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

I.

Introduction

In 2005, the voters of the City and County of San Francisco (City), a home rule charter city, passed Proposition H, a local ordinance prohibiting: (1) virtually all City residents from possessing handguns; and (2) all City residents, without exception, from selling, distributing, transferring and manufacturing firearms and ammunition. A legal challenge to the ordinance resulted in the trial court holding that key aspects of the ordinance were preempted by state law. Based on its further determination that the invalid portions of the ordinance were not severable from the arguably valid portions, the court found that the ordinance was preempted in its entirety. Lastly, the trial court held that the Citys home rule power under the California Constitution, article XI, section 5, subdivision (a) (municipal home rule for charter cities) did not override state preemption because the field being regulated was one of statewide, rather than local, concern. We agree with the trial courts conclusions, and affirm the judgment in all respects.

II.

Facts and Procedural History

This appeal concerns Proposition H (Prop H or ordinance), a municipal ordinance enacted by the Citys voters in November 2005. The Findings section of Prop H states that [h]andgun violence is a serious problem in San Francisco, accounting for 67 percent of injuries or deaths caused by firearms in the City in 1999. These findings also state that Prop H is not intended to affect residents from other jurisdictions with regard to handgun possession. Therefore, the provisions of Section 3 [banning handgun possession in the City] apply exclusively to residents of the City and County of San Francisco. Section 1 also invokes the Citys home rule power and describes that power as allowing counties to enact laws that exclusively apply to residents within their borders, even when such a law conflicts with state law or when state law is silent.

Prop H contains two substantive provisions, Section 2 and Section 3. Section 2 is entitled Ban on Sale, Manufacture, Transfer or Distribution of Firearms in the City and County of San Francisco. It states, in its entirety, that [w]ithin the limits of the City and County of San Francisco, the sale, distribution, transfer and manufacture of all firearms and ammunition shall be prohibited. There are no exceptions to this section.

Section 3 is entitled Limiting Handgun Possession in the City and County of San Francisco. It states that within City boundaries, no resident of the City and County of San Francisco shall possess any handgun unless required for professional purposes, as enumerated herein. Section 3 contains narrow exemptions to the Citys ban on possession of handguns for government employees carrying out the functions of government employment, active members of the United States armed forces or the National Guard, and security guards while actually employed and engaged in protecting and preserving property or life within the scope of his or her employment . . . . Section 3 indicates that any City resident may surrender his or her handgun without penalty at any district station of the San Francisco Police Department or to the San Francisco Sheriffs Department within 90 days after Section 3 becomes effective. The Citys board of supervisors is charged with enacting penalties for violation of the ordinance.

Section 6 is entitled State Law. It provides that [n]othing in this ordinance is designed to duplicate or conflict with California state law or to create or require any local license or registration for any firearm, or create an additional class of citizens who must seek licensing or registration. Additionally, the ordinance does not apply to any person currently denied the privilege of possessing a handgun under state law . . . .

Finally, Section 7 of the ordinance contains a severability clause that provides [i]f any provision of this ordinance or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications or [sic] this ordinance, which can be given effect without the invalid or unconstitutional provision or application. To this end, the provisions of this ordinance shall be deemed severable.

After Prop H passed, Paula Fiscal, several retired law enforcement and military personnel, two law enforcement associations, and several firearms rights groups (collectively, petitioners) sought a writ of mandate declaring Prop H invalid. Among other arguments, petitioners challenged the ordinance on the grounds that it was preempted by state law.

The trial court granted petitioners request for writ of mandate, finding Prop H unenforceable, primarily because it was preempted by three separate state laws regulating firearms. Specifically, the court determined that the key provisions of Prop H, prohibiting the sale of firearms and possession of handguns by City residents, were preempted by Penal Code section 12026, subdivision (b) [prohibiting localities from restricting handgun possession in an individuals home, business, or private property], Government Code section 53071 [indicating an express intent by the Legislature to occupy the whole field of firearms licensing and registration] and the Unsafe Handgun Act, Penal Code sections 12125-12233 [establishing a protocol for designating which handguns may be sold in California] (UHA). Finally, the trial court found that any residual portions of Prop H arguably valid were not severable because the court could not disentangle the various bans without exceeding its powers by deleting and adding words, i.e., rewriting the ordinance. The court further concluded that the subject of Prop H dealing with the possession and use of handguns is one of statewide concern and therefore controlled by the applicable state law. This appeal followed.

