S.F. Veteran Police Officers Ass'n v. City & Cnty of S.F.

• Decision Date: 19 February 2014
• Docket Number: No. C 13–05351 WHA,C 13–05351 WHA
• Citation: 18 F.Supp.3d 997
• Court: U.S. District Court — Northern District of California
• Parties: San Francisco Veteran Police Officers Association, Larry Barsetti, Rainerio Granados, Arthur Ritchie, and Randall Low, Plaintiffs, v. The City and County of San Francisco, The Mayor of San Francisco, Edwin Lee in his official capacity, The Chief of the San Francisco Police Department, Greg Suhr, in his official capacity, and Does 1–10, Defendants.

18 F.Supp.3d 997

San Francisco Veteran Police Officers Association, Larry Barsetti, Rainerio Granados, Arthur Ritchie, and Randall Low, Plaintiffs

v.The City and County of San Francisco, The Mayor of San Francisco, Edwin Lee in his official capacity, The Chief of the San Francisco Police Department, Greg Suhr, in his official capacity, and Does 1–10, Defendants.

No. C 13–05351 WHA

United States District Court, N.D. California.

Filed February 19, 2014

Anna Marie Barvir, Carl Dawson Michel, Clinton Barnwell Monfort, Sean Anthony Brady, Michel & Associates, P.C., Long Beach, CA, for Plaintiffs.

Christine Van Aken, Wayne Kessler Snodgrass, Office of the City Attorney, San Francisco, CA, for Defendants.

ORDER DENYING PRELIMINARY INJUNCTION

William Alsup, United States District Judge

INTRODUCTION

In this action challenging a San Francisco ordinance banning the possession of firearm magazines with the capacity to accept more than ten rounds, plaintiffs move for a preliminary injunction. For the reasons set forth below, the motion is Denied.

STATEMENT

For over a decade, California has restricted firearm magazines holding more than ten bullets, particularly restricting their manufacture, importation and sale, but has not prohibited ownership by individuals. Cal.Penal Code Section 32310. This state law was enacted in 1999 to supplement a then-existing federal law, enacted in 1994, that prohibited the possession or transfer of magazines with the capacity to accept more than ten rounds. The federal law expired by its own terms in 2004. While the California statute generally prohibits the making of new magazines with the capacity to accept more than ten rounds and transfer of existing ones, it does not prohibit their possession. This action does not challenge the constitutionality of this state law. The challenge lies instead against a new local ordinance banning possession of magazines holding more than ten rounds.

The background is as follows. On December 14, 2012, a shooter, armed with an assault weapon and several magazines with the capacity to accept more than ten rounds, entered Sandy Hook Elementary School in Newtown, Connecticut. He massacred 27 people, including twenty young children (Van Aken Decl., Exh. 10 at 3, 22–23). Following this horrific tragedy, several state and local governments enacted bans on magazines with the capacity to accept more than ten rounds. As of this date, four courts have ruled on the constitutionality of these bans and all four courts have upheld them. See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264 (D.C.Cir.2011) ; N.Y. State Rifle & Pistol Ass'n v. Cuomo, 2013 WL 6909955, at *17–18, 2013 U.S. Dist. LEXIS 182307, at *55–56 (W.D.N.Y. Dec. 31, 2013) (Judge William Skretny); Shew v. Malloy, 2014 WL 346859, at *9, 2014 U.S. Dist. LEXIS 11339, at *39–40 (D.Conn. Jan. 30, 2014) (Judge Alfred Covello); Tardy v. O'Malley, No. CCB–13–2861, TRO Hr'g Tr., at 66–71 (D.Md. Oct. 1, 2013) (Judge Catherine Blake).

For its part, San Francisco enacted Section 619 of the San Francisco Police Code, challenged herein under the Second Amendment. With certain exceptions, the ordinance prohibits any person, corporation, or other entity in San Francisco from possessing a magazine with the capacity to accept more than ten rounds, whether assembled or disassembled. A magazine with the capacity to accept more than ten rounds is defined as:

...any detachable ammunition feeding device with the capacity to accept [more than ten rounds], but shall not be construed to include any of the following:

(1) A feeding device that has been permanently altered so that it cannot accommodate [more than ten rounds];

(2) A .22 caliber tube ammunition feeding device, or

(3) A tubular magazine that is contained in a lever-action firearm.

The ordinance, by its own terms, bans magazines with the capacity to accept more than ten rounds because they “significantly increase[ ] the lethality of the automatic and semiautomatic firearms using them.” In particular, the ordinance explicitly identifies recent high-profile massacres where the shooter used magazines with the capacity to accept more than ten rounds, including the Sandy Hook massacre.

