Opinion
I. INTRODUCTION
In 2011, appellant Calguns Foundation, Inc. (Calguns), and two individual members (one, its chairman) filed an injunctive and declaratory relief action seeking a judgment declaring that a San Mateo County ordinance which precludes the possession and use of guns in the county’s parks and recreational .areas is preempted by state law, and hence enjoining enforcement of that ordinance. After briefing and argument, the trial court sustained the county’s demurrer to the complaint and entered a judgment of dismissal. We affirm that judgment.
n. FACTUAL AND PROCEDURAL BACKGROUND
Appellants’ complaint, filed on October 20, 2011, sought “Injunctive/ Declaratory Relief’ from the trial court and stated that the “policies, procedures and practices of the” county in administering San Mateo County Ordinance Code No. 3.68.080 1 “is preempted by State law,” specifically Penal Code former section 12050 (now § 26150.) 2
Ordinance No. 3.68.080, the relevant portion of which was originally enacted in 1934, now provides in relevant part: “(o) Firearms and Dangerous Weapons. Except as provided in subsection (p) and subsection (q), no person shall have in his possession within any County Park or Recreation area, or on the San Francisco Fish and Game Refuge, and no person shall fire or
As noted above, appellants’ complaint asserted that the predecessor section to the current section 26150 4 (former § 12050, subd. (a)(1)(A) & (D)) preempted that ordinance “to the extent [the ordinance] does not provide an exception for persons licensed to carry a firearm . . . .”
That statute provides in relevant part: “(a) When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following: [][] (1) The applicant is of good moral character. [][] (2) Good cause exists for issuance of the license, [f] (3) The applicant is a resident of the county or a city within the county, or the applicant’s principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business, [f] (4) The applicant has completed a course of training as described in Section 26165.” (§ 26150.)
As noted above, appellants’ complaint sought a declaration that ordinance No. 3.68.080, subsections (o) and (p), “is preempted by state law and therefore void” to the extent “it does not provide an exception for persons licensed to carry a firearm” under current section 26150. It also sought injunctive relief consistent with that declaratory relief, relief which “would include but be limited to a moratorium on enforcement of [ordinance No. 3.68.080] and/or certain provisions.”
Respondent County of San Mateo (County) filed a demurrer to appellants’ complaint on December 15, 2011. Appellants filed an opposition to that
The trial court heard oral argument on the matter on April 24, and continued the matter for further briefing. Supplemental briefs were submitted by both parties on, respectively, May 18 and June 4. On July 10, the trial court entered its order sustaining the County’s demurrer without leave to amend, and entered judgment for the County. Appellants filed a timely notice of appeal on July 31.
After the parties completed their briefing on the appeal, the National Rifle Association (NRA) filed an application to file an amicus curiae brief in support of appellants’ position together with such a brief. We granted that application and, as noted below, have also considered the NRA’s arguments in opposition to the ruling of the trial court and in favor of the contention that the County ordinance is either expressly or impliedly preempted by state law.
in. DISCUSSION
Simply stated, the issue before us is whether the trial court was correct in its ruling that there is no state statute which preempts ordinances such as ordinance No. 3.68.080, subsections (o) and (p), or any other similar county ordinances. 6 We hold that it was.
As our colleagues in the Third Appellate District summed up this issue just a few months ago: “ ‘A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.’ (Cal. Const., art. XI, § 7.) ‘The first step in a preemption analysis is to determine whether the local regulation explicitly conflicts with any provision of state law. [Citation.]’ [Citation.] [][]... [][] ‘The party
In two cases decided the same day in 2002, our Supreme Court applied these principles to the state regulation of guns and their possession and usage versus similar regulation by counties. Those cases are
Great Western Shows, Inc.
v.
County of Los Angeles
(2002)
In Great Western, the court had been presented with two questions by the Ninth Circuit Court of Appeals. Those questions and the court’s answers to them were summed up in the opening paragraphs of the court’s opinion:
“1. Does state law regulating the sale of firearms and gun shows preempt a county ordinance prohibiting gun and ammunition sales on county property?
“2. May a county, consistent with article XI, section 7 of the California Constitution, regulate the sale of firearms on its property located in an incorporated city within the borders of the county?
“The first question may be rephrased as follows: Does state law compel counties to allow their property to be used for gun shows at which guns and ammunition are sold? We conclude that it does not.
