Wednesday, January 6, 2002
Lawyers Tell Justices State Law Does Not Preempt County Gun Ordinance
By DAVID KLINE
SACRAMENTO (CAPITOL)—A legal challenge to Los Angeles County’s ban on gun sales on county property reached the state Supreme Court yesterday as lawyers argued over whether state law pre-empts such attempts at local gun regulation.
The case was one of two in which the high court is considering the same legal question: Does a county have the authority to ban gun sales at shows on county-owned property?
The court’s rulings, due within 90 days, could have a dramatic statewide impact on gun sellers, gun show organizers, antiques dealers, collectors and residents who purchase firearms for personal safety. In Los Angeles, more than $2.7 million changes hands at gun shows in a single year, attorneys told the court.
The Board of Supervisors adopted an ordinance in September 1999 to end gun sales on county land, spelling an end to the long-running Great Western Gun Show at the county’s Fairplex fairgrounds in Pomona. The law did not ban the shows, but show operators said that without sales at their events they could not operate profitably.
The operators sued in federal district court and obtained a preliminary injunction from U.S. District Judge Richard Paez of the Central District of California against enforcement of the ordinance. On appeal, the Ninth U.S. Circuit Court of Appeals certified the question to the state Supreme Court, asking the justices to determine what California law says about the pre-emption issue.
At the same time Great Western Shows v. County of Los Angeles moved through the courts, a companion case based on a similar law in Alameda County was certified. A federal district court denied an injunction in the Alameda County case, Nordyke v. King.
The gun show operators maintain that state law pre-empts these local ordinances, while the counties argued that their ordinances simply supplement the section of state law which regulates gun shows.
“There’s no duplication here,” Deputy Los Angeles County Counsel Lawrence Hafetz told the court. “This is strictly a regulation of use of county property. ... Essentially, this is just a limitation on geography.”
Hafetz argued that since the county has legal liability for land it owns, it therefore has the right to regulate the use of its property to ensure public safety.
Michael F. Wright, attorney for Great Western Shows, said the language of the state law indicates that the Legislature intended to allow gun shows to be held, as long as strict safety measures and local tax laws are followed. The county ordinances, he said, contradict this language and should be pre-empted by state law.
San Jose lawyer Donald Kilmer, arguing against the Alameda County ordinance, made a similar argument, and said the county ordinance “is doing actual harm to the state’s valid interest.”
For example, Kilmer said, possession of an illegal concealed weapon on county property could be prosecuted by the county as a misdemeanor, while the state’s interest would be better served if the crime were prosecuted as a felony violation of state law. If the county prosecuted first, the defendant could avoid the harsher law by claiming double jeopardy, Kilmer said.
All seven justices asked questions during oral arguments. Several times, Justice Janice Rogers Brown returned to the question, “Why didn’t the county just ban gun shows?”
Attorneys on both sides, in both cases, said the counties were wary of free speech concerns, and thus avoided a direct ban.
“There’s a lot of First Amendment implications,” Hafetz said, adding that he has attended a gun show “and I know that a lot of speech goes on there.”
Kilmer noted that there are “types of speech that could not take place without a firearm present,” such as a detailed discussion of a relic gun.
“The county is trying to draft something to get around First Amendment problems,” Kilmer added.
T. Peter Pierce, a Los Angeles attorney representing the appellant in Nordyke v. King, said Alameda County’s ordinance was written shortly after a 1998 shooting during its county fair, so it reflects the author’s immediate concern of getting guns off county property, not the issue of gun shows.
Justice Carlos Moreno concentrated his questioning on the issue of what regulatory rights local governments have under the state’s gun laws, as Chief Justice Ronald George seemed to lean toward an interpretation of state law which would allow significant local regulation.
Discussing the Great Western case, Justice Joyce Kennard said she would “tend to agree...that there is no state law which...does the same thing as this specific ordinance,” possibly indicating agreement with Los Angeles County’s position on the issue of duplication of law.
“I think the law is with us and I think we’ll prevail,” Kilmer said after the arguments.
Copyright 2002, Metropolitan News Company