FISCAL v. CITY AND COUNTY OF SAN FRANCISCO

Filed 1/9/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Story continued from Part I .

While the City emphatically argues that Prop H is a proper response to crime because it is aimed at criminals who use handguns in the commission of their unlawful acts, the Citys arguments fail to acknowledge that the ordinance will affect more than just criminals. It will also affect every City resident who has not, through some demonstration of personal disability or irresponsibility, lost his or her right to possess a handgun. Although a precise assessment of the impact of this ordinance is difficult to gauge because the ordinance has never been enforced, at a minimum, Section 3 of Prop H would invalidate all licenses possessed by City residents to carry a concealed weapon issued under Penal Code section 12050, and it would prohibit the possession of handguns by City residents even if those residents are expressly authorized by state law to possess handguns for self-defense or other lawful purposes.

If the preemption doctrine means anything, it means that a local entity may not pass an ordinance, the effect of which is to completely frustrate a broad, evolutional statutory regime enacted by the Legislature. Section 3 of Prop H stands as an obstruction to the accomplishment and execution of the full purposes and objectives of the legislative scheme regulating handgun possession in this state. For that further reason, it is preempted. (Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898 [local legislation is preempted if it is inimical to accomplishment of the state laws policies].)

E. Section 2 of Prop H entitled Ban on Sale, Manufacture,
Transfer or Distribution of Firearms in the
City and County of San Francisco is Preempted by State Law

Section 2 of the ordinance provides in full: Within the limits of the City and County of San Francisco, the sale, distribution, transfer and manufacture of all firearms and ammunition shall be prohibited. Unlike Section 3, there are no exceptions contained in Section 2. Presumably, if Section 2 were enforced, there would be no sales of firearms or ammunition in the City. Storefront firearms dealers in the City would immediately go out of business. Other businesses that deal in the sale of firearms, such as auction houses that offer collectible firearms for sale, would also be adversely affected. The impact of the transfer and distribution bans are more difficult to gauge. A literal interpretation of the transfer/distribution ban could lead to absurd results, such as prohibiting law enforcement agencies from distributing firearms and ammunition to their officers.

We first note that the key provision of Section 2, banning the sale of all firearms within City limits, runs into many of the same preemption obstacles as does Section 3. First, it is at odds with Penal Code section 12026s guarantee that City residents be able to purchase, own, possess, keep, or carry firearms at their homes, and businesses. (Italics added.) As the trial court recognized, [a] local ordinance that substantially burdens the purchasing and possession of handguns by banning their sale is just as contrary to section 12026 as was the possession ban struck down by Doe.

Secondly, we agree with the trial court that Section 2 contravenes Government Code section 53071, which expressly preempts any local enactments relating to the licensing or registration of commercially manufactured firearms. As noted by the trial court, San Francisco currently has gunshops, pawnshops, and auction houses that hold valid state licenses specific to their firearm transactions. . . . Section 2 effectively cancels all of these licenses. (See Pen. Code,  12070, subd. (a); 12071; 12072; 12078.) Clearly, therefore, in adopting Section 2, San Francisco has entered the preempted field of firearms registration and licensing in express derogation of Government Code section 53071.

Lastly, we agree with the trial court that Section 2s City-wide ban on the sale of firearms is impliedly preempted due to its duplication of, and contradiction with, the UHA (Pen. Code,  12125-12233). The UHA was enacted in 1999 in response to the proliferation of local ordinances banning low cost, cheaply made handguns known as Saturday Night Specials, which called to the Legislatures attention the need to address the issue of handguns sales in a more comprehensive manner. (See Stricker, Gun Control 2000: Reducing the Firepower (2000) 31 McGeorge L.Rev. 293, 313 (Gun Control 2000).)

