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`San Francisco Superior Courts
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`Document Scanning Lead Sheet
`Jun-12-2006 2:51 pm
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`STATEMENT OF DECISION
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`Case Number: CPF-05-505960
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`Filing Date: Jun-12-2006 2:49
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`Juke Box: 001
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`Image: 01466056
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`PAULA FISCALet al VS. CITY AND COUNTY OF SAN FRANCISCOetal
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`001001466056
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`Instructions:
`Please place this sheet on top of the documentto be scanned.
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`San Francisco County Superior Court
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`JUN 1 2 2006
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`PARK-LI, Clerk
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`Deputy Cterk
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`SUPERIOR COURT OF THE STATE OF CALIFORNIA
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`COUNTY OF SAN FRANCISCO
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`UNLIMITED JURISDICTION
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`PAULAFISCALet al.,
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`Case No. CPF-05-505960
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`STATEMENT OF DECISION AND
`ORDER GRANTING MOTION FOR
`WRIT OF MANDATE AND/OR
`PROHIBITION OR OTHER
`APPROPRIATERELIEF
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`Plaintiffs and Petitioners,
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`VS.
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`CITY AND COUNTY OF SAN
`FRANCISCOetal.,
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`Defendants and Respondents.
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`March 20, 2006
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`Hearing Date:
`Hearing Judge:
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`Time:
`Place:
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`Date Action Filed:
`Submission Date:
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`February 23, 2006
`Hon. James L.
`Warren
`9:30 a.m.
`Dept. 301
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`Dec. 28, 2005
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
`OTHER APPROPRIATE
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT
`OF MANDATE AND/OR PROHIBITION OR OTHER APPROPRIATE RELIEF
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`This case involves Proposition H (Prop H), the so-called "Gun Control Initiative" passed
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`by the voters of San Francisco on November8, 2005.' On February 23, 2006, this Court heard
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`the Motion for Writ of Mandate and/or Prohibition or Other Appropriate Relief of Petitioners
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`Paula Fiscal, Larry P, Barsetti, Rebecca Kidder, Dana Drenkowski, John Candido, Alan Byard,
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`Andrew Sirkis, National Rifle Association, Second Amendment Foundation, California
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`Association Of Firearms Retailers, Law Enforcement Alliance Of America, and San Francisco
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`Veteran Police Officers Association. Chuck Michel and Don Cates of Trutanich Michel
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`appeared for Petitioners, while Deputy City Attorneys Wayne Snodgrass and Vince Chhabria
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`appeared for the named Respondents, the City and County of San Francisco, San Francisco
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`Police Department, and San Francisco Chief of Police Heather Fong. Roderick Thompson
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`appeared on behalf of amicus curiae Legal Community Against Violence in support of
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`Respondents, but at this Court's direction following objection by Petitioners, did not participate
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`in oral argument. Other amici filed briefs in support of Petitioners, but did not appear at the
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`hearing on Petitioners’ motion.
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`This Court has reviewed and considered the memoranda, declarations, requests for
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`judicial notice, and other papers submitted by the parties and/or amici, both in support of andin
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`opposition to Petitioners' motion. The Court has also considered the arguments of counsel
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`presented at the hearing, and has carefully reviewed the law to which the Court has been referred
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`by the parties, as well as that which the Court has researched on its own. In light ofall the
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`foregoing, the Court now enters this Order Granting Petitioners’ Motion for A Writ of Mandate.
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`By stipulation of the parties, implementation of Prop H has been held in abeyance pending the outcome of
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`this writ petition.
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
`OTHER APPROPRIATE RELIEF
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`A. Proposition H
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`PropositionHis entitled "Initiative ordinance prohibiting the sale, manufacture and
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`distribution offirearms in the City and County of San Francisco,and limiting the possession of
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`handgunsin the City and County of San Francisco." (Ex. A to Petitioners’ Memorandum of
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`Points and Authorities.) It contains eight separate sections.
