing ordinances materially indistinguishable from those at issue here. Tocher v. City of Santa Ana, 219 F.3d 1040 (9th Cir. 2000), cert. denied, 531 U.S. 1146, 121 S.Ct. 1085, 148 L.Ed.2d 960 (2001). Because Tocher controls our analysis, we reverse the district court’s dismissal of the action.

We do not reach the merits of Plaintiffs § 1983 claim against Defendant Lans-downe, however. Because the district court held that the ordinances are not preempted, it never reached the question whether Defendant Lansdowne is entitled to the defense of qualified immunity. We decline to address that question in the first instance.

REVERSED and REMANDED.