FindLaw Court of Appeals Cases and Opinions in California. (2023)

Court of Appeals for the Sixth Circuit of California.

G. Mitchell KIRK et al., Plaintiffs and Appellants v. CITY OF MORGAN HILL, et al., Defendants and Defendants.


Resolution: September 30, 2022

C. D. Michel, Anna M. Barvir, Tiffany D. Cheuvront, Long Beach, Konstadinos T. Moros, Michel & Associates, PC, for plaintiffs and appellants. Anthony P. Schoenberg, Kelsey D. Mollura, San Francisco, Farella Braun +Martel LLP, Hannah Shearer, Esther Sanchez-Gomez, Giffords Law Center on Gun Violence Prevention, Defendant and Defendant.

Plaintiffs G. Mitchell Kirk and the California Rifle and Firearms Association argued that a Morgan Hill ordinance requires guns to be reported stolen or lost within 48 hours, while state law requires lost firearms to be reported within five days be reported. His argument fails because local governments are free to enforce stricter gun controls than state laws, and that's exactly what the decree in question does here. It does not contradict or precede more lenient national standards. Accordingly, we will affirm the summary judgment of the trial court against the City of Morgan Hill.

1. Background

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California law requires that if a firearm is lost or stolen, "local law enforcement agencies in the jurisdiction where the theft or loss occurred" be notified. (Penal Code, § 25250, subd. (a).) A person who possesses or possesses a firearm must be "before he or she knew or reasonably ought to have known that the firearm was stolen or lost" (ibid.). A $100 fine will be imposed for the requirement. (Pen. Code § 25265, subd. (a).) Penalties increase for repeated infractions: a second infraction is an offense punishable by a $1,000 fine; a third or further criminal offense is an administrative offense that can be punished with imprisonment for up to six months. (Penal Code, § 25265, subds. (b), (c).) The reporting requirement was enacted under the Safety for All Act of 2016, a voter initiative for the Disposal Prevention Weapons Act. Violence" to "reduce gun casualties, keep guns out of the hands of criminals and fight the illicit arms trade". (Proposal 63, Section 2, approved November 8, 2016, effective November 9, 2016).

In 2018, Morgan Hill City Council passed its own missing firearms reporting requirements. The ordinance requires that the Morgan Hill Police Department be notified within 48 hours of discovering a lost firearm. (Morgan Hill Mun. Code, Ch. 9.04.030.) This requirement applies if the gun owner resides or the loss occurred at Morgan Hill. (Ibid.) Reporting a violation is a misdemeanor punishable by up to six months in prison and a $1,000 fine. (Ibid., Chapter 1.24.010.) In a report to the City Council recommending passage of the ordinance, city officials noted that “early notification of lost or stolen firearms allows police to conduct stolen firearm investigations more easily identify” and “The 48-hour reporting period also provides an opportunity for early identification and may reduce the likelihood that lost or stolen firearms will be used in other crimes.”

G. Mitchell Kirk of Morgan Hill and the California Rifle and Pistol Association filed a lawsuit to invalidate the local ordinance. They filed a lawsuit for a declaratory judgment, arguing that the law was superseded by the state lost firearms law's five-day notice requirement. The regional court found no right of first refusal and pronounced the city in summary proceedings. The statutory right of first refusal is a legal issue that we will take up again. (T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1118, 245 Cal.Rptr.3d 412, 438 p.3d 239.)

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The California Constitution grants cities broad powers to make and enforce their own laws. (Cal. Const., Art. 11, §7.) City legislatures are the same institutions as state legislatures in terms of what cities can regulate. (California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66 Cal.App.4th 1302, 1310, 78 Cal.Rptr.2d 591.) However, local laws must not conflict with state laws. (See Cal. Const. Title 11, Section 7.) Local ordinances that conflict with state law are null and void. (Harrahill v. City of Monrovia (2002) 104 Cal.App.4th 761, 764, 128 Cal.Rptr.2d 552.) When local law duplicates or conflicts with state law, or when it violates regional legislation, occupy the fully intended. (T-Mobile West LLC v. City and County of San Francisco, see above, 6 Cal.5th 1107, 1116, 245 Cal.Rptr.3d 412, 438 P.3d 239.) We reviewed the Morgan Hill ordinance to determine if Do any of this is important?



