Calguns Foundation v. Co. of San Mateo ( 2013 )

Filed 7/15/13; pub order 8/2/13 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CALGUNS FOUNDATION, INC., et al.,
Plaintiffs and Appellants,
A136092
v.
COUNTY OF SAN MATEO, (San Mateo County
Super. Ct. No. CIV509185)
Defendant and Respondent.
I. INTRODUCTION
In 2011, appellant Calguns Foundation, Inc. (Calguns) and two individual
members (one its Chairman) filed an injunctive and declaratory relief action seeking a
judgment declaring that a San Mateo County ordinance which precludes the possession
and use of guns in the county‟s parks and recreational areas is preempted by state law,
and hence enjoining enforcement of that ordinance. After briefing and argument, the trial
court sustained the County‟s demurrer to the complaint and entered a judgment of
dismissal. We affirm that judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellants‟ complaint, filed on October 20, 2011, sought “Injunctive/Declaratory
Relief” from the trial court and stated that the “policies, procedures and practices of the”
County in administering San Mateo County Ordinance No. 3.68.0801 “is preempted by
State law,” specifically former Penal Code section 12050 (now section 26150.)2
Ordinance No. 3.68.080, the relevant portion of which was originally enacted in
1934, now provides in relevant part: “(o) Firearms and Dangerous Weapons. Except as
provided in subsection (p) and subsection (q), no person shall have in his possession
within any County Park or Recreation area, or on the San Francisco Fish and Game
Refuge, and no person shall fire or discharge, or cause to be fired or discharged, across,
in, or into any portion of any County Park or Recreation area, or on the San Francisco
Fish and Game Refuge, any gun or firearm, spear, bow and arrow, cross bow, slingshot,
air or gas weapon or any other dangerous weapon. [¶] (p) Shooting Ranges. The
discharge or firing of firearms is permitted in areas designated by the Parks and
Recreation Commission, or San Francisco Water Department, specifically for the
purposes of rifle and/or pistol and/or shotgun shooting, and the transportation of such
firearms through the County Park or Recreation area, or on the San Francisco Fish and
Game Refuge, in which said area(s) is/are located is permitted providing said firearms are
unloaded. „Unloaded‟ shall mean that there is no ammunition in either the chamber or
magazine of the gun.”3
As noted above, appellants‟ complaint asserted that the predecessor section to the
current section 261504 (former section 12050, subdivision (a)(1)(A) & (D)) preempted
that ordinance “to the extent [the ordinance] does not provide an exception for persons
licensed to carry a firearm . . . .”
1
All further unspecified references to ordinances are to San Mateo County
ordinances.
2
All further statutory references are to the Penal Code, unless otherwise noted.
3
Subsection (q) of the ordinance provides an exception, not relevant here,
pertaining to the use of certain archery articles, i.e., bow and arrows.
4
The currently applicable statute was misidentified in appellants‟ complaint as
“section 25650.”
That statute provides in relevant part: “(a) When a person applies for a license to
carry a pistol, revolver, or other firearm capable of being concealed upon the person, the
sheriff of a county may issue a license to that person upon proof of all of the following:
[¶] (1) The applicant is of good moral character. [¶] (2) Good cause exists for issuance of
the license. [¶] (3) The applicant is a resident of the county or a city within the county, or
the applicant‟s principal place of employment or business is in the county or a city within
the county and the applicant spends a substantial period of time in that place of
employment or business. [¶] (4) The applicant has completed a course of training as
described in Section 26165.” (§ 26150.)
As noted above, appellants‟ complaint sought a declaration that Ordinance No.
3.68.080, subsections (o) and (p), “is preempted by state law and therefore void” to the
extent “it does not provide an exception for persons licensed to carry a firearm” under
current section 26150. It also sought injunctive relief consistent with that declaratory
relief, relief which “would include but be limited to a moratorium on enforcement of
[Ordinance No. 3.68.080] and/or certain provisions.”
Respondent County of San Mateo (County) filed a demurrer to appellants‟
complaint on December 15, 2011. Appellants filed an opposition to that demurrer on
April 5, 2012,5 and the County its reply on April 17. During the course of that briefing,
appellants changed their position regarding the statute they contended preempted the
relevant County ordinance. As noted, such was originally alleged to be former section
12050, now section 26150, but in their opposition to the County‟s demurrer, appellants
changed their argument, and contended that the preempting statute was Government
Code section 53071 (a statute to be discussed further below).
The trial court heard oral argument on the matter on April 24, and continued the
matter for further briefing. Supplemental briefs were submitted by both parties on,
respectively, May 18 and June 4. On July 10, the trial court entered its order sustaining
5
All further dates noted are in 2012.
County‟s demurrer without leave to amend, and entered judgment for the County.
Appellants filed a timely notice of appeal on July 31.
After the parties completed their briefing on the appeal, the National Rifle
Association (NRA) filed an application to file an amicus curiae brief in support of
appellants‟ position together with such a brief. We granted that application and, as noted
below, have also considered the NRA‟s arguments in opposition to the ruling of the trial
court and in favor of the contention that the San Mateo County ordinance is either
expressly or impliedly preempted by state law.
