The Law Offices of

DAVIS & ASSOCIATES

27201 Puerta Real, Ste 300, Mission Viejo, California 92691 Direct (949) 310-0817/Fax (949) 288-6894 Jason@CalGunLawyers.com
www.CalGunLawyers.com

February 28, 2013 Capitola City Council Members 420 Capitola Ave. Capitola, CA 95010 VIA FAX (831-464-8659) & EMAIL (citycouncil@ci.capitola.ca.us) 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 the possession of firearms on City property and public property in the vicinity of schools.) OPPOSE

Position:

Dear City Council Members, I write on behalf of The Calguns Foundation (CGF) and California Association of Federal Firearms Licensees (CAL-FFL) regarding the following ordinance under review: Consideration of an Urgency Ordinance revising and supplementing current Capitola Municipal Code Chapter 5.32 Firearms and Ammunition Regulations, and adopting Regulations pertaining to the possession of firearms on City property and public property in the vicinity 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 within your town. We would like to begin by saying that the recent incident involving the loss of two local officers heroes by every measure is tragic in every respect. Their memories should not be marred by or leveraged for an 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 merely divides 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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DAVIS & ASSOCIATES

City of Capitola: February 28, 2013, Council Meeting Agenda Item no. 9(B) February 28, 2013 Page 2
In 2008, the Supreme Court struck down a District of Columbia law on an original-meaning interpretation of the Second Amendment. (District of Columbia v. Heller (2008), 554 U.S. 570, 635-36.) Heller held that the Amendment secures an individual right to keep and bear arms, the core component of which is the right to possess loaded, operable firearms handguns included for self-defense, most notably (but not 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 the Second 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 governments through the Due Process Clause of the Fourteenth Amendment. Id. at 3050. Subsequently, in Ezell v. City of Chicago (2011) 651 F.3d 684, plaintiffs challenged municipal ordinances that 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 municipal ordinance, holding that the central component of the Second Amendment, U.S. Const. amend. II, was the right 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, which requires the careful consideration of multiple factors prior to the approval of an application for a firearm retail 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 contemplation in the proposal a 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, local regulation 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 military personnel, 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 residents from possessing handguns and all city residents from selling, distributing, transferring, and manufacturing firearms 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 by legally qualified citizens. The ban on possession also obstructed the objectives of the Penal Code scheme regulating 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, which expressly pre-empted any local enactments relating to the licensing or registration of commercially manufactured firearms, and conflicted with the Unsafe Handgun Act (UHA), former Pen. Code 12125-

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City of Capitola: February 28, 2013, Council Meeting Agenda Item no. 9(B) February 28, 2013 Page 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 proposed ordinance. For example, the City Council Agenda Report states that there are two licensed businesses that sell firearms to the public in the City. Yet, the proposed Section 5.32.020 defines Firearms dealer as 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 lawful businesses, 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 to two. 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-abiding businesses 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 the public, how will the City decide which business[es] to close down or relocate under the two firearms dealer 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 incorporated area? Further, the proposed ordinance mandates an existing long gun and ammunition resale duopoly and prohibits 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 understanding that 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, only as 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 within the City running 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 each such 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 no other person may access or use that firearm outside the presence of the owner. First, the term "locked and secured" is undefined and requires residents of the City to guess at the meaning with the risk of prosecution if their interpretation is incongruent with law enforcements and/or

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City of Capitola: February 28, 2013, Council Meeting Agenda Item no. 9(B) February 28, 2013 Page 4
the City Attorneys. Second, this provision requires existing gun owners to procure additional, costly measures in order to exercise their fundamental rights or face prosecution. Further, this provision places an egregious burden on new gun owners in violation of the Second Amendment. Heller addressed mandated locked storage requirements by overturning Washington, D.C.s ordinance. The proposed ordinance also prohibits the possession of firearms within 1,000 feet of a parcel line of a parcel that hosts a public or private elementary school, middle school, or high school but fails to provide a provision to identify and publicly mark with appropriate signage public property in the vicinity of a school or the like. Such vagueness as to where a firearm can lawfully be possessed will surely create unintentional violations of law. The City has a duty to provide accurate GIS data in addition to expressly marking the gun ban zones that would be created by the Citys ordinance. Finally, the proposed ordinance prohibits the possession of firearms on City property, which it defines as real property, including any buildings thereon, owned or leased by the city of Capitola, and in the citys possession, or in the possession of a public or private entity under contract with the city to perform a public purpose. Such a provision is overbroad and may include even the properties of, for example, City contractors who have a right to allow firearm possession and carry for self-defense on their private property by owners, employees, and others by permission. (For example, see Pen. Code 26035.) CONCLUSION There are thousands of existing laws regulating possession, transportation, sale, transfer, distribution and every other action relating to firearms.1 The Citys proposed regulations explicitly ignore the fact that the State of California and the Federal government have already addressed many, if not most, of the concerns that the City seeks to regulate with regard to the sale of firearms. More importantly, regulations were enacted by the State of California to the preemptive exclusion, both implied and express, of local municipalities. California gun store owners, workers, and clientele are friendly, considerate, law-abiding people who are ready and willing to submit to a background check for each and every firearm purchase and transfer, as required under current law. If such upstanding people are not welcomed in the City of Capitola, who are? If you have any questions or concerns, please contact me at your earliest convenience. Sincerely, DAVIS & ASSOCIATES s/ Jason Davis JASON DAVIS

For a better understanding of the complexity of firearm laws, see State of California California Law Revision Commission, Non-Substantive Reorganization of Deadly Weapons Statutes (2008) available at http://www.clrc.ca.gov/pub/Printed-Reports/Pub233.pdf and Bureau of Alcohol, Tobacco, Firearms and Explosives Federal Firearms Reference Guide (2005) available at http://www.atf.gov/publications/download/p/atf-p-53004.pdf.