Local Firearms Regulations
Follow Up Study Session
Presented By:
Office of the City Attorney
November 2, 2022
2City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Council expressed interest in further exploring the
following local ordinances:
• Mandatory gun owner liability insurance
• Definition of “sensitive places”
• Prohibiting licensed gun dealers from releasing
firearms until the Dept. of Justice completes the
buyer’s background check.
Council Direction from Study Session
of August 30, 2022
3City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Liability Insurance
4City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Insurance that provides financial protection against
claims arising from injuries or damage to other persons or property caused by the insured’s negligent acts.
• Common types: auto, homeowners, commercial
• Covers:
• Insured’s attorney’s fees and other legal expenses
• Settlement/judgment up to the policy limit
• Does not cover:
• Insured’s intentional or criminal acts, punitive damages, fines or penalties.
What is Liability Insurance?
5City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Provides a source of funds (up to policy limits) to
compensate victims of a shooting if caused by the
negligence of the gun owner, such as:
Negligent handling of the firearm.
Failing to safely store the firearm.
Negligently supervising use of the firearm.
Negligently entrusting (e.g. loaning) the firearm.
• Encourages responsible gun ownership.
• Benefits gun owners by protecting them from
financial losses associated with a lawsuit.
Benefits of Gun Owners Liability Insurance
6City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Standard homeowners/renter’s insurance includes
personal liability coverage that may cover negligence
associated with ownership of a firearm.
• Some companies sell stand-alone gun owners’ liability insurance policies; uncertain if such policies are widely available, cost of premiums, and coverage limits.
• Insurance only covers negligence; California Insurance Code Section 533 prohibits insurers from covering
intentional or criminal acts.
May cover foreseeable injuries to 3rd parties caused by the insured’s negligence.
Will not cover intentional shootings by the insured.
Types of Gun Owners Liability Insurance
7City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • First city in the U.S. to require gun owner insurance. • Insurance information/self-attestation must be kept
with the firearm where being stored or transported.
• No mandatory minimum policy limits in ordinance or
regulations adopted by the San Jose City Manger.
• Exemptions for peace officers, CCWs, financial hardship Note: Penal Code Section 26190(g) prohibits a local agency from requiring insurance as a condition of a CCW permit. • Private right of action (allows private lawsuits)
• “Gun harm reduction fee”
• Pending 2nd Amendment challenge in federal court
San Jose Municipal Code Chapter 10.32, Part 6
8City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Exemptions
Peace officers (active/retired)?
Active military?
CCW holders?
Low income or financial hardship waiver process?
• Policy limits
Auto minimum liability is “15/30” ($15,000 per person, $30,000 total per accident) – not increased since 1974. • Penalties for violation
Infraction, misdemeanor, or wobbler?
Considerations for a Sunnyvale Ordinance
9City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Council Questions and Feedback
Liability Insurance
10City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Sensitive Places
11City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Recent Supreme Court case, New York Rifle & Pistol
Association v. Bruen, says guns can be restricted in
“sensitive places.”
• Failed Calif. bill, SB 918, would have defined sensitive places in California law.
Bill failed because it was introduced as urgency
legislation requiring 2/3 vote; failed by 2 votes.
May be reintroduced next year, probably as non-
urgency legislation, effective 1/1/24.
• NRA Western Regional Director made statements
implying that a legal challenge was likely.
Sensitive Places
12City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • CCW holders can generally carry firearms in these places:
Public places, public streets, and motor vehicles (PC § 25850) State/local public buildings and gov’t meetings (PC § 171b) • CCW holders cannot carry firearms in these places:
Polling places (Elections Code § 18544)
Schools, colleges, universities, playgrounds and athletic fields on school grounds, and youth centers (PC § 626.9, 626.95) Courtrooms if a party to an action (PC § 171b) (most courts go further with locally adopted security rules)
Jails and prisons (PC § 4574)
Federal buildings, federal courthouses, U.S. post offices, airports beyond TSA checkpoints.
