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U.S. 9th Circuit Court of Appeals
GREAT WESTERN v LOS ANGELES
9956605o
GREAT WESTERN SHOWS, INC., a No. 99-56605 Texas corp., D.C. No. Plaintiff-Appellee, CV 99-09661 RAP v. ORDER LOS ANGELES COUNTY, CERTIFYING Defendant-Appellant. QUESTIONS TO THE CALIFORNIA SUPREME COURT
Filed September 12, 2000
Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain, and
Ronald M. Gould, Circuit Judges.
_________________________________________________________________
ORDER
We certify to the California Supreme Court two questions
set forth in Part III of this order. The preliminary injunction
granted by the district court will remain in place during the
pendency of certification. All further proceedings in this case
are stayed pending receipt of the answers to the certified ques-
tions. This case is withdrawn from submission until further
order of this court. If the California Supreme Court accepts
the certified questions for answer, the parties shall file a joint
report six months after date of acceptance and every six
months thereafter advising us of the status of the proceedings.
This case is being certified jointly with Nordyke v. King, No.
99-17551, which raises a closely related issue of preemption.
I
Pursuant to Rule 29.5 of the California Rules of Court, a
panel of the United States Court of Appeals for the Ninth Cir-
cuit, before which this appeal is pending, certifies to the Cali-
fornia Supreme Court questions of law concerning the
possible state preemption of local gun control ordinances and
a jurisdictional conflict between a county and an incorporated
city within its borders. The decisions of the Courts of Appeal
of the State of California provide no controlling precedent
regarding the certified questions, the answers to which may be
determinative of this appeal. We respectfully request that the
California Supreme Court answer the certified questions
presented below. Our phrasing of the issues is not meant to
restrict the court's consideration of the case. We agree to fol-
low the answers provided by the California Supreme Court.
If the Supreme Court declines certification, we will resolve
the issues according to our perception of California law.
II
Los Angeles County is deemed the petitioner in this request
because it is appealing the district court's ruling on these
issues. The caption of the case is:
GREAT WESTERN SHOWS, INC., a Texas corp.,
Plaintiff - Appellee,
v.
LOS ANGELES COUNTY,
Defendant - Appellant.
Counsel for the parties are as follows:
For the County of Los Angeles: Lawrence L. Hafetz,
Senior Deputy County Counsel, 648 Kenneth Hahn Hall of
Administration, 500 West Temple Street, Los Angeles, Cali-
fornia 90012. Telephone: (213) 974-1876.
For Great Western Shows, Inc.: C.D. Michel, Trutanich &
Michel LLP, 407 North Harbor Boulevard, San Pedro, Cali-
fornia 90731. Telephone: (310) 548-0410.
Donald B. Kates, Jr., Benenson & Kates, 920 Arlene Way,
Novato, California 94947. Telephone: (415) 883-5323.
Michael F. Wright, Patrick J. Walsh, and Armen Tam-
zarian, Case, Knowlson, Burnett & Wright, LLP, 2049 Cen-
tury Park East, Los Angeles, California 90067. Telephone:
(310) 552-2766.
III
The questions of law to be answered are:
1. Does state law regulating the sale of firearms and gun
shows preempt a municipal ordinance prohibiting gun and
ammunition sales on county property?
2. May a county, consistent with Article 11,S 7 of the
California Constitution, regulate the sale of firearms on its
property located in an incorporated city within the borders of
the county?
IV
The statement of facts is as follows:
Great Western Shows, Inc. ("Great Western") operates
three gun and collector shows a year at the Los Angeles
County Fairgrounds ("Fairgrounds") located in the incorpo-
rated city of Pomona. It had been holding shows there for the
past 22 years until the fall of 1999. The exhibitors at the show
include sellers of antique (pre-1898) firearms, modern fire-
arms, ammunition, Old West memorabilia, and outdoor cloth-
ing.
The County of Los Angeles ("County") owns the Fair-
grounds, but has contracted their operation to the entirely sep-
arate entity, the Los Angeles County Fair Association
("Association"). Prior to the show scheduled for October
1999, the County passed a "Prohibition on the Sale of Fire-
arms and Ammunition on County Property" ("Ordinance").
The Ordinance reads: "The sale of firearms and/or ammuni-
tion on County property is prohibited." Los Angeles County
Code S 13.67.030. The Ordinance defines "sale" to include
"the act of placing an order." Id. atS 13.67.040(E). Although
the Ordinance applies to all county property, the County
passed the law expressly to discourage the Great Western
show and the Fairgrounds is the only property at issue in this
case.