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`Section 1 is entitled "Findings." The Findings state that "[hJandgun violence is a serious
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`problem in San Francisco.”(/d., § 1.1.) Handgun violence accounted for 67% of firearms
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`injuries or deaths in San Francisco in 1999,described as the latest year for which informationis
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`— So
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`available. (/d.) Section 1 states that Proposition H is not intended "to affect any resident of
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`otherjurisdictions with regard to handgun possession, including those who may temporarily be
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`within the boundaries of the City and County," andthattherefore "the provisions of Section 3
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`apply exclusively to residents of the City and County of San Francisco." (/d., §§ 1.3, 1.5.)
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`Section I invokes the "home rule" powerarising under Article XI of the California Constitution
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`and describes that poweras allowing "counties to enact laws that exclusively apply to residents
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`within their borders, even when such a law conflicts with state law or whenstate law issilent."
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`(/d., §1.4.)
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`Section 2 is entitled "Ban on Sale, Manufacture, Transfer or Distribution of Firearmsin
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`the City and County of San Francisco." It states,in its entirety, that "[w]ithin the limits of the
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`City and County of San Francisco, the sale, distribution, transfer and manufacture of all firearms
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`and ammunition shall be prohibited." (/d., §2.)
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`Section 3 is entitled "Limiting Handgun Possession in the City and County of San
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`Francisco." It states that within San Francisco’s boundaries, "noresident of the City and County
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`of San Francisco shall possess any handgun unless required for professional purposes,as
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`enumerated herein. Specifically, any City, state or federal employee carrying out the functions
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROTIBITION OR
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`! | ofhis or her government employment, including but not limited to peaceofficers as defined by
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`California Penal Code Section 830et seq. and animal control officers may possess a handgun."
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`(Id., §3.) Section 3 also states that a memberofthe active military, the National Guard, and a
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`security guard may possess a handgun "while actually employed and engaged in protecting and
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`preserving property orlife within the scope ofhis or her employment." (/d.) Section 3 allows
`any San Franciscoresident to surrender his or her handgun without penalty at any district station
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`of the San Francisco Police Department or San Francisco Sheriff's Department within 90 days
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`after Section 3 becomeseffective. (/d.)
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`Section 4 is entitled "Effective Date." It states that Proposition H shall becomeeffective
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`January 1, 2006. (/d., §4.) As noted earlier (see, fn. 1, supra) after this litigation was filed, the
`. partiesstipulatedtodelaytheenforcementofPropositionHtoallowthisCourttohearand
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`decide Petitioners’ writ motion.
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`Section 5 is entitled "Penalties." It directs the City's Mayor to propose, and the Board of
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`Supervisors to adopt, penalties for violations of Proposition H. (/d., §5.)
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`Section 6 is entitled "State Law." It provides that "[nJothing in this ordinanceis designed
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`to duplicate or conflict with California state law" or to "create or require any locallicense or
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`9 registration for any firearms, or create an additional class ofcitizens who mustseek licensing or
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`registration.” (/d., §6.) Section 6 also states that Proposition H shall not apply to “any person
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`» currently denied the privilege ofpossessing a handgun understate law." (Id.)
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`Section 7 is entitled "Severability." It states that "[i]f any provision ofthis ordinance or
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`the application thereofto any person or circumstancesis held invalid or unconstitutional, such
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`invalidity or unconstitutionality shall not affect other provisions or applicationsor[sic] this
`ordinance which can be given effect without the invalid or unconstitutional provision or
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`application. To this end, the provisionsofthis ordinance shall be deemed severable.” (/d., $7.)
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
`OTHER APPROPRIATE RELIEF
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`Section 8 is entitled “Amendment.” It authorizes the Board of Supervisors to "amendthis
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`ordinancein the furtherance of reducing handgun violence." (/d., §8.)
`B. Petitioners’ action
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`Petitioners, consisting of individuals and organizations, contend that Proposition His
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`invalid in its entirety. Petitioners seek a writ ofmandate and other equitable reliefon several
`grounds.
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`First, Petitioners assert that Section 3 of the initiative, which generally prohibits San
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`Francisco residents from possessing handguns withincity limits, is invalid. Relying primarily on
`101 Doe v. City and County ofSan Francisco (1982) 136 Cal.App.3d 509, Petitioners claim that
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`Section 3 conflicts with California Penal Code section 12026, as well as California Government
`. Codesection 53071. TheyassertthatRespondents’ relianceontheirhomerulepoweris
`14 misplaced because Section 3 implicates a matter ofstatewide concern. Petitioners also contend
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`that by prohibiting San Francisco residents from possessing handgunswithincity limits while
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`allowing such possession by non-residents, Section 3 irrationally discriminates against San
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`Francisco residents in violation of federal and state equal protection guarantees.
