Monday, February 11, 2013 Town of Los Gatos Mayor Barbara Spector Vice Mayor Steve Leonardis Council

Member Diane McNutt Council Member Joe Pirzynski Council Member Marcia Jensen 110 East Main Street Los Gatos, CA 95030 VIA EMAIL AND FAX Re: Templar Sports and Proposed City Codes Regulating Firearms Businesses

Dear Los Gatos Mayor Spector and Town Council, I write you today on behalf of California Association of Federal Firearms Licensees, Inc. (CAL-FFL) and our members, which include firearms retailers, manufacturers, trainers, shooting ranges, and related businesses located throughout California and the United States, as well as many individual supporters. Specifically, this letter relates to the Templar Sports matter and proposed regulations on zoning and the sale of firearms within the Town of Los Gatos (the Town). CAL-FFL has serious concerns over the Towns affirmative steps to violate our member Templar Sports right of due process. We are troubled that the Town might use extralegal tactics in order to block the lawful and well-considered operation of a quality local business run by upstanding citizens, including one person employed by the Town as a sworn law enforcement officer. Further, we must oppose the firearm regulatory measures proposed in the Town Council agenda report, discussed below. According to the February 8, 2013, Council Agenda Report entitled Discussion of Policy Issues and Direction Regarding Firearm Sales in Los Gatos and Consideration of Regulations on the Sale of Firearms and Ammunition (Continued from February 4, 2013), the report infers that the City Council might adopt measures to research and prepare potential Town ordinances and policy changes necessary to: Designate which land use zones may be appropriate for sale of firearms and ammunition; Require a Conditional Use Permit for the sale of firearms and ammunition; Restrict home occupation permits for sale of firearms and ammunition; Establish a Police Permit requirement for dealers of firearms and ammunition; Require identification checks for the sale of ammunition; and/or Require the reporting of lost or stolen firearms.

2370 W. Cleveland Ave. #332, Madera, CA 93637 888.541.3040 fax: 888.541.9011 calffl.org

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City of Los Gatos February 11, 2013 Page 2 of 7

In addition to the above recommendations, the report details the steps for a moratorium on businesses engaged in firearm and ammunition sales during the period. CAL-FFL cautions the Town to consider the short and long-term fiscal and administrative impacts of a federal civil rights lawsuit before instituting any such moratorium. I. TEMPLAR SPORTS MUST BE PERMITTED TO OPERATE WITHIN CITY LIMITS

In discussing the Steps for a Moratorium, the February 8 report states that: State law allows for temporary land use controls and growth measures based on documented health, safety, and welfare concerns through adoption of temporary moratoria. Moratoria maybe adopted to address temporary prohibitions of new uses that may be in conflict with contemplated zoning proposal that the Town Council plans to study. Adoption of a moratorium to restrict an existing use retroactively runs a significant risk of a determination of invalidity and, may expose the Town to litigation and potential substantial financial damages. CAL-FFL would like to make it clear that any moratorium which blocks Templar Sports from proceeding with their approved business under current Town regulations will guarantee that Los Gatos will be a defendant in the federal court system. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Fourteenth Amendments Due Process Clause states: [N]or shall any state deprive any person of life, liberty, or property, without due process of law In 2008, the Supreme Court struck down a District of Columbia law on an original-meaning interpretation of the Second Amendment. (District of Columbia v. Heller (2008), 554 U.S. 570, 635-36.) Heller held that the Amendment secures an individual right to keep and bear arms, the core component of which is the right to possess loaded, operable firearms handguns included for self-defense, most notably (but not exclusively) in the home. Id. At 592-95, 599, 628-29. Soon after the Courts decision in Heller, Chicagos handgun ban was challenged. McDonald v. City of Chicago (2010), 130 S.C.t. 3020, 3027. The foundational question in that litigation was whether the Second Amendment applies to the States and subsidiary local governments. Id. at 3026. The Supreme Court gave an affirmative answer: the Second Amendment applies to the States and local governments through the Due Process Clause of the Fourteenth Amendment. Id. at 3050. Subsequently, in Ezell v. City of Chicago (2011) 651 F.3d 684, plaintiffs challenged municipal ordinances that mandated one hour of training at a gun range as a prerequisite to lawful gun ownership but that also prohibited all firing ranges in the city. Plaintiffs sought and were denied a preliminary injunction to enjoin enforcement. On review, the federal Seventh Circuit Court of Appeals struck down the municipal

