HomeMy WebLinkAboutAGENDA REPORT 1996 0821 CC REG ITEM 07CLAW OFFICES
Of
CHARLES J. WILLIAMS
a professional Corporation
Muir Parkway
Charles J. Williams 1320 Arnold Drive, Suite 160
Teresa L. Highsmith. Martinez, CA 94553
July 22, 1996
Re:
Dear City Attorney:
ITEM • C *
Telephone: (510) 228 -3840
aesiiniie: (510) 228 -1703
We ask that you join in the amicr s brief which the League e of California Cities Legal Advocacy
Committee has commissioned Terence Boga of Richards, Watson and Gershon, to author, in
support of the City of Lafayette's successful defense of its "Firearm Sales" ordinance.
The Issue: The main issue is whether state legislation preempts a local agency's ability to
regulate the Salf, of firearms within its jurisdiction.
Under Government Code section 53071, local government is preempted from regulating the
registration or licensing of firearms. However, the state has not preempted the entire field of
firearms regulation.
Under Penal Code § 12071 a local agency is expressly authorized to regulate or restrict
firearms Sa1U. Penal Code section 12071 repeatedly contemplates the existence of local
regulation of firearms sales as supplemental to the regulations imposed by the state. (Penal
Code §§ 12071(a)(1), (6)(C), and (d)).
In California three levels of regulation are required for a person to legally sell firearms: 1) a
Federal firearms license, renewable every one to three years, 2) a seller's permit issued by the
state Board of Equalization and a certificate of eligibility from the state Department of Justice,
renewable annually, and 3) any regulatory or business license 1equired by local govern ,
renewable annually.
A sub -issue of the preemption question is how far may a local government go in regulating
firearm sales under Penal Code section 12071? The plaintiffs in the SJ= lawsuit contend that
even if a city or county may adopt a local license requirement, the license may not impose any
requirements which are in excess of the security requirements imposed by the state on cities
over 50,000 in population under Penal Code section 12071, and in particular, 12071 (b)(14),
(15). Conditions of approval imposed by the City and which are at issue in the Suter case,
such as trigger lock requirements, liability insurance, and external building security
requirements, are security measures which exceed the minimum standards set by the state.
Si nific nce: This is a case of first impression
There is no case law interpreting Penal Code
CWOust — RECE"iVED --
1f1I i q Iqu
section 12071, and in particular, the extent to which local government may regulate a firearm
sales business within its jurisdiction. This case is of major significance to cities in general
because many cities in the state have adopted or are considering adopting similar local
licensing legislation. If the City of Lafayette's ordinance is struck down, all similar legislation
could also be effected.
Local government autonomy is the common interest of all cities in preserving the favorable
trial court decision on the facial challenge to this ordinance. If the trial court decision is
overturned by the Court of Appeal on the basis of preemption, even cities which have no
interest in adopting legislation of this nature will be negatively affected because:
1) Penal Code section 12701 reQuircs that a person may not sell firearms in the
state of California without a local license or a written statement from their
jurisdiction that there are no local license or regulatory requirements; and
2) for cities under 50,000 in population, state legislation currently provides no
security requirements whatsoever on firearms sales businesses (see Penal Code
section 12071 (b)(14, 15). If a city does not adopt its own legislation, there are
no federal or state standards which may be imposed to secure the storage of
firearms inventory.
The Amicus Curiae Brief: Regulation of firearm sales in the state of California is a
misunderstood area of the law. The amicus crtriae brief will emphasize the need to preserve
the three levels of regulation within the state which work together to enforce the safe and legal
sale of firearms and promote public safety.
Local regulation gives "teeth" to the state licensing scheme by tightening enforcement on
illegally operating firearms dealers. If a possessor of a federal firearms license does w
comply with local zoning and license regulations, the federal firearms license is revoked.
Revocation of the federal firearms license removes the wholesale purchase of any quantity of
firearms through the mail without a waiting period. Similarly, the state certificate of
eligibility will be revoked (or not be renewed annually) if local zoning and licensing
regulations are not complied with.
To add your city's name to the list of cities supporting the amicus curiae brief, please sign and
return the final page of this letter to Terence Boga, by August 30, 1996. Please also feel free
to call Terence at (213) 626 -8484 if you have any questions regarding the amicus curiae brief.
Very truly yours, ,
Teresa L. Highsmith
TLH
The undersigned authorizes the listing of as an amicus curiae in
support of the position taken by the City of Lafayette in tht above referenced appeal. I
understand that our city will incur no financial liability for legal fees or costs in connection
with the amicus curiae brief which is being prepared free of charge.
City of
Title
PLEASE RETURN COMPLETED FORMS TO:
Terence Boga
Richards, Watson and Gershon
333 South Hope Street, 38' Floor
Los Angeles, CA 90071 -1406
Tel: (213) 626 -8484
Fax: (213) 626 -0078
l�
11 F1