III. DISCUSSION
Simply stated, the issue before us is whether the trial court was correct in its ruling
that there is no state statute which preempts ordinances such as Ordinance No. 3.68.080,
subsections (o) and (p), or any other similar county ordinances.6 We hold that it was.
As our colleagues in the Third District summed up this issue just a few months
ago: “ „A county or city may make and enforce within its limits all local, police, sanitary,
and other ordinances and regulations not in conflict with general laws.‟ (Cal. Const., art.
XI, § 7.) „The first step in a preemption analysis is to determine whether the local
regulation explicitly conflicts with any provision of state law. [Citation.]‟ [Citation.] . . .
[¶] „The party claiming that general state law preempts a local ordinance has the burden
of demonstrating preemption. [Citation.]‟ (Big Creek Lumber Co. v. County of Santa
Cruz (2006) 38 Cal.4th 1139, 1149 (Big Creek Lumber Co.).) There is a particular
6
In their filings below and their briefs to us, the parties note that very similar
ordinances are found in many California counties and cities. Thus, the County
specifically requested the trial court to take judicial notice of similar ordinances in Santa
Clara and Los Angeles Counties and the City of Daly City, but it declined to do so.
Further, in an appendix to their opening brief in this court, appellants suggest that a ruling
in their favor could well invalidate similar ordinances in over half of California‟s 58
counties.
The County has requested this court to take judicial notice of the Santa Clara
County, Los Angeles County, and Daly City ordinances, as well as the original, i.e.,
1934, ordinance of San Mateo County. Appellants have not opposed this request, and we
hereby grant it.
reluctance to find preemption of a local regulation covering an area of significant local
interest that differs from one locality to another, such as land use regulation. (Big Creek
Lumber Co., supra, 38 Cal.4th at p. 1149.) „The presumption against preemption accords
with our more general understanding that “it is not to be presumed that the [L]egislature
in the enactment of statutes intends to overthrow long-established principles of law unless
such intention is made clearly to appear either by express declaration or by necessary
implication.” [Citations.]‟ (Big Creek Lumber Co., supra, at pp. 1149-1150.).” (Browne
v. County of Tehama (2013) 213 Cal.App.4th 704, 718-719 (Browne).)
In two cases decided the same day in 2002, our Supreme Court applied these
principles to the state regulation of guns and their possession and usage versus similar
regulation by counties. Those cases are Great Western Shows, Inc. v. County of Los
Angeles (2002) 27 Cal.4th 853 (Great Western) and Nordyke v. King (2002) 27 Cal.4th
875 (Nordyke), both six-to one decisions.
In Great Western, the court had been presented with two questions by the Ninth
Circuit Court of Appeals. Those questions and the court‟s answers to them were summed
up in the opening paragraphs of the court‟s opinion:
“1. Does state law regulating the sale of firearms and gun shows preempt a county
ordinance prohibiting gun and ammunition sales on county property?
“2. May a county, consistent with article XI, section 7 of the California
Constitution, regulate the sale of firearms on its property located in an incorporated city
within the borders of the county?
“The first question may be rephrased as follows: Does state law compel counties
to allow their property to be used for gun shows at which guns and ammunition are sold?
We conclude that it does not.
“We further conclude that a county may regulate the sale of firearms on its
property located in a city when, as here, the county ordinance does not conflict with city
law.” (Great Western, supra, 27 Cal.4th at p. 858.)
The court explained its answers to these questions by, first, addressing the issue of
“State Law Preemption in General and as Applied to Gun Control.” (Great Western,
supra, 27 Cal.4th at p. 860.) In so doing, it first quoted from a 1969 decision in which it
had, generally, outlined when, as and if local ordinances enacted by cities or counties
may be preempted by state law, Galvan v. Superior Court (1969) 70 Cal.2d 851(Galvan). It summarized its holding of that case thusly: “A review of the gun law
preemption cases indicates that the Legislature has preempted discrete areas of gun
regulation rather than the entire field of gun control.” (Great Western, supra, at p. 861.)
The court then went on to explain that, in Galvan, it had not found any “preemption by
implication” according to the test explaining that concept enunciated in another of its
earlier cases. “We concluded [in Galvan] that the San Francisco registration law was not
preempted by state law.” (Great Western at pp. 861-862.)7
The court then summarized several appellate court cases that had addressed this
issue, two of which ruled against any preemption8 and one of which found a restrictive
San Francisco firearm ordinance to be preempted.9 It then summarized its key holding
7
In Galvan, a unanimous Supreme Court rejected an attack on a San Francisco
ordinance requiring the registration of all firearms. It ruled that nothing in California
statutes either expressly or by implication preempted such an ordinance. (See Galvan,
supra, 70 Cal.2d at pp. 855-866.) After the decision in Galvan, the Legislature enacted
former Government Code section 9619, now Government Code section 53071, to be
discussed further below.
