SUPPLEMENTAL BRIEF ON IMPACT OF CITY'S AMENDMENT TO THE ORDINANCE AT ISSUE IN PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

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1 1 C. D. Michel- S.B.N Glenn S. McRoberts - S.B.N Don B. Kates - S.B.N Jason A. Davis - S.B.N TRUTANICH MICHEL, LLP 407 North Harbor Boulevard 4 San Pedro, CA Telephone: FacsImile: Attorneys for Plaintiffs CALIFORNIA SIDE BY SIDE SOCIETY, CALIFORNIA 12 ASSOCIATION OF FIREARMS RETAILERS, FIFTY CALIBER 13 SHOOTERS ASSOCIATION, BARRETT FIREARMS 14 MANUFACTURING, INC., CALIFORNIA RIFLE AND PISTOL 15 ASSOCIATION, EDM ARMS, SPORTS AFIELD, and ROBERT 16 KAHN 17 Plaintiffs, 18 v. 19 CITY OF LOS ANGELES a municipality; and Does 1-10, 20 Defendants IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION CASE NO. EDCV GAP (SGLX) SUPPLEMENTAL BRIEF ON IMPACT OF CITY'S AMENDMENT TO THE ORDINANCE AT ISSUE IN PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Date: April 18, 2005 Time: 9:30 a.m. Courtroom: 740 Judge: Hon. Gary A. Fees 23 On Wednesday, April 13, 2005, three days before the hearing on this motion, 24 the City Council passed an ordinance to amend the Ordinance at issue herein, 25 LAMC Section Plaintiffs file this short supplemental brief to advise the 26 Court of this development and comment on it for, despite Plaintiffs repeated 27 requests, they were not provided a copy of the amendment in advance, and instead 28 obtained a copy after it became public - and after they had filed their Reply Brief. 1

2 1 Notably, as the Court may recall, at the scheduling conference on Monday, April 4, 2 Plaintiffs offered to simplify their motion (by way of their Reply Brief) if the City 3 provided them with a copy of the amendment, to the extent that the amendment 4 mooted any arguments. The City, however, failed to do so, thus requiring Plaintiffs 5 to fully brief-at substantial expense-several points the City now concedes. 6 Moreover, Plaintiffs have consistently offered to put their entire motion for 7 injunctive relief on hold while the City tried to cure the defects in its Ordinance, if 8 the City would stipulate not to enforce the entire Ordinance in the interim. A fair 9 proposition. The City refused to accept that offer, thus leaving Plaintiffs no choice 10 but to forge ahead and seek to enjoin the defective Ordinance, as written. In short, 11 it is the City that has brought us all to this point, and it should not be allowed to 12 benefit in any way from its recalcitrant stance. With this in mind, Plaintiffs tum to 13 the question of the impact, if any, the City's recent actions might have on Plaintiffs' 14 motion The Ordinance at Issue Remains in Effect. 16 As a preliminary matter, the Ordinance at issue remains operative, and 17 invalid. Even though the City Council passed the "Amending Ordinance" by 18 unanimous vote of twelve City Council members on its first reading, thus enabling 19 the Council to send the ordinance to the Mayor for immediate signature - without 20 the customary second reading - the Amending Ordinance cannot take effect for at 21 least 31 days (if published, rather than posted). See Los Angeles Admin. Code ; see also Cal. Gov. Code Therefore, the earliest the Amending 23 Ordinance could take effect is on or about Friday, May 14, several weeks 24 after the preliminary injunction motion is heard by this Court The City's "Amending Ordinance" Concedes Plaintiffs' Arguments. 27 More importantly, the City's last-minute maneuver to cure its defective 28 Ordinance in reaction to Plaintiffs' suit and subsequent motion for preliminary 2

3 1 injunction serves only to validate Plaintiffs' objections to the Ordinance. In effect, 2 it constitutes an admission that the provisions amended were preempted by State 3 law or otherwise constitutionally infirm, as alleged by Plaintiffs, and provides the 4 basis for this Court summarily granting Plaintiffs' motion as to those provisions. 5 Specifically, as outlined in the City Attorney's Report,I the Amending 6 Ordinance revises four provisions of the Ordinance in direct response to challenges 7 made by Plaintiffs in their Complaint and raised in the instant motion, including: (1) 8 excluding restrictions on.50 caliber BMG rifles in subdivision ( e) of the Ordinance; 9 (2) limiting, but unfortunately not eliminating, the extraterritorial impact of the 10 Ordinance (on speech and commerce) by making subdivision (e)'s prohibition on 11 offers or displays for sale oflcfs inapplicable to any "seller or offeror located 12 outside the City of Los Angeles;" (3) limiting the exclusions in subdivisions (f)(4)- 13 (6) regarding sales to law enforcement personnel to such personnel only "when 14 acting in the course and scope of his or her law enforcement duties;" and (4) 15 amending the language in subdivision (f)(10) to exempt sales of certain LCFs to 16 transferees having valid entertainment firearms permits issued by the State. 17 Each of these provisions of the Ordinance are covered extensively in 18 Plaintiffs' Complaint and motion for injunctive relief. Moreover, the language in 19 the City's Amending Ordinance is clearly tailored to address Plaintiffs' concerns. 20 The City, however, still comes up short. Even after it is amended, the Ordinance 21 will remain invalid The "Amendina Ordinance" Is a Partial Cure As to Some Provisions, An Leaves Other Defective Provisions in Place. 24 Although the Amending Ordinance exempts ".50 BMG rifles" from the 25 control of the City's large caliber firearms rules, the Amending Ordinance does not See Report dated March 21,2005, from Office of the City Attorney to the City 28 Council (hereinafter, "the Report"), which includes a copy ofthe "Amending Ordinance," both of which are attached hereto as Exhibit A. 3

