NATIONAL SHOOTING SPORTS FOUNDATION v. STATE OF CALIFORNIAAmicus Curiae Brief of Office of the Los Angeles City AttorneyCal.November 28, 2017COPY ree" Case No. S239397 | NOV 28 2017 IN THE SUPREME COURT OF THE —-°9® Navarrete Clerk STATE OF CALIFORNIA Deputy ~ NATIONAL SHOOTING SPORTS FOUNDATION,INC., AND SPORTING ARMS AMMUNITION MANUFACTURERS’ INSTITUTE, INC., Plaintiffs and Appellants, V. STATE OF CALIFORNIA, Defendant and Respondent. On Review from the Court Of Appeal for the Fifth Appellate District, Division One, Sth Civil No. F072310 After an Appeal from the Superior Court of Fresno County Honorable Donald S. Black, Judge, Case Number 14CEGC00068 . APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF THE OFFICE OF THE LOS ANGELES CITY ATTORNEY IN SUPPORT OF RESPONDENT STATE OF CALIFORNIA BOIES SCHILLER FLEXNER LLP *Michael R.Leslie, State Bar No. 126820 mleslie@bsfllp.com Andrew Esbenshade, State Bar No. 202301 aesbenshade@bsfllp.com 725 South Figueroa Street, 31st Floor Los Angeles, California 90017-5524 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 Attorneys for the Office of the Los Angeles City Attorney Case No. 8239397 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA NATIONAL SHOOTING SPORTS FOUNDATION,INC., AND SPORTING ARMS AMMUNITION MANUFACTURERS’ INSTITUTE, INC., Plaintiffs and Appellants, V. STATE OF CALIFORNIA, Defendant and Respondent. On Review from the Court OfAppeal for the Fifth Appellate District, Division One, 5th Civil No. F072310 After an Appeal from the Superior Court of Fresno County Honorable Donald S. Black, Judge, Case Number 14CEGC00068 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF THE OFFICE OF THE LOS ANGELES CITY ATTORNEYIN SUPPORT OF RESPONDENT STATE OF CALIFORNIA BOIES SCHILLER FLEXNER LLP *Michael R. Leslie, State Bar No. 126820 mleslie@bsfllp.com Andrew Esbenshade, State Bar No. 202301 aesbenshade@bsfllp.com 725 South FigueroaStreet, 31st Floor Los Angeles, California 90017-5524 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 Attorneys for the Office of the Los Angeles City Attorney The Office of the Los Angeles City Attorney, through its attorneys and pursuant to California Rule of Court, rule 8.520(f), respectfully applies for leave to file the following amicuscuriae brief in support of the Respondent State of California. INTEREST OF AMICUS CURIAE Amicus Curiae Office of the Los Angeles City Attorney (“City Attorney”) has a direct and immediate interest in defending the microstamping requirementset forth in Penal Code section 31910(b)(7)(A). The animating purpose of the statute—solving and deterring gun-related crimes—speaksto the City Attorney’s mandate to enforce the law and to prosecute crimesin the city of Los Angeles. Because a substantial amount of gun violence occurs in Los Angeles, enforcement of the law directly affects the City Attorney’s interests in ensuring the safety of Los Angeles residents and improving law enforcement’s ability to solve gun-related crimes. Specifically, the City Attorney’s Gun Violence Prevention Unit (“GVPU”) is responsible for prosecuting the unlawful possession, use, and criminal storage of firearms. In addition, the GVPU prosecutes transactional violations such asillegal transfers of firearms and attempted firearm purchase by prohibited persons. The recovery of microstamped casings would enable law enforcementto identify the original firearm purchaser, and greatly increase the likelihood of solving and bringing charges for those crimes prosecuted by the GVPU. Were Appellants to succeed in overturning the statute, local law enforcement would be denied a valuable crime-fighting tool developed by the California Legislature after due consideration, and the City Attorney’s efforts at preventing gun violence would be impeded. STATEMENTIN COMPLIANCE WITH CALIFORNIA RULE OF COURT,RULE8.520(f)(4) Amicuscuriae states that (a) no party’s counsel authoredthis