Is Huntington Beach’s attempt to stop a petition proposing a local gun ban premature or prudent? Legal experts weigh in

Huntington Beach’s legal action intended to stop a resident from circulating a petition to put a proposed ban on semiautomatic and automatic guns on the city’s Nov. 6 election ballot is receiving mixed reactions from legal experts.

Critics say the city is using its power to intimidate petitioner Daniel Horgan, while the city’s supporters say the gun ban would violate the Constitution’s Second Amendment, which protects the right to keep and bear arms.

City Attorney Michael Gates filed a lawsuit April 24 in Orange County Superior Court against Horgan, a local real estate agent and mortgage broker, contending the proposal is “unconstitutional, invalid and not entitled to a place on the ballot.”

Gates also contends the measure isn’t presented as legislation the city could adopt.

Legal experts said action to stop a proposal is typically taken if a petitioner collects enough signatures to qualify for the ballot, not during the signature-gathering process.

“I’ve never seen an attempt to stop an election petition,” said UC Irvine law professor Richard Hasen, who specializes in election law. “Usually … it’s a challenge brought after it’s made the ballot. If I was a judge, I’d say: ‘Why are you bothering me with this now? They haven’t even gotten the signatures.’”

According to city officials, Horgan’s Committee to Reduce Gun Violence, which has three members, needs about 12,000 signatures from Huntington Beach registered voters by June 2 for the measure to qualify for the November ballot.

Horgan, a Huntington Beach resident since 1984, said Wednesday that the petition had garnered 587 signatures.

With Horgan far from collecting enough signatures, the city is “using a very large weapon against a weak threat,” Hasen said.

Horgan said he hired Jerry Friedman, a Huntington Beach lawyer vying for Gates’ seat in this year’s election, to defend his right to petition.

“If cities are suing to shut their citizens up from circulating petitions, I’m going to be involved in that lawsuit whether I’m running for city attorney or not,” Friedman said.

Friedman and Horgan acknowledged that the proposed gun ban was “never close” to gathering enough signatures to make the ballot, and Horgan said he had given up on it shortly before the city sued.

The proposed law would make possession and sale of semiautomatic and automatic firearms in Huntington Beach a felony by April 1. Such weapons already in circulation would have to be surrendered to the Police Department by Jan. 1, though there would be a three-month probationary period to comply.

“These weapons are a clear and imminent danger to our community,” Horgan wrote in a notice of intent to circulate the petition that he filed with the city in November.

Horgan now calls his petition “a little too extreme” and said he had planned to reword it but now doesn’t anticipate taking further action.

“I doubt I’ll ever do this again,” he said.

USC law professor Michael Jenkins, who specializes in local government law, said a goal of blocking a proposal that is “clearly and unequivocally invalid” could be to avoid “wasting everyone’s time and money on an unnecessary election” that could cost a city like Huntington Beach $50,000 to $100,000.

Huntington is taking “the most aggressive strategy available by jumping in this early in the game,” said Jenkins, who is the city attorney for Goleta, Hermosa Beach, Rolling Hills and West Hollywood.

Gates said he has a legal duty to uphold and defend the Constitution and that the city is looking to the court for direction.

“It’s not grandstanding. I think it’s being prudent under the law,” he said. “We’re going into court saying: ‘This puts us in conflict; you’ll have to deal with this. You tell us what to do. If we’re wrong, we’re wrong. If we’re right, we’re right.’”

A case management hearing on the issue is scheduled for June 4 in Superior Court.

Jenkins said “there’s nothing illegal” about the city’s action. “They’re looking for the court to say it’s invalid and shouldn’t go forward,” he said.

Gates said such a “flagrantly unconstitutional proposal” places city leaders in a “tough spot.”

“There are instances where cities have gone to injunctions … it’s a rarity,” he said. “It’s also a rarity when the city or community can bring a proposal that is squarely illegal.”

In 2015, Huntington Beach lawyer Matthew McLaughlin received national attention by proposing a state ballot measure that would authorize the killing of gays and lesbians by “bullets to the head” or “any other convenient method.”

McLaughlin, who filed the initiative with the state attorney general’s office in February 2015, called it the Sodomite Suppression Act. Anyone who distributed “sodomistic propaganda,” he wrote, would be “fined $1 million per occurrence, and/or imprisoned up to 10 years and/or expelled from the boundaries of the state of California for up to life.”

Then-state Attorney General Kamala Harris filed a request in Sacramento County Superior Court that she be allowed to ignore McLaughlin’s proposal by not giving it a formal name and summary, thus keeping him from collecting signatures.

Judge Raymond Cadei ruled in June 2015 that Harris could halt the proposal, calling it “patently unconstitutional on its face.”

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