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1 ROCKARD J. DELGADILLO, City Attorney MICHAEL L. CLAESSENS Assistant City Attorn~
2 JOHN A~ .CARVA.L.HoO, Deputy City Attorney - SEN 189895 S peclal LItIgatIOn DIVIsIOn
3 200 North Main Street - Rm 900 Los Angeles, CA 90012
4 Telephone: (213) 473-6878 Fax No. (213) 473-6818
5 Attorneys for Defendant City of Lps Angeles
6
7
8 UNITED STATES DISTRICT COURT
9
10
CENTRAL DISTRICT OF CALIFORNIA
11 CALIFORNIA SIDE BY SIDE SOCIETY CALIFORNIA
12 ASSOCIATION OF FIREARMS RETAILERS FIFTY CALIBER
13 SHOOTERS ASSOCIATION, BARRETT FIREARMS
14 MANUFACTURING INC. CALIFORNIA RIFLE ANI)'PISTOL
15 ASSOCIATION EDM ARMS SPORTS AFIELD, and ROBERT
16 KAHN,
17
18 vs.
Plaintiffs,
19 CITY OF LOS ANGELES a municipality; and Does 1 - 10,
20
21
22
Defendants.
CASE NO.: EDCV 04-1395 GAF (SGLX)
DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
D.ate: AVril 18, 2005 Tune: 9:30 a.m. Courtroom: 740
Assigned to the Hon. Gary A. Fees
23 Defendant City of Los Angeles (the "City") submits the following memorandum
24 of points and authorities in opposition to the Motion for Preliminary Injunction (the
25 "Motion") filed by plaintiffs, California Side By Side Society, California Association of
26 Foreanns Retailers, Fifty Caliber Shooters Association, Barrett Firearms Manufacturing,
27 Inc., EDM Anns, California Rifle and Pistol Association, Sports Afield, and Robert
28 Kahn ("Plaintiffs").
1
1 TABLE OF CONTENTS
2
3 PAGE(S)
4 MEMORANDUM OF POINTS AND AUTHORITIES ................................................. 2
5 FACTUAL BACKGROUND ............................................ 3
6
7 DISCUSSION ........................................................ 3
8 I. STANDARD FOR ISSUING PRELIMINARY INJUNCTION .......... 3
9 II. PLAINTIFFS' CANNOT DEMONSTRATE LIKELY SUCCESS ON THE MERITS OF THEIR PREEMPTION CLAIMS .......... 4
10 A. Plaintiffs' Preemption Arguments Have Already Been
11 Rejected By The Courts ...................................... 4
12 B. The Ordinance Is Not Expressly Preempted By State Law .......... 6 13 C. The Ordinance Is Not Impliedly Preempted By State Law .......... 8 14
II. PLAINTIFFS' CANNOT DEMONSTRATE LIKELY 15 SUCCESS ON THE MERITS OF THEIR REMAINING
CLAIMS ................................................. 10 16
A. The Ordinance Does Not Violate The First Amendment ........... 11 17
18 1. Core Speech Is Not At Issue ............................... 11
19 2. The Ordinance Is A Valid Restriction On Commercial Speech .................................. 12
20 B. The Ordinance Does Not Violate The Dormant
21 Commerce Clause ...................................... 15
22 C. The Ordinance Does Not Violate The Equal Protection Clause ................................................ 15
23
24 D. The Ordinance Does Not Violate Plaintiffs' Due Process Rights ......................................... 16
25 III. PLAINTIFFS' FAIL TO DEMONSTRATE IRREPARABLE INJURY .17
26 CONCLUSION ..................................................... 17
27
28
- 1 -
1
2
3 FEDERAL CASES
TABLE OF AUTHORITIES
PAGE(S)
Bolger v. Younes Drug Products Co~. 4 (1983) 4 3 U.S. 60, 77 L. Ed. d 469, 103 S. Ct. 2875 ................. 11
5 Buchanan v. W arl~y (1917) 245 U.S. 60,38 S.Ct. 16 ................................... 16
6 Caribeean M~e Servo CO. V. Baldridge
7 (9th Clf. 1988) 844 F.2d 668 ..................................... 17
8 Central Hudson Gas & Elc. COl]). V. Public Servo Comm'n ofN.Y (1980) 447 U.S. 557, 10(T S.Ct. 2343 (1980) ...................... 12-15
9 Chalk V. United States Dist. Ct. Cent. Dist. of Calif.
10 (9th Cir. 1988) 840 F.2d 701. . ..................................... 4
11 City of Cleburne V. Cleburne Livin~ Ctr. ; \' (1986) 473 U.S. 432, 87 L.Fd.2d 313, 105 S.Ct. 3249 .................. 15
12 Compare Murdock V. Pennsy'lvania
(1943) 319 U.S. 105,63 S.Ct. 870, 87 L.Ed. 1292 ..................... 12 13
14 Dahl V. HEM Pharmaceuticals CorP (9th Cir. 1993) 7 F.3d. 1399 ....................................... 4
15 Edenfield V. Fane
16 (1993) 507 U.S. 761 ............................................ 15
17 Heller V. Doe
18 (1993) 509 U.S. 312, L.Ed.2d 257, 113 S.Ct. 2637 .................... 15
Hoffman V. C,mitol Cities/ABC, Inc. 19 (2001) I55 F.3d 1180 ........................................... 12
20 Kolender V. Lawson
21 (1983) 461 U.S. 352, 75 L.Ed.2d 903 ................................. 4
MatteI, Inc. V. MCA Records 22 (9th Cir. 2002) 296 F.3d 894 ...................................... 12
23 Pittsburgh Press CO. V. Human Relations Comm'n (r973) 413 U.S. 376, 93 S. Ct. 2553, 37 L. Ed. 2d 669 ................. 11
24 Raich V. Ashcroft
25 (9th Cir. 2003) 352 F.3d 1222, 1227 ............................... 3,4
26 Reno V. Flores
27 (1993) 507 U.S. 292, L.Ed.2d 1, 113 S.Ct. 1439 ...................... 16
Republic of Philippines V. Marcos 28 (9th Cir. 19~8) 862 F2d 1355 ...................................... 3
