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					    01/15/2013 09: 11 FAX 562 216 4445                    MICHEL&ASSOC.                                         ~001


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                                         Mlálr n~h\TEìE'
                                          Att~  e Y $ a. iii Law

     Writer's Diet ConUlct:
     (562) i16-
     CMcbel@ellen.com


                                               FAX TRANSMITTAL SHEET.

I
      TO:                 BOARD OF SUPERVISORS

      FIR:                COUNTY OF SANTA CRUZ

      FAXND.:                 (831) 454-3262

      TEL.    NO.             (831) 454-2200

      FROM:               C. D. Michel

      DATE:               Januar 15,2013


      RE: Qmiusition to Proposed Interim Ordnance - Moratorium Forbidding Fireas Vendors in
                          Santa Cru County
     THIS FAX CONTAINS COVER PAGE PLUS -- PAGES. IF YOU DO NOT RECEIVE ALL PAGES PLEASE CONTACT
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                    180 E. Ocean Boulevard, Suite 200. Long Beach, CA 90802' Tel: (562) 216-44. Fax: (562) 216~4S
01/15/2013 09: 12 FAX 562 216 4445                                     MICHEL&ASSOC.                                       f4002



  SENIOR COUNSEi                                                                                                             OF"COUNSEL
  C. D. MicHel.'                                                                                                           001" e, KATE
                                                                                                                       BA~gROlJ"g i WA.
                                                                     I' "..
                                                                    "i. :'..r~'1/3\, ~ri
  5F'ECl COUI'SEL
  JO=iHUA R, DAL
  W, LEE SMITH                                                                   I."..,
                                                                    ,1"; .. r f"', ~,J''') ; ~"'                          Ru"", p. HA,NO
                                                                                                                   M"nHf.w M, HO"ECZKO

  A$OCIATE                                                           ; . &I ~~6ûu " ¡i: ,J.l C"'.                       Lo ANGi:~. CA

  ANNA M. BARV'"
  SCl A, 8"'''0''
                                                                   t t J'r Dey s a t;~ L a. .                       GLENN S. Mc!tOBERn;
                                                                                                                           SÁ¡i DIEGO, CA.
  5i:olT M. FRANKWN
  THOAA E. MACIEJEW$",I                                                                                               AFUA,- COUMS!L
  CUNT B. MONro,,"                                                                                                   JOHN F. MACKTINoi:R
  TAMARA M. Ri"~,,                                                                                                    JEFF"EY M. CO,"ON
  JOSEPH A. SU.vO:iO, II                                                                                                Los ANGEL, CA
  l.5 ÁlCEL, CA
                                                                                                                          DAvie T. H.RQT
  'ALSO !'MITrEO IN TEX                                                                                                     T\CIION, ¡q

  WIiITE:R'i; DIRECT CONTACT:
  Se2-2 I 6.4444
  CMli:..E~MICHELJWTERS .ct: M

                                                                      Janua 15, 2013

           Supervsor John Leopold
          . Supervsor Zack Friend
           Supervisor N E~al Coonerty
           Supervisor Greg Caput
           Supervisor Bruce McPherson
           COUN OF SANTA CRUZ
           BOAR OF SUPERVISORS
           701 Ocean Street, Room 500
           Santa Cru, CA 95060
           VIA FAX (831) 454-32625 EMA. & U. So MAL


                                            Re: Opposition to Proposed Interim Ordinance - MOl"toriuni
                                                  Forbidding Firearms Vendors in Santa Cruz County

           Dear Members of           the Board of Supervisors:

                  We vvte on behalf of our clients, the National Rifle Association ("NR") and the
           Calforna Rille and Pistol Association ("CRP A"), as well as th hundreds of thousands of theii:
           members in California, including members in Santa Cruz County (the "County").