4 1 exempt.50 caliber handguns from its reach. Five.50 caliber handguns are 2 explicitly authorized for sale in the State by the California DOl's Roster of Firearms 3 Certified for Sale, attached as Exh. F to Plaintiffs' Motion for Preliminary 4 Injunction. Furthermore, the Amending Ordinance does not exempt firearms 5 between.50 and.60 caliber. Plaintiffs argued that California's "destructive device" 6 regulations (Penal Code section et seq.) preempt local regulation of these 7 large caliber firearms ("LCFs"). (Plaintiffs' Motion for Preliminary Injunction at 8 pp.ii-13.) 9 The Amending Ordinance also does not allay Plaintiffs' First Amendment 10 concerns. The Amending Ordinance makes clear that the new ordinance will not 11 prohibit offers for sale and displays for sale in periodicals, in mail solicitations, and 12 on the internet where the seller or offeror is located outside the City. But people 13 within the City, including Plaintiffs, have First Amendment rights, as well. As 14 noted in Plaintiffs' Motion for Preliminary Injunction (at p. 17), speech concerns 15 lawful activity when the activity is lawful at the location where the activity is to 16 occur. Therefore, in order for the ordinance not to run afoul of the First 17 Amendment's guarantee of free expression, persons or businesses located within the 18 City must be permitted to offer or display for sale LCFs where the sale is to occur 19 outside the City. The City cannot ban the speech of a Los Angeles gun dealer who 20 wants to advertise or otherwise engage in speech about the sale of LCFs to take 21 place at a Nevada gun show. 22 Nor does the Amending Ordinance resolve Plaintiffs' equal protection 23 concerns. The Amending Ordinance purports to cure the equal protection problem 24 by limiting the exemption provided for sales to law enforcement officers to 25 purchases made only "when [ the officer] is acting in the course and scope of his or 26 her law enforcement duties." The provision is nonsensical. First, as pointed out in 27 the Reply Brief, in the rare instances where law enforcement officials might have 28 reason to use LCFs, the agency involved would be required to purchase them. In 4

5 1 fact, it is difficult to imagine a circumstance where an individual officer would have 2 occasion to purchase an LCF "within the scope of his or her duty," unless that duty 3 was in the nature of a procurement officer for a law enforcement agency. In short, 4 there remains no rational basis for exempting individual law enforcement officers 5 from the scope of the Ordinance, and allowing them to purchase LCFs for match 6 competition shoots or other sporting uses, while banning sales to all other individual 7 purchasers who have similar interests (and rights) The Amending Ordinance Is Not Simply A Reaction to Recent Changes in State Law. 10 Contrary to the assertion in the Report, the provisions of the Amending 11 Ordinance are not merely a response to changes in State law. Plaintiffs are unaware 12 of any recent changes to State law which would only now prohibit the City from 13 regulating advertisements that originate outside of the City, or would only now 14 restrict sales oflcfs to law enforcement officers not acting within the scope of 15 their employment. The provisions that were invalid as extraterritorial intrusions on 16 free speech and commercial activity were invalid when the Ordinance was initially 17 passed. The provisions that irrationally discriminated between law enforcement 18 officials (with no official need to purchase LCFs) and others who seek to purchase 19 LCFs were likewise defective when the Ordinance was enacted. No recent State 20 laws rendered them invalid, post-enactment CONCLUSION 23 Most, if not all, of the City's recent effort to cure its defective Ordinance can 24 be attributed to Plaintiffs' law suit. The timing of the "cure" can be attributed to 25 Plaintiffs' motion for preliminary injunction. Regardless of the City's motivations, 26 however, Plaintiffs' action and the instant motion remain both viable and vital, for 27 even with the changes that will likely take effect sometime in Mayor June, the 28 Ordinance remains defective, violates important constitutional rights, and interferes 5

