previous decision from 1982
Cite as Doe v. San Francisco, 136 Cal.App.3d 509 (1982)
Jane Doe, et al., Petitioners,
v.
City and County of San Francisco, et al., Respondents.
George Soracco, et al., Petitioners,
v.
City and County of San Francisco, et al., Respondents.
Nos. A018441, A018445.
Court of Appeal, First District, Division 3.
Oct. 13, 1982.
Hearing Denied Jan. 27, 1983.
Robert A. Thompson, Annamary E. Cannon, Pettit & Martin,
Thomas E. Horn, Jeremiah F. Hallisey, Don B. Kates, Jr., O'Brien &
Hallisey, P. C., San Francisco, for petitioners Jane Doe, et al.
Pillsbury, Madison & Sutro, Noble K. Gregory, Vaughn R.
Walker, Robert A. Gordon, San Francisco, for petitioners George
Soracco, et al.
Natalie E. West, City Atty., of the City of Berkeley John
Belcher, Asst. Atty., Berkeley, for amici curiae City of Berkeley
and other California cities.
George Agnost, City Atty., Buck E. Delventhal, Thomas J. Owen,
Deputy City Attys., William F. McCabe, Jonathan R..Bass, Jacobs,
Sills & Coblentz, Dirk M. Schenkkan, Brian E. Gray, Howard, Rice,
Nemerovski, Canady, Robertson & Falk, P. C., San Francisco, for
respondents.
WHITE, Presiding Justice:
These two petitions challenge the validity of the San
Francisco Handgun Ordinance [or "Handgun Ordinance"], adopted June
28, 1982, and effective July 28, 1982. The main contention is that
the State of California has passed laws (Gov.Code, section 53071
and Pen.Code, section 12026) which preempt the field. Handgun
control is a volatile issue of great public importance, invoking
complex policy considerations. While we are sensitive to the
political and social overtones of a case such as this, we are here
concerned only with the narrow legal question of whether the state
Constitution and state statutes permit San Francisco to enact such
an ordinance. We conclude that they do not.
The ordinance in question provides that "t shall be
unlawful for any person to possess, within the City and County of
San Francisco, any handgun" and that one violating the ordinance
"shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be-punished by imprisonment in the county jail for not less
than thirty (30) days nor more than six (6) months." Though the law
became effective July 28, 1982, it is not being enforced yet
because it provides a 90-day grace period to permit residents to
turn in to the police or otherwise relinquish their handguns. A
number of persons are exempt from the ordinance, including peace
officers, members of the military while engaged in the performance
of their duties, persons using licensed target ranges, certain
licensed collectors, certain licensed guards and special peace
officers, and persons engaged in business and possessing
handguns within fixed places of business.
The ordinance also exempts "[p]ersons who are authorized to
carry handguns pursuant to Article 3 (commencing with Section
12050) of Chapter 1 of Title 2 of Part 4 of the Penal Code, and
persons who are authorized to sell handguns pursuant to Penal Code
section 12070." This particular exemption plays an important role
in the arguments of the parties and will be discussed in detail
below.
Several different principles are involved in the law of
preemption. The two pertinent provisions of the California
Constitution are article XI, section 7: "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"
and article XI, section 5, subdivision (a): "It shall be competent
in any city charter to provide that the city governed thereunder
may make and enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and limitations
provided in their several charters and in respect to other matters
they shall be subject to general laws...."
If a matter is considered a "municipal affair," a charter city
may regulate the subject even if its regulation conflicts with
state law (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61-63,
81.Cal.Rptr. 465, 460 P.2d 137; Professional Fire Fighters, Inc. v.
City of Los Angeles (1963) 60 Cal.2d 276, 292-293, 32 Cal.Rptr.