When a local statute has the same scope as a statute, it duplicates a state statute so that both statutes have the same requirements or prohibit the same things. (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 898, 16 Cal.Rptr.2d 215, 844 P.2d 534.) Here local ordinances impose stricter requirements - reporting lost firearms within 48 Hours - compared to Section 25250 of the Criminal Code, which allows up to five days to report lost firearms. Since the regulation sets stricter requirements, it does not share the common scope with state law and therefore does not duplicate it.

Plaintiffs argue that the statute duplicates state law because a criminal conviction for violating the statute would bar charges of double jeopardy for violating state law. (See Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 292, fn. 12, 219 Cal. Rptr. 467, 707 P.2d 840.) But breaking the rules is not necessarily breaking the law. Because local ordinances require that the loss of a firearm be reported three days earlier than state law, a person can violate the ordinance without violating state regulations (i.e., reporting the loss of a firearm three to five days after the fact) . We recognize that there is an overlap between this regulation and state law. However, covering some of the same grounds as state law is not sufficient for a law to be repeated for preventive buying purposes. The question is not whether a conviction under the law would prevent a state from prosecuting, but whether it would. Duplication occurs only when the statute does not cover another ground such that "a conviction under this statute would prohibit prosecution under state law for the same offense" (ibid., citing People v. Orozco (1968) 266 Cal.App .2d 507 , 511, n. 1, 72 Cal. Rptr. 452.) When it is possible to break the law without breaking thelaws of the state, as is here without repetition. (See Great Western Shows, Inc. v. Los Angeles County (2002) 27 Cal.4th 853, 865, 118 Cal.Rptr.2d 746, 44 P.3d 120.)


Local law conflicts with state law when it prevents the application of state regulations. (Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal. 4th 893, 899, 16 Cal. Rptr. 2d 215, 844 p. 2d 534.) Occurs when a regulation prohibits a statutory order or ordinance if the content is prohibited by law. (Id. 903, 16 Cal.Rptr.2d 215, 844 P.2d 534.) Section 25250 of the Penal Code sets minimum standards and provides only an outer limit for when a report must be filed. The law requires law enforcement to be notified within five days of discovering a missing weapon, rather than exactly five days; Law enforcement agencies may also be notified in advance. Therefore, the local ordinance that requires reporting within five days says nothing that state law prohibits. A person who follows a statutory order to report a lost firearm within 48 hours does not violate Penal Code Section 25250. The 48-hour rule also does not contradict the purpose of state law to ensure timely notification of lost firearms. The obligation to report within 48 hours fully meets and facilitates this purpose. This provision does not conflict with state law.

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A local ordinance may conflict with a statute by interfering with an area that the legislature (or here, the electorate) intends the statute to cover entirely. (Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal.4th 893, 897-898, 16 Cal.Rptr.2d 215, 844 p.2d 534.) The intention to completely occupy the field, can be expressed or implied. (T-Mobile West LLC v. City and County of San Francisco, see above, 6 Cal.5th 1107, 1116, 245 Cal.Rptr.3d 412, 438 p.3d 239.)

The wording of the statute may express an explicit intention to prohibit the local statute. (T-Mobile West LLC v. City and County of San Francisco, supra, 6 Cal.5th 1107, 1116, 245 Cal.Rptr.3d 412, 438 P.3d 239.) That is not the case here because the Penal Code Section 25250 contains no language that would prevent local authorities from enacting their own requirements for reporting lost firearms. In the case of a legal regulation of “comprehensive regulation in an area without further local possibilities for action” there is an implicit intention to completely occupy the area. (Id. at p. 1122, 245 Cal.Rptr.3d 412, 438 p.3d 239.) However, if the matter is generally left to local regulation, vital local interests may vary from city to city. (same as above)

Here we note that the California Supreme Court has recognized gun regulation as an area of ​​significant and divergent local interest. (See Great Western Shows, Inc. v. Los Angeles County, supra, 27 Cal.4th 853, 867, 118 Cal.Rptr.2d 746, 44 p.3d 120 [""Guns in San Francisco County than in Mono County .' "].) Thus, while the legislature anticipates some areas of gun control (e.g., licensing requirements and the manufacture, possession, and sale of imitation firearms), it generally leaves the area of ​​gun control open to local legislation. (Ibid, § 861, 118 Cal.Rptr.2d 746, 44 P.3d 120.)