The UHA uniformly bans the sale of Saturday Night Specials in California, but it also includes provisions applicable to all handguns sold in the state, including those of higher quality. (Pen. Code,  12125, subd (a).) For example, the UHA requires that all models of handguns meet certain quality assurance tests and other standards before being approved for sale in this state, including specified standards relating to the safe firing of the handgun and the ability to drop the handgun without it firing accidentally. (Pen. Code  12126, 12127, subd. (a).) The UHA charges the California Department of Justice with testing and compiling a list of handguns that may be sold in this state pursuant to this title. (Pen. Code,  12131, subd. (a).) There are criminal penalties for violating the UHA (for instance, selling a Saturday Night Special) with potential imprisonment for up to one year in a county jail. (Pen. Code  12125, subd. (a).)

The trial court held that Section 2s wholesale ban on the sale of firearms within City limits, including all handguns, was impliedly preempted by the UHA. In reaching its conclusion, the trial court pointed out that, with respect to unsafe UHA-prohibited handguns, Section 2 duplicates state law by doubly banning them. For UHA-approved handguns, Section 2 conflicts with state law because it has the effect of banning the sale of every single handgun which the UHA indicates may be sold in California. (Pen. Code,  12131, subd. (a).)^[1]

In challenging this conclusion, the City first claims the UHA has no applicability to resolving the preemption question posed in this case because this legislation was simply a consumer measure unrelated to the regulation of firearms as a response to crime. (See Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 868-869, disapproved on other grounds in City of West Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1191-1192 [where local legislation serves local purposes, and state legislation that appears to be in conflict actually serves different, statewide purposes, preemption will not be found].) While the UHA was primarily enacted to protect legitimate owners and innocent bystanders from a product that may inadvertently injure them, the UHA also has the effect of eliminating a type of firearm from criminals arsenals. (Gun Control 2000, supra, 31 McGeorge L.Rev. at p. 316, fns. omitted.)

Petitioners offer legislative history of the UHA, of which we take judicial notice, showing that one of the goals of the UHA included curbing handgun crime, as well as promoting gun safety.^[2] We have also taken judicial notice of Assembly Bill No. 1471, entitled the Crime Gun Identification Act of 2007, which was signed into law by Governor Arnold Schwarzenegger on October 12, 2007, and became effective January 1, 2008. (See Stats. 2007, ch. 572,  2; Pen. Code,  12126.) Assembly Bill No. 1471 amends the UHA by requiring that all semi-automatic handguns sold in California after January 1, 2010, be equipped with an array of characters identifying the make, model, and serial number of the handgun. These characters must be embossed onto the pistols firing pin and interior surfaces, which will then be imprinted on each cartridge case when the handgun is fired. This new technology, identified as micro-stamping, will provide important investigative leads in solving gun-related crimes by allowing law enforcement personnel to quickly identify information about the handgun from spent cartridge casings found at the crime scene. There can be no doubt that this newly enacted amendment to the UHA deals with crime prevention and criminal apprehension. We therefore reject the Citys argument that the UHA can have no preemptive effect because it is a consumer protection statute that operates in a different regulatory field than does Section 2.

The legislative history of the UHA also reveals that the issue of preemption was specifically raised with respect to the existing local bans on the sale of Saturday Night Specials as well as any future attempts by local governments to ban handgun sales more broadly. A report by the Senate Committee on Public Safety concluded that [t]his bill would appear to preempt any such local ordinance, both those already in existence and any proposed locally in the future. (Sen. Com. on Public Safety, FirearmsRestrictions on Unsafe Handguns, Rep. on Sen. Bill No. 15 (1999-2000 Reg. Sess.) as amended April 5, 1999, p. 9.) In apparent response to this concern, a subsequent amended version of the April 5, 1999 version of the proposed bill addressed the question of preemption directly by including language expressly preserving the power of local governments to place more stringent requirement upon the manufacture, importation, transfer, sale, or possession of handguns. (Assem. Amend. to Sen. Bill No. 15 (1999-2000 Reg. Sess.) June 2, 1999.) Had the UHA been enacted with this quoted language, the Citys position, at least with regard to Section 2 of Prop H, would have more persuasive bite. However, when the Legislature ultimately enacted the UHA, this language was deleted. (Assem. Amend. to Sen. Bill No. 15 (1999-2000 Reg. Sess.) June 16, 1999.)

