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S.F. Veteran Police officers Ass'n v. City & County of San Francisco

United States District Court, N.D. California

February 19, 2014

SAN FRANCISCO VETERAN POLICE OFFICERS ASSOCIATION, LARRY BARSETTI, RAINERIO GRANADOS, ARTHUR RITCHIE, and RANDALL LOW, Plaintiffs,
v.
THE CITY AND COUNTY OF SAN FRANCISCO, THE MAYOR OF SAN FRANCISCO, EDWIN LEE in his official capacity, THE CHIEF OF THE SAN FRANCISCO POLICE DEPARTMENT, GREG SUHR, in his official capacity, and DOES 1-10, Defendants

For San Francisco Veteran Police Officers Association, Larry Barsetti, Rainerio Granados, Arthur Ritchie, Randall Low, Plaintiffs: Anna Marie Barvir, Carl Dawson Michel, Clinton Barnwell Monfort, LEAD ATTORNEYS, Michel and Associates, P.C., Long Beach, CA; Sean Anthony Brady, LEAD ATTORNEY, Michel Associates, P.C., Long Beach, CA.

For City and County of San Francisco, Edwin Lee, Greg Suhr, Defendants: Christine Van Aken, Wayne Kessler Snodgrass, LEAD ATTORNEYS, Office of the City Attorney, San Francisco, CA.

OPINION

Page 998

ORDER DENYING PRELIMINARY INJUNCTION

WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.

INTRODUCTION

In this action challenging a San Francisco ordinance banning the possession of

Page 999

firearm magazines with the capacity to accept more than ten rounds, plaintiffs move for a preliminary injunction. For the reasons set forth below, the motion is Denied.

STATEMENT

For over a decade, California has restricted firearm magazines holding more than ten bullets, particularly restricting their manufacture, importation and sale, but has not prohibited ownership by individuals. Cal. Penal Code Section 32310. This state law was enacted in 1999 to supplement a then-existing federal law, enacted in 1994, that prohibited the possession or transfer of magazines with the capacity to accept more than ten rounds. The federal law expired by its own terms in 2004. While the California statute generally prohibits the making of new magazines with the capacity to accept more than ten rounds and transfer of existing ones, it does not prohibit their possession. This action does not challenge the constitutionality of this state law. The challenge lies instead against a new local ordinance banning possession of magazines holding more than ten rounds.

The background is as follows. On December 14, 2012, a shooter, armed with an assault weapon and several magazines with the capacity to accept more than ten rounds, entered Sandy Hook Elementary School in Newtown, Connecticut. He massacred 27 people, including twenty young children (Van Aken Decl., Exh. 10 at 3, 22-23). Following this horrific tragedy, several state and local governments enacted bans on magazines with the capacity to accept more than ten rounds. As of this date, four courts have ruled on the constitutionality of these bans and all four courts have upheld them. See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264, 399 U.S. App. D.C. 314 (D.C. Cir. 2011); N.Y. State Rifle & Pistol Ass'n v. Cuomo, 990 F.Supp.2d 349, at *55-56 (W.D.N.Y. Dec. 31, 2013) (Judge William Skretny); Shew v. Malloy, 994 F.Supp.2d 234, at *39-40 (D. Conn. Jan. 30, 2014) (Judge Alfred Covello); Tardy v. O'Malley, No. CCB-13-2861, TRO Hr'g Tr., at 66-71 (D. Md. Oct. 1, 2013) (Judge Catherine Blake).

For its part, San Francisco enacted Section 619 of the San Francisco Police Code, challenged herein under the Second Amendment. With certain exceptions, the ordinance prohibits any person, corporation, or other entity in San Francisco from possessing a magazine with the capacity to accept more than ten rounds, whether assembled or disassembled. A magazine with the capacity to accept more than ten rounds is defined as:

. . . any detachable ammunition feeding device with the capacity to accept [more than ten rounds], but shall not be construed to include any of the following:
(1) A feeding device that has been permanently altered so that it cannot accommodate [more than ten rounds];
(2) A .22 caliber tube ammunition feeding device, or
(3) A tubular magazine that is contained in a lever-action firearm.

The ordinance, by its own terms, bans magazines with the capacity to accept more than ten rounds because they " significantly increase[] the lethality of the automatic and semiautomatic firearms using them." In particular, the ordinance explicitly identifies recent high-profile massacres where the shooter used magazines with the capacity to accept more than ten rounds, including the Sandy Hook massacre.

The ordinance also explicitly addresses concerns regarding self-defense:

Page 1000

[Magazines with the capacity to accept more than ten rounds] are not necessary for individuals to vindicate their right to self-defense. Only in extraordinarily rare circumstances would a person using a firearm in self-defense ever be required to use a large capacity magazine to defend himself or herself effectively. This is particularly true in an urban center like San Francisco, where law enforcement can and does respond quickly to threats and incidents. Conversely, the dangers of [magazines with the capacity to accept more than ten rounds] are heightened in dense urban areas like San Francisco.

Any person who, prior to the passage of the ordinance, legally possessed a magazine with the capacity to accept more than ten rounds is now required to store it out of state or relinquish it within ninety days of the ordinance's enactment, either through sale, transfer, or surrender to the San Francisco Police Department. The parties have stipulated to extend the enforcement date to April 7, 2014 (Dkt. No. 11). The ordinance is tailored to provide for certain exemptions, including:

(1) Any government officer, agent, or employee, member of the armed forces of the United States, or peace officer, to the extent that such a person is otherwise authorized to possess a large capacity magazine in connection with his or her official duties;
(2) A person licensed pursuant to Penal Code Sections 26700 to 26915, inclusive;
(3) A gunsmith for the purposes of maintenance, repair, or modification of the ...

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