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HomeMy WebLinkAboutItem 6.3 Prohibit Concealed Weapons CC Chambers CITY CLERK File # D~~[QJ-~[Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: March 4, 2008 SUBJECT: ATTACHMENTS: RECOMMENDATION: i/ FINANCIAL STATEMENT: None. DESCRIPTION: PUBLIC HEARING: Urgency and Non-Urgency Ordinances Adding Chapter 5.90 to the Dublin Municipal Code relating to Prohibiting Knives and Concealed Weapons in City Council Chambers. Report Prepared by John D. Bakker, City Attorney 1. Urgency Ordinance adding Chapter 5.90 to Dublin Municipal Code relating to Prohibiting Knives and Concealed Weapons in City Council Chambers. Ordinance adding Chapter 5.90 to Dublin Municipal Code relating to Prohibiting Knives and Concealed Weapons in City Council Chambers. Penal Code Section 171 b. 2. 3. 1. 2. 3. 4. Receive Staff presentation; Open public hearing; Close public hearing and deliberate; Waive reading and adopt the Urgency Ordinance, Prohibiting Knives and Concealed Weapons in City Council Chambers (Attachment 1) which imposes an immediate ban. 4/5 vote required; and Waive reading and introduce the Ordinance adding Chapter 5.90 to the Dublin Municipal Code relating to Prohibiting Knives and Concealed Weapons in City Council Chambers. (Attachment 2). 5. The safety and security of all those participating in City Council meetings is of the utmost importance. COpy TO: ------------------------------------------------------------------------------------------------------------- Page 1 of 4 ITEM NO. 6.3 On February 5, 2008, an individual came to City Hall to inquire about agenda items. In conversation with City Staff, he mentioned he would come to the meeting that night to comment on the proposed amendments to the City's Dangerous Weapons Ordinance. He then pulled a knife out of a sheath on his belt, opened the blade, held it upright, and commented that the knife had a 3-112 inch blade. He also commented that he used to be able to take a knife like this on airplanes. At the meeting that night, the same individual addressed the City Council on proposed amendments to the City's Dangerous Weapons Ordinance. At the podium, while ostensibly addressing the agenda item, he indicated that the Police Chief had told him not to show his knife at the meeting. The individual said he wasn't going to show the knife, but if anyone wanted to see the knife he would step outside. He then said "I promise I wouldn't (or won't) stab you with it," then after hesitating he said, looking forward towards the dais where the Councilmembers and Mayor sit and added, "Tempting as it might be in some cases." A few days later, on February 8, 2008, a gunman opened fire at a city council meeting in Kirkwood, Missouri, killing two police officers, two Councilmembers and the Public Works Director. The Kirkwood Mayor was critically injured in the incident. This was not the first violent attack at a city council meeting. Here in California, a former City of Riverside employee opened fire in a city council meeting in 1998. That attack wounded the mayor, two council members and two police officers. As the result of the events described above, staff was requested to prepare an ordinance banning knives and other weapons from City Council Chambers to supplement existing State law. Although staff believes that sufficient grounds exist for an urgency ordinance, staff has prepared both an urgency ordinance and a non-urgency ordinance out of an abundance of caution. The urgency ordinance would be effective immediately and would not be subject to referendum. The non-urgency ordinance would be adopted at a subsequent regular meeting (anticipated to be March 18, 2008) and effective 30 days thereafter; it would supersede the urgency ordinance when it goes into effect. The mechanics of the dual ordinance procedure will ensure that only those charged with violating the ordinance during the time between the effective date of the urgency ordinance and the non-urgency ordinance could challenge the urgency findings. ANALYSIS: California Penal Code Section 171 b was amended in 1988 to make it illegal to bring certain weapons into any local public building or into a meeting subject to the Brown Act. The weapons prohibited include firearms, certain 'switchblade' knives described in Penal Code Sections 653k, knives with blades exceeding four inches and a number of other knives and weapons described in Penal Code Section 12020. Such weapons include but are not limited to guns, weighted clubs, nunchaku, throwing stars, brass knuckles, saps and blackjacks. However, many knives with blades four inches long or less are not prohibited by Penal Code Section l7lb. The City seeks to prohibit from the City Council Chambers all those knives and similar weapons that are not prohibited by Penal Code Section 171 b, to the extent that such legislation is allowed under State law. Penal Code Section 171 b(b )(3) exempts holders of concealed firearm permits from the restriction against bringing guns into local public buildings or meetings. The City - as the owner of the building - seeks to prohibit such permit holders