brief in wholeorin part; (b) no party, nor counsel for either party, contributed moneythat was intended to fund preparing or submitting this brief; and (c) no person other than amicuscuriae, its members, or its counsel contributed money that was intended to fund preparing or submitting this brief. DATED: November 13, 2017 BOIES SCHILLER FLEXNER LLP MICHAEL R. LESLIE ANDREW ESBENSHADE ByYLLADKL MICHAELR. LESLIE Attorneys for the Office of the Los Angeles City Attorney Case No. 8239397 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA NATIONAL SHOOTING SPORTS FOUNDATION,INC., AND SPORTING ARMS AMMUNITION MANUFACTURERS’ INSTITUTE, INC., Plaintiffs and Appellants, V. STATE OF CALIFORNIA, Defendant and Respondent. On Review from the Court of Appeal for the Fifth Appellate District, Division One, 5th Civil No. F072310 After an Appeal from the Superior Court of Fresno County Honorable Donald S. Black, Judge, Case Number 14CEGC00068 [PROPOSED] BRIEF OF AMICUS CURIAE OFFICE OF THE LOS ANGELES CITY ATTORNEY IN SUPPORT OF RESPONDENT STATE OF CALIFORNIA BOIES SCHILLER FLEXNER LLP *Michael R.Leslie, State Bar No. 126820 mleslie@bsfllp.com Andrew Esbenshade, State Bar No. 202301 aesbenshade@bsfllp.com 725 South Figueroa Street, 31st Floor Los Angeles, California 90017-5524 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 Attorneys for the Office of the Los Angeles City Attorney TABLE OF CONTENTS Page SUMMARYOF ARGUMENT...... cc eccccccssssesssssessesssecssseseeseesecenseessesesessseeees 8 ARGUMENT 0... eeeececscsseeseseseeesesecsseesseessssessenseseesesssseaeeceasenssensessensenseetes 11 I. The UHA’s Microstamping Requirement Furthers an Important Public Interest in Solving Gun Crimes and Deterring Gun Violence ...0......cccecccesesssseesessessseesessceesseesessnscsesseseeess 11 II. The Legislature May Enact Technology-Forcing Legislation to Protect Public Safety...eecssssssessesssscessesseseesseesseesseessesessens 14 CONCLUSIONoo.ceeeeesecsstessceseesseececssenseseeseseeseceteesssesescssesseeseesseseuseeenens 18 CERTIFICATE OF COMPLIANCE........cccccssssessssssessesseessecsseessesseseesscesens 19 TABLE OF AUTHORITIES Page(s) Cases American Coatings Association, Inc.v. South Coast Air Quality District (2012) 54 Cal.4th 446ooeecssseeceeesecteceeseecseesatecesesssessesensenes 17, 18 Bates v. Dow Agrosciences LLC (2005) 544 US. 431 Leccceeseceseeeneeeeecsnsereseeesaeeteeeeseresseseeeeesseteesees 15 Chrysler Corp. v. Dept. ofTransportation (6th Cir. 1972) 472 F.2d 659 ooescceceesseneesseeerersesceseeesseseeeeseeeseesees 17 Consolidated Rock Products Co. v. City ofL.A. (1962) 57 Cal.2d 515oeeccesessecsscesessesessessesscesesseesscessesseeseessees 14, 15 Francis v. Stanislaus County (1967) 249 CalApp.2d 862eeececeescesneesessseceseseseceeeessesseesseesneessaes 15 Hernandez v. Dept. ofMotor Vehicles (1981) 30 Cal.3d 70ececescecsseceteeesssressesererseseaeeesseseseeaeeeseeneerenes 14 Minnesota v. Clover LeafCreamery Co. (1981) 449 U.S. 456 ooeeeeeeseeectecsetssensesesesseteeersanerseeeeeenstseeeeaees 15 Motor Veh. Manufacturers Assn. of U.S., Inc. v. State Farm Mutual Automobile Ins. Co. (1983) 463 U.S. 29eeecseceneeeeesseeeeseeasceccesesseeeseeseeessenseesseeesees 16 New State Ice Co. v. Liebmann (1932) 285 U.S. 262 ooeeccccccccccsssssnssssecesscesseecesesseeeceeceseeseeeeestteesssenes 16 Penav. Lindley (E.D. Cal., Feb. 26, 2015, No.2:09-CV-01185-KJM-CKD) 2015 WL 854684 oooeeeeeceeseeeeserseneseeseseecsceaeecssecsneeesneecsessesetneeseeats 9 State Farm Mutual Automobile Ins. Co. v. Dole (D.C. Cir. 1986) 802 F.2d 474...cccescccscsssesseseceescesseeeeeessseeecseesnecsnes 17 Union Electric Co. v. E.P.A. (1976) 427 U.S. 246 oo. ceceeccccssssssesssssceeeecessssseeessntecesesseescessucenseeeseeecees 16 Whitman v. Am. Trucking Assns. (2001) 531 U.S. 457oecseecneeeseeceeeesesccesesescensessssasssseseecssenseeeee 16 Statutes Cal. Pen. Code, § 31910...cccceccccssseceesssceseerssneesessenaeeseneessasseceessseeeeaees 