Existing Laws
13City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 SB 918 would have prohibited CCW holders from carrying
concealed weapons in a long list of places:
• Childcare, preschools, schools, colleges, universities • Playgrounds, parks, athletic facilities, youth centers, libraries • State/local public buildings and public parking facilities • Polling places
• Buses, trains, airports, and other public transit property • Hospitals, medical offices, nursing homes
• Bars/restaurants serving alcohol
• Public events that are licensed by local/state entities • Stadiums, arenas, zoos, amusement parks
• Financial institutions
• Places of worship and commercial establishments open to the public unless the operator/owner posts a sign allowing CCWs Sensitive Places Defined by SB 918
14City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Opponents of a New York law defining “sensitive
places” have argued that the law defined non-sensitive
places as “sensitive”.
• On Oct. 6, 2022, a New York District Court blocked
several provisions of the law, finding that the state
went too far in defining “sensitive places.” The state is appealing.
• On Oct. 20, 2022, another New York District Court
blocked the law with respect to churches, finding no
evidence that restricting guns in places of worship is
part of the nation’s historical traditions.
Potential Legal Challenges
15City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Lessons from the New York cases re sensitive places:
• The government has the burden to “sift the historical record” for evidence of historical traditions or laws
demonstrating that guns were not permitted in
analogous places in 1791.
• Such evidence may not exist for certain locations, or may be inconclusive or conflicting.
Some colonial-era laws actually required men to carry firearms.
Laws differed in different towns/cities/states.
Difficulty drawing analogies between modern urban
environments and places that existed in the 18th century.
Potential Legal Challenges
16City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Exemptions?
SB 918 sensitive place regulations apply to persons who obtain CCWs under Penal Code § § 26150-26155 or 26170.
SB 918 restrictions would not apply to persons with other statutory authorizations (e.g., peace officers, retired peace officers, licensed security guards).
• Places: same as SB 918 or more limited?
Signage at churches and commercial establishments
• “CCWs welcome” to allow?
• “No CCWs” to forbid?
• Penalties for violation: Infraction, misdemeanor, or
wobbler?
Considerations for a Sunnyvale Ordinance
17City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Council Questions and Feedback
Sensitive Places
18City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Background Checks
19City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Prohibited persons: certain persons are legally
prohibited from owning or possessing firearms due to
criminal convictions, restraining orders, or involuntary mental health commitments.
• Federal law requires licensed firearms dealers to initiate a background check prior to sale of a firearm to ensure that the buyer is not a prohibited person.
• The Calif. Dept. of Justice (DOJ) acts as the dealer’s point of contact for these background checks.
California is one of only 12 states where a state agency conducts firearms background checks.
In other states, the FBI conducts the background checks.
Buying a Firearm in California:
Is the Buyer a Prohibited Person?
20City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • The firearms dealer initiates the background check by submitting an electronic form to the Calif. DOJ called the Dealer Record of Sale (DROS).
• After receiving the DROS, the DOJ staff check the buyer’s identity against information in the federal NICS database and various state databases.
• The DOJ’s task is to determine if there is anything in the buyer’s record that would prohibit the person from
owning or possessing a firearm.
The Background Check Process
21City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Under California law, the DOJ has ten days to
determine if the buyer is a prohibited person.
• If the DOJ determines that the buyer is a prohibited
person, the dealer is immediately notified.
• The dealer notifies the buyer using a standard form
that explains the buyer’s options for appealing the
DOJ’s determination.
• It is a violation of state and federal law for a
firearms dealer to deliver a firearm to a prohibited
person.
Ten-Day Waiting Period
22City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Various factors can delay a background check:
Errors in completing the DROS form.
Buyer’s name or other identifiers partially match a
prohibited person in the database.
Data is missing in the database (e. g., missing
disposition or missing crime classification).
Increased DOJ workload due to firearms purchase
activity.