11
1 FEDERAL CASES CONT.
2 Silveira v. Lockver
3 (9th Cir. 2002) 312 F.3d 1052 ................................. 15-16
4 Simula Inc. v. Autoliv Inc. (9th Cir. 1999) 175 F.3d 716 ..................................... 17
5 Southwest Voter Registration Ed. Project v. Shelley
6 (9th 2003) 344 F.3d 914 .......................................... 4
7 Stuhlbarg Int'l Sales Co. Inc. v. John D. Brush & Co., Inc. (9th Cir. 2001) 24'0 F.3d 832 ....................................... 3
8
9
10 STATE CASES
11 Birkenfeld v. Ci~ of Berkeley
12 (1976) 17 Ca1.3d 129 ........................................... 5
13 California Rifle and Pistol Association, Inc. v. City of West Hollywood (1998) 66 Cal.App.4th 1302 ................................... 5,6, 9
14 Doe v. City and County of San Francisco
15 (1982) 136_Cal.App.3d 509 ........................................ 6
16 Galvan v. Superior Court (1969) 70 Cal.2d 851 ............................................ 6
17 Great Western Shows Inc. v. County of Los Angeles
(2002) 27 Cal.4'th 853 .................................... 5, 8, 9, 10 18
19 Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897 ........................................ 6
20 Sherwin-Williams Co. v. City of Los Angeles
(1993) 4 Ca1.4th 893 ........................................ 6, 8 21
22 Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109 ................................. 5,6, 7, 8
23
24
25
26
27
28
STATE AND LOCAL STATUTES
Cal. Government Code § 53071 ....................................... 7-9
Cal. Penal Code § 12021, et seq . ....................................... 7-9
Cal. Penal Code § 12275, et seq . ....................................... 7-9
1 STATE AND LOCAL STATUTES CONT.
2 Cal. Penal Code § 12301, et seq . ....................................... 7-9
3 Los Angeles Municipal Code § 55.18 ................................ passim
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IV
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 INTRODUCTION
3 Plaintiffs arguments are not new . Nor have they ever been successful. Indeed, a
4 sizeable body of case law has unifonnly rejected the very same arguments raised in the
5 Motion (particularly Plaintiffs' preemption arguments). Unfortunately, Plaintiffs
6 overlook that body of law in seeking to enjoin enforcement of the Ordinance.
7 Most significantly, in arguing preemption, Plaintiffs ignore several well
8 established principles that guide the courts' analysis when addressing the validity of
9 local gun regulations. Those principles are as follows:
10 • the California constitution grants cities the power to regulate firearms
11 • the state has not preempted the field of gun regulation in general
12 the state has not preempted the specific field of firearm sales
13 • state firearm regulations are construed narrowly to avoid preemption
14 Applying those principles, the courts have consistently upheld local gun
15 regulations against preemption challenges, including one involving a local ordinance that
16 required anyone seeking to sell or transfer a firearm to first obtain two local permits,
17 another banning the sale of unsafe handguns, and another banning the sale of all
18 firearms and ammunition. A straightforward analysis of the preemption issue reveals
19 that Plaintiffs are unlikely to succeed on the merits.
20 Plaintiffs other constitutional challenges are no more meritorious. To the extent
21 the Ordinance regulates commercial speech that concerns lawful activity (it does not), it
22 does so without violating the First Amendment. Plaintiffs' Commerce Clause argument
23 relies on the success of its commercial speech argument, and therefore fails for the same
24 reasons. Finally, Plaintiffs raise an equal protection claim that has been squarely
25 rejected by the courts, and a dubious due process argument containing no supporting
26 authority. In short, Plaintiffs do not meet their burden in seeking a preliminary
27 injunction.
28 III
2
1 FACTUAL BACKGROUND
2 The Ordinance (a copy of which is attached to the Motion) took effect on July 27,
3 2003. It makes it a misdemeanor for anyone to "sell, give, transfer ownership of,
4 transfer, offer for sale, or display for sale any large caliber firearm," as defined therein.
5 On November 5, 2004, Plaintiffs filed the within action, serving the City with the
6 complaint on December 2, 2004.
7 The City has not filed any criminal complaints that include a charge under the
8 Ordinance. [Declaration of Luis Li "Li Decl." ~3]
9 DISCUSSION
10 I. STANDARD FOR ISSUING PRELIMINARY INJUNCTION
11 Courts use two standards in issuing a preliminary injunction. Under the
12 traditional test, the applicant is required to demonstrate: (1) a likelihood of success on
13 the merits; (2) a substantial threat the applicant will suffer irreparable injury if an
14 injunction is not issued; (3) the threatened injury outweighs the hardship the injunction
15 may cause the defendant; and (4) the injunction will not disserve the public interest.
