Loading...
SR-701-007 (3) ( . . " . city Clerk:HK:CEJ:jj(fnk) city Council Meeting: 9/12/89 Santa Monica, California -rP /..- tOtJ7 FROM: Mayor and Councilmembers Mayor Pro Tempore Finkel '-~A SEP 2 6 1989 TO: SUBJECT: Sale of Firearms It is requested that on September 12, 1989, the City council discuss direction to the City Attorney to prepare an ordinance prohibiting the sale of firearms for the duration of the 15 day waiting period, and a other possible added steps that the council might legally take to inhibit or slow down the sale of firearms in Santa Monica, consistent with the terms of the city Attorney's recent memorandum to the Council. CEJ:jj fnk Attachment: city Attorney Memorandum dated August 2, 1989. S-A SEP 2 6 1989 - 1 - . . MEMORANDUM OPINION .'-25 DATE: August 2, 1989 FROM: Mayor and city Council Robert M. Myers, City Attorney Jerry P. Gordon, Deputy City Attorney TO: SUBJECT: Ability of the city of Santa Monica to Regulate Firearms At your meeting on February 14, 1989, the city Council directed the city Attorney to prepare an opinion on the legal options available to the City to regulate the sale and possession of firearms. This opinion is in response to this direction. The ability of the City of Santa Monica to legislate in the area of firearms is limited because of state legislation. state legislation has prohibited cities from adopting legislation relating to the "registration and licensing" of firearms. Government Code section 53071. Based upon our review of applicable law, we believe that the City may take action in the following areas: 1. Ordinance Number 1468 (CCS), adopted on February 28, 1989, regulating the possession and sale of assault weapons will be superceded to the extent that it is inconsistent with recently enacted state legislation. However, it may continue to have viability as it impacts the ~anner in which the state legislation in enforced within the City. 2. The City Council may impose a IS-day "cooling off" period on the purchase of long guns within the city. 3. The sale of firearms within Santa Monica causes the municipal i ty to incur special costs and expenses. The City, therefore, may impose increased fees or taxes upon gun retailers which operate within the city. 4. Guns, particularly concealable handguns, represent a clear and present danger to the citizens of the City of Santa Monica. That danger cannot be totally amel iorated by actions within the City. Therefore, the City Council may wish to engage in a lobbying campaign directed at both the Federal and state governments relating to increased licencing and control of such weapons. 1 . . . . 1. Ordinance Number 1468 (CCS} Reaulatina the Possession of - - Assault Weaoons. Enacted as an emergency ordinance on February 28, 1989, Ordinance Number 1468 (CCS) generally regulated assault weapons by banning their possession or sale within the city. Following the action of the City Council and similar actions by other municipalities, the State Legislature passed Assembly Bill 357 and Senate Bill 292. Both California bills were approved by the Governor on May 24, 1989. They take effect on January 1, 1990. The major provisions of the new state laws are as follows: a. They define assault weapons by providing a list of S6 specific assault weapons and a process for the identification of future imitations of such weapons. b. They forbid the advertising of assault weapons and provide misdemeanor penalties for violations. c. They add sentence enhancements of 3 to 5 years in State Prison for a person who commits a felony while armed or who personally uses an assault weapon in the course of committing a felony. d. They establish a new felony crime for the manufacture, distribution, transportation, importation, sale, possession for sale, or lending of assault weapons within the state. e. They define a new public offense punishable by fine for a person who unlawfully possesses an assault weapon. f. They provide for the registration of assault weapons by persons who legally owned them prior to June 1, 1989 and they forbid the selling or transfer of those weapons after January 1, 1990. q. They change the provisions of the Penal Code such that an assaul t with a machine gun or assault weapon can no longer be classified as a misdemeanor and they increase the number of years in State Prison to which an offender convicted of an assault with such a weapon can be sentenced. In view of this new Statewide legislation, as of January 1, 1990, Ordinance Number 1468 (CCS) will have very limited viability. Based upon the well established principle of "preemption," the City will not be able to interfere with this statewide regulatory scheme. However, there are several areas in which the local ordinance retains its viability. They are as follows: 1. The state legislation does not take effect until January 1, 1990. Until that date, the local ordinance should continue to 2 ^ . . . be enforceable. 2. After January 1, 1990, citizens will be allowed to retain certain assault weapons only if those weapons were legally possessed prior to June 1, 1989. To the extent that the local ordinance made it illegal to possess certain weapons in this city prior to June 1, 1989, the UgrandfatherU clause will not permit legal possession of those weapons after January 1, 1990. We recommend that the local ordinance be left in effect until January 1, 1990. Thereafter, it should be rescinded so that citizens of the City will clearly understand which weapons can be legally possessed and sold. The Attorney General will have the responsibility to register weapons under the new law. In order that the Attorney General be placed on notice that no assault weapons were legally possessed in this City in the period immediately preceding June 1, 1989, a letter will be drafted by the city Attorney so informing the Attorney General. 