SR-701-007 (3)
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city Clerk:HK:CEJ:jj(fnk)
city Council Meeting: 9/12/89
Santa Monica, California
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FROM:
Mayor and Councilmembers
Mayor Pro Tempore Finkel
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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.
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SEP 2 6 1989
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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superceded to the extent that it is inconsistent with recently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.
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1. Ordinance Number 1468 (CCS} Reaulatina the Possession of
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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
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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
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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:
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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 .
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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
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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.
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4 . The Ci tv Council Mav Desire to Lobbv the Federal and state
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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
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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.
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