16 Raich v. Ashcroft (9th Cir. 2003) 352 F.3d 1222, 1227; see also Schwarzer, Tashima &
17 Wagstaffe, CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE TRIAL, p. 13:44 at 13-15 (The
18 Rutter Group 2004).
19 The second, "alternative test," requires the applicant to show either "(1) a
20 combination of probable success on the merits and the possibility of irreparable injury,
21 or (2) that serious questions are raised and the balance of hardships tips sharply in favor
22 of the moving party." Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc. (9th
23 Cir. 2001) 240 F.3d 832, 839-840. "Serious questions are 'substantial, difficult and
24 doubtful, as to make them a fair ground for litigation and thus for more deliberative
25 investigation. '" Republic of Philippines v. Marcos (9th Cir. 1988) 862 F2d 1355, 1362
26 (citation omitted). Consideration is also given under the alternative test to whether the
27 III
28 III
3
1 public interest favors issuance of the injunction. Southwest Voter Registration Ed.
2 Project y. Shelley (9th 2003) 344 F.3d 914,917.
3 The traditional and alternative tests are not inconsistent. Under either test, the
4 "analysis creates a continuum: the less certain the district court is of the likelihood of
5 success on the merits, the more plaintiffs must convince the district court that the public
6 interest and balance of hardships tip in their favor." ld. at 918; see also Raich y.
7 Ashcroft, supra, 352 F.3d at 1227.
8 As Plaintiffs recognize at page 6 of the Motion, the primary purpose of a
9 preliminary injunction is to preserve the status quo pending a determination of the action.
10 on the merits. Chalk y. United States Dist. Ct. Cent. Dist. of Calif. (9th Cir. 1988) 840
11 F.2d 701, 704. Where, as here, a mandatory injunction is sought to alter the status
12 quo l, it is subject to a higher level scrutiny and "should not be issued unless the facts
13 and the law clearly favor the movingparty." Dahl v. HEM Phannaceuticals Corp (9th
14 Cir. 1993) 7 F.3d. 1399, 1403 (emphasis added).
15 As set forth below, Plaintiffs have not established that they are likely to prevail
16 on the merits of any of their claims, nor have they demonstrated an immediate threat of
17 irreparable injury. Therefore, Plaintiffs' motion for a preliminary injunction should be
18 denied.
19 II. PLAINTIFFS' CANNOT DEMONSTRATE LIKELY SUCCESS
20 ON THE MERITS OF THEIR PREEMPTION CLAIMS
21 A. Plaintiffs' Preemption Arguments Have Already Been Rejected By
22 The Courts
23 Plaintiffs' anemic analysis of the case law addressing state preemption of local
24 gun regulations suggests the area is undeveloped. Not so. Local firearm regulations
25 have faced constant legal challenge from gun groups, many of which have generated
26
27 IPlaintiffs seek to enjoin the enforcement of an ordinance and therefore seek a 28 mandato!1\.,notprohibitory, injunction. See, e.g., Kolender v. Lawson, (1983) 461 U.S.
352, 75 L. nd. 2d 903.
4
1 published opinions. As a result, the body of law in this area is rich; and it is a body of
2 law that has consistently upheld local gun regulations against preemption challenges,
3 such as those Plaintiffs raise in the Motion.
4 The analysis of Plaintiffs preemption issue must begin with the recognition that
5 the City has the constitutional power to regulate in the area of firearms control.
6 California Rifle and Pistol Association, Inc. y. City of West Hollywood (1998) 66
7 Cal.App.4th 1302, 1310 This power derives from article XI, section 7 of the California
8 Constitution which grants the City (and every city and county in the state) the power to
9 "make and enforce within its limits all local, police, sanitary, and other ordinances and
10 regulations not in conflict with general laws." Apart from this limitation, the "police
11 power" enjoyed by the City "is as broad as the police power exercisable by the State
12 Legislature." Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 140.
13 Thus, the question is whether the City's power to regulate firearms as set forth in
14 the Ordinance has been taken away by the state. Certainly the Penal Code contains
15 various gun regulations, as Plaintiffs emphasize throughout the Motion. However, it is
16 well established that while "the Legislature has preempted discrete areas of gun
17 regulation, it has not preempted the entire field of gun control." Great Western Shows,
18 Inc. y. County of Los Angeles (2002) 27 Cal.4th 853, 861.
19 More significantly, the state has not preempted local regulation a/firearm sales.
20 Great Western Shows, Inc., supra (ordinance prohibiting all sales offirearms and
21 ammunition on County property not preempted by state law); Suter y. City of Lafayette
22 (1997) 57 Cal.App.4th 1109, 1122 (ordinance requiring land use permit and police
23 permit to sell, transfer or lease firearms not preempted by state law); City of West
24 Hollywood, supra, 66 Cal.App.4th at 1308.(ordinance banning sale of unsafe handguns
25 not preempted by state law).