Our Supreme Court has cautioned courts not to read too much into deletions from bills when ascertaining legislative intent. (See American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1261-1262.) However, following passage of the UHA, cities, including San Francisco, repealed their own Saturday Night Special ordinances. We agree with the trial courts conclusion that these repeals were in recognition of the UHAs preemptive effect on the topic; and indeed, the City has offered no other explanation for its action.

The City next challenges the trial courts finding that the UHA impliedly preempts Section 2 by arguing there can be no conflict with state law because the UHA simply provides that handguns not found to be unsafe may be sold in the state. (Pen. Code,  12131, subd. (a), italics added.) The City contends that the italicized language means only that the UHA allows the sale of those handguns; it does not mandate that local governments permit such sales. Consequently, the mere fact that the Legislature has sanctioned certain handguns for sale does not prohibit a municipality from imposing additional requirements.

We acknowledge courts have found, in the absence of express preemptive language, that a city or county may make additional regulations, different from those established by the state, if not inconsistent with the purpose of the general law. (See, e.g., Suter, supra, 57 Cal.App.4th at p. 1116 [finding an ordinance enacted by the City of Lafayette requiring persons seeking to sell, transfer or lease weapons to obtain local land use and police permits was not preempted by state law]); Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 704-709; Northern Cal. Psychiatric Society, supra, 178 Cal.App.3d at p. 106.) We further acknowledge that, in spite of the UHAs enactment, room has been left by the Legislature for some quantum of local handgun sales regulation. (See, e.g., Great Western, supra, 27 Cal.4th at p. 868 [upholding a Los Angeles County ordinance prohibiting the sale of firearms at gun shows on county property against a preemption challenge even though the UHA permits the type of sale barred by the ordinance].)

But, this case is not one where a local entity has legislated in synergy with state law. To the contrary, here the state and local acts are irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. (Water Quality Assn. v. City of Escondido (1997) 53 Cal.App.4th 755, 765, citing Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419-420.) As the trial court recognized, Section 2s ban on the sale of handguns does not merely overlap with the UHA; instead, it swallows the state regulations whole. The City is not simply imposing additional restrictions on state law to accommodate local concerns; but instead, it has enacted a total ban on an activity state law allows. This difference was recognized in Great Western, which noted that total bans are not viewed in the same manner as added regulations, and justify greater scrutiny. (Great Western, supra, 27 Cal.4th at pp. 867-888.) Therefore, we agree that with the passage of the UHA, the Legislature has impliedly preempted local ordinances, such as Section 2, which completely bans the sale of all handguns.

F. Cases Addressing Local Regulation of Firearm Sales

We next consider several cases the City claims have resoundingly upheld local laws that prohibit gun sales, or otherwise restrict access to firearms. The first of these cases, CRPA, supra, 66 Cal.App.4th 1302, was decided shortly before the UHA was enacted, and indeed, concerned one of the local ordinances that was the precursor to its passage. In CRPA, the Second Appellate District held that a local ordinance which banned, within city limits, the sale of any handgun which the city classified as a Saturday Night Special was not preempted by Government Code section 53071 or Penal Code section 12026. (Id. at p. 1302.)

The court declined to extend the reasoning of Doe to handgun sales, instead finding that Doe identifies only residential handgun possession as a preempted field, and that [t]he ordinance at issue here creates no permit or license requirement, and instead regulates only sales. (CRPA, supra, 66 Cal.App.4th at p. 1319.) Additionally, the opinion concluded that the ban of one specific type of handgun does not conflict with Government Code section 53071s express preemption of the field of registration and licensing. (Id. at p. 1322.)

