OF COUNSEL

SENIOR COUNSEL
C. D. MICHEL*

DON

eshEc.

SPECIAL COUNSEL
JOSHUA R. DALE
ERIC M. NAKASU
W. LEE SMITH
ASSOCIATES
ANNA M. SARVIR
MICHELLE 6IOLRIAN
SEAN A. SRADY
Scorr M. FRANKLIN
BEN A, MACHIDA
CLINT B. MONFORT
JOSEPH A. SILVO5O.

Att

B. KATES

BATrLEGROUND, WA
RUTH P. HARING
MATTHEW M. HORECZKO

atjLaw

Los ANGELES, CA

III

Los ANGELES, CA
WRITERS DIRECT CONTACT:
*

562-2 I 6-4444

ALSO ADMITrED IN TExs AND THE

DISTRICT OF COLUMBIA

ABARVIR@MICHELLAWYER5.COM

January 4, 2016
Council President Lynette Gibson McElhaney
Council President Pro Tern Larry Reid
Vice Mayor Rebecca Kaplan
Council Member Dan Kaib
Council Member Abel J. Guilln
Council Member Annie Campbell Washington
Council Member Noel Gallo
Council Member Desley Brooks
CITY OF OAKLAND
1 Frank H. Ogawa Plaza
Oakland, CA 94612
VIA U.S. MAIL & E-MAIL

Re:

Ms. LaTonda Simmons

City Clerk
CITY OF OAKLAND
1 Frank H. Ogawa Plaza
Oakland, CA 94612
VIA U.S. MAIL & E-MAIL
(citvclerkoak1andnet.com)

Council File No. 15-0424: Prohibiting Possession of Large-Capacity Magazines

OPPOSITION

Dear City Council Members:

We write on behalf of our clients, the National Rifle Association of America, Inc., and the
California Rifle and Pistol Association, as well as the hundreds of thousands of their members in
California, including those members residing in the City of Oakland, reasserting our opposition to File No.
15-0424.
The Proposed Ordinance would ban the possession of magazines capable of holding more than ten
rounds of ammunition, subject to a number of limited exemptions. Anyone in possession of such a
magazine prior to the law taking effect would have 90 days to remove it from the city, surrender it to law
enforcement for destruction, or otherwise transfer it in accordance with state law. Because the ordinance is
constitutionally infirm, our clients must oppose its adoption.

I 80 EA5T 0cN BOULEVARD SUItE 200 LONG BEACH CALIFORNIA 90802

TEL: 562-2 I 6-4444 FAX: 562-2 I 6-4445 WWW.MICHELLA.WYERS.COM

January 4, 2016
Page 2 of 3
I.

THE PROPOSED ORDINANCE Is PREEMPTED BY CALIFORNIA LAW

Under the preemption doctrine, a local regulation is void if it duplicates, conflicts with, or enters a
field wholly occupied by the state to the exclusion of local regulation, either expressly or by implication.
Fiscal v. City and County ofSan Francisco, 158 Cal. App. 4th 895, 903-04 (2008). By prohibiting the
possession of magazines over ten rounds, items that are already heavily regulated by state law, the
Proposed Ordinance both conflicts with and enters a field fully occupied by state law. The Proposal is
thus preempted by state law.
Indeed, our office is currently involved in litigation against the City of Los Angeles on preemption
grounds for passing a nearly identical ordinance. It is in the Citys best interests to wait until that case,
Bosenko v. Los Angeles, L.A. Super. Ct. Case No. BS 158682, is resolved before acting.
II.

THE PROPOSED ORDINANCE VIOLATES THE SECOND AMENDMENT

The United States Supreme Court has expressly held that arms typically possessed by law-abiding
citizens for lawful purposes or those in common use are protected by the Second Amendment. District
of Columbia v. Heller, 554 U.S. 570, 624-25 (2008). There is no dispute that such protection extends to
commonly used ammunition feeding devices, such as magazines, that are necessary for the meaningful
exercise of the right. Fyock v. Sunnyvale, 779 F.3d 991, 997, 1001 (9th Cir. 2015).
The magazines subject to the Proposed Ordinance are exceedingly common and are often found to
be standard equipment on many firearms. Due to the popularity of these magazines and their effectiveness
for personal defense, they are widely used (and often preferred) for home defense. As stated in Heller, the
inherent right of self-defense has been central to the Second Amendment right[,] and the need for
self-defense, family, and property is most acute in the home. Heller, 554 U.S. at 628. By prohibiting one
of the most common and preferred means of self-defense, the Proposed Ordinance will only serve to
restrict the right to self-defense of the law-abiding and thereby decrease public safety. As a result, the
Proposed Ordinance unjustifiably and illegally interferes with the Second Amendment right to keep and
bear arms.
Whats more, Second Amendment litigation against the City of Sunnyvale for passing a very
similar ordinance in 2013 is ongoing. While the Ninth Circuit Court of Appeals upheld the denial of the
challengers motion for preliminary injunction in that case, it made also clear that the Second Amendment
protects the very magazines the City here seeks to ban. Fyock, 779 F.3d at 997, 1001. And Fyock is far
from over, as the case continues on the merits in the district court. The City should wait for final judgment
in Fyock before taking any action to bar the possession of magazines over ten rounds.

Since January 1, 2000, California state law has prohibited the manufacture, importation, sale, giving, lending, buying,
or receiving of any large-capacity magazine, Cal. Penal Code 32310, which state law defmes as any ammunition feeding
device with the capacity to accept more than 10 rounds, Cal. Penal Code 16740. Notably, California does not prohibit the
mere possession of these magazines. Indeed, many lawfully owned large-capacity magazines existed well before the state
sales restriction took effect in 2000.
I 80 EAST OCEAN BOULEVARD SUITE 200 LONG BEACH CALIFORNIA 90802
TEL: 562-2 I 6-4444 FAX: 562-2 I 6-4445 WWW.MICHELLAWYERS.COM

January 4, 2016
Page 3 of3
III.

CONCLUSION

We strongly urge the City Council to reject this proposal. Simply put, any action by the City on the
Proposed Ordinance is premature. And, such would invite immediate litigation against the City to have the
laws invalidated. Should you require further guidance, our office is available to discuss the constitutional
issues raised in this correspondence.
Sincerely,
Michel & Associates, P.C.

Anna M. Barvir

90802
80 EAST OCEAN BOULEVARD SUITE 200 LONG BEACH CALIFORNIA
S.COM
ELLAWYER
WWW.MICH

TEL: 562-2 I 6-4444 FAx: 562-2 I 6-4445