26 The Ordinance regulates the sale, gift and transfer offirearms. Three recent
27 cases, Great Western Shows, Inc., City of Lafayette and City of West Hollywood,
28 III
5
1 address similar ordinances which faced virtually identical preemption challenges. Yet,
2 Plaintiffs do not discuss them in the Motion. Curious.2
3 Plaintiffs also fail to address many other cases "which uniformly construe state
4 regulation o/firearms narrowly. (E.g., Galvan v. Superior Court (1969) 70 Ca1.2d 851
5 [legislation prohibiting licensing of firearms does not preclude local government from
6 registering firearms]; Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897 [legislation
7 preempting area of licensing and registration of firearms does not preempt local
8 government from regulating use of firearms]; Doe v. City and County of San Francisco
9 (1982) 136 Cal.AppJd 509,516 [legislative response to case law suggests 'that the
10 Legislature has not prevented local governmental bodies from regulating all aspects of
11 the possession offirearms,']" City of Lafayette, supra, Cal.App.4th at 1120 (brackets in
12 original).
13 Plaintiffs' preemption arguments are not new., they have been addressed by the
14 courts before, and they have been rejected. As set forth more fully below, Plaintiffs'
15 arguments should be rejected as well.
16 B. The Ordinance Is Not Expressly Preempted By State Law
17 Local legislation is preempted by state law if it '" duplicates, contradicts, or enters
18 an area fully occupied by general law, either expressly or by legislative implication.'"
19 Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Ca1.4th 893,897 (internal
20 quotation marks and citations omitted).
21 "Local legislation is 'duplicative' of general law when it is coextensive therewith.
22 [citation] Similarly, local legislation is 'contradictory' to general law when it is inimical
23 thereto. [citation] Finally, local legislation enters an area that is 'fully occupied' by
24 general law when the Legislature has expressly manifested its intent to 'fully occupy'
25 the area [citation], or when it has impliedly done so ... " Id. at 897-898.
26 III
27 2The omission is especially peculiar ( and glaring) given that Plaintiffs' counsel,
28 C.D. Michel, also reuresented tile plaintiffs in Great Western Shows, Inc., City of Lafayette and City 01 West Hollywood.
6
1 Plaintiffs argue that the Ordinance is preempted by:
2 1. Penal Code section 12275, et seq.--the Roberti-Roos Assault Weapons
3 Control Act of 1989 ("A WCA");
4 2. Penal Code section 12021, et seq.--the Unsafe Handgun Act ("UHA");
5
6
3.
4.
Penal Code section 12301, et seq. ("section 12301"); and
Government Code section 53071 ("section 53071").
7 None of these statutes expressly preempt the Ordinance. However, before the
8 issue of express preemption is addressed, some context is necessary: On July 27, 2003,
9 the Ordinance went into effect. At that time, state law did not regulate .50 caliber BMG
10 rifles. In 2004, the state amended the A WCA to include .50 caliber BMG rifles under
11 the same regulatory scheme as assault weapons, which amendments took effect on
12 January 1, 2005--a mere three months ago.
13 In reaction to this change to state law, the Los Angeles City Council has been
14 advised by the City Attorney's Office that the Ordinance should be amended to exclude
15 .50 caliber BMG rifles. [Declaration of John A. Carvalho ("Carvalho Decl.") '3] The
16 City Council is expected to consider such an amendment to the Ordinance prior to the
17 hearing on Plaintiffs' Motion. 3
18 Accordingly, as amended, the Ordinance covers only those fIrearms within the
19 caliber range of .50 to .60, and specifIcally excludes .50 caliber BMG rifles as defIned
20 in Penal Code section 12278, assault weapons as specifIed in Penal Code section
21 12276, and destructive devices as defIned in Penal Code section 12301. None of the
22 III
23 3The CitY. advised Plaintiffs counsel well before the Motion was fIled that the
24 Ordinance was likely to be amended. In fact, Plaintiffs counsel agreed that if they illed a motion for a preliriiinary inj\ffiction, they would wait until the CIty Counsel has
25 considered amending the Orilinance. Despite the agT;eement, and without conferring 26 with the City, Plaintiffs filed the Motion. Upon receiving service, the City advised
Plaintiffs counsel that the City Council woufd consider an amendinent to the Ordinance to exclude .50 caliber BMG rifles (among other things) on or about April 13, 2004, and
27 thereon req\lested that Plaintiffs stipulate to continue tne hearing on tIie MotIon to avoid wastin~judicial resources on moot argtynents. Plaintiffs' counsel refused, citing his
28 clients desire to put themselves in an advantages position to later argue for prevailing party attorney fees. [Carvalho Decl. ,,3-4]
7
1 state statutes cited by Plaintiffs regulate the sale, gift, transfer, offer for sale or display
2 for sale of said firearms.
3 First, the A WCA regulates assault weapons and .50 BMG rifles, however, as
4 mentioned, these are excluded by the Ordinance as amended. Second, section 12301
5 regulates only those firearms "greater than .60 caliber." Again, the Ordinance addresses
6 different weapons, and moreover, specifically excludes "destructive devices" under
7 section 12301. Third, the UHA prohibits the sale of only a certain category of weapons:
8 those that are unsafe to the user (as opposed to the general public and other potential
9 targets) because they have an unacceptably high malfunction rate or they do not have
10 adequate drop safety features (such unsafe weapons are commonly known as "Saturday
11 Night Specials"). The Ordinance is not addressed to Saturday Night Specials, and
12 therefore is not expressly preempted by the UHA.4 Finally, the Ordinance does not
13 regulate the registration or licensing of firearms, and therefore is not expressly
14 preempted by section 53071. Thus, the Ordinance is not expressly preempted by state
15 law.
