HomeMy WebLinkAbout7.1 Local Handgun Control CITY OF DUBLIN
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: August 14, 1989
SUBJECT Response to Citizen' s Request Regarding Local
Handgun Control
(Report Prepared by Elizabeth H. Silver, Assistant
City Attorney)
EXHIBITS ATTACHED Memorandum from Elizabeth H. Silver, Assistant City
Attorney dated August 7, 1989; Letter from Dr. Zev
Kahn dated May 21 , 1989 .
RECONMENDATION (2 t Receive Assistant City Attorney' s Report.
a
FINANCIAL STATEMENT: None.
DESCRIPTION At the City Council meeting of July 28, 1989, Dr. Zev
Kahn requested that the City Council respond to his letter of May 21 , 1989
requesting stricter gun control laws in the City of Dublin.
The City Attorney at the request of the Council has prepared a memorandum
responding to Dr. Kahn' s request. The Assistant City Attorney has concluded
that local regulation requiring persons owning hand guns, keep such guns and
ammunition locked in enclosures is likely to be held preempted by existing
State law. If the City Council is interested in pursuing this issue
further, it is recommended that the City Council urge the State Legislature
to adopt more restrictive regulations or request an opinion from the
Attorney General' s Office on this issue prior to the enactment of a local
ordinance.
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COPIES TO:
Dr. Zev Kahn
ITEM NO.
11EYERS, 1AVE, RIBACK & IVF-ST
MICHAEL R )IAVE APP.CFE SIGNALLP'NCORPORATCN PENINSULA OF-Irz
STEVEN R.ME?z__3S
NATALIE E.WEST, GATEWAY PLAZA 1220 INGAM .AVE..SUITE 250
- dURLIN GAM E.CA 9401 9-.2;t
ELIZABETH H.=ILVER 777 OAVIS STREET.SUITE 300
MICHAEL S.RIBACZ SAN LEANORO.CALIFORNIA 94577 14151348-7130 1,42
FAXIatS)342-4225
i MOLLY T.7AM1 (415)351.4300
ANNE E.MUDGE FAX(41 55)351-4481 MARIN OFF;C=
MICHAEL F ROCRIOUEZ 1202 GRANT AVE..SUITE
NOVATO.CA 94945
OF COUNSc n 7� T (415)892-2873
THOMASF BERTRAND MEMORANDUM
REPLY TO:
San Leandro
TO: City Council DATE: August 7, 1989
FROM: Elizabeth H. Silver, Assistant City Attorney
RE: Regulation of Handguns and Live Ammunition in the Home
Question Presented and Conclusion
Councilmember Jeffrey recently asked whether the City Council
could require persons owning handguns to keep such guns and/or
ammunition in a locked enclosure. Additionally, we have examined
whether the City Council could impose such a requirement when
unattended minors are present. We have concluded that both
approaches would likely be preempted under State law. Given our
analysis and the possibility of legal challenge to such regulation,
we would recommend that an Attorney General 's opinion on this
question be requested should the City Council consider adopting
such regulation.
Analysis
Backaround
The City's authority to legislate in the area of firearm
regulation, as in other areas of its police powers, is limited by
the constitutional requirement that such regulation not conflict
with general State law. California Constitution Art. XI, Sec. 7.
A conflict with general laws exists when an ordinance duplicates,
contradicts, or enters an area that is preempted by State law
either expressly or by implication. Lancaster v. Municipal Court
(1972) 6 Cal . 3d 805, 807-808 , 100 Cal.Rptr. 609 , 610. Generally,
the greater the State ' s regulatory involvement, the greater the
likelihood that conflict may exist.
TO: City Council
FROM: Elizabeth H. Silver, Assistant City Attorney
RE: Regulation of Handguns and Live Ammunition in the Home
DATE: August 7, 1989
PAGE: 2
First Question: General Requirement To Keen Handguns Locked
At the present time, there is no State-wide legislation which
either expressly requires or prohibits local governments from
requiring that ammunition and handguns be kept in locked
enclosures. (For purposes of this discussion, handgun will be
considered the equivalent to the terms "pistol, " "revolver" and
concealable -firearm" as defined in Penal Code § 12001(a) . ) There
is, however, extensive State legislation on firearms generally and
handguns in particular.
Statutory Provisions
Four statutes are particularly relevant:
1) Penal Code § 12025 prohibits carrying handguns on one's
person or in a vehicle under one' s control without a license.
Handguns carried openly in belt holsters are not considered
concealed weapons and are expressly excluded from this prohibition.
Penal Code § 12025 (c) .
2) Penal Code § 12050 provides the authority and specifies
the mechanism for issuing licenses to carry concealed firearms.
