cgf, cal-ffl letter to city of capitola 2/18/13 re proposed gun control ordinance

7/29/2019 CGF, Cal-FFL letter to City of Capitola 2/18/13 re proposed gun control ordinance

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TheLaw Offices of

DAVIS & ASSOCIATES

27201 Puerta Real, Ste 300, Mission Viejo, California 92691

Direct (949) 310-0817/Fax (949) 288-6894 [email protected]

February 28, 2013

Capitola City Council Members420 Capitola Ave.Capitola, CA 95010

VIA FAX (831-464-8659) & EMAIL ([email protected])

Re: February 28, 2013, Council Meeting Agenda Item no. 9(B) (Consideration of an Urgency

Ordinance revising and supplementing current Capitola Municipal Code Chapter 5.32

Firearms and Ammunition Regulations, and adopting Regulations pertaining to thepossession of firearms on City property and public property in the vicinity of schools.)

Position: OPPOSE

Dear City Council Members,

I write on behalf of The Calguns Foundation (CGF) and California Association of Federal FirearmsLicensees (CAL-FFL) regarding the following ordinance under review:

Consideration of an Urgency Ordinance revising and supplementingcurrent Capitola Municipal Code Chapter 5.32 Firearms and

Ammunition Regulations, and adopting Regulations pertaining to thepossession of firearms on City property and public property in thevicinity of schools.

Specifically, we write in opposition to all of the Citys [very likely unconstitutional] proposed regulations

on a fundamental right namely, to keep and bear arms [for self-defense] and request a thoughtful,measured (as opposed to urgent) approach to creating laws that affect the rights of every citizen withinyour town.

We would like to begin by saying that the recent incident involving the loss of two local officers heroes

by every measureis tragic in every respect. Their memories should not be marred by or leveraged foran anti-gun and anti-civil rights political agenda. Importantly, nothing in the Citys proposed ordinance

would have prevented the incident or have any impact on crime. Such political grandstanding merelydivides the community and polarizes residents and elected officials; the community will not be improved

by this Council making hasty, ill-considered laws and forcing the City into costly lawsuits.

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be infringed."

The Fourteenth Amendments Due Process Clause states: [N]or shall any state deprive any person of

life, liberty, or property, without due process of law


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The Law Offices of

DAVIS & ASSOCIATES

City of Capitola: February 28, 2013, Council Meeting Agenda Item no. 9(B) February 28, 2013Page 2

In 2008, the Supreme Court struck down a District of Columbia law on an original-meaning interpretationof the Second Amendment. (District of Columbia v. Heller(2008), 554 U.S. 570, 635-36.) Hellerheld

that the Amendment secures an individual right to keep and bear arms, the core component of which isthe right to possess loaded, operable firearms handguns includedfor self-defense, most notably (butnot exclusively) in the home. Id. At 592-95, 599, 628-29.

Soon after the Courts decision in Heller, Chicagos handgun ban was challenged. McDonald v. City of

Chicago (2010), 130 S.C.t. 3020, 3027. The foundational question in that litigation was whether theSecond Amendment applies to the States and subsidiary local governments. Id. at 3026. The Supreme

Court gave an affirmative answer: the Second Amendment applies to the States and local governmentsthrough the Due Process Clause of the Fourteenth Amendment. Id. at 3050.

Subsequently, inEzell v. City of Chicago (2011) 651 F.3d 684, plaintiffs challenged municipal ordinancesthat mandated one hour of training at a gun range as a prerequisite to lawful gun ownership but that also

prohibited all firing ranges in the city. Plaintiffs sought and were denied a preliminary injunction to enjoin

enforcement. On review, the federal Seventh Circuit Court of Appeals struck down the municipalordinance, holding that the central component of the Second Amendment, U.S. Const. amend. II, was theright to keep and bear arms for self defense, and the right to possess loaded, operable firearms for

protection implied a corresponding right to acquire firearms and maintain proficiency in their use.

Of note, the Citys proposed ordinance puts forth a standard, within proposed section 5.32.070, whichrequires the careful consideration of multiple factors prior to the approval of an application for a firearmretail dealer. Yet, similar considerations are not being made with regard to the very passage of the

proposed ordinance. Why not?

In fact, in the Citys rush to pass these regulation, the drafters didnt even review existing state law.Throughout the proposed regulations, the City cites the following statutes that no longer exist: Penal

Codes 12031(d), 12033 and 12050. Such obvious errors indicate a lack of research and contemplationin the proposala proposal which should be taken with great care and caution given the impact on the

Citys residents as well as the state and Constitutional pitfalls.