                      Our clients oppose the proposed interi ordinance imposing a moratorium forbidding
           ¡'commercial operations" involvig fiears or amunItIon withn the County ("Proposed Ban").
           Ifpassed, the Proposed Ban elimnates a person's Second Amendment right to lawfly purchase
           a fiear or amunition from a commercial retaler, Bcc.ause ths infrges on numerous
           constitutional protectons-including the fudaental right to keep and bear ar-the Proposed
           Ban should be rejected. These are discussed below.

                      Befoæ addrèssing the substantive unconstitutionality of                the Proposed Ban, we note that
           the fiear shop lookig to ope in Live Oak - the alleged '¡curent and imediate theat" that
           wa the basis for makng the Proposed Ban an "urgency measure" - has no such plan anymore.
           The proposed fiearm retaer chosen to pursue his business in another city, so no urgency
           remais. The necessar predicate "to temporarly establish a 45-day moratorium"is now absent,
           and the County now ha time, if it so chooses, to craft zonig reguations based on facts and
           unured legal reasonig that comports with the Constitution. As it curently reads, the Proposed
                         i 80 EAT ')C~N BOULEARD · Suti 200 . LONG BEACH · CALIPORNIA · 90602
                                TEL.: 562-2 18.4444 · FAX: 562-2 I 6-404-45 · WWW.MICHE;L.WYERS.COM
01/15/2013 09: 12 FAX 562 216 4445                                 MICHEL&ASSOC.
                                                                                                                      @003


       Janua 15,2013
       Page 2 of5
       Re: Opposition to Proposed Interi Ordinance - Moratorium Forbidding Firea Vendors in
                  Santa Cru County

       Ban does not.

                  We wiite so that the Board of Supervisors ("Board") fully understds the legal
       ramcations of adoptig tls purorted "urgency measure." Because "(iJndividuas must not be
                           their constitutional rights on a plea of . . . necessity that has neither
       left impoveris.hed of

       substance nor suppcirt," the Proposed Ban must be strcken at the Janua 15, 20 i 3 Board
       meeting. Korematsu v. United States, 323 U.S. 214, 234 (1944) (Roberts, 1., dissenting).

       I. DISCUSSION

                  Th.e Proposed Ban provides: ÇÇno person shall establish a commercial operation engaged
       in the sale of fieans and/or amuntion" withn the County. Although toute as "temporar,"
       the Proposed Ban by its very terms                  may exist for two yeas. Coupled with the present lack of
       "permitt retail establishments that sell firear/' pa..,sage of the Proposed Ban makes it
       irpo.ssible for anyone to purchase firears or amunition frm a commercial retaler in Santa
       Cru CoUnty.


                  Like it or not, the Supreme Cour has confirmed tht the Second Amendment protects a
       fudamenta, individual right to keep and bea ar. From a civil rights perspective, the
       Proposed Ban is no analytcally different than an ordinance forbiddig bookstores in an area that
       already has none.

                  A. Forbidding Firearms Retailers in the County Unconstitutionally Infringes
                               Second Amendment Protections

                               1. Imp,ermissible Restrictions on Constitutional Rights Cannot
                                        Be Saved by Mischaracteriing Them as Zoning Practices

              The United States Supreme Cour has held that a city's "zonig power is not infinite and
       unchalengeable; it 'must be exercised withi consitutionalliints.' Accordigly, it is subject to
       judicial review; and is most often the case, the stadard of revíew is determed by the natue of
       the right assertedly thatened or violated rather than by the power being ex.ercised or the specifc
       limitation imposed." Schadv. Borough afMt. Ephraim, 452 U.S. 61,68 (citations omitt). And,
       "when a zoning law inges upon a protected liberty, it must be narowly drwn and must
       further a suficiently substatial goverent interest.'; ¡d.

