Fiscal v. City and County of San Francisco, Al 15018.

• Court: California Court of Appeals
• Writing for the Court: Ruvolo
• Citation: 158 Cal.App.4th 895,70 Cal.Rptr.3d 324
• Parties: Paula FISCAL et al., Plaintiffs and Respondents, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.
• Docket Number: No. Al 15018.,Al 15018.
• Decision Date: 09 January 2008

70 Cal.Rptr.3d 324 158 Cal.App.4th 895 Paula FISCAL et al., Plaintiffs and Respondents,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants. No. Al 15018. Court of Appeal, First District, Division 4. January 9, 2008.

[70 Cal.Rptr.3d 326]

Dennis J. Herrera, San Francisco City Attorney, Wayne Snodgrass, Vince Chhabria, Deputy City Attorneys, for Appellants.

Trutanich Michel, C.D., Michel, Don B. Kates, Glenn S. McRoberts and Thomas E. Maciejewski, Long Beach, for Respondents, Amicus Curiae on Behalf of Respondents:

Michael S. Hebel, San Francisco, for The San Francisco Police Officers Association as Amicus Curiae, on behalf of Plaintiffs and Respondents.

Law Office of Donald Kilmer, Donald E. Kilmer, Jr., San Jose, for Gun Owners of California, Senator H.L. Richardson (ret.), The Madison Society and California Rifle & Pistol Association, as Amici Curiae on behalf of Plaintiffs and Respondents.

Law Offices of Bruce Colodny, Bruce Colodny, San Bernardino, for American Entertainment Armories Association as Amicus Curiae on behalf of Plaintiffs and Respondents.

RUVOLO, P.J.

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

70 Cal.Rptr.3d 327

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 City's 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 court's 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 City's 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 City's "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 City's 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 City's 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

70 Cal.Rptr.3d 328

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 individual's 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, 97 Cal. Rptr.2d 334, 2 P.3d 581 [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 O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 63 Cal.Rptr.3d 67, 162 P.3d 583 (O'Connell), 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

70 Cal.Rptr.3d 329

city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general [state] laws." [H] "If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void." [Citations.] [11] "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[, 16 Cal.Rptr.2d 215, 844 P.2d 534] ..., italics added, fn. omitted (Sherwin-Williams); see also American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251 [, 23 Cal. Rptr.3d 453, 104 P.3d 813] ... (American Financial).)" (O'Connell, supra, 41 Cal.4th at p. 1067, 63 Cal.Rptr.3d 67, 162 P.3d 583.)

The O'Connell 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[, 16 Cal. Rptr.2d 215, 844 P.2d 534], citing In re Portnoy (1942) 21 Cal.2d 237, 240[, 131 P.2d 1] ... [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...