8
These two decisions, both of which were cited approvingly by the Great Western
court, are California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66
Cal.App.4th 1302 (CRPA) and Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109(Suter), a decision by our colleagues in Division One of this court. Both rejected claims
that state law preempted local ordinances regarding gun control. The CRPA court
specifically “upheld a municipal ordinance banning the sale of so-called Saturday Night
Specials” while the Suter court upheld a “city‟s ability to confine firearms dealerships to
certain commercially zoned areas,” but struck down a “provision regarding firearms
storage covered by the detailed provisions” of former section 12071, subdivision (b)(14).
(Great Western, supra, 27 Cal.4th at p. 863.) Interestingly, neither CRPA nor Suter are
cited much less discussed in either appellants‟ or the NRA‟s briefs to us.
9
This case was Doe v. City and County of San Francisco (1982) 136 Cal.App.3d
509 (Doe), a case holding that a San Francisco City ordinance which directly addressed
“local licensing requirements.” (Great Western, supra, 27 Cal.4th at p. 864). The only
other California appellate case finding state law preemption regarding the regulation of
firearms is a decision of this court, Sippel v. Nelder (1972) 24 Cal.App.3d 173 (Sippel), in
thusly: “In sum, a review of case law and the corresponding development of gun control
statutes in response to that law demonstrates that the Legislature has chosen not to
broadly preempt local control of firearms but has targeted certain specific areas for
preemption.” (Great Western, supra, 27 Cal.4th at p. 864.)
The Great Western court then turned to the narrower issues framed by the Ninth
Circuit, i.e., state law preemption as applied to gun shows and whether a county is
allowed to regulate the sale of firearms on its property located within the borders of the
city. We need not delve into the bases of the court‟s conclusions on these issues but, as
noted by its answers to the Ninth Circuit quoted above, it concluded that state law did not
compel counties to allow their property to be used for gun shows and that a county may
regulate the sale of firearms on its property located within a city when the county
ordinance did not conflict with city law. (Great Western, supra, 27 Cal.4th at pp. 864-
873.)
As noted earlier, the same day it decided Great Western, the court also published
its decision in Nordyke in which it addressed another question posed to it by the Ninth
Circuit, i.e.: “Does state law regulating the possession of firearms and gun shows preempt
a municipal ordinance prohibiting gun possession on county property.” The court again
answered this question in the negative, stating: “We conclude that the municipal
ordinance in question [one enacted in Alameda County], insofar as it concerns gun
shows, is not preempted.” (Nordyke, supra, 27 Cal.4th at p. 880.)
The Nordyke court then briefly summarized its holdings in Great Western
including one which is highly relevant to the issue before us here: “[T]here are
significant local interests in gun regulation that the Legislature has not sought to override
except in specific areas.” (Nordyke, supra, 27 Cal.4th at p. 882.) The court then rejected
which we found that the predecessor section to Government Code section 53071, i.e., the
statute enacted after the Supreme Court‟s decision in Galvan, “effectively eliminated any
doubt as to the legislative intent to occupy the entire field of registration and licensing of
firearms,” and thus invalidated San Francisco ordinances prohibiting the purchase of a
concealable firearm by an unlicensed person. (Sippel, supra, 24 Cal.App.3d at p. 176.)
several arguments put forward by appellants Nordyke, promoters of gun shows, as to why
the Alameda County ordinance at issue was preempted by state law. It concluded by
stating that “whether or not the [Alameda County] Ordinance is partially preempted,
Alameda County has the authority to prohibit the operation of gun shows held on its
property, and, at least to that extent, may ban possession of guns on its property.” (Id. at
p. 885.)10
In their briefs to us, appellants and the NRA contend that the state laws that effect
a preemption of the San Mateo County ordinance are sections 26150 et seq. and
Government Code section 53071.11 However, in support of its preemption argument, the
NRA relies significantly more than appellants on sections 26150 and the succeeding
statutes, which it characterizes as the “Carry License” laws.
Section 26150 states in pertinent part: “(a) When a person applies for a license to
carry a pistol, revolver, or other firearm capable of being concealed upon the person, the
sheriff of a county may issue a license to that person upon proof of all of the following:
[¶] (1) The applicant is of good moral character. [¶] (2) Good cause exists for issuance of
the license. [¶] (3) The applicant is a resident of the county or a city within the county, or
the applicant's principal place of employment or business is in the county or a city within
the county and the applicant spends a substantial period of time in that place of
10
The holdings of Great Western, Nordyke, CRPA, and Suter are generally
consistent with the holdings of other state appellate courts. (See Annot., Validity,
Construction, and Application of Municipal Restrictions on Location or Operations of
Facilities for Sale or Use of Firearms (2006) 19 A.L.R.6th 335, §§ 18 & 19.)
Additionally, the Ninth Circuit Court of Appeals has upheld the same San Mateo County
ordinance considered in Nordyke against challenges to it based on various federal
constitutional grounds. (See Nordyke v. King (9th Cir. 2003) 319 F.3d 1185 and Nordyke
v. King (9th Cir. 2011) 644 F.3d 776.)
11
Another statute cited and discussed by appellants—and, albeit very briefly, by
the County—is the “Gun-Free School Zone Act,” found at section 626.9, i.e., in a chapter
of the Penal Code relating to “Schools.” This statute‟s prohibitions—and exceptions
thereto—regarding the possession of guns on school grounds has little if any relevance to
this case.
employment or business. [¶] (4) The applicant has completed a course of training as
described in Section 26165.”
