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hoffmang
10-20-2011, 4:46 PM
Calguns Foundation Sues San Mateo County
Over Preempted Parks Carry Ban

San Carlos, CA (October 20, 2011) – As part of its ongoing Carry License Compliance and Sunshine Initiative, the Calguns Foundation (CGF) announced that it has sued San Mateo County over their ban on the carry of firearms by those licensed to carry in San Mateo County Parks in a case entitled Early v. San Mateo County. California prohibits cities and counties from passing additional regulations regarding the licensure of firearms. Plaintiffs Grant Early and Gene Hoffman both hold state-wide licenses to carry firearms from their respective sheriffs in the counties where they reside.

CGF approached San Mateo County to request that the county simply add an exception to their ban on carrying a firearm in county parks for those who are licensed by the State of California to carry a firearm. The County refused to add the exception.

Those who hold carry licenses in California have had to show “good cause,” and complete a background check and training to obtain a permit from their sheriff or chief of police. In most cases “good cause” is a specific life threatening reason for their need to carry. However, in some counties the need for self defense is considered good cause to comport with the Constitution.

“My need to carry a firearm for self defense doesn’t stop at the edge of a county park,” said plaintiff Grant Early. “Mountain lions are common in San Mateo county parks as are predators of the two legged kind. I’m glad that the California Legislature saw fit to protect my right to keep and bear arms by requiring uniformity for carry licenses throughout the state.”

“Recently, San Francisco attempted to regulate the licensing of firearms and that attempt cost San Francisco more than $500,000.00 in legal costs to lose a court case,” stated Gene Hoffman, Chairman of CGF and a plaintiff. “Carry licenses were specifically highlighted in that case as being the type of state license that cities and counties had no authority to regulate. I certainly hope that San Mateo County comes to understand that it’s a bad idea to waste county taxpayer money to violate California law and limit fundamental individual rights.”

A copy of the complaint is available at http://bit.ly/earlyvsm.

About the Carry License Compliance and Sunshine Initiative

CGF is working to compel government agencies to comply with the Constitution, to promote transparency in the process of issuing licenses, and to bring about a lawful and orderly way for California citizens to exercise self-defense. . Through its Richards v. Prieto case, CGF changed Sacramento County’s carry license issuance policy to allow any law-abiding resident of Sacramento County to obtain a license. The case continues against Sheriff Prieto and Yolo County in the Ninth Circuit Court of Appeals to test the sheriff’s assertion that he has the sole discretion to decide to who may – and who may not -- exercise the right to self-defense. Additionally, CGF has sued Merced County in Rossow v. Merced (http://www.calguns.net/calgunforum/showthread.php?t=459984) for various unlawful policies and procedures required of its carry license applicants. Recently, CGF won a lawsuit (http://www.hoffmang.com/firearms/ventura/CGF-v-Ventura-Int-Dec-2011-07-01.pdf) against Ventura County who had refused to make public the “good causes” statements that some Ventura County residents had used to obtain carry permits from the sheriff in that county. CGF is working to make the right to carry the means of self-defense available for all law abiding Californians. The lives of people living in Los Angeles and San Francisco are no less deserving of the constitutional right of self-defense than the good people of Seattle, Portland, and 40 other states throughout the nation.

___

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization which serves its members by providing Second Amendment-related education, strategic litigation and the defense of innocent California gun owners from improper or malicious prosecution. The Calguns Foundation seeks to inform government and protect the rights of individuals to acquire, own, and lawfully use firearms in California.

Contact:
Gene Hoffman 650-275-1015
hoffmang@calgunsfoundation.org

taperxz
10-20-2011, 4:50 PM
Awesome! Does this also include the "open space preserves"?

safewaysecurity
10-20-2011, 4:52 PM
Ah so this is what you were talking about. Sounds like it should be a simple state preemption case. You are asking for a Preliminary Injunction right?

CitaDeL
10-20-2011, 4:53 PM
Excellent. There are other localities that prohibit firearms in city parks with no provision for those who already have a license to carry wherein the ordinance requires a permit issued by the city police chief. If you are already licensed by the state to carry- why then would one need another permit to carry in a park?

Databyter
10-20-2011, 4:54 PM
This seems on the face of it like a liberal knee-jerk reaction without good cause.

I'm sure CGF will win here (not saying it will be easy).

That reminds me, next time I have a few extra bucks I'm gonna have to donate to help you guys push these rights.

Good going CGF.

paul0660
10-20-2011, 5:00 PM
Good. Hopefully success here will lay foundation for further elimination of these ordinances without lawsuit.

hoffmang
10-20-2011, 5:00 PM
Awesome! Does this also include the "open space preserves"?
The same logic will apply and we will then move around the state applying that logic.
Ah so this is what you were talking about. Sounds like it should be a simple state preemption case. You are asking for a Preliminary Injunction right?

We will move quickly on this as Fiscal (http://www.hoffmang.com/firearms/a115018.pdf) controls.

-Gene

mosinnagantm9130
10-20-2011, 5:04 PM
Nice, go get em CGF!

erik
10-20-2011, 5:28 PM
:thumbsup:

Then on to other Bay Area counties, hopefully Santa Clara count next.

http://library.municode.com/HTML/13790/level4/TITBRE_DIVB14PARE_CHIIIGEPUCO_ART1FIWE.html#TITBRE _DIVB14PARE_CHIIIGEPUCO_ART1FIWE_SB14-31.1FIWE


Sec. B14-31.1. - Firearms and weapons.