It authorizes county sheriffs and municipal chiefs of police to
license applicants upon presentation of proof of their good moral
character, that good cause exists for the issuance, and that the
applicant is a resident of the jurisdiction. Such licenses may
include "any reasonable restriction or conditions which the issuing
authority deems warranted, including restrictions as to the time,
place, and circumstances under which the person may carry a
concealed firearm. " Penal Code § 12050 (b) .
3) Penal Code § 12026 provides, in pertinent part, that:
"Section 12025 shall not be construed to prohibit any citizen
of the United States over the age of 18 years. . .from owning,
possessing, or keeping within his place of residence or place
of business any pistol, revolver, or other firearm capable of
being concealed upon the person, and no permit or license to
purchase, own possess or keep anv such firearm at his place
of residence or place of business shall be required of him. '!
(Emphasis added. )
TO: City Council
FROM: Elizabeth H. Silver, Assistant City Attorney
RE: Regulation of Handguns and Live Ammunition in the Home
DATE: August 7, 1989
PAGE: 3
4) Finally, in 1969 , the Legislature enacted § 53071 of the
Government Code which expressly preempts local government from
regulating the registration or licensing of firearms:
"It is the intention of the Legislature to occupy the whole
field of regulation of the registration or licensing of
commercially manufactured firearms. . .and such provisions shall
be exclusive of all local regulations. . . "
Judicial Interpretation
Arguably, the reach of Government Code § 53071 is limited by
its terms to registration and licensing, leaving open to local
governments other areas of firearm regulation. Thus, in a case
concerning an injury caused by a minor using a BB gun, the court
upheld against a preemption challenge a local ordinance which, as
applied, made it a misdemeanor for a parent or guardian to permit
a minor child to discharge any firearm. Olsen v. McGillicudv
(1970) 15 Cal.App.3d 897 , 93 Cal.Rptr. 530 (First District, 1971) .
The Olsen court concluded that
Despite the opportunity [when enacting Government Code
§ 53071] 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. Id. at 902, 93 Cal.Rptr at 532 .
However, this narrow interpretation of § 53071 is made
tenuous, particularly as applied to handgun controls, by the more
recent case of Doe v. San Francisco (1982) 136 Cal.App. 3d 509,
186 Cal.Rptr. 380. Although § 53071 only refers to licensing or
registering, in Doe the court struck down a San Francisco ordinance
banning the possession of handguns within the City. Since the
ordinance made an exception for persons who were licensed to carry
a handgun under Penal Code § 12050, the court found that, in
effect, the ordinance created a new licensing provision in
violation of Government Code § 53071. More importantly for the
present analysis, the court went on to hold that, even if not
expressly preempted by § 53071, possession of handguns was
impliedly preempted by the numerous State laws concerning
residential handgun possession and especially by Penal Code
§ 12026. The court stated, " [W]e infer from Penal Code § 12026
that the Legislature intended to occupy the field of residential
TO: City Council
FROM: Elizabeth H. Silver, Assistant City Attorney
RE: Regulation of Handguns and Live Ammunition in the Home
DATE: August 7, 1989
PAGE: 4
handgun possession to the exclusion of local governmental
entities. " Id. at 518, 186 Cal.Rptr. at 385. The court
distinguished Olsen by noting, first, that the regulation in Olsen
applied only to the use of firearms. Second, the court emphasized,
as had the Olsen court itself, that the local authority of a city
to regulate the discharge of firearms was greatly bolstered against
preemption attack by Government Code § 25840 which expressly
authorizes - counties to "prohibit and prevent the
unnecessary. . .discharge of firearms. . . " Doe at 384, quoting from
Olsen at 530.
Independently of Doe, but almost concurrently, the Attorney
General issued an opinion which similarly concluded that cities are
preempted from regulating possession of handguns "because the field
of possession has been so fully, completely and comprehensively
covered by general state law as to clearly indicate a legislative
intent to occupy the field. " 65 Ops.Atty.Gen. 457, 464 . And, in
an analysis parallel to that of the court in Doe, the opinion also
interpreted the municipal authority upheld in Olsen to apply
narrowly to the facts of that case.
Conclusion
Doe v. San Francisco clearly indicates that all local gun
legislation will be carefully scrutinized under the bright light
of State preemption. Arguably, an ordinance requiring that
handguns and ammunition be kept in a locked enclosure regulates
only the use of firearms. If this argument were sustained, it is
possible that such an ordinance might be upheld as a permissible
regulation in an area not preempted by the State.
At some point, however, the regulation of use is likely to
impinge on possession. Severely constraining access and use of
handguns may have effects similar to prohibiting their possession.
