California Rifle and Pistol Assn., Inc. v. City of West Hollywood

• Decision Date: 29 September 1998
• Docket Number: No. B108910,B108910
• Citation: 66 Cal.App.4th 1302,78 Cal.Rptr.2d 591
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Daily Journal D.A.R. 10,389, 98 Daily Journal D.A.R. 7503 CALIFORNIA RIFLE AND PISTOL ASSOCIATION, INC. et al., Plaintiffs and Appellants, v. CITY OF WEST HOLLYWOOD et al., Defendants and Respondents.

Page 591

78 Cal.Rptr.2d 591

66 Cal.App.4th 1302, 98 Daily Journal D.A.R. 10,389,

98 Daily Journal D.A.R. 7503

CALIFORNIA RIFLE AND PISTOL ASSOCIATION, INC. et al., Plaintiffs and Appellants, v. CITY OF WEST HOLLYWOOD et al., Defendants and Respondents.

No. B108910.

Court of Appeal, Second District, Division 2, California.

Sept. 29, 1998.

Review Denied Dec. 22, 1998.

Michel & Associates, C.D. Michel, San Pedro, Benenson & Kates, Don B. Kates, Novato, for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, M. David Stirling, Chief Deputy Attorney General, Paul V. Bishop, Deputy Attorney General, Steven Silver, Don Kilmer, San Jose, and Daniel Shultz as Amici Curiae on behalf of Plaintiffs and Appellants.

DeWitt W. Clinton, County Counsel (Los Angeles), S. Robert Ambrose, Assistant County Counsel, H. Anthony Nicklin, Principal Deputy County Counsel, Michael Jenkins, City Attorney (City of West Hollywood), Richards Watson & Gershon, Sayre Weaver and T. Peter Pierce, for Defendants and Respondents.

Louise H. Renne, City Attorney (San Francisco), G. Scott Emblidge and Ellen M. Forman, Deputy City Attorneys, Paul M. Krekorian, Dennis A. Henigan, Brian J. Siebel, Washington, DC, O'Melveny & Myers, Robert C. Vanderet, John F. Niblock and Scott M. Voelz, Los Angeles, as Amici Curiae on behalf of Defendants and Respondents.

ZEBROWSKI, Associate Justice.

The City of West Hollywood (the "City") passed an ordinance which banned, within city limits, the retail or wholesale sale of any handgun which the City classifies as a "Saturday Night Special" (SNS). Plaintiffs sued to invalidate the ordinance, primarily contending that the ordinance was preempted by state law. The City moved for summary judgment. The trial court found the ordinance not preempted and otherwise valid, and granted the City's motion. This appeal followed.

Arrayed on either side of the issue are opposing armies of parties and amici. The plaintiffs are the California Rifle and Pistol Association, the National Rifle Association, a UCLA law professor and a UCLA English professor who have paid taxes "levied for the benefit of the ... City," plus the owner of a West Hollywood jewelry store and the owner of a West Hollywood pawn shop who wish to purchase SNS handguns within the City. The amici supporting plaintiffs are the Congress of Racial Equality, the Women's Safety Alliance, the Law Enforcement Alliance of America, the Lawyers' Second Amendment Society, Doctors for Integrity in Policy Research, Doctors for Responsible Gun Ownership, Gun Owners of America, the Second Amendment Foundation and the Attorney General of California. Named as defendants are the City of West Hollywood, the Los Angeles County Sheriff, and the Los Angeles County Sheriff's Department. The amici supporting defendants are the League of Women Voters of California, The Southern Christian Leadership Conference of Greater Los Angeles, the Bay Area Urban League, the California Police Chiefs' Association, the California Peace Officers Association, the Community Wellness Partnership, Drive By Agony, Santa Cruz Barrios Unidos, the Los Angeles Commission on Assaults Against Women, Women Against Gun Violence, the Center to Prevent Handgun Violence, the Legal Community Against Violence, the Trauma Foundation, the City and County of San Francisco, the cities of Alameda, Albany, Berkeley, Carlsbad, El Cerrito, Emeryville, Livermore, Los Angeles, Montebello, Oakland, Pomona, Redlands, San Carlos, San Jose, San Luis Obispo, San Pablo and Santa Cruz, and the California Congress of Parents, Teachers and Students.