(a)

No person shall have in his possession, set, leave or deposit, fire or discharge, or cause to be fired or discharged, across, in, on or into County park lands any weapon, spear, missile, sling shot, trap or hunting device, air or gas weapon, throwing knife or axe, or any other weapon or device capable of injuring or killing any person or animal, damaging any property or natural resource, except in areas established for such use or while in direct transit to or from such areas and available parking .


(b-f doesn't give any exemptions save for specific areas designated for firearms use. The code is under Parks - General Conduct. Maybe I'm looking in the wrong place for any exemption for officials?)

Andy Taylor
10-20-2011, 5:34 PM
:jump:

Darklyte27
10-20-2011, 6:06 PM
in another words
"I kick ***" stated Gene Hoffman, Chairman of CGF and a plaintiff.

Fjold
10-20-2011, 6:11 PM
The city of Bakersfield has a similar restriction:

12.56.050 Prohibited acts in parks.
Within the limits of any park, it is unlawful for any person, other than a duly authorized city employee in the performance of his or her duty, to do any of the following:

.................................................. ..................

I. Take into, exhibit, use or discharge any firearm, weapon, air gun or slingshot;

tabrisnet
10-20-2011, 7:14 PM
Nothing much is gonna happen in SCC until Scocca v Smith goes somewhere. Unless somehow we can have more than lawsuit against them at the same time w/o getting them joined or delayed.

Connor P Price
10-20-2011, 7:22 PM
A preemption case... Genius. A win here will set a great example to all the other municipalities with similar laws.

Sent from my SGH-T959 using Tapatalk

hoffmang
10-20-2011, 7:23 PM
Nothing much is gonna happen in SCC until Scocca v Smith goes somewhere. Unless somehow we can have more than lawsuit against them at the same time w/o getting them joined or delayed.

This issue is discreet and separate from the equal protections case against Santa Clara. They'll be asked to change their parks regs too and will get to choose between complying and paying our legal fees also.

-Gene

HowardW56
10-20-2011, 7:31 PM
A preemption case... Genius. A win here will set a great example to all the other municipalities with similar laws.

Sent from my SGH-T959 using Tapatalk


:iagree:

EchoFourTango
10-20-2011, 7:46 PM
Nice

Purple K
10-20-2011, 8:19 PM
All of us should be searching or own city and county municipal codes for similar violations

johndoe2150
10-20-2011, 8:26 PM
All of us should be searching or own city and county municipal codes for similar violations

I would imagine that this could be problematic.

City of Lomita

9.16.050 - Carrying concealed weapons.

It is unlawful for any person except a duly elected or appointed peace officer to carry concealed upon or about his person any revolver, pistol, dagger, dirk, locking-blade knife, slug or sling shot, billy or other deadly weapon or instrument without first having obtained a written permit from the sheriff of the county of Los Angeles.

Crom
10-20-2011, 8:34 PM
Very good. I love it! So much win here! :)

Gray Peterson
10-20-2011, 8:45 PM
Great case, very good case.

Let's hold off on looking through the legal codes until we are further along in Early or as specifically directed.

Purple K
10-20-2011, 8:49 PM
I would imagine that this could be problematic.

City of Lomita

9.16.050 - Carrying concealed weapons.

It is unlawful for any person except a duly elected or appointed peace officer to carry concealed upon or about his person any revolver, pistol, dagger, dirk, locking-blade knife, slug or sling shot, billy or other deadly weapon or instrument without first having obtained a written permit from the sheriff of the county of Los Angeles.

Problematic how? The statute that you cited is clearly unlawful. You found it in a matter of minutes and posted it here. There are now nearly 100,000 Calgunners that could easily do the same in their city. Where's the problem?

paul0660
10-20-2011, 8:56 PM
The statute that you cited is clearly unlawful.

Not exactly yet.

Finding local ordinances that violate rights is not difficult. Win this one............foundation and traction.

wildhawker
10-20-2011, 9:10 PM
We have a forthcoming fire mission for just this purpose...

-Brandon

Great case, very good case.

Let's hold off on looking through the legal codes until we are further along in Early or as specifically directed.

Connor P Price
10-20-2011, 9:20 PM
We have a forthcoming fire mission for just this purpose...

-Brandon

A really long mailing lost perhaps?

Sent from my SGH-T959 using Tapatalk

johndoe2150
10-20-2011, 9:46 PM
Problematic how? The statute that you cited is clearly unlawful. You found it in a matter of minutes and posted it here. There are now nearly 100,000 Calgunners that could easily do the same in their city. Where's the problem?

Problematic for the city. I should have specified.

Paladin
10-20-2011, 10:21 PM
A small, but important step.

May many other steps follow in .... ;)

“Mountain lions are common in San Mateo county parks as are predators of the two legged kind. I’m glad that the California Legislature saw fit to protect my right to keep and bear arms by requiring uniformity for carry licenses throughout the state.”Off Topic: The odds are your first indication that a mountain lion may attack you is the feeling of fangs in the back of your skull and neck and claws tearing into your back and shoulders. Those are sneaky sons of a gun!

If I were in mountain lion country, I'd want to open carry two 4" 7-shot L-frames w/.357 mag AND two large fixed bladed (at least 6" blades) knives. Why two of each? Because you want to be able to get to them w/either hand. 4" barrels are short enough to maneuver while wrestling w/the beast and I'd carry revolvers so that shooting "muzzle to meat" won't be a problem.

jb7706
10-20-2011, 10:29 PM
psst...Sac County, you listening? :43:

Decoligny
10-20-2011, 11:09 PM
Excellent. There are other localities that prohibit firearms in city parks with no provision for those who already have a license to carry wherein the ordinance requires a permit issued by the city police chief. If you are already licensed by the state to carry- why then would one need another permit to carry in a park?