830, 384 P.2d 158; Long Beach Police Officers Assn. v. City of Long
Beach (1976) 61 Cal.App.Sd 364, 371, 132 Cal.Rptr. 348). However,
in an area of statewide concern a local legislative body may act
only if the state has not revealed an intention to occupy the field
to the exclusion of all local regulation. (See Galvan v. Superior
Court (1969) 70 Cal.2d 851, 859, 76 Cal.Rptr. 642, 452 P.2d-930,
and authorities cited therein.) In an area of statewide concern
where the state has not occupied the field, local legislation can
be sustained only when it does not conflict with general law. "Any
local law that directly conflicts with state legislation is void."
(Galvan v. Superior Court, supra, 70 Cal.2d at p. 856, 76 Cal.Rptr.
642, 452 P.2d 930.)
Municipal Affair
The City and County of San Francisco (hereafter sometimes City
and County) concedes that "it cannot be argued that the regulation
of firearms is a municipal affair within the meaning of Article XI,
Section 5, subdivision (a)," of the state Constitution. We agree.
Clearly, the Handgun Ordinance, which prohibits possession by both
residents and those passing through San Francisco, legislates in an
area of statewide concern. (See Professional Fire Fighters, Inc. v.
City of Los Angeles, supra, 60 Cal.2d at pp. 293-294, 32 Cal.Rptr.
830, 384 P.2d 158, and cases cited therein; Long Beach Police
Officers Assn. v. City of Long Beach, supra, 61 Cal.App.3d at p.
371, 132 Cal.Rptr. 348.) It affects not just persons living in San
Francisco, but transients passing through and residents of nearby
cities where San Francisco's handguns might be sold.
Preemption Generally
Both petitioners and respondents agree that the state
Legislature has preempted the fields of registration and licensing
of handguns and their users. The main area of dispute concerns
whether this preemption also applies to individual possession of
handguns. The arguments are best understood through examination of
the decision in Galvan v. Superior Court, supra, 70 Cal.2d 851, 76
Cal.Rptr. 642, 452 P.2d 930.
In Galvan, the Supreme Court considered a petition for writ of
mandate challenging a 1968 San Francisco gun law. The law provided
for registration of all firearms within San Francisco, with certain
exceptions. Galvan argued, inter alia, that the law was void
because it was in direct conflict with Penal Code section 12026 and
because, of preemption by implication. Penal Code section 12026 is
a part of the Dangerous Weapons' Control Act, originally enacted in
1917. (Stats. 1917, ch. 145, section 3, p. 221.) The law prohibits
the carrying of handguns concealed within a vehicle or upon a
person without a license. (Pen.Code, section 12025.) It establishes
a procedure for seeking a permit from the sheriff of a county or
police chief of a city upon a showing of good moral character and
good cause for the issuance of a permit. (Pen.Code, section 12050.)
The license so obtained "may include any reasonable restrictions or
conditions which the issuing authority deems warranted; including
restrictions as to the time, place, and circumstances under which
the person may carry a concealed firearm." (Pen.Code, section
12050, subd. (b).)
Penal Code section 12026 itself provides: "Section 12025 shall
not be construed to prohibit any citizen of the United States over
the age of 18 years who resides or is temporarily within this
State, and who is not within the excepted classes prescribed by
Section 12021 [related to felons and narcotics addicts], from
owning, possessing, or keeping within his place of residence or
place of business any pistol, revolver, or other firearm capable of
being concealed upon the person, and no permit or license to
purchase, own, possess, or keep any such firearm at his place of
residence or place of business shall be required of him." (Emphasis
added.)
In Galvan, the court concluded that section 12026 prohibited
only licenses or permits, not registration requirements. The court
drew a distinction between licensing, which regulates activity
based on a determination of the personal qualifications of the
licensee, and registration, which catalogs all persons with respect
to an activity or all things that fall within certain
classifications. (70 Cal.2d at p. 856, 76 Cal.Rptr. 642, 452 P.2d
930.) "The Legislature, then, recognized precisely the distinction
between 'registration' and 'licensing.' The Legislature intended
that the right to possess a weapon at certain places could not be
circumscribed by imposing any requirements, such as 'good moral
character' (except the exclusions in Pen.Code, section 12025) upon
the person possessing the weapon.... The Legislature used
'register' differently from 'license' or 'permit,' yet included in
Penal Code section 12026 only the language 'no permit or license.'"
