Kirk v. City of Morgan Hill

Filed 9/30/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

G. MITCHELL KIRK et al., H048745 (Santa Clara County Plaintiffs and Appellants, Super. Ct. No. 19CV346360)

v.

CITY OF MORGAN HILL et al.,

Defendants and Respondents.

Plaintiffs G. Mitchell Kirk and the California Rifle & Pistol Association contend a Morgan Hill city ordinance requiring that the theft or loss of a gun be reported within 48 hours is preempted by a state law requiring that missing guns be reported within five days. Their contention fails because local governments are free to impose stricter gun regulations than state law, which is what the ordinance at issue here does. It does not conflict with the more permissive state standard and is not preempted. We will therefore affirm the trial court’s order granting summary judgment for the City of Morgan Hill. I. BACKGROUND California law requires notification to “a local law enforcement agency in the jurisdiction in which the theft or loss occurred” when a gun is lost or stolen. (Pen. Code, § 25250, subd. (a).) The person who owns or possessed the gun must make the report “within five days of the time he or she knew or reasonably should have known that the firearm had been stolen or lost.” (Ibid.) A violation of that requirement is an infraction punishable by a $100 fine. (Pen. Code, § 25265, subd. (a).) Penalties increase for repeat offenses: a second violation is an infraction punishable by a $1,000 fine; a third or subsequent offense is a misdemeanor carrying a maximum six-month jail term. (Pen.

Code, § 25265, subds. (b), (c).) The reporting requirement was enacted as part of the Safety for All Act of 2016, a voter initiative intended to prevent gun violence with “reasonable, common-sense gun laws” that “reduce gun deaths and injuries, keep guns away from criminals and fight illegal gun trafficking.” (Prop. 63, § 2, approved Nov. 8, 2016, eff. Nov. 9, 2016.) In 2018, the Morgan Hill City Council adopted its own missing firearm reporting requirement. The ordinance requires notification to the Morgan Hill Police Department within 48 hours of discovering a gun is missing. (Morgan Hill Mun. Code, Ch. 9.04.030.) The requirement applies when either the gun owner lives in Morgan Hill, or the loss occurs there. (Ibid.) A reporting violation is a misdemeanor punishable by up to six-months in jail and a $1,000 fine. (Id., Ch. 1.24.010.) In a report to the City Council recommending adoption of the ordinance, city staff noted that “[e]arlier notification of lost or stolen firearms allows police to more easily identify stolen weapons during the course of an investigation,” and that “[t]he 48-hour reporting period also provides an opportunity for early identification and may reduce the chance of lost or stolen firearms being used in additional crimes.” Morgan Hill resident G. Mitchell Kirk and the California Rifle & Pistol Association sued to invalidate the local ordinance. They brought an action for declaratory relief, asserting the ordinance is preempted by the state law five-day reporting requirement for missing firearms. The trial court found no preemption and granted summary judgment for the city. Statutory preemption is a legal question which we review de novo. (T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1118.) II. DISCUSSION The California Constitution gives cities broad authority to make and enforce their own laws. (Cal. Const., art. 11, § 7.) In terms of what a city may regulate, municipal lawmaking authority is the same as that of the state legislature. (California Rifle & Pistol 2