2370 W. Cleveland Ave. #332, Madera, CA 93637 888.541.3040 fax: 888.541.9011 www.calffl.org

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ordinance, holding that the central component of the Second Amendment, U.S. Const. amend. II, was the right to keep and bear arms for self defense, and the right to possess loaded, operable firearms for protection implied a corresponding right to acquire firearms and maintain proficiency in their use. Having established that a moratorium would affect a fundamental right, the Towns actions, if a moratorium is approved, would be akin to Cottonwood Christian Ctr. v. Cypress Redevelopment Agency (2002) 218 F. Supp. 2d 1203, in which the court applied strict scrutiny. In Cottonwood, the city created development plans for an area of blighted land, which remained undeveloped for years. The property owner acquired land in the development area and sought to build a church on the land. In order to allow the staff to explore this development plan, the City Council adopted a moratorium on discretionary land use permits on October 30, 2000. The moratorium prevented the granting of any discretionary land use permits, including CUPs, that were not complete prior to October 30, 2000. The original moratorium was for a 45 day period but was extended for ten months and 15 days and again for an additional 12 months to October 30, 2002. Because the City Planning Manager had determined that Cottonwood's application was incomplete, its application for a CUP could not even be considered by the City. Cottonwood was therefore effectively prevented from obtaining a CUP. Accordingly, it appealed the City Planning Manager's decision to the City Council. Strict scrutiny applied to the review of the city's actions under the Religious Land Use and Institutionalized Persons Act of 2000 and the Free Exercise Clause, U.S. Const. amend. I. The court found that the property owner had a likelihood of success on the merits of its claims because the city's zoning and eminent domain actions substantially burdened its exercise of religion, and the city's blight reduction and revenue production interests did not justify the burden. Similarly, a moratorium would substantially burden the exercise the Second Amendment and Templar Sports Due Process rights, where the cities alleged concerns do not justify the burden as demonstrated by the multiple previous firearm retailers whom had no stated negative impact within the Town. As such, Templar Sports must be permitted to operate within the City. II. ALL REGULATIONS MUST MEET STATUTORY AND CONSTITUTIONAL STANDARDS In Ezell, we found that the Second Amendment is like the First Amendment, in that a temporary deprivation of the right may constitute irreparable harm: [F]or some kinds of constitutional violations, irreparable harm is presumed. See 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE 2948.1 (2d ed. 1995) (When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.). This is particularly true in First Amendment claims. See, e.g., Christian Legal Socy, 453 F.3d at 867 ([V]iolations of First Amendment rights are presumed to constitute irreparable injuries . . . . (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amendment right is frequently presumed to cause irreparable harm based on the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even