Following this section is a statute giving essentially the same permission to
municipal authorities (section 26155) and others relevant to the length of the validity of
the license and the maintenance of records relating thereto (sections 26220 and 26225).
Especially important is section 26200, subdivision (a), which provides:
“A license issued pursuant to this article may include any reasonable restrictions
or conditions that the issuing authority deems warranted, including restrictions as to the
time, place, manner, and circumstances under which the licensee may carry a pistol,
revolver, or other firearm capable of being concealed upon the person.” (§ 26200, subd.
(a), italics added.)12
In its initial argument regarding preemption, the NRA contends that there “is no
exception in the challenged ordinance for persons who have been issued a license to carry
a concealed firearm . . . .” It continues: “[W]hile a local government might be allowed to
require Carry License holders to comply with rules when carrying a firearm in its parks,
the County may not prohibit Appellant from carrying a firearm pursuant to his state-
issued license in local areas altogether.”
We disagree, for several reasons. First of all, the statute mainly relied on by the
NRA, section 26150, specifically states that the county sheriff “may” issue a license to an
applicant. Further, section 26200 makes very clear that an issued license “may include
any reasonable restrictions or conditions” regarding when and where a licensee may
carry his weapon. Under these sections, the sheriff clearly has “ „extremely broad
discretion‟ . . . concerning the issuance of concealed weapons licenses . . . .” (Gifford v.
City of Los Angeles (2001) 88 Cal.App.4th 801, 805.) That being the case, it logically
follows that the employer and supervisor of the sheriff, i.e., the County Board of
12
Section 26200, subdivision (b), requires that any imposed restrictions “shall be
indicated on any license issued.”
Supervisors, also has the authority to provide, via its legislative process, for exceptions
and conditions to when and where an issued “Carry License” may be validly used.
But the NRA argues that “[i]f local governments, rather than issuing sheriffs or
chiefs of police, are permitted to enact further restrictions on Carry Licenses, visiting
Carry License holders will be confronted with a patchwork quilt of different firearm
restrictions each time they enter another jurisdiction to enjoy the county parks. . . . To
prevent widespread confusion, any time, place and manner restriction must be on the face
of the issued Carry License, Penal Code section 26200, subdivision (b), not simply within
the code books of the various cities and counties. That way, each licensee knows
precisely which restrictions affect his or her Carry License.”
Regarding this preemption argument, the Nordyke court addressed the issue of
whether section 26150 (then section 12050) preempted the Alameda County ordinance at
issue in that case. It specifically held that it did not, stating: “The dissent contends that
Penal Code sections 12031, 12050, and 12051 conflict with the ordinance, apparently
based on the presumption that these and other state statutes preempt the field of gun
possession to such an extent that they impliedly prohibit counties from regulating gun
possession on their own property. As explained more fully in Great Western, however,
the Legislature has not indicated an intent to so broadly preempt the field of gun
regulation. (See also Pen. Code, § 12050, subd. (b) [gun licensing subject to reasonable
local time, place, and manner restrictions].).” (Nordyke, supra, 27 Cal.4th at p. 883, fn.
1.) 13
We believe the holdings, and the specific statements explaining those holdings, in
both Great Western and Nordyke defeat appellants‟ and the NRA‟s preemption argument
13
The NRA dismisses this statement from Nordyke as “little more than footnoted
dicta.” We disagree; via that footnote, the majority of the court was responding to a very
specific contention of dissenting Justice Brown as to the preemptive effect of (along with
other statutes) former section 12050 (current section 26150). Its response was clear and
two-fold: (1) the Legislature‟s lack of intent to “broadly preempt” county gun regulation
and (2) the specific language of current section 26200 (former section 12050, subd. (b)),
regarding “reasonable time, place and manner restrictions” on gun possession and use.
insofar as such is based on former section 12050, subdivision (a) (current section 26150).
First of all, in its amicus brief to us, the NRA commences its arguments in favor of
preemption by rather notably not citing, much less discussing or analyzing, the holdings
in Great Western or Nordyke and, instead, basing their argument on cases involving state
versus local legislation involving totally different subject matters, e.g., the forfeiture of
vehicles used to commit criminal acts, the regulation of aerosol paint containers, and the
restrictions which might be imposed on the issuance of contractors‟ licenses. (See,
respectively, O’Connell v. City of Stockton (2007) 41 Cal.4th 1061; Sherwin-Williams
Co. v. City of Los Angeles (1993) 4 Cal.4th 893, and other cases cited by the NRA.) But,
as the statements quoted above from Galvan, Great Western and Nordyke make clear,
that court has determined that “the Legislature has chosen not to broadly preempt local
control of firearms but has targeted certain specific areas for preemption” and that “there
are significant local interests in gun regulation that the Legislature has not sought to
override except in specific areas.” (Respectively, Great Western, supra, 27 Cal.4th at p.
