DEPT. 30

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

Date: November 15, 1996

Honorable: DAVID A. HOROWITZ, Judge
13 C. AGUIRRE, C.S.L.
S. ROBLES, Deputy Clerk
NONE, Reporter

CALIFORNIA RIFLE & PISTOL ASSOCIATION

vs

CITY OF WEST HOLLYWOOD, ET AL

MOTION OF DEFENDANTS/RESPONDENTS, CITY OF WEST HOLLYWOOD, CITY OF WEST HOLLYWOOD CITY COUNCIL, FOR SUMMARY JUDGMENT;

JOINDER OF DEFENDANT/RESPONDENT, LOS ANGELES COUNTY SHERIFF'S DEPARTMENT;

(RULING ON ABOVE SUBMITTED MATTER)

The Court, having taken the above matter under submission on 10/2/96 and having received a supplemental stipulation on November 6, 1996, now rules as follows:

City of West Hollywood, Motion for Summary Judgment GRANTED. No triable issues of material fact.

California Rifle, Cross-Motion for Summary Adjudication re Causes of Action One (1) through Four (4) DENIED.

By Stipulation, the Undisputed Facts presented by the City are Undisputed for purposes of the instant cross Summary Judgment/Adjudication Motions concerning the first four (4) Causes of Action.

City, Objection to Association's Request for Judicial Notice of Unpublished Federal Opinions and/or Reports is SUSTAINED. An unpublished opinion or report may not be cited or relied on by any party. California Rules of Court, Rule 977(a), ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co.; Fireman's Fund Ins. Co. v. Haslam.

1ST CLAIM: Ordinance #4122 is not preempted by state law. State law does not comprehensively occupy the field of firearms sales. Summary Adjudication is GRANTED in favor of the City. DENIED against the Association. No triable issues of material fact.

2ND CLAIM: Penal Code Section 12026(b) and Government Code Section 53071 do not preempt and preclude Ordinance #4122. Summary Adjudication is GRANTED in favor of the City. No triable issues of material fact.

3RD CLAIM: Government Code Section 53071, and the Penal Code provisions relating to licensing and registration of handgun sales do not preempt Ordinance #4122. The Ordinance is not void as a local enactment regarding licensing and registration. Summary Adjudication is GRANTED in favor of the City. No triable issues of material fact. DENIED against the Association.

4TH CLAIM: Ordinance #4122 does not duplicate general criminal law and is not void on that basis. Summary Adjudication is GRANTED in favor of the City. No triable issues of material fact. DENIED against the Association.

EXPRESS PREEMPTION

The Legislature has expressed its intent to occupy the whole field of regulation of the registration or licensing and commercially manufactured firearms and imitation firearms as encompassed by the provisions of the Penal Code, and has stated that such provisions shall be exclusive of all local regulations. Government Code Section 53071; Government Code Section 53071.5. Penal Code Section 12026(b) expressly deals with permits and licenses to purchase, own, possess, keep, or carry certain firearms. It does not deal with the sale of certain firearms.

There does not exist an express conflict or express preemption with state law and a local ordinance prohibiting the sale of "Saturday Night Specials."

DUPLICATION OF STATE LAW

Ordinance 4122 does not duplicate state law. State law is silent on the issue of "Saturday Night Specials." Further, there is no state law which contradicts the prohibition of the sale of such firearms.

IMPLIED PREEMPTION

The cases of Doe, Galvan, and Olsen all state that the Legislature has not expressly preempted local government from regulating all aspects of firearm control. The field of gun sales is not so fully and completely covered by state laws as to impliedly preempt a local, specific prohibition against the sale of a particular type of firearm.

The Attorney General's Opinion cites the "regulatory scheme" of Sections 12070-84 of the Penal Code as evidence that the field of firearm sales has been covered by state law. However, such "scheme" provides for discretion to a local licensing entity. The Opinion goes on to cite Fisher v. City of Berkeley. The Fisher case does not deal with firearm sales. Rather, it presents the general law concerning preemption.

Sections 12070-84 do not clearly indicate that a paramount state concern will not tolerate further or additional local action. In re Hubbard. The giving of discretion to local licensing entities precludes a finding that the Legislature will not tolerate additional local action. The Legislature has been given many opportunities but has failed to state an intent that gun control issues are of such statewide concern that no additional local regulations is allowed or that no additional local gun control sales is allowed.

There has been no showing whatsoever that the Ordinance is of such a nature that the adverse affect of the Ordinance on the transient citizens of the state outweighs the possible benefit to the City.

Ordinance #4122 has not been impliedly preempted by state law.

5TH CLAIM: Ordinance #4122 is not arbitrary or unreasonable and does not violate due process. Summary Adjudication is GRANTED in favor of the City. No triable issues of material fact.

6TH CLAIM: Ordinance #4122 does not violate state and federal constitutional equal protection principles. Summary Adjudication is GRANTED in favor of the City. No triable issues of material fact.

The Association argues that the Ordinance affects a fundamental right, i.e., commercial free speech, and therefore, the City must establish that it has a compelling interest which justifies the law; demonstrate that the distinctions drawn by the law are necessary to further that purpose; and that the restriction directly and materially advances a substantial interest in a manner no more extensive than necessary to serve the interest. The Association argues that the strict scrutiny test should be applied.

The Ordinance does not involve commercial free speech. The Ordinance regulates conduct, i.e., the prohibition on the sale of certain firearms, not speech. Incidental interaction and communication between the participants does not transform conduct into constitutionally protected speech. The doctrines involving commercial free speech do not apply. The strict scrutiny test does not apply.

The central issue is whether the Ordinance is rationally related to a legitimate governmental purpose. The Legislative History of the Ordinance demonstrates that there was sufficient evidence before the City Council for rational legislators to believe the Ordinance was an appropriate public health and safety measure.

The Association has presented evidence that the Ordinance is not proper nor is it a good idea. Although much of this evidence is objectionable, if the Court assumes its admissibility, it does not create disputed material facts as to whether the Ordinance was a rational, legitimate means for addressing the stated harm.

City of West Hollywood, Motion for Summary Judgment GRANTED. No triable issues of material fact.

California Rifle, Cross-Motion for Summary Adjudication re Causes of Action One (1) through four (4) DENIED.

____________________________________
DAVID A. HOROWITZ, JUDGE

This is the order called for by Code of Civil Procedure Section 437c(f) and Code of Civil Procedure Section 437c(g). No other written order is required.

Counsel for City of West Hollywood shall prepare the [Proposed] Judgment, obtain approval as to form and content and submit same to the Court, forthwith, for signature.

Trial Setting Conference of 12/5/96 is advanced and vacated. Any jury fees on deposit are ordered returned to the posting party.