from bringing their weapons into City Council Chambers. Because persons who do not possess such permits are currently prohibited by state law from bringing firearms into City Council Chambers, the ordinance has been narrowly drafted to address only concealed weapon permit holders. State Law Preemption Local legislation that conflicts with state law is preempted by such law and is void. (Sherwin- Williams Co. v. City of Los Angeles, 4 Cal. 4th 893, 898 (1993).) A conflict exists if the local legislation duplicates, Page 2 of 4 contradicts, or enters an area fully occupied by State law, either expressly or by legislative implication. (!d.) Local legislation enters an area that is 'fully occupied' by State law when: 1) the subject matter has been so fully and completely covered by State law as to indicate that it has become exclusively a matter of state concern; 2) the subject matter has been partially covered by State law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or 3) the subject matter has been partially covered by State law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens ofthe state outweighs the possible benefit to the municipality. (Id.) The only case that has considered the preemptive effect of Penal Code Section 171 b is Nordyke v. King, 27 Cal. 4th 875, 883-84 (2002), where the Supreme Court considered whether Penal Code Section 171 b or other statutes preempted an Alameda County ordinance making it a misdemeanor to bring a firearm or ammunition onto county property. (!d. at 882.) The Supreme Court did not consider the preemptive impact of Penal Code 171 b as a whole, but found no preemptive intent in subdivision (b )(7) of Penal Code Section l7lb, noting that it "merely exempts gun shows from the state criminal prohibition on possessing guns in public buildings. . . [and it] does not mandate that local government entities permit such a use." (!d. at 884.) In finding the Alameda County ordinance was not preempted, the court pointed out that the ordinance was limited to county property and "that under Government Code section 23004, subdivision (d), a county is given substantial authority to manage its property, including the most fundamental decision as to how the property will be used, and that nothing in the gun show statutes evinces an intent to override that authority." (Cities enjoy similar authority pursuant to Government Code Section 37351.) This affirmation of local government's ability to supplement Penal Code weapons provisions by legislation is consistent with Yuen v. Municipal Court, 52 Cal. App. 3d35l (1975). In Yuen, a party who was charged for carrying a concealed knife challenged a San Francisco ordinance prohibiting the carrying of concealed weapons while loitering on the grounds that it was preempted by Penal Code Sections 653k and 12020. The Yuen court held that the ordinance was not preempted because "the Legislature has not 'fully and completely' covered the proscriptions against knives so as to indicate that it has become exclusively a matter of state concern" and State laws partially covering the field did not "indicate clearly that a paramount state concern will not tolerate further or additional local action." (!d. at 356-7.) By contrast, inPeople v. Gerardo, 174 Cal. App. 3d Supp. 1 (1985), a fifth appellate district case, in considering a challenge to a City of Commerce ordinance that made it "unlawful for any person to carry on his person, in plain view, any knife or dagger," the court concluded that the Legislature intended Penal Code Section 653k "to except [switchblade-type] knives from local regulation" and found that the ordinance directly conflicted with state law covering the same subject matter. A State appellate court in one district is not bound to follow rulings made in a different district; thus while Gerardo suggests that in the State's fifth appellate district courts are likely to find that the local regulation of switchblade-type knives is preempted, courts in the first appellate district, where Yuen was decided are unlikely to find that the weapons laws preempt local regulation. Dublin is located in the first appellate district. For the reasons given above, it is reasonably clear that the proposed ordinances' provisions regarding knives and concealed firearms that are not otherwise prohibited by state law are not preempted by state law. Impact of State Law on Proposed Ordinance The proposed Ordinance does not contradict Penal Code Section 171 b as they both prohibit certain weapons. The proposed Ordinance does not duplicate Penal Code Section 171 b because proposed Section 5.90.020 addresses only weapons that are not prohibited in public buildings pursuant to Penal Code Section l7lb. The cases discussed above suggest that courts in the first appellate district, where Dublin is located, would be unlikely to find that Penal Code Section 171 b fully occupied the field of regulation of Page 3 of 4 weapons in public buildings and thus prevented local legislation on the issue. These cases likewise suggest that a court in the first appellate district could find that the Penal Code does not require that