                  The Supreme Cour in District afColumbia v. Hellet, 554 U.S. 570 (2008), held tht the
       right to keep and bear ar is a fudamenta right. i Several cour have concluded that such



                  1 Líkewise notale, McDonaldv. Chicago, 130 S. Ct. 3020 (2010), "incorporated"
                                                                                                                the
       Second Amendment right recognzed in Heller into the Foureenth Amendment as a fundaenta
       right, thereby restrainig local governents from ininging on an individual's right to keep and
       bear ars.
                    i eo EAST OC~N 80ULEVARO · SUITE 200 . LONG BEACH · CAL.WORNIA · 90802
                       TEL: 5152-2 I 5-40444 · FAX; 552-216-4446 · WW,MICHE:L.LAWYËRS,COM
01/15/2013 09: 12 FAX 562 216 4445                                   MICHEL&ASSOC.                                                                 14004



       Januar 15, 2013
       Page 3 ofS
       Re: Opposition to Proposed Interim Ordinance Moratorium Forbidding Firean Vendors in
                    Santa Cru County

       right implies a corresponding right to acquire fieans. See Andews v. State, 50 Tenn. 165, 178
       (1871) (a case repeatedly cited by the Supreme Cour in Heller holding that the right to keep and
       bear am "necessarily includes the right to purchase them. . . "); and Ezell v. City of                                        Ch    icago   i

       651 F.3d 684 (7th Cir. 2011).

                    As su(:h, based on Schad, the Proposed Ban must be reviewed under heightened scrutiny.
       Cours have applied strct scrtiny to otherfudameTJtal rights and have strk down zoning
       ordinances that restrict such fudamental rights. See Haskell v. Washington Twp., 635 F. Supp.
      . 550, 557 (S.D. Ohio 1986) rev'd on other grounds, 864 F.2d 1266 (6th Cir. 1988)(strikg down
       a zoning ordinance that restrcted the locations of abortion providers and explaig that "in
       fiding the stindard of review, the importt fact is that ths lawsuit concern women's aborton
       rights, not that the resolution is a zonig law.")

                    The Proposed Ban will have the same fate under any fonn of                               heightened scrutiy. Even
       under intermediate scrutiy, the governent '"bear the burden of justifyng its restrctions, (and)
       it mus afmnatively establish the                    reasonable fit" that the test requies. Ed. of                  Trs. o/State Univ.
       ofN.Y v, Fox,           492 U.S. 469, 480 (1989) (intema citation omitted). In other words, "the public
       benefits ofthie restrictions must be established by                        evidence, and not         just asserted(;) . , .        lawyers'
       talk is insufcient.'" Annex Books, Inc. v. City oflndia1'apolis, 581 F.3d 460, 463 (7th Cir. 2009).
       There is no evidence that prohibitig licensed and regiilated firear retailers from operating in
       any par of        the County is substantialy related to any particular goverental interest. At
       mi~ snch a drasic meaure is not narowly tailored to achievig any asserted interest.

                    It is true that a county may regulate zonig of                      businesses if      there ate reasons for doing so
       unelated to the content of "speech" involved, such as to protect agait seconda effects that are
       detrmenta to the quaity of  public life. See City of Renton v. Playtime Theaters, Inc. 475 U.S. 41
       (1986). However, because the fudamental right of                              acquiring lawful ar is involved, the County
       must support its reasons for doing so with facts. Id. at 50-52. Though the County need not
       conduct its ovm origial study regarding the facts, it must at least provide some factul showig
       from another county's study or other souree.Id. It wil be hard-pressed to do so.