“We further conclude that a county may regulate the sale of firearms on its property located in a city when, as here, the county ordinance does not conflict with city law.” (Great Western, supra,27 Cal.4th at p. 858 .)
The court explained its answers to these questions by, first, addressing the issue of
“State Law Preemption in General and as Applied to Gun
Control.”
(Great Western, supra,
The court then summarized several appellate court cases that had addressed this issue, two of which ruled against any preemption
8
and one of which found a restrictive San Francisco firearm ordinance to be preempted.
9
It then summarized its key holding thusly: “In sum, a review of case law and the corresponding development of gun control statutes in response to that law demonstrates that the Legislature has chosen not to broadly preempt local control of firearms but has targeted certain specific areas for preemption.”
(Great Western, supra,
As noted earlier, the same day it decided
Great Western,
the court also published its decision in
Nordyke
in which it addressed another question posed to it by the Ninth Circuit, i.e.: “Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property?”
(Nordyke, supra,
The
Nordyke
court then briefly summarized its holdings in
Great Western,
including one which is highly relevant to the issue before us here: “[T]here are significant local interests in gun regulation that the Legislature has not sought to override except in specific areas . . . .”
(Nordyke, supra,
In their briefs to us, appellants and the NRA contend that the state laws that effect a preemption of the County ordinance are section 26150 et seq. and Government Code section 53071. 11 However, in support of its preemption argument, the NRA relies significantly more than appellants on section 26150 and the succeeding statutes, which it characterizes as the “Carry License” laws.
Following this section is a statute giving essentially the same permission to municipal authorities (§ 26155) and others relevant to the length of the validity of the license and the maintenance of records relating thereto (§§ 26220, 26225). Especially important is section 26200, subdivision (a), which provides: “A license issued pursuant to this article may include any reasonable restrictions or conditions that the issuing authority deems warranted, including restrictions as to the time, place, manner, and circumstances under which the licensee may carry a pistol, revolver, or other firearm capable of being concealed upon the person.” (§ 26200, subd. (a), italics added.) 12
In its initial argument regarding preemption, the NRA contends that there “is no exception in the challenged ordinance for persons who have been issued a license to carry a concealed firearm . . . .” It continues: “[Wjhile a local government might be allowed to require Carry License holders to comply with rules when carrying a firearm in its parks, the County may not prohibit Appellant from carrying a firearm pursuant to his state-issued license in local areas altogether.”
We disagree, for several reasons. First of all, the statute mainly relied on by the NRA, section 26150, specifically states that the county sheriff “may” issue a license to an applicant. Further, section 26200 makes very clear that an issued license “may include any reasonable restrictions or conditions” regarding when and where a licensee may carry his weapon. Under these sections, the sheriff clearly has “ ‘extremely broad discretion’. . . concerning the issuance of concealed weapons licenses . . . .”
(Gifford v. City of Los Angeles
(2001)
But the NRA argues that “[i]f local governments, rather than issuing sheriffs or chiefs of police, are permitted to enact further restrictions on Carry Licenses, visiting Carry License holders will be confronted with a patchwork quilt of different firearm restrictions each time they enter another jurisdiction to enjoy the county parks. ... To prevent widespread confusion, any time, place and manner restriction must be on the face of the issued Carry License, Penal Code section 26200, subdivision (b), not simply within the code books of the various cities and counties. That way, each licensee knows precisely which restrictions affect his or her Carry License.”
Regarding this preemption argument, the
Nordyke
court addressed the issue of whether section 26150 (then § 12050) preempted the Alameda County ordinance at issue in that case. It specifically held that it did not, stating: “The dissent contends that Penal Code sections 12031, 12050, and 12051 conflict with the Ordinance, apparently based on the presumption that these and other state statutes preempt the field of gun possession to such an extent that they impliedly prohibit counties from regulating gun possession on their own property. As explained more fully in
Great Western,
however, the Legislature has not indicated an intent to so broadly preempt the field of gun regulation. (See also Pen. Code, § 12050, subd. (b) [gun licensing subject to reasonable local time, place, and manner restrictions].)”
