FEDERAL, STATE AND LOCAL REGULATION OF, AND LITIGATION TO GUNS

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1 City Attorneys Department League of California Cities Annual Conference October 1999 J. Charles Parkin Deputy City Attorney FEDERAL, STATE AND LOCAL REGULATION OF, AND LITIGATION TO GUNS

2 Table of Contents Page State Legislation State Legislation State Legislation Local Ordinance Survey Resources

3 STATE LEGISLATION legislative passed two significant pieces of legislation. First, Penal Code , which requires law enforcement agencies to report guns recovered at crime scenes to the Department of Justice so that firearms can be identified and traced. Second, Penal Code and requires manufacturers in California to be licensed by the Department of Justice and meet minimum security requirements at their facilities, obtain background checks on employees and promptly report lost or stolen firearms. STATE LEGISLATION 1999 SB 23: Assault Weapons and Magazines Senator Don Perata Status: Signed by Governor on July 19, SB 23 expands the current law s provisions by restricting the manufacture, sale, transfer or possession of any semiautomatic assault weapons that have one or more military characteristics (such as pistol grips or folding stocks). Individuals who already own such weapons would be allowed to keep their assault weapons if they registered the weapons with the state within one year. SB 23 prohibits the sale or transfer of ammunition magazines that can hold more than 10 rounds. Current owners could keep their large ammunition magazines but can not sell or transfer them. SB 15: Handgun Safety Standards Senator Richard Polanco Signed by Governor August 27, SB 15 establishes two basic safety standards for handguns - a drop test and a firing safety test. SB 15 is the same as the measure vetoed by Governor Wilson last year. Handguns will be tested by independent laboratories and approved handguns listed by California DOJ. After July 2000, no handgun can be manufactured, or sold by a gun dealer, unless it was on the DOJ approved list. The safety standards are similar to tests developed by the National Institute of Justice for use by law enforcement six drop tests and a 600 round firing performance test. A manually operated safety device to prevent unintentional discharge is also required, which is copied from the 1968 federal 3

4 import standard for handguns. Handguns that are already owned by individuals would not be affected and private sales of such handguns between non-dealer individuals are exempt. The bill provides discretion to law enforcement agencies to allow their personnel to use restricted weapons the agency deems appropriate. The bill may preempt local city and county ordinances that set handgun safety standards, since anti-preemption language was deleted. AB 202: Gun Trafficking & One-Handgun-Per-Month Knox Assemblyman Wally Status: Signed by Governor on July 19, This bill prohibits the purchase of more than one handgun in any 30 day period. Licensed collectors would be exempt. AB 106 Child-Safety Locks Aroner SB 130 Child-Safety Locks Assemblyman Members Jack Scott and Dion Senator Tom Hayden Status: Signed by Governor on August 27, AB 106 and SB 130 are identical and require the State Department of Justice to test and approve child-safety lock devices. The bill requires gun dealers to equip firearms they sell with a DOJ-approved safety device effective January 1, Gun buyers who could prove ownership of an approved gun safe, or prove they purchased an approved safety device within the previous 30 days, will be exempt. AB 491: Increase Penalty for Carrying Concealed Scott Assemblyman Jack Status: Passed Assembly. AB 491 would make it a wobbler to illegally carry a concealed and/or loaded handgun if you are not the registered owner of the weapon. All handguns purchased since 1/1/91 are automatically registered by DOJ. The bill allows people who obtained handguns prior to 1991 to voluntarily register them. In the limited cases where carrying a concealed firearm is already a felony - such as if the person is a convicted felon - the penalty would remain a felony. This is a top priority of the California Police Chiefs. The bill has also been amended to address legal issues related to prohibiting people who are held for 72 hours in a mental health facility from purchasing firearms. AB 491 would provide appropriate due process, allowing the mental health gun prohibition to be enforced again for those held for 72 hour observation. 4

