Reset A A Font size: Print

Court of Appeal, First District, Division 2, California.

John GALVAN, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; CITY AND COUNTY OF SAN FRANCISCO, Real Party in Interest.

Civ. 25954.

Decided: October 21, 1968

J. Edward Fleishell, Kirk Lambert Kirk, Herbert C. Kohlwes, San Francisco, for petitioner. Thomas M. O'Connor, City Atty., Edmund A. Bacigalupi, William R. Lowery, Deputy City Attys., San Francisco, for respondent and real party in interest.

San Francisco Ordinance No. 175–68, having been approved by the Board of Supervisors, was signed into law by the Mayor on July 2, 1968. It required the registration with the police department of all privately owned firearms and the payment of $2.00 for each such registration. For failure to comply with the provisions of the ordinance, the private gun owners can be cited for a misdemeanor and upon conviction subjected to a $500 fine or 6 months confinement in the county jail, or both. The ordinance was to become effective 45 days after its execution.

Petitioner, John Galvan, seeks a writ of mandate to compel respondent superior court to grant a preliminary injunction, which the court had previously denied on August 9, 1968, restraining the City and County of San Francisco from enforcing the ordinance until a decision on its validity could be made in an action for declaratory relief filed July 25, 1968. On August 16, 1968, petitioner filed a notice of appeal from the order denying the preliminary injunction.

We first discuss respondent's contention that mandamus is not a proper remedy. Generally, where an order is appealable, mandamus will not lie. But the rule is not absolute and there is an exception where the public interest is such as to require a speedy determination of the controversy (3 Witkin, Cal.Procedure, § 54, p. 2542; Acton v. Henderson, 150 Cal.App.2d 1, 309 P.2d 481). Here, the enforcement of the ordinance pending appeal would entail considerable effort and expense by the public agencies, as well as great inconvenience to a large segment of the city's population. The public interest clearly demands an early determination of the validity of the ordinance. Thus, we have no hesitancy in invoking mandamus to consider the propriety of the trial court's order denying the preliminary injunction (3 Witkin, Cal.Procedure, § 78, p. 2577; Blue v. Superior Court, 147 Cal.App.2d 278, 305 P.2d 209).

The principal issue in this case is whether or not the city gun registration ordinance ‘conflicts' with state legislation and thus imposes regulation in a field preempted by state law.

We first consider the San Francisco ordinance in some detail. It amends the Police Code by the addition of sections 610 through 610.8, inclusive, which regulate the possession and transfer of firearms and establish penalties for violations of those regulations. Section 610 makes possession or custody of a firearm in San Francisco unlawful unless the firearm is registered under the newly enacted provisions. Under section 610.1, nonresidents temporarily in San Francisco must register any firearms which they have brought with them within 7 days. Section 610.2 lists the required contents and fee for the registration applications. The contents of the certificate of ownership, which is to be issued by the Chief of Police, are specified in section 610.3. The certificates remain valid until suspended, revoked, or cancelled by the Chief of Police ‘for cause’ or until transfer of any interest in the firearm (§ 610.3). Upon transfer of the firearm, the registered owner must notify the Chief of Police and provide information concerning the transfer. The certificate of ownership is endorsed over to the transferee, who must submit the endorsed certificate within 10 days for re-registration (§ 610.4). Certain law enforcement officers, firearms merchants, authorized military personnel, and firearms collectors are exempted from the coverage of these provisions (§ 610.6). Violation of the registration provisions constitutes a misdemeanor punishable by a fine of $500 or by 6 months imprisonment, or by both (§ 610.5). A severability clause is broadly stated in section 610.8.

We now summarize the extensive state legislation embodied in ‘The Dangerous Weapons' Control Act’ and other statutes. The possession, licensing and registration of dangerous weapons, including certain firearms, are primarily regulated by the Penal Code in part 4, title 2, sections 12000–12560. The possession of blackjacks, metal knuckles, sawed-off shotguns (§ 12020), certain hunting firearms (§§ 2006–2008, Fish & Game Code), and silencers (§ 12520) are prohibited. Carrying of loaded firearms while in public places (§ 12031), carrying of concealed explosives and knives (§ 12020), unlicensed carrying of concealed firearms (§ 12025) and possession without a permit of machine guns (§ 12220) or tear gas weapons (§ 12420) are further prohibited. Aliens, felons, narcotics addicts (§ 12021) and, under certain circumstances, minors (§ 12021.5) are precluded from possessing concealable firearms.

The State Bureau of Criminal Identification and Investigation is authorized to issue permits for machine guns (§ 12230) and tear gas weapons (§ 12423). Forms and procedures are prescribed for the licensing of concealed firearms (§§ 12051–12054) and the issuance of permits for machine guns (§§ 12231–12233) and tear gas weapons (§§ 12424–12426). Local governments are authorized to issue licenses to sell concealable weapons (§ 12071); while the state bureau is authorized to issue permits to sell machine guns (§ 12250) and tear gas weapons (§ 12435). Local police authorities are authorized by section 12050 to issue licenses for the carrying of concealed firearms, but no license or permit can be required for possession of concealed firearms in one's home or place of business (§ 12026).