Yeah, like Los Angeles County. They have an ordinance prohibiting carry of firearms in county parks. If they win this one, the rest of the counties with similar ordinances should fall like dominoes.

stix213
10-21-2011, 12:57 AM
I love how Gene is personally a plaintiff here, as if he's walking up and slapping them right across the face this time instead of just releasing the hounds :D

Window_Seat
10-21-2011, 5:07 AM
I especially like that Gene is a plaintiff for several reasons, one of which is an EXTREMELY good thing, and proves that anyone can be similarly situated (so long as they're clean, and of the right fit of course).

Thanks CGF. :thumbsup:

Erik.

dantodd
10-21-2011, 5:49 AM
In the second claim for relief there is a significant typo. It states that the relief sought "includes but be limited to..." rather than" includes but NOT be limited to..."

Wrangler John
10-21-2011, 6:15 AM
Great, now the visitors may soon be able to pack, but the Rangers are still unarmed. Can't even carry handcuffs or pepper spray. Many a day I had to transport $12-20k of cash to the Treasurer's Office for deposit while unarmed, on multiple days a week. Even the coin collectors working city parking meters packed in the old days. The County wouldn't let us deposit cash in a local bank, or hire an armored car service. Not to mention safety of dealing with assault and battery, DV, child molestation, drug and mentally deranged cases. They even discovered a pot growing operation in Huddart Park, but medical marijuana has probably killed that business. Been living on luck for a long time. Even the S.F. Watershed tenders working in San Mateo County were deputized and carried. They are really anti-gun and self-defense.

Given that, the County will fight the whole way - go get 'em.

FABIO GETS GOOSED!!!
10-21-2011, 8:49 AM
Is there a difference between county parks and county fairgrounds? Are they both county property?

Window_Seat
10-21-2011, 8:52 AM
Is there a difference between county parks and county fairgrounds? Are they both county property?

Very good question. I would imagine that if they are the same (as far as property), could this effect Nordyke?

Erik.

FABIO GETS GOOSED!!!
10-21-2011, 9:22 AM
I was thinking the other way around.

Gray Peterson
10-21-2011, 9:25 AM
Is there a difference between county parks and county fairgrounds? Are they both county property?

You know, it's really scary when by only two sentences, I can figure out what your angle is.

From Nordyke II:

But even if we accept the Nordykes' argument that in at least some cases the Legislature meant to preempt local governments from criminalizing the possession of firearms by certain classes of people, that would establish at most that the Ordinance is partially preempted with respect to those classes. Partial preemption does not invalidate the Ordinance as a whole.

In sum, whether or not the Ordinance is partially preempted, Alameda County has the authority to prohibit the operation of gun shows held on its property, and, at least to that extent, may ban possession of guns on its property.

There is a reason Alameda County allows people with LTC's, including LTC's of other counties which issue freely (such Sacramento, El Dorado, Sutter, etc), to carry there, due to the fear of the preemptive nature of GC53071. Though I'm sure that San Mateo will likely make the same argument you're thinking in your head, the fact that one of their sister counties (in fact, the county which San Mateo copied Alameda's gun possession ban word for word on fairgrounds property) exempts LTC holders is telling.

They also aren't asking for a complete invalidation, just that state law partially preempts law in regards to LTC holders. There is no "state gun show" license as far as I have seen, there is a state LTC, however.

UPDATE: Just checked again here (http://ag.ca.gov/firearms/forms/), no state gun show license exists.

I also checked the Gun Show Enforcement Act of 2000. It says:

(a) No person shall produce, promote, sponsor, operate, or otherwise organize a gun show or event, as specified in subparagraph (B) of paragraph (1) of subdivision (b) of Section 12071, unless that person possesses a valid certificate of eligibility from the Department of Justice. Unless the department's records indicate that the applicant is a person prohibited from possessing firearms, a certificate of eligibility shall be issued by the Department of Justice to an applicant provided the applicant does all of the following:

A certificate is not a license. Words matter.

Crom
10-21-2011, 9:33 AM
Is there a difference between county parks and county fairgrounds? Are they both county property?

Haha. In Nordyke the issue of carry was not before the court. It was about acquisition of arms on county property. With this case carry is before the court. There is a difference. ;)

Gray Peterson
10-21-2011, 9:48 AM
Haha. In Nordyke the issue of carry was not before the court. It was about acquisition of arms on county property. With this case carry is before the court. There is a difference. ;)

It's actually simplier than that. The thing the DOJ issues to allow for a person to run a gun show is not a license, it is a certificate. Words matter.

barracudamuscle
10-21-2011, 9:49 AM
Insert ::Likes This:: button here! Great work as always!

FABIO GETS GOOSED!!!
10-21-2011, 10:05 AM
Haha. In Nordyke the issue of carry was not before the court. It was about acquisition of arms on county property. With this case carry is before the court. There is a difference. ;)

Are you talking about the Nordyke that ruled directly that a ban on firearm possession on county property is not preempted?

Big Ben
10-21-2011, 10:16 AM
Are you talking about the Nordyke that incorrectly ruled directly that a ban on firearm possession on county property is not preempted?

Fixed it for you.

