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HomeMy WebLinkAboutItem 7.1 RegulationJunkGuns (2) CITY CLERK File # D{3j[aJ[5j-[BJ[Q] -'> ..... .. AGENDA STATEMENT CITY COUNCIL MEETING DATE: AUGUST 13, 1996 SUBJECT: Regulation of "Junk Guns" (Report prepared by Elizabeth H Silver, City Attorney) '.. . . EXIllBITS ATTACHED: 1. Minutes from July 9, 1996 Council Meeting 2. Memorandum to City Council from City Attorney re regulation of "junk guns" 3. Survey of Alameda and Contra Costa County cities' actions regarding junk gun sales ban RECOMMENDATION: ~Consider report FINANCIAL STATEMENT: None DESCRIPTION: At the July 9, 1996, Council meeting, in response to comments from the public, Councilmember Moffatt asked that the staff provide information regarding the regulation of ''junk guns" or "Saturday Night Specials." (Exhibit 1.) .~.~~ ':.:::.e City Attorney has researched the question of the legality of a ban on the possession and sale of "junk guns" or "Saturday Night Specials." Her memorandum (Exhibit 2) concludes that a city ordinance banning the possession or ownership of such guns would be preempted by state law, thus precluding any regulation by the City, and that a city ordinance banning the sale of such guns is probably also preempted by state law. - '.' ..... '. . Staff conducted an informal survey of the cities in Alameda County and Contra Costa County regarding their consideration of a ban on the sale of Saturday Night Specials. The survey, which is current as of on August 7, is attached as Exhibit 3. Several cities througho~~ the s~te_hav~. enac!ed ordinanc~s_ banning the sale of weapons commonly referred to -as "Saturday Night Specials" or "junk guns." A lawsuit has been filed challenging the legality of the City of West Hollywood's ordinance which bans the sale of "Saturday Night Specials." The City of West Hollywood expects the trial court to decide the case within the next four to five months. An appeal, which is likely, will take another year to 18 months. Because of the likelihood of a lawsuit challenging local ordinances banning the sale of junk guns, the City Attorney of San Pablo has prepared a "Joint Exercise of Powers Agreement" which would require each city party thereto to contribute $5000 toward the cost of defense of a legal challenge to any of the cities' ordinances banning junk guns. The agreement would become effective only if signed by seven cities. /.~ recommends that the Council receive the report and provide staff with direction, if appropriate. COPIES TO: ITEM NO. ~ Gun Issues (585-80) Marjorie laBar, 11707 Juarez Lane asked that the topic of the City joining with other ..A1ameda County cities in banning junk guns be placed on the agenda as soon as possible. It's extremely important. These guns have no purpose other than doing great bodily harm. There's no need for them to be sold in the City. Cm. Moffatt stated he understood that the gun shop in Dublin does not sell these types of weapons. If the other cities put a ban on them, we should not be the only holdout and at least have a public hearing on this so residents can have their say. He also recoffi.111ended that this be put on a future agenda. . .Mr. Ambrose asked about a date and advised that there :will be 9 public hearings scheduled at the next City Council meeting. Tne Council directed that it be put on the agenda as soon as possible and as soon as is practical. Cm. Barnes noted that Cm. Howard was absent due to a family medical emergency. Her daughter is in Kaiser Hospital with appendicitis. .............................+............................ .~~NSENT CALENDAR 1:.5 p.m. . On motion of Cm. Barnes, seconded by Cm. Moffatt, and by unanimous vote, the Council took the following actions: Approved (4.1) Minutes of Regular Meeting of June 25, 1996; Authorized (4.2 600-30) Staff to advertise for bids for the Dougherty Hills Slope Repair; Adopted (4.3 810-70) RESOlUTJONNO. 74 - 96 ESTABUSHING AN EASTERN DUBUN SOUD WASTE MANAGEMENT PLAN . / ern' COUNCIL MINUTES VOLUME. 15 REGULAR MEETING July 9, 1996 PAGE 347 EXHIBIT 1 MICHAEL R. NAVE STEVEN R. MEYERS ELIZABETH H. SILVER MICHAEL S. RlBACK KENNETH A. WILSON CLIFFORD F. CAMPBELL MICHAEL F. RODRlQUEZ KATHLEE1'o: FAUBION. AICP WENDY A ROBERTS DAVID W SKINNER STEVENT MATIAS RICK W. JARVIS LARlSSA M. SETO DEBBIE F. LATHAM WAYNE K SNODGRASS MEYERS, NAVE, RIBACK, SILVER & WILSON A PROFESSIONAL LAW CORPORATION SANTA ROSA OFFICE . GATEWAY PLAZA 777 DAVIS STREET, SUITE 300 SAN LEANDRO, CALIFORNIA 94577 TELEPHONE: (510) 351-4300 FACSIMILE: (510) 351-4481 555 FIFTH STREET, SUITE 230 SANTA ROSA, CA 95401 TELEPHONE: 17071 545-8009 FACSIMILE: 1707) 545-6617 OF COUNSEL ANDREA ). SALTZMAN MEMORANDUM TO: City Council City of Dublin DATE: August 5, 1996 FROM: Elizabeth H. Silver City Attorney RE: Legality of Local Ordinance Regulating "Junk Guns" . A. Question Presented Is the City of Dublin's ability to legislatively ban the sale or possession of "junk guns" preempted by state law? B. Brief Answer Any local ordinance which prohibited the ownership or possession of "junk guns" (also referred to as "Saturday Night Specials") would most likely be preempted by state law. With regard to ordinances prohibiting the sale of such handguns, it is very difficult to predict whether a court would find such an ordinance preempted. However, there is some legal authority -- albeit not at all conclusive -- supporting a preemption finding, making a finding of preemption slightly more likely than not. C. Discussion Pursuant to its police power, a city may enact legislation concerning firearms, subject to the requirement that such legislation not conflict \-vith general laws of the state. . "Conflicts exist if the ordinance duplicates, contradicts, or enters into an area fully .' l) EXHIBIT 2 . . . 3 TO: FROM: RE: DATE: PAGE: City Council, Citv of Dublin / ~ Elizabeth H. Silver, City Attorney Legality of Local Ordinance Regulating "Junk Guns" August 5, 1996 2 occupied by general law, either eX"pressly or by legislative implication." Lancaster v. Municipal Court (1972) 6 Cal. 3d 805,807-08,100 Cal. Rptr. 609 (1972) (cites omitted). I. Duplication. There appears to be no single, universally accepted definition of what constitutes a "Saturday Night Special."! However, taking the term to refer generally to small, cheaply-made handguns, no state statute prohibits the sale or possession of such guns. Therefore, any local ordinance which does so would not duplicate state law. 2. Contradiction No California statute eA"pressly states that any person is allowed to possess or purchase Saturday Night Specials. Therefore, any local ordinance banning their sale or possession would not contradict state law. 3. Express Preemption The state has expressly occupied the field -- that is, announced its intention to preclude local regulation -- with respect to several aspects of firearms control. The two - provisions most important for our purposes are California Government Code s530712, which provides that state law occupies the entire field "of regulation of the registration or ! 'Several California cities (Compton, Oakland and West Hollywood) have enacted ordinances banning most sales of Saturday Night Specials. These ordinances generally define such guns by a variety of criteria, including their concealability, the metals of which they are constructed, and their design and features. 2 Gov. Code s5307l states as follows: 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 provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code. TO: FROM: RE: DATE: PAGE: City Council, City of Dublin Elizabeth H. Silver, City Attorney Legality of Local Ordinance Regulating "Junk Guns" August 5, 1996 3 . licensing" of firearms; and Penal Code sI2026(b)3, which provides that no permit or license can be required to "purchase, ovvn, possess, keep, or carry" a handgun in one's home or place of business. These and other state statutes do not preempt the entire field of firearms control. For example, in Galvan v. Superior Court (1969) 70 Cal. 2d 851,76 Cal. Rptr. 642, the Supreme Court held that an ordinance requiring registration of firearms was not preempted by Penal Code S 12026's prohibition on permitting or licensing. As the court noted, if the Legislature had intended S 12026 to also bar firearms registration, it could easily have said so. 76 Cal. Rptr. at 642-27.4 See also Olsen v. McGillicuddy (1971) 15 Cal. App. 3d 897, 902, 93 Cal. Rptr. 530 (holding that by enacting Gov. Code s53071, the Legislature" did not intend to exclude municipalities from enacting further legislation concerning the use of firearms"); Doe v. City and County of San Francisco (1982) 136 Cal. App. 3d 509, 516,186 Cal. Rptr. 380 (noting that "the Legislature has not prevented local governmental bodies from regulating all aspects of the possession of firearms"). . However, any municipal ordinance which prohibits the ownership or possession of Saturday Night Specials would probably be expressly preempted by Gov. Code s53071, pursuant to Doe v. City and County of San Francisco, supra. At issue in Doe was a San Francisco ordinance prohibiting possession of all handguns, with certain exceptions. One exception related to persons who had obtained a permit to carry a - handgun pursuant to Penal Code s12050 (which allows sheriffs and police chiefs to issue permits to carry handguns, either openly or concealed). Since the San Francisco ordinance 3 Penal Code & 12026(b) states as follows: 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 prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person 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. 