2370 W. Cleveland Ave. #332, Madera, CA 93637 888.541.3040 fax: 888.541.9011 www.calffl.org

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if imperceptibly, from exercising those rights in the future. Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendments central component is the right to possess firearms for protection. 554 U.S. at 592-95. Infringements of this right cannot be compensated by damages. Ezell, at 651 F.3d 684, 699. All regulations passed by Los Gatos must contend with the limitations placed upon them by the Constitution. As discussed above, the Second Amendments protections against government infringement of a fundamental right extends to firearms acquisition and training. In laymans terms, guns are to the Second Amendment what books are to the First Amendment; likewise, firearm retailers like Templar Sports are to the Second Amendment what book stores are to the First. While the standard of review in the Ninth Circuit is unclear, it is certain that the standard of review for regulations upon the rights guaranteed under the Second Amendment is greater than rational basis review. As such, we urge the Town to consider whether or not it is ready, willing, and able to be a party to expensive federal litigation before passing ordinances and instituting moratoria that likely will be found infringe on fundamental constitutional rights. There are thousands of existing laws regulating possession, transportation, sale, transfer, distribution and every other action relating to firearms.1 The Towns proposed regulations explicitly ignore the fact that the State of California and the Federal government have already addressed many, if not most, of the concerns that the Town seeks to regulate with regard to the sale of firearms. More importantly, regulations were enacted by the State of California to the preemptive exclusion, both implied and express, of local municipalities. As the City and County of San Francisco discovered in Fiscal v. San Francisco (2008) 158 Cal. App. 4th 895, local regulation must carefully maneuver the minefield of the Californias complex and vast regulatory scheme or fail and pay the Plaintiffs attorneys fees. In Fiscal, plaintiffs, retired law enforcement and military personnel, law enforcement associations, and firearm-owner rights groups, challenged a voter-enacted local gun control ordinance of the defendant charter city. The ordinance prohibited most city residents from possessing handguns and all city residents from selling, distributing, transferring, and manufacturing firearms and ammunition. The Superior Court of the City and County of San Francisco, California, found that the ordinance was preempted and that the city's home rule power under Cal. Const., art. XI, 5, subd. (a), did not override the state's preemption. Defendants appealed. The court affirmed the decision of the trial court, holding that the ordinance was preempted in its entirety under Cal. Const., art. XI, 7. The section banning possession on
For a better understanding of the complexity of firearm laws, see State of California California Law Revision Commission, Non-Substantive Reogranization of Deadly Weapons Statutes (2008) available at http://www.clrc.ca.gov/pub/Printed-Reports/Pub233.pdf and Bureau of Alcohol, Tobacco, Firearms and Explosives Federal Firearms Reference Guide (2005) available at http://www.atf.gov/publications/download/p/atf-p-53004.pdf.
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2370 W. Cleveland Ave. #332, Madera, CA 93637 888.541.3040 fax: 888.541.9011 www.calffl.org

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private property was impliedly preempted by [former] Pen. Code 12026, which precluded local public entities from adopting impediments to possession of firearms by legally qualified citizens. The ban on possession also obstructed the objectives of the Penal Code scheme regulating handgun possession in California. The section banning sale, manufacture, transfer, or distribution of firearms was also preempted by state law. It contravened Gov. Code 53071, which expressly preempted any local enactments relating to the licensing or registration of commercially manufactured firearms, and conflicted with the Unsafe Handgun Act (UHA), [former] Pen. Code 12125-12233. The ordinance could not escape challenge under the home rule provision of Cal. Const., art. XI, 5, subd. (a), because it did not address only a municipal affair. Though the details of the proposed ordinances are uncertain, they already intercede into areas already addressed by regulation. For example, federal law already requires dealers to report firearms that are lost and stolen: A theft or loss of firearms must be reported to your local police as well as to ATF within 48 hours after the discovery. Licensees should notify ATF on the 24-hour, 7 days a week toll free line at 1-800-800-3855 and by preparing and submitting ATF Form 3310.11, Federal Firearms Licensee Theft/Loss Report. (18 U.S.C. 923(g)(6), 27 CFR 478.39 and 479.141.) Other than subjecting the Town to litigation, what would a duplicate or conflicting ordinance provide that federal or state law with existing regulatory oversight cannot? III. GUN STORES ATTRACT UPSTANDING, LAW-ABIDING CITIZENS THAT SUPPORT OTHER LOCAL BUSINESSES California gun store clientele are friendly, considerate, and law-abiding people who are ready and willing to submit to a background check for each and every firearm purchase and transfer, as required under current law. If such upstanding people are not welcomed in the Town of Los Gatos, who are? Silicon Valley technology firms have proven time and again over the years that the relative ease by which people may access a service is directly proportional to that services adoption. It should be the Towns goal to encourage measures and vehicles that make it easier for people to comply with the law, including background checks, rather than suppressing lawful firearms transactions. Make no mistake, there has been and will continue to be gun sales and transfers in and around the Town of Los Gatos. Would the Town prefer those to run through convenient, professional Federally-licensed stores like Templar or would it prefer that gun transfers occur out of sight in an underground economy with no regulation or enforcement other than the time-honored rule of the black market that cash is king? The Town would also be wise to consider that California gun buyers traditionally have higher levels of disposable income than many other subsets. Permitting the establishment of stores like Templar Sports will lead to growth in consumers Town residents and non-residents alike shopping, eating, and spending their money in Los Gatos. Templars positive financial contributions for the Town will reach far beyond that which is generated directly by sales at their store.