13 Cal. Pen. Code, § 3191 0(D)(7)(A) on. cece eececesersscneessceseeesseseeneeesssneesnasaes 8,11 Other Authorities Assem. Com. on Pub.Safety, Analysis of Assem. Bill No. 1471 (2007-2008 Reg. Sess.) as amended Apr. 10, 2007 «0...eeeeeeeteeee 12 Sen. Com.on Pub. Safety, Analysis of Assem. Bill No. 1471 (2007-2008 Reg.Sess.) as amended Apr. 10, 2007.0...eee 12, 13 Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analyses of Assem. Bill No. 1471 (2007-2008 Reg. Sess.) July 18, 2007.00...eee eseceeeneneeeeeteeeeceseeeeeeen 13 Goode, “Method to Track Firearm Useis Stalled by Foes,” New York Times (June 12, 2012)eeeeeeseesscceeessseecevesensesssvsnseeseeevensees 13 SUMMARY OF ARGUMENT Courts should not be in the business of second-guessing the prudenceoflegislation duly enacted by the California Legislature to address serious societal problems. Yet that is exactly what Appellants National Shooting Sports Foundation, Inc. and Sporting Arms Ammunition Manufacturers’ Institute, Inc. (collectively, “NSSF”) seek with respect to the microstamping provision of California’s Unsafe Handgun Act (“UHA”).! NSSFasksthis Court to affirm the Court of Appeal’s decision, which would grant NSSFa prospective evidentiary hearing on the question ofwhetherit is possible to comply with this provision, even though the record showsthat no gun manufacturer has yet attempted to comply with the statute. Moreover, it would permit the State to be enjoined from enforcing the law in any mannerif a fact-finder decides compliance is not currently possible. To do so would unduly restrict the Legislature in its proper function, and transform the courtsinto the arena for policy challenges from every party unsuccessfulin the legislative process. Such an outcome would violate the separation ofpowers and subvert the role of both the legislative and judicial systems. As amicus curiae supporting a reversal of the Court ofAppeal’s decision, the Office of the Los Angeles City Attorney submitsthis brief for two reasons. First, by elaborating on the nexus between the UHA’s microstamping provision and the important public interest of solving and deterring gun crimes, amicus refutes NSSF’s misguided supposition that enforcementofthe statute is somehow inequitable. RespondentState of ' As of October 2007, the California Legislature defined “unsafe handguns” to include all new handgunsthat are not designed or equipped with microstamping—“a microscopic array of characters that identify the make, model, and serial numberofthe pistol”—in two or moreplaces. (Cal. Pen. Code, § 31910(b)(7)(A).) California has explained that, as a threshold matter, NSSF improperly relies upon an equitable maxim ofjurisprudenceto frustrate the intent of the UHA.In addition, NSSFdisregards the inequity that wouldresult if a single judge could frustrate the desire of Californians for innovative solutions to public health and safety problems through the facial invalidation of a law even before compliance or enforcementhas been attempted. Second, amicusreaffirms that it is the Legislature’s prerogative to enact laws that encourage such innovation, as long as those laws are within constitutional constraints. Notwithstanding NSSF’s new focus on a purported “palpably arbitrary” standard before this Court, NSSF has expressly disavowed any constitutional due process claim, or any other constitutional claim, and seeks to enjoin enforcementofthis legislation on »2 As the Statethe sole ground that complianceis, they claim, “impossible. has explained—andasthetrial court correctly concluded in granting the State’s motion for judgment on the pleadings—the separation of powers doctrine precludes courts from acting as super-legislatures invalidating duly enacted laws based solely on a party’s self-professed inability to comply.’ * Appellants confirm that they are not raising a Second Amendmentor due process challenge in this case. (AnswerBrief on the Merits at 19, fn. 8 and 63, fn. 23.) There is a pending action in federal court challenging the microstamping provision of the UHA on groundsthat it violates the Second Amendment. Thedistrict court in that case, however, squarely—and correctly—tejected this claim. (See Penav. Lindley (E.D.Cal., Feb. 26, 2015, No. 2:09-CV-01185-KJM-CKD) 2015 WL 854684.) The matter is currently pending before the Ninth Circuit Court of Appeals, Penav. Lindley, Case No. 15-15449. > The judicial impracticability ofNSSF’s “impossibility” theory reveals the separation of powers problem. It cannot be the case that any person who disagrees with legislation as a matter of policy may compela court to adjudicate the feasibility of compliance as a categorical matter. The courts The separation of powers doctrine presents an insurmountable legal hurdle to NSSF’s claim, which seeks to enjoin enforcementof a statute that NSSF concedes was motivated by the goal of reducing crime. (AnswerBrief on the Merits (“AnswerBrief’) at 29.) NSSF acknowledgesthis goal is not only wise, but one which they support. (/bid.) Nonetheless, NSSF’s argument would vastly diminish the Legislature’s vital ability to enact technology-forcing legislation to address such pressing societal problems. The stakes of this Court’s decision are high. Acceptance of NSSF’s misguided position would have dangerousreal-world consequencesfor all Californians. It would deny law enforcement an invaluable tool for apprehending criminals and reducing gun violence. Further, it would put courts in the position of adjudicating the feasibility of legislation before the public has an opportunity to attempt compliance. Not only does this pose a separation of powers problem,as the State has explained,butthis infringementof legislative power would underminea critical catalyst for new technologies that serve the public interest. Thus, for the reasons set forth below,as well as in the State’s briefs, this Court should reject NSSF’s flawed legal arguments, and reverse the decision of the Court of Appeal. are not the proper forum for this sort of nonconstitutional facial challenge. While impossibility may serve as a shield—providing a defense for a specific entity or individual charged with violating a law with whichitis unable to comply—it may not be used as a swordto attack enforcement of the law underall circumstances. 10 ARGUMENT 1 The UHA’s Microstamping Requirement Furthers an Important Public Interest in Solving Gun Crimes and Deterring Gun Violence Appellants allege no violation of their or their members’ constitutional rights, nor any infirmity in the microstamping law’s passage as would be required to properly bring a facial challenge. Rather, NSSF’s entire argumentto enjoin enforcementofthe microstamping law is based on a codified equitable maxim. Butas the State has explained in detail, this equitable maxim is not a viable basis for enjoining enforcement of duly enacted legislation. The separation ofpowers doctrine precludes NSSF’s nonconstitutional facial “impossibility” challenge to the microstamping law, and prohibits courts from reevaluating the Legislature’s assessment of how to addresssocietal problems. Nevertheless, if the legislative history were to be examined,it amply demonstrates that there was good reason for enacting the microstamping provision. In addressing NSSF’s challenge and how it would impair the Legislature’s properrole, it is crucial to understand the strong public policy interests which gaverise to Penal Code section 31910(b)(7)(A) and the equities at stake beyond NSSF’s interests. NSSF’s equity-based argument should be considered from the standpoint of all citizens of California—not merely firearms manufacturers and gun enthusiasts. The California Legislature’s express purpose in enacting Assembly Bill No. 1471 (2007-2008 Reg. Session) wasto resolve the endemic problem of unsolved gun crimes.’ Asstated in the legislative record: * Upon enactment, this bill became Penal Code section 3 1910(b)(7)(A). 11 California has an enormousand diverse problem of unsolved homicides committed with handguns. Noarrest is made in approximately 45% ofall homicides in California because police lack the evidence they need. Of the approximately 2400 homicides in California per year over 60% are committed with handguns (2004 DOJ data). Approximately 70% of new handgunssold in California are semiautomatics. (Sen. Com.on Pub.Safety, Analysis of Assem. Bill No. 1471 (2007—2008 Reg. Sess.) as amended Apr. 10, 2007, p. HY In manycases, the only evidenceleft at a crime sceneis a spent cartridge casing. This often results in a dead end. However,ifa microstampedcartridge were recovered at the scene of a crime, law enforcement would be ableto identify a specific firearm as the source of the cartridge without needing to recoverthat firearm. Further, microstamping enhances law enforcement’s ability to link a firearm to multiple crimes, and determine patterns and potentially common perpetrators. Microstamping technology thus provides an important piece of trace evidence for forensic investigators by allowing them to track a firearm without having to recover it. As the microstampingbill’s author putit: This bill is about catching criminals. This bill will allow law enforcementto positively link used cartridge casings recovered at crime scenesto the crime gun. This bill will: (a) help law enforcement solve handguncrimes; (b) help reduce gang violence; and, (c) help reduce guntrafficking of new semi-automatic handguns. (Assem. Com. on Pub. Safety, Analysis ofAssem. Bill No. 1471 (2007- 2008 Reg. Sess.) as amended Apr. 10, 2007,p. 2.)° > Available at ftp://leginfo.ca.gov/pub/07-08/bill/asm/ab_1451- 1500/ab_1471cfa_20070625130933sen_comm.html. ® Available at http://leginfo.ca.gov/pub/07-08/bill/asm/ab_1451- 1500/ab_1471_cfa_20070423101911_asm_comm.html. 12 Not surprisingly, AB 1471 received broad support from the law enforcement community. Indeed,the bill passed with support of more than sixty California police chiefs and sheriffs and five law enforcement organizations.’ (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analyses of Assem.Bill No. 1471 (2007—2008 Reg. Sess.) July 18, 2007, pp. 3-6.)® For example, the Stockton Police Departmentstated on the record: The Stockton Police Department believes that AB 1471 would allow law enforcementto positively link used cartridge casings recoveredat crime scenesto the crime gun. Further, AB 1471 would help law enforcement solve handgun crimes, reduce gang violence, and reduce guntrafficking ofnew semiautomatic handguns. (Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 1471 (2007—2008 Reg. Sess.) as amended Apr. 10, 2007, p. S.) NSSFagrees that crime reduction was the motivation for the enactment of Penal Code section 31910, and agreesthat this is a wise and proper goal for the Legislature’s enactment of laws. (AnswerBriefat 29.) Despite basing their entire claim on an equitable maxim, NSSF ignores these broader equities. Their glib dismissal of the important public interests served by the statute reflects a dangerously myopic view. 7 Such support was not unique to California law enforcement; microstamping received broad support from police officers across the country. For instance, as former Baltimore Police Commissioner Frederick Bealefeld III put it: microstamping “is one of these things in law enforcementthat would just take us from the Stone Ageto the jet age in an instant... . I just can’t comprehendthe oppositionto it.” (Goode, “Method to Track Firearm Useis Stalled by Foes,” New York Times (June 12, 2012), http://nyti.ms/1FyxNbq.) ® Available at http://leginfo.legislature.ca.gov/faces/billAnalysisClient. xhtml?bill_id=200720080AB 1471. 