HomeMy WebLinkAboutCM Gun Control and Safety____________________________________________________________________________________ FOR CITY CLERK ONLY Council Meeting: 09/16/2019 Disposition: Accepted Report Agenda Item No: 5.a Meeting Date: September 16, 2019 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: City Manager’s Office Prepared by: Daniel A. Soto Associate Management Analyst City Manager Approval: _______ TOPIC: GUN CONTROL AND SAFETY SUBJECT: INFORMATIONAL REPORT RELATING TO GUN CONTROL AND SAFETY MEASURES RECOMMENDATION: Accept informational report and provide direction to staff. BACKGROUND: Introduction On August 5, 2019, in response to on-going and pervasive gun violence, Mayor Gary Phillips ordered the City’s flags to be lowered to half-staff. After a period of time, Mayor Phillips directed that the flags be returned to full-staff and also that staff research and present findings to the City Council on September 16 regarding all available policy and program actions that the City can take to address the issue of gun violence. While the U.S. Constitution protects the right to bear arms, and although federal and state law preempt most areas of gun control laws, local governments have some authority to regulate firearms and ammunition. This report presents a discussion of the implications of federal and state laws relating to gun control, along with an overview of preemption of local gun control laws that affect the City’s (and other municipalities alike) ability to adopt local gun control laws. Additionally, this report introduces policy and program actions that the City Council may take into consideration for further discussion and official action at a future meeting. Federal Law In the United States, access to guns is controlled by law under a number of federal statutes. These laws cover the following topics: • Background checks • Who can have a gun • Gun sales • Owner responsibilities • Child and consumer safety • Guns in public • Hardware and ammunition SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 • Other laws and policies (such as gun industry immunity, preemption of local laws, federal powers, key federal regulation acts, the Tiahrt Amendment, and more) These laws are enforced by state agencies and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In addition to federal gun laws, all state governments and some local governments have their own laws that regulate firearms. The right to keep and bear arms is protected by the Second Amendment to the United States Constitution. State Law Gun laws in California, which are among the most restrictive in the United States, regulate the sale, possession, and use of firearms and ammunition in the state. According to a report published by Boston University’s School of Public Health, California has 107 state gun laws. Among other things, these laws encompass the following: • Requires all gun sales to be processed through a licensed dealer, requiring a background check • Requires gun dealers to obtain a state license • Bans most assault weapons and .50 caliber rifles, and restricts the sale, transfer, manufacture, and possession of large capacity ammunition magazines • Requires all firearms purchasers to obtain a Firearm Safety Certificate, after passing a written test • Regulates gun shows in a comprehensive manner • Limits purchases of new handguns to one per person per month • Prohibits the sale of unsafe handguns that do not incorporate mandatory design safety elements • Imposes a ten-day waiting period prior to the sale or transfer of a firearm • Maintains permanent records of firearm sales • Gives local law enforcement discretion to deny a license to carry a concealed weapon • Gives local governments authority to regulate firearms and ammunition, although the state legislature has expressly removed this authority in certain areas (see below) In addition, in 2014, California became the first U.S. state to enact a Gun Violence Restraining Order law (also known as red flag laws), allowing temporary confiscation of firearms in certain situations where a court determines that the firearms are likely to pose a danger to the person in possession or to others. For example, concerned family members may petition a court to temporarily remove firearms from a loved one who is found to pose a clear danger to the public or their own safety during a mental crisis. Preemption of Local Laws No local law can duplicate State law. The State of California has already regulated the following: • Licensing of the Purchase, Ownership or Possession of a Firearm in the Home or Place of Business o California Penal Code section 25605(b) provides: “No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes . . . to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.” • Assault Weapons o Cal. Penal Code 30600 prohibits any person from manufacturing, distributing, transporting, importing, keeping for sale, offering for sale, giving, or lending any assault weapon within the state. Cal. Penal Code 30605 prohibits anyone from SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 possessing an assault weapon unless he or she possessed the firearm prior to the date it was defined as an assault weapon and registered the firearm with the DOJ in the timeframe established under law. (No new registrations are accepted.) • Background Checks o Cal. Penal Code 28205 et seq. requires the California DOJ to conduct background checks for purchasers of firearms. • Waiting Period o Cal. Penal Code 26815, 27540, 28220(e) prohibits any licensed firearms dealer from transferring or delivering a firearm to a person within ten days of an application to purchase the firearm or any amendments or corrections to that application. • Large Capacity Ammunition Magazines o Cal. Penal Code 32310 prohibits any person from manufacturing, importing into the state, keeping for sale, offering or exposing for sale, giving, lending, buying or receiving any large capacity magazine meaning any ammunition feeding device with the capacity to accept more than 10 rounds of ammunition as defined in Cal. Penal Code § 16740. • Possession of Large Capacity Magazines o Prior to Proposition 63 (2016), both state courts and the 9th Circuit had upheld local bans on the possession of large capacity magazines. (Fyock v. City of Sunnyvale (9th Cir. 2015) 779 F.3d 991; People v. Zondorak (2013) 220 Cal.App.4th 829; People v. James (2009) 174 Cal.App.4th 662.) Proposition 63, banning the possession of large capacity magazines, was approved by the voters in 2016. In April 2019, the U.S. District Court in the Southern District of California determined that Proposition 63 was unconstitutional. This decision has been stayed pending the outcome of the 9th Circuit appeal. o If the 9th Circuit appeal is upheld, possession of large capacity magazines would be preempted by state law. If the appeal is denied, the Southern District’s ruling that such a ban is unconstitutional would be upheld. Thus, regardless of the outcome, we do not recommend the City regulate the possession of large capacity magazines. • Fifty Caliber Rifles o Cal. Penal Code 30610 prohibits the manufacture, distribution, transportation, importation, keeping or offering for sale, giving or lending of any 50 BMG rifle without a DOJ issued permit. • Machine guns and Automatic Firearms o Cal. Penal Code 32625(a) prohibits any person from possessing, knowingly transporting, selling, offering to sell, or manufacturing a machine gun without a permit. • Ammunition Regulations o Cal. Penal Code 30310 regulates the sales and transfers of ammunition, persons prohibited from possessing ammunition, minimum age to possess ammunition, ammunition at guns shows, and certain kinds of unreasonably dangerous ammunition, and prohibits carrying ammunition onto school grounds, the state Capital, and any legislative office. o Cal. Penal Code 29800(a) prohibits certain people from purchasing or possessing ammunition such as felons, domestic abusers, people with a history of mental illness and people under the age of 18. • Concealed Weapons Permitting o Cal. Penal Code 25400(a), 25655 prohibits a person from carrying a loaded, concealed firearm in public unless the person has been issued a concealed weapons license. California is a “may-issue” state, meaning that local law enforcement has discretion when issuing carrying concealed weapons (“CCW”) SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4 licenses. A CCW may only be issued after local law enforcement makes certain findings. (Cal. Penal Code 26150, 26155.) • Safe Storage in Vehicles o AB 688 is currently making its way through the Legislature. This bill bolsters safe storage requirements for leaving a firearm in an unattended vehicle and makes failure to do so an infraction. The law is broad enough in scope that it would likely preempt any safe storage in vehicle Existing Gun Laws in San Rafael The San Rafael Municipal Code (SRMC) regulates firearms and firearm shops. The regulations include the following provisions: • Prohibition on the discharge of guns 1 except in defense of persons or property. (SRMC 8.12.170).2 • Gun Shop zoning regulations including: o Gun shop means establishment selling firearms (does not include bullets) (SRMC 14.03.030). o Gun shops conditionally permitted in GC, FBWC, 4SRC, CSMU, 2/3 MUE, 2/3 MUW, and WEV zones. (SRMC 14.05.020 and .022) o Performance standards related to gun shops including locational restrictions (dealers cannot be located within 300 feet of a day care facility, church or school) and Police and Fire Departments review. (SRMC 14.17.075) • Regulation of firearm dealers including: (SRMC Ch. 8.38) o Firearm permit required for all firearm dealers.  Police Chief review and approval/denial of firearm permit.  