864 and Nordyke, supra, 27 Cal.4th at p. 882.)14
The NRA‟s principal argument in favor of preemption is that “California law
establishes a process in Penal Code sections 26150 through 26225 for obtaining a Carry
License from the sheriff or chief of police of one‟s respective city, city and county, or
county. This broad and comprehensive Carry Licensing scheme . . . is strong evidence
that the state intended to occupy the field of Carry License regulation, foreclosing future
local action.” As a result, the NRA concludes, “the state has impliedly occupied the
entire field of Carry License issuing and regulation and County Ordinance section
3.68.080 is thus preempted by state law.”
We disagree, and do so for the reasons stated in Nordyke, where the court
explicitly rejected the contention that these same statutes “preempt the field of gun
possession to such an extent that they impliedly prohibit counties from regulating gun
14
The NRA does not cite or discuss either of these cases until the final pages of its
amicus brief, where it attempts to distinguish them as applicable entirely to “gun shows”
and similar “commercial activities” relating to guns.
possession on their own property. As explained more fully in Great Western, however,
the Legislature has not indicated an intent to so broadly preempt the field of gun
regulation.” (Nordyke, supra, 27 Cal.4th at p. 883, fn. 1; see also § 26200, subd. (a).)
Additionally, much earlier than its holdings in Great Western and Nordyke, our
Supreme Court flatly rejected the argument that the NRA makes in its brief to us, i.e., that
the substantial number of “Carry License” state laws impliedly preempts any and all
additional regulation by California counties or cities. In its decision in Galvan, a
unanimous court stated: “The fact that there are numerous statutes dealing with guns or
other weapons does not by itself show that the subject of gun or weapons control has
been completely covered so as to make the matter one of exclusive state concern. [¶] To
approach the issue of preemption as a quantitative problem provides no guidance in
determining whether the Legislature intends that local units shall not legislate concerning
a particular subject, and further confounds a meaningful solution to preemption problems
by offering a superficially attractive rule of preemption that requires only a statutory
nosecount.” (Galvan, supra, 70 Cal.2d at p. 861, fn. omitted.)
As noted above, the Galvan decision led to the enactment of the predecessor
statute to what is now Government Code section 53071. In their response to the County‟s
demurrer and supporting memorandum, appellants shifted their position in the trial court
and argued that, although never cited in their complaint, that law was now the preempting
statute. That statute reads as follows:
“It is the intention of the Legislature to occupy the whole field of regulation of the
registration or licensing of commercially manufactured firearms as encompassed by the
provisions of the Penal Code, and such provisions shall be exclusive of all local
regulations, relating to registration or licensing of commercially manufactured firearms,
by any political subdivision as defined in Section 1721 of the Labor Code.” (Gov. Code
§ 53071.)
Appellants specifically contend that this statute preempts Ordinance No. 3.68.080
under the holding of Division Four of this court in Fiscal v. City and County of San
Francisco (2008) 158 Cal.App.4th 895 (Fiscal). Amicus NRA agrees with this
contention.
In Fiscal, the court affirmed a decision of the San Francisco Superior Court which
had ruled that a San Francisco ordinance which totally prohibited the possession and sale
of handguns within the city was preempted by state law. Its opinion described the
ordinance at issue thusly: “With narrow exceptions, Section 3 of Prop. H bans the
possession of handguns by San Francisco residents, including handgun possession within
the sanctity of homes, businesses, and private property.” (Fiscal, supra, 158 Cal.App.4th
at p. 906.) On the basis of former section 12026, subdivision (b),15 and Government
Code section 53071—principally the latter—Division Four ruled that this ordinance was
preempted. (Fiscal at pp. 906-919.)
However, the Fiscal court made clear that it was so ruling because of the extreme
breadth of the ordinance being challenged. It first considered section 3 of the ordinance,
which addressed the possession of handguns.16 As to that prohibition, it stated: “The
broad language of Government Code section 53071, prohibiting „all local regulations,
relating to registration or licensing‟ of firearms, indicates that the state has an interest in
statewide uniformity of handgun licensing. (Italics added.) In finding Government Code
section 53071 expressly preempted Prop. H, the trial court pointed out that the ordinance
had the practical effect of „revoking or otherwise invalidating existing state licenses,‟
including those permitting the possession of handguns. The trial court went on to
conclude that „[a] local regulation that invalidates existing licenses, but does not
15
Now section 25605, subdivision (b). This statute provides one (of several)
exceptions to section 25400‟s prohibition against “carrying a concealed firearm.”
(§ 25400, subd. (a).) Specifically, it provides that a permit or license is not necessary
regarding anyone who purchases, owns, possesses, etc., “a handgun within the citizen‟s
or legal resident‟s place of residence, place of business, or on private property owned or
lawfully possessed by the citizen or legal resident.” (§ 25605, subd. (b).) Neither
appellants nor the NRA cite, must less rely upon, this statute in their briefs to us.