To prevent the Ordinance's enforcement from interfering
with its October 1999 show, Great Western brought suit
against the County in the United States District Court for the
Central District of California. Great Western filed for a pre-
liminary injunction, arguing that the Ordinance infringes com-
mercial speech in violation of the First Amendment of the
United States Constitution. Great Western also challenged the
Ordinance on the grounds that it is preempted by state gun
control laws and that the County, under California law, has no
jurisdiction to legislate within the boundaries of an incorpo-
rated city. The District Court granted the preliminary injunc-
tion. The court found "that Great Western raised a substantial
question regarding whether the Ordinance is preempted by
state law and whether the County exceeded its lawful author-
ity, and the balance of hardships tips decidedly in favor of
Great Western." It did not reach Great Western's First
Amendment claims.
The County then filed an interlocutory appeal in the United
States Court of Appeals for the Ninth Circuit.
V
We respectfully submit that the questions need certification
for the following reasons:
A
"A county or city may make and enforce within its limits
all local, police, sanitary, and other ordinances and regula-
tions not in conflict with general laws. " CAL. CONST. art XI,
S 7 (emphasis added). A local law that conflicts with state law
is invalid. See Sherwin-Williams Co. v. City of Los Angeles,
4 Cal.4th 893, 897 (1993). "A conflict exists if the local legis-
lation duplicates, contradicts, or enters an area fully occupied
by general law, either expressly or by legislative implication."
Id. (quotations and citations omitted). The district court con-
cluded that Great Western raised a substantial question that
the County Ordinance may be contradictory to state law
because it is "inimical thereto." Id. California law offers no
clear guidance concerning the possible preemption of the Los
Angeles Ordinance.
The Ordinance reads: "The sale of firearms and/or ammuni-
tion on County property is prohibited." Los Angeles County
Code S 13.67.030. The law defines "sale " as "any transaction,
with or without the exchange of consideration, which trans-
fers ownership title, possession, or control of any firearm, or
gives, loans, leases, or delivers a firearm. A sale includes the
act of placing an order for any of the aforementioned trans-
fers. The act of displaying a firearm shall not constitute a sale
for the purposes of this chapter." Id. atS 13.67.040. The dis-
trict court concluded, and Great Western argues, that this
ordinance is inimical to several provisions of the California
Penal Code that provide for the sale of firearms at gun shows.
Section 12071 of the Penal Code regulates the sales of fire-
arms in California. This provision expressly acknowledges
that the sale of firearms may be permitted at gun shows so
long as there is compliance with local law. It reads in relevant
part: "A person licensed pursuant to subdivision (a) may take
possession of firearms and commence preparation of registers
for the sale, delivery, or transfer of firearms at gun shows or
events . . . . A person conducting business pursuant to this
subparagraph shall be entitled to conduct business as autho-
rized herein at any gun show or event in the state without
regard to the jurisdiction within this state that issued the
license . . . provided the person complies with . . . (ii) all
applicable local laws, regulations, and fees, if any." Cal. Penal
Code S 12071(b)(1)(B). In addition, California Penal Code
S 12071.1 regulates gun shows throughout the state. Finally,
the state legislature enacted a series of gun show regulations
effective January 1, 2000. See Cal. Penal Code SS 12071.1;
12071.4. These laws clearly pertain to the sale of firearms at
gun shows. From these provisions, one could well conclude,
as the district court did, that "It would be nonsensical to pass
a law expressly permitting gun sales at gun shows and then
require compliance with a local ordinance that prohibits such
sales. It is improbable that the Legislature sought to permit
local governments to pass ordinances that directly prohibited
state sanctioned activities. As such, the Ordinance conflicts
with the state law and is preempted." On the other hand, the
proviso may mean that it is not preempted.