2370 W. Cleveland Ave. #332, Madera, CA 93637 888.541.3040 fax: 888.541.9011 www.calffl.org

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City of Los Gatos February 11, 2013 Page 6 of 7

At the current rate of taxation on sales in the Town (8.625%, according to the State of California Board of Equalization2), Templar may [and likely will] exceed $50,000 of tax revenue collected on just the firearms component of Templars business not inclusive of other non-firearms sales and firearmsrelated upsells like safes, locking containers, and other accessories. Supporting lawful firearms commerce by encouraging professionally-run establishments like Templar Sports is good for public safety, good for the economy, and is prudent Town policy. IV. CONSTITUTIONAL LITIGATION IS COSTLY In addition to the administrative burden of litigating unlawful ordinances, disruption to government, public tension, the direct costs of litigation and the associated impact to taxpayers, cities have had to pay substantial fee awards to victorious plaintiffs in firearms and Second Amendment cases since 2008. For example: Fiscal v. San Francisco: (NRA) $380,000 D.C. v Heller: (Alan Gura) $1,500,000 McDonald v. Chicago: (SAF/Alan Gura) $399,950 NRA v. Chicago: (NRA) over $1,400,000 Ezell v. Chicago: (SAF/Alan Gura) $TBD, likely in line with the above Moore v. Madigan: (SAF/Alan Gura) $TBD, likely in line with the above Shepard v. Madigan: (NRA) $TBD, likely in line with the above Importantly, the above fee amounts are those paid to the Plaintiffs by defendants and do not include the internal and third-party costs of the municipal defendants. Perhaps the Town is rich with tax revenues and costs going into the hundreds of thousands of dollars can simply be waved off as a non-issue. If so, then the Town might consider the benefits of using that money to hire additional law enforcement officers, librarians, and teachers rather than spending it on their and our lawyers. V. LAW CENTER TO PREVENT GUN VIOLENCE SHOULD PROVIDE A SURETY BOND TO INDEMNIFY AND DEFEND LOS GATOS AT THEIR OWN EXPENSE The Law Center to Prevent Gun Violence (formerly Legal Community Against Violence or LCAV) often makes claim that it will defend those regulations that it supports. However, we are not aware of any instance in which they have done so. It is our understanding that in no case has LCPGV carried the full direct costs of litigation on behalf of municipal defendants, including awarded attorneys fees and/or other money damages settlements. Before the Town adopts the high-risk policy recommendations of groups like LCPGV, they should require the groups (here, LCPGV) to issue a surety bond in at least the amount of reasonably anticipatable costs, both for direct costs of defense and the award of plaintiffs fees, for a civil rights lawsuit like Heller
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http://www.boe.ca.gov/cgi-bin/rates.cgi?LETTER=L&LIST=CITY

2370 W. Cleveland Ave. #332, Madera, CA 93637 888.541.3040 fax: 888.541.9011 www.calffl.org

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or McDonald. LCPGV wants municipal entities to be taxpayer-funded lab rats in their experiments with local regulation under the Constitution. The Town should, if it does wish to play in the civil rights litigation game, at least ensure their policies champions will absolutely be there for them to the lawsuit(s) ultimate conclusion - most importantly when the Town loses. CONCLUSION In conclusion, CAL-FFL advises against the Towns passage of an unconstitutional moratorium affecting firearm businesses like Templar Sports who have satisfied the current local ordinances. Moreover, CALFFL cautions the Town against hastily proposing and passing laws that enter into the already highlyregulated field of firearm sales especially where the Town faces substantial liability for infringing upon fundamental rights or duplicating and conflicting with existing law. We sincerely appreciate your consideration of the above. Should you wish to discuss any part of this letter in greater detail, please feel free to reach me at bcombs@calffl.org or (888) 541-3040. Thank you very much for your time.

Sincerely,

__________________ Mr. Brandon Combs President

Cc:

Judith Propp, Town Attorney Greg Larson, Town Manager

2370 W. Cleveland Ave. #332, Madera, CA 93637 888.541.3040 fax: 888.541.9011 www.calffl.org