III.

Discussion

A. Introduction

Before addressing the issues raised in this case, we briefly note what is not at issue in this appeal. This case is not about the public policy choices that the voters in San Francisco have made by enacting Prop H. Thus, we need not, and do not, pass judgment on the merits of Prop H, or engage ourselves in the sociological and cultural debate about whether gun control is an effective means to combat crime. (Compare Ayres & Donohue, Shooting Down the More Guns, Less Crime Hypothesis (2003) 55 Stanford L.Rev. 1193; Comment, Confirming More Guns, Less Crime (2003) 55 Stanford L.Rev. 1313.) Similarly, the question of whether California citizens do or do not enjoy a constitutional right to own or possess firearms, or if it exists, whether that right can be limited by local gun control legislation has not been raised or argued by the parties to this case. (See generally Kasler v. Lockyer (2000) 23 Cal.4th 472, 481 [no mention made in California Constitution of right to bear arms].) Our task is simply to determine whether Prop H is preempted by state law.

B. California Preemption Analysis and Standard of Review

In OConnell v. City of Stockton (2007) 41 Cal.4th 1061 (OConnell), our Supreme Court recently restated the guiding principles for determining whether a local ordinance is displaced by a state measure. The court explained,  Under article XI, section 7 of the California Constitution, [a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general [state] laws. [] If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void. [Citations.] [] A conflict exists if the local legislation  duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.   [Citations.] (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 . . . , italics added, fn. omitted (Sherwin-Williams); see also American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251 . . . (American Financial).) (OConnell, supra, 41 Cal.4th at p. 1067.)

The OConnell court explained the italicized terms as follows: A local ordinance duplicates state law when it is coextensive with state law. (Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898, citing In re Portnoy (1942) 21 Cal.2d 237, 240 . . . [as finding duplication where local legislation purported to impose the same criminal prohibition that general law imposed].)

A local ordinance contradicts state law when it is inimical to or cannot be reconciled with state law. (Sherwin-Williams, supra, 4 Cal.4th at p. 898, citing Ex Parte Daniels (1920) 183 Cal. 636, 641-648 . . . [as finding  contradiction  in a local ordinance that set the maximum speed limit for vehicles below that set by state law].)

A local ordinance enters a field fully occupied by state law in either of two situationswhen the Legislature expressly manifest[s] its intent to occupy the legal area or when the Legislature impliedly occupies the field. (Sherwin-Williams, supra, 4 Cal.4th at p. 898; see also 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law,  986, p. 551 [[W]here the Legislature has manifested an intention, expressly or by implication, wholly to occupy the field . . . municipal power [to regulate in that area] is lost.].) (OConnell, supra, 41 Cal.4th at pp. 1067-1068.)

The OConnell court went on to say:When the Legislature has not expressly stated its intent to occupy an area of law, we look to whether it has impliedly done so. This occurs in three situations: when  (1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramountstate concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the locality. (Sherwin-Williams, supra, 4 Cal.4th at p. 898.)  (OConnell, supra, 41 Cal.4th at p. 1068.))

Because the City in this case is a charter city, the home rule doctrine also comes into play. Article XI, section 5, subdivision (a) of the California Constitution reserves to charter cities the right to adopt and enforce ordinances that conflict with general state laws, provided the subject of the regulation is a municipal affair rather than one of statewide concern. (Johnson v. Bradley (1992) 4 Cal.4th 389, 398-399.)  Because the various sections of article XI fail to define municipal affairs, it becomes necessary for the courts to decide, under the facts of each case, whether the subject matter under discussion is of municipal or statewide concern. This question must be determined from the legislative purpose in each individual instance.. . . (City of Santa Clara v. Von Raesfeld (1970) 3 Cal.3d 239, 246, quoting Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 294.)

A trial courts decision invalidating a local ordinance on grounds of preemption is reviewed de novo. (See City of Watsonville v. State Dept. of Health Services (2005) 133 Cal.App.4th 875, 882; Pieri v. City and County of San Francisco (2006) 137 Cal.App.4th 886, 889.) Similarly, where a charter city ordinance is challenged on preemption grounds and is defended as a permissible exercise of the citys home rule power, the challenge also presents a question of law which must be decided on a case-by-case basis. (Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 100 (Northern Cal. Psychiatric Society).)