FABIO GETS GOOSED!!!
10-21-2011, 10:20 AM
There is a reason Alameda County allows people with LTC's, including LTC's of other counties which issue freely (such Sacramento, El Dorado, Sutter, etc), to carry there, due to the fear of the preemptive nature of GC53071.

Seems to me that if the ordinance exempts persons with licenses to carry concealed firearms, you could make pre-emption arguments under Doe. In any event, the San Mateo ordinance is not a county-wide ordinance that would "invalidate" a 12050 license. It's a place restriction and the Cal. Supreme Court has already said that "the Legislature has not indicated an intent to so broadly preempt the field of gun regulation" so as to preclude those (citing 12050 as support).

FABIO GETS GOOSED!!!
10-21-2011, 10:22 AM
Fixed it for you.

You're right, state courts won't follow direct authority from Cal. Supreme Court. Carry on.

Gray Peterson
10-21-2011, 10:32 AM
Seems to me that if the ordinance exempts persons with licenses to carry concealed firearms, you could make pre-emption arguments under Doe. In any event, the San Mateo ordinance is not a county-wide ordinance that would "invalidate" a 12050 license. It's a place restriction and the Cal. Supreme Court has already said that "the Legislature has not indicated an intent to so broadly preempt the field of gun regulation" so as to preclude those (citing 12050 as support).

Except only the LTC issuing authorities are allowed to put "time, place, manner" restrictions on the LTC. PC12050(b)

(b) A license may include any reasonable restrictions or conditions which the issuing authority deems warranted, including restrictions as to the time, place, manner, and circumstances under which the person may carry a pistol, revolver, or other firearm capable of being concealed upon the person.

The counties cannot usurp a sheriff's authority in the manner that you're talking about.

FABIO GETS GOOSED!!!
10-21-2011, 10:33 AM
All I'm saying here is that it's far from certain that Fiscal dictates the result. That is based on about 10 minutes of Lexis research haha.:p

FABIO GETS GOOSED!!!
10-21-2011, 10:41 AM
Except only the LTC issuing authorities are allowed to put "time, place, manner" restrictions on the LTC. PC12050(b)

The issuing authority "may" put time, place and manner restrictions on the license. This doesn't mean the county cannot also regulate firearm possession on county property. The Cal Supreme Court was citing this provision to illustrate that there was no implied pre-emption of county regulation of firearm possession on its own property:

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].)

This is far from saying "only the licensing authority can do time, place and manner restrictions." What is being said here is that counties can regulate firearm possession on county property without a pre-emption problem, and the fact that the state authorizes the licensing authority to restrict time, place, manner shows that the legislature did not have intent to broadly pre-empt this area of gun regulation.

kcbrown
10-21-2011, 11:04 AM
It's actually simplier than that. The thing the DOJ issues to allow for a person to run a gun show is not a license, it is a certificate. Words matter.

Words matter, but how do they matter here? The certificate is required for a person to run a gun show, and to do so without it is a violation of the law. Similarly, a licence to carry is required for a person to carry concealed in the state of California, and to do so without it is a violation of the law.

A handgun safety certificate is required before someone can legally purchase a handgun in the state of California. To purchase a handgun without it is a violation of the law.


Certificates and licenses behave exactly the same way here. Looks to me like they're identical in practice, with the only difference between them being what they're called.

So words matter, but I fail to see how that's the case here.

Gray Peterson
10-21-2011, 11:22 AM
Seems to me that if the ordinance exempts persons with licenses to carry concealed firearms, you could make pre-emption arguments under Doe. In any event, the San Mateo ordinance is not a county-wide ordinance that would "invalidate" a 12050 license. It's a place restriction and the Cal. Supreme Court has already said that "the Legislature has not indicated an intent to so broadly preempt the field of gun regulation" so as to preclude those (citing 12050 as support).

The Ordinance was subject to certain limitations and exceptions. County property did not include any "`local public building'" as defined in Penal Code section 171b, subdivision (c). (Alameda County Gen. Ord.Code, ch. 9.12, § 9.12.120, subd. C.) It exempted from the prohibition various classes of persons, including peace officers, various types of security guards, persons holding valid firearms' licenses pursuant to Penal Code section 12050, and authorized participants "in a motion picture, television, video, dance, or theatrical production or event" under certain circumstances. (Alameda County Gen. Ord.Code, ch. 9.12, § 9.12.120, subd. F.) The Ordinance would have, as one of its chief consequences, the effect of forbidding the presence of firearms at gun shows, such as the Nordykes', thereby making such shows impractical.

The Nordykes claim that a number of state statutes that govern the possession of firearms are duplicated or contradicted by the Ordinance. Penal Code section 12025 prohibits possession of concealable firearms, subject to various exceptions. Penal Code section 12031 prohibits the carrying of loaded firearms, again subject to certain exceptions. These statutes criminalize the possession of a concealed and loaded firearm respectively, subject to licensing requirements found in Penal Code sections 12050 and 12051. Thus the state statutes, read together, make it a crime to possess concealed or loaded firearms without the proper license. The Ordinance makes it a misdemeanor to "bring[ ] onto or possess[ ] on county property a firearm, loaded or unloaded, or ammunition for a firearm...." (Alameda County Gen. Ord.Code, ch. 9.12, § 9.12.120, subd. B.) The Ordinance does not duplicate the statutory scheme. Rather, it criminalizes possession of a firearm on county property, whether concealed, loaded or not, and whether the individual is licensed or not

Sounds like a major error occured which was internally inconsistant. Considering this statement:

In sum, whether or not the Ordinance is partially preempted, Alameda County has the authority to prohibit the operation of gun shows held on its property, and, at least to that extent, may ban possession of guns on its property.

