Thursday, February 20, 2014
S.C. to Rule on Validity of Laws Regulating Sale of Ammunition
By KENNETH OFGANG, Staff Writer
The California Supreme Court has agreed to decide whether sections of the Penal Code regulating the sale, display, and transfer of handgun ammunition are unconstitutionally vague.
The justices, at their weekly conference in San Francisco yesterday, voted unanimously to review the decision of the Fifth District Court of Appeal in Parker v. State of California (2013) 221 Cal. App. 4th 340. The panel ruled 2-1 that what are now Penal Code §§16650, 12060(b), 12323(a), and 30345 through 30365, enacted by the Anti-Gang Neighborhood Protection Act of 2009.
Among other things, the provisions require vendors of handgun ammunition to keep a log of sales, store such ammunition in a safe and secure manner, and require the face-to-face transfer of such ammunition during sales.
Justice Gene Gomes wrote for the majority, joined by Justice Stephen Kane.
Gomes focused on the fact that the statutory scheme defines “handgun ammunition” as ammunition “principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person.’
A person of ordinary intelligence would be unable to determine which ammunition cartridges fall under the regulations since there was an “undisputed premise that almost all of them can be used interchangeably” with rifles and other firearms that are not considered “handguns,” the jurist said.
The facial challenge to the laws was brought by a group of plaintiffs that included then-Tehama County Sheriff Clay Parker, the California Rifle and Pistol Association Foundation, and a number of sporting goods companies that do business in the state. Parker lost a reelection bid subsequent to the filing of the lawsuit.
Gomes underscored the issue of how one might determine if ammunition was “principally for use” with “handguns” as opposed to other firearms.
“Is the standard determined by the behavior of all users of firearms or only certain groups such as civilian gun owners in a geographic region, e.g., nationally, in California, or by county, city, or otherwise? Is ammunition usage by military and law enforcement personnel included in the equation? Are changes in the availability or popularity of certain firearms and cartridges taken into consideration? Is the definition based on sales statistics, crime statistics, or other data gathered over a certain period of time?”
Absent a more specific standard, he argued, the definition of “handgun ammunition” was a “moving target.”
Gomes rejected the attorney general’s argument that the law should be upheld under the standard articulated in United States v. Salerno (1987) 481 U.S. 739—that in challenging a statute for vagueness, the challenger must establish “that no set of circumstances exists under which the [statute] would be valid.” Gomes wrote that the Salerno doctrine was “embattled,” not “universally controlling,” and had never been endorsed by the California Supreme Court.
More Lenient Standard
Observing that no “definitive standard of review exists” in Supreme Court precedent for facial challenges outside of the First Amendment context, Gomes endorsed the more lenient standard of San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643—“whether a statute is constitutionally invalid in the generality or great majority of cases.”
Gomes concluded that the handgun ammunition statutes do not satisfy due process requirements.
“Because the challenged provisions fail to provide meaningful guidelines or discernible standards there is a significant risk of arbitrary and discriminatory application by law enforcement officials,” the justice wrote. “The lack of statutory guidance effectively confers discretion upon individual police officers to interpret the law themselves, thus allowing it to be enforced selectively or haphazardly.”
Justice Dennis Cornell argued in dissent that his colleagues failed to accord “due deference to the Legislature.”
The court, he argued, should apply strict scrutiny to a challenge brought before a challenged enactment is enforced, and should apply a reasonable construction of the words used.
“As I see it, the evidence that handgun vendors label a portion of their stock as ‘handgun ammunition’ and that the ammunition encyclopedia includes a section entitled ‘Current Handgun Cartridges of the World’ demonstrates that the meaning of ‘ammunition principally for use in handguns’ can be determined objectively by reference to common life experiences,” he wrote. “Accordingly, the phrase ‘principally for use’ in handguns is not unconstitutionally vague.”
While Cornell admitted that specific cases may arise where it may be difficult to determine if a particular cartridge is “principally for use in handguns”, the dissenting justice said that “[u]nder the principle of judicial restraint” such potential problems should only be considered “if and when they arise.”
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