(Nordyke, supra,
We believe the holdings, and the specific statements explaining those holdings, in both
Great Western
and
Nordyke
defeat appellants’ and the NRA’s preemption argument insofar as such is based on former section 12050, subdivision (a) (current § 26150). First of all, in its amicus curiae brief to us, the NRA commences its arguments in favor of preemption by rather notably not citing, much less discussing or analyzing, the holdings in
Great Western
or
Nordyke
and, instead, basing their argument on cases involving state versus local legislation involving totally different subject matters, e.g., the forfeiture of vehicles used to commit criminal acts, the regulation of aerosol
The NRA’s principal argument in favor of preemption is that “California law establishes a process in Penal Code sections 26150 through 26225 for obtaining a Carry License from the sheriff or chief of police of one’s respective city, city and county, or county. This broad and comprehensive Carry Licensing scheme ... is strong evidence that the state intended to occupy the field of Carry License regulation, foreclosing future local action.” As a result, the NRA concludes, “the state has impliedly occupied the entire field of Carry License issuing and regulation and County Ordinance section 3.68.080 is thus preempted by state law.”
We disagree, and do so for the reasons stated in
Nordyke,
where the court explicitly rejected the contention that these same statutes “preempt the field of gun possession to such an extent that they impliedly prohibit counties from regulating gun possession on their own property. As explained more fully in
Great Western,
however, the Legislature has not indicated an intent to so broadly preempt the field of gun regulation.”
(Nordyke, supra,
Additionally, much earlier than its holdings in
Great Western
and
Nordyke,
our Supreme Court flatly rejected the argument that the NRA makes in its brief to us, i.e., that the substantial number of “Carry License” state laws impliedly preempts any and all additional regulation by California counties or cities. In its decision in
Galvan,
a unanimous court stated: “The fact that there are numerous statutes dealing with guns or other weapons does not by itself show that the subject of gun or weapons control has been completely covered so as to make the matter one of exclusive state concern. [][] To approach the issue of preemption as a quantitative problem provides no guidance in determining whether the Legislature intends that local units shall
As noted above, the Galvan decision led to the enactment of the predecessor statute to what is now Government Code section 53071. In their response to the County’s demurrer and supporting memorandum, appellants shifted their position in the trial court and argued that, although never cited in their complaint, that law was now the preempting statute. That statute reads as follows: “It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code.” (Gov. Code, § 53071.)
Appellants specifically contend that this statute preempts ordinance No. 3.68.080 under the holding of Division Four of this court in
Fiscal
v.
City and County of San Francisco
(2008)
In
Fiscal,
the court affirmed a decision of the San Francisco Superior Court, which had mled that a San Francisco ordinance which totally prohibited the possession and sale of handguns within the city was preempted by state law. Its opinion described the ordinance at issue thusly: “With narrow exceptions, section 3 of Prop. H bans the
possession
of handguns by San Francisco residents, including handgun possession within the sanctity of homes, businesses, and private property.”
(Fiscal, supra,
However, the
Fiscal
court made clear that it was so mling because of the extreme breadth of the ordinance being challenged. It first considered section
Later in its opinion, after dealing with issues not relevant here, i.e., the ordinance’s ban on gun sales, etc., the
Fiscal
court concluded: “We, therefore, affirm the trial court’s conclusion that Prop. H is invalid as preempted by state law. As the City repeatedly emphasizes, the statutes governing firearms have been ‘carefully worded to avoid any broad preemptive effect.’ [Citation.] Nevertheless, the sheer breadth of Prop. H makes it vulnerable to a preemption challenge. As already noted, section 2 of Prop. H bans the
‘sale,
manufacture, transfer or distribution’ of ammunition and firearms in the City, without exception. (Italics added.) With narrow exceptions, section 3 bans the
In so ruling, however—and as both appellants and amicus curiae NRA fail to acknowledge—the
Fiscal
court made clear that it well understood the rulings made by our Supreme Court in
Great Western
and
Nordyke
and carefully explained why those rulings did not apply to the facts before it; it stated; “These cases are palpably distinguishable from the case before us. In deciding
Great Western
and
Nordyke,
our Supreme Court was careful to confine its preemption analysis to the question of whether state law authorizing gun shows necessarily compelled counties to allow their property to be used for this purpose. [Citations.] The court found that there was acceptable interplay between the local government’s exercise of its power to control the use of its property and the state government’s regulation of gun shows to permit local governments to ban the sale of firearms and ammunition at gun shows on county-owned public property. [Citations.] Neither case can be properly read to extend that limited preemption inquiry to a case such as this one involving a local government’s attempt to enact an absolute and total ban of firearm and ammunition sales on all property, public and private, within its geographic jurisdiction. HQ In conclusion, we find the situations presented in
CRPA, supra,
First, and as our Supreme Court made clear in
Big Creek Lumber,
a party asserting that a “ ‘state law preempts a local ordinance has the burden of demonstrating preemption. [Citation.]’ [Citation.] There is a particular reluctance to find preemption of a local regulation covering an area of significant local interest that differs from one locality to another,
such as land use
regulation.”