`Second, Petitioners contend that if Section 3 is invalidated, the Court must strike down
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`Proposition H in its entirety. Petitioners assert that the voters who enacted the initiative would
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`not have wantedto prohibit sales, transfers, or distribution ofrifles and shotguns within San
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`Third, Petitioners contend that Section 2's prohibition against sales, transfers, and
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`distribution ofall firearms and ammunition is preempted by Penal Code section 12131(a), Penal
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`Code section 12026, and Government Code section 53071. Petitioners also maintain that Section
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`Henceforth, all references to various “Codes” willbe to Codes ofthe State ofCalifornia.
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
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`] | 2's ban on sales, transfers and distribution offirearms and ammunition will undermine law
`enforcement andthe criminaljustice system.
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`The Court will address each of these arguments in turn.
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`C. Section 3's prohibition against handgun possession by San Francisco residentsis
`unenforceable. It conflicts with Penal Code section 12026 and implicates an issue
`of statewide concern
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`1. The home rule powerto regulate municipalaffairs
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`Article XI, Section 5(a) ofthe California Constitution states:
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`It shall be competentin anycity charter to provide that the city governed thereunder may
`make and enforceall ordinances and regulations in respect to municipal affairs, subject
`only to restrictions and limitations provided in their several charters and in respectto
`other matters they shall be subject to general laws. City charters adopted pursuantto this
`Constitution shall supersede any existing charter, and with respect to municipal affairs
`shall supersedeall laws inconsistent therewith.
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`Article XI, Section 5(a) renders chartercities "supreme and beyondthe reach of
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`legislative enactment" with respect to municipal affairs. (California Federal Savings and Loan
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`Ass'n v. City ofLos Angeles (1991) 54 Cal.3d 1, 12 (hereinafter "CalFed"); Bishop v. City ofSan
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`Jose (1969) 1 Cal.3d 56, 61.) This home rule poweris limited, however. It “reserves to charter
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`cities the right to adopt and enforce ordinancesthat conflict with general state laws, provided the
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`subject of the regulation is a ‘municipalaffair’ rather than one of ‘statewide concern.’” (Horton
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`v. City ofOakland (2000) 82 Cal.App.4th 580, 584-85.) In addition,“if there is a doubt as to
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`whether ornot[a] regulation is a municipalaffair, that doubt must be resolved in favorof the
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`legislative authority of the state.” (Ex Parte Daniels (1920) 183 Cal. 636, 639.)
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`2. The CalFed analysis
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`In adjudicating whether the voters properly relied on their homerule authority to adopt
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`Section 3, this Court follows the analysis dictated by CalFed andits progeny.
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`The Court mustinitially determine whether two "preliminary considerations" are present:
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`(1) Section 3 must "implicate[] a municipal affair," and (2) it must “pose[] a genuine conflict
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
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`I | with state law." (CalFed, supra, 54 Cal.3d at p. 17.) "Where the preliminary conditions are
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`satisfied, that is, where the matter implicates a ‘municipal affair’ and poses a genuine conflict
`3 with state law, the question ofstatewide concern is the bedrock inquiry through which the
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`conflict between state and local interests is adjusted." (CalFed, supra, 54 Cal.3d at p. 17.)
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`Determining whethera charter city provision impacts a municipal or statewide concern is
`not always an easy task. "T]he hinge of decisionis the identification ofa convincing basis for
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`legislative action originating in extramunicipal concerns, one justifying legislative supersession
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`based onsensible, pragmatic considerations." (/d. at p. 18.) “In other words, we must be
`cotisfied that there are good reasons, grounded on statewideinterests, to label a given matter a
`‘statewide concern.” (Johnson, supra, 4 Cal.4th at p. 405.)