C. Overview of Parties Arguments

The preemption doctrine outlined above frames the parties arguments. Petitioners contend the ordinance contains multiple provisions that trespass into fields of regulation that the state has either expressly or impliedly fully occupied. According to petitioners, state law has so thoroughly and pervasively covered the subjects covered by Prop H, and the subjects are so in need of uniform state treatment, that the Citys most recent effort to restrict its citizens ability to purchase, own, and possess firearms, at home and at their businesses, is clearly preempted.

In rebuttal, the City points out that the Legislature has never made clear its intention to preempt local regulation of firearms, and therefore this court should not infer preemption. The City stresses San Francisco is besieged by violent crime, which often involves firearms, and the state Legislature has failed to enact laws that would effectively address the gun violence that has particularly ravaged the Citys less affluent neighborhoods and minority communities. In light of the Legislatures inaction, the City claims it is essential that it be able to enact its own local ordinance restricting access to firearms in order to provide for the safety and welfare of its citizens.

The City is correct to the extent it argues that the Legislature has never expressed an intent to preempt the entire field of firearm regulation to the exclusion of local control. The Legislature, instead, has chosen to preempt discrete areas of gun regulation. (Great Western Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853, 861 (Great Western).) That state law tends to concentrate on specific areas, leaving unregulated other substantial areas relating to the control of firearms, indicates an intent to permit local governments to tailor firearms legislation to the particular needs of their communities. [Citation.] (Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1119 (Suter).)

We therefore turn to the state statutory scheme to determine whether any of the provisions of Prop H duplicate or contradict state law, or whether its subject matter invades a field that the state has fully occupied, either expressly or implicitly. (OConnell, supra, 41 Cal.4th at pp. 1067-1068.) In undertaking a preemption analysis, we examine the myriad of subjects covered by the ordinance section-by-section, starting with Section 3s handgun ban. Despite the fact that no other court has been called upon to consider a local firearms ban of this scope^[1], this court, when considering the power of the City to legislate in this area, is by no means writing on a blank slate.

D. Section 3 of Prop H entitled Limiting Handgun Possession in the City and County of San Francisco is Preempted by State Law

With narrow exceptions, Section 3 of Prop H bans the possession of handguns by San Francisco residents, including handgun possession within the sanctity of homes, businesses, and private property.^[2] The trial court identified two state statutes, each of which specifically preempts a narrowly limited field of firearms regulation, which the trial court found preempted Section 3. (California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66 Cal.App.4th 1302, 1318 (CRPA).) These two code sections are Penal Code section 12026, subdivision (b) [prohibiting localities from restricting handgun possession in an individuals home, business, or private property] and Government Code section 53071 [indicating an express intent by the Legislature to occupy the whole field of firearms licensing and registration]. The trial courts conclusion is supported by the legislative history and subsequent judicial interpretation of these provisions.

In its current form, Penal Code section 12026, subdivision (b), reads that if a California resident suffers no legal impediment to handgun ownership, [n]o permit or license shall be required to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizens or legal residents place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.^[3] Penal Code section 12026 was enacted in 1923 as part of the Uniform Firearms Act. By barring the imposition of any permit or licensing requirement, Penal Code section 12026 served to preclude local public entities from adopting impediments on legally qualified citizens wishing to purchase, own, possess, keep, or carry a concealable firearm in their homes or businesses.

In Galvan v. Superior Court (1969) 70 Cal.2d 851, 855 (Galvan) our Supreme Court held that Penal Code section 12026 did not prohibit San Francisco from passing an ordinance requiring the registration of most firearms within city limits. (Id. at pp. 855, 859.) The Supreme Court held that the San Francisco ordinance did not contradict section 12026 because registration has an entirely different meaning than licensing, and registration and licensing, by their very nature, seek to achieve different goals. (Id. at pp. 856-858.) Significantly, in discussing Penal Code section 12026, Galvan interpreted the no permit or license . . . shall be required language broadly, as indicating a legislative intent that the right to possess a weapon at certain places could not be circumscribed by imposing any requirements . . . . (Id. at p. 858.)