Firearm salesmen are required to maintain registers containing information on all sales of concealable firearms (§ 12073) and those pistols which are not classified as concealable (§ 12350). A duplicate of the registration upon the sale of a concealable firearm must be presented to the local police authorities (§ 12076), who are also authorized to inspect the registers of nonconcealable hand gun sales (§ 12350).

Before determining the question of preemption, we make the following brief comparative statement of the city and state legislation on firearms regulation and more specifically in the field of registration and licensing. The San Francisco ordinance requires registration, and re-registration in the event of transfer, of all firearms and, in effect, establishes licensing powers over the possession of firearms generally. The state legislation, which prohibits the possession of some firearms and requires licensing of both the possession and sale of certain firearms, provides for the registration of all hand guns upon sale by gun dealers, grants limited authority in the field of registration and licensing to the municipalities, and prohibits the requirement of a license or permit to possess concealable firearms in one's home or place of business.

The precise question is whether the state legislation has preempted the field of firearms control through licensing and registration, to the exclusion of local regulation.

There is no contention that the San Francisco ordinance regulates an exclusively ‘municipal affair’ within the California Constitution local home rule provision (art. XI, § 6). Rather, the ordinance is an exercise of the local police power on a matter of ‘state-wide concern’ (Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 291, 32 Cal.Rptr. 830, 384 P.2d 158), which must be based upon Constitution article XI, section 11 (cf. Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385).

Article XI, section 11, restricts local regulation to that which is not in ‘conflict’ with the general laws. ‘Conflict,’ in a broader sense, exists when state legislation has preempted the field which the local body attempts to regulate. Local regulation is, therefore, precluded when the entire field has been fully occupied by the state (Abbott v. City of Los Angeles, supra, 681–682, 3 Cal.Rptr. 158, 349 P.2d 974; In re Lane (1962) 58 Cal.2d 99, 106, 22 Cal.Rptr. 857, 372 P.2d 897 (concur); In re Hubbard (1964) 62 Cal.2d 119, 125, 41 Cal.Rptr. 393, 396 P.2d 809).

In re Lane, supra, 58 Cal.2d at pages 102–103, 22 Cal.Rptr. at page 859, 372 P.2d at page 899, states the general theory of implied preemption: ‘Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned. [Citation.]

‘In determining whether the Legislature intended to occupy a particular field to the exclusion of all local regulation, we may look to the ‘whole purpose and scope of the legislative scheme’ and are not required to find such an intent solely in the language used in the statute. [Citations.]'

A municipal ordinance in Lane prohibited fornication in one's own apartment house. Reviewing numerous sections of the Penal Code, the court concluded that the legislation relating to sex was so extensive in scope that the intention to adopt a comprehensive scheme was clearly indicated. Although several similar types of sexual activity were prohibited, fornication, as such, was not made illegal. The implication, therefore, was that such conduct should remain unregulated (pp. 103–104, 22 Cal.Rptr. 857, 372 P.2d 897). The concurring opinion by Chief Justice Gibson stressed the importance of analyzing the regulated field to determine whether uniform treatment was desirable. The conclusion was that the regulation of sexual activity concerned the populace generally rather than an isolated local group (pp. 110–111, 22 Cal.Rptr. 857, 372 P.2d 897). Abbott v. City of Los Angeles, supra, had previously emphasized that one of the important factors to be considered is whether or not the subject calls for uniform application throughout the state.

In In re Hubbard, supra, the Supreme Court applied a different approach to the preemption problem. A city ordinance prohibited games of chance played with cards; while Penal Code section 330 prohibited ‘banking and percentage’ card games. The petitioner contended that the entire field of gambling had been impliedly preempted by extensive state legislation.

The court stressed that the determination of whether a field had been preempted first required the definition of the field. Three possibilities were listed: (1) gambling, (2) gaming, and (3) banking or percentage games. This analysis emphasized the need to restrict the field to narrow categories. The court proceeded to discuss all phases of the respective fields of gambling and gaming which state regulation failed to cover, and concluded that: ‘Since the general laws do not make illegal all forms of gambling, or even all forms of gaming, they cannot be said to occupy either field to the exclusion of the exercise of local police power, unless we adopt the negative type of argument inherent in defendants' contention, that is, that by making specific acts illegal the Legislature intended all other acts of similar character to be of such innocent character that no local authority might adopt a contrary view.’ (62 Cal.2d p. 126, 41 Cal.Rptr. p. 398, 396 P.2d p. 814; cf. contrary result: In re Loretizo (1963) 59 Cal.2d 445, 30 Cal.Rptr. 16, 380 P.2d 656). Thus, an inference reached in Lane was rejected in Hubbard as a ‘negative argument.’

The court in Hubbard concluded that implied preemption could be found only when: ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality’ (62 Cal.2d p. 128, 41 Cal.Rptr. p. 399, 396 P.2d p. 815).