16 C. The Ordinance Is Not Impliedly Preempted By State Law
17 Implied preemption occurs where the Legislature has fully occupied a particular
18 field "in light of one of the following indicia of intent: '(1) the subj ect matter has been
19 so fully and completely covered by general law as to clearly indicate that it has become
20 exclusively a matter of state concern; (2) the subject matter has been partially covered
21 by general law couched in such terms as to indicate clearly that a paramount state
22 concern will not tolerate further or additional local action; or (3) the subject matter has
23 been partially covered by general law, and the subject is of such a nature that the
24 adverse effect of a local ordinance on the transient citizens of the state outweighs the
25 possible benefit to the' locality." Sherwin-Williams Co., supra, 4 Cal.4th at 897-898
26 (citations omitted).
27 28 4Jn Great Western Shows~ Inc., suprar the California Supreme Court rejected the
ar~ent that the UHA preempted any lOCal regulation of the sale of handguns. 27 CaI.4th at 865.
8
1 Plaintiffs argue that in enacting the AWCA, the UHA, section 12031 and section
2 53071, the state has adopted a "general scheme" for the regulation offirearms, which
3 indicates its intent to fully occupy the field of the sale of firearms covered under the
4 Ordinance. This is essentially the same argument presented by the plaintiffs in Great
5 Western Shows, Inc., City of Lafayette and City of West Hollywood. The argument
6 was rejected in those cases, and it should be rejected here.
7 "That state law tends to concentrate on specific areas, leaving unregulated other
8 substantial areas relating to the control of firearms, indicates an intent to permit local
9 governments to tailor firearms legislation to the particular needs of their
10 communities." City of Lafayette, supra, 57 Cal.App.4th at 1119 (emphasis added). As
11 set forth above, the state has not preempted the entire field of gun regulation, nor has it
12 preempted local regulation of firearm sales. Great Western Shows, Inc., supra, 27
13 Cal.4th at 866. The statutes cited byPlaintiffs regulate very specific firearms (assault
14 weapons,.50 BMG rifles, firearms greater than .60 caliber and Saturday Night Specials)
15 and very specific aspects of gun control (registration and licensing). None overlap the
16 Ordinance. Therefore, the first indicia of implied preemption is missing.
17 As with the other cases involving preemption challenges to local ordinances
18 regulating the sale of certain dangerous firearms, Plaintiffs have failed to show that the
19 Ordinance is partially covered by general law so as to clearly indicate implied
20 preemption. In Great Western Shows. Inc. the court addressed this issue by reasoning:
21 "It is true today as it was more than 30 years ago when we stated it in Galvan, '[t]hat
22 problems with firearms are likely to require different treatment in San Francisco than in
23 Mono County.' [citation] '[T]he need for the regulation or prohibition of the carrying of
24 deadly weapons, even though not concealed, may be much greater in large cities, where
25 multitudes of people congregate, than in the country districts or thinly settled
26 communities, where there is much less opportunity and temptation to commit crimes of
27 violence for which such weapons may be used. '" [citation] 27 Ca1.4th at 867.
28 III
9
1 Recognizing that the state has legislated in such a way as to allow different
2 communities to regulate the sale of fireanns according to their particular needs, the
3 court in Great Western Shows. Inc. found that the ordinance at issue there prohibiting
4 the sale of all firearms and ammunition was not generally covered by the A WCA or
5 UHA so as to meet the second test of implied preemption. Here, the Ordinance does
6 not go nearly as far as the one upheld in Great Western Shows, Inc. Far from a compete
7 ban on the sale of frreanns, the Ordinance prohibits only the sale of certain large caliber
8 fireanns (fireanns that are unregulated by the state). Thus, the second indicia of
9 implied preemption is also missing.
10 Finally, the third test looks to the impact the Ordinance may have on transient
11 citizens of the state. Plaintiffs do not attempt to argue that the third indicia of implied
12 preemption is present in this case. Nor would such an argument be persuasive in light
13 of how the courts have addressed this issue: "Laws designed to control the sale, use or
14 possession of fireanns in a particular community have very little impact on transient
15 citizens, indeed, far less than other laws that have withstood preemption challenges."
16 City of Lafayette, supra, 57 Cal.App.4th at 1119.
17 Plaintiffs fail to show a likelihood of success on the merits of their preemption
18 claims. They do not demonstrate that the Ordinance is either expressly or impliedly
19 preempted by state law. Therefore, Plaintiffs cannot meet their burden to obtain a
20 preliminary injunction.
21 II. PLAINTIFFS' CANNOT DEMONSTRATE LIKELY SUCCESS
22 ON THE MERITS OF THEIR REMAINING CLAIMS
23 In addition to preemption, Plaintiffs argue that the Ordinance unconstitutionally
24 violates the First Amendment (both core speech and commercial speech), the Dormant
25 Commerce Clause, the Equal Protection Clause and Due Process Clause. All of these
26 arguments are without merit.
27 III
28 III
10
1 A. The Ordinance Does Not Violate The First Amendment
2 Plaintiffs argue that "[t]his is not a commercial speech case," but rather one
3 involving core "social-educational-political speech," subjecting the Ordinance to strict
4 scrutiny. [Motion p.16] Scarcely a page is devoted to this argument before the Plaintiffs
5 move on to a lengthy argument that the Ordinance impermissibly violates commercial
6 speech. The brevity of Plaintiffs' core speech argument accurately reflects its lack of
7 merit.