5 AB 32: Gun Dealer Regulations -- Schools Assemblyman Jack Scott Status: Passed Assembly. Passed Senate Public Safety. To Senate floor. AB 32 would prohibit gun dealers from locating new establishments within 1,000 feet of schools, colleges or preschools. Existing gun dealer premises are grand fathered in. In addition, AB 32 would require a background check on all employees of gun dealers who come in contact with firearms and prohibit anyone who fails such a check from coming in contact with any firearms. The bill includes anti-preemption language. AB 1142: Firearms Storage Assemblywoman Nell Soto Status: Passed Assembly. Current law makes it a crime to leave a loaded firearm easily accessible to a minor under 16 if the minor obtains and misuses the weapon. This bill would increase the age to under 18 and toughen the penalties. The bill would also prohibit anyone convicted under this law from possessing a firearm in the future. AB 1097: Regulate Gun Shows Assemblywoman Gloria Romero Status: Passed Assembly. AB 1097 would require gun show promoters to notify law enforcement of gun shows 30 days in advance, provide law enforcement with a list of vendors planning to display weapons at the show, notify all vendors of existing federal, state and local gun laws and require that all guns be secured at the show. The bill also provides for data collection on gun show transactions. AB 1097 also would establish and fund a new agency within DOJ to do undercover work, investigations and prosecutions of gun law violations (both at gun shows and at dealers). AB 295: Regulate Gun Shows Assemblywoman Ellen Corbett Status: Signed by Governor August 27, AB 295 defines gun shows as two or more persons selling 20 or more guns. AB 295 requires gun show promoters to obtain a gun show promoter license from DOJ and notify law enforcement of gun shows in advance. It also gives discretion to local law enforcement to require the gun show to contract for law enforcement 5

6 officers to be present, paid for by the gun show. AB 295 changes current law which allows non-licensed gun sellers to engage in up to six transactions of an unlimited numbers of handguns per year to only allow six handguns to be sold per year before a gun dealer license (FFL) would be required. 6

7 AB 17: Repeal Preemption Assemblywoman Hannah-Beth Jackson Current law restricts the ability of cities and counties to license or register handguns locally, known as preemption. AB 17 would repeal state preemption of licensing and registering handguns. SB 218: Domestic Violence Offenders Gun Seizure Senator Hilda Solis Status: Passed Senate. To Assembly Public Safety. Current law allows police to temporarily seize firearms they see, or find in a consensual search at the scene of a domestic violence incident or assault. This bill would require police to temporarily seize such firearms and hold them for at least 48 hours and at most 72 hours. The bill also codifies current federal law which restricts anyone subject to a restraining order from possessing or purchasing any firearm. The bill has several other non-gun sections. NOTE: There are many other sentence-enhancement penalty bills that increase the penalty for various gun-related crimes. STATE LEGISLATION 2000 Likely 2-Year Bills: May Not Be Considered Until 2000 AB 988: Gun Dealer Regulations - At-Home Dealers Lowenthal Assemblyman Status: Passed Assembly. Some cities and counties have current ordinances that prohibit gun dealers from operating from residential dwellings. This bill would make those restrictions state law. AB 1204: Misdemeanors to Prohibit Gun Purchases Villaraigosa Speaker Antonio 7

8 Current law prohibits certain people from buying or possessing firearms including felons, violent misdemeanants, those under restraining orders, minors and the mentally ill. This bill would prohibit additional misdemeanants in the prohibited class - but has not specifics yet. AB 863: Licensing Bill Assemblyman Mike Honda Current law imposes a 10 day waiting period and background check for most gun purchases. This bill would require all gun buyers after April, 2003 to obtain a firearms license from local police which would include a fingerprint check. There would be a 10 day wait for the firearms license but no wait for subsequent gun purchases. The license would be valid for five years. As a condition of getting the license, applicants would have to list every handgun that they own and reaffirm that handgun ownership list upon license renewal. License holders would be required to report lost or stolen firearms. SB 1212: Delete Liability Protection for Gun Manufacturers Perata Senator Don Status: In Senate Judiciary Committee. Current law provides special protection for gun manufacturers from some product liability lawsuits involving the argument that the dangers of a particular gun outweighs its benefits. This bill would remove that special protective language. AB 392: Brandishing Firearms While Intoxicated Strickland Assemblyman Status: In Assembly Public Safety Committee. This bill would make it a wobbler to brandish a firearm while intoxicated. DEADLINES: Bills with fiscal impact must pass the policy committee by April 23 Bills with no fiscal impact must pass the policy committee by May 14 Bills with fiscal impact must pass fiscal committee by May 28 Bills must pass house of origin (Assembly or Senate) by June 4 Bills must pass second house policy committee by July 16 Bills with fiscal impact must pass second house fiscal committee by August 27 Bills must pass both houses and be sent to governor by September 10 8