16
In later sections of its decision, the Fiscal court addressed other issues presented
by the San Francisco ordinance (but not involved here), namely the sale, manufacture,
and distribution of handguns. (See Fiscal, supra, 158 Cal.App.4th at pp. 911-918.)
affirmatively create new licensing schemes, “relates” to the state‟s regulatory scheme of
licensing firearms‟ and, consequently, is expressly preempted by Government Code
section 53071. We agree. [¶] While the City emphatically argues that Prop. H is a proper
response to crime because it is aimed at criminals who use handguns in the commission
of their unlawful acts, the City‟s arguments fail to acknowledge that the ordinance will
affect more than just criminals. It will also affect every City resident who has not,
through some demonstration of personal disability or irresponsibility, lost his or her right
to possess a handgun. Although a precise assessment of the impact of this ordinance is
difficult to gauge because the ordinance has never been enforced, at a minimum, section
3 of Prop. H would invalidate all licenses possessed by City residents to carry a
concealed weapon issued under Penal Code section 12050, and it would prohibit the
possession of handguns by City residents even if those residents are expressly authorized
by state law to possess handguns for self-defense or other lawful purposes. [¶] If the
preemption doctrine means anything, it means that a local entity may not pass an
ordinance, the effect of which is to completely frustrate a broad, evolutional statutory
regime enacted by the Legislature. Section 3 of Prop. H stands as an obstruction to the
accomplishment and execution of the full purposes and objectives of the legislative
scheme regulating handgun possession in this state. For that further reason, it is
preempted.” (Fiscal, supra, 158 Cal.App.4th at pp. 910-911.)
Later in its opinion, after dealing with issues not relevant here, i.e., the ordinance‟s
ban on gun sales, etc., the Fiscal court concluded: “We, therefore, affirm the trial court's
conclusion that Prop. H is invalid as preempted by state law. As the City repeatedly
emphasizes, the statutes governing firearms have been „carefully worded to avoid any
broad preemptive effect.‟ [Citation.] Nevertheless, the sheer breadth of Prop. H makes it
vulnerable to a preemption challenge. As already noted, Section 2 of Prop. H bans the
„sale, manufacture, transfer or distribution‟ of ammunition and firearms in the City,
without exception. (Italics added.) With narrow exceptions, Section 3 bans the
possession of handguns by San Francisco residents, including possession within the
sanctity of homes, businesses, and private property. (Italics added.) [¶] We wish to
stress that the goal of any local authority wishing to legislate in the area of gun control
should be to accommodate the local interest with the least possible interference with state
law. As we have seen, while courts have tolerated subtle local encroachment into the field
of firearms regulation (CRPA, Great Western, Nordyke), laws which significantly intrude
upon the state prerogative have been uniformly struck down as preempted. (Doe,
Sippel.)” (Fiscal, supra, 158 Cal.App.4th at p. 919, fn. omitted.) 17
In so ruling, however—and as both appellants and amicus NRA fail to
acknowledge—the Fiscal court made clear that it well understood the rulings made by
our Supreme Court in Great Western and Nordyke, and carefully explained why those
rulings did not apply to the facts before it; it stated: “These cases are palpably
distinguishable from the case before us. In deciding Great Western and Nordyke, our
Supreme Court was careful to confine its preemption analysis to the question of whether
state law authorizing gun shows necessarily compelled counties to allow their property to
be used for this purpose. [Citations.] The court found that there was acceptable interplay
between the local government‟s exercise of its power to control the use of its property
and the state government‟s regulation of gun shows to permit local governments to ban
the sale of firearms and ammunition at gun shows on county-owned public property.
[Citations.] Neither case can be properly read to extend that limited preemption inquiry
to a case such as this one involving a local government‟s attempt to enact an absolute and
total ban of firearm and ammunition sales on all property, public and private, within its
17
The NRA‟s amicus brief quotes these sentences from Division Four‟s opinion in
Fiscal, and then adds this final sentence from that opinion: “Therefore, when it comes to
regulating firearms, local governments are well advised to tread lightly.” (Italics omitted,
see Fiscal, supra, 158 Cal.App.4th at p. 919, citing Gorovitz, California Dreamin’: The
Myth of State Preemption of Local Firearm Regulation (1996) 30 U.S.F. L.Rev. 395.) If,
by this citation, the NRA is suggesting that the cited 1996 law review article supports its
preemption argument, it is quite wrong; although written many years before most of the
authorities discussed above were decided, the article makes quite the contrary contention.
(See especially, 30 U.S.F. L.Rev. at pp. 414-426.) Further, and as noted above, recent
secondary authority establishes that, nationally, local efforts at firearm regulation have
generally been held not to be preempted by state statutes. (See 19 A.L.R.6th 335, §§ 18
& 19.)
geographic jurisdiction. [¶] In conclusion, we find the situations presented in CRPA,
supra, 66 Cal.App.4th 1302, Great Western, supra, 27 Cal.4th 853, and Nordyke, supra,27 Cal.4th 875, are so different from those presented in this case as to make them
inapposite here.” (Fiscal, supra, 158 Cal.App.4th at pp. 917-918.)