(Browne, supra,
Second, as our colleagues in Division One made clear in
Suter.
“Whether the state law has preempted Lafayette’s local laws depends on whether there is legislation prohibiting local governments from requiring local licenses or permits from persons wishing to sell, lease or transfer firearms, or an expression by the Legislature of its intent to fully occupy that field.”
(Suter, supra,
This ordinance clearly bears no resemblance to the broad San Francisco ordinance struck down by the court in
Fiscal
for the obvious reason, among others, that it pertains only to specific areas within the county, and areas patently subject to the governance of the County Board of Supervisors, i.e., its parks and recreation areas. Such is exactly the sort of narrow regulation upheld against a claim of state law preemption in
Suter.
(See
Suter, supra,
57 Cal.App.4th at pp. 1118-1122.) As our Supreme Court made clear in
Nordyke;
“. . . Alameda County has the authority to prohibit the operation of gun shows held on its property . . . .”
(Nordyke, supra,
Fourth and finally, the statute appellants rely upon in their preemption argument simply does not apply to the issue of where gun owners may carry and use their weapons. Government Code section 53071, quoted in full above, regulates only “the registration or licensing of commercially manufactured firearms.” (Gov. Code, § 53071.) In its single sentence, it says nothing at all about anything other than that narrow subject.
Indeed, precisely this was the basis for the trial court’s ruling granting the County’s demurrer; in that ruling, the court (Judge V. Raymond Swope III) stated: “The language of the statute [(Gov. Code, § 53071)] indicates the legislature intends to occupy the field of regulation of the registration or licensing of commercially manufactured firearms. Nothing on the face of the subject ordinance purports to regulate registration or licensing of any firearm. It merely prohibits the possession of firearms on specified county property. Plaintiffs’ reliance on
Fiscal
is misplaced as it is factually distinct. In that case, the finding of preemption was based on the fact that the ordinance imposed a total ban on the possession of handguns within the City and County of San Francisco. As a result, it had the practical effect of revoking or
We agree with the trial court. Under the scope of firearm-regulation preemption articulated by our Supreme Court’s holdings in Great Western and Nordyke, Government Code section 53071 cannot be construed as precluding a California county from regulating the usage of firearms in its parks and recreation areas, as the County has opted to do by the challenged ordinance.
Making exactly this point is an earlier case cited by the
Suter
court,
Olsen, supra,
Again, this statement was made after and because of the enactment of and reliance by the defendants on the predecessor statute to Government Code section 53071. And, significantly, in its decision in Great Western our Supreme Court specifically quoted that statement in Olsen. (Great Western, supra, 27 Cal.4th at pp. 862-863; see CRPA, supra, 66 Cal.App.4th at p. 1313 [explicitly so holding].)
To put the matter simply, the San Mateo ordinance at issue in this case has nothing at all to do with “the registration and licensing of firearms” and hence cannot be considered preempted by Government Code section 53071.
Finally, appellants contend that other County ordinances, in chapter 3.53, enacted in 2002, constitute an “implied repeal” of ordinance No. 3.63.080,
We reject this argument for several reasons. First of all, it was never raised in the trial court, notwithstanding the fact that their complaint was filed almost a decade after ordinance No. 3.53.010 et seq. were enacted. “As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried. This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal; and it also reflects principles of
estoppel
and
waiver
. . . .” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) f 8:229, p. 8-155 (rev. # 1, 2011); see
Nelsen v. Legacy Partners Residential, Inc.
(2012)
But even on the merits, this argument has no weight. The broader prohibition of ordinance No. 3.53.010 et seq. excepts persons having a valid license to carry firearms, an exception not found in ordinance No. 3.63.080. But, as noted above, the latter section deals solely with County parks and recreation areas. The board of supervisors could well have concluded that a stricter standard of gun control is warranted in such areas and, under the law, they are free to enact exceptions or modifications to broader regulations when such is deemed appropriate. (See, e.g.,
Gray v. County of Madera
(2008)
The judgment of dismissal is affirmed.