4 The ordinance at issue in Galvan did not conflict with Gov.Code &53071 because that statute had not yet been enacted. . './ . TO: FROM: RE: DATE: PAGE: City Council, City of Dublin Elizabeth H. Silver, City Attorney Legality of Local Ordinance Regulating "Junk Guns" August 5, 1996 4 prevented anyone from possessing a handgun who had not obtained a Penal Code S 12050 permit, the ordinance had the effect of requiring would-be handgun owners to obtain S 12050 permits if they vvished to possess handguns. In imposing such an indirect permit requirement, the Coun held that the San Francisco ordinance ran afoul of Penal Code S 12026(b)'s prohibition on requiring a permit in order to possess a handgun in one's residence or business. Since neither Penal Code S12026 nor Gov. Code S53071 (nor any other state statute) eA"pressly occupies the field of -- that is, provides that cities or other local entities cannot legislate in the areas of -- the sale of guns, including Saturday Night Specials, I do not believe that the City's ability to enact legislation prohibiting the sale of Saturday Night Specials would be eA'Pressly preempted. 4. Implied Preemption . Implied preemption occurs when state law prohibits local regulation in a specified area by implication5, rather than eA"pressly. Here, it seems quite likely that any local ordinance which precludes the ovmership or possession of Saturday Night Specials would be impliedly preempted by Penal Code S 12026. .As Doe v. Citv and Countv of San Francfsco noted, "[i]t strains - - reason to suggest that the State Legislature would prohibit licenses and permits but allow a ban on possession." 136 Cal. App. 3d at 518. See also 65 Ops. Atty. Gen. 457 (1982) (concluding that an ordinance banning possession of handguns would be impliedly preempted "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"). . 5 An implied intent to prohibit local regulation exists where "(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclUSively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern vvill not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the locality." Shenvin-vVilliams Co. v. City of Los Angeles (1993) 4 Cal. 4th 893, 897. 5 TO: FROM: RE: DATE: PAGE: City Council, City of Dublin Elizabeth H. Silver, City Attorney Legality of Local Ordinance Regulating "Junk Guns" August 5, 1996 5 . The question vvith regard to a local ordinance banning the sale of Saturday Night Specials is considerably more difficult. No reponed California case has addressed this issue. However, the Attorney General has opined that a local ordinance prohibiting the sale of Saturday Night Specials would be impliedly preempted by state law. In 77 Ops. Atty. Gen. 147, an opinion provided in response to a question on local regulation of ammunition sales, Attorney General Lungren stated in passing that the Legislature has "so thoroughly occupied this field [of firearms sales] that we have no doubt that regulating firearms sales is beyond the reach of local governments." Id. at 150.6 While this opinion lacks the precedential force of a court decision, an opponent of a local Saturday Night Special sales ban could cite the Attorney General's opinion as authority, and a court might find it persuasive. On balance, while it is very difficult to predict whether a court would conclude that a local ordinance prohibiting sales of Saturday Night Specials would be impliedly preempted by state law, a finding of implied preemption seems more likely than not. . Very truly yours, MEYERS, NAVE, RIBACK, SILVER & WILSON - LlSfz~ Elizabeth H. Silver EHS:WKS:dka:rja J :\WPD\MNRSw\114\MEMO\0 I \JUL Y96\GUNBAN.730 6 The Legislative Counsel has reached the same conclusion in an opinion letter, although the letter cannot be cited as legal precedent. . 10 ~ c;.TRA COSTA COUNTY CITIES II ., . CITY Introduced! Adopt.ed I . Antioch Nut interested Brentwood Clayton City Atton1cy drafting ordin;mc~ Concord Not interested Danville El Cerrito Int.roduced Lafayette NoL inLeresteu Martinez City Attorney drafting urdinancc Moraga Not interested Orinda Not interested Pinole Adopted Pittsburgh i Pleasant. Hill llichmond : San Pablo Adopted Walnut Creek m X ::c - OJ - -t w . ALAMEDA COUNTY CITIES . . C CITY II Introduced! Ad.?ptcd j Alameda. Annpte>d Albany City.Attorney Drafting ordinance to be introduced in September Berkeley Adopted Emeryville Introduced Fremont Considering H~yw~rd Adopted Livermore Newo.r1</Union City UC-Introduccd New-Considering Oakland Arlopted Piedmont Pleasnnton City Attorney drafting ordinance to be introduced Sept or Oct San Leandro City Attorney drafting ordinance