6 1 with the comprehensive State scheme regulating large caliber firearm sales, 2 possession, licensing and registration. Finally, given the Ordinance's impact on free 3 speech rights, and the presumption of irreparable harm associated with such 4 infringements, the need for injunctive relief remains of paramount concern and 5 cannot be ignored. The City's recent actions do nothing to change that equation Dated: April 15, 2005 TRUTANICH MICHEL, LLP: 6

7 EXHIBIT A

8 OFFICE OF THE CITY ATTORNEY ROCKARD J. DELGADILLO CITY ATTORNEY REPORT NO, R'05-Cd 06' MAR 2 I ~Ms REPORT RE: DRAFT OF ORDINANCE AMENDING SECTION OF THE LOS ANGELES MUNICIPAL CODE, PROHIBITING THE SALE OF LARGE CALIBER FIREARMS IN THE CITY OF LOS ANGELES Honorable City Council of the City of Los Angeles City Hall, Room North Spring Street Los Angeles, California Honorable Members: You should find with this letter, approved as to form and legality, a draft ordinance amending section of the Los Angeles Municipal Code, which prohibits the sale of large caliber firearms in the City of Los Angeles. The City adopted Section 5S.18 in In 2004, the State of California enacted legislation regulating the sale and possession of ".50 BMG rifles" in a manner consistent with the State's regulation of assault weapons. This new law became effective on January 1, 200S. In addition, the State recently enacted legislation providing for the issuance by the State of "entertainment firearms permits" to persons who use firearms in connection with the making of films or television programs. The "entertainment firearms permit" regulations became effective on September 20, The proposed amendments to Section 5S.18 are primarily intended to update the ordinance in light of these recent changes in State law. In addition, we have taken the opportunity to clarify some of the existing provisions in the ordinance. Specifically, the proposed amendments do the following: 1. In subdivision (e), "any.so BMG rifle as defined in the California Penal Code" is added as a category that is exempt from the provisions of the ordinance; AN EQUAL EMPLOYMENT OPPORTUNITY - AFFIRMATIVE ACTION EMPLOYER 200 NORTH MAIN STREET' LOS ANGELES, CA TOO Recyclable and rle ~om

9 Honorable City Council of the City of Los Angeles Page 2 2. In subdivision (e), the last sentence is added to clarify that the ordinance does not prohibit firearms advertisements originating outside the City of Los Angeles; 3. In subdivisions (f)(4), (f)(5), and (f)(6), language is added to clarify that sales to the described persons are exempt only when the purchaser is acting in.the course and scope of his or her official duties; and 4. In subdivision (f)(10), the language is amended to provide an exemption where a transferee is acting pursuant to a valid entertainment firearms permit issued by the State of California. The introduction to the proposed ordinance declares the City's continued commitment to protecting residents of the City of Los Angeles from the use of dangerous large caliber firearms by criminals, while at the same time remaining consistent with current State laws regulating firearms. If you have any questions, please contact Deputy City Attorney James Axtell at (213) Either he or another member of this office will be available when you consider this matter to answer any questions you may have. Sincerely, ROCKARD J. DELGADILLO, City Attorney By ~tt.~ TERREE A. BOWERS Chief Deputy City Attorney

10 ORDINANCE NO. An ordinance amending Section to the Los Angeles Municipal Code, prohibiting the sale of large caliber firearms in the City of Los Angeles. WHEREAS, since the enactment of Los Angeles Municipal Code section 55.18, the State of California has enacted legislation regulating the sale of.50 BMG rifles; WHEREAS, since the enactment of section 55.18, the State of California has enacted legislation providing for the issuance of entertainment firearms permits to persons who use firearms in connection with the making of films; and WHEREAS, large caliber rifles and handguns continue to present a grave danger to the public when used by criminals due to their high penetration capacity; NOW THEREFORE: THE PEOPLE OF THE CITY OF LOS ANGELES DO ORDAIN AS FOLLOWS read: Section 1. Section 55: 18 of the Los Angeles Municipal Code is amended to SEC '. SALE OF LARGE CALIBER FIREARMS PROHIBITED. (a) As used in this section, the term "large caliber firearm" shall mean any firearm, as defined in Section of this Code, capable of firing a center-fire cartridge of.50 caliber or larger either by qesignation or by actual measurement. The term "large caliber firearm" shall include any rifle or handgun. (b) As used in this section, the term "rifle" shall mean any firearm that is designed or redesigned, made or remade, and intended to be fired from the shoulder and is designed to fire only a single projectile through a rifled bore for each single pull of the trigger. The term "rifle" shall not include any shotgun. (c) As used in this section, the term "handgun" shall mean any firearm with a barrel less than 16 inches in length. The term "handgun" shall include any pistol, revolver, or concealable firearm as such terms are defined in the California Penal Code. (d) No person shall sell, give, transfer ownership of, transfer, offer for sale, or display for sale any large caliber firearm. 1

