Two Lawsuits Filed Against Sunnyvale's Gun Ordinance

By William Peacock, Esq. on December 19, 2013 | Last updated on March 21, 2019

When, in a barely-noticed local election, the City of Sunnyvale passed some of the strictest anti-gun measures in the nation, including some gun control efforts that were recently vetoed on a state-wide level by Gov. Jerry Brown, we knew that litigation would follow.

And it did. Two lawsuits were filed in the past week, one challenging the ban on magazines capable of holding more than ten rounds, and one challenging everything else (ammunition sales records, theft reporting, and storage requirements). And after looking through the two complaints, we've got to say: the arguments against the ordinance, especially the state law preemption arguments, are rather compelling.

Fyock v. Sunnyvale: The Magazine Restriction

On Monday, a lawsuit on behalf of six Sunnyvale residents, who own magazines that would be affected by the ban, challenged the capacity restriction as a violation of their Second Amendment rights under Heller and McDonald.

In District of Columbia v. Heller, the court held that arms "typically possessed by law-abiding citizens for lawful purposes" or those "in common use" are protected under the Second Amendment. According to the complaint, the "common use" standard has been employed by courts to evaluate restrictions on firearm components and magazines. And these so-called "large-capacity" magazines are the standard (or common) capacity for the millions of firearms sold each year.

In short, if Heller protects firearm components that are commonly used for lawful purposes, the magazines that come with the guns should qualify. The complaint also notes that there is no exception in the law for police officers, except when they are on duty, which means they can't even bring their department-issued firearms home with them.

U.S. Firearms Company v. Sunnyvale: Everything Else

Local gun store U.S. Firearms, and others, brought a second lawsuit, filed last week, that is even more compelling. The suit challenges the ordinance's storage, theft reporting, and ammunition sales record-keeping requirements as preempted by state law, and they may be right.

The California Constitution allows local governments to pass ordinances that do not conflict with general laws, and do not duplicate, contradict, or enter into an area occupied by general law (expressly or impliedly). It also limits a city's police power to its territorial limits, and protects the privacy of Californians by limiting the city's collection of sensitive information.

Why do all of those provisions matter?

Each of the ordinance's restrictions are duplicative or in conflict with a state law. For example, the ammunition sales tracking, which requires logbooks and purchasers' fingerprints, is nearly the same as a state law that was recently nixed by the courts. Not only is the law duplicative, but the state law is currently on hold by the courts while appeals are pending. Plus, gathering all of that sensitive data (fingerprints included) violates the privacy provision.

And then there is Section 53072 of the Government Code, which states quite clearly:

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.

And even if you don't buy the argument that ammunition is explicitly covered by that code section and Fiscal v. San Francisco (handgun possession and ammunition were at issue), California definitely "occupied" that area of law by passing the bundle of ammunition registration restrictions mentioned above. The complaint cites similar state laws that would seem to preempt the storage and reporting requirement.

And one more interesting argument: the ordinance requires reporting of theft to the Sunnyvale Public Safety Office within 48 hours, but doesn't restrict the requirement to the city's territory. (If your gun is stolen in San Jose, you must report it.) That seems to conflict with the limitation of city police power to its own territory.

Which leaves only one question: what the heck was Sunnyvale thinking? When San Francisco lost the Fiscal case, they were forced to pay the NRA $380,000 in legal bills. The attorney for the Sunnyvale residents, Chuck Michel, represented the plaintiffs in the San Francisco suit as well. If Sunnyvale loses here, between the two lawsuits and their own fees, this ordinance could prove to be quite the waste of taxpayers' money.

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