Such errors cause the proposed ordinance to run afoul of Californias preemption laws. As the City and

County of San Francisco discovered in Fiscal v. San Francisco (2008) 158 Cal. App. 4th 895, localregulation must carefully maneuver the minefield of the Californias complex and vast regulatory scheme

or fail and pay the Plaintiffs attorneys fees. In Fiscal, plaintiffs, retired law enforcement and militarypersonnel, law enforcement associations, and firearm-owner rights groups, challenged a voter-enacted

local gun control ordinance of the defendant charter city. The ordinance prohibited most city residentsfrom possessing handguns and all city residents from selling, distributing, transferring, and manufacturingfirearms and ammunition. The Superior Court of the City and County of San Francisco, California, found

that the ordinance was pre-empted and that the city's home rule power under Cal. Const., art. XI, 5,subd. (a), did not override the state's pre-emption. Defendants appealed. The court affirmed the decision

of the trial court, holding that the ordinance was pre-empted in its entirety under Cal. Const., art. XI, 7.The section banning possession on private property was impliedly pre-empted by former Pen. Code 12026, which precluded local public entities from adopting impediments to possession of firearms bylegally qualified citizens. The ban on possession also obstructed the objectives of the Penal Code schemeregulating handgun possession in California. The section banning sale, manufacture, transfer, or

distribution of firearms was also pre-empted by state law. It contravened Gov. Code 53071, whichexpressly pre-empted any local enactments relating to the licensing or registration of commerciallymanufactured firearms, and conflicted with the Unsafe Handgun Act (UHA), former Pen. Code 12125-


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The Law Offices of

DAVIS & ASSOCIATES

City of Capitola: February 28, 2013, Council Meeting Agenda Item no. 9(B) February 28, 2013Page 3

12233. The ordinance could not escape challenge under the home rule provision of Cal. Const., art. XI, 5, subd. (a), because it did not address only a municipal affair.

However, state law pre-emption is not the only serious legal problem within the Citys proposedordinance. For example, the City Council Agenda Report states that there are two licensed businessesthat sell firearms to the public in the City. Yet, the proposed Section 5.32.020 defines Firearms dealeras any business that sells, leases, transfers, advertises, or exposes for sale, lease, or transfer any firearm

or ammunition for firearms.

Using this definition, the regulations then go on to place restrictions on the establishment of such lawfulbusinesses, including a restriction that no firearms dealer may be located within 2,000 feet of another

firearms dealer and another establishing the maximum number of firearms dealers within the city totwo. Has the City prepared a list of firearms dealers under their proposed definition? Has any research

been done to see what other businesses within the community sell ammunition but not firearms?

Resellers of ammunition are not required to have a federal firearms license (FFL) and often include

camping, fishing and tackle stores, hardware stores, sporting goods stores, and other law-abidingbusinesses unrelated to firearms sales. In the Citys rush to pass this sweeping gun control ordinance,there are many questions that appear entirely unaddressed:

If there is one single business (or more) within the community that lawfully sells ammunition to thepublic, how will the City decide which business[es] to close down or relocate under the two firearmsdealer license restriction?

Have vested firearms dealers (under the proposed definition) been placed on notice of these proposed

restrictions so that their voices can be heard on this urgent motion?

Does the limitation apply to businesses in City limits which are within 2,000 feet of another firearms

dealer (by the Citys definition) located in real property in an unincorporated or differently incorporatedarea?

Further, the proposed ordinance mandates an existing long gun and ammunition resale duopoly andprohibits fair competition within the City. Based on federal BATFE data, only two entities Big 5

Sporting Goods and Outdoor World have a FFL to sell and transfer firearms. It is our understandingthat neither of those businesses conduct handgun retail sales or private party handgun transactions.

Since the two [apparently] grandfathered businesses can be exempt from this ordinance, if passed, onlyas long as the composition of their firearms sales remains unchanged after todays date, the City may very

well be creating an outright ban on the sales of Constitutionally-protected self-defense handguns withinthe Cityrunning afoul of the Second and Fourteenth Amendments to the U.S. Constitution.

Also, proposed Section 5.32.190 mandates:

Every owner of a firearm in the city shall be required to assure that eachsuch firearm is locked and secured when he or she is not in actual

possession of the firearm so as to assure, to the extent reasonable, that noother person may access or use that firearm outside the presence of theowner.

First, the term "locked and secured" is undefined and requires residents of the City to guess at themeaningwith the risk of prosecution if their interpretation is incongruent with law enforcements and/or


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cgf, cal-ffl letter to city of capitola 2/18/13 re proposed gun control ordinance

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