Sounds like dicta to be, given the internal inconsistency. Again, remember that Fiscal controls, and the California Supreme Court rejected an appeal by San Francisco of Fiscal.
From Great Western:

On the other hand, a restrictive San Francisco firearm ordinance was held to be preempted in Doe v. City and County of San Francisco (1982) 136 Cal.App.3d 509, 186 Cal.Rptr. 380 (Doe). The ordinance outlawed the possession of handguns within the city but exempted those persons who obtained a license to carry a concealed weapon under Penal Code section 12050. Reviewing Galvan and Olsen, the court acknowledged that "these decisions suggested the Legislature has not prevented local government bodies from regulating all aspects of the possession of firearms." (Doe, supra, 136 Cal.App.3d at p. 516, 186 Cal.Rptr. 380.) Nonetheless, the ordinance directly conflicted with Government Code section 53071 and Penal Code section 12026, the former explicitly preempting local licensing requirements, the latter exempting from licensing requirements gun possession in residences and places of 754*754 business. Thus, the effect of the San Francisco ordinance "is to create a new class of persons who will be required to obtain licenses in order to possess handguns" in residences and places of business (Doe, supra, 136 Cal.App.3d at p. 517, 186 Cal.Rptr. 380), which the two statutes forbid (id. at pp. 517-518, 186 Cal.Rptr. 380).

Fiscal:

We wish to stress that the goal of any local authority wishing to legislate in the area of gun control should be to accommodate the local interest with the least possible interference with state law. As we have seen, while courts have tolerated subtle local encroachment into the field of firearms regulation (CRPA, Great Western, Nordyke), laws which significantly intrude upon the state prerogative have been uniformly struck down as preempted (Doe, Sippel). Therefore, when it comes to regulating firearms, local governments are well advised to tread lightly.

Subject to federal constitutional authority, there is only two things that restrict an LTC's ability to carry: State/federal law, and the issuing authority's restrictions on the licenses under "time, place, manner" codified in PC12050(b).

UPDATE:

The Nordykes point out that the Ordinance is more restrictive than state statutes inasmuch as the latter provide more exceptions to the general prohibition on possession of firearms. For example, under Penal Code section 831.4, a security officer appointed by a sheriff or police chief for the protection of government property may be authorized to carry a firearm. There is no exception in the Ordinance for such security officers. There is also no exception for animal control officers, who may be authorized by their employing agency to use firearms (id., § 830.9), or for officers authorized to transport prisoners, who may carry firearms under certain circumstances (id, § 831.6), or for retired federal law enforcement officers (id, § 12027, subd. (i)).

We first note that the fact that certain classes of persons are exempt from state criminal prosecution for gun possession does not necessarily mean that they are exempt from local prosecution for possessing the gun on restricted county property. But even if we accept the Nordykes' argument that in at least some cases the Legislature meant to preempt local governments from criminalizing the possession of firearms by certain classes of people, that would establish at most that the Ordinance is partially preempted with respect to those classes. Partial preemption does not invalidate the Ordinance as a whole. (See Peatros v. Bank of America (2000) 22 Cal.4th 147, 173, 91 Cal.Rptr.2d 659, 990 P.2d 539 (lead opn. of Mosk, J.) [National Banking Act preempts the state Fair Employment and Housing Act to the extent that the two conflict, but does not to the extent that they do not].) Specifically, such partial preemption would not affect our answer to the question at issue in this litigation: whether a county can prohibit possession of guns at gun shows held on its property. Because we generally accept certified questions only when "answering the question will facilitate the certifying court's functioning or help terminate existing litigation" (Cal. Rules of Court, rule 29.5(f)(2)), and have the discretion to restate the question (id., rule 29.5(g)), we also retain the discretion to decline to address aspects of the certified question that 768*768 are immaterial to such litigation. Accordingly, we decline to address whether the Ordinance is partially preempted by the above statutes.

Nordyke and Great Western are dicta to this situation, not applicable.

FABIO GETS GOOSED!!!
10-21-2011, 1:14 PM
I don't agree that Fiscal controls, this is not a county-wide ban on firearm possession that effectively invalidates 12050 licenses. The footnote in the state Nordyke opinion is not at all helpful. Nevertheless I wouldn't be surprised to see a good result in this case, such as the county amending the ordinance to add the 12050 exception. Leaving for the weekend now so I won't be checking in on this thread for a few days.

hoffmang
10-21-2011, 6:38 PM
I don't agree that Fiscal controls, this is not a county-wide ban on firearm possession that effectively invalidates 12050 licenses. The footnote in the state Nordyke opinion is not at all helpful. Nevertheless I wouldn't be surprised to see a good result in this case, such as the county amending the ordinance to add the 12050 exception. Leaving for the weekend now so I won't be checking in on this thread for a few days.

You may be forgetting that the Alameda fair grounds ordinance in Nordyke specifically exempts those who carry a firearm under a license granted pursuant to PC 12050.

-Gene

hoffmang
12-29-2011, 9:40 PM
San Mateo County has filed a demurrer (equivalent to a Federal Motion to Dismiss but the state court variety) (points & authorities (http://www.hoffmang.com/firearms/early/Memo-of-Points-Authorities-2011-12-15.pdf)) and the hearing is scheduled for April 24, 2012 at 9AM in Superior Court (http://www.hoffmang.com/firearms/early/NTC-OF-042412-HRG-DEMURRER-2011-12-15.pdf) in Redwood City.