9 LOCAL ORDINANCE SURVEY HIGHLIGHTS This survey is reprinted with the permission of the Legal Community Against Violence (LCAV). 1 The LCAV was formed as a fund of the San Francisco Foundation in the wake of the July 1, 1993, 101 California Street Massacre, which left eight people dead and six others wounded. Since 1995, LCAV and The Campaign to Prevent Handgun Violence Against Kids have conducted three annual surveys of California cities and counties to determine the type and number of firearms-related ordinances in this state. The results of those surveys, published in 1996, 1997 and 1998, have shown a dramatic increase in the number of such ordinances statewide. For example, the 1996 survey showed that just 2 local governments had adopted ordinances to ban the sale of junk guns. By August of 1998, 39 cities and counties had adopted such ordinances. As of June 1, 1999, that number had reached 45. Although LCAV is not conducting a formal local ordinance survey in 1999, they closely track firearms-related ordinances on an ongoing basis. This section provides a description of several innovative ordinances and identifies the cities and counties that had adopted those laws of June 1, LCAV will publish the results of the next local ordinance survey in Prohibiting the Sale of Saturday Night Specials The following jurisdictions have enacted legislation to ban the sale of Saturday Night Specials, or junk guns. In addition to being poorly constructed and easily concealable, these handguns lack safety features and are disproportionately used in crime. Alameda Inglewood San Francisco City & County Alameda County Livermore San Jose Albany Los Angeles San Leandro Belmont Los Angeles County San Mateo Berkeley Monterey Park San Mateo County Beverly Hills Norwalk San Pablo Compton Oakland Santa Barbara 1 Legal Community Against Violence (LCAV), 268 Bush Street, PMB #555, San Francisco, CA 94104, Phone: (415) , Fax: (415) , Website: Juliet Leftwich, LCAV Managing Attorney 9

10 Contra Costa County Piedmont Santa Rosa Daly City Pinole Santa Cruz El Cerrito Pleasanton Santa Cruz County Emeryville Pomona Santa Monica Fremont Richmond Union City Half Moon Bay Rohnert Park Walnut Creek Hayward Sacramento West Covina Huntington Park San Carlos West Hollywood 2. Regulating Firearms Dealers a. Explicitly Prohibiting Dealers in Residential Neighborhoods The following jurisdictions have enacted laws expressly prohibiting firearms dealers from operating in residential zones or areas, or from qualifying as a home occupation 2 (i.e., a home business). Alameda Fremont Pinole Albany Hercules Richmond Artesia Lafayette Salinas Berkeley Los Angeles San Francisco City & County Beverly Hills Los Angeles County San Jose Burbank Monterey County 3 San Pablo Contra Costa County Oakland Santa Ana Daly City Palo Alto Santa Monica El Cerrito Pasadena Stockton Fontana Piedmont Vacaville Areas b. Indirectly Prohibiting or Limiting Dealers in Residential The following jurisdictions have enacted ordinances that indirectly prohibit or limit the residential sale of firearms. Common examples of this type of regulation include those that allow only the sale of products manufactured in the residence where they are sold, or prohibit retail sales entirely as a home occupation. 2 Pre-existing residential firearms dealers are sometimes exempted. In addition, some jurisdictions allow exceptions at the police chief s discretion. 3 Monterey County s ordinance only applies to handgun sales. 10

11 Anaheim Merced Porterville Antioch Moreno Valley 4 Redding Campbell Norwalk Solana Beach Colma Pacific Grove Walnut Creek Danville Palm Desert West Hollywood c. Prohibiting Dealers From Operating Near Sensitive Areas The following jurisdictions have enacted laws expressly prohibiting firearms dealers from operating near sensitive areas such as daycare facilities, schools, parks, places of worship or community/recreation centers. All of the jurisdictions listed either prohibit or limit firearms dealers in residential neighborhoods, and many others also prohibit dealers from operating near massage parlors, cardrooms, adult entertainment establishments, businesses selling alcohol, and/or other firearms dealers. 4 Moreno Valley s ordinance only applies to ammunition sales. 11