cities permit everything permitted by Penal Code Section 171 b, especially with regards to the management of city property. The proposed Ordinance contains a severability clause and has been broken into subsections, so that in the event that a portion of the Ordinance is determined to be preempted by State law, the remainder of the Ordinance will be enforceable. Difference Between Un!encv Ordinance and Re2ular Ordinance As noted above, staff is presenting the City Council with two ordinances: one urgency ordinance which will take immediate effect, and one regular ordinance which will become effective in thirty days. In order to ensure that the urgency ordinance is valid, it has been narrowly drafted to address the situation giving rise to the need for its enactment: the possession of knives and concealed weapons at all meetings ofthe City Council. The regular ordinance has been drafted more broadly to apply to all meetings of the City Council as well as meetings of all City Commissions. Applicability of Ordinances to Other City Buildin2s Consistent with the direction received from the Council, the proposed Ordinances would apply only to the possession of knives and concealed weapons in the City Council Chambers. Should the City Council wish to extend the scope of the ordinances to apply to all of the Civic Center or all City-owned buildings, staff would recommend that the Council adopt the proposed ordinances (both urgency and non.:.urgency) in their current form and direct staff to return at a later meeting with a more expansive ordinance. RECOMMENDATION Staff recommends that the City Council: 1) receive the Staff presentation; 2) open public hearing; 3) close the public hearing and deliberate; 4) waive the reading and adopt the Urgency Ordinance relating to Prohibiting Knives and Concealed Weapons in City Council Chambers (Attachment 1) which imposes an immediate ban (a four-fifth vote is required); and 5) waive the reading and introduce the Ordinance Adding Chapter 5.90 to the Dublin Municipal Code relating to a Prohibiting Knives and Concealed Weapons in City Council Chambers (Attachment 2). 1060722.3 Page 4 of 4 Ii '7 ORDINANCE NO._ AN URGENCY ORDINANCE OF THE CITY OF DUBLIN ADDING CHAPTER 5.90 TO THE DUBLIN MUNICIPAL CODE RELATING TO KNIVES AND CONCEALED WEAPONS IN CITY COUNCIL CHAMBERS WHEREAS, Government Code Section 36937 provides that a city council may adopt an urgency ordinance for the immediate preservation of the public peace, health or safety upon a declaration of the facts constituting the urgency, and a four-fifths vote of that city council; and WHEREAS, recent incidents that have occurred in the Dublin City Council Chambers and elsewhere indicate that "it is necessary to prohibit knives and concealed weapons in the City Council Chambers in order to avoid unreasonable risks of harm to members of the public and the City Council; and WHEREAS, the Penal Code of the State of California prohibits the possession of many weapons in local public buildings, but does not prohibit the possession of knives with blades less than four inches long or firearms in the possession of persons who have a concealed firearm permit; and WHEREAS, it is the intention of the City Council of the City of Dublin to prohibit all knives and concealed weapons in the City Council Chambers. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows: Section 1. Chapter 5.90 shall be added to the Dublin Municipal Code to read as follows: Chapter 5.90 DANGEROUS WEAPONS IN CITY COUNCIL CHAMBERS Sections: 5.90.010 5.90.020 5.90.030 Definitions. Dangerous Weapons Prohibited in the City Council Chambers. Exceptions. 5.90.010 Definitions. For the purposes of this chapter, the following words shall have the following meanings set out in this section: "Concealed Firearm" means any device, capable of being concealed, that is designed to be used as a weapon, from which a bullet, shot or other missile of any kind is expelled through a barrel, by the force of any explosion or other form of combustion. "Knife" means any cutting or stabbing weapon, tool, or device except small personal grooming tools, but shall not mean any weapon, tool or device, the possession of which is prohibited in City Council Chambers by California Penal Code Section 171b as it is now and as it may be amended from time to time. '~#t.S 3J4/~t Attachment 1.'"() ~~7 "City Council Chambers" includes the room(s) where the City Council normally meets as well as any room in which the City Council may actually be meeting. 5.90.020 Dangerous Weapons Prohibited in the City Council Chambers. A. No person shall possess a concealed knife inside the City Council Chambers or bring a concealed knife into the City Council Chambers during any meeting of the City Council. B. No person shall possess an unconcealed knife inside the City Council Chambers or bring an unconcealed knife into the City Council Chambers during any meeting of the City Council. C. No person who possesses a concealed firearm permit issued pursuant to the relevant provisions of the California Penal Code shall possess a concealed firearm inside the City Council Chambers during any meeting of the City Councilor bring a concealed firearm into the City Council Chambers during any meeting of the City Council. 