The ordinance also explicitly addresses concerns regarding self-defense:

[Magazines with the capacity to accept more than ten rounds] are not necessary for individuals to vindicate their right to self-defense. Only in extraordinarily rare circumstances would a person using a firearm in self-defense ever be required to use a large capacity magazine to defend himself or herself effectively. This is particularly true in an urban center like San Francisco, where law enforcement can and does respond quickly to threats and incidents. Conversely, the dangers of [magazines with the capacity to accept more than ten rounds] are heightened in dense urban areas like San Francisco.

Any person who, prior to the passage of the ordinance, legally possessed a magazine with the capacity to accept more than ten rounds is now required to store it out of state or relinquish it within ninety days of the ordinance's enactment, either through sale, transfer, or surrender to the San Francisco Police Department. The parties have stipulated to extend the enforcement date to April 7, 2014 (Dkt. No. 11). The ordinance is tailored to provide for certain exemptions, including:

(1) Any government officer, agent, or employee, member of the armed forces of the United States, or peace officer, to the extent that such a person is otherwise authorized to possess a large capacity magazine in connection with his or her official duties;

(2) A person licensed pursuant to Penal Code Sections 26700 to 26915, inclusive;

(3) A gunsmith for the purposes of maintenance, repair, or modification of the large capacity magazine;

(4) Any entity that operates an armored vehicle business pursuant to the laws of the state, and an authorized employee of such entity, while in the course and scope of his or her employment for purposes that pertain to the entity's armored vehicle business;

(5) Any person, corporation or other entity that manufactures the large capacity magazine for a person mentioned in subsection (a) or for export pursuant to applicable federal regulations;

(6) Any person using the large capacity magazine solely as a prop for a motion picture, television, or video production, or entertainment event;

(7) Any holder of a special weapons permit issued pursuant to Penal Code [Sections] 33300, 32650, 32700, 31000, or 18900 ;

(8) Any person issued a permit pursuant to Penal Code [Section] 32315 by the California Department of Justice upon a showing of good cause for the possession, transportation, or sale of large capacity magazines between a person licensed pursuant to Penal Code Section 26700 to 26915 and an out-of-state client, when those activities are in accordance with the terms of that permit;

(9) Any federal, state, or local historical society, museum, or institutional collection which is open to the public, provided that the large capacity magazine is properly housed[,] secured from unauthorized handling, and unloaded;

(10) Any person who finds the large capacity magazine, if the person is not prohibited from possessing firearms or ammunition pursuant to federal or state law, and the person possesses the large capacity magazine no longer than it is necessary to deliver or transport the same to a law enforcement agency for that agency's disposition according to law;

(11) A forensic laboratory or any authorized agent or employee thereof in the course and scope of his or her authorized activities;(12) Any person in the business of selling or transferring large capacity magazines in accordance with Penal Code [Section] 12020, who is in possession of a large capacity magazine solely for the purpose of doing so; or

(13) Any person lawfully in possession of a firearm that the person obtained prior to January 1, 2000 if no magazine that holds 10 or less rounds of ammunition is compatible with that firearm and the person possesses the large capacity magazine solely for use with that firearm.

Any person who violates the ordinance is guilty of a misdemeanor (Van Aken Decl., Exh. 1 at 2–6).

Plaintiffs Larry Barsetti, Rainerio Granados, Randall Low, and Arthur Ritchie are all residents of San Francisco who own magazines with the capacity to accept more than ten rounds (Barsetti Decl. ¶¶ 2–3; Granados Decl. ¶¶ 2–3; Low Decl. ¶¶ 2–3; Ritchie Decl. ¶¶ 2–3). If San Francisco's ordinance is not enjoined, each of these plaintiffs will be forced to store their magazines with the capacity to accept more than ten rounds out of state or relinquish them by April 7. Plaintiff San Francisco Veteran Police Officers Association represents veteran San Francisco Police Department members and their interests, including their asserted right to possess magazines with the capacity to accept more than ten rounds. An unspecified number of members, including plaintiff Barsetti, are residents who own magazines with the capacity to accept more than ten rounds. These members will also be forced to store their magazines with the capacity to accept more than ten rounds out of state or relinquish them by April 7 if the City's ordinance is not enjoined. Other members are non-residents who will be prohibited from carrying their magazines within San Francisco, as they currently do in accordance with state law (Vannucci Decl. ¶¶ 1,4, 7, 9). All individual plaintiffs claim that they would continue to possess magazines with the capacity to accept more than ten rounds but for Section 619 of the San Francisco Police Code.

Plaintiffs now move for a preliminary injunction to suspend Section 619 of the San Francisco Police Code. This order follows full briefing, oral argument, and supplemental briefing after argument concerning a recent and subsequent decision by our court of appeals.

ANALYSIS

To obtain a preliminary injunction, plaintiffs must establish: (1) they are likely to succeed on the merits; (2...