`a. Section3 implicates a municipalaffair
`This Court has found no case in which a court refrained from completing the home rule
`analysis because a local measure did not implicate a municipal affair. Rather, the courts have
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`determined the existence of a municipalaffair in a cursory fashion and movedto the next stage
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`of the analysis. (See, e.g., Cawdrey v. City ofRedondo Beach (1993) 15 Cal.App.4th 1212, 1223
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`(succinctly noting that “Charter section 26 ofthe City here implicates a municipalaffair,thatis
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`the election of municipal officers.”).) In this case, the subject of Section 3 -- gun violence and
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`the possession ofhandguns within San Francisco by San Francisco residents -- is clearly a matter
`ofsignificant municipal concern. Handgun violence in the City ofSan Francisco has exacted a
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`serious emotional and fiscal toll on those wholive in andvisit the city. The Court finds,
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`therefore, that the first "preliminary consideration” of CalFedis satisfied.
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
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`b. Section 3 conflicts with Penal Code section 12026
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`The Court concludes and the parties agree that CalFed’s second "preliminary
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`consideration”-- a conflict with state law -- is also met. Section 3 conflicts with Penal Code
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`section 12026. This is clearly established in Doe, supra, where the court "infer[red] from Penal
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`Code section 12026 that the Legislature intended to occupy the field of residential handgun
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`possession to the exclusion of local government entities.” (136 Cal.App.3dat p. 518.)
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`In Doe, the court addressed a handgun ordinance that banned residents and non-residents
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`alike from possessing handguns within San Francisco, That ordinance, however, exempted
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`persons authorized to carry handguns pursuant to Penal Code section 12050, as well as persons
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`authorized to sell handguns pursuant to Penal Codesection 12070. After analyzing the relevant
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`law, the court invalidated the ordinance,ruling thatit created a defacto licensing schemein
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`contravention of Government Codesection 53071 and Penal Code section 12026. The court
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`explainedthatthe effect of the ordinance was to create a new class of persons who would be
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`required to obtain a license or permit in order to possess a handgun in San Francisco. The court
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`further held that even if the ordinance did not create a “licensing” requirement within the
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`purview of Government Code section 53071 and Penal Code section 12026, the latter statutestill
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`preempted the ordinance because Penal Code section 12026 occupied thefield ofresidential
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`handgun possession to the exclusion of local governmententities.
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`ec. Section 3's prohibition implicates significant statewide interests
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`“[T}he question of statewide concern is the bedrock inquiry through which the conflict
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`between state and localinterests is adjusted.” (CalFed, 54 Cal.3d at p. 17.) CalFed and
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`numerousothercasesnote thatthere is nostrict definition of what constitutes a “municipal
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`affair.” Nevertheless, there are some definite guidelines as to what things are not municipal
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`affairs, and these guidelines inform the Court with respect to the inquiry here. One such
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
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`1 | guidepostis that a local ordinance mayoverride state law onlyifthe state has no substantial
`interest in the subject, .e., where the ordinance concemsa “purely municipalaffair[].” (Jackson
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`v. City ofLos Angeles (2003) 111 Cal-App. 4th 899 (quoting Baggett v. Gates (1982) 32 Cal.3d
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`8, 136) (emphasis added); see also Committee ofSeven Thousand v, Superior Court (1988) 45
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`Cal.3d 491, 505 (distinguishing “purely municipal affairs” from matters of “statewide concern”
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`and specifying that “statewide”refers to all matters of more than local concern. (emphasis
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`added).)
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`Under CalFed, this Court must adjust the conflict between any state and local interests by
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`“allocat[ing] the governmental powers underconsideration in the most sensible and appropriate
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`fashion as betweenthe Jocal and state legislative bodies." (CalFed, supra, 54 Cal.3d at p. 17.) In
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`determining whether "the subject ofthe regulation is a ‘municipalaffair’ rather than one of
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`‘statewide concern" (American Financial Services Association v. City ofOakland (2005) 34
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`Cal.4th 1239, 1251), the Court must uphold Section 3 unlessit finds "a convincing basis for
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`[state] legislative action originating in extramunicipal concerns, one justifying legislative
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`supersession based on sensible, pragmatic considerations." (Johnson, supra, 4 Cal.4th at p. 405.)
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`CalFed “requir[es] as a condition ofstate legislative supremacy, a dimension demonstrably
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`transcending identifiable municipal interests.” (Johnson v. Bradley, 4 Cal.4th 389, 399-400.)