Staffing shortages at agencies that DOJ staff need to contact for follow-up (e.g., courthouses, mental
hospitals, etc.)
Delays in Completing the Background Check
23City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Under Penal Code 28220(f), the DOJ may notify the
dealer that the determination is temporarily delayed
for up to 30 days for the following reasons:
The buyer was taken into custody for a mental health
hold and DOJ needs to verify they meet the criteria to
be prohibited from owning firearms.
The buyer was arrested or charged with a crime and
DOJ needs to determine if they were convicted.
The buyer may be attempting to purchase more than
one handgun or semiautomatic centerfire rifle in a 30-
day period, and DOJ needs to verify if this is the case.
Thirty-Day Extension
24City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • If the DOJ is unable to reach a final disposition within 30 days from submittal of the DROS, the DOJ will
notify the dealer that:
The buyer’s eligibility is undetermined; and
The dealer is authorized to deliver the firearm or cancel the transaction at the dealer’s discretion.
• Once the dealer is notified that they are authorized to deliver the firearm, the buyer must pick it up within
30 days or transaction is automatically cancelled, and
the buyer must re-initiate the process by submitting a
new DROS and fees. (Ref: DOJ website)
Undetermined Status After 30 Days
25City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • A small percentage of buyers whose status is
“undetermined” after 30 days may be prohibited
persons who cannot lawfully possess a firearm.
• DOJ maintains a database of “armed and prohibited
persons.”
The firearm is subject to seizure by state or federal law enforcement.
In 2021, the Calif. DOJ investigated 6,663 armed and
prohibited persons and recovered 1,428 firearms.
Armed and Prohibited Persons
26City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • In 2020, the DOJ began routinely delaying firearm
waiting periods beyond 10 days because of Covid
related delays and staff shortages.
• The DOJ has not released any current data or statistics regarding their ability to complete background checks
within the required 10 day or extended 30 day waiting
periods.
• The DOJ did not acknowledge or respond to a Public
Records Act request and follow up message submitted
by the City Attorney’s Office using the DOJ’s online
CPRA portal.
DOJ Statistics— ?
27City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • The FBI handles firearms background checks for 38
states (not including California).
• In 2020-2021 according to a report by the FBI:
Approx. 96% of federal firearm background checks were completed within three days (the federal waiting period). Approx. 4% were undetermined after 3 days. (At this point, federal law allows the dealer to deliver the firearm.)
Approx. 3% were still undetermined after 90 days.
In total, 1.33% of transactions were denied.
In 2020, approx. 1.2% of the 4% of buyers whose status was undetermined after 3 days were later determined to be
prohibited and were referred to ATF for retrieval of the firearm.
Federal Statistics
28City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Federal Statistics
Graphic from the National Instant Background Check System Operations Report 2020-2021, p.21.
29City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Sunnyvale currently requires firearms dealers to
obtain a permit from the Dept. of Public Safety.
• Options?
Impose a condition on the permit that prohibits the
dealer from delivering the firearm after receiving an
“undetermined” notification from the DOJ.
Require buyers to order a personal firearms eligibility check (and be determined eligible) from the DOJ within
30 days of attempting to purchase a firearm in
Sunnyvale.
Require dealers to require buyers to obtain a personal firearms eligibility check before initiating purchase.
Potential Local Regulations
30City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 • Likely preemption arguments:
State has “occupied the field” related to waiting
periods/background checks;
Direct conflict between the ordinance and state law.
• Likely 2nd Amendment arguments: “undetermined” is not the same as prohibited; databases are known to have
errors; Constitution puts the burden on the government to prove that the person is prohibited.
• On 8/3/22, San Diego Superior Court in Campos v. Bonta held that the state had no legal authority to extend the firearms waiting period from 10 to 30 days except for the limited grounds listed in the statute. Appeal pending.
Potential Legal Challenges
31City of Sunnyvale – Local Firearms Regulation Follow Up – Nov. 2022 Council Questions and Feedback
Background Checks