If permit denied or revoked, applicant has right to notice and hearing. o Permits cannot be transferred. o Requirement that Permittee possess a $1M per occurrence liability insurance policy for injury or death to any person as a result of the sale or transfer of a firearm. o Permits expire one year after date of issuance and can be renewed for one-year periods. o Grounds for denial or revocation of firearm permit include:  Misleading statements on applications,  Conviction of offenses that disqualify applicants from possessing firearms under Penal Code, offenses involving use of force, any felony, misdemeanor burglary or misdemeanor fraud,  Offenses involving the manufacture, sale, possession or use of a controlled substance. • Home occupation prohibition (SRMC 14.16.220.) Firearms dealers are not permitted as home occupations. • Prohibition on possession of firearms in public parks, community centers, outdoor public areas including library and City Hall, and recreation facilities (SRMC 8.10.090(E).) o The Supreme Court has stated that bans on firearms in government buildings and schools and similar sensitive places are presumptively lawful. (Great Western Shows, Inc. v. County of Los Angeles (2002) 44 P.3d 120) 1 The terms “gun” and “firearm” in the SRMC appear to be used interchangeably. 2 This regulation seems to have been adopted in 1923. State law expressly authorizes counties to regulate the discharge of firearms (see Gov. Code § 25840 (“The board of supervisors may prohibit and prevent the unnecessary firing and discharge of firearms on or into the highways and other public places and may pass all necessary ordinances regulating or forbidding such acts.”)) Although there is no similar express provision authorizing cities to do the same, such a provision would likely fall under a city’s traditional police power. (See Calguns Foundation, Inc. v. County of San Mateo (2013) 218 Cal.App. 4th 661, 667-669 [discussing general police power and how state preemption of gun regulation encompasses only “discrete areas” rather than the entire field].) SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5 ANALYSIS: At this time, staff has prepared a brief overview of policy, program, and legislative advocacy options that the City Council may review and consider. These options include regulations which are not preempted by state or federal gun laws. Based upon direction from the City Council, staff will return to the City Council at a future meeting to present options that the City Council may choose to take action on. Policy Options This section includes regulations which are likely not preempted by state or federal law. 1. Safe Storage and Site Security Regulations For Firearm Dealers • No federal or California law imposes security requirements on firearms dealers during business hours or requires firearms dealers or ammunition sellers to install burglar alarms or surveillance cameras. California law explicitly allows local jurisdictions to impose security requirements on firearms dealers that are stricter or at a higher standard than those imposed by State law. (Cal. Penal Code § 26890(b).) • Current San Rafael regulations include reference to State laws which impose security requirements on firearms dealers during non-business hours; however, the City’s regulations do not include any requirements re: dealers securing their inventory in ways that go above and beyond State law. • Examples of such regulations could include: o Firearms dealers must secure all heating, ventilating, air conditioning openings with metal grating or steel bars. o During business hours, firearms must be secured in a locked case, behind the counter with an impenetrable barrier that extends from floor or counter to ceiling. o Firearms must be secured by an alarm system monitored by a central station. o Premises must be monitored by video surveillance system that records and continuously stores video of the interior and exterior of the facility; and posting of notice about video surveillance. In the Home • Limited safe storage regulations specifically targeted at preventing accidental shootings, suicides and theft are not preempted by State law. • California law currently requires all firearms be safely stored. (Penal Code §§ 25100, et seq.) In the case of loaded firearms, a person may be found guilty of a misdemeanor or a felony if the person keeps a loaded firearm and a child under 18 obtains and uses it, resulting in injury or death, or carries it to a public place. Senate Bill (SB) 172, which is currently making its way through the Legislature, would expand the scope of this crime to apply to unloaded as well as loaded firearms. • San Rafael regulations do not include provisions regarding storage of guns in locked containers or with locking devices to prevent access by unauthorized users. Such provisions would not be preempted by existing State law or SB 172 should it be signed into law. 2. Permit Requirements to be a Firearms Dealer and Ammunition Dealer • Local governments have authority to require a local license in addition to state and federal licenses for the operation of a firearm shop. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6 • The City currently requires all firearms dealers to possess firearm permits (See SRMC Ch. 8.38.) However, the City’s ordinance and definition of “firearm” do not encompass ammunition. As such, the City could add the requirement that all ammunition vendors obtain a firearm permit. 