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`“Statewide concern”refers to “all matters of more than local concern and thus includes matters
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`the impact ofwhich is primarily regional rather than truly statewide.” (Committee ofSeven
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`Thousand v. Superior Court (1988) 45 Cal.3d 491, 505.)
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`In City of Watsonville v. State DepartmentofHealth Services (2005) 133 Cal.App.4th
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`875, the court addressed whether Watsonville could ban fluoridation in the city water system in
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`an effort to promote water quality. The IVatsonville court recognizedthecity’s interest in local
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`water quality control, but upheld a state law that mandated fluoridation ofwater supplies serving
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`1 | more than a minimum numberofusers. The court could have minimized the salient issue in that
`case by focusing myopically on the water supply of Watsonville residents. The court, however,
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`recognized that the city and state had opposite views of which water policy best preserved the
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`health, welfare and safety of the public in general, including the citizens of Watsonville. In such
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`a situation, the court foundthat the state policy must prevail because “citizens throughoutthe
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`state are entitled to the assurancethat the water they receive conformsto all current public health
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`standards.” (/d. at p. 888.) “A patchwork ofinconsistent local measures cannot provide that
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`assurance.” (/d.)
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`In the case at bar, the focus of Section 3 is handgun violence, handgun possession, and
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`the control of firearms. Penal Code section 12026 demonstrates the Legislature’s intentto
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`occupy, on a statewidebasis, the field ofresidential and commercial handgun possession to the
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`exclusion of local governmental entities. While the Court recognizesthat “problems with
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`firearmsare likely to require different treatment in San Francisco County than in Mono County,”
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`the Court rejects Respondents’ attemptto dilute the import of Section 3 by characterizingit as
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`merely involving handgun possession by San Francisco residents. (Great Western Shows, Inc.v.
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`County ofLos Angeles (2002) 27 Cal.4th 853, 862; Galvan v. Superior Court (1969) 70 Cal.2d
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`851, 864.) The City has a vital interest in the health and safety ofits inhabitants and the
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`problems of handgun violence, The Court is nonetheless convincedthat, in light ofthe existing
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`statewideseries of lawsrelating to firearms control, extramunicipal concernstip the scales in
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`favorofstatewide regulation of residential and business handgun possession. The system of
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`state laws is reasonably related to the identified statewide concern and narrowlytailored to avoid
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`infringing upon legitimate municipal affairs.
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROISIBITION OR
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`i. Extraterritorial impacts
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`Whethera local law implicates statewide interests turns, in great part, on whether the law
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`has meaningful impacts outside the jurisdiction that has adopted it. The extramunicipaleffect is
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`often the starting point in evaluating a state interest. An ordinance doesnotfall within the
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`municipal affairs doctrine if the ordinance “affects persons outside of the municipality ...””
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`(Committee ofSeven Thousand vy, Superior Court (1988) 45 Cal.3d 491, 505; Metromedia, Inc. v.
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`City ofSan Diego (1980) 26 Cal.3d 848, 879.)
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`Respondents contend that Section 3 will have no effect on transients because
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`nonresidents are not subject to the handgun possession ban. Respondents cite several municipal
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`tax cases to support their position. Thefirst set of these cases holds that tax measures are purely
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`municipal affairs. For example, in Ex parte Braun (1903) 141 Cal. 204, the court held that a
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`charter city tax measure was a municipal affair, explaining that it was “confined in operation to
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`the city of Los Angeles, and affects none butits citizens and taxpayers and those doing business
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`withinits fimits.” (/d. at p. 210.) The local law was “peculiarly for the benefit of the inhabitants
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`ofthe city, and not directly for the benefit of any one else.” (/d.) The concurring opinion echoed
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`this key point, upholding the law as a home rule measure because it “appl[ies] only to the
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`territory of the city and the inhabitants thereof.” (/d. at p. 214 [McFarland, J., concurring].) To
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`the sameeffect is Fisher v. County ofAlameda (1993) 20 Cal.App.4th 120, which held that a
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`charter city's real estate transfer tax regulates a municipalaffair because it “has no impact outside
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`the limits of the taxing municipality butrather ‘is purely localin its effects.’” (/d. at pp. 130-31.)
