City sued over gun control ordinance

Resident, lobbyist say state law preempts local provisions

A Morgan Hill resident and a statewide firearms advocacy organization have sued the City of Morgan Hill over a local gun control ordinance enacted by the city council last year.

The plaintiffs—G. Mitchell Kirk and the California Rifle and Pistol Association—say the city ordinance’s new provision requiring gun owners to report incidents of firearm theft to police within 48 hours contradicts existing state law. The state law allows victims of gun theft up to five days to report the loss or theft, according to the lawsuit filed April 15 in Santa Clara County Superior Court.

Specifically, the state’s Proposition 63, which California voters approved in 2016, established the five-day maximum timeframe within which to report firearm theft. According to the lawsuit filed by Kirk and the CRPA, the state law preempts the city’s gun control ordinance, which the council approved in October 2018.

“The legal preemption doctrine bans local laws that duplicate or conflict with state laws because these confuse the public,” reads a statement from CRPA about the lawsuit. “In this case, the conflicting requirements place innocent gun owners at risk of criminal prosecution for unwitting and accidental local ordinance violations that do not violate the state law.”

The plaintiffs want the court to declare that the theft reporting portion of the Morgan Hill ordinance is preempted by state law and thus invalid. They are also asking the court to order the city to strike the theft reporting provision from the city’s municipal code.

The theft reporting requirement of the city’s ordinance is one of many firearms ownership restrictions implemented at the Oct. 24, 2018 council meeting. Other local provisions in the new city ordinance include requiring safe storage of firearms and a ban on magazines that hold more than 10 rounds of ammunition.

The CRPA lawsuit does not address any aspects of the city ordinance other than the 48-hour theft reporting requirement.

Councilmember Rene Spring was the only member of the city council to vote against the city ordinance in October 2018. The passage of the ordinance followed months of discussion among local students and residents concerned about gun violence, firearms owners concerned about new ownership restrictions and city officials.

City Attorney Don Larkin, who drafted the local firearms ordinance, said the lawsuit filed by Kirk and CRPA was not unexpected. He said the 48-hour gun theft reporting requirement “promotes public safety,” which is the city council’s stated “number one priority” for Morgan Hill.

“Lost and stolen firearms don’t end up in someone else’s gun safe, they end up on the black market,” Larkin said. “It’s everyone’s responsibility to promptly report this crime so that law enforcement can investigate quickly and stop people with bad intentions before they use a stolen firearm to cause harm.”

Larkin added that the CRPA lawsuit “seeks to obscure the clear benefits of the ordinance at the expense of the people of Morgan Hill who are trying to make their community a better place.” The city attorney’s statement concluded, “We look forward to persuading the court to reject the gun lobby’s meritless claim.”

The CRPA is the “official state association” of the National Rifle Association, according to the CRPA website. The lawsuit against Morgan Hill is supported by the NRA Institute for Legislative Action.

The CRPA’s statement on the Morgan Hill lawsuit contends that the City of Palm Springs was compelled to eliminate a similar 48-hour theft reporting requirement after that city received a “pre-litigation demand letter” from the NRA chapter. According to a November 2018 story in the Palm Springs Desert Sun, the Palm Springs council voted 3-2 to repeal their 48-hour provision that the council originally approved in 2016. The repeal decision was directly related to the demand letter from the NRA, the Desert Sun reported.

Named as defendants in the lawsuit are the City of Morgan Hill, Morgan Hill Chief of Police David Swing, Morgan Hill City Clerk Irma Torrez and other unnamed parties.

The Times was unable to contact plaintiff G. Mitchell Kirk. The lawsuit states Kirk is “a resident of Morgan Hill, California, and a firearm owner.”

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