The Courts of Appeal of the State of California have
responded in seemingly conflicting ways to this type of argu-
ment in the area of local gun regulation preemption. The argu-
ment finds most support in Doe v. City & County of San
Francisco, 136 Cal. App. 3d 509 (1982). In that case, the
court inferred from the legislature's restriction on local hand-
gun permit requirements an intent to foreclose local laws ban-
ning possession citywide. Id. at 518. "A restriction on
requiring permits and licenses necessarily implies that posses-
sion is lawful without a permit or a license. It strains reason
to suggest that the state Legislature would prohibit licenses
and permits but allow a ban on possession." Id.; see also
Northern California Psychiatric Society v. City of Berkeley,
178 Cal. App. 3d 90 (1986) (holding that a city ordinance pro-
hibiting the use of electroshock therapy throughout the city
was preempted by state regulations evincing a clear intent to
allow it). Moreover, an Attorney General opinion regarding
the preemption of local ammunition sale bans adopts the same
reasoning, relying explicitly on Doe. See Attorney General's
Opinion No. 94-212 (July 7, 1994). In that Opinion, the Attor-
ney General relied on the fact that the state banned ammuni-
tion over a certain caliber to conclude that a city could not ban
smaller-caliber ammunition. Likewise, the state legislature's
having expressly provided for the sale of firearms at gun
shows may imply that local ordinances, like that of Los Ange-
les, banning the sale of such weapons are preempted.
More recently, however, in California Rifle and Pistol
Ass'n, Inc. v. City of West Hollywood, 66 Cal.App.4th 1302
(1998), the Court of Appeal for the Second Appellate District
of California appears to have disavowed the logic underlying
the district court's conclusion and the pertinent part of Doe.
In California Rifle, the court confronted a challenge, on pre-
emption grounds, to a city ban on sales of certain handguns
known as Saturday Night Specials. Id. at 1306-07. The court
expressly considered an argument analogous to the one Great
Western makes here--that because state law envisions sales
at gun shows, the County cannot foreclose sales at gun shows.
There, the court confronted the argument that because under
state law sales of firearms are regulated, but legal, a city can-
not ban the sale of certain types of firearms. See id. at 1323.
The court rejected this reasoning as tautological:"Again, it is
no doubt tautologically true that something that is not prohib-
ited by state law is lawful under state law, but the question
here is whether the Legislature intended to strip local govern-
ments of their constitutional power to ban the local sale of
firearms which the local governments believe are causing a
particular problem within their borders." Id. at 1324. This rea-
soning appears to be at tension with the reasoning of Doe.
Furthermore, the court's discussion of preemption in Cali-
fornia Rifle suggests that the Ordinance may very well not be
preempted. First, the court held that the California legislature
has not expressly preempted local regulation of handgun
sales. See id. at 1311-17. Next, the court examined whether,
as the district court concluded here, the local law was
impliedly preempted. "[I]mplied preemption can properly be
found only when the circumstances `clearly indicate' a legis-
lative intent to preempt." Id. at 1317 (quoting Sherwin-
Williams, 4 Cal.4th at 898).
When the Legislature has passed laws to overturn a court's
decision that a local government's laws are not preempted, it
has tailored them narrowly, refusing at every turn to preempt
the entire field of gun control. This history demonstrates "a
legislative intent to permit local governments to continue to
apply their police power according to the particular needs of
the community." California Rifle, 66 Cal. App. 4th at 1318;
see also Suter v. City of Lafayette, 57 Cal. App. 4th 1109,
1119 (1997). The careful wording of the legislature's
response may indicate that it does not wish to preclude local
actions in areas where it has not expressly preempted. See
California Rifle, 66 Cal. App. 4th at 1319-20 (discussing
Suter, 57 Cal. App. 4th at 1120-21). Finally, the Courts of
Appeal of the State of California appear to have foreclosed an
argument for gun sale preemption based on the assertion that
the adverse affects of a local law on transient citizens out-
weigh the benefit to the municipality. See California Rifle, 66
Cal.App.4th at 1320-21.
The California cases teach that when examining the pre-
emption issue in the field of gun control, courts are to look
narrowly at the specific conduct at issue--here, the sale of
guns on County property. The Ordinance here does not ban
sales at gun shows held in the County, it bans sales on County
property only. This may distinguish it from the Ordinance
held impliedly preempted in Doe. See 136 Cal. App. 3d at
518. While the Ordinance has the effect of banning sales at
the show Great Western has traditionally held at the County
Fairgrounds, it does not speak at all to gun shows held on any
non-County property in the county. But the question we face
is whether the extensive state regulation of gun shows, all of
which foresees the sale of firearms, precludes even such
action. Also uncertain is whether the state law provisions
requiring gun shows to comply with all local regulations
allow municipalities to completely prohibit sales at these
shows, an action that may have the practical effect of shutting
them down.