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`According to Respondents, Section 3 is analogous to the above-cited tax ordinances
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`because it only impacts the municipality (San Francisco) andtheeffect of its enforcementwill
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`not reach the surrounding Bay Area. Respondents argue that Section 3 is limited to San
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`Francisco residents within the boundaries of San Francisco, a limitation that makes the ban a
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
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`I | purely municipal affair, The Court rejects Respondents’ analysis. As explained below,the
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`effects ofthe instant gun control measure are distinguishable from theeffects ofthe cited tax
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`ordinances. Furthermore, Respondents’position is predicated upon a misapplication ofthe tax
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`cases that have raised statewide concerns.
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`In this Court’s view, Respondents argue correctly that in CalFed, the court ruled that a
`local tax implicated a statewide concern because there was a detailed record oflegislative
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`findings andreports regarding the effect ofthe tax on financialinstitutions. The CalFed court
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`distinguished Ex parte Braun, supra, 141Cal. 204, because that decision involved a garden-
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`variety tax measure that “was entirely local,” affecting only citizens, taxpayers, and businesses in
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`" Los Angeles, while the law in CalFed implicated “a widespreadfiscal crisis across the state.”
`. (CalFed,supra,54 Cal.3datp. 12.) Notably,the CalFedcourtfoundthat“tax rateparity”
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`2mong various types ofbanksand financialinstitutions was a recurring theme ofCalifornia
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`corporate tax law. (/d. at p. 18.) The court provided that the extensive legislative reports,
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`developments in federal law, and “the increasingly vulnerable financial condition of the savings
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`and loan industry throughout the decade ofthe 1970's and beyond” removed the chartercity’s
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`homerule authority. (/d. at pp. 18-24.)
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`Based upon a comparison between CalFed and Ex parte Braun, Respondents assert that
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`“(t]his Court maynot find any extramunicipal effect ofSection 3 absent” the type of“detailed
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`2 Legislative findings” that were present in CalFed. (Opposition at 16:8-12.) While Respondents’
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`initial argumentis correct, their conclusionis not for at least two reasons. First, neither CalFed
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`nor any other reported decision requires “detailed Legislative findings”to rule that an area of
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`regulation is a statewide concern. In fact, the CalFed court specifically held thatit is for the
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`courts, not the Legislature, to make that determination. (CalFed, 54 Cal.3d 1, 24, fh. 21.) This
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`“requirement”is entirely an invention of Respondents, andit ignores the long line of cases in
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
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`l | which matters have been foundto be of“statewide concern” without such detailed findings.
`Second,the reason such “detailed Legislative findings” were necessary in the CalFed case was
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`that there was expansive case law suggesting that “charter city tax measures” were inflexibly
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`“municipal affairs.” (CalFed, 54 Cal.3d at pp. 6-7.) The “detailed Legislative findings” were
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`necessary to distinguish the effects of the CalFed tax from this well-established body ofearlier
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`tax cases.
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`Unlike the tax ordinance at issue in Ex parte Braun, supra, 141 Cal, 204, Section 3 has
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`multiple extraterritorial consequences, including one that Doeitself recognized: a San Francisco
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`handgun ban inevitably affects adjacent counties by flooding them with the handgunsthatare no
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`longer allowed in San Francisco.
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`Doe, supra, 136 Cal.App.3d.at p. 513 states:
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`The City and County of San Francisco...concedes that “it cannot be argued that the
`regulation offirearms is a municipal affair within the meaning of Article XI, Section 5,
`subdivision (a),” of the state Constitution. Weagree. 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 ofLong Beach, supra,61
`Cal.App.3d at p. 371, 132 Cal.Rptr. 348.) It affects not just personsliving in San
`Francisco, but transients passing through andresidents of nearbycities where San
`Francisco's handguns mightbe sold.
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`In the case now before the Court, it is certainly foreseeable that, if this ordinance were to
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`go into effect, some San Franciscans would respond byselling or otherwise disposing of their
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`handgunsin other counties rather than give them to San Francisco police or have them
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`confiscated without compensation. This outgrowth from the enforcement of Section 3 is clear;it
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`is not “merely a hypothetical extramunicipal ripple effect.” (Opposition at 16:6-7.) Moreover,
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`using Respondents’ own argumentthat the availability of handgunsincreases gun violence,it
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`followsthat the flow of handguns from San Francisco into adjacent counties will increase
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROHIBITION OR
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`violence in those areas. This potential, but real, effect supports Petitioners’ argumentthat
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`statewide control applies with respect to the conduct involved here.