11 (e) The provisions of this section shall not apply to any sale or transfer of a firearm which is prohibited under state law, of any destructive device as defined in Section of the California Penal Code, of any assault weapon as defined in the California Penal Code, or of any.50 BMG rifle as defined in the California Penal Code. The provisions of this section shall not apply to any offer for sale or display in any periodical, solicitation by mail, or use of the internet by a seller or offeror located outside the City of Los Angeles. (f) The provisions of Subsection (d) of this section shall not apply where the purchaser or transferee is any of the following: (1) A law enforcement agency; (2) An agency duly authorized to perform law enforcement duties; (3) A state or local correctional facility; (4) A person described in Section or of the California Penal Code, when acting within the course and scope of his or her law enforcement duties; (5) A federal law enforcement officer, when acting in the course and scope of his or her law enforcement duties; (6) A person who is properly identified as a full-time paid peace officer, as defined in Section 830.1, 830.2, 830.4, or of the California Penal Code, and who is authorized to, and does, carry a firearm during the course of his or her employment as a peace officer, and is acting within the course and scope of such employment; (7) A firearms dealer who has been issued a Federal Firearms License, a Certificate of Eligibility by the State of California, and a permit by the City of Los Angeles to engage in the retail sale of firearms; (8) A purchaser of a curio or collector firearm. A firearm shall be deemed curio or collector only if it falls within one of these categories: (A) It was manufactu red prior to 1899; (8) It is classified as a curio or relic pursuant to 27 Code of Federal Regulations section , and the purchaser maintains a current federal firearms collector license; or (C) It is a muzzle-loading firearm; 2

12 (9) A federal, state, or locar historical society, museum, or institutional collection that is open to the public, provided that the large caliber firearm is used for display purposes, is secured from unauthorized use, and is unloaded; (10) A person acting pursuant to a valid entertainment firearms permit issued by the State of California; or (11) A person who obtains title to a large caliber firearm by bequest or intestate succession. (g) Any violation of this section shall constitute a misdemeanor. 3

13 Sec. 2. The City Clerk shall certify to the passage of this ordinance and have it published in accordance with Council policy, either in a newspaper circulated in the City of Los Angeles or by posting for ten days in three public places in the City of Los Angeles: one copy on the bulletin board located in the Main Street lobby of City Hall; one copy on the bulletin board located at the ground level at the Los Angeles Street entrance to the Los Angeles Police Department; and one copy on the bulletin board located at the Temple Street entrance to the Los Angeles County Hall of Records. I hereby certify that the foregoing ordinance was passed by the Council of the City of Los Angeles, at its meeting of Approved FRANK T. MARTINEZ, City Clerk By Deputy Approved as to Form and Legality Mayor ROCKARD J. DELGADILLO, City Attorney By - 7 ~M~ AXTELL Deputy City Attorney Date 3/2 \/0. ~ ) File No. 4

14 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA COUNTY OF LOS ANGELES 3 I, Claudia Ayala, am emrloyed in the City of San Pedro, Los Angeles 4 County, California. I am over the age ei~hteen (18) years and am not a party to the within action. My business address IS 407 North Harbor Boulevard, San Pedro, 5 California On April 15, 2005, I served the foregoing document(s) described as 7 SUPPLEMENTAL BRIEF ON IMPACT OF CITY'S AMENDMENT TO THE ORDINANCE AT ISSUE IN PLAINTIFFS' 8 I ] MOTION FOR PRELIMINARY INJUNCTION on the interested parties in this action by placing 9 the original X] a true and correct copy 10 thereo enclosed in sealed envelope(s) addressed as follows: ~ ~ John A. Carvalho, Deputy City Attomey OFFICE OF THE CITY ATTORNEY SPECIAL LITIGATION DIVISION 200 N. Main St., Room 900 Los Angeles, CA (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing corre~ondence for mailing. Under the practice it would be deposited with the U.s. Postal Service on that same day with postage thereon fully prepaid at San Pedro, California, in the ordinary course of business. I am aware that on motion of the party served, service is Rresumed invalid if postal cancellation date is more than one day after date of oeposit for mailing an affidavit. Executed on Aprif 15,2005, at San Pedro, California. (PERSONAL SERVICE) I caused such envelope to delivered by hand to the offices of the addressee. (VIA OVERNIGHT MAIL As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for overnight delivery by UPS/FED-EX. Under th~actice it would be deposited with a facility regularly maintained by UPS/FED-EX for receipt on the same day in the oroinary course of business. Such envelope was sealed and placed for collection and delivery by UPSIFED-EX with delivery fees paid or provided for in accordance witli ordinary business practices. Executed on April 15,2005, at San Pedro, California. CST ATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (federal} I declare that I am employed in the office of the member of the bar of this of this court at whose direction the ~e was ~. ~ L~DiAx~A 7