2. The City Council May Adoot an Ordinance providina a 1S- Dav Waitina Period for the Purchase of tonq Guns. In findings made by the City Council in connection with the enactment of Ordinance Number 1468 (CCS), it was noted that there had recently been unprecedented episodes of violence and endangerment of health in connection with the random Shooting of assault weapons. It is also true that a single shotgun blast can be as devastating as automatic tire if the single blast finds its mark. California has a requirement for a 1S-day waiting period for the purchase of concealable firearms. (Penal Code Section 12071(3) (A).) However, no waiting period is necessary for the purchase of long guns. This is unfortunate. While handguns account for an inordinate number of the injuries and deaths, an unstable person in possession of a shotgun or other long gun can be the cause of tragic and lethal consequences. There exists a legal question about whether the Ci ty may impose a restriction requiring a waiting period for the purchase of long guns. The legislature has expressed its intent to preempt the areas of registration and licensing of commercially manufactured firearms with the following language: It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such 3 . . prov1S10ns shall be exclusive of all local regulations, relatinq to reaistration or licensina of commercially manufactured firearms, by any political subdivision as defined in section 1721 of the Labor Code. Government Code section 53071 (emphasis added) . Thus, it is clear that the City Jnay not impose a IS-day wai ting period on long guns, for example f for the purpose of checking the criminal or emotional background of a potential purchaser. To do so would constitute a licensing process. However, a City ordinance imposing a IS-day waiting period may not be preempted by State law so long as it is unrelated to registration or licensing. A valid purpose for such an ordinance would be to ensure that no purchase of a deadly weapon is made while the purchaser is suffering impaired judgment due to the influence of inflamed passions. Such a law might be challenged in court. While it would probably be upheld, that result is by no means a foregone conclusion. The law of preemption is complex. A basic principle is that where a matter is considered a uniquely "municipal affair f 1I a local ordinance may be enacted even where it conflicts with explicit or implicit state law. See Bishoo v. Citv of San Jose, 1 Cal. 3d 56, 460 P.2d 137, 81 Cal.Rptr. 465 (1969). However, the law is absolutely clear that the regulation of firearms is not such a unique municipal affair. poe v. City & County of San Francisco, 136 CaL App. 3d 509, 513, 186 Cal. Rptr. 380, 382 (1982). Therefore, a court would be forced to analyze the viability of a local "cooling off periodtt law by application of other principles of preemption doctrine. Courts have held that subject matter overlap between state and local laws does not, of itself, mean that local ordinances are to be disregarded in their entirety. Thus, where a local regulation both duplicated state law and went beyond state legislation in some respects, courts have held that in those areas where it went beyond the state regulation it was not preempted where it neither contradicted state law nor regulated in an area where the state left no room for local regulation. peoole v. Commons, 64 Cat. App. 2d Supp. 925, 929-35, 148 P.2d 724, 728 (1944)~ peoole v. Jenkins, 207 Cal. App. 2d Supp. 904, 906-07, 24 Cal. Rptr. 410, 412 (1962). In one case, for example, a court rejected the argument that the state Legislature's extensive legislation in the area of firearm regulation preempted the local government from regulating BB guns. In Olsen v. McGillicuddy, 15 Cal. App. 3d 897, 93 Cal. Rptr. 530 (1971), the court acknowledged that numerous state statutes dealt with firearms, but concluded: 4 . . . ~ Despite the wide coverage by the state on the subject of firearms, it does not follow that the state wished to exclude regulations by a municipality which considered more stringent regulation necessary in its particular community. [TJhe Legislature in 1969 enacted Government Code, section 9619 and made clear its intent to occupy the whole field of regulation of the registration or licensing . . . of firearms . . Despite the opportunity to include an expression of intent to occupy the entire field of firearms, the legislative intent was limited to registration and licensing. We infer from this limitation that the Legislature did not intend to exclude municipalities from enacting further legislation concerning the use of firearms. ~d. at 902, 93 Cal. Rptr. at 532 (emphasis deleted). The question becomes whether a "cooling off period," unrelated to a background check or licensing requirement, is preempted by state law. It can be argued that such a requirement would simply constitute a restriction on the sale of firearms, in that it is intended to ensure that long guns are not obtained at that moment when members of the community are in a particularly agitated emotional state and are therefore prone to misuse the firearms. To the extent that the city Council believes it good policy to cause the purchasers of long guns to wait 15 days before picking up those weapons, it may choose to enact such a restriction. Another approach would be to lobby the State Legislature to extend the current lS-day waiting period to apply long guns. 3. The Citv Council Mav Increase Fees or Taxes on the Sale of Firearms. Living in an armed environment can exact a tragic toll in terms of human misery. It also imposes monetary costs upon local governments. In the case of Santa Monica, the need to train and equip police officers for the ever present danger of armed conflict has specific financial consequences. Prior to hiring any officer, significant psychological screening is