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`The Court notesthat Petitioners champion the opposite theory. Petitioners theorize that
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`more handgun possession bytrustworthycitizens will affect these adjacent areas by reducing
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`crime there. This issue, however, is not before the Court. It is thus unnecessary for this Court to
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`resolve this criminological disagreement and decide whether an increase in handgunspositively
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`or negatively influences society. Rather, the Court simply concludes that Section 3 cannot
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`qualify as a purely municipal affair because ofits inevitable impact on areas outside of San
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`Francisco.*
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`A further potential extraterritorial effect of Section 3 is that San Francisco residents who
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`currently own handguns maybe effectively prohibited from participating in activities involving
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`the use of those guns outside the city. Although residents could conceivably store handguns
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`outside of San Francisco for use in hunting,target shooting or otherlegal activities, they are
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`Someappellate courts, the Attorney General, and the Legislative Counsel have already found these types of
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`effects to implicate statewide concerns.
`In Long Beach Police Officers Assn. v. City OfLong Beach (1976) 6] Cal.App.3d 364,a local association
`ofpolice officers brought an action to enjoin enforcementofcity regulationsrelating to the discharge offirearms by
`the city’s police officers in apprehending felons. The court ruled that“[j]ust as use ofcity streets by police andfire
`vehicles affects not only the municipality’s citizens but also transients, and is thus a matter of state-wide concern
`(citation), so also the firing ofguns by Long Beachpolice officers and the apprehension or escape of felons in Long
`Beach affects the people ofthe state generally.” (Jd. at p. 371.)
`The Legislative Counsel ofCalifornia specifically pointed to the Long Beach decision when asked by
`Senator H.L. Richardsonfor a legal opinion on whether an ordinance ofthe type at issue in Doe was preempted by
`state law. (Legislative Counsel of California, letter from Paul Antilla, Deputy Legislative Counsel, to Senator H.L.
`Richardson, dated March 2, 1982, and attached at Section 4 of Petitioners’ accompanying Judicial Notice Request.)
`On page8 ofits March 2, 1982 opinion, the Legislative Counsel specifically mentioned that the Long Beach court
`found that the city ordinance regulating the dischargeofpolice firearms in Long Beach“affected not only the
`municipality's citizens but also transients and was thus a matter of state-wide concern.” The Legislative Counsel’s
`office further opined that “since an area offirearms control so closely related to internalcity affairs as was the case
`in the Long Beachsituation is not exclusively a municipalaffair, it is our opinion that an ordinancerelating to the
`broader area ofthe sale and possession ofconcealable firearms by inhabitants ofthe city would not be considered a
`municipalaffair.” (/d., emphasis added.)
`Similarly, the California Attorney General explained that a California city does not have the authority to
`prohibit the possession of handguns within thecity. (65 Ops.Cal.Atty.Gen. 457 [1982 WL 155982}.) In its 1982
`opinion, the Attorney Generalrelied on the Long Beach opinion in considering whether such a local ordinance could
`be considered a municipalaffair.
`In comparing a handgun possession ban to the police discharge regulation
`considered in Long Beach, the Attorney General noted that “[t]he use ofa firearm within the city would appear to be
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`STATEMENT OF DECISION AND ORDER GRANTING MOTION FOR WRIT OF MANDATE AND/OR PROINBITION OR
`OTHER APPROPRIATE RELIEF
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`I | morelikely either to secrete their handgunswithincity limits, thus placing themselvesin
`violation of the law, or surrendertheir handguns altogether due to the cost and inconvenience of
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`remote storage. The California Attorney General hasidentified this effect as one reason why a
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`city ordinance banning handgunpossession is not a municipal affair. (65 Ops.Cal.Atty.Gen 457,
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`*9.)
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`iit. The state interest
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`Thestatute books contain almost one hundred pages of unannotated state gun lawsthat
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`set out a myriad ofstatewide licensing schemes, exceptions, and exemptions dealing with the
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`possession and use of handguns. These laws support the argument that Califo