Witt Claims a City Ban on Assault Rifles Might Be Ruled Unlawful, Lead to Suits

San Diego City Atty. John W. Witt warned Monday that enactment of a local ordinance banning the sale and possession of semiautomatic weapons “very likely” would be invalidated by a court challenge, leaving the city vulnerable to claims for damages and attorneys’ fees.

Witt, differing with the legal opinion that supported passage of a similar ordinance in Los Angeles last week, reported that regulation of semiautomatic weapons is an area of law left to the state Legislature--despite the fact that no specific state laws exist. Witt said that legal doctrine is known as “preemption by legislative implication.”

“Firearms control is solely within the province of the state Legislature, and a city ordinance would not be effective, and would, in fact, be ruled unlawful under the state of California Constitution,” Witt said.

Call for Official Ban

Three San Diego City Council members last week called for passage of a local ordinance banning the sale and possession of semiautomatic weapons such as the AK-47 rifle used last month in the slaying of five elementary schoolchildren in Stockton.

Council members Wes Pratt, Judy McCarty and Gloria McColl cited the city’s rapidly escalating homicide rate and gang violence, as well as their desire to send a strong message to state legislators about the need for regulating the weapons.

Their proposal will be considered by two council committees Wednesday, but telephone calls to council offices are running heavily against the idea. National Rifle Assn. representatives expressed their opposition in a meeting Monday with McCarty.

The Assembly began hearings on the issue Monday. Three cities--Los Angeles, Compton and Stockton--have approved ordinances regulating the weapons in the wake of the Stockton slayings.

In his memo, Witt said the Legislature, by enacting detailed law on which weapons may be possessed, has covered the field of law completely enough that “it is very likely” that a challenge would be successful.

Should the San Diego City Council pass a law specifically banning the weapons, a legal challenge would “very likely” succeed on the grounds that the state had “expressly” reserved that area of law to itself, the memo said.

Witt also said in an interview that California Atty. Gen. John Van de Kamp has publicly stated that regulation of the weapons is a matter properly left to the state.

City May Pay Court Costs

Stressing his personal desire to control the weapons and send a strong message to state legislators, Witt nevertheless noted that, if the city lost a court case it could be forced to pay punitive damages and attorneys’ fees. He noted that the council has officially gone on record in support of two pieces of state legislation that would regulate sales of the weapons.

Witt’s memo appeared to directly contradict an opinion issued by Los Angeles Deputy City Atty. Henry G. Morris before passage of a Los Angeles ordinance last week.

“While the matter is not free from doubt, since no provision of state law expressly prohibits localities from so regulating, we believe that a reasonable argument can be made in support of local authority to regulate possession of assault weapons,” Morris wrote in a letter to the Los Angeles City Council.

“In our view, the sale of a firearm would be an aspect of control of possession, since the prevention of the sale of a weapon would preclude access to possession thereof.”

Asked about the differing opinions, Witt said the Los Angeles council had “bowed to political pressure.”

Richard Gardiner, assistant general counsel for the National Rifle Assn., agreed with Witt’s interpretation of the law. “It sounds like the city attorney has done a good job,” he said. “We don’t have to tell (the council members) anything.”

Gardiner said the NRA will be supporting litigation testing the Los Angeles ban on possession of semi-automatic weapons. A lawsuit was filed Monday.

In an interview, McCarty said the city should enact a law despite Witt’s opinion.

“I believe that we have an emergency in this town,” she said. “We have Elliott Nesses and Al Capones running around this town having a good time, and a lot of little kids are getting hurt.”

However, two council members, Bruce Henderson and Ed Struiksma, said Monday that they would oppose enactment of a local ordinance in the belief that state or federal laws are the only way to provide uniform control of the weapons.