5.90.030 Exceptions. A. Section 5.90.020 shall not apply to persons carrying or possessing a knife in conjunction with lawful work performed within and about the Civic Center. B. Section 5.90.020 shall not apply to knives prohibited from public buildings pursuant to Penal Code Section 171b. C. Section 5.90.020 shall not apply to duly appointed peace officers. D. Section 5.90.020 shall not apply to a person that has received a written waiver of Section 5.90.020 signed by the City Police Chief or his or her designee. Section 2. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the Ordinance or their applicability to other persons or circumstances. Section 3. Urgency Findings and Declaration. The City Council finds and declares that this . Ordinance must be adopted as an urgency matter because it is necessary for the immediate preservation of the public peace, health and safety. The following facts and circumstances support such necessity. Regular City Council meetings occur twice per month in the council chambers. All such meetings are open to the public. Such meetings can lead to disagreements and disputes among members of the public, city staff, and city officials. Such disagreements and disputes always have the potential to escalate into violence. Additionally, city staff and officials, such as City Manager, City Attorney, and the members of the City Council, can be the subject of animosity due to their involvement in the enforcement of laws, as was the case in a February 7, 2008 incident in the council chambers in Kirkwood, Missouri that led to 6 fatalities. The incident in Kirkwood highlights that the potential for such violence, while perhaps remote, exists at any meeting, as does a February 5, 2008 incident in the council chambers, in which an individual came to the City Council meeting with a knife that was not prohibited from the council chambers by state law. The individual stated at the meeting that he was tempted to stab certain members of the Council. The City Council is aware that certain weapons are already prohibited from public buildings pursuant to California Penal Code Section 171 b, but it finds that the potential for serious injury to members of the City Council and the public from weapons that are not so prohibited presents an unreasonable threat to the health and safety of the public that should be immediately minimized to the extent permitted by law. Therefore, it is necessary that this Ordinance should go into effect immediately so as to ensure its effectiveness during tonight's meeting and all subsequent meetings in the council chambers. Based on these findings, the City Council finds that this Ordinance should be adopted as an urgency ordinance for the immediate preservation of the public peace, health and safety. 3~1 Section 4. Effective Immediately. This Ordinance shall become effective immediately upon adoption by at least a four-fifths vote of the City Council. Section 5. Posting of Ordinance. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 39633 of the Government Code of California. PASSED, APPROVED AND ADOPTED this _ day of ,2008. AYES: NOES: ABSENT: ABSTAIN: Janet Lockhart, Mayor ATTEST: Carolyn Parkinson, Interim City Clerk 1060715.1 ORDINANCE NO._ AN ORDINANCE OF THE CITY OF DUBLIN ADDING CHAPTER 5.90 TO THE DUBLIN MUNICIPAL CODE RELATING TO KNIVES AND CONCEALED FIREARMS IN CITY COUNCIL CHAMBERS Jf~1 The City Council of the City of Dublin does hereby ordain as follows: Section 1. Chapter 5.90 shall be added to the Dublin Municipal Code to read as follows: Chapter 5.90 DANGEROUS WEAPONS IN CITY COUNCIL CHAMBERS Sections: 5.90.010 5.90.020 5.90.030 Definitions. Dangerous Weapons Prohibited in the City Council Chambers. Exceptions. 5.90.010 Definitions. For the purposes of this chapter, the following words shall have the following meanings set out in this section: "Concealed Firearm" means any device, capable of being concealed, that is designed to be used as a weapon, from which a bullet, shot or other missile of any kind is expelled through a barrel, by the force of any explosion or other form of combustion. "Knife" means any cutting or stabbing weapon, tool, or device except small personal grooming tools, but shall not mean any weapon, tool or device, the possession of which is prohibited in City Council Chambers by California Penal Code Section 171b as it is now and as it may be amended from time to time. "City Council Chambers" includes the room(s) where the City Council normally meets as well as any room in which the City Council or any City Commission may actually be meeting. 