For exactly the reasons articulated in Fiscal, its ruling and the statute it (and
appellants here) principally relied upon, Government Code section 53071, do not govern
in this case. To the contrary, the rulings of our Supreme Court in Great Western and
Nordyke and the rulings of our sister courts in CRPA and Suter do. This is so for the
following several reasons:
First, and as our Supreme Court made clear in Big Creek Lumber, a party asserting
that a “ „state law preempts a local ordinance has the burden of demonstrating
preemption. [Citation.]‟ There is a particular reluctance to find preemption of a local
regulation covering an area of significant local interest that differs from one locality to
another, such as land use regulation.” (Browne, supra, 213 Cal.App.4th at p. 719, italics
added; see also Great Western, supra, 27 Cal.4th at pp. 866-867, Galvan, supra, 70
Cal.2d at pp. 862-866; Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 704-709.)
Appellants have not come close to satisfying that burden here, especially since we are
dealing with a county ordinance that does, indeed, deal with “land use regulation.”
(Brown at p. 719.)
Second, as our colleagues in Division One made clear in Suter: “Whether the
state law has preempted Lafayette‟s local laws depends on whether there is legislation
prohibiting local governments from requiring local licenses or permits from persons
wishing to sell, lease or transfer firearms, or an expression by the Legislature of its intent
to fully occupy that field.” (Suter, supra, 57 Cal.App.4th at p. 1119.) This statement was
followed by a highly relevant footnote which reads: “It could be, and has been, argued
that Government Code section 53071 is itself an expression of intent to occupy the whole
field of firearm regulation. However, the cases uniformly construe state regulation of
firearms narrowly, finding no preemption of areas not specifically addressed by state law.
(E.g., Galvan[, supra,] 70 Cal.2d 851 [legislation prohibiting licensing of firearms does
not preclude local government from registering firearms]; Olsen v. McGillicuddy (1971)
15 Cal.App.3d 897 [(Olsen)] [legislation preempting area of licensing and registration of
firearms does not preempt local government from regulating the use of firearms]; Doe[,
supra,] 136 Cal.App.3d [at p.] 516 [legislative response to case law suggests „that the
Legislature has not prevented local governmental bodies from regulating all aspects of
the possession of firearms.‟].)” (Suter, supra, 57 Cal.App.4th at p. 1120, fn. 2.) A few
years later, citing this footnote and, of course, the core holding of Suter, a division of the
Second District held to the same effect in a case involving a city ordinance banning the
sale of “Saturday Night Specials.” (See CRPA, supra, 66 Cal.App.4th at pp. 1311-1321.)
Third, the scope of the San Mateo County ordinance at issue here is very narrow:
the carrying, firing, or discharge of “any gun or firearm . . . or any other dangerous
weapon” within “any County Park or Recreation area, or the San Francisco Fish and
Game Refuge” except for areas “designated by the Parks and Recreation Commission, or
the San Francisco Water Department . . . for the purposes of rifle and/or pistol and/or
shotgun shooting” is prohibited.
This ordinance clearly bears no resemblance to the broad San Francisco ordinance
struck down by the court in Fiscal for the obvious reason, among others, that it pertains
only to specific areas within the county, and areas patently subject to the governance of
the County‟s Board of Supervisors, i.e., its parks and recreation areas. Such is exactly the
sort of narrow regulation upheld against a claim of state law preemption in Suter. (See
Suter, supra, 57 Cal.App.4th at pp. 1118-1122.) As our Supreme Court made clear in
Nordyke: “Alameda County has the authority to prohibit the operation of gun shows on
its property. . . .” (Nordyke, supra, 27 Cal.4th at p. 885.) If that is true, then clearly San
Mateo County has the authority to prohibit the use of guns on specific portions of its
property, too, i.e., its designated parks and recreation areas.18
18
For this—among others noted above—we reject appellants‟ contention that the
ordinance they are challenging was a “dumb idea.”
Fourth and finally, the statute appellants rely upon in their preemption argument
simply does not apply to the issue of where gun owners may carry and use their weapons.
Government Code section 53071, quoted in full above, regulates only “the registration or
licensing of commercially manufactured firearms.” (Gov. Code, § 53071.) In its single
sentence, it says nothing at all about anything other than that narrow subject.
Indeed, precisely this was the basis for the trial court‟s ruling granting the
County‟s demurrer; in that ruling, the court (Judge V. Raymond Swope, III) stated: “The
language of the statute [Government Code section 53071] indicates the legislature intends
to occupy the field of regulation of the registration or licensing of commercially
manufactured firearms. Nothing on the face of the subject ordinance purports to regulate
registration or licensing of any firearm. It merely prohibits the possession of firearms on
specified county property. Plaintiffs‟ reliance on Fiscal is misplaced as it is factually
distinct. In that case, the finding of preemption was based on the fact that the ordinance
imposed a total ban on the possession of handguns within the City and County of San
Francisco. As a result, it had the practical effect of revoking or invalidating existing
licenses. In this case the ordinance does not have the effect of invalidating any licenses.
It merely regulates the possession or use of firearms on county property.”
We agree with the trial court. Under the scope of firearm-regulation preemption
articulated by our Supreme Court‟s holdings in Great Western and Nordyke, Government
Code section 53071 cannot be construed as precluding a California county from
regulating the usage of firearms in its parks and recreation areas, as the County of San
Mateo has opted to do by the challenged ordinance.
