NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 1
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SAN JOSE ADDING
PART 6 TO CHAPTER 10.32 OF TITLE 10 OF THE SAN
JOSE MUNICIPAL CODE TO REDUCE GUN HARM BY
REQUIRING GUN OWNERS TO OBTAIN AND MAINTAIN
LIABILITY INSURANCE AND ESTABLISHMENT OF
ANNUAL GUN HARM REDUCTION FEE
WHEREAS, the Constitution of the United States of America affords certain protections to the ownership of firearms; and
WHEREAS, the United States Supreme Court has recognized that the Constitutional protections related to firearms ownership are not unlimited, and can be subject to certain types of governmental regulations; and
WHEREAS, a city’s police power includes the power to regulate firearms and many courts throughout the nation have upheld local regulations related to the ownership or possession of firearms; and
WHEREAS, firearm injuries have a significant adverse public health and safety impact nationally, in the State of California, and locally; and
WHEREAS, each year more than 23,000 United States residents die by firearm suicide, 14,000 die by firearm homicide, and nearly 500 die from unintentional firearm injuries; and
WHEREAS, in California, between 2005 and 2015, nearly 4,000 children and teenagers were killed or injured with firearms, and 533 children and teenagers committed suicide with firearms, according to data from the Center for Disease Control and Prevention; and
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 2
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
WHEREAS, the Santa Clara County Public Health Department issued a report on firearm injuries in April 2018. In 2016, 11% of injury deaths were due to firearms injuries. During the period 2007-2016, there were an average of 46 deaths per year due to self-inflicted/suicide from firearms injuries, and an average of 28 deaths per year due to assault/homicide from firearms injuries. Self-inflicted/suicide accounted for the highest percentage of deaths (59%) from firearms injuries, with assault/homicide accounting for 36% of deaths from firearm injuries; and
WHEREAS, the April 2018 Santa Clara County Public Health Department report on firearm injuries reported that during the period from 2010-2014, there were an annual average of 28 emergency department visits and 12 hospitalizations due to unintentional firearms injuries. During 2010-2014, 31% of emergency department visits and 16% of hospitalizations from firearms injuries were due to unintentional shootings; and
WHEREAS, research published in the American Journal of Epidemiology in 2004 found that regardless of storage practice, type of gun, or number of firearms in the home, having a gun in the home was associated with an increased risk of firearm homicide and firearm suicide in the home; and
WHEREAS, a 2014 review in the Annals of Internal Medicine suggests that access to firearms within the home doubles the risk that family members will become a victim of homicide, and triples the risk of suicide; and
WHEREAS, a study in the New England Journal of Medicine in 2020 found that handgun ownership is associated with eight times greater likelihood for firearm suicide among men, and 35 times greater likelihood of firearm suicide among women; and
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 3
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
WHEREAS, according to the American Academy of Pediatrics, in homes with guns, suicide rates in children and adolescents and the likelihood of accidental death by shooting are each four times higher than in homes without guns; and
WHEREAS, in the past decade, 40% of the suicides committed by children and teens involved guns, and 90% of these suicides were with guns that the victims accessed at their own homes or from a relative’s home; and
WHEREAS, 58% of shooting deaths in children and teens are homicides, and the risk of homicide is three times higher when there are guns in the home; and
WHEREAS, a June 2014 report published by Everytown for Gun Safety and Moms Demand Action which analyzed publicly reported gun deaths nation-wide over a one- year period from December 15, 2012 to December 12, 2013, showed that at least 100 children were killed in unintentional shootings, amounting to nearly two each week; and
WHEREAS, according to research published in Social Science and Medicine in 2007 based on data over a three-year study period from 2001 to 2003, states with higher rates of household firearm ownership had higher rates of firearm homicide but not of non-firearm homicide, and this relationship held across gender, age, income and multiple other variables; and
WHEREAS, a study in the Journal of Urban Health conducted in 2015 estimated there are as many as 4.6 million children in the United States living in homes with loaded unsecured guns; and
WHEREAS, injuries from unintentional shootings, which are generally insurable, comprise more than a third of all gun-related injuries nationally; and
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 4
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
WHEREAS, in some instances, gun owners have been successfully sued for harm resulting from the use of the owner’s firearm by themselves or a third party; and