5.90.020 Dangerous Weapons Prohibited in the City Council Chambers. A. No person shall possess a concealed knife inside the City Council Chambers or bring a concealed knife into the City Council Chambers during any meeting of the City Councilor any City Commission. B. No person shall possess an unconcealed knife inside the City Council Chambers or bring an unconcealed knife into the City Council Chambers during any meeting of the City Council or any City Commission. C. No person who possesses a concealed firearm permit issued pursuant to the relevant provisions of the California Penal Code shall possess a concealed firearm inside the City Council Chambers during any meeting of the City Councilor any City Commission or bring a concealed firearm into the City Council Chambers during any meeting of the City Council or any City Commission. Attachment 2 6~1 5.90.030 Exceptions. A. Section 5.90.020 shall not apply to persons carrying or possessing a knife in conjunction with lawful work performed within and about the Civic Center. B. Section 5.90.020 shall not apply to knives prohibited from public buildings pursuant to Penal Code Section 171b. C. Section 5.90.020 shall not apply to duly appointed peace officers. D. Section 5.90.020 shall not apply to a person that has received a written waiver of Section 5.90.020 signed by the City Police Chief or his or her designee. Section 2. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the Ordinance or their applicability to other persons or circumstances. Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this _ day of , 2008. AYES: NOES: ABSENT: ABSTAIN: Janet Lockhart, Mayor ATTEST: Carolyn Parkinson, Interim City Clerk b~P California Penal Code Section 171b 171 b. (a) Any person who brings or possesses within any state or local public building or at any meeting required to be open to the public pursuant to. Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of, or Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, the Government Code, any of the following is guilty of a public offense punishable by imprisonment in a county jail for not more than one year, or in the state prison: (1) Any firearm. (2) Any deadly weapon described in Section 653k or 12020. (3) Any knife with a blade length in excess of four inches, the blade of which is fixed or is capable of being fixed in an unguarded position by the use of one or two hands. (4) Any unauthorized tear gas weapon. (5) Any taser or stun gun, as defined in Section 244.5. (6) Any instrument that expels a metallic projectile, such as a BB or pellet, through the force of air pressure, C02 pressure, or spring action, or any spot marker gun or paint gun. (b) Subdivision (a) shall not apply to, or affect, any of the following: (1) A person who possesses weapons in, or transports weapons into, a court of law to be used as evidence. (2) (A) A duly appointed peace officer as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, a retired peace officer with authorization to carry concealed weapons as described in subdivision (a) of Section 12027, a full-time paid peace officer of another state or the federal government who is carrying out official duties while in California, or any person summoned by any of these officers to assist in making arrests or preserving the peace while he or she is actually engaged in assisting the officer. (B) Notwithstanding subparagraph (A), subdivision (a) shall apply to any person who brings or possesses any weapon specified therein within any courtroom if he or she is a party to an action pending before the court. (3) A person holding a valid license to carry the firearm pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4. (4) A person who has permission to possess that weapon granted in writing by a dilly authorized official who is in charge of the security of the state or local government building. (5) A person who lawfully resides in, lawfully owns, or is in lawful possession of, that building with respect to those portions of the building that are not owned or leased by the state or local government. (6) A person licensed or registered in accordance with, and acting within the course and scope of, Chapter 11.5 (commencing with Section 7512) or Chapter 11.6 (commencing with Section 7590) of Division 3 of the Business and Professions Code who has been hired by the owner or manager of the building if the person has permission pursuant to paragraph (5). (7) (A) A person who, for the purpose of sale or trade, brings any weapon that may otherwise be lawfully transferred, into a gun show conducted pursuant to Sections 12071.1 and 12071.4. (B) A person who, for purposes of an authorized public exhibition, brings any weapon that may otherwise be lawfully possessed, into a gun show conducted pursuant to Sections 12071.1 and 12071.4. (c) As used in this section, "state or local public building" means a building that meets all of the following criteria: Attachment 3 '1'i 1 (1) It is a building or part of a building owned or leased by the state or local government, if state or local public employees are regularly present for the purposes of performing their official duties. A state or local public building includes, but is not limited to, a building that contains a courtroom. (2) It is not a building or facility, or a part thereof, that is referred to in Section 171c, 171d, 626.9,626.95, or 626.10 of this code, or in Section 18544 of the Elections Code. (3) It is a building not regularly used, and not intended to be used, by state or local employees as a place of residence.