Thus, CRPA concluded that cities had some leeway to ban the sale of one particular type of gun deemed to present dangers to a local community above and beyond the dangers presented by handguns generally. However, that decision does not stand for the principle that municipalities are free to ban the sale of all firearms. The CRPA court was careful to make this distinction, emphasizing that [t]he ordinance involved in the instant case does not ban possession of any handgun, but instead bans the sale of a limited category of handguns within city limits. (CRPA, supra, 66 Cal.App.4th at pp. 1321-1322.) That clearly is inapposite to the facts of this case.

Moreover, at the time CRPA was decided there was  no [statutory] prohibition on, nor any express authorization for, the sale of Saturday night specials or other concealable firearms  that would pose a potential conflict with a local ordinance prohibiting the sale of Saturday Night Specials. (Id. at p. 1322.) Shortly after CRPA was decided, the regulatory landscape relating to handgun sales was significantly altered when the Legislature passed the UHA. Thus, the court that decided CRPA had no opportunity to determine to what extent the UHA preempts local authority in the area of handgun sales, rendering CRPAs analysis of dubious precedential value.

Finally, we consider a brace of recent cases decided by our Supreme Court which the City argues supports its authority to ban the sale of firearms and ammunition. Answering questions certified from the United States Court of Appeals for the Ninth Circuit, the California Supreme Court held in two companion cases that a county ordinance that prohibited the sale of firearms and ammunition at gun shows held on county property was not preempted by state law. (Great Western, supra, 27 Cal.4th 853; Nordyke v. King (2002) 27 Cal.4th 875 (Nordyke).) Unlike the broader preemption question here, the question addressed by the Supreme Court was whether the Legislature intended to occupy the entire field of gun show regulation, including controlling the venues for such shows. The court answered this question in the negative, perceiving nothing in state law that expressly or impliedly prohibited a county from withdrawing its property from use for gun shows, based on its own calculation of the costs and benefits of permitting such use. The court emphasized that California law regulating activities at gun shows did not mandate that counties use their property for such shows. (Great Western, supra, 27 Cal.4th at p. 870; Nordyke, supra, 27 Cal.4th at p. 884.)

The Supreme Court also held that, contrary to the claims of the gun show promoters, the local ordinances did not contradict state firearms law by promoting something prohibited by the state or by prohibiting something promoted by the state. [T]here is no evidence in the gun show statutes [Penal Code sections 12071, 12071.1 and 12071.4,] or, as far as we can determine, in their legislative history, that indicates a stated purpose of promoting or encouraging gun shows. (Great Western, supra, 27 Cal.4th at p. 868.) The court went on to hold that [T]he overarching purpose of [the Penal Code sections] appears to be nothing more than to acknowledge that such shows take place and to regulate them to promote public safety. (Ibid.) The court also pointed out that the statutes governing gun shows contemplate that firearm dealers at gun shows will be subject to applicable local regulations. (See Pen. Code,  12071.4 [subjecting gun shows to local regulation].) (Great Western, supra, 27 Cal.4th at p. 865.) Accordingly, the county had the authority to prohibit the operation of gun shows held on its property and, at least to that extent, could impose more stringent restrictions on the sale of firearms than state law prescribes. (Id. at p. 870.)

These cases are palpably distinguishable from the case before us. In deciding Great Western and Nordyke, our Supreme Court was careful to confine its preemption analysis to the question of whether state law authorizing gun shows necessarily compelled counties to allow their property to be used for this purpose. (Great Western, supra, 27 Cal.4th at p. 858; Nordyke, supra, 27 Cal.4th at p. 884.) The court found that there was acceptable interplay between the local governments exercise of its power to control the use of its property and the state governments regulation of gun shows to permit local governments to ban the sale of firearms and ammunition at gun shows on county-owned public property. (Great Western, supra, 27 Cal.4th at p. 869; Nordyke, supra, 27 Cal.4th at p. 885.) Neither case can be properly read to extend that limited preemption inquiry to a case such as this one involving a local governments attempt to enact an absolute and total ban of firearm and ammunition sales on all property, public and private, within its geographic jurisdiction.