                    Telli..gly, when considerig the adoption of a similar zonig ordinance reguatig the sale
       of firear, the City of Sunyve recently peifonned its own stdy about the secndar effects
       of firear ve:ndors, and concluded there was no evidence tht firear stores are a threat to their
       surounding areas. Sunnyvale sta noted in their study that "there ha( d) been no evidence 0/
       increased crime, property devaluation or land use incompatibilties as a result of                                        the business.,,2




                    2 See 2011-7071 Location and Operation of
                                                                                    Firear Sales Businesses (Study Issue) Staff
       Report available at
       htt://sunyvale.ca.govlPortals/O/SunyvalelNonCowici lReportpc/20 11 /pc-20 11-7071. pdf at 1
       (last viited Januar 14,2013) (emphasis added).
                       180 EAST OCEAN BOUL.EVAFlD . SUIT 200 · LONG BEACH · CALIFORNIA · 90802
                          TEL; 562-2 I 6-4444 · FAX; 562-216-4446 · WW.MICi-e:L.I.WYEI'S.COM
01/15/2013 09: 12 FAX 562 216 4445                                 MICHEL&ASSOC.                                 14005



       Janua 15,2013
       Page    4 ofS
       Re: Qpposition to Proposed Interim Ordinance - Moratorium Forbidding Fireans Vendors in
                  Santa Cru County

                  Likewíse, Siinyvale "stha(dl not identified any adverse land use impacts associated
       with a firears storc,"3 and they concluded that lifere is no correlation between gun-related
       cries and the location offireas businesses."4


                             2. Outsourcing the Right to Keep and Bear Arms by Forbiddig
                                        Firearms Retailers within the County Does Not Cure the
                                        Constitutional Infirmity

                  Under the Proposed Ban, a person seekig to lawfuly purchase a fiear or amunition
        from a commercial retailer is forbidden to do so within the County. Intead, that person is forced
       to make the purchase outside of                 the County's borders. The Proposed Ban ostensibly assumes that
       no constitutional rights are violated if firears and ammuntion may be purchased from retailers
        elsewhere. Ye:t to assume "that the ha to a constitutional violation is measured by the extent to
       which it can be exer.cised in another jursdiction. . . (is J a profoundly mistaen assumption."
       Ezell v. Cìty ,ijChkago, 651 F.3d 684,697 (7th eir. 2011). Just as Hone is not to have the
       exercise of his liberty of expression in appropriate places abndged on the plea tht it may be
       exercised      in some other place," a person's Second Amendment right shall not be infed               inside
       the     County because it may be exercised somewhere outside. Id. (quoting Schad, 452 U.S. at 76-
       77).

                  The County canot rely on the availabilty of arms in other cities and counties to justify
       its Proposed Ban on access to firearms retalers within the County. Even if           there are severa
       options to prospective firea purchasers, the Proposed Ban neverteless unawflly infrnges on
       the Second Amendment.

       II. CONCLUSION

                  The County should not adopt the proposaL.

                                                              Sinceely,
                                                              Michel & Associates, P.C.




                                                              C. D. Michel


       COMlca



                 3 ¡d. at 10.

                 4 Id. at 5.
                    l eci EAT OCEAN BOULEARD · SUITE 200 · L.ONG BEACH · CALIFORNIA · 90e02
                        ""E:L.: 562-2 I 6-4444 · FAX: 562-2 I 6-4445 · WW,MICHELLAWrERS.COM
01/15/2013 09:13 FAX 562 216 fl445                  HI CHEL&AS SOC.                                 @006



       Januar 15,2013
       Page 5 of5
       Re: Opposition to Proposed Interm Ordinance - Moratorium Forbiddig Firea Vendors in
                   Santa Cruz County


        cc: Tess E. Fnzgerld, Clerk of  the Board
               COUNTY OF SANTACRUZ
               701 Ocean Street, Room 500
               Santa Cruz, CA 95060
                VIA E,AX..8311 454-2327


                Dana McRae, County Counsel
                COUNTY OF SANTA CRUZ
                701 Ocean Street, Room 500
                Santa Cruz, CA 95060
                YIA FAX (831) 454-2115




                      i eo EAST OCEAN BOUl.EVAfiD · SUIT;; 200 . LONG BEACH · CALIF'ORNIA · 90BOZ
                           "r~L; 562-2 16-4444 · F'AX; 562-2 l e-444S · WWW.MICHE:ÙAWYER5.COM

				
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