EAST PALO ALTO
CITY COUNCIL
STAFF REPORT
DATE: March 21, 2023
TO: Honorable Mayor and Members of the City Council
VIA: John D. Le, City Attorney
BY: John D. Le, City Attorney
SUBJECT: Local Gun Control Ordinance
Recommendation
Introduce an ordinance amending various Articles of Chapter 9.24 (Dangerous Weapons) and adding a new Article V (Firearms Storage) of the East Palo Alto Municipal Code (EPAMC) requiring gun owners within the City’s jurisdictional limits to provide safe firearm storage.
Alignment with City Council Strategic Plan
This recommendation is primarily aligned with:
Priority No. 1: Enhance Public Safety and Emergency Preparedness Priority No. 6: Create a Healthy and Safe Community
Background
On January 24, 2023, the City Council received a request that the City of East Palo Alto (City) adopt a “Safe Storage Ordinance”. Additionally, staff is aware the California Legislature has commenced drafting a bill (SB 8) that would require gun owners to procure insurance, which is based on a local ordinance adopted by San José’s City Council. This agenda report recommends that the Council adopt a safe storage ordinance and receive staff’s report concerning possible adoption of a local ordinance concerning insurance requirements for gun owners.
Analysis
Safe Storage Ordinance
At the outset, the Council should be aware that state law currently already requires safe storage pursuant to SB 172 (Stats. 2019, Ch. 840). The bill requires firearms, loaded or unloaded, to be safely stored when the owner is outside of their residence. A violation of SB 172 is a misdemeanor and may carry a 10-year firearms prohibition. Adoption of a local ordinance would provide for additional penalties and enforcement.
Safe Storage Ordinances are fairly common. Various cities in the Bay Area have adopted them, including Alameda, Belmont, Burlingame, Campbell, Colma, Emeryville, Foster City, Hillsborough, Millbrae, Pleasant Hill, Portola Valley, Redwood City, San Bruno, San Carlos, San Mateo, San Francisco, and South San Francisco.
The City Attorney’s Office has evaluated a safe storage ordinance and this analysis takes into consideration constitutional limits. By way of background, cities are authorized to enact gun control ordinances that do not conflict with and are not preempted by federal and state law.
While the U.S. Supreme Court held in D.C. v. Heller, 554 U.S. 570 (2008) and McDonald v.
City of Chicago, Ill., 561 U.S. 742, 786 (2010) that the Second Amendment protects the right to use firearms for self-defense, courts have since generally upheld the police power of states and municipalities to regulate firearms and ammunition. The California State Legislature has enacted numerous firearm safety laws, but additional options for regulation remain available to cities.
If adopted, the safe storage ordinance would require firearm owners to maintain the firearms in their residence either in a locked container or disabled with a trigger lock. This requirement helps reduce the risk of firearms-related suicides and accidental shootings. In addition, it would reduce the risk of theft of such firearms during home invasions. The proposed ordinance still allows for firearms to be used for protection within the home, in accordance with U.S. Supreme Court decisions interpreting the Second Amendment, by waiving the locked or disabled requirements when firearms are otherwise lawfully carried on the person. Notably, the proposed safe storage requirements are similar to those enacted by the City of San Francisco, which were upheld after being challenged in Jackson v. City and County of San Francisco,746 F.3d 953 (9th Cir. 2014).
To encourage the reporting of lost or stolen firearms and assist law enforcement with finding missing firearms, staff recommends that people who report lost or stolen firearms within 24 hours shall not be subject to criminal prosecution for violation of safe storage requirements.
While California Penal Code § 25250 already requires gun owners to report lost or stolen firearms within five days, staff recommends encouraging quicker reporting of lost or stolen firearms as time is of the essence when tracking missing firearms. The recommendation to encourage reporting lost or stolen firearms is balanced with deterrence efforts by still allowing discretion for administrative citations for safe storage violations.
Finally, the proposed penalties for violations of the safe storage provision include administrative citations and fines, as well as criminal prosecution punishable by fines and/or imprisonment.
San José’s Gun Harm Reduction Ordinance
On February 8, 2022, the San José City Council adopted the “Gun Harm Reduction Ordinance,” the first of its kind in the nation. That local law went into effect early this year on January 1, 2023. The ordinance requires firearm owners to obtain and maintain liability insurance and pay an annual gun harm reduction fee, although the fee is not currently in effect.
More specifically, the ordinance requires San José residents that own or possess a firearm to obtain and continuously maintain a homeowner’s, renter’s or gun liability insurance policy that specifically covers losses or damages resulting from accidental use of the firearm, including but not limited to death, injury, or property damage. Here are additional notable aspects of the local law:
· Insurance limits are not specified; only that insurance must be obtained for all firearms. · The law exempts three categories of gun owners: 1. Designated peace officers, 2.
Owners with a concealed carry permit, and 3. Owners who would experience a financial hardship from having to comply.
· Owners must also sign an “attestation form” which must be kept where the guns are stored.
· Failure to comply (or file an attestation form) could result in a $250.00 citation imposed by the SJPD.
SB 8 (Insurance Requirements)
A new bill (SB 8), modeled after San José’s ordinance, was recently introduced by two senators (Catherine Blakespear, D-Encinitas, and Nancy Skinner, D-Berkeley), and would similarly require gun owners to purchase liability insurance for the negligence or accidental use of their firearms. Although the bill is currently not available for public review, it is expected to be based on a bill introduced by Senator Skinner last term (SB 505)1. New York is also considering a similar bill (SB S4946).
At this time, given that the bill is still under consideration/development and its controversial nature2, staff recommends waiting to see how the legislation plays out at the state level before adopting a local ordinance.
Fiscal Impact
There are no fiscal impacts associated with the proposed action.
Public Notice
The public was provided notice by making the agenda and report available on the City’s website and on a bulletin board located at City Hall: 2415 University Avenue, East Palo Alto.
Environmental
The proposed action is not a “project” under California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15378 and Public Resources Code section 21065 because it does not: (1) approve a project or result in a direct physical impact on the environment, or (2) contemplate known future projects, and as such, no known environmental impacts are known at this time. Instead, the proposed action would clarify procedural aspects related to the implementation of locally adopted building and other related codes. 1 Bill Text - SB-505 Civil law: firearms liability and insurance. (ca.gov) 2 California insurance bill aims to hold gun owners financially responsible for negligence (ktvu.com); New Proposed Bill Would Require CA Gun Owners to Carry Liability Insurance (sfist.com) As a separate and independent basis, the proposed action is exempt from CEQA pursuant to CEQA Guidelines section 15061(b)(3) because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
Attachments
1. Proposed Ordinance