C.A. Says City Cannot Ban Handgun Possession or Firearms Sales

Thursday, January 10, 2008

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C.A. Says City Cannot Ban Handgun Possession or Firearms Sales

By Steven M. Ellis, Staff Writer

State law preempts a San Francisco initiative that would ban the possession of handguns and the sale of any other firearms or ammunition in the city and county, the First District Court of Appeal ruled yesterday.

In a unanimous opinion, Div. Four affirmed the decision of San Francisco Superior Court Judge James Warren, now retired, “in all respects.” Warren said provisions of the state’s Penal and Government codes regulating the purchase and possession of firearms rendered San Francisco’s Proposition H invalid and unenforceable.

The ordinance was passed by nearly 58 percent of voters in the Nov. 5, 2005 election, and its two substantive provisions would have banned—without exception—the sale, manufacture, transfer or distribution of all firearms or ammunition with the city limits; and prohibited residents from possessing handguns unless they fell within a narrow exception for government employees, active members of the military, and security guards.

However, the National Rifle Association, joined by several retired law enforcement and military personnel, two law enforcement associations and several firearms rights groups, immediately challenged the ordinance, seeking a writ of mandate declaring it invalid as preempted by state law. As a result, the ordinance had been stayed pending yesterday’s ruling.

Preemption Found

The plaintiffs had argued, and the trial judge agreed, that the ordinance was preempted by Penal Code Sec. 12026, which prohibits localities from restricting handgun possession in an individual’s home, business, or private property; Government Code Sec. 53071, which indicates an express intent by the Legislature to occupy the whole field of firearms licensing and registration; and the state’s Unsafe Handgun Act, which establishes a protocol for designating which handguns may be sold in the state.

The trial court also ruled that the remaining portions of the ordinance were not severable because the various bans could not be disentangled without rewriting the ordinance, and that the city’s home rule charter did not allow the ordinance to escape challenge because the matter was of “statewide,” rather than merely “municipal,” concern.

On appeal, Presiding Justice Ignazio J. Ruvolo rejected the city’s arguments that the ordinance was necessary for crime prevention and noted that the city failed “to acknowledge that the ordinance will affect more than just criminals.”

“If the preemption doctrine means anything,” he continued, “it means that a local entity may not pass an ordinance, the effect of which is to completely frustrate a broad, evolutional statutory regime enacted by the Legislature.”

City Weights Options

A spokesperson for San Francisco City Attorney Dennis Herrera said the city was disappointed with the ruling, particularly in light of problems it has had with handgun violence. He said Herrera was still reviewing the decision and would make decisions on his legal options in the coming days.

However, plaintiffs’ counsel Chuck Michel told the METNEWS that his clients were happy that the court had clarified “where the line is drawn when localities try to regulate firearms,” and stated that they were “thrilled that the court recognized that law abiding gun owners are part of the solution, not the problem, to violent crime.”

“This would have been the most draconian gun ban passed in the country since Tennessee tried to disarm all of its citizens as it seceded during the Civil War,” Michel said.

Ruvolo was joined in his opinion by Justices Timothy A. Reardon and Patricia K. Sepulveda.