8 1. Core Speech Is Not At Issue.
9 In arguing that "the Ordinance bans any publication that circulates in LA from
10 advertising the availability for sale ofLCFs anywhere in the U.S," Plaintiffs misread the
11 Ordinance and misunderstand the distinction between core speech and commercial
12 speech.
13 The Ordinance does not regulate core speech. Rather, the Ordinance prohibits
14 the sale, gift, transfer, "offer for sale, or display for sale of any large caliber firearm."
15 "Offers for sale" or "displays for sale" do not embrace core speech; rather, it is speech
16 which "does no more than propose a commercial transaction." Pittsburgh Press Co. y.
17 Human Relations Comm'n (1973) 413 U.S. 376,385,93 S. Ct. 2553, 37 L. Ed. 2d 669.
18 In Bolger v. Youngs Drug Products Corp., the Supreme Court identified three
19 characteristics that, in combination, distinguish commercial speech from noncommercial
20 speech: "(1) use of an advertising format, (2) reference to a particular product, and (3)
21 existence of an economic motive for distributing the material." 463 U.S. 60, 66-67, 77
22 L. Ed. 2d 469, 103 S. Ct. 2875 (1983). The speech at issue under the Ordinance has
23 those characteristics, and is therefore commercial speech. The fact that offers for sale
24 or displays for sale of large caliber fIrearms appear in magazines does not transform the
25 III
26
27
28
11
1 commercial speech into core speech. To the extent any of the cases cited by Plaintiffs
2 even address this issue (they do not), none holds to the contrary.s
3 2. The Ordinance Is A Valid Restriction On Commercial Speech.
4 In Central Hudson Gas & Elc. Corp. y. Public Servo Comm'n of N.Y. , the
5 Supreme·Court announced a four-part test to analyze the validity of governmental
6 restrictions on commercial speech:
7 For commercial speech to come within [the First
8 Amendment], it at least must concern lawful activity and not
9
10
11
12
13
14
be misleading. Next, we ask whether the asserted
governmental interest is substantial. If both inquiries yield
positive answers, we must determine whether the regulation
directly advances the· governmental interest asserted, and
whether it is not more extensive than is necessary to serve
that interest.
15 447 U.S. 557,566, 100 S.Ct. 2343 (1980).
16 Thus, the threshold inquiry is whether the speech at issue under the Ordinance
17 concerns lawful activity. It does not.
18 As discussed at length above, the City has the right under its police powers to ban
19 the sale, gift, and transfer of large caliber firearms. Unless the court finds that the City
20 has impermissibly enacted such a ban, the "offer for sale or display for sale of large
21 caliber firearms" is not speech that concerns lawful activity.
22 Plaintiffs do not dispute this. Instead, Plaintiffs argue that the Ordinance
23 impermissibly extends beyond the territorial limits of the City by restricting offers and
24 displays for sale of large caliber firearms· appearing in magazines or over the internet
25 SPlaintiffs cite the following cases in sUDPort of their argJl!Ilent: £o~are
26 Murdock V. Penns lvania (1943)319 U.S. 103, 111,63 S.Ct. 870, 87 :E~ 1292 re IgIOUS 00 S ana pamphlets are not commercial speech); Martel. Inc. V.
27 ~ARecordS~th Cir. 2002) 296 FJd 894 (trademarkriglits do not trump the First 28endlrient n t of another to use the mark for communicative eXp'ression); Hoffman V.
a ito Cities C Inc (2001) 255 F)d 1180 (case weighing intellectual property n ts agamst FITst endment protectIOns).
12
1 where the seller resides outside of Los Angeles and in a jurisdiction where such sales
2 are lawful. Therefore, Plaintiffs conclude, the speech at issue does concern lawful
3 activity.
4 The problem with Plaintiffs'· analysis is that it incorrectly assumes the Ordinance
5 bans offers for sale or displays by a seller or offeror located outside the City. The
6 Ordinance does not ban such activity, and therefore the argument is flawed.
7 The Ordinance (like any City ordinance) is restricted to activity that occurs within
8 City borders. Thus, a seller in Oklahoma may post an advertisement for the sale of a
9 large caliber firearm in a magazine circulated in the City without running afoul of the
10 Ordinance. The record reflects that the City has never interpreted the Ordinance any
11 differently. Plaintiffs have been selling their magazines containing advertisements for
12 large caliber firearms for nearly two years while the Ordinance has been in effect, yet
13 there have been no criminal complaints filed against Plaintiffs (or anyone else). [Li
14 Dec!., ~3]
15 Plaintiffs argument that the Ordinance hypothetically might be used by the City to
16 proscribe otherwise lawful activity· butside its borders is a red herring designed to
17 satisfy the first prong of Central Hudson's test. It is an argument easily dismissed.
18 Notwithstanding that the speech at issue does not concern lawful activity, the
19 Ordinance satisfies the remaining prongs of Central Hudson as a lawful restriction of
20 commercial speech.