-Gene

mud99
12-29-2011, 10:16 PM
Is it possible to show up to watch the hearing?

Librarian
12-29-2011, 10:21 PM
Such lovely reasoning.

Hey, nothing in 12050 says local government cannot also impose time, place, and manner regs - that's why that power is given to the issuing agencies!

Hey, the legislature just repealed and reenacted 12050 - they could have added the pre-emption language!

Oh, yes - Nordyke from 2002 is good law - just ignore that it's been appealed to 9th Circuit for a few years...

Gray Peterson
12-30-2011, 12:25 AM
Such lovely reasoning.

Hey, nothing in 12050 says local government cannot also impose time, place, and manner regs - that's why that power is given to the issuing agencies!

Hey, the legislature just repealed and reenacted 12050 - they could have added the pre-emption language!

Oh, yes - Nordyke from 2002 is good law - just ignore that it's been appealed to 9th Circuit for a few years...

Only ONE mention of GC53071.

hoffmang
12-30-2011, 8:18 PM
Is it possible to show up to watch the hearing?

Yes.

-Gene

wildhawker
12-30-2011, 8:59 PM
Such lovely reasoning.
***
Hey, nothing in 12050 says local government cannot also impose time, place, and manner regs - that's why that power is given to the issuing agencies

Except that, you know, even those explicitly given the authority to regulate TPM restrictions or conditions must indictate them all *on* the license:

26200. (a) 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.
(b) Any restrictions imposed pursuant to subdivision (a) shall be
indicated on any license issued.

-Brandon

taperxz
04-19-2012, 6:08 AM
Still on schedule for the 24th of April?

hoffmang
04-20-2012, 9:39 PM
Still on schedule for the 24th of April?

Yes. Also I will post the filings over the weekend. I've been travelling which has delayed them.

-Gene

hoffmang
04-21-2012, 2:17 PM
The county's demurrer (think motion to dismiss) is here: http://www.hoffmang.com/firearms/early/Memo-of-Points-Authorities-2011-12-15.pdf

Our response is here: http://www.hoffmang.com/firearms/early/Demurrer-Opp-Memo-2012-04-06.pdf

I'll be attending the hearing. Feel free to come but the usual request to put on a tie is important here.

-Gene

taperxz
04-21-2012, 5:28 PM
The county's demurrer (think motion to dismiss) is here: http://www.hoffmang.com/firearms/early/Memo-of-Points-Authorities-2011-12-15.pdf

Our response is here: http://www.hoffmang.com/firearms/early/Demurrer-Opp-Memo-2012-04-06.pdf

I'll be attending the hearing. Feel free to come but the usual request to put on a tie is important here.

-Gene

Well ok, I'll just have to take a trip down to the second hand store Monday, I guess.:p

hoffmang
04-23-2012, 5:22 PM
San Mateo County replied to our filing (linked above) here: http://www.hoffmang.com/firearms/early/Reply-P&A-in-Support-of-Demurrer-2012-04-17.pdf

The court published a tentative ruling (http://www.sanmateocourt.org/online_services/law_and_motion_tentative_rulings/tuesday.php) today (note this URL will expire):


9:00
7
CIV 509185 ULYSSES S. GRANT EARLY IV VS. COUNTY OF SAN MATEO


ULYSSES S. GRANT EARLY IV DONALD E. J. KILMER
COUNTY OF SAN MATEO DAVID A. SILBERMAN


DEMURRER TO COMPLAINT of EARLY BY COUNTY OF SAN MATEO


· Defendant’s demurrer does not specify on which of the grounds set out in CCP §430.10 it is based. However the court will construe it as a general demurrer pursuant to CCP §430.10(e).

· With respect to the First Cause of Action for Declaratory Relief, the demurrer is OVERRULED. To state a cause of action for declaratory relief a complaint must allege an existing controversy. A plaintiff need not establish entitlement to a judgment in his or her favor. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606. Here, defendant’s arguments in support of the demurrer address the ultimate issue of whether the ordinance is preempted rather than any failure to allege a controversy or other pleading deficiency.

· The demurrer to the Second Cause of Action for Injunctive Relief is SUSTAINED WITH LEAVE TO AMEND to allege the claim for such relief in connection with a specific cause of action. Injunctive relief is a remedy, not a cause of action in itself. Shell Oil Co v. Richter (1942) 52 Cal.App.2d 164, 168.

· Prevailing party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge V. Raymond Swope, Department 23.

The County has chosen to contest the tentative ruling so there will still be a hearing tomorrow at 9AM.

-Gene

PackingHeatInSDCA
04-23-2012, 8:54 PM
what if your LTC is issued by another county. How can they put restrictions on when/if anyone else with these LTC's can carry there?

good luck tomorrow

Librarian
04-23-2012, 9:13 PM
what if your LTC is issued by another county. How can they put restrictions on when/if anyone else with these LTC's can carry there?

good luck tomorrow

This is about county code rather than a restriction printed on LTC issued in San Mateo County.

Purple K
04-24-2012, 6:53 PM
The County's position is untenable.

hoffmang
04-24-2012, 9:17 PM
The demurrer was continued until July 2 if I recall correctly.

-Gene

hoffmang
04-24-2012, 9:17 PM
The demurrer was continued until July 2 if I recall correctly.

-Gene

FABIO GETS GOOSED!!!
07-02-2012, 5:50 PM
The issuing authority "may" put time, place and manner restrictions on the license. This doesn't mean the county cannot also regulate firearm possession on county property.