3. Firearm and Ammunition Dealer Zoning Regulations • Local governments have authority to regulate firearms dealers and ammunition sellers. While the City has some standards to maintain a firearm permit, it could add additional standards which are not otherwise preempted by state or federal law including: o Additional locational limitations for “sensitive uses.”  Current City regulations prohibit firearms dealers from locating within 300 feet of a daycare, church or school. The City could add sensitive uses to this list including bars, parks, community centers, open space and other areas where there may be a high concentration of children. o Requirement that all firearm transactions be videotaped  State law does not preempt a requirement that cameras be installed in firearm dealerships and that all sales be videotaped. Currently, the cities of Emeryville, Campbell, Pleasant Hill and San Francisco require this. o Mandatory inspections of firearm dealers  State law does not preempt a requirement that local law enforcement periodically inspect firearms dealers for compliance with local, State and federal laws. Currently, the cities of Chula Vista, Emeryville and Union City require this. o Requirement that firearm dealers report their inventory  State law does not preempt a requirement that dealers report their inventory to law enforcement. Such a requirement could be a condition of firearm permit approval and issuance. Currently, the cities of Emeryville, Campbell, Beverly Hills, Los Angeles, Oakland, Santa Monica, West Hollywood and San Francisco require this. Program Options Gun Buyback Program In 2013 and 2016, the Marin County District Attorney’s Office, along with local law enforcement agencies throughout Marin County, conducted gun buyback programs, a process that allows community members to surrender their privately-owned firearms in exchange for cash, without risk of prosecution. The goal of these programs is to remove weapons from the community in order to reduce gun violence. Below is a breakdown of the results from the past gun buyback programs: Year Number of Firearms Surrendered Amount Paid 2013 827 $111,000 2016 685 $79,600 The types of firearms that were surrendered during these buybacks included long rifles, shotguns, pistols, and semi-automatic handguns. Community members also surrendered ammunition rounds. It is important to note that during both gun buyback events, the funds available to pay for surrendered firearms were insufficient to pay for the number of firearms retrieved. For example, in 2013, the District Attorney’s Office distributed approximately $68,000 in vouchers to be paid at SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 7 a future date, subject to available funding. In 2016, 63 firearms were retrieved for which no compensation was paid. The Marin County Police Chiefs’ Association will be meeting on September 12 to discuss the options for coordinating a gun buyback event. As that date is after this report must be finalized, staff will provide a verbal update/recap at the September 16 City Council meeting. Gun Violence Restraining Order Awareness As described earlier, a Gun Violence Restraining Order law, commonly referred to as “red flag laws”, allows the temporary confiscation of firearms in certain situations where a court determines that the firearm is likely to pose a danger to the person in possession of it, or to others. Specifically, California’s Gun Violence Restraining Order law allows a judge to determine whether a person with access to firearms poses a significant danger of harming themselves or others. To make such a determination, after having received a request from the member of the public to his or her local law enforcement agency or from the law enforcement agency directly, the court balances the risk to the public with the person’s Second Amendment rights. And if granted, the Gun Violence Restraining Order allows police to temporarily hold the person’s firearms and ammunition for safe-keeping. The Gun Violence Restraining Order also prevents the individual from purchasing a gun. Below are some examples of circumstances when an individual or a representative of a local law enforcement agency may petition for a Gun Violence Restraining Order: • When a family member or housemate is experiencing a mental health crisis and is expressing thoughts of suicide or death • When someone withdrawing from friends, family, school, sports or hobbies; expressing sorrow or anger over a failed relationship; or when someone begins to unexpectedly give away important possessions • When the behavior of a veteran or relative diagnosed with post-traumatic stress disorder, or elderly relative with dementia, causes concern for their safety or the safety of others because of his or her access to guns • If a person is threatening violence, is posting social media threats to kill, or has written a manifesto of hate, violence, or killing In addition, to petition a