Plaintiffs argue that reporting requirements for lost firearms is a separate area for state law to fully address. However, if we apply the relevant standard to Section 25250 of the Criminal Code, we find no such reference. State law has not “completely and fully clarified” the timeline for notifying law enforcement of a lost firearm that has become a matter of full national interest.” (Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal.4th 893, 898, 16 Cal.Rptr.2d 215, 844 P.2d 534.) Section 25250 of the Criminal Code is not "drafted to make it clear that additional local measures will not be tolerated because of overriding national concerns" ( ibid.). local measures imposing stricter reporting requirements. The national concern reflected in the law is simply to notify local law enforcement immediately if a firearm is lost or stolen. The law tolerates full compliance with local laws that further its purpose by requiring prior notice.


Nor is the lack of firearms reporting requirements "of the nature of local ordinances adversely affecting the state's transient citizens and outweighing potential local benefits" (Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal. 4th 893, 898 , 16 Cal.Rptr.2d 215, 844 P.2d 534.) “[Laws] controlling the sale, use, or possession of firearms in a given neighborhood have very little impact on casual citizens, much less, in fact, than other laws that have withstood pre-emptive challenges.” (Great Western Shows, Inc. v. County of Los Angeles, supra, 27 Cal.4th 853, 867, 118 Cal.Rptr.2d 746, 44 P.3d 120.) Plaintiff argues The occasional gun owner who passes Morgan Hill may not be aware that local requirements differ from state laws. However, as we have found, the significant local interest in regulating firearms in accordance with local needs outweighs the related inconvenience to non-residents. We do not believe that firearm owners need to be familiar with the firearms laws of the jurisdictions in which they live or carry firearms do not prevent them from exercising their rights.

With vital local security interests at stake, cities can enforce stricter gun laws than state laws dictate. (Great Western Shows, Inc. v. Los Angeles County, supra, 27 Cal.4th 853, 870, 118 Cal.Rptr.2d 746, 44 P.3d 120.) The state statute at issue here was designed to provide a ensure timely notification Return of a lost or stolen firearm. The Morgan Hill ordinance, which requires prior notification to local law enforcement, serves this purpose. This regulation does not conflict with state law and is a local safety regulation.

3. Elimination

The verdict stands. Defendants will be awarded fees pursuant to California Court Rules 8.278(a)(1).

Grober, J.

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We agree: Greenwood, P.J. Wilson, J.


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  • Step 4: Researching and Writing Your Appeal. ...
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Other reasons appeals get rejected

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California Laws on the Criminal Statute of Limitations

If a felony offense is punishable by 8 or more years in prison, then the statute of limitations is 6 years. Violent felony crimes normally have longer statutes of limitations, and some crimes, such as Penal Code 187 PC murder, have no statute of limitations.

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Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. [As amended Dec.

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Filings In Superior Court
Notice or Motion to Appeal - Civil (Gov. Code 68926, 68926.1(b), 5.180) (for each notice of appeal & cross appeal) CRC 8.100(b) (Check made payable to Court of Appeal)$775
Notice of Appeal - Criminal or JuvenileNo Fee
Notice of Appeal in Conservatorship Proceeding (Rule 8.480)No Fee

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Personal injury: Two years from the injury. If the injury was not discovered right away, then it is 1 year from the date the injury was discovered. Breach of a written contract: Four years from the date the contract was broken. Breach of an oral contract: Two years from the date the contract was broken.

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Capital crimes, including murder, manslaughter, and other violent crimes have no statute of limitations in California. A capital crime is defined as a crime that carries a penalty of death or life imprisonment without the possibility of parole.


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