I don't agree that Fiscal controls, this is not a county-wide ban on firearm possession that effectively invalidates 12050 licenses.

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 INVALIDATING EXISTING LICENSES. IN THIS CASE THE ORDINANCE DOES NOT HAVE THE EFFECT OF INVALIDATING ANY LICENSES. IT MERELY REGULATES THE POSSESSION OR USE OF FIREARMS ON COUNTY PROPERTY.

Chess not checkers? Some arguments are made for the court of appeals?

wjc
07-02-2012, 5:59 PM
Wow! San Mateo's getting nailed on a couple of fronts...This and the gun shop thing.

well played, gents!

Gray Peterson
07-02-2012, 6:00 PM
Chess not checkers? Some arguments are made for the court of appeals?

Do you do anything other than trolling and engaging in unhelpful criticism?

FABIO GETS GOOSED!!!
07-02-2012, 6:07 PM
Do you do anything other than trolling and engaging in unhelpful criticism?

How is it is unhelpful to point out a fatal problem in a case? I spotted this one in about 2 seconds and I was even nice about it when it was discussed months ago.

FABIO GETS GOOSED!!!
07-02-2012, 6:08 PM
Wow! San Mateo's getting nailed on a couple of fronts...This and the gun shop thing.

well played, gents!

News flash...the case just got tossed out.

curtisfong
07-02-2012, 6:09 PM
How is it is unhelpful

So what's with the sarcasm?

Something getting under your skin?

Sounds like you feel like you could do so much better, but for some reason aren't allowed to.

FABIO GETS GOOSED!!!
07-02-2012, 6:15 PM
So what's with the sarcasm?

Something getting under your skin?

Sounds like you feel like you could do so much better, but for some reason aren't allowed to.

None of the above lol. I do know that I wouldn't file a case based on a theory that has already been rejected by the CA supreme court...in my own case. Is nobody allowed to criticize unless they can "do so much better"? Should there be no criticism of anything CGF does?

kcbrown
07-02-2012, 6:24 PM
Chess not checkers? Some arguments are made for the court of appeals?


The bit you quoted:


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 INVALIDATING EXISTING LICENSES. IN THIS CASE THE ORDINANCE DOES NOT HAVE THE EFFECT OF INVALIDATING ANY LICENSES. IT MERELY REGULATES THE POSSESSION OR USE OF FIREARMS ON COUNTY PROPERTY.


looks like an incorrect interpretation by the judge to me -- more of that "judicial logic" that we all love so much.

Riddle me this: what's the difference between a carry ban in a city and a carry ban in a park, as regards the effect in the regulated area?

FABIO GETS GOOSED!!!
07-02-2012, 6:28 PM
One is a ban and one is a place restriction which the CA supreme court has already said is not pre-empted. The decision is right in line with the published decisions.

kcbrown
07-02-2012, 6:40 PM
One is a ban and one is a place restriction which the CA supreme court has already said is not pre-empted. The decision is right in line with the published decisions.

No, that's your problem right there. Both are bans on possession. One may have been claimed good by the CA supreme court and the other has certainly not, but they are both bans all the same.

The only difference is the area covered (the San Mateo ban is limited to possession on a subset of public property, while the San Francisco ban covered all of San Francisco, including possession on private property).

So what is the difference between a ban and a, um, ban?


In any case, the logic involved here is reasonably likely to change in the next 3 years, presuming the Supreme Court recognizes the right to carry in public.

hoffmang
07-02-2012, 6:40 PM
The decision conflicts on it's face with Fiscal (http://www.hoffmang.com/firearms/a115018.pdf).

Here is the tentative in it's entirety as linked by the CGF twitter account earlier today.



9:00
4
CIV 509185*** ULYSSES S. GRANT EARLY IV VS .COUNTY OF SAN MATEO
*
*
ULYSSES S. GRANT EARLY IV************************************************ DONALD E. J. KILMER
COUNTY OF SAN MATEO********************************************* *********** DAVID A. SILBERMAN
*
*
DEMURRER TO COMPLAINT of EARLY BY COUNTY OF SAN MATEO
*
*
·******** As noted in the court’s prior tentative ruling, defendant’s demurrer addresses the merits of the underlying controversy alleged in plaintiff’s complaint rather than any pleading deficiency.* None of the cases in defendant’s supplemental memorandum indicates the court must reach the merits of the underlying controversy where the controversy is otherwise adequately alleged.* Nevertheless, it appears that where the issue is purely one of law, it is not error for the court to do so.* Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 24.* Because the parties desire the court to reach the merits of the underlying preemption issue it will do so.*
*
·******** Defendant’s demurrer to the First Cause of Action for Declaratory Relief is SUSTAINED WITHOUT LEAVE TO AMEND.** Plaintiffs’ complaint does not identify the specific state law which is alleged to preempt the subject ordinance.* Even if the court were to construe plaintiff’s opposition as an offer to amend to allege that the ordinance is preempted by Government Code §53071, the complaint would still fail to state a cause of action.*The language of the statute 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 invalidating existing licenses.* In this case the ordinance does not have the effect of invalidating any licenses.* It merely regulates the possession or use of firearms on county property.*
*
·******** Defendant’s demurrer to the Second Cause of Action for Injunctive Relief is also SUSTAINED WITHOUT LEAVE TO AMEND.* Injunctive relief is a remedy, not a cause of action in itself.* A cause of action must exist before injunctive relief may be granted.* Shell Oil Co v. Richter (1942) 52 Cal.App.2d 164, 168.*
*
·******** Prevailing party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. *The order is to be submitted directly to Judge V. Raymond Swope, Department 23.*


Appeal will be filed shortly. There are specific reasons why the 2A/14A is not directly invoked.