The third category above re-emphasized the test propounded by Abbott and in the concurring opinion in Lane. This factor is further discussed by Robins v. County of Los Angeles (1966) 248 Cal.App.2d 1, 9, 56 Cal.Rptr. 853, 859, which required the following considerations: ‘* * * whether local legislators are more aware of and better able to regulate appropriately the problems of their areas, whether substantial geographic, economic, ecological or other distinctions are persuasive of the need for local control, and whether local needs have been adequately recognized and comprehensively dealt with at the state level.’

Thus, after Hubbard, it is clear that extensive legislation in the field is no longer sufficient to imply preemption unless the entire field can be said to have been fully and completely covered. Otherwise, implied preemption must be based, at least in part, upon an analysis which weighs the need of uniform state regulation against possible benefits accruing from diverse local treatment. We do not think that distinctly local concerns indicate the advisability of diverse local systems of firearms registration and licensing. The problem of gun control in the highly populated urban areas transcends the confines of municipal boundaries. Clearly, the adequate regulation of dangerous weapons is of vital concern to the populace generally throughout the state. A multiplicity of local requirements would tend to confuse and unduly burden transients and impede the legitimate mobility and use of guns by citizens living in the various localities. In many instances, gun owners would be subjected to unnecessary duplicatory regulations. We conclude that once state legislation has partially regulated this field, further state-wide uniform treatment appears to be the more reasonable approach.

We now refer to some specific sections of the state law which indicate a legislative intent to keep the municipalities out of the feld of gun regulation except where otherwise expressly authorized. A legislative intent that at least one aspect of this field remain unfettered by local restrictions can be implied from Penal Code section 12026, which requires that the possession or keeping of concealable firearms in the home or place of business remain unrestricted by license or permit. A legislative intent to preempt may also be inferred from those Penal Code sections making specific grants of limited authority to the localities in the field of gun registration and licensing, which has been so extensively covered by state law. Local officials are authorized to license the possession (§ 12050) and sale (§ 12071) of concealable weapons. Duplicate registrations from the sale of concealable weapons must be submitted to local police authorities (§ 12073). Registrations from the sale of all other hand guns are open to inspection by local police authorities (§ 12350). These provisions for partial local participation in firearms licensing and registration may be interpreted as indicating a legislative intent to restrict further participation. In Robillwayne Corp. v. City of Los Angeles, 241 Cal.App.2d 57, 62, 50 Cal.Rptr. 1, the court concluded that state legislation authorizing local authorities to enact regulations concerning specific aspects of a field, in which the state has widely legislated, is some evidence of a legislative intent that local controls be confined exclusively to the authority granted.

A local regulation which is in direct conflict with state law is clearly invalid. (Const. art. XI, § 11; Abbott v. City of Los Angeles, supra). We think the San Francisco ordinance directly conflictsith Penal Code section 12026, which 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, 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.’ (Italics added.)

By its very terms, the purpose of the San Francisco ordinance is to regulate the ‘possession and transfer of firearms.’ The regulation is not limited to the mere registration of guns and re-registration upon transfer. Section 610.3 provides that the Chief of Police can suspend, revoke or cancel the mandatory certificate of ownership ‘for cause.’ The Chief's authority to revoke under appropriate circumstances implies the power to formulate and impose reasonable limitations and is tantamount to the power to license the possession of firearms. We conclude that the certificate of ownership is a requisite ‘permit to keep’ a firearm at one's home or place of business and is also a ‘license to own or possess' a firearm within the City and County of San Francisco. Thus, insofar as the ordinance requires registration of all concealable firearms which are kept, owned or possessed at the registrant's home or place of business, it is in direct conflict with Penal Code section 12026 and is invalid. With respect to concealable firearms otherwise kept, possessed or under one's custody, the registration ordinance is substantially duplicatory of the licensing required by Penal Code section 12025 and is, therefore, likewise invalid (Pipoly v. Benson (1942) 20 Cal.2d 366, 370, 125 P.2d 482, 147 A.L.R. 515).

While the ordinance contains a severability clause (§ 610.8), severability must be reasonable. When a statute is partially invalid, the remaining parts may be preserved only if they can be separated from the invalidated part without destroying the statutory scheme or purpose (People v. McCaughan (1957) 49 Cal.2d 409, 416, 317 P.2d 974). If registration of concealable firearms cannot be required, the overall scheme and purpose of the ordinance are disrupted. It would be absurd to require registration of the more innocuous firearms (target rifles, shotguns, etc.) when concealable firearms are not subject to local regulation. The licensing power granted by the ordinance would be relatively ineffective as applied only to the less dangerous firearms. Severance would thus be unreasonable in this context.

We conclude that the San Francisco ordinance conflicts with the state law whether tested by the liberal or strict definition of the word ‘conflict’ and that the field of firearms regulation and control has been preempted by the state. The San Francisco ordinance is, therefore, declared invalid, and the trial court is hereby ordered to restrain its enforcement.

TAYLOR, Associate Justice.

SHOEMAKER, P. J., and AGEE, J., concur.