In response to Galvan, the Legislature enacted former Government Code section 9619 (Stats. 1969, ch. 1428,  1. pp. 2932-2933), later re-codified at Government Code section 53071 (Stats. 1971, ch. 438,  95, pp. 119-121) (Government Code section 53071). This section expressly preempts all local laws which attempt to regulate either licensing or registration of firearms, by declaring the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms while expressly prohibiting all local regulations, relating to registration or licensing of commercially manufactured firearms . . . .^[4]

After Government Code section 53071 was enacted, San Francisco passed an ordinance requiring anyone seeking to purchase a concealable firearm within the City first to get a permit from the Citys police chief. This permit requirement was easily struck down by the court in Sippel v. Nelder (1972) 24 Cal.App.3d 173 as running afoul of both Penal Code section 12026 and Government Code section 53071. (Id. at p. 177.) The court concluded that, with the passage of Government Code section 53071, the Legislature resolved any possible doubt as to its intent to fully occupy the field of firearm control, both in terms of registration and licensing. (Ibid.) The court also held that the plaintiff was entitled, under Penal Code[] section 12026, to possess a concealed firearm at his residence without obtaining a license or permit of any kind. (Id. at p. 177.)

Ten years later, in Doe v. City and County of San Francisco (1982) 136 Cal.App.3d 509 (Doe), Division Three of this court was called upon to examine a San Francisco ordinance banning the possession of handguns within City limits. Exempted from the ordinance were persons possessing a state license to carry a concealed firearm under Penal Code section 12050. (Id. at p. 512.)

The Doe court found the ordinance preempted by employing multiple, alternative analyses. Most important to our analysis of Prop H, the court concluded that section 12026 was intended to occupy the field of residential firearm possession. (Doe, supra, 136 Cal.App.3d at p. 518.) It is at least arguable that the state Legislatures adoption of numerous gun regulations has not impliedly preempted all areas of gun regulation. . . . However, we infer from Penal Code section 12026 that the Legislature intended to occupy the field of residential handgun possession to the exclusion of local governmental entities. A restriction on requiring permits and licenses necessarily implies that possession is lawful without a permit or license. It strains reason to suggest that the state Legislature would prohibit licenses and permits but allow a ban on possession. (Id. at p. 518.)

In our view, Doe correctly interpreted Penal Code section 12026 as depriving local entities of any power to regulate handgun possession on private property. The City claims Does finding of a legislative intent to occupy the field of residential handgun possession was based on faulty reasoning. It argues that Doe interpreted Penal Code section 12026 too broadly because when read literally, section 12026 does nothing more than preempt local governments from imposing a requirement that gun owners obtain a permit [or license] to purchase a handgun or to keep a handgun in their home or business . . . . However, they cite to no subsequent case which has overruled, disapproved of, or even sought to limit or clarify, the Doe decision. In fact, Doe has been cited with approval by our Supreme Court. (Great Western, supra, 27 Cal.4th at p. 864.)

Also,  the Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. [Citation.] (Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808, 1814-1815.) Given the presumption of the Legislatures awareness of Doe during the three times it has reenacted Penal Code section 12026 since the Doe decision,^[5]it is reasonable to assume that if the Legislature intended to reopen this area of regulation to local units of government, it would have addressed the issue specifically by repealing or amending Penal Code section 12026. (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 815.) Because it did not do so, we conclude that the Legislature intended to maintain the prohibitions placed on local government that are contained in Penal Code section 12026, as interpreted by the Doe decision. (Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1821 [refusing to consider arguments that a previous cases interpretation of a statute was wrong, given that the statute was reenacted without change to the language interpreted].)^[6]

Therefore, insofar as Section 3 of the ordinance operates to prohibit and punish handgun possession by City residents on private property, e.g., in their homes and businesses, it is impliedly preempted by Penal Code section 12026. We agree with Doe that it can be readily infer[red] from Penal Code section 12026 that the Legislature intended to occupy the field of residential handgun possession to the exclusion of local governmental entities. (Doe, supra, 136 Cal.App.3d at p. 518.)

While we have thus far focused on the relationship between state law and Section 3s ban on handgun possession on ones private property, it is important to note that Section 3 regulates in a much broader field than just private property. Section 3 prohibits both public and private handgun possession and thus effectively displaces numerous state laws allowing private citizens to possess handguns for self-protection and other lawful purposes. As the trial court noted, [t]he statute books contain almost one hundred pages of unannotated state gun laws that set out a myriad of statewide licensing schemes, exceptions, and exemptions dealing with the possession and use of handguns. We provide a brief overview of just a few of the state statutes dealing with public handgun possession.