21 In banning the sale of large caliber firearms, the City seeks to protect the public
22 and the City's infrastructure from the destructive capabilities of these weapons. [Ex. 6
23 to the Declaration of Thomas Maciejewski in support of Motion] Plaintiffs argue that
24 the City does not have a substantial government interest in such a ban because the
25 legislative record does not include "a single example of anyone being shot or killed by a
26 .50 caliber rifle ... Absent any historical evidence of threats posed by LCFs to
27 residents of LA, all that remains is speculation about potential threats." [Motion 19:9-
28 14]
13
1 In other words, Plaintiffs argue that until the threat of the destructive capabilities
2 of large caliber firearms is realized (e.g., a school is terrorized by a madman wielding a
3 .50 caliber handgun, a terrorists shoots down a plane landing at LAX with a .50 caliber
4 rifle, etc.), the City does not have· a substantial interest in regulating large caliber
5 firearms. The argument deserves little attention.
6 The destructive capabilities of large caliber firearms is not a matter of speculation
7 or conjecture. They are well documented in the legislative record of the Ordinance.6
8 The City's substantial interest in protecting its residents and infrastructure from such
9 destructive capabilities is manifest and beyond question.
10 The third prong of Central Hudson--whether the Ordinance advances the City's
11 asserted interest--is also readily established. By the Ordinance, the City seeks to stop
12 the sale or transfer of large caliber firearms within its borders. Banning offers and
13 displays for sale of large caliber fIrearms in the City furthers that goal by preventing
14 unscrupulous gun dealers operating in the City from displaying large caliber firearms in
15 their stores despite it being illegal for them to sell such weapons. Without this
16 additional restriction, a City gun store could display large caliber firearms with impunity
17 thereby informing all potential buyers of the availability of such firearms in the City
18 which would increase the likelihood that sales prohibited under the Ordinance will occur
19 in the City.
20 "Commercial speech is . . . 'linked inextricably' with the commercial
21 arrangement that it proposes, so the State's interest in regulating the underlying
22 transaction may give it a concomitant interest in the expression itself. For this reason,
23 laws restricting commercial speech, unlike laws burdening other forms of protected
24 expression, need only be tailored in a reasonable manner to serve a substantial state
25
26 6"The .50 caliber rifle is an extremely powerful weapon with the capability to accurately strike targets more than a mile away and effectively inflict damage from a
27 distance of more than four miles .... 50 caliber rifles can penetrate 8 inches of concrete 28 from a distance of 400 yards ... rand were 1 ori~ally intended as anti material weapons
... " ".50 caliber rifles 'have ended up in the hands of suspected terrorist m:OUDS a mentally ill cop killer and drug trafficKing cartels. ,,, [Ex. 6 to Maciejews.kJ.~Dec1.J
14
1 interest in order to survive First Amendment scrutiny." Edenfield y. Fane (1993) 507
2 U.S. 761, 767 (citations omitted). It is reasonable, ifnot essential, that in attempting to
3 stop the sale of large caliber firearms in the City, the City should ban offers and displays
4 for sale of large caliber firearms in the City. Accordingly, the last prong of Central
5 Hudson is satisfied.
6 B. The Ordinance Does Not Violate The Dormant Commerce Clause
7 Plaintiffs' argument that the Ordinance violates the dormant Commerce Clause
8 relies on the same flawed premise as their argument that it impermissibly regulates
9 commercial speech. The false premise is that the Ordinance bans offers or displays for
10 sale of large caliber firearms where the seller or offeror is located outside the city. As
11 discussed above, the Ordinance does not reach such activity, and therefore, Plaintiffs
12 dormant Commerce Clause argument is without merit.
13 C. The Ordinance Does Not Violate The Equal Protection Clause
14 Plaintiffs also claim that the police officer exemption contained in the Ordinance
15 violates equal protection. In making this challenge, Plaintiffs concede that the
16 appropriate standard of review is the rational-basis test.7 Under this test, the Ordinance
17 "is presumed to be valid and will be sustained if the classification drawn by [the
18 Ordinance] is rationally related to a legitimate state interest." City ofClebume y.
19 Cleburne Living Ctr. (1986) 473 U.S. 432, 439, 87 L.Ed.2d 313, 105 S.Ct. 3249.
20 Moreover, Plaintiffs have the burden "to negative every conceivable basis which might
21 support" the police officer exemption. Heller v. Doe (1993) 509 U.S. 312,320, 125
22 L.Ed.2d 257, 113 S.Ct. 2637.
23 Plaintiffs argue that the police officer exemption is "more like" the retired officer
24 exemption found in the A WCA and struck down on equal protection grounds in Silveira
25 v. Lockyer, (9th Cir. 2002) 312 F.3d 1052, than the off-duty officer exemption upheld
26
27 'Tlaintiffs have no constitutional right to own or possess weap'ons, and the Ordinance does not classify persons basea on protected characteristics therefore the
28 ordinance is sUQject to rational-basis review. Shweiker v. Wilson (198'1) 450 U.S. 221, 230, 67 L.Ed.2d 186, 101 S.Ct. 1074.
15
1 against an equal protection challenge in that same case. Plaintiffs have it backwards.