WHEREAS, auto insurers have used risk-adjusted premiums to reward good driving and incentivize use of airbags and other safety features, and by using a comprehensive public health approach to car safety the United States reduced per-mile auto fatalities by nearly 80% from 1967 to 2017; and
WHEREAS, similarly, insurance-based mechanisms can encourage firearm owners to take safety classes, use gun safes, install trigger locks, or utilize chamber-load indicators, and according to 2018 research published in The Actuary there is evidence that some actuaries and insurance companies are recognizing firearm-related risk through their product offerings, pricing and underwriting decisions; and
WHEREAS, pursuant to the provisions and requirements of the California Environmental Quality Act of 1970, together with related State CEQA Guidelines and Title 21 of the San José Municipal Code (collectively, "CEQA"), the Director of Planning, Building and Code Enforcement has determined that the provisions of this Ordinance do not constitute a project, under File No. PP17-008 (General Procedure & Policy Making resulting in no changes to the physical environment); and
WHEREAS, the City Council of the City of San José is the decision-making body for this Ordinance; and
WHEREAS, this Council has reviewed and considered the "not a project" determination under CEQA prior to taking any approval actions on this Ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SAN JOSE:
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 5
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
SECTION 1. Chapter 10.32 of Title 10 of the San José Municipal Code is hereby amended by adding a Part to be numbered, entitled and to read as follows:
Part 6
REDUCTION OF GUN HARM – LIABILITY INSURANCE REQUIREMENT AND GUN
HARM REDUCTION FEE
10.32.200 Purpose and Findings
A. This Part is passed and adopted in the exercise of the police power of the City, and for the protection of the welfare, peace and comfort of the residents of the City of San José. Specifically, it is the intent of this Ordinance to reduce gun harm.
B. Findings:
1. Firearm injuries have a significant adverse public health and safety impact nationally, in the State of California, and locally; and
2. E ach year more than twenty-three thousand (23,000) United States residents die by firearm suicide, fourteen thousand (14,000) die by firearm homicide, and nearly five hundred (500) die from unintentional firearm injuries; and
3. In California, between 2005 and 2015, nearly four thousand (4,000) children and teenagers were killed or injured with firearms, and five hundred thirty-three (533) children and teenagers committed suicide with NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 6
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22. firearms, according to data from the Center for Disease Control and Prevention; and
4. During 2010-2014 in Santa Clara County, thirty-one percent (31%) of emergency department visits and sixteen percent (16%) of hospitalizations from firearms injuries were due to unintentional shootings; and
5. A 2014 review in the Annals of Internal Medicine suggests that access to firearms within the home doubles the risk that family members will become a victim of homicide, and triples the risk of suicide; and
6. A study in the New England Journal of Medicine in 2020 found that handgun ownership is associated with eight (8) times greater likelihood for firearm suicide among men, and thirty-five (35) times greater likelihood of firearm suicide among women; and
7. Based upon a November 2021 analysis by Dr. Ted Miller, Ph.D. and the Pacific for Institute Research and Evaluation (PIRE), on average, 206 people suffer death or serious injury from gunshots each year in the City of San José; and
8. Conservatively, San José taxpayers annually spend approximately $39.7 million, or approximately $151 per firearm-owning household, to respond to gun violence with such public services as emergency police and medical response, victim assistance, incident investigation, acute and long-term health care, and perpetrator adjudication and judicial sanctioning; and
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 7
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
6.9. Including private costs to individuals and families in the calculation, San José residents incur an annual financial burden of $442 million per year for gun deaths and injuries; and
7.10. Injuries from unintentional shootings, which are generally insurable, comprise more than a third of all gun-related injuries nationally; and
8.11. Auto insurers have used risk-adjusted premiums to reward good driving and incentivize use of airbags and other safety features, and by using a comprehensive public health approach to car safety the United States reduced per-mile auto fatalities by nearly eighty percent (80%) from 1967 to 2017; and
9.12. Liability insurance can reduce the number of gun incidents by encouraging safer behavior and it can also provide coverage for losses and damages related to gun incidents; and
10.13. Programs and services to gun owners and their households can also encourage safer behavior, and provide education and resources to those residents.
