Doe v. City and County of San Francisco

• Decision Date: 13 October 1982
• Docket Number: A018445,Nos. A018441,s. A018441
• Citation: 186 Cal.Rptr. 380,136 Cal.App.3d 509
• Court: California Court of Appeals Court of Appeals
• Parties: Jane DOE, et al., Petitioners, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Respondents. George SORACCO, et al., Petitioners, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Respondents.

Page 380

186 Cal.Rptr. 380

136 Cal.App.3d 509

Jane DOE, et al., Petitioners, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Respondents.

George SORACCO, et al., Petitioners, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Respondents.

Nos. A018441, A018445.

Court of Appeal, First District, Division 3, California.

Oct. 13, 1982.

Hearing Denied January 27, 1983.

Robert A. Thompson, Annamary E. Gannon, Pettit & Martin, Thomas E. Horn, Jeremiah F. Hallisey, Don B. Kates, Jr., O'Brien & Hallisey, P. C., San Francisco, for petitioners Jane Doe, et al.

Pillsbury, Madison & Sutro, Noble K. Gregory, Vaughn R. Walker, Robert A. Gordon, San Francisco, for petitioners George Soracco, et al.

Natalie E. West, City Atty., of the City of Berkeley John Belcher, Asst. Atty., Berkeley, for amici curiae City of Berkeley and other California cities.

George Agnost, City Atty., Buck E. Delventhal, Thomas J. Owen, Deputy City Attys., William F. McCabe, Jonathan R. Bass, Jacobs, Sills & Coblentz, Dirk M. Schenkkan, Brian E. Gray, Howard, Rice, Nemerovski, Canady, Robertson & Falk, P. C., San Francisco, for respondents.

WHITE, Presiding Justice:

These two petitions challenge the validity of the San Francisco Handgun Ordinance [or "Handgun Ordinance"], adopted June 28, 1982, and effective July 28, 1982. The main contention is that the State of California has passed laws (Gov.Code, § 53071 and Pen.Code, § 12026) which preempt the field. Handgun control is a volatile issue of great public importance, invoking complex policy considerations. While we are sensitive to the political and social overtones of a case such as this, we are here concerned only with the narrow legal question of whether the state Constitution and state statutes permit San Francisco to enact such an ordinance. We conclude that they do not.

The ordinance in question provides that "[i]t shall be unlawful for any person to possess, within the City and County of San Francisco, any handgun" and that one violating the ordinance "shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than thirty (30) days nor more than six (6) months." Though the law became effective July 28, 1982, it is not being enforced yet because it provides a 90-day grace period to permit residents to turn in to the police or otherwise relinquish their handguns. A number of persons are exempt from the ordinance, including peace officers, members of the military while engaged in the performance of their duties, persons using licensed target ranges, certain licensed collectors, certain licensed guards and special peace officers, and persons engaged in business and possessing handguns within fixed places of business.

The ordinance also exempts "[p]ersons who are authorized to carry handguns pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4 of the Penal Code, and persons who are authorized to sell handguns pursuant to Penal Code section 12070." This particular exemption plays an important role in the arguments of the parties and will be discussed in detail below.

Several different principles are involved in the law of preemption. The two pertinent provisions of the California Constitution are article XI, section 7: "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 laws" and article XI, section 5, subdivision (a): "It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws...."

If a matter is considered a "municipal affair," a charter city may regulate the subject even if its regulation conflicts with state law (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61-63, 81 Cal.Rptr. 465, 460 P.2d 137; Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 292-293, 32 Cal.Rptr. 830, 384 P.2d 158; Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 371, 132 Cal.Rptr. 348). However, in an area of statewide concern a local legislative body may act only if the state has not revealed an intention to occupy the field to the exclusion of all local regulation. (See Galvan v. Superior Court (1969) 70 Cal.2d 851, 859, 76 Cal.Rptr. 642, 452 P.2d 930, and authorities cited therein.) In an area of statewide concern where the state has not occupied the field, local legislation can be sustained only when it does not conflict with general law. "Any local law that directly conflicts with state legislation is void." (Galvan v. Superior Court, supra, 70 Cal.2d at p. 856, 76 Cal.Rptr. 642, 452 P.2d 930.)

