Untitled California Attorney General Opinion ( 1994 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 94-212
of :
: July 7, 1994
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE VICTOR J. KALETA, CITY PROSECUTOR, CITY OF
PASADENA, has requested an opinion on the following question:
Does state law preempt the adoption of a city ordinance which makes it a
misdemeanor to sell .22 to .45 caliber ammunition within the boundaries of the city and requires
ammunition vendors within the city to record and maintain identification information with respect
to each purchaser?
CONCLUSION
State law preempts the adoption of a city ordinance which makes it a misdemeanor
to sell .22 to .45 caliber ammunition within the boundaries of the city but does not preempt adoption
of a city ordinance which requires ammunition vendors within the city to record and maintain
identification information with respect to each purchaser.
ANALYSIS
We are informed that a city council is considering the adoption of an ordinance
regulating the sale of ammunition within the boundaries of the city. It would prohibit the sale of
certain kinds of ammunition commonly used in semi-automatic weapons, i.e., .22 to .45 caliber
ammunition. For ammunition sales not subject to the total ban, it would require ammunition dealers
to record and maintain identification information obtained from each purchaser. The stated purposes
of the ordinance would be to reduce the number of gun-related offenses committed within the city's
boundaries, often by teen-age gang members, and to facilitate the investigation of such criminal
offenses. We conclude that the proposed ordinance would be preempted by state law with respect
to the prohibited sales provision but not with respect to the record keeping requirements.
Under article XI, section 7 of the Constitution, "[a] county or city may make and
enforce within its limits all local, police, sanitary, and other ordinances and regulations not in
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conflict with general laws." As explained by the Supreme Court in Candid Enterprises, Inc. v.
Grossmont Union High School District (1985) 39 Cal. 3d 878, 885: "Counties and cities have
plenary authority to govern, subject only to the limitation that they exercise this power within their
territorial limits and subordinate to state law." Except for this limitation, the police power authority
of a county or city "is as broad as the police power exercisable by the Legislature itself." (Birkenfeld
v. City of Berkeley (1976) 17 Cal. 3d 129, 140.)
In Sherwin-Williams Company v. City of Los Angeles (1993) 4 Cal. 4th 893, the
Supreme Court recently reaffirmed the basic principles to be applied in determining whether the
state's general laws preempt a particular local ordinance. Quoting from its prior decisions, the court
stated:
"`If otherwise valid local legislation conflicts with state law, it is preempted
by such law and is void.' [Citations.]
"`A conflict exists if the local legislation "duplicates, contradicts, or enters
an area fully occupied by general law, either expressly or by legislative implication."'
[Citations.]
"Local legislation is `duplicative' of general law when it is coextensive
therewith. (See In re Portnoy (1942) 21 Cal. 2d 237, 240 [finding `duplication' where
local legislation purported to impose the same criminal prohibition that general law
imposed].)
"Similarly, local legislation is `contradictory' to general law when it is
inimical thereto. (See Ex parte Daniels (1920) 183 Cal. 636, 641-648 [finding
`contradiction' where local legislation purported to fix a lower maximum speed limit
for motor vehicles than that which general law fixed].)
"Finally, local legislation enters an area that is `fully occupied' by general law
when the Legislature has expressly manifested its intent to `fully occupy' the area
[citations] or when it has impliedly done so in light of one of the following indicia
of intent: `(1) the 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 outweighs the possible benefit to the' locality
[citations]." (Id., at p. 897.)
To properly apply these principles to the question presented, we must determine the
relevant "field" within the general area of dangerous weapons control that would be addressed by
the proposed ordinance. (See Candid Enterprises, Inc. v. Grossmont Union High School District,
supra, 39 Cal.3d at 886, fn. 4 ["How the relevant field occupied by the . . . preemptive state
legislation is defined is often crucial to the result"].) In Fisher v. City of Berkeley (1984) 37 Cal. 3d
644, 707-708, the court defined a preemptive field as follows: "A potentially preemptive `field' of
state regulation is `an area of legislation which includes the subject of the local legislation, and is
sufficiently logically related so that a court, or a local legislative body, can detect a patterned
approach to the subject.'"
