Sunnyvale Planning Commission Wants To Impose Unconstitutional Restrictions Due To NIMBYs

Attorney Chuck Michel who works with the NRA/CRPA Legal Action Project in California posted an article this evening about the Sunnyvale, California Planning Commission. The Planning Commission is seeking to have the Sunnyvale City Council adopt a new municipal ordinance which would put increased restrictions on the sale of firearms in Sunnyvale. The Commission is responding to unfounded complaints from some neighbors of a firearms dealer that opened in Sunnyvale in 2010. The complaints include that they weren’t notified and that children walk by the store on their way to school as if just merely seeing guns will turn their kids into the next Klebold and Harris (of Columbine infamy).

NRA & CRPA OPPOSE NEW REGULATIONS RESTRICTING FIREARMS DEALERS IN SUNNYVALE, CA

On August 22, 2011, the Planning Commission for the City of Sunnyvale held a meeting to consider the City’s ongoing “Firearms Sales Study Issue.” The issue originated when a firearms dealer, U.S. Firearms, opened for business in Sunnyvale in the fall of 2010. Despite the fact that the dealer had all necessary permits and licenses from both the state and federal government, neighbors made complaints to Sunnyvale staff and elected officials.

The Sunnyvale Planning Commission ultimately decided to sponsor the issue as a result of the complaints, but the City Council ranked it number 4 of 4 for 2011. Even though this issue had the lowest ranking by the City Council for 2011, and the fact that the Staff Report on the issue (AVAILABLE HERE) indicates that “there has been no evidence of increased crime, property devaluation or land use incompatibilities as the result of the businesses,” and Sunnyvale “staff ha[d] not identified any adverse land use impacts associated with a firearms store,” the Planning Commission nonetheless recommended that the City Council adopt an ordinance to amend the City’s municipal code to place restrictions on firearm sales in Sunnyvale. Though the staff report acknowledged there had been no problems with firearm sellers, staff nonetheless inexplicably noted in the report that, “[t]he greatest concern regarding firearm sales is the business operator that is engaged in buying and selling the firearms.”

The approved ordinance would: 1) add a definition for “firearms sales business;” 2) prohibit these businesses in commercial and industrially-zoned districts within 200 feet of public schools in order to provide a buffer to the schools; and 3) require a new DPS Firearms Dealer Permit that would include additional conditions such as requiring a security plan to be installed and then inspected by the City, and that the Federal Firearm License (FFL) holder and all employees meet the state and federal requirements regarding past criminal convictions, etc. (current requirements are limited to the dealer and not the employees).

Michel & Associates attorneys submitted an opposition letter to the Planning Commission on behalf of the National Rifle Association (NRA) and California Rifle & Pistol Association (CRPA) noting that firearm dealers are subject to a variety of background checks at both the state and federal levels. The letter (AVAILABLE HERE) also noted that firearm dealers are generally some of the most upstanding members of society, and that after the Supreme Court’s McDonald decision, they enjoy a protected status as purveyors of a fundamental right. So the fact that some “residents [of Sunnyvale] have expressed [unfounded] concerns about the potential crime and public safety risk associated with a firearm sales business located near their homes and schools” does not mean that the City of Sunnyvale is free to infringe on fundamental Second Amendment rights.

The letter explains that since the Second Amendment is a newly court-recognized right, the contours of the Second Amendment’s protections are still being litigated in courtrooms across the country. The letter also amicably explains the current legal landscape regarding firearm regulation, and suggests Sunnyvale should avoid litigation on these issues by consulting with the NRA, CRPA, and their attorneys.

As the city continues moving forward with the proposed ordinance, additional correspondence will be submitted.

I have examined the 141 page staff report submitted to the  Sunnyvale Planning Commission. Much of the document was devoted to reporting on the comments at a public meeting on the issue. Approximately 120 people attended the June 2011 meeting and it appears that the overwhelming majority were against any new regulations and were indeed pro-rights. Many of the letters received also support the existing gun store, U.S. Firearms, and gun stores in general.

However, the Legal Community Against Violence (LCAV) has weighed in on the issue with a 59 page submission urging the Planning Commission to adopt new regulations. Unfortunately, this submission and not the majority of the residents of Sunnyvale seems to have carried the day. You must wonder if LCAV will also foot the legal bills for Sunnyvale when they get the pants sued off of them on Second Amendment grounds. I somehow doubt it.


6 thoughts on “Sunnyvale Planning Commission Wants To Impose Unconstitutional Restrictions Due To NIMBYs”

  1. "The approved ordinance would: 1) add a definition for "firearms sales business;" 2) prohibit these businesses in commercial and industrially-zoned districts within 200 feet of public schools in order to provide a buffer to the schools; and 3) require a new DPS Firearms Dealer Permit that would include additional conditions such as requiring a security plan to be installed and then inspected by the City, and that the Federal Firearm License (FFL) holder and all employees meet the state and federal requirements regarding past criminal convictions, etc. (current requirements are limited to the dealer and not the employees)."

    I know we're all on the same side here, but which part of this is supposedly unconstitutional. As a Second Amendment lawyer, I still think each part of it will be upheld. They're regular zoning and licensing regulations. CA doesn't have preemption does it? As long as gun stores still have plenty of other available places to be open, I think this is a loser of a case. Inspections will likely survive. Finally, requiring all gun store employees to not be prohibited is not unconstitutional.

  2. Unless the regulation zones gun stores out of the city completely, or makes it almost impossible to have one, then under Ezell it would be fine. Ezell didn't foreclose regulation of ancillary activities, just their banning.

    Depending on the wording of the preemption statute, there may be an issue here, but it wouldn't be an easy win. From what I can see, the legislature specifically preempted licensing and registration of guns and guaranteed the right to buy, own, possess at home, etc. So, once again, regulating where a gun store is allowed, as long as there are alternatives available in the city, will probably survive.

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