Herrera’s battle with NRA over S.F.’s gun safety laws moves to Ninth Circuit

Controversial gun lobby seeks to immediately halt City’s enforcement of firearm safe-storage law, ban on the sale of enhanced-lethality bullets

SAN FRANCISCO (March 7, 2013) — City Attorney Dennis Herrera today filed his response brief to a federal appeal by the National Rifle Association seeking to immediately halt San Francisco’s enforcement of two local gun safety ordinances: a safe-storage law requiring handgun owners to keep guns locked when stored at home, and a ban on the sale of “enhanced-lethality ammunition” designed to maximize injury to victims of gun violence.

The procedural move by the embattled gun lobby seeks to overturn a Nov. 26, 2012 federal court ruling that denied the Fairfax, Va.-based NRA’s motion for a preliminary injunction in its challenge to the constitutionality of San Francisco’s gun safety laws. U.S. District Judge Richard Seeborg found that the NRA failed to demonstrate a likelihood that its case would ultimately succeed on the merits, siding with Herrera’s contention that City gun safety laws protect the public without impinging on residents’ right to bear arms under the U.S. Constitution’s Second Amendment. To succeed on appeal, the NRA must demonstrate that the district court abused its discretion in denying the injunction, and also overcome Herrera’s counter-challenge to the NRA’s legal standing to even appeal San Francisco’s ammunition sales restrictions.

“Having lost the battle for public opinion, the NRA is clearly focused on using courts to further an extremist agenda to eradicate even common-sense gun restrictions,” said Herrera. “I have complete faith in the judiciary to affirm our position that San Francisco’s gun safety laws protect the public in a manner that’s both reasonable and constitutional. San Francisco has been a top target of the NRA for many years, and I’m proud of the efforts we’ve made to aggressively battle these legal challenges, and protect sensible gun laws that can save lives.”

Herrera’s brief argues that neither San Francisco’s safe storage ordinance nor its ammunition sales ordinance unduly burdens the plaintiffs’ Second Amendment Rights. Urging the Ninth Circuit panel to apply the same standard of intermediate scrutiny adopted in an overwhelming majority of circuit court cases, Herrera argues that the balanced approach protects individual self-defense rights while also allowing for “regulation in an area where failing to control abuses can sometimes result in unspeakable tragedy.”

Herrera’s office has been among the public law offices most extensively involved in federal legal battles over the scope of the Second Amendment, which evolved significantly with two recent decisions by the U.S. Supreme Court. The high court’s 2008 ruling in District of Columbia v. Heller held that the U.S. Constitution protects an individual’s right to possess firearms, and its subsequent holding in 2010’s McDonald v. Chicago established that individual right as being applicable to states and local governments. The two decisions opened the door to aggressive efforts by the NRA and other gun rights advocates to push the limits of the Second Amendment even further, potentially undermining the viability of state and local gun safety laws nationwide. Public law offices like Herrera’s have been at the forefront of efforts by major cities to preserve reasonable public safety regulations of firearms.

One of the San Francisco Police Code provisions under challenge in the litigation is the “Safe Storage Law” (S.F. Police Code, Sec. 4512), which generally requires City residents with handguns in the home to apply trigger locks or to store their handguns in locked containers when not carried on their persons. Other challenged provisions (S.F. Police Code, Secs. 613.9.5 and 613.10(g)) prohibit the sale of “Enhanced-Lethality Ammunition,” barring local gun shops from selling ammunition that serves “no sporting purpose,” like fragmenting bullets and expanding bullets, which are specially enhanced to increase the harm inflicted on human targets.

The case is: Espanola Jackson v. City and County of San Francisco, U.S. Court of Appeals for the Ninth Circuit No. 12-17803.

Related Documents:

PDF icon NRA-Jackson case preliminary injunction 9th Circuit response brief presskit (March 7, 2013)

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