13 Moreover, NSSFfails to provide the Court with any indication ofhow or why it would be equitable to thwart the will of the people of California through their elected representatives in order to allow NSSFto continue to flood the state with handguns the Legislature has reasonably determined to be unsafe. II. The Legislature May Enact Technology-Forcing Legislation to Protect Public Safety Notonly does the separation of powers doctrine preclude courts from invalidating a validly passed statute based solely on a purported conflict with a maxim ofjurisprudence, the enactment of technology- forcing legislation to advance public safety goals is squarely within the Legislature’s police power. This Court has recognized that the Legislature may exerciseits police power to encourage experimentation for the benefit ofpublic safety. (See Hernandez v. Dept. ofMotor Vehicles (1981) 30 Cal.3d 70, 82 [acknowledging the “long established”principle that the Legislature has “broad scope to experiment”in regulating with respect to safety hazards related to driving].) The role of the Legislature in encouraging innovation is consistent with this Court’s long-held understanding of the police power as “elastic,” intended to be “capable of expansion to meet existing conditions of modern life” so that it can “thereby keep pace with the social, economic, moral, and intellectual evolution of the human race.” (Consolidated Rock Products Co. v. City ofL.A. (1962) 57 Cal.2d 515, 522.) Thus,in the context of a constitutional challenge, it is a “well settled rule” that determination of the necessity and form of regulations enacted pursuantto the police power“is primarily a legislative and nota judicial function, and is to be tested in the courts not by what the judges individually or collectively may think of the wisdom or necessity of a 14 particular regulation, but solely by the answerto the question is there any reasonablebasis in fact to support the legislative determination ofthe regulation’s wisdom and necessity?” ([bid.) A fortiori, where a party does not bring a constitutional challenge, but relies merely on a maxim of jurisprudence to challenge the Legislature’s exercise ofits police power, as here, it is outside the ambit of the judicial function to question the Legislature’s carefully considered policy decision. NSSF’s impossibility argument rests on an unstated assumption that the microstamping law is impermissible becauseit effectively precludes the manufacture and sale of new models of semiautomatic firearms. But, “{wl]ith respect to some businesses which deal in products or activities essential to the public welfare, the legislative branch of government may control anything whichrelates to, or affects, the health of the community generally[.]” (Francis v. Stanislaus County (1967) 249 Cal.App.2d 862, 873-74.) Further, the Legislature has the authority to prohibit sales of certain products outright, subject to constitutional limitations. (See, e.g., Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 446 [“Under[the Federal Insecticide, Fungicide, and Rodenticide Act], a state agency may ban thesale of a pesticide if it finds, for instance, that one of the pesticide’s label-approveduses is unsafe.”]; Minnesota v. Clover LeafCreamery Co. (1981) 449 U.S. 456 [upholding a state ban on the sale of milk in plastic containers].) Thus, the Legislature maycertainly take the less restrictive approach of conditioning the sale of a product on compliance with a duly considered safeguard. Even accepting firearms manufacturers’ claimsthat they could not have complied with the microstamping law todayifthey had tried to put in place the proper technology, which they havenot, the law is not invalid merely because those manufacturers may be limited in selling new semiautomatic firearms. Thoughthe statute touches upon firearm restrictions, NSSF has not brought a Second Amendment challenge. This 15 statute is thus no different from any other seeking to promote public safety through