In sum, there is tension in the reasoning underlying several
decisions of the Courts of Appeal of the State of California
and an Opinion of its Attorney General. In addition, no Cali-
fornia court, to our knowledge, has yet confronted the possi-
ble preemptive impact of the new gun show regulations that
went into effect January 1, 2000. We are mindful of the con-
siderations of comity when we are being asked to invalidate,
on federal constitutional grounds, a local California law. Res-
olution of the state law issue may obviate the need to decide
the federal constitutional question. The area of gun control
regulation is a sensitive area of local concern with which we
hesitate to interfere, particularly where we are asked to deter-
mine unclear questions of state law. A clear statement by the
California Supreme Court would provide guidance to local
governments with respect to the powers they may exercise in
passing local gun control regulations.
B
We respectfully submit that state law regarding a county's
power to pass laws enforceable against the general public on
county property located within an incorporated city is also
uncertain. "A county or city may make and enforce within its
limits all local police, sanitary, and other ordinances and regu-
lations not in conflict with general laws." CAL. CONST. art XI,
S 7 (emphasis added). The Fairgrounds are located in
Pomona, an incorporated city in the County. Pomona's ordi-
nances regulate the sale of ammunition and prohibit the sale
of Saturday Night Specials. The district court concluded that
Great Western had raised a substantial question of law regard-
ing whether the County may regulate conduct within an incor-
porated city. The County does not dispute that the
constitutional "within its limits" restriction and subsequent
case law mean that a county generally may not regulate within
the boundaries of an incorporated city located within the
county. The County contends, however, that this doctrine
does not apply where the County legislates regarding county-
owned land like the Fairgrounds.
There appears to be no clear California law on this issue.
The two primary cases cited by the district court and relied
upon by Great Western deal with attempts by a county to pass
regulations that applied throughout the city. See Ex parte
Pfirrman, 134 Cal. 143 (1901) (issuing writ of habeas corpus
to free county prisoner convicted of violating county liquor
control laws within incorporated city); Ex parte Knight, 55
Cal. App. 511 (1921). In both of these cases, the California
courts struck down county attempts to regulate within the
boundaries of an incorporated city. See also City of Dublin v.
County of Alameda, 14 Cal. App. 4th 264 (1993) (narrowing
a county ordinance to apply only in unincorporated areas of
the county). As the County points out, however, none of these
cases deals with the scenario here where the County attempts
to regulate only its own property located in an incorporated
city.
Nevertheless, the animating concern in the Pfirrman case
may be present even when the County tries only to regulate
its own property, namely, the "difficulties and confusion aris-
ing from a clash of jurisdictions." 134 Cal. at 144. In addition,
the cases to which the County cites allowing extraterritorial
regulation concern situations of a type not present here. See,
e.g., Ebrite v. Crawford, 215 Cal. 724 (1932) (upholding city
authority to regulate airport located partially within and par-
tially outside the city); South Pasadena v. South Pasadena
Canal Co., 152 Cal. 579 (1908) (upholding city authority to
maintain water supply outside its borders). These cases appear
to establish a narrow exception to the general rule against
extraterritorial powers "when the possession and exercise of
such powers are essential to the proper conduct of the affairs
of the municipality." Ebrite, 215 Cal. at 729. No such circum-
stances appear to be present here. Unlike the case of an airport
that cannot function if subject to two different regulatory
schemes depending on the location of the land, the Fair-
grounds presents no exigent circumstance. We have previ-
ously recognized the uncertainty in this area of the law. See
Air Cal. Inc. v. City and County of San Francisco , 865 F.2d
1112 (9th Cir. 1989). "Although a municipality's right to
acquire or own property beyond its corporate limits for legiti-
mate municipal purposes is well established, its power to
exercise the rights of sovereignty over such property is less
so." Id. at 1117.
Unless California law would permit concurrent jurisdiction,
if the County prevails it then would have exclusive jurisdic-
tion over the Fairgrounds, which would not be subject to local
regulation. The Pfirrman decision was based not on the exis-
tence of a conflict between city and county law, but upon the
premise that these two political entities, both creatures of the
state, could not have concurrent jurisdiction over the same
property. "By the organization of a city within the boundaries
of a county, the territory thus organized is withdrawn from the
legislative control of the county upon the designated subjects,
and is placed under the legislative control of its own council."