(70 Cal.2d at p. 858,76 Cal.Rptr. 642, 452 P.2d 930.)
Following the Galvan decision the Legislature added Government
Code section 9619 (Stats. 1969, ch. 1428, section 1) renumbered and
amended in 1971 (Stats. 1971, ch. 438, section 95) to its present
form as Government Code section 53071: "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." Thus, in reaction to Galvan the Legislature expressly
preempted the area of registration which San Francisco had
attempted to enter.
The City and County of San Francisco argues that neither
Government Code section 53071 nor Penal Code section 12026 bars it
from enacting its handgun ordinance. Concerning Government Code
section 53071, the City and County argues that it provides only
that the state has preempted the areas of registration and
licensing and says nothing about a local government's ability to
regulate possession. The City and County notes that nothing in its
ordinance establishes a permit system; the ordinance imposes an
outright ban on possession and merely exempts from its ban those
who have received permits under state law. The City and County
contends that an outright ban on possession is not a regulation
related to registration or licensing. Concerning Penal Code
section 12026, the City and County points to the introductory
words-"'Section 12025 shall not be construed'"-and argues that
section 12026 is intended merely to give advice concerning the
construction of section 12025, not to create a right to possess a
firearm or to preclude local governments from regulating
possession. The City and County asserts that section 12026 merely
prescribes a limitation upon the scope of the state's regulation of
possession in the home or place of business.
Express Preemption by Government Code Section 53071
In its argument that Government Code section 53071 does not
preempt regulation of "possession" of handguns, the City and County
relies upon the decisions in People v. Commons (1944) 64 Cal.App.2d
Supp. 925, 148 P.2d 724; People v. Jenkins (1962) 207 Cal.App.2d
Supp. 904, 24 Cal.Rptr. 410; and Olsen v. McGillicuddy (1971) 15
Cal.App.3d 897, 93 Cal.Rptr. 530. Commons and Jenkins both involved
a Los Angeles ordinance which made it illegal to possess a
dangerous or deadly weapon in an automobile, whether or not the
weapon was concealed and whether the weapon was possessed by the
vehicle's owner or by a guest. The defendants argued that the Los
Angeles ordinance was preempted by Penal Code section 12025's
prohibition against possession of a concealed firearm within a
vehicle under the possessor's control. The courts concluded that
though there was some overlap between the state and local laws, the
overlap was not fatal to the local ordinance. To the extent the
local law duplicated state law, it could be ignored. Where it went
beyond state regulation it was not preempted because it neither
contradicted state law nor regulated in an area where the state had
left no room for local regulation. (See Commons, supra, 64
Cal.App.2d Supp. at pp. 929-935, 148 P.2d 724; adopted in Jenkins,
supra, 207 Cal.App.2d Supp. at pp. 906-907, 24 Cal.Rptr. 410.)
The City and County argues that the decisions in Commons and
Jenkins demonstrate that the state Legislature has not preempted
local governments from regulating firearm possession. Olsen v.
McGillicuddy, supra, 15 Cal.App.3d 897, 93 Cal. Rptr. 530, is cited
as a post-Galvan reaffirmance of that fact. In Olsen, a civil
complaint alleged injuries caused by a BB gun owned by the adult
defendants and permissibly used by their minor son. The trial court
excluded evidence of violation of a Petaluma ordinance banning
possession and use of BB guns on the ground that the ordinance was
preempted by state law. On appeal, this division concluded that
"the Legislature has not preempted the subject of the regulation of
the use of BB guns by minors either directly or by implication."
(15 Cal.App.3d at p. 902, 93 Cal.Rptr. 530.)
The Olsen court noted that numerous state statutes dealt with
firearms, but concluded: "Despite the wide coverage by the state on
the subject of firearms, it does not follow that the state wished
to exclude regulations by a municipality which considered more
stringent regulation necessary in its particular community.