industry regulation and is not subject to challenge as long as such action was notarbitrary so as to violate due process. The Court should be particularly wary of infringing on the Legislature’s prerogative when the Legislature has enacted technology- forcing legislation. “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequencesto the nation.” (New State Ice Co. v. Liebmann (1932) 285 U.S. 262, 311 [Brandeis, J. dissenting].) Indeed, the U.S. Supreme Court has recognized that a legislature may establish requirementsthat “are of a technology-forcing character, and are expressly designed to force” private entities to innovate in a way “that mightat the time appear to be economically or technologically infeasible.” (Union Electric Co. v. E.P.A. (1976) 427 U.S. 246, 257 [citation and internal quotation marks omitted].) The Union Electric Court cited approvingly to then-Senator Edmund Muskie’s floor statementthat a legislature’s “responsibility is to establish what the public interest requires to protect the health of persons. This may mean that people and industries will be asked to do what seemsto be impossible at the present time.” (/d. at pp. 258-59.) Moreover,“[t]echnology-forcing hopes can proverealistic.” (Whitman v. Am. Trucking Assns. (2001) 531 U.S. 457, 492 [Breyer, J. concurring].) Contrary to NSSF’s argument, see AnswerBrief at 34 & n.12, there is no authority or basis to limit the Legislature’s authority to enact technology-forcing legislation to the “pollution control industry.” (See Motor Veh. Manufacturers Assn. of U.S., Inc. v. State Farm Mutual Automobile Ins. Co. (1983) 463 U.S. 29, 49 [“{T]he Motor Vehicle Safety Act was necessary becausethe industry was not sufficiently responsive to safety concerns. The Act intended that safety standards did not depend on 16 current technology and could be ‘technology-forcing’ in the sense of inducing the developmentof superior safety design. .... [U]nder the statute, the agency should not deferto the industry’s failure to develop safer cars[.]”]; see also State Farm Mutual Automobile Ins. Co. v. Dole (D.C. Cir. 1986) 802 F.2d 474, 495; Chrysler Corp. v. Dept. ofTransportation (6th Cir. 1972) 472 F.2d 659, 671-72 [“The explicit purpose of the [Automobile Safety Act of 1966 (‘the Act’)], as amplified in its legislative history, is to enable the Federal government to impel automobile manufacturers to develop and apply new technology to the task of improving the safety design of automobiles as readily as possible... . Asit stands, the Act is reasonable, and the power of the Agency to channel the creative energies and vast technologyofthe automobile industry into a vigorous and competitive effort to improve the safety of vehicles fully meets the need for motor vehicle safety.” (internal quotation marks omitted; emphasis added)].) In fact, in American Coatings Association, Inc. v. South Coast Air Quality District (2012) 54 Cal.4th 446, this Court upheld a regulatory standard that was “designed to compel the development of new technologies to meet public health goals.” (/d. at p. 465.) The microstamping requirementreflects the Legislature’s effort to meet a public health goal—the reduction of gun violence—every bit as urgent as the pollution emissionsat issue in American Coatings. Nothing in American Coatings suggests that the Legislature may only seek to improve public health as it relates to pollution control; such a rule would defy logic, would violate the separation ofpowers doctrine, and would contravenethe U.S. Supreme Court’s clear statement ofthe law. Moreover,the rationale for technology-forcing environmental legislation applies equally in the context of gun-related crimes. In the environmental context, “the principle oftechnology-forcing is based on the premise that becausepollution is a negative externality, industry generally 17 has insufficient incentive to develop or adopt new pollution control