It might even be argued, as discussed further below, that the very
use the proposed ordinance seeks to avoid involves the possession
of the handgun to be locked away.
To the extent that the type of ordinance under consideration
were deemed by the court to infringe upon regulation of possession,
it -would most likely be invalidated as preempted. Unfortunately,
the cases provide little guidance as to where the courts are likely
to draw the line between use and possession.
TO: City Council
FROM: Elizabeth H. Silver, Assistant City Attorney
RE: Regulation of Handguns and Live Ammunition in the Home
DATE: August 7, 1989
PAGE: 5
Second Question: Regulation Limited To Minors
Because the questions asked by Councilmember Jeffrey was
apparently prompted in part by a concern for the injury and death
caused by and to children through inadvertent and unsupervised
access to firearms, we have also examined whether an ordinance more
narrowly tailored to this situation could be sustained. Such an
ordinance might, for example, require that an owner keep handguns
and ammunition in a locked enclosure when stored in a residence
during times when unattended minors are present.
Statutory Provisions
A number of statutes regulate the access to and use of
firearms and ammunition by minors. These statutes distinguish
between pistols, revolvers, and concealable firearms (which we have
been characterizing as "handguns") and other firearms which do not
fit into this first class. Sale to a minor of either class of
firearms is prohibited. Penal Code §§ 12100(a) and 12551. It is
also a violation of State law to furnish minors with either class
of firearms without obtaining the prior "written consent or implied
permission, " in the case of handguns and concealed weapons, or the
"express or implied permission" in the case of other firearms of
the parent or legal guardian. Penal Code §§ 12100 (b) and 15552 .
Additionally, a minor may not possess a handgun or other
concealable weapon unless the minor is accompanied by or has the
written consent of his parent or legal guardian. Penal Code
§ 12101 (a) . The same restrictions apply to a minor' s possession
of live ammunition, with the one added exception that a minor may
possess live ammunition while going to or from an organized lawful
recreation or competitive shooting activity or lawful hunting
activity. Penal Code § 12101 (b) .
Application
As noted at the outset, conflict may occur where local law
duplicates, conflicts or is preempted by State law. While the type
of regulation being discussed would address concerns similar to
those reflected in the above statutes, it would not appear to
duplicate existing State law. It is not presently an offense to
keep handguns and ammunition unlocked and, thus, the City would
not, by enactment of such a regulation, criminalize activity
already proscribed by the State.
TO: City Council
FROM: Elizabeth H. Silver, Assistant City Attorney
RE: Regulation of Handguns and Live Ammunition in the Home
DATE: August 7, 1989
PAGE: 6
The regulation, however, could face a strong challenge as
contradicting State law. As proposed, it denies unattended minors
access to and possession of handguns and ammunition. Yet, the
State statutes expressly permit such access and possession,
provided prior written consent is given by the minor' s parent or
legal guardian. The statutes may even be read to allow access and
possession in some circumstances where only "implied permission"
is given.
It may be possible to fortify an ordinance against such attack
through careful drafting which expressly exempts these areas of
potential conflict. For example, while retaining the locked
enclosure requirement, an ordinance could permit the owner, if the
parent or legal guardian of the minor in question, to give a key
or other means of unlocking the enclosure to the minor. A similar
exception could be made where the owner is given prior written
consent by the minor' s parent or legal guardian. Such exceptions,
it seems, could be crafted so as to preserve access and possession
within the terms provided by State law. Clearly, this kind of
limitation may considerably undermine the ordinance' s ability to
accomplish its original purpose and would also increase already
complex problems of enforcement.
Assuming that a narrower ordinance, as discussed above, would
not contradict State law, it would still have to survive a
preemption challenge. State law does not expressly preempt local
adoption of such regulation. With regard to implied preemption,
concerns expressed in the analysis above at pages 3-4 may also be
applicable here. But, as we noted there, a requirement limiting
access to handguns becomes increasingly susceptible to challenge
as it increasingly impinges on their possession. Here, we have
greatly narrowed such an ordinance' s reach precisely in order to
diminish such impacts.
Nevertheless, even a narrower ordinance remains open to a
serious preemption attack. Preemption by legislative implication
may be found where the subject matter of local regulation has been
so fully and completely covered by general law as to clearly
indicate that it has become exclusively a matter of State
concern. Galvan v. Superior Ct. (1969) 70 Cal. 2d 851, 76 Cal.Rptr.
642, 647 . It can be argued that the statutes relating to minors '
access to ' firearms and ammunition suggest a State regulatory
concern and approach strikingly parallel to those of the City.
