Kasler v. Lockyer

• Decision Date: 29 June 2000
• Docket Number: No. S069522.,S069522.
• Citation: 23 Cal.4th 472,2 P.3d 581,97 Cal.Rptr.2d 334
• Court: California Supreme Court
• Parties: Peter Alan KASLER et al., Plaintiffs and Appellants, v. Bill LOCKYER, as Attorney General, etc., et al., Defendants and Respondents.

97 Cal.Rptr.2d 334

23 Cal.4th 472

2 P.3d 581

Peter Alan KASLER et al., Plaintiffs and Appellants, v. Bill LOCKYER, as Attorney General, etc., et al., Defendants and Respondents.

No. S069522.

Supreme Court of California.

June 29, 2000.

Rehearing Denied August 16, 2000.¹

Benenson & Kates, Don B. Kates, Novate; Stephen P. Halbrook, Fairfax, VA; Michel & Associates, Trutanich & Michel, CD. Michel, San Pedro; and Donald E.J. Kilmer, Jr., San Jose, for Plaintiffs and Appellants.

Michael Patrick Murray, for National Rifle Association of America as Amicus Curiae on behalf of Plaintiffs and Appellants.

Steven Silver, Los Angeles, for National Rifle Association, California Rifle & Pistol Association, Gun Owners of California, the Second Amendment Foundation and Lawyers Second Amendment Society as Amici Curiae on behalf of Plaintiffs and Appellants.

Richard E. Gardiner and Steven Silver, Los Angeles, for Law Enforcement Alliance of America as Amicus Curiae on behalf of Plaintiffs and Appellants.

Dan Schultz, for Law Enforcement Alliance of America, Congress of Racial Equality, Womens' Safety Alliance, Doctors for Integrity in Police Research, Prosecutors for Responsible Gun Ownership and Lawyers Second Amendment Society as Amici Curiae on behalf of Plaintiffs and Appellants.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Paul V. Bishop, Kevin Holsclaw, John A. Gordnier and Timothy L. Rieger, Deputy Attorneys General, for Defendants and Respondents.

Louise H. Renne, City Attorney (San Francisco), D. Cameron Baker, Deputy City Attorney, Owen A. Clemens; O'Melveny & Myers, John A. Crose, Jr., Robert C. Vanderet, Charles C. Lifland, Jennifer L. Isenberg, San Francisco; Mark D. Polston, Washington, Dist. of Columbia, Brian J. Siebel and Dennis A. Henigan, Washington, Dist. of Columbia, for Center to Prevent Handgun Violence, California Police Chiefs' Association, California Peace Officers' Association, California State Sheriffs' Association and City and County of San Francisco as Amici Curiae on behalf of Defendants and Respondents.

BROWN, J.

In enacting the Roberti-Roos Assault Weapons Control Act of 1989 (Stats. 1989, ch. 19, § 3, p. 64; hereafter AWCA), the Legislature imposed restrictions on a class of semiautomatic firearms it characterized as "assault weapons." (Pen.Code, § 12275 et seq.)² The restrictions were necessary, the Legislature found and declared, because each of the semiautomatic firearms designated as an assault weapon had "such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings." (§ 12275.5.) It did not intend, the Legislature stressed, to place restrictions on weapons "primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Ibid.)

Prior to amendment of the AWCA in 1999 (the 1999 amendments)(Stats.1999, ch. 129, § 7 et seq.), semiautomatic firearms were designated as assault weapons by (1) being listed by type, series, and model in section 12276, or (2) by being declared an assault weapon under a procedure set forth in section 12276.5. Under the latter procedure, which is commonly referred to as the add-on provision, certain superior courts, upon petition by the Attorney General, may be called upon to declare a firearm an assault weapon because of its essential similarity to a listed assault weapon. With its 1999 amendments to the AWCA, the Legislature took a third approach to designating assault weapons—defining them in section 12276.1, subdivision (a) in terms of generic characteristics, for example, a "semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine" and also has a "pistol grip that protrudes conspicuously beneath the action of the weapon." (Id., subd. (a)(1)(A) Stats. 1999, ch. 129, § 7.) It bears repeating that the 1999 amendments were additive in this respect. Neither the list method of designating assault weapons in section 12276 nor the add-on provision of section 12276.5 was abandoned or textually modified by the 1999 amendments. This case arose prior to the enactment of the 1999 amendments, and the parties agree that the 1999 amendments do not render the issues before us moot.