technology in the absenceofregulation.” (Am. Coatings, supra, 54 Cal.4th at p. 466.) Likewise, the criminal use of gunsis a negative externality of the lawful manufacture andsale of firearms. “[I]n the absence of regulation[,]” gun manufacturers generally have an “insufficient incentive to develop or adopt new”technology that reduces gun crimes and gun violence. ([bid.) Thus, the Legislature properly enacted technology-forcing legislation to achieve public health and safety goals. NSSF maynotrely on a maxim ofjurisprudence to seek the judicial invalidation of a carefully considered statute that was designed to encourage innovation for the public welfare. CONCLUSION For the foregoing reasons, amicus supports the position of Respondent State of California. This Court should reject NSSF’s flawed reasoning and reverse the judgment of the Court ofAppeal. DATED: November 13,2017 Respectfully submitted, BOIES SCHILLER FLEXNER LLP MICHAEL R. LESLIE ANDREW ESBENSHADE By WALAiZZ, MICHAELR. LESLIE Attorneysfor the Office of the Los Angeles City Attorney 18 CERTIFICATE OF COMPLIANCE Pursuantto California Rule of Court 8.204(c)(1) Pursuant to California Rule of Court 8.204(c)(1), I certify that the text of this brief consists of 3,421 words, excluding the required tables and this certificate. In so certifying, I am relying on the word countof Microsoft Word, the computer program usedto prepare thisbrief. DATED: November13,2017 BOTES SCHILLER FLEXNER LLP MICHAELR. LESLIE ANDREW ESBENSHADE By Lpo0.ViZa0-2 “MICHAELR. LESLIE Attormeysfor the Office of the Los Angeles City Attorney 19 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time ofservice, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 725 South Figueroa Street, 31st Floor, Los Angeles, CA 90017-5524. On November13, 2017, I served true copies of the following document(s) described as APPLICATION FOR LEAVETO FILE AMICUS CURIAEBRIEF OF THE OFFICE OF THE LOS ANGELES CITY ATTORNEYIN SUPPORT OF RESPONDENT STATE OF CALIFORNIAontheinterested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL:I enclosed the document(s) in a sealed envelope or package addressedto the personsat the addresseslisted in the Service List and placed the envelopefor collection and mailing, following our ordinary business practices. I am readily familiar with Boies Schiller Flexner LLP's practice for collecting and processing correspondence for mailing. On the same day that the correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on November 13, 2017, at Los Angeles, California. Clonal Margie Odedaka SERVICE LIST National Shooting Sports Foundation, Inc. v. State ofCalifornia Case No. 8239397 Daniel C. DeCarlo Attorneys for Plaintiffs and Lance A., Selfridge Appellants NATIONAL LEWIS BRISBOIS BISGAARD & SHOOTING SPORTS SMITH LLP FOUNDATION,INC.and 633 West 5"Street, Suite 4000 SPORTING ARMS AND Los Angeles, CA 90071 AMMUNITION Tel.: (213) 250-1800 MANUFACTURERS’ Fax: (213) 250-7900 INSTITUTE, INC. Dan.DeCarlo@lewisbrisbois.com Lance.Selfrige@lewisbrisbois.com Lawrence G. Keane National Shooting Sports Foundation, Inc. 11 Mile Hill Road Newton, CT 06470-2359 Tel.: (203) 426-1320 Fax: (203) 426-7182 Ikeane@nssf.org Xavier Becerra Attorneys for Respondent Attorney General of California STATE OF CALIFORNIA Edward C. DuMont Solicitor General Janill L. Richards Principal Deputy Solicitor General ThomasS. Patterson Senior Assistant Attorney General Mark R. Beckington Supervising Deputy Attorney General Nelson R. Richards . Deputy Attorney General Samuel P. Siegel Associate Deputy Solicitor General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Tel.: (415) 703-2551 Sam.Siegel@doj.ca.gov Fifth Appellate District Court of Appeal of the State of California 2424 Ventura Street Fresno, CA 93721-3004 Superior Court of the State of California County of Fresno The Honorable Donald S. Black B.F. Sisk Courthouse 1130 “O”Street Fresno, CA 93721-2220