Id. at 145. Holding that the County has jurisdiction to regulate
its property in Pomona might have the effect of creating a
County enclave within the City. But a Court of Appeal of the
State of California has held that "[t]here is no provision in the
law of California, which creates enclaves on property owned
by the state comparable to the federal enclaves of exclusive
federal jurisdiction." Board of Trustees of the California State
Univ. & Colleges v. City of Los Angeles, 49 Cal. App. 3d 45,
49 (1975) (holding that a state-owned property within a city
must abide by city regulation). If the County's position pre-
vailed, it would mean that Pomona's laws, including its ban
on the sale of Saturday Night Specials and regulation of
ammunition sales, would become unenforceable at the Fair-
grounds, unless California law permitted some form of con-
current jurisdiction whereby the County could enhance
protections or prohibitions on its own property without sup-
planting the municipal ordinances.
Only in the narrow area of governmental activity does the
County have immunity from local regulation. See Board of
Trustees, 49 Cal. App. 3d at 49. The distinction between gov-
ernmental and proprietary activity has been abandoned in
other areas of the law, most significantly in the tort field from
which it sprang. While this doctrine has been on the decline,
at least one older California case and a treatise indicate that
this distinction remains viable in California municipal law.
See Board of Trustees, 49 Cal. App. 3d at 49 ("The state of
the law in the field of tort liability notwithstanding, as against
encroachment of municipal regulation, the doctrine of sover-
eign immunity remains viable."); 8 B.E. Witkin,"Constitu-
tional Law," S 796 in SUMMARY OF CALIFORNIA LAW (9th Ed.
1988) ("Although the governmental-proprietary activity dis-
tinction has been abrogated in tort liability cases . . . it should
be applied in the field of local regulation, so as to limit the
immunity of the state to situations in which the state is acting
in a governmental capacity."). It may be that given the state
of the doctrine in other areas of the law, the California
Supreme Court will abolish the relevance of the distinction
here too. But that is not at all clear today, and it would be
improvident for us to make that determination.
If the distinction remains viable, then the question becomes
whether the leasing of the fairgrounds for various activities
including gun shows is a governmental or a proprietary activ-
ity. In addition, there is the question whether that distinction
is dispositive if the Ordinance is enacted pursuant to the
County's police power. The particular activity in question
defines the scope of the inquiry. See Guidi v. California, 41
Cal. 2d 623, 627 (1953).1 In this case, the County provides the
venue for a private operator to hold a gun show. In Board of
Trustees, the court held that the state acted in a proprietary
capacity when it ran a horse arena and fireworks show at a
state fair. 49 Cal. App. 3d at 625-26. Likewise, leasing prop-
erty on which gun shows are held is likely a proprietary activ-
ity.
The County attempts to regulate not only what appears, fol-
lowing Board of Trustees, to be a proprietary function, but
also the "conduct of the public at large" at its events. Hall v.
City of Taft, 47 Cal. 2d 177, 183 (1956). This also would
appear to take it outside the realm of governmental activity
over which it has immunity from city regulation. See County
of Los Angeles v. City of Los Angeles, 212 Cal. App. 2d 160
(1963). In County of Los Angeles, the court held that when
constructing its own buildings on county property in an incor-
porated city, the county acts free of city regulation, but distin-
guished situations in which the county "enact[ed] laws for
conduct of the public at large." Id. at 165. The county has no
power to regulate the public in incorporated cities. Here the
County enacted its Ordinance explicitly to curtail the rash of
gunshot casualties in Los Angeles County. In so doing it
attempted to act pursuant to its police power to regulate the
conduct of the public throughout the County.
An opinion of the Attorney General concludes that a county
may prohibit smoking within its buildings. See Attorney Gen-
eral Opinion No. 91-719 (December 5, 1991). Its conclusion
that the smoking ban may be enforced against the public
(based on its statutory power to manage its buildings) does
appear at tension with some of the cases discussed above.
Like the Attorney General's opinion on ammunition sales, the
smoking ban opinion underscores the unsettled nature of state
law with regard to conflicting county and city jurisdiction.
Again, given the considerations of comity, we believe it best
for the California Supreme Court to provide clear resolution
to this question involving the distribution of power among the
state's political subdivisions.
VI
The Clerk of Court is hereby directed to transmit forthwith
to the California Supreme Court, under official seal of the
Ninth Circuit, a copy of this order and request for certification
and all relevant briefs and excerpts of record pursuant to Cali-
fornia Rule of Court 29.5(c).
IT IS SO ORDERED.
_______________________________________________________________
FOOTNOTES
1 Although this case has effectively been overruled in the tort context in
which it arose, if the governmental-proprietary distinction is still valid in
the municipal law context its analysis applies here.
DIARMUID F. O'SCANNLAIN
U.S. Circuit Judge
for the Ninth Circuit
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