Making exactly this point is an earlier case cited by the Suter court, Olsen , supra,
15 Cal.App.3d 897. In that case, Division Three of this court reversed a decision of the
Sonoma County Superior Court which had held that a Petaluma ordinance restricting the
rights of parents or guardians to give minors, including their children, guns (including, as
in that case, BB-guns) and allowing them to use them was preempted by former
Government Code section 9619. In holding that that section—now Government Code
section 53071—did not preempt the application of the Petaluma ordinance, the Olsen
court cited our Supreme Court‟s holding of two years earlier in Galvan, and then stated:
“Following Galvan, the Legislature in 1969 enacted Government Code section 9619 and
made clear its intent „to occupy the whole field of regulation of the registration or
licensing of . . . firearms. . . .‟ Despite the opportunity to include an expression of intent
to occupy the entire field of firearms, the legislative intent was limited to registration and
licensing. We infer from this limitation that the Legislature did not intend to exclude
municipalities from enacting further legislation concerning the use of firearms.” (Olsen,
supra, 15 Cal.App.3d at p. 902.)
Again, this statement was made after and because of the enactment of and reliance
by the defendants on the predecessor statute to Government Code section 53071. And,
significantly, in its decision in Great Western our Supreme Court specifically quoted that
statement in Olsen. (Great Western, supra, 27 Cal.4th at pp. 862-863; see also, explicitly
so holding, CRPA, supra, 66 Cal.App.4th at p. 1313.)
To put the matter simply, the San Mateo ordinance at issue in this case has nothing
at all to do with “the registration and licensing of firearms” and hence cannot be
considered preempted by Government Code section 53071.
Finally, appellants contend that another San Mateo County ordinance, No. 3.53
enacted in 2002, constitutes an “implied repeal” of Ordinance No. 3.63.080, subdivision
(o), quoted above, and last amended in 1998.19 The 2002 ordinance provides, in its first
section: “Every person who brings onto or possesses on County property a firearm,
loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.” (Ord. No.
§ 3.53.010.) The ordinance then goes on to broadly define “County property” to include
„real property, including any buildings thereon, owned or leased by the County of San
Mateo . . . and in the County‟s possession,” but then specifies eight (8) exceptions from
that prohibition, including any “person holding a valid license to carry a firearm issued
pursuant to Penal Code section 12050 [now section 26150].” (Ord. Nos. § 3.53.020 &
19
Amicus NRA states in its brief that “it takes no position on the issue of implicit
repeal.”
3.53.030(c).) This exception should, appellants contend, also apply to Ordinance No.
3.63.080, subsection (o), or be considered an “implied repeal” of the latter ordinance.
We reject this argument for several reasons. First of all, it was never raised in the
trial court, notwithstanding the fact that their complaint was filed almost a decade after
Ordinance No. 3.53 was enacted. “As a general rule, theories not raised in the trial court
cannot be asserted for the first time on appeal; appealing parties must adhere to the theory
(or theories) on which their cases were tried. This rule is based on fairness—it would be
unfair, both to the trial court and the opposing litigants, to permit a change of theory on
appeal; and it also reflects principles of estoppel and waiver.” (Eisenberg et al., Civil
Appeals and Writs (The Rutter Group 2011) ¶ 8:229; see also Nelson v. Legacy Partners,
Inc. (2012) 207 Cal.App.4th 1115, 1135-1136.)
But even on the merits, this argument has no weight. The broader prohibition of
Ordinance No. 3.53 excepts persons having a valid license to carry firearms, an exception
not found in Ordinance No. 3.63.080. But, as noted above, the latter section deals solely
with County parks and recreation areas. The Board of Supervisors could well have
concluded that a stricter standard of gun control is warranted in such areas and, under the
law, they are free to enact exceptions or modifications to broader regulations when such
is deemed appropriate. (See, e.g., Gray v. County of Madera (2008) 167 Cal.App.4th
1099, 1129-1130; Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1509-
1511.) In the case of state statutes, “a more specific statute controls over a more general
one” (Lake v. Reed (1997) 16 Cal.4th 448, 464), and a similar rule of law should, clearly,
apply to county regulations.
IV. DISPOSITION
The judgment of dismissal is affirmed.
_________________________
Haerle, Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
Filed 8/2/13
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CALGUNS FOUNDATION, INC., et al.,
Plaintiffs and Appellants,
A136092
v.
COUNTY OF SAN MATEO, (San Mateo County
Super. Ct. No. CIV509185)
Defendant and Respondent.
BY THE COURT:
The opinion in the above-entitled matter filed on July 15, 2013, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
Dated: _______________________ ________________________________
Haerle, Acting P.J.
Trial Court: Superior Court of San Mateo County
Trial Judge: Hon. V. Raymond Swope, III
Attorney for Plaintiffs and Appellants Donald E. J. Kilmer, Jr.
Law Offices of Donald Kilmer, A.P.C.
Attorneys for Amicus Curiae in support C. D. Michel
of Plaintiffs and Appellants Glenn S. McRoberts
Anna M. Barvir
Michel & Associates
Attorneys for Defendant and Respondent John C. Beirs, County Counsel
David A. Silberman, Deputy
23