Gun Violence Restraining Order, the petitioner must describe the number, types, and locations of any firearms and ammunition presently believed by the petitioner to be possessed or controlled by the subject of the petition. If directed to do so, the City may take an active role in Gun Violence Restraining Order awareness by working with the Marin County District Attorney’s Office on community engagement opportunities relating to this topic. This could include hosting public meetings, sharing information using the City’s communications mediums, and other programs as directed by the City Council. Legislative Advocacy Options In January 2015, the City Council adopted a Legislative Platform, which outlines the City’s five legislative advocacy priorities: (1) Local Control; (2) City Finances; (3) Police, Fire, and Emergency Preparedness Issues; (4) Environmental Sustainability; and (5) Land Use and Transportation. In addition to these priorities, the Legislative Platform provides that the City may choose to support any of the League of California Cities’ annual priorities when they are beneficial to the City. The Legislative Platform authorizes the City Manager to prepare and submit position letters (support, support if amended, oppose, oppose unless amended, neutral, or watch) relating to pending legislation or to other matters relating to the Legislative Platform. Legislative Platform priority #3, Police, Fire, and Emergency Preparedness Issues, asserts the following: Support legislation, programs, and policies that impact the City's funding for and ability SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 8 to provide police, fire, and emergency preparedness services. Through this priority, the City may prepare position letters for legislation relating to gun control and safety. Below is an overview of pending legislation that the City may take a position on: Pending Federal Legislation H.R. 8, the Bipartisan Background Checks Act of 2019, would require new background check requirements for firearm transfers between private parties (i.e., unlicensed individuals), with carefully defined exceptions for gifts to family members, hunting, target shooting, and self- defense. Federal law already requires licensed gun dealers to conduct background checks on gun purchasers and transferees. H.R. 8 would prohibit a firearm transfer between private parties unless a licensed gun dealer, manufacturer or importer first takes possession of the firearm to conduct a background check. Status of Bill: Passed House 2/27/19 H.R. 1112, the Enhanced Background Checks Act, would provide the background check system with additional time to make a final determination on a potential firearms purchaser before a licensed dealer can transfer a gun. The bill extends the initial background check review period from three to 10 business days. After the initial 10 business day period, if a background check has not been completed, a purchaser may request an expedited review to spur the FBI to complete their investigation. Status of Bill: Passed House 2/28/19 H.R. 1186, the Keep Americans Safe Act, establishes a new criminal offense for the import, sale, manufacture, transfer or possession of a large capacity ammunition feeding device. Status of Bill: Introduced in House 2/13/19 H.R. 1236, the Extreme Risk Protection Order Act of 2019, would establish a program under the Department of Justice to award grants to states to implement extreme firearm risk laws. Status of Bill: Introduced in House 2/14/19 H.R. 2708, the Disarm Hate Act, would prevent a person who has been convicted of a misdemeanor hate crime, or received an enhanced sentence for a misdemeanor because of hate or bias, from obtaining a firearm. Status of Bill: Introduced in House 5/14/19 Pending State Legislation Assembly Bill 12 would extend the duration of California’s gun violence restraining orders and their renewals from one year to a period of up to five years. Status of Bill: In Assembly; concurrence in Senate amendment pending 9/9/19. Assembly Bill 18 would impose a $25 excise tax on gun sales to fund the California Violence Intervention Prevention Firearm Tax Fund for purposes of funding violence prevention grants to communities disproportionately affected by violence. Status of Bill: In Assembly 8/27/2019 Assembly Bill 61 would expand the list of those eligible to petition for gun violence restraining orders beyond the currently authorized persons, which include immediate family and law enforcement. The new list is expanded to employers, coworkers and employees of a secondary or postsecondary school that the person has attended in the last six months. Status of Bill: Passed Assembly; in Senate 9/9/19 Assembly Bill 165 would require the Commission on Peace Officer Standards and Training (POST) to develop and implement a training course on gun violence restraining orders for its incorporation into basic training for law enforcement. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 9 Status of Bill: Passed Assembly; in Senate 8/30/19 Assembly Bill 645 would require mandatory warning labels or signs for both guns and gun shop interiors with information relating to safe storage and suicide risk. Status of Bill: Enrolled and presented to Governor 9/5/2019 Assembly Bill 879 would require precursor firearms parts to be sold/transferred through a licensed precursor parts dealer in a similar process to the new laws regarding ammunition purchases. It would further create a registry of these parts and a new crime for transfer of precursor parts without the involvement of a licensed precursor parts dealer to anyone under 21 years of age or prohibited from owning firearms. Precursor parts include items such as unfinished frames and receivers. Status of Bill: Passed Assembly, In Senate 9/9/2019 Assembly Bill 893 would prohibit the sale of firearms and ammunition at the Del Mar fairgrounds in San Diego on and after January 1, 2021. Status of Bill: In Assembly 9/9/2019 Assembly Bill 1297 would remove the maximum fee a local authority can charge on the concealed carry permit application (currently $100) and require a local authority to charge an applicant a fee sufficient to cover the reasonable costs associated with processing and enforcement of the license. Status of Bill: In Assembly 9/9/2019 Senate Bill 55 would make it a crime to own or possess a firearm, ammunition, or reloaded ammunition within 10 years of conviction of specific alcohol- and drug-related misdemeanors that occur within a designated time period. Status of Bill: In Assembly; second hearing canceled at request of author 7/9/2019 Senate Bill 61 would prohibit the sale of centerfire semi-automatic rifles to persons under 21 years of age except in narrow circumstances, as well as prohibit from making an application to purchase more than one semi-automatic centerfire rifle in any 30-day period, with exceptions. Status of Bill: Passed Senate; in Assembly 9/6/2019 Senate Bill 120 Prohibits, as of January 1, 2020, a person convicted of a misdemeanor offense of carrying a concealed firearm, carrying a loaded firearm, or openly carrying an unloaded handgun, in a public place, from owning, purchasing, receiving, or possessing a firearm for a period of 10 years, and creates a new a misdemeanor offense for a violation of that prohibition. Status of Bill: In Senate; second hearing canceled at request of author 7/9/2019 Senate Bill 172 would expand California's existing storage laws by broadening criminal storage crimes, adding criminal storage offenses to those offenses that can trigger a ten-year firearm ban, creates an exemption to firearm loan requirements for the purposes of preventing suicide, imposes on residential care facilities for the elderly rules related to firearm and ammunition storage and reporting, and requires the Department of Social Services to promulgate regulations regarding storage at residential care facilities. Status of Bill: Passed Senate; in Assembly 9/6/2019 Senate Bill 220 provides that anytime a firearm licensee is not open for business, firearms must be stored in a secure facility by one of several methods (such as in a fireproof vault or in a locked steel gun rack). In addition, the bill would require a licensed firearms dealer, if the licensee's location is at street level and firearms are secured by means of a hardened steel rod or cable, to install concrete or hardened steel bollards, or other barriers to protect the location's front entrance, any floor to ceiling windows, and any other doors that can be breached by a vehicle. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 10 Status of Bill: Passed Senate, in Assembly 9/9/2019 The legislative items above illustrate the type and variety of existing proposed legislation related to guns, and there is sure to be more. It is important to note that the City of San Rafael does not employ a legislative analyst, nor do we have any staff positions where legislative advocacy is a significant portion of their responsibilities. The City of San Rafael does not support or oppose legislation because one or more other jurisdictions does so, but instead reviews and evaluates the specific details of each legislation and tracks the legislation as it moves through the legislative process. As such, it is quite time intensive and any direction to track all of the above and future bills should not be taken lightly. The City Council may direct a more focused approach on bills that relate most specifically to San Rafael issues, or are a focus of the League of California Cities, or the Legislative Committee of the Marin County Council of Mayors and Councilmembers (MCCMC). At this time, staff seeks direction from the City Council relating to the policy, program, and legislative advocacy options described above. Based upon direction from the City Council, staff will return to the City Council at a future meeting to present options that the City Council may choose to enact. FISCAL IMPACT: There is no fiscal impact associated with this action. RECOMMENDED ACTION: Accept informational report and provide direction to staff.