In conclusion, we find the situations presented in CRPA, supra, 66 Cal.App.4th 1302, Great Western, supra, 27 Cal.4th 853, and Nordyke, supra, 27 Cal.4th 875, are so different from those presented in this case as to make them inapposite here.

G. Statewide Concern or Municipal Affair?

Despite having found preemption, the City can nevertheless escape petitioners challenge if Prop H relates to a purely municipal affair, because its city charter includes a home rule provision. (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61.) But [a]s to matters which are of statewide concern, however, home rule charter cities remain subject to and controlled by applicable general state laws regardless of the provisions of their charters, if it is the intent and purpose of such general laws to occupy the field to the exclusion of municipal regulation (the preemption doctrine). [Citations.] (Id. at pp. 61-62.)

Our Supreme Court also addressed this issue in its recent OConnell case. There, the City of Stockton argued that even ifits ordinance authorizing forfeiture of vehicles used in the commission of certain criminal acts was preempted by state law, it was lawful because the subject matter of the ordinance constituted a municipal affair, and did not involve a matter of statewide concern. (OConnell, supra, 41 Cal.4th at pp. 1075-1076.) The Supreme Court summarily rejected that argument in OConnell, noting that the illegal activities at issue, prostitution and trafficking in controlled substances, had been comprehensively addressed through various provisions of this states Penal and Vehicle Codes, leaving no room for further regulation at the local level, and therefore were matters of statewide concern. (Id. at p. 1076.)

We likewise have reason to reject summarily the Citys argument that Prop H addresses only a municipal affair. When looked at as a whole, the Penal Code presents a comprehensive montage of firearms possession, sale, licensing, and registration laws complete with detailed exceptions and exemptions. These laws of statewide application reflect the Legislatures balancing of interestson the one side the interest of the general public to be protected from the criminal misuse of firearms, on the other, the interests of law-abiding citizens to be able to purchase and use firearms to deter crime, to help police fight crime, to defend themselves, and for hunting and certain recreational purposes. If every city and county were able to opt out of the statutory regime simply by passing a local ordinance, the statewide goal of uniform regulation of handgun possession, licensing, and sales would surely be frustrated. Clearly, the creation of a uniform regulatory scheme is a matter of statewide concern, which should not be disrupted by permitting this type of contradictory local action. (See Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364.)

H. Conclusion

We, therefore, affirm the trial courts conclusion that Prop H is invalid as preempted by state law. As the City repeatedly emphasizes, the statutes governing firearms have been carefully worded to avoid any broad preemptive effect. (CRPA, supra, 66 Cal.App.4th at p. 1314.) Nevertheless, the sheer breadth of Prop H makes it vulnerable to a preemption challenge. As already noted, Section 2 of Prop H bans the sale, manufacture, transfer or distribution of ammunition and firearms in the City, without exception. (Italics added.) With narrow exceptions, Section 3 bans the possession of handguns by San Francisco residents, including possession within the sanctity of homes, businesses, and private property. (Italics added.)^[3]

We wish to stress that the goal of any local authority wishing to legislate in the area of gun control should be to accommodate the local interest with the least possible interference with state law. As we have seen, while courts have tolerated subtle local encroachment into the field of firearms regulation (CRPA, Great Western, Nordyke), laws which significantly intrude upon the state prerogative have been uniformly struck down as preempted (Doe, Sippel). Therefore, when it comes to regulating firearms, local governments are well advised to tread lightly. (See California Dreamin, supra, 30 U.S.F. L.Rev. 395.)

IV.

Disposition

The judgment is affirmed. Petitioners are entitled to their costs on appeal.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Sepulveda, J.

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Paul H. Alvarado

Hon. James L. Warren

Counsel for Appellants: Dennis J. Herrera

San Francisco City Attorney

Wayne Snodgrass

Vince Chhabria

Deputy City Attorneys

Counsel for Respondents: Trutanich