Penal Code section 12050 provides that, upon a showing of good cause, any law-abiding, responsible adult can obtain a license to carry a concealed handgun. Even without a license, Penal Code sections 12025.5 and 12031, subdivision (j)(2) create special exceptions whereby people who have been threatened and who have obtained restraining orders may carry loaded and concealed handguns. Penal Code sections 12027, subdivision (a) and 12031, subdivision (b)(1) allow civilians to possess concealed and loaded handguns when summoned by police to assist police in making an arrest or to preserve the peace. Penal Code section 12031, subdivision (k) permits possession of a loaded gun when making a citizens arrest. Penal Code section 12031, subdivision (j)(1) allows possession of a loaded firearm when a person has a reasonable belief that he or she is in immediate grave danger and the firearm is necessary to protect person or property.

Certain classes of persons, while engaged in legitimate activities, are exempted from the operation of most of the statutory prohibitions governing handgun possession, including law enforcement agencies and officers (see, e.g., Pen. Code,  12027, subd. (a)(1)(A); 12201, subds. (a), (b); 12287, subds. (a)(4), (5); 12302; 12031, subd. (b), including retired peace officers (Pen. Code,  12027, subd. (a)(1)(A)), and the military (Pen. Code,  12280, subds. (e), (f)(1)).

Additionally, special exemptions and licenses are granted to certain individuals in the private sector, including the private security industry (Pen. Code,  12031, subds. (b)(7), (d)(1)-(6)), entertainment industry professionals (Pen. Code,  12072, subd. (a)(9)(B)(vi), 12026.2, subds. (a)(1), (8); 12305, subd. (a)), members of gun clubs (Pen. Code,  12027, subd. (f),  12026.2, subd. (a)(2)), and private investigators (Pen. Code,  12031, subd. (d)(3)). Any legal firearm may be possessed in public for hunting or shooting at a target range, or going to or from these places, ones home and business, and certain other recognized activities (Pen. Code,  12026.2, subds. (a)(3), (9).)

The broad language of Government Code section 53071, prohibiting all local regulations, relating to registration and licensing of firearms, indicates that the state has an interest in statewide uniformity of handgun licensing. (Italics added.) In finding Government Code section 53071 expressly preempted Prop H, the trial court pointed out that the ordinance had the practical effect of revoking or otherwise invalidating existing state licenses, including those permitting the possession of handguns. The trial court went on to conclude that [a] local regulation that invalidates existing licenses, but does not affirmatively create new licensing schemes, relates to the states regulatory scheme of licensing firearms and, consequently, is expressly preempted by Government Code section 53071. We agree.

Story continues as Part II .

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] In a recent law review article, counsel for petitioners have characterizedProposition H as the most extreme gun ban ever enacted in the United States, except for the confiscation of all firearms enacted by the seceding state of Tennessee during the Civil War. (Kate & Michel, Local Gun Bans in California: A Futile Exercise (2007) 41 U.S.F. L.Rev. 333, 334, fn. omitted (Local Gun Bans).)

^[2] Section 3 prohibits possession of only handguns, so presumably other types of firearms, such as rifles or shotguns, are outside its scope.

^[3] Currently, Penal Code section 12026, subdivision (b) reads in full: No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Sections 12021 or 12021.1 of this code [relating to certain persons convicted of crimes and to narcotics addicts] or Section 8100 or 8103 of the Welfare and Institutions Code [relating to persons with mental disorders], to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizens or legal residents place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident. Hereafter, we will simply refer to this section as Penal Code section 12026.

^[4] Government Code section 53071, reads in full: It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code.

^[5] Stats. 1995, ch. 322,  1, p. 1803; Stats. 1989, ch. 958,  1, p. 3372; Stats. 1988, ch. 577,  2, pp. 2128-2129. The one noteworthy change is that Penal Code section 12026 is now subdivided. See Stats. 1988, ch. 577,  2, pp. 2128-2129; Stats. 1989, ch. 958,  1, p. 3372; Stats. 1995, ch. 322,  1 & subd. (b), p. 1803.

^[6] One can easily infer from how expeditiously the Legislature moved to enact what is now Government Code section 53071 after the Galvan case was decided that our lawmakers have an acute awareness of, and an abiding interest in, firearms regulation.