"In Galvan v. Superior Court, supra, 70 Cal.2d 851, 864, 76
Cal.Rptr. 642, 452 P.2d 930, the court said: 'That problems with
firearms are likely to require different treatment in San Francisco
County than in Mono County should require no elaborate citation of
authority. Such differences were recognized in People v. Jenkins,
supra, 207 Cal.App.2d Supp. 904, 907, 24 Cal.Rptr. 410 ..., People
v. Commons, supra, 64 Cal. App.2d Supp. 925, 932, 148 P.2d 724 ...,
and in Gleason v. Municipal Court, 226 Cal. App.2d 584, 587, 38
Cal.Rptr. 226.... The need for differential treatment of firearms
was also recognized by the Legislature in section 25840 of the
Government Code, which, as noted, authorizes counties to "prohibit
and prevent the unnecessary ... discharge of firearms...'" (See
also In re Hoffman, 155 Cal. 114, 99 P. 517....)
"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, ...' (Italics added.) 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." (15 Cal. App.3d at p. 902, 93 Cal.Rptr. 530.)
We agree with the City and County's assessment that these
decisions suggest that the Legislature has not prevented local
governmental bodies from regulating all aspects of the possession
of firearms. However, the more troubling question is whether the
San Francisco Handgun Ordinance merely regulates possession or
instead constitutes a licensing ordinance in violation of the
express preemption of Government Code section 53071.
The San Francisco ordinance does not mention the word
"license" or "permit" and it does not establish a licensing
procedure of any kind (unlike the ordinance struck in Sippel v.
Nelder (1972) 24 Cal.App.3d 173, 101 Cal.Rptr. 89). However, it
exempts from the general ban on possession any person authorized to
carry a handgun pursuant to Penal Code section 12050. Thus, its
effect is to create a new class of persons who will be required to
obtain licenses in order to possess handguns. Persons presently
possessing handguns in their homes who are not licensed to carry
their weapons must obtain licenses or relinquish their handguns.
Persons who could have purchased handguns for home possession under
prior law are required under the San Francisco ordinance to enter
the permit system.
The City and County of San Francisco argues that its ordinance
merely acknowledges the supremacy of state law in the area of
permits and licenses and exempts state-licensed persons from the
local regulation. It is true that in form that is all the San
Francisco Handgun Ordinance purports to do. However, it is also
true that in substance it creates a licensing requirement where one
had not previously existed. It violates the Legislature's statement
of intention that the provisions of the Penal Code "shall be
exclusive of all local regulations, relating to registration or
licensing of commercially manufactured firearms, ..." (Emphasis
added.) If not a direct licensing requirement, the San Francisco
Handgun Ordinance is at least a local regulation relating to
licensing. [footnote 1]
Conflict with Penal Code Section 12026
Even if we were to read Government Code section 53071 as
narrowly as the City and County would like, we would still be
confronted by the argument that the San Francisco Handgun Ordinance
conflicts with Penal Code section 12026. If the state has not
preempted the field, the local ordinance is nonetheless invalid if
it conflicts with a law passed by the state Legislature. (Galvan v.
Superior Court, supra, 70 Cal.2d at p. 865, 76 Cal.Rptr. 642, 452
P.2d 930.)
We agree with the City and County that the first portion of
Penal Code section 12026 suggests that the section is intended to
insure that Penal Code section 12025 is not misread as outlawing
any form of possessing a firearm in a place of residence or place
of business. The introduction states that "ection 12025 shall
not be construed" so broadly. However, the final part does not use
the phraseology of the first portion. It does not say "nor shall
section 12025 be construed as imposing a permit requirement." It
says "and no permit or license shall be required."
In order to read Penal Code section 12026 so as not to
conflict with the San Francisco Handgun Ordinance, we would be
required to alter the final portion of the statute to provide: "and
no State permit or license shall be required of him." The plain
wording of the statute is broader. "No permit or license" means "no
permit or license." It would torture the plain words of the statute
to apply the meaning sought by San Francisco. [footnote 2] As
explained above, the San Francisco Handgun Ordinance does create a
license requirement for one seeking to possess a handgun at home,
and therefore conflicts with Penal Code section 12026.
Continued...