12 Albany Monterey County 5 Salinas Contra Costa County Oakland San Francisco City & County El Cerrito Palo Alto San Pablo Hercules Pinole West Hollywood Los Angeles Richmond d. Requiring Dealers to Carry Liability Insurance The following jurisdictions have enacted legislation requiring firearms dealers to carry liability insurance, typically with a minimum coverage of at least $1 million. Albany Los Angeles Pleasanton Berkeley Los Angeles County Richmond Beverly Hills Oakland Salinas Fremont Palo Alto San Francisco City & County Hayward Pasadena San Pablo Lafayette Piedmont Santa Monica e. Requiring Dealers to Keep Records of Ammunition Sales The following jurisdictions have enacted ordinances requiring dealers to keep records of all ammunition sales. Beverly Hills Los Angeles Santa Ana Contra Costa County Oakland Santa Monica Hayward Pomona West Hollywood Inglewood San Francisco City & County 5 Monterey County s ordinance only applies to handgun sales. 12

13 f. Requiring Dealer Employee Background Checks The following jurisdictions have enacted laws that generally prevent firearms dealers from obtaining (or retaining) a permit to sell firearms if they, and/or any of their agents, officers or employees who handle or control firearms, are prohibited from possessing firearms under the Penal Code. Jurisdictions requiring the most comprehensive background checks El Cerrito Richmond San Pablo Fremont Sacramento West Hollywood Hercules San Leandro Jurisdictions requiring moderately comprehensive background checks Oakland Palo Alto Salinas Jurisdictions requiring the least comprehensive background checks 6 Alameda Lafayette Pleasanton Berkeley Los Angeles San Diego Beverly Hills Los Angeles County San Francisco City & County Chino Merced 7 Santa Ana Hayward Piedmont Santa Monica g. Requiring Child-Safety Locks The following jurisdictions have enacted laws requiring that a trigger lock, or similar childproofing or disabling device to prevent unintentional discharge, be sold with all handguns. Alameda County Lafayette Sacramento Berkeley Livermore San Diego 6 Where there was doubt about the scope of a background-check provision, it was assigned to this subgroup. 7 Merced s ordinance only applies to handgun sales. 13

14 Beverly Hills Los Angeles San Diego County Calexico Los Angeles County San Francisco City & County Contra Costa County Monterey Park San Jose Daly City National City San Leandro Escondido Oakland San Mateo Fremont Pasadena San Mateo County Half Moon Bay Piedmont Union City Hayward Pleasanton West Hollywood Imperial Beach Richmond 3. Imposing a Tax on Businesses Selling Firearms The following jurisdictions have enacted a tax on businesses selling firearms. 8 Berkeley Los Angeles San Francisco City & County El Monte Oakland San Leandro 4. Prohibiting Sales of High-Capacity Ammunition Magazines The following jurisdictions have enacted ordinances that prohibit the sale of high-capacity ammunition magazines. Beverly Hills Sacramento West Hollywood Los Angeles San Francisco City & County 8 Pursuant to Proposition 218, adopted in November 1996, all general taxes imposed by local governments on or after January 1, 1995, require voter approval. Oakland and Berkeley voters passed gross receipt taxes (in June and November 1998, respectively) which apply to all merchandise sold by businesses that sell firearms. San Leandro voters passed a tax on firearm sales in June The remaining jurisdictions adopted gross receipts taxes prior to

15 RESOURCES Educational Fund to End Handgun Violence Join Together Online Firearms Litigation Clearinghouse 441 Stuart Street th Street N.W., Suite 603 Boston, MA Washington, DC Telephone: (617) Telephone: (202) Facsimile: (617) Facsimile: ( Website: Website: Center to Prevent Handgun Violence 1225 Eye Street NW, Suite 1100 Washington, DC Telephone: ( Facsimile: (202) Website: Official California Legislative Information Website: Legal Community Against Violence (LVAC) 268 Bush Street, PMB #555 San Francisco, CA Telephone: (415) Facsimile: (415) Website: The Pacific Center for Violence Prevention Website: National Rifle Association Website: The Help Network Website: 15

16 Charles Parkin Mr. Parkin joined the City Attorney s office in 1995 working in the Torts Litigation Section specializing in the defense of personal injury cases brought against the City and its employees. He currently serves in the General Law Section with a focus on matters related to Police and Fire department issues. Prior to that time, he worked for the City of Long Beach with the Department of Oil Properties. Mr. Parkin obtained his Bachelor s degree in Business Administration from California State University at Long Beach and his Juris Doctorate from Pacific Coast University, School of Law. Mr. Parkin is a member of the Joseph A. Ball and Clarence S. Hunt, American Inn of Court, Long Beach Bar Association and serves on the Board of Directors for the Long Beach City Employees Federal Credit Union.