10.32.205 Definitions
As used in this Part, the following terms have the following meaning:
A. “Firearm” means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion. Firearm does not include antique firearms as defined by 18 U.S.C. Section 921(a).
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 8
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
B. “Designated Nonprofit Organization” means an entity that qualifies as a nonprofit corporation under the federal internal revenue code and is designated pursuant to the City Manager’s authority under Section 10.32.235. No City official or employee shall sit on the board of directors of the Designated Nonprofit Organization.
10.32.210 Liability Insurance Required
A. Insurance required. A person who resides in the City and owns or possesses a Firearm in the City shall obtain and continuously maintain in full force and effect a homeowner’s, renter’s or gun liability insurance policy from an admitted insurer or insurer as defined by the California Insurance Code, specifically covering losses or damages resulting from any negligent or accidental use of the Firearm, including but not limited to death, injury or property damage.
B. For purposes of this Section, a person shall be deemed to be the owner of a Firearm if such Firearm is lost or stolen until such loss or theft is reported to the police department or sheriff which has jurisdiction in which such Firearm owner resides.
C. Any person who owns a Firearm on the effective date of this Section shall obtain the insurance required by this Section within thirty (30) days of the effective date of this Ordinance, or by a later date certain established in the regulations promulgated by City Manager pursuant to Section 10.32.235.
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 9
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
10.32.215 Annual Gun Harm Reduction Fee
A person who resides in the City and owns or possesses a Firearm in the City shall pay an Annual Gun Harm Reduction Fee to the Designated Nonprofit Organization each year. The date by which payment shall be made annually shall be established in the regulations promulgated by City Manager pursuant to Section 10.32.235. The annual fee will be set forth in the schedule of fees and charges established by resolution of the City Council.
10.32.220 Expenditure of Gun Harm Reduction Fee
A. All monies from the Gun Harm Reduction Fee shall be expended by the Designated Nonprofit Organization on providing services to residents of the City that own or possess a Firearm in the City, or to members of their household, or to those with whom they have a close familial or intimate relationship. Such expenditures may include, but are not necessarily limited to the following:
1. Suicide prevention services or programs;
2. Violence reduction or domestic violence gender based violence services or programs;
2.3. Addiction intervention and substance abuse treatment;
3.4. Mental health services related to gun violence; or
4.5. Firearms safety education or training.
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 10
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
B. No portion of the monies from the Gun Harm Reduction Fee shall be used for litigation, political advocacy, or lobbying activities.
C. The Designated Nonprofit Organization shall spend every dollar generated from the Gun Harm Reduction Fee, minus administrative expenses, exclusively for programs and initiatives designed to (a) reduce the risk or likelihood of harm from the use of firearms in the City of San José, and (b) mitigate the risk of physical harm or financial, civil, or criminal liability that a San José firearm owner or her family will incur through her possession of firearms. Otherwise, tThe City shall not specifically direct how the monies from the Gun Harm Reduction Fee are expended.
D. The designated non-profit shall provide a biannual report to an appropriate council committee and the report may also be provided to the City Council, as directed by the council committee.
10.32.225 Exceptions
The provisions of this PartChapter shall not apply to any of the following:
A. Those persons designated as peace officers pursuant to Chapter 4.5 of Title 3 of Part 2 of the California Penal Code (§830 et seq.), including sworn peace officers, active reserve peace officers and retired peace officers.