2 The Ordinance provides an exemption for those peace officers who are
3 "authorized to, and do[], carty a firearm during the course of his or her employment as a
4 peace officer." [L.A.M.C. § 55.18(f)(6)]. The legislative history of the Ordinance
5 confirms only those peace officers that are "on-duty ... [and] operating within the
6 scope of their employment are ... exempt." [Ex. A to Carvalho Decl. ] Not only is the
7 Ordinance's police officer exemption more like the off-duty officer exemption upheld in
8 Silveira than the retired officer exemption struck down, it is more easily supported.
9 As the court reasoned in Silveira, "[i]t is manifestly rational for at least most
10 categories of peace officers to possess and use firearms more potent than those available
11 to the rest of the populace in order to maintain public safety." 312 F.3d 1052, 1089.
12 The peace officer exemption contained in the Ordinance is, indeed, manifestly rational.
13 Therefore, Plaintiffs equal protection argument lacks the requisite merit to support a
14 preliminary injunction.
15 D. The Ordinance Does Not Violate Plaintiffs' Due Process Rights
16 Plaintiffs put little effort in raising a due process challenge to the Ordinance, and
17 rightfully so. The argument is completely devoid of merit. The one case cited by
18 Plaintiffs in support of the argument, Buchanan y. Warley (1917) 245 U.S. 60,38 S.Ct.
19 16, involved an ordinance that placed a racial restriction on persons eligible to purchase
20 a certain parcel of real property. Plaintiffs do not explain how that case supports their
21 argument. In any event, Plaintiffs overlook that they have no constitutional right to
22 possess firearms. Silviera, supra, 312 F.3d at 1087. Having asserting no constitutional
23 right on which the Ordinance infringes, Plaintiffs do not raise a valid due process
24 challenge. see Reno v. Flores (1993) 507 U.S. 292,302, 123 L.Ed.2d 1, 113 S.Ct.
25 1439.
26 III
27 III
28 III
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1 II. PLAINTIFFS' FAIL TO DEMONSTRATE IRREPARABLE INJURY
2 "A preliminary injunction may only be granted when the moving party has
3 demonstrated a significant threat of irreparable injury, irrespective of the magnitude of
4 the injury." Simula, Inc. y. Autoliv, Inc. (9th Cir. 1999) 175 F.3d 716, 725 (emphasis
5 added). Moreover, the threatened harm must be immediate. Caribeean Marine Servo
6 CO. V. Baldridge (9th Cir. 1988) 844 F.2d 668, 674.
7 Plaintiffs say little of the injury threatened by the Ordinance in their Motion other
8 than to assert that to the extent they raise a valid First Amendment challenge, irreparable
9 injury is presumed, as a matter of law. Then, in the same breadth, Plaintiffs admit that
lOin banning the offer and display of large caliber firearms, the Ordinance is "no more
11 than an annoyance than anything else." [Motion 20:8-9]
12 As addressed above, Plaintiffs' argument that the Ordinance impermissibly
13 regulates commerce speech·is without merit. Plaintiffs offer nothing else to establish a
14 significant threat of irreparable harm posed by the Ordinance, therefore they have failed
15 to meet their burden in seeking a preliminary injunction. The Motion should be denied.
16 CONCLUSION
17 Plaintiffs have not met their heavy burden in seeking to disrupt the status quo by
18 enjoining enforcement of the Ordinance--a regulation issued to protect the residents and
19 infrastructure of the City from the dangers posed by large caliber firearms. For all the
20 foregoing reasons, the City respectfully requests that the Motion be denied.
21
22 DATED: April 4, 2005 .
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28 #7696
ROCKARD J. DELGADILLO, City Attorney MICHAEL L. CLAESSENS, Assistant City Attorney JOHN A. CARVALHO ty City Attorney
v Y CITY ATTORNE
eys for Defendant City of Los Angeles
17
1 PROOF OF SERVICE
2 CALIFORNIA SIDE BY SIDE SOCIETY. et al. vs. CITY OF LOS ANGELES. et al. Case No. EDCV04-1395 GAF (SGLx)
3
4 I am employed in the Office of the City Attorney, City of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 200 North Main Street,
5 Room 900, Los Angeles, CA 90012-4131.
6 On April 4, 2005, I served the foregoing document described as:
7 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY
8 INJUNCTION
9 on the interested part(ies) in this action by placing a [X] true copy [ ] original copy thereof enclosed in a sealed envelope addressed as follows:
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15 [X]
16 []
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18 []
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20 []
21 [X]
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C.D. Michel, Esq. Glenn S. McRoberts, Esq. Don B. Kates, Esq. Jason A. Davis, Esq. TRUTANICH • MICHEL, LLP 407 North Harbor Boulevard San Pedro, CA 90731
MAIL (C.C.P. §1013(a) & (b)) - I caused such envelope to be deposited in the mail at Los Angeles California, with first class postage thereon fully prepaid.
BY PERSONAL SERVICE (C.C.P. §1011) - ( ) I delivered by hand, or ( ) I caused to be delivered via messenger service], such envelope to the office(s) of the addressee(s) with delivery time prior to 5 :00 p.m. on the date specified above.
BY OVERNIGHT COURIER (C.C.P. §1013(c) & (d) - I caused the above-referenced document(s) to be delivered to DHL EXPRESS, an overnight courier service, for delivery to the above addressee(s).
BY FACSIMILE (C.C.P. §1013(e) & (f) and CRC Rule 2008 - I caused the abovereferenced document(s) to be transmitted to the above-named person(s).
Federal- I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.
23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
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Executed on April 4, 2005, at Los Angeles, California.
-TERRY ¥flf ~ ~ ~J