Plaintiffs challenged the constitutionality of the AWCA in a taxpayers' suit to enjoin its enforcement. The trial court sustained a demurrer without leave to amend except as to one cause of action, and when plaintiffs declined to amend, dismissed the action. The Court of Appeal reversed. It held the AWCA unconstitutional on the following grounds: (1) the section 12276 list of assault weapons violates principles of equal protection because it is irrationally underinclusive; (2) the add-on provision of section 12276.5 violates the separation of powers doctrine by delegating legislative power to the courts; and (3) the AWCA violates due process because it is unduly vague and fails to give advance warning of the conduct prohibited by it. We conclude the AWCA does not violate the equal protection or separation of powers doctrines and that the due process claim fails as a facial challenge to the AWCA. Accordingly, we reverse the judgment of the Court of Appeal. In the discussion that follows, we summarize the relevant provisions of the AWCA as we address each of plaintiffs' constitutional challenges. For the convenience of the reader, the full text of the relevant provisions of the AWCA as amended in 1999 may be found in the appendix.

I. Discussion

A. Equal Protection

In section 12276, the Legislature listed semiautomatic firearms—rifles, pistols, and shotguns—considered to be assault weapons, specifying such firearms by type, series, and model. Plaintiffs contend the AWCA violates the principles of equal protection embodied in the state and federal Constitutions because the Legislature failed to include in the section 12276 list certain weapons that are identical to, or indistinguishable from, listed weapons. The short answer to this argument, the Attorney General contends, is that the equal protection clauses of the federal and state Constitutions protect persons. Guns are things, not persons. Therefore, equal protection principles do not protect guns from unequal treatment.

The Attorney General's analysis finds some support in two recent cases: Benjamin v. Bailey (1995) 234 Conn. 455, 662 A.2d 1226 (Benjamin), and California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66 Cal.App.4th 1302, 78 Cal. Rptr.2d 591 (California Rifle ). In Benjamin, the Supreme Court of Connecticut, in the course of considering various constitutional challenges to an assault weapons ban, stated: "The equal protection clauses of the federal and state constitutions apply only to `persons.' [Citations.] The plaintiffs' challenge relates to classifications among weapons, not persons.... Accordingly, the plaintiffs have not raised a claim that falls within the scope of the constitutional guarantee they seek to invoke." (Benjamin, supra, 662 A.2d at pp. 1235-1237, fn. omitted.) In California Rifle, the Court of Appeal reached the same conclusion in upholding a city ordinance banning the sale of "Saturday Night Specials." "The general rule is that persons who are similarly situated in relevant respects must be treated equally by the law. Obviously, a handgun is not a person, and hence there is no constitutional compulsion for a state's laws to treat all handguns alike.... The equal protection clause simply does not protect guns from unequal legal treatment." (California Rifle, supra, 66 Cal.App.4th at p. 1326,78 Cal.Rptr.2d 591.)

Holding that only persons, not things, are protected from unequal legal treatment was something of a makeweight in both cases because the courts went on to consider and reject the equal protection challenges on the merits. (See Benjamin, supra, 662 A.2d at pp. 1237-1240; California Rifle, supra, 66 Cal.App.4th at p. 1329, 78 Cal.Rptr.2d 591.) As the Court of Appeal in this case noted, the argument made by the Attorney General "overlooks the fact that it is the persons who make and own guns who are penalized." The Connecticut Supreme Court in Benjamin acknowledged this point in rejecting the equal protection challenge raised there. "Even if the plaintiffs' argument were construed as an allegation that people who possess a listed firearm are treated differently from people who possess an unlisted firearm, and that this disparate treatment violates principles of equal protection, the plaintiffs would not prevail on the merits of this claim." (Benjamin, supra, 662 A.2d at p. 1237.) Courts not uncommonly refer to issues of equal protection as involving discrimination among things when they mean discrimination among persons having interests in those things. For example, in Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659, a case that will be further discussed below, the United States Supreme Court characterized the controversy there as centering on "the narrow issue whether the legislative classification between plastic and nonplastic nonreturnable milk containers is rationally related to achievement of the statutory purposes." (Id. at p. 463, 101 S.Ct. 715, fn. omitted.) We have used such shorthand ourselves. (See, e.g., Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 734, 114 Cal.Rptr. 460, 523 P.2d 260 [a ban on pinball games, were it intended to proscribe games of skill, would constitute a denial of equal protection of the laws, "since there would be an arbitrary discrimination against the limited number of games of skill falling within its terms"].)

The shortcut suggested by the Attorney General having turned out to be a blind alley, we must address plaintiffs' equal protection...