-Gene

FABIO GETS GOOSED!!!
07-02-2012, 6:43 PM
The decision conflicts on it's face with Fiscal (http://www.hoffmang.com/firearms/a115018.pdf).

Oh, so a firearm restriction in county parks is really a county-wide ban on its face. I must have missed that.

hoffmang
07-02-2012, 6:46 PM
Oh, so a firearm restriction in county parks is really a county-wide ban on its face. I must have missed that.

You miss a lot of things including credibility by being anonymous.

-Gene

kcbrown
07-02-2012, 6:47 PM
Oh, so a firearm restriction in county parks is really a county-wide ban on its face. I must have missed that.

Please tell me: what's the difference between a restriction and a ban?

This I gotta see...

FABIO GETS GOOSED!!!
07-02-2012, 7:02 PM
Please tell me: what's the difference between a restriction and a ban?

This I gotta see...

Read the cases.

FABIO GETS GOOSED!!!
07-02-2012, 7:03 PM
You miss a lot of things including credibility by being anonymous.

-Gene

Yup, I missed the exact basis on which the judge just tossed your case out. "What have you got to hide?" lol.

kcbrown
07-02-2012, 8:03 PM
Read the cases.

Fiscal states this:


While we have thus far focused on the relationship between state law and Section 3’s ban on handgun possession on one’s private property, it is important to note that Section 3 regulates in a much broader field than just private property. Section 3 prohibits both public and private handgun possession and thus effectively displaces numerous state laws allowing private citizens to possess handguns for self-protection and other lawful purposes. As the trial court noted, “[t]he statute books contain almost one hundred pages of unannotated state gun laws that set out a myriad of statewide licensing schemes, exceptions, and exemptions dealing with the possession and use of handguns.” We provide a brief overview of just a few of the state statutes dealing with public handgun possession.

Penal Code section 12050 provides that, upon a showing of good cause, any lawabiding, responsible adult can obtain a license to carry a concealed handgun. Even without a license, Penal Code sections 12025.5 and 12031, subdivision (j)(2) create special exceptions whereby people who have been threatened and who have obtained restraining orders may carry loaded and concealed handguns. Penal Code sections 12027, subdivision (a) and 12031, subdivision (b)(1) allow civilians to possess concealed and loaded handguns when summoned by police to assist police in making an arrest or to preserve the peace. Penal Code section 12031, subdivision (k) permits possession of a loaded gun when making a citizen’s arrest. Penal Code section 12031, subdivision (j)(1) allows possession of a loaded firearm when a person has a reasonable belief that he or she is in immediate grave danger and the firearm is necessary to protect person or property.


The above is in the context of establishing the state legislature's intent to occupy the field with respect to handgun possession in public.

That is what, in Fiscal, conflicts with the San Mateo ban on possession in public parks. The San Mateo ban does not make any exceptions for the circumstances in which state law explicitly allows possession of a handgun in public.

The entirety of the applicable part of the San Mateo code reads as follows:


(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 discharge, or cause to be fired or discharged, across, in, or into any portion of any County Park or Recreational area, or on the San Francisco Fish and Game Refuge, any gun or firearm, spear, bow and arrow, cross bow, slingshot, air or gas weapon or any other dangerous weapon.

(p) Shooting Ranges. The discharge or firing of firearms is permitted in areas designated by the Parks and Recreation Commission, or San Francisco Water Department, specifically for the purposes of rifle and/or pistol and/or shotgun shooting, and the transportation of such firearms through the County Park or Recreation area, or on the San Francisco Fish and Game Refuge, in which said area(s) is/are located is permitted providing said firearms are unloaded. "Unloaded" shall mean that there is no ammunition in either the chamber or magazine of the gun.

(q) Archery Ranges. The use of a bow and arrow, but not a crossbow, is permitted in areas designated by the Parks and Recreation Commission specifically for the purpose of archery, but all bows must be unstrung during transportation to and from such designated areas.



The bottom line is that for Fiscal to not apply here, the section of the decision I quoted above must be construed as nothing more significant than mere smalltalk, for if it has any more significance than that, then the appeals court explicitly mentioned it for the purpose of establishing the state's intent to occupy that part of the legal field. Presuming that the quoted section is null and void, as the state superior court here quite obviously does, is simply something the court here is not allowed to do.

chris12
07-03-2012, 9:22 AM
Please tell me: what's the difference between a restriction and a ban?

Propaganda?

trouble
07-03-2012, 6:08 PM
Can you help me decipher the legalize of the decision? I must be reading different laws than the judge because the law as written and the decision seem painfully clear to me.

kcbrown
07-03-2012, 7:31 PM
Can you help me decipher the legalize of the decision? I must be reading different laws than the judge because the law as written and the decision seem painfully clear to me.

What you're reading is what I call "judicial logic", i.e. sophistry used to "justify" the judge's predetermined "ruling". It is probably so common in the judiciary as to be the norm.

taperxz
11-13-2013, 4:19 PM
Hopefully we can hear from CGF what they think about his case and where they are going forward.

(Bring back to life as this was the original thread. Which brings the OP's intent inline with what is happening)


ETA - the San Mateo Court page for the case is http://openaccess1.sanmateocourt.org/openaccess/CIVIL/civildetails.asp?courtcode=A&casenumber=509185&casetype=CIV&dsn=&movetodate=&startdate=&sort=&start=0
// Librarian