Lambden, J., and Richman, J., concurred.
Appellant’s petition for review by the Supreme Court was denied November 13, 2013, S212356. Baxter, J., was of the opinion that the petition should be granted.
Notes
All further unspecified references to ordinances are to San Mateo County ordinances.
All further statutory references are to the Penal Code, unless otherwise noted.
Subsection (q) of ordinance No. 3.68.080 provides an exception, not relevant here, pertaining to the use of certain archery articles, i.e., bows and arrows.
The currently applicable statute was misidentified in appellants’ complaint as “section 25650.”
All further dates noted are in 2012.
In their filings below and their briefs to us, the parties note that very similar ordinances are found in many California counties and cities. Thus, the County specifically requested the trial court take judicial notice of similar ordinances in Santa Clara and Los Angeles Counties and the City of Daly City, but it declined to do so. Further, in an appendix to their opening brief in this court, appellants suggest that a ruling in their favor could well invalidate similar ordinances in over half of California’s 58 counties.
The County has requested this court take judicial notice of the Santa Clara County, Los Angeles County, and Daly City ordinances, as well as the original, i.e., 1934, ordinance of the County. Appellants have not opposed this request, and we hereby grant it.
In Galvan, a unanimous Supreme Court rejected an attack on a San Francisco ordinance requiring the registration of all firearms. It ruled that nothing in California statutes either expressly or by implication preempted such an ordinance. (See Galvan, supra, 70 Cal.2d at pp. 855-866.) After the decision in Galvan, the Legislature enacted Government Code former section 9619, now Government Code section 53071, to be discussed further below.
These two decisions, both of which were cited approvingly by the
Great Western
court, are
California Rifle & Pistol Assn.
v.
City of West Hollywood
(1998)
This case was
Doe v. City and County of San Francisco
(1982)
The holdings of
Great Western, Nordyke, CRPA,
and
Suter
are generally consistent with the holdings of other state appellate courts. (See Annot., Validity, Construction, and Application of Municipal Restrictions on Location or Operations of Facilities for Sale or Use of Firearms (2006)
Another statute cited and discussed by appellants—and, albeit very briefly, by the County—is the Gun-Free School Zone Act of 1995, found at section 626.9 in a chapter of the
Section 26200, subdivision (b), requires that any imposed restrictions “shall be indicated on any license issued.”
The NRA dismisses this statement from Nordyke as “little more than footnoted dicta.” We disagree; via that footnote, the majority of the court was responding to a very specific contention of dissenting Justice Brown as to the preemptive effect of (along with other statutes) former section 12050 (current § 26150). Its response was clear and twofold: (1) the Legislature’s lack of intent to “broadly preempt” county gun regulation and (2) the specific language of current section 26200 (former § 12050, subd. (b)), regarding “reasonable time, place and manner restrictions” on gun possession and use.
The NRA does not cite or discuss either of these cases until the final pages of its amicus curiae brief, where it attempts to distinguish them as applicable entirely to “gun shows” and similar “commercial activities” relating to guns.
Now section 25605, subdivision (b). This statute provides one (of several) exceptions to section 25400’s prohibition against “carrying a concealed firearm.” (§ 25400, subd. (a).) Specifically, it provides that a permit or license is not necessary regarding anyone who purchases, owns, possesses, etc., “a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.” (§ 25605, subd. (b).) Neither appellants nor the NRA cites, much less relies upon, this statute in their briefs to us.
In later parts of its decision, the Fiscal court addressed other issues presented by the San Francisco ordinance (but not involved here), namely the sale, manufacture, and distribution of handguns. (See Fiscal, supra, 158 Cal.App.4th at pp. 911-918.)
The NRA’s amicus curiae brief quotes these sentences from Division Four’s opinion in
Fiscal,
and then adds this final sentence from that opinion: “Therefore, when it comes to regulating firearms, local governments are well advised to tread lightly.” (Italics omitted; see
Fiscal, supra,
For this reason—among others noted above—we reject appellants’ contention that the ordinance they are challenging was a “dumb idea.”
Amicus curiae NRA states in its brief that “it takes no position on the issue of implicit repeal.”