necessary in an attempt to screen out those applicants who may collapse beneath this level of stress. Such screening costs money. Officers must be provided with bullet proof vests and other protective equipment in addition 5 . . . to sufficient artillery to prevail in an armed confrontation. The equipment costs money. Officers must be continually retrained in the use of firearms and related equipment. Their training costs money. When an officer finds it necessary to utilize deadly force, substantial post-event evaluation and counseling is often necessary. Those processes cost money as well. When a suspect is injured during a shooting, his or her medical treatment while in custody may become a cost borne by the city. If an officer, in responding to the stimuli of an emergency situation, improperly discharges his or her weapon, civil liability can result. Costs can be great. Other costs are associated with gun retailing within the City. Since there are certain weapons which may not be legally sold in a commercial establishment and since there are licensing, waiting periods and other specific regulations with which gun shops must comply, the City has inspection and supervision responSibilities in connection with gun shops which are different from those associated with other types of merchants. Costs are thus incurred. In view of these greater costs, the City may, if it chooses, impose special licensing fees or taxes upon local weapons merchants so long as those fees are reasonable. As was noted in the case of Park IN Flv v. city of South San Francisco, 188 Cal. App. 3d 1201, 234 Cal. Rptr. 23 (1987): "[A] municipality may impose license fees at differing rates upon different classes provided the classification created is reasonable." uNo constitutional rights are violated if the burden of license tax falls equally upon all member of a class, though other classes have lighter burdens or are wholly exempt, provided that the classification is reasonable, based on substantial differences between the pursuits separately grouped, and is not arbitrary." Generally, a business license tax comports with equal protection standards .. t if the distinction rests upon a rational basis, and it must be presumed to rest on that basis if there is any conceivable state of facts which would support it.IU Id. at 1214, 234 Cal. Rptr. at 31 (citations omitted). At present, the special costs associated with having gun vendors within the City are not significantly recouped. The city Council should consider whether the collection of additional revenues from local firearms merchants is appropriate in view of the special enforcement and other costs associated with local firearms sales. 6 . . 4 . The Ci tv Council Mav Desire to Lobbv the Federal and state . - Governments for stronqer Firearms Reaulations. Firearms in the wrong hands take the lives of more than 20,000 Americans every year in homicides, accidents and suicides. Each year, such weapons are used to wound, rob, rape or threaten hundreds of thousands more. To get some sense of the scope of this problem, between 1963 and 1973, while the war in vietnam was taking 46,121 American lives, guns here in America were killing 84,644 civilians. Yet Congress has done little to keep firearms from falling into the wrong hands: the hands of minors, criminals, drunks, drug users, and the mentally incompetent. As the result of the lack of a consistent national approach, gun regulations across the nation form a patchwork, varying significantly even between adjacent communities. Thus, while California has a IS-day waiting period for the purchase of handguns, a handgun can be purchased in a neighboring state by a disturbed or violent individual without such restriction. John Hinckly, one such distressed person, had no difficulty purchasing the handgun with which he attempted to assassinate then President Ronald Reagan. The following is a poem he wrote in anticipation of that attempt: See that living legend over there? with one little squeeze of the trigger I can put that person at my feet moaning and groaning and pleading with God. This gun gives me pornographic power. If I wish, the President will fall and the world will look at me in disbelief All because I own an inexpensive gun. Because of the state's preemption of much firearm regulation, there are significant limitations upon what the City may do to control this problem by ordinance. However, the City council may wish to place itself on record and/or endorse legislative packages on the Federal and state levels favoring some or all of the following approaches: a. A national license-to-carry law, requ~r1ng a special license to carry a handgun outside one's home or place of business. b. A ban on the manufacture and sale of the easily concealable snub-nosed handguns sometimes known as Saturday Night Specials. This type of weapon is used in approximately two-thirds of handgun crime. c. A ban on the manufacture importation and sale of plastic handguns which make metal detectors and airport screening devices 7 . . . useless. d. A national lS-day waiting period for the purchase of firearms patterned on the California requirement for the purchase of handguns. e. A requirement for the registration of every sale of a firearm, whether made by a dealer or by a individual citizens. f. The establishment and maintenance of regional and national record keeping regarding the location and ownership of firearms similar to that now maintained for automobiles and driver licensing information. g. A requirement that any purchaser of a firearm take a course in gun operation and safety measures appropriate to the use of firearms. h. A national requirement that no gun vendor deliver a firearm to any person who is obviously under the influence of alcohol or other mind altering substances or who is acting in an irrational or threatening manner. 8