This collection of voices has generated extensive argumentation, much of it in the nature of policy debate on the merits and demerits of gun control. However, this court has limited authority over the merits or demerits of public policy regarding gun control, and this opinion will be confined to legal issues. Much of the rhetoric presented, whatever its merit in the realm of policy debate, has little relevance to the legal issues presented on this appeal.

The primary legal issue is whether the Legislature has completely preempted the field of regulation of handgun sales. In the absence of state preemption, every municipality is authorized by the California Constitution to exercise its police power to deal with local situations. Since the police power of a municipality is coterminous with (although subordinate to) the police power of the state, the police power of a municipality includes the power to regulate handgun sales. The question, therefore, is whether the state Legislature has taken away the City's constitutional power to regulate handgun sales.

Although gun control is a keenly contested area of public policy debate, and even though well-considered policy arguments have been presented on both sides, this appeal presents no truly controversial legal issue in the arcane realm of preemption law. Although it is clear that the Legislature could preempt all local ordinances regarding handgun sales, it is equally clear that the Legislature has not done so. Instead, the Legislature has studiously avoided comprehensive preemption of such local laws despite several legislative opportunities to enact a complete preemption. Since the Legislature has avoided preemption of all local regulation of handgun sales, the City continues to enjoy at least some of its constitutional right to regulate handgun sales. The ordinance in question here does not directly conflict with any state statute, and the question of whether to have such an ordinance is a decision within the authority of local elected legislators. We will therefore affirm the summary judgment in favor of the City on the preemption issue.

Plaintiffs raise other arguments concerning equal protection and due process, ¹ but neither of these arguments reveals any basis for invalidating the City's use of its police power in the manner involved here. In the absence of sound legal reason to do so, a court would be acting illegitimately if it interfered with the political judgment of local elected officials simply because some might disagree with that political judgment. We will therefore affirm the summary judgment in favor of the City on these constitutional issues.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The ordinance and its implementation.

West Hollywood Municipal Code section 4122, entitled "Saturday Night Specials--Sale Prohibited," defines several categories of "Saturday Night Special." In general, these categories take into account weapon type (revolver, semi-automatic, etc.), parts composition, action, chambering relative to ammunition breech pressures, and action mechanisms. The ordinance specifically excludes certain categories of weapons (antiques, pneumatic guns, children's toys, permanently inoperable weapons--all with more detailed definitions). The ordinance provides that the City Manager will compile, publish and maintain a Roster of the SNS's determined to satisfy the definition. The City Manager must publish the Roster semi-annually and send a copy to every dealer within the City licensed to sell and transfer firearms. The "Final Roster" lists at least 28 banned semi-automatic pistols, and numerous brands and models of double- and single-action revolvers and derringers.

In the provision that is key here, the ordinance states: "[N]o wholesale or retail gun dealer shall sell, offer or display for sale, give, lend or transfer ownership of, any firearm listed on the Roster of Saturday Night Specials. This section shall not preclude a wholesale or retail gun dealer from processing firearm transactions between unlicensed parties pursuant to Section 12072(d) of the Penal Code of the State of California." ² Violation of the ordinance is a misdemeanor, punishable by fine of up to $1000, imprisonment in the county jail for up to six months, or both.

B. Plaintiffs' action and the City's motion for summary judgment.

Plaintiffs challenged the ordinance on the basis of preemption, equal protection, and due process. The City filed a motion for summary judgment, asserting that the ordinance was neither preempted nor otherwise constitutionally invalid. With its motion, the City lodged a 900-page "Legislative History." The parties then stipulated that there were no disputed facts relating to preemption, and agreed that the preemption issue could be resolved as a matter of law. Plaintiffs did file a "counterstatement" of facts, but only as to their equal protection and due process claims. The trial court granted the City's motion for summary judgment, finding no preemption and no violation of equal protection or due process.

II. DISCUSSION

A. The question as to preemption is whether the state Legislature has removed the constitutional police power of the City to regulate handgun sales.

The arguments contained in the briefs and the exhibits sometimes discuss the issue as if the question were whether the Legislature had bestowed upon the City a power to regulate firearms, a power which the City would not otherwise have. Such arguments misconstrue the constitutional allocation of power in California.

Under Article XI, section 7 of the California Constitution, a "city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." It is this constitutional power, enjoyed by every municipality, that is commonly termed the "police power." As the California Supreme Court noted in Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885, 218 Cal.Rptr. 303, 705 P.2d 876, "[u]nder the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, § 7.) Apart from this limitation, the 'police power [of a county or city] under this provision...