B. Those persons who have a license to carry a concealed weapon issued pursuant to California Penal Code § 26150 or § 26155, for as long as these statutes are legally enforceable.
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 11
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
C. Those persons for which compliance with this Part would create a financial hardship. eligible to proceed without paying court fees and costs pursuant to California Government Code § 68632 (a) and (b).
10.32.230 Compliance
A. Insurance requirement. Each person required to obtain and maintain insurance under Section 10.32.210 shall demonstrate compliance with the insurance requirement by completing and executing a City-designated attestation form.
Each such person shall state both the name of the insurance company issuing the policy and the number of the insurance policy on the attestation form, sign the form under penalty of perjury and keep the attestation form with the Firearms where they are being stored or transported. There is no requirement to submit the attestation form to the City. However, eEach person shall complete and sign a new attestation form under penalty of perjury in the event any of the information on the form changes. Each person shall present the form when lawfully requested to do so by a peace officer who knows or has reason to believe that a person possesses a firearm.
B. Fee provisions. Each person shall affix proof of payment of the annual Gun Harm Reduction Fee to the attestation form and keep it with the Firearm or Firearms where they are being stored or transported.
10.32.235 Authority of the City Manager
A. The City Manager is authorized to promulgate all regulations necessary to implement the requirements and fulfill the policies of this Part relating to the reduction of gun harm, including, but not limited, to the following subjects:
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 12
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
1. Processes and procedures related to the implementation of the liability insurance requirement, and forms necessary thereto.
2. Designation of the nonprofit organization that will receive the Gun Harm Reduction Fee, any processes and procedures related to the payment of the fee, and any additional guidelines or auditing of the use of the monies from the fee.
3. Designation of any third-party agency and/or organization that will aid in the implementation of the noticing of the requirements of this Part or any other administrative tasks related to the requirements of this Part.
4. The criteria by which a person can claim a financial hardship exemption from this Part pursuant to Section 10.32.225.C.
B. Regulations shall be published on the City's website.
C. Regulations promulgated by the City Manager shall have the same force and effect of law. Unless a later date is specified in a regulation, a regulation shall become effective upon date of publication.
10.32.240 Enforcement
A. Any violation of this Part shall be punishable by an administrative citation in accordance with the procedures set forth in Chapter 1.15 of Title 1 of this Code relating to the issuance of administrative citations, imposing of administrative fines, right to appeal, and the right to an administrative hearing.
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 13
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
B. The amounts of the fines for violations imposed pursuant to this Part shall be set forth in the schedule of fines established by resolution of the City Council.
C. A violation of this Part is also enforceable through all other civil and administrative remedies available to the City.
10.32.245 Impoundment
To the extent allowed by law, the Firearm or Firearms of a person that is not in compliance with this Part may be impounded subject to a due process hearing.
10.32.250 Fees and Charges
The City Manager is hereby authorized to charge and collect any and all cost recovery fees associated with fulfilling the policies of this Part relating to the reduction of gun harm, including any associated third-party costs. All fees shall be as set forth in the schedule of fees and charges established by resolution of the City Council.
SECTION 2. This Ordinance shall become effective at the expiration of one hundred eighty (180) days after its adoption.
SECTION 3. Consistent with Section 1.04.160 of the San José Municipal Code, should any provision of this Ordinance or its application to any person or circumstance be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable.
NVF:TLC:KML
2/3/2022
T-887.014.004\1894578 14
Council Agenda: 1-25-2022
Item Number: 4.1
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
REVISED – Changes to incorporate Council direction on 1-25-22.
SECTION 4. The City Council of the City of San José takes action on this Ordinance based upon the totality of the administrative record including the facts stated above, the facts stated in the memorandums to the City Council for the January 25, 2022 City Council Meeting, as well as any oral or written testimony at the January 25, 2022 City Council meeting.
PASSED FOR PUBLICATION of title this _____ day of ___________, 2022, by the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
SAM LICCARDO
Mayor
ATTEST:
TONI J. TABER, CMC
City Clerk