Municipal Affair

The City and County of San Francisco (hereafter sometimes City and County) concedes that "it cannot be argued that the regulation of firearms is a municipal affair within the meaning of Article XI, Section 5, subdivision (a)," of the state Constitution. We agree. Clearly, the Handgun Ordinance, which prohibits possession by both residents and those passing through San Francisco, legislates in an area of statewide concern. (See Professional Fire Fighters, Inc. v. City of Los Angeles, supra, 60 Cal.2d at pp. 293-294, 32 Cal.Rptr. 830, 384 P.2d 158, and cases cited therein; Long Beach Police Officers Assn. v. City of Long Beach, supra, 61 Cal.App.3d at p. 371, 132 Cal.Rptr. 348.) It affects not just persons living in San Francisco, but transients passing through and residents of nearby cities where San Francisco's handguns might be sold.

Preemption Generally

Both petitioners and respondents agree that the state Legislature has preempted the fields of registration and licensing of handguns and their users. The main area of dispute concerns whether this preemption also applies to individual possession of handguns. The arguments are best understood through examination of the decision in Galvan v. Superior Court, supra, 70 Cal.2d 851, 76 Cal.Rptr. 642, 452 P.2d 930.

In Galvan, the Supreme Court considered a petition for writ of mandate challenging a 1968 San Francisco gun law. The law provided for registration of all firearms within San Francisco, with certain exceptions. Galvan argued, inter alia, that the law was void because it was in direct conflict with Penal Code section 12026 and because of preemption by implication. Penal Code section 12026 is a part of the Dangerous Weapons' Control Act, originally enacted in 1917. (Stats.1917, ch. 145, § 3, p. 221.) The law prohibits the carrying of handguns concealed within a vehicle or upon a person without a license. (Pen.Code, § 12025.) It establishes a procedure for seeking a permit from the sheriff of a county or police chief of a city upon a showing of good moral character and good cause for the issuance of a permit. (Pen.Code, § 12050.) The license so obtained "may include any reasonable restrictions or conditions which the issuing authority deems warranted, including restrictions as to the time, place, and circumstances under which the person may carry a concealed firearm." (Pen.Code, § 12050, subd. (b).)

Penal Code section 12026 itself provides: "Section 12025 shall not be construed to prohibit any citizen of the United States over the age of 18 years who resides or is temporarily within this State, and who is not within the excepted classes prescribed by Section 12021 [related to felons and narcotics addicts], from owning, possessing, or keeping within his place of residence or place of business any pistol, revolver, or other firearm capable of being concealed upon the person, and no permit or license to purchase, own, possess, or keep any such firearm at his place of residence or place of business shall be required of him." (Emphasis added.)

In Galvan, the court concluded that section 12026 prohibited only licenses or permits, not registration requirements. The court drew a distinction between licensing, which regulates activity based on a determination of the personal qualifications of the licensee, and registration, which catalogs all persons with respect to an activity or all things that fall within certain classifications. (70 Cal.2d at p. 856, 76 Cal.Rptr. 642, 452 P.2d 930.) "The Legislature, then, recognized precisely the distinction between 'registration' and 'licensing.' The Legislature intended that the right to possess a weapon at certain places could not be circumscribed by imposing any requirements, such as 'good moral character' (except the exclusions in Pen.Code, § 12025) upon the person possessing the weapon.... The Legislature used 'register' differently from 'license' or 'permit,' yet included in Penal Code section 12026 only the language 'no permit or license.' " (70 Cal.2d at p. 858, 76 Cal.Rptr. 642, 452 P.2d 930.)

Following the Galvan decision the Legislature added Government Code section 9619 (Stats.1969, ch. 1428, § 1) renumbered and amended in 1971 (Stats.1971, ch. 438, § 95) to its present form as Government Code section 53071: "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." Thus, in reaction to Galvan the Legislature expressly preempted the area of registration which San Francisco had attempted to enter.

The City and County of San Francisco argues that neither Government Code section 53071 nor Penal Code section 12026 bars it from enacting its handgun ordinance. Concerning Government Code section 53071, the City and County argues...