The Law Offices of

DAVIS & ASSOCIATES

27201 Puerta Real, Ste 300, Mission Viejo, California 92691 Direct (949) 310-0817/Fax (949) 288-6894 Jason@CalGunLawyers.com
www.CalGunLawyers.com

May 1, 2013 The Honorable City Council Of the City of Los Angeles Room 395, City Hall 200 North Spring Street Los Angeles, California 90012 VIA FAX & EMAIL Re: COUNCIL FILE NO: 13-0068 PROHIBIT POSESSION OF HIGHCAPACITY AMMUNITION MAGAZINES OPPOSE

Position:

Dear Members of the Los Angeles City Council, I write on behalf of The Calguns Foundation, Inc. (Calguns) and California Association of Federal Firearms Licensees, Inc. (CAL-FFL) and their members to provide this opposition and pre-litigation demand regarding your proposal to regulate Large Capacity Magazines. File Number 13-0068: Large Capacity Magazines Calguns and CAL-FFL oppose the Citys proposed outright ban on large capacity magazines, which would include barring possession of lawfully acquired, lawfully possessed, and in some cases lawfully registered large-capacity magazine firearms which the City Attorneys office has incorrectly identified as a public nuisance. Not only is such an ordinance a violation of the United States Constitution, it would be preempted under California law. The City Attorneys office states that it is clear that under state law a large-capacity magazine is a nuisance, which is subject to confiscation and destruction. In fact, the proposed ordinance mis-states California law by proffering that any large-capacity magazine is a nuisance under California Penal Code section 32390 and subject to confiscation and summary destruction wherever found within the state. State law, however, contradicts this statement. First, it is important to note that possession of large capacity magazines is permitted under California law. Specifically, Penal Code section 32310 provides that any person in this state who manufactures, or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any large-capacity magazine . is guilty of a crime. Conspicuously omitted from this provision is

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COUNCIL FILE NO: 13-0068 LARGE CAPACITY MAGAZINES May 1, 2013 Page 2 any restriction on the possession of large-capacity magazines because possession is not prohibited. And, the courts would agree; the courts role in interpreting or construing a statute is to ascertain and effectuate the legislative intent. Laurel Heights improvement Assn. v. Regents of U.C., 6 Cal. 4th 1112, 1127 (1993). To do so, the court must follow the language used in a statute and give it its plain meaning. In re Rudy L., 29 Cal.App. 4th 1007, 1011 (1994). [I]f a statute announces a general rule and makes no exception thereto, the courts can make none. [citation.] A court may not insert into a statute qualifying provisions not intended by the Legislature and may not rewrite a statute to conform to an assumed legislative intent not apparent. [Citation.] Burnsed v. State Bd. Of Control, 189 Cal.App. 3d 213, 217 (1987). Additionally, specific [statutory] provisions should be construed with reference to the entire statutory system of which it forms a part, in such a way that the various elements of the overall scheme are harmonized. Bowland v. Municipal Court, 18 Cal. 3d 479, 489 (1976). Common principles are used to harmonize statutes, such as when a statute omits a specific matter from its coverage, the inclusion of such matter in another statute on a related subject demonstrates an intent to omit the matter from the coverage of the statute in which it is not mentioned. Here, the Penal Code is rife with prohibitions on the possession of certain firearms and firearm-related accessories but no such prohibition exists with respect to large-capacity magazines. A review of the legislative history relating to the restrictions placed upon firearm magazines makes it absolutely clear that possession and use of large-capacity magazines were intentionally permitted by the State of California. Specifically, the Senate Public Safety Committee commented that the bill enacting the large-capacity magazine restrictions would make it a crime to do anything with detachable large-capacity magazines after January 1, 2000 except possess and personally use them. (Sen. Com. Pub. Safety, SB 23, 1999 Cal. Stat. ch. 129 p.7 (emphasis added). The City Attorneys office relies upon the language contained in Penal Code section 32390 to allege that all large capacity magazines became a nuisance to possess in 2012 when that provision became effective. Penal Code section 32390, however, was part of a legislation package to reorganize and renumber the statutes governing control of firearms without changing their substantive effect. In fact, the non-substantive nature of the laws new text was codified in Penal Code section 16005, which states: Nothing in the Deadly Weapons Recodification Act of 2010 is intended to substantively change the law relating to deadly weapons. The act is intended to be entirely nonsubstantive in effect. Every provision of this part, of Title 2 (commencing with Section 12001) of Part 4, and every other provision of this act, including, without limitation, every cross-reference in every provision of the act, shall be consistent with the nonsubstantive intent of the act. Thus, all changes made to the Penal Code as a part of the Deadly Weapons Recodification Act of 2010 were entirely nonsubstantive and their previous interpretations and intents remain intact. In

The Law Offices of

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COUNCIL FILE NO: 13-0068 LARGE CAPACITY MAGAZINES May 1, 2013 Page 3 other words, possession of large-capacity magazines cannot be deemed a nuisance because possession of such magazines was previously authorized in statutes through the omission of any ban on possession and through, inter alia, Penal Code sections 32315, 30900 et seq., 31000, and 31005, which permit their possession under certain state regulatory schemes. Despite the above, the City of Los Angeles seeks to encroach on multiple areas of law relating to large-capacity magazines in such a manner that conflicts with the comprehensive state scheme. Fiscal v. City and County of San Francisco, 158 Cal. App. 4th, 895, 904, 919 (Ct. App. 2008) cautions local governments -- such as the City of Los Angeles -- to tread lightly when entering into the field of firearms regulation, providing the following preemption guidelines: (1) [T]he subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweigh the possible benefit to the locality. Here, given the comprehensiveness of the States large-capacity magazine restrictions and the intention of the state to provide multiple paths to possession of large-capacity magazines, the Citys proposal would be preempted under all three prongs established by the Fiscal court. It is important to note that the Citys proposal is akin to its previous ban on assault weapons a ban that was repealed by the City Council in the face of preemption litigation. Should 13-0068 pass, litigation will follow. Most importantly, however, is that the proposed ordinance places an unconstitutional burden on gun owners in violation of the Second Amendment to the United States Constitution. U.S. Supreme Court decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) affirmed that the Second Amendment to the United States Constitution guarantees an individual right to keep and bear arms, which was incorporated to apply to state and local governments in McDonald v. Chicago (2010) 130 S. Ct. 3020. The City's attempt to ban, outright, firearms in common use by regulating away their essential and necessary firearm components on a piecemeal basis violates the Second Amendment and infringes on fundamental individual liberties. If the City's ordinance is passed, the City should expect a civil rights lawsuit to be filed in Federal court. Sincerely, DAVIS & ASSOCIATES s/ Jason Davis JASON DAVIS