Both seek to prevent harm by limiting the circumstances in which
minors may obtain and, ultimately, use deadly weapons and
TO: City Council
FROM: Elizabeth H. Silver, Assistant City Attorney
RE: Regulation of Handguns and Live Ammunition in the Home
DATE: August 7, 1989
PAGE: 7
ammunition. Unlike the City, the State' s approach reflects a
comprehensive regulatory scheme. If the regulation of minors '
access to and possession of firearms or ammunition is found to be
an area impliedly preempted, " . . .there is no room for supplementary
or complementary local legislation. " Lancaster v. Municipal Court
(1972) 6 Cal . 3d 805, 808 , 100 Cal.Rptr. 609, 610. We believe,
therefore, that even a narrowly drafted ordinance is highly
vulnerable to such an attack.
Conclusion
An ordinance which expressly focuses on limiting the access
of minors to handguns or ammunition, while strengthening the City' s
position in a number of respects in the event of a legal challenge,
may nevertheless be preempted by State law.
Summary
Local regulation requiring that persons owning handguns keep
such guns and ammunition in locked enclosures, even if narrowly
focused on preventing access by minors, is likely to be held
preempted by present State law. For this reason, it may prove more
effective to urge adoption of such regulation directly through the
State Legislature. Should the City Council desire to pursue the
adoption of such regulation, however, we recommend that an opinion
be requested from the Attorney General 's office on this issue prior
to enactment of such an ordinance.
MEYERS, NAVE, RIBACK & WEST
Elizabeth H. Silver
EHS:A_K:dlg
cc: Richard Ambrose, City Manager
_ For Of|Al= - I cannot be present tonight, if you
� want l can present this at the next city council meeting ' This
includes my presentation to Congressman Stark 5/20/89.
May 21 , 1989
` Mr. Mayor and Dublin City Council Members:
� Within the last two weeks two incidents involving juveniles
have hit close to this community . An eight year old was severely
wounded in a preventable accident. He discovered a hand gun that
was only hidden from him. The hand gun and other guns in the
house were not locked away from his reach' He and his ten year
� old sister were left alone in their house before school as they
'
had been for several years Last week a 16 year old shot himself
�
' in the head while showing off to friends with a hand gun that had
� been stolen , I would suspect, from a house where again guns were
left around to be easily found or removed '
It appears that the responsibility for leaving that eight
� year old alone in a house where guns are not locked away is no
ones. There are no laws protecting those children from their-
parent' s lack of responsibility , either from leaving them alone
in their house to fend for their own or leeving guns in the house
which are not locked up or kept in such a way as they could not
be loaded or fired ' A sixteen year old is now lying in an area
hospital brain dead because "responsible" adults do not put locks
on their guns or lock them away .
` That eight year old was shot a half block from my house.
That house sits next to a community park . If the incident had
happened that afternoon and the bullet had gone through the
bedroom window someone even one of my children may have been shot
in the park ' The incident hits too close to home'
' Several months ago a deranged man decided to shoot off his
weapon in front of his house at about 7:30 a.m. Fortunately for
us he was apprehended by the police' If he would have waited
till 8:30 a.m. and it had not been a hoiday the children would
have been coming to the school across the street' He could have
just have easily walked across the street to the school and shot
children there ' Just like the Stockton massacre' Two of my
, children go to this Dublin School and would have been on campus.
This incident, again , hits too close to home.
Something needs to be done to protect our children from
ourselves. I doubt these parents even considered they were endan-
gering these children . But they did . At least on of the parents
plans on putting the guns back in their house. It isn ' t fair to
the children . I hope our government is doing something to pro-
tect those children and law abiding citizens who can become
innocent victims themselves.
I presented most of this statement last weekend to Congress-
man Pete Stark . He sees no help on the horizon from the federal
government. He is willing to support local measures. I would
like to see local ordinances protecting the innocent from hand
guns. I realize it is impossible to put guards at our city
borders to keep guns out, but it is in your jurisdiction to, make
penalties governing weapons found on private property that are
not made safe to be kept out of reach of minors. You can also
'
~
. '
. '
'
,
�
. ' dictate penalties for children being left in any situation where
'. they can be endangered '
This city has never had this kind of aggression happen be-
fore. With the increased growth being proposed more incidents
will most likely occur unless you take action . You took action
against CalTrans to protect us on highway 580 which has caused
� less Dubliner injuries then guns have done in Dublin . The gun
problem is every bit as harmful to the innocent citizens of
Dublin . `
In the obituary of Robert Scott, the 20 year old from Liver-
more, shot and killed by his closest friend , the last paragraph
� reads "The family has requested letters of support to local
congressmen and statewide groups in support of stricter gun-con-
trol laws" .
Respectfully ,
� Zev Kahn
Dublin
�
