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3 - AddendumW DATE: TO: FROM: COUNCIL AGENDA REPORT MARCH 1, 2013 MAYOR AND TOWN COUNCIL GREG LARSON TOWN MANAGER MEETING DATE: 03/04/13 ITEM NO. ADDENDUM SUBJECT: CONSIDERATION OF ADOPTING AN URGENCY ORDINANCE ESTABLISHING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT OF COMMERCIAL OPERATIONS ENGAGED IN THE SALES OF RETAIL FIREARMS, AMMUNITION AND /OR EXPLOSIVE DEVICES REMARKS: After the staff report was prepared for this agenda item, additional correspondence was received for the period of 12:01 p.m. Thursday, February 28, 2013, through 12:00 p.m. Friday, March 01, 2013 (Attachment 4). Note that the listing of four federal firearms licenses in Los Gatos is incorrect. The first license listing on National Avenue is a discontinued home occupation, which canceled its business license last year. The other three listed licenses are not within the Town's limits, but are in the County which does not regulate firearms sales. Attachments 1 -3 (previously received): 1. Proposed Urgency Interim Ordinance 2. Materials hand- delivered at February 11, 2013, Town Council meeting by public speaker, Jess Guy 3. Public comments received from Thursday, February 14, through 12:00 p.m. on Thursday, February 28, 2013 Received with this Addendum 4. Public comments received from 12 :01 p.m. Thursday, February 28, through 12:00 p.m. on Friday, March 1, 2013. Two of the public comments included a 38 page document titled Legal Community Against Violence LCAV model law /ordinance. Only one of the copies of this ordinance is included in this attachment). Reviewed by: _Assistant Town Manager Q,�) Town Attorney Finance N:\DEV \TC REPORTS\2013Tirearms Urgency.Addendum.doc This Page Intentionally Left dank February 28, 2013 Mayor Barbara Spector Vice -Mayor Steve Leonardis Diane McNutt Joe Pirzynski Marcia Jensen Office of the Town Manager Dear Town Council and Office of the Town Manager, Attached please find: a MAYOR & MWN OOUNCH 4011, Q d ¢ "!50 pn 1. A copy of the Legal Community Against Violence (LCAV) model ordinance which Lisa Mammel delivered by hand at the 2/04/2013 meeting. When included in the public record prior to the 2/11/2013 meeting, many pages were out of order. I submit it again so that it may appear in order for those who wish to read it, as I did. This document is available online: httn: / /smartgunlaws.org/wp- content/ uploads /2012/05 LCAV Model Dealer Ordinance CA ndf. The full document includes 38 pages, and they are so numbered at bottom center, each page. 2. A copy of the Law Center to Prevent Gun Violence (LCPGV) "Model Law to Ban Assault Weapons and Large Capacity Ammunition Magazines" of December 2012. This document is available online: http://smartgunlaws.org/w.p-content/UDloads/ 2013/o1 /Law Center Assault Weapons LCAMs 2012 Model Law pdf. The full document includes 15 pages, and they are so numbered at bottom right, each page. LCAV became LGPGV, but having read both documents, I feel that both include content that is germane, and should be a clear part of the public record. Physical copies of both have been delivered to the Office of the Town Manager, single sided, and the last page is marked "This page follows 38 page document from LCAV and 15 page document from LCPGV and is intentionally blank." Sincerely, _)w.� ° Amy Goldsmith ATTACHMNT 4 This page follows 38 page document from LCAV and 15 page document from LCPGV and is intentionally blank. ts-- i Legal Community Against Violence Y expertise, lidurmaflon advocacy to anU gun vinlbneo i LCAV Model Law REGULATING FIREARMS DEALERS AND AMMUNITION SELLERS (LOCAL GOVERNMENTS IN CALIFORNIA) November 2010 About LCAV and Our Model Laws Legal Community Against Violence (LCAV) is a national public interest law center dedicated to preventing gun violence. As the first and only lawyers' organization in the gun violence prevention movement, LCAV focuses on policy reform at the state and local levels, marshaling the expertise and resources of the legal community in support of gun violence prevention. LCAV serves governmental entities and nonprofit organizations. nationwide. Our services include legal and technical assistance in the form of legal research and analysis, development of regulatory strategies, legislative drafting, and in certain circumstances, calling upon our network of attorney members to help secure pro Bono litigation assistance. We also engage in educational outreach and advocacy, producing reports, analyses and model laws. Our website; www.Icay.org, is the most comprehensive resource on U.S. firearm laws in either print or electronic form. Model laws provide a starting point: a framework from which state or local legislation can be drafted, reviewed, debated, and ultimately adopted. California jurisdictions using this model must integrate it with existing ordinances as appropriate. This report and model law do not offer, and are not intended to constitute, legal advice. Executive Summary LCAV has developed a model law for California jurisdictions to regulate firearms dealers and ammunition sellers. As detailed in the findings below, federal and state regulation of these entities is currently inadequate to protect the public safety. Although federal law requires firearms dealers to obtain a license from the Bureau of Alcohol, Tobacco, Firearms & Explosives ( "ATF "), ATF does not have the resources or authority to properly oversee the more than 100,000 firearms dealers, manufacturers, collectors, and others that it licenses ( "FFLs ").1 In fact, on average, ATF inspects each FFL only once every 17 years, and the Office of the Inspector General has concluded that inspections by ATF are not fully effective for ensuring that FFLs comply with federal firearms laws. In addition, federal law is silent regarding many important aspects of the dealer's business, such as its location (leaving 3 References for the facts identified in the Executive Summary can be found in the "Findings" portion of the model law below. MAWN0 ADM$$ 2013 Crush Street, #656 Sale Francisco, CA 94104 TEL 435.433.2962 FA,( 415.433.3357 wEa wwwlcay.org dealers free to operate out of their homes and near schools and other places children frequent) and on -site security requirements. ATF has found that FFLs are the largest source of trafficked firearms. In addition, during fiscal year 2007, ATF found that over 30,000 firearms were missing from FFLs' inventories with no record of sale. In 1998; ATF found that 56 % of randomly inspected dealers and 30% of pawnbrokers selling 50 or more guns had violated federal firearms law. As of September 23, 2009, there were 2,032 federally licensed firearms dealers and pawnbrokers in California. California is among a minority of states that impose additional licensing requirements on firearms dealers, but even there the standards are minimal. As confirmed by a California Court of Appeals in Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420 (Cal. Ct. App. 1997), California law authorizes local regulation in this area. Dozens of 'local governments in California have exercised this authority and now require firearms dealers to obtain a license or permit and impose additional requirements on dealers. While firearms dealers are licensed at both the federal and state level, neither federal nor California law requires sellers of ammunition to obtain a license. A number of California cities, however, including Berkeley, Los Angeles, Richmond, Sacramento, and San Francisco, now require sellers of ammunition to obtain a license. Moreover, more than a dozen local jurisdictions in California have adopted ordinances requiring ammunition sellers to maintain records of ammunition sales. As detailed in the findings below, jurisdictions that have adopted such ordinances have had great success utilizing such records to identify people who illegally possess firearms, as well as ammunition. In 2009, the state adopted a law, AB 962 (De Leon), modeled after these ordinances, mandating that such records be made statewide for the sale or transfer of handgun ammunition. This model law, like many of the existing local ordinances, extends this requirement to long gun ammunition as well. This model law is intended to fill the gaps in the federal and state regulatory oversight of firearms dealers and ammunition sellers. More specifically, the goals of this model law are to help: 1) ensure that dealers' operations will not be detrimental to the public health and safety; 2) prevent and detect illegal trafficking of firearms and ammunition by dealers and their employees; 3) prevent the loss and theft of firearms and ammunition from dealers; and 4) prevent and detect the sale of firearms and ammunition by dealers to persons who are prohibited by law from possessing these items. The principal elements of this model law include: • Findings. Findings describe the legal background and policy basis for the law. • Law Enforcement Permit. Anyone selling firearms or ammunition is required to obtain a local law enforcement permit. • Employee Background Checks. Every employee with access to or control over firearms or ammunition is required to undergo a background check. • On -site Security. Security standards for the business premises include the maintenance of an alarm system and surveillance cameras, and requirements for the safe storage of firearms and long gun ammunition when the store is both open and closed for business. © Legal Community Against Violence 2010 Page 2 of 38 • Inventory Reports. Firearms dealers must submit a report to law enforcement detailing their inventory every six months. • Liability Insurance. Firearms dealers must carry liability insurance with limits of at least $1 million per incident. • Prohibition on Operating in Sensitive Areas. Firearms dealers and ammunition sellers are prohibited from operating in residential neighborhoods or near other sensitive areas, such as schools, daycare centers, or parks. • Land Use Permit. Firearms dealers and ammunition sellers must obtain a land use permit to ensure that the location of the business complies with the jurisdiction's general plan and the business operations will not be detrimental to the public health and safety of those nearby. • Ammunition Sales Records. Sellers of long gun ammunition are required to make and maintain records of sales that are available to law enforcement. This report is based on LCAV's review