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Preliminarily, we note that with regard to firearms registration and licensing, the
Legislature has explicitly preempted the adoption of local ordinances. Government Code section
53071 provides:
"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."1
As to the firearms possession at one's residence, business, or other property, state law
has also preempted the field. (Doe v. City and County of San Francisco (1982) 136 Cal. App. 3d 509,
518; Sippel v. Nelder (1972) 24 Cal. App. 3d 173, 176-177; 65 Ops.Cal.Atty.Gen. 457, 464 (1982).)
Penal Code section 12026, subdivision (a)2 states:
"Notwithstanding section 12025 [providing penalties for carrying a concealed
weapon without a license], any citizen of the United States or legal resident over the
age of 18 years who resides or is temporarily within this state, and who is not within
the excepted classes prescribed by Section 12021, shall not be prohibited from
owning, possessing, keeping, or carrying, either openly or concealed, anywhere
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 any
pistol, revolver, or other firearm capable of being concealed upon the person, and no
permit or license to purchase, own, possess, keep, or carry, either openly or
concealed, any such firearm 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, shall be required of the citizen or legal resident."
As to firearms use, however, the state has not preempted the field. (Doe v. City and
County of San Francisco, supra, 136 Cal.App.3d at 515-517; Olsen v. McGillicuddy (1971) 15
Cal. App. 3d 897, 902 ["the Legislature did not intend to exclude municipalities from enacting further
legislation concerning the use of firearms"].)
Regarding the area of firearms sales, we find that the Legislature has enacted a
comprehensive and detailed regulatory scheme (§§ 12070-12084) which requires the licensing of
firearms dealers, places numerous restrictions on firearms sales, and mandates the furnishing of
identification information by each purchaser. The state has so thoroughly occupied this field that
we have no doubt that regulating firearms sales is beyond the reach of local governments. (See
Fisher v. City of Berkeley, supra, 37 Cal.3d at 707-708.) Cities and counties have been charged with
the execution of the state's program for the licensing of firearms dealers, but their role is ministerial
in nature. (§ 12071.)
With respect to the regulation of ammunition sales, we find the following laws to be
specifically applicable: section 12020 (sale of ammunition containing a flechette dart; sale of bullets
containing an explosive agent), section 12304 (sale of ammunition of a caliber greater than .60
1
Labor Code 1721 provides: "`Political subdivision' includes any county, city, district, public
housing authority, or public agency of the state, and assessment or improvement districts."
2
All references hereafter to the Penal Code are by section number only.
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caliber), and section 12321 (sale of handgun ammunition designed to penetrate metal or armor). A
few additional statutes address the possession, but not sale, of ammunition. (See, e.g., §§ 186.22a
[possession of ammunition by a member of a criminal street gang]; 12101 [possession of
ammunition by a minor without parental consent]; 12320 [possession of handgun ammunition
designed primarily to penetrate metal or armor].)
It is apparent that the Legislature has treated the sale of ammunition separately from
that of firearms sales, registration, licensing, possession, or use. The purchase of ammunition and
the purchase of a firearm need not take place at the same time or involve the same considerations.
Just as the various aspects of firearms control have been treated differently in the legislative
schemes, we believe that the sale of ammunition constitutes a separate field for purposes of applying
state preemption principles. Accordingly, we will examine in turn each of the criteria for
determining possible state preemption as to matters which fall within the field of ammunition sales.
A. Duplication
With respect to ammunition used in semi-automatic handguns and not designed
primarily to penetrate metal or armor, there would be no duplication of any state law by the
proposed ordinance. The proscribed ammunition in question would be substantially smaller than
the "greater than .60 caliber" ammunition prohibited by section 12304. Registration aspects of the
proposed ordinance would parallel the registration requirements for the sale of firearms as contained
in sections 12071 and 12077, but inasmuch as ammunition may be purchased separately and is not
specifically mentioned in these statutes, there would be no duplication of any state law as to this
matter either.
B. Contradiction
There is no statutorily established right to sell or purchase ammunition. Neither is
there any state provision directly proscribing the registration of ammunition or ammunition sales.
"[T]he ordinance does not prohibit what the statute commands or command what it prohibits."
(Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal.4th at 902.) Therefore, the proposed
ordinance would not contradict any state statute.3
3
Although Congress has legislated in the area of ammunition sales (18 U.S.C. § 921 et seq.), local
ordinances such as the one in question would not be preempted under the terms of the federal
legislation. (See C.D.M. Products, Inc. v. City of New York (1973) 350 N.Y.S.2d 500.) The federal
law provides:
"No provision of this chapter shall be construed as indicating an intent on the
part of the Congress to occupy the field in which such provision operates to the
exclusion of the law of any State on the same subject matter, unless there is a direct
and positive conflict between such provision and the law of the State so that the two
cannot be reconciled or consistently stand together." (18 U.S.C. § 927.)
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C. Express Reservation
As previously indicated, the only express preemptive intent in connection with the
control of deadly weapons is limited to the subjects of registration and licensing of firearms. (Gov.
Code, § 53071.) In Doe v. City and County of San Francisco, supra, 136 Cal. App. 3d 509, the court
noted: "Despite the opportunity to include an expression of intent to occupy the entire field of
firearms, the legislative intent was limited to registration and licensing." (Id., at p. 516.) Just as the
Legislature has not expressly stated an intent to occupy the field of firearms sales, it has not stated
such an intent with respect to the field of ammunition sales.
D. Implied Exclusion
In the Doe v. City and County of San Francisco, supra, 136 Cal. App. 3d 509, the
court stated:
". . . It is at least arguable that the state Legislature's adoption of numerous
gun regulations has not impliedly preempted all areas of gun regulation. [Citation.]
However, we infer from Penal Code section 12026 that the Legislature intended to
occupy the field of residential handgun possession to the exclusion of local
governmental entities. A restriction on requiring permits and licenses necessarily
implies that possession is lawful without a permit or license. It strains reason to
suggest that the state Legislature would prohibit licenses and permits but allow a ban
on possession." (Id., at p. 518.)
Similarly, we find that the Legislature has partially covered the field of ammunition
sales and has indicated in section 12026 that a paramount state concern will not tolerate further local
action such as the proposed sales ban in question. The Legislature has expressly banned the sale of
ammunition larger than .60 caliber. (§ 12304.) It has not banned smaller caliber ammunition as the
proposed ordinance would.4
In light of section 12026, which recognizes the right of an individual "to purchase,
own, possess, keep, or carry" pistols, revolvers, and concealable firearms on one's own private
property, it is understandable why the Legislature has not banned the sale of smaller caliber
ammunition. A local ban on the sale of handgun ammunition would thwart the Legislature's
recognition of the right to possess handguns on private property. Clearly what the Legislature had
in mind when it enacted section 12026 was the possession of a handgun that could be used for its
intended purpose. Accordingly, we conclude that the language of sections 12026 and 12304,
construed together, precludes a local entity from prohibiting the sale of handgun ammunition.
On the other hand, the record keeping duties of the proposed ordinance would not
materially affect handgun possession. No statute appears to prohibit, directly or indirectly, a city
from requiring ammunition purchasers to provide identification information. (See Galvan v.
Superior Court (1969) 70 Cal. 2d 851, 864; Gluck v. County of Los Angeles (1979) 93 Cal. App. 3d
121, 131; Comment, The California City Versus Preemption by Implication (1966) 17 Hastings L.J.
603, 610.) On the basis of all three tests for implied preemption, we conclude that the record
keeping portion of the proposed ordinance would not be preempted by general law.
4
We understand that .22 to .45 caliber ammunition is the basic ammunition for semi-automatic
handguns, single shot weapons, and some rifles.
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In answer to the question presented, therefore, we conclude that state law preempts
the adoption of a city ordinance which makes it a misdemeanor to sell .22 to .45 caliber ammunition
within the boundaries of the city but does not preempt the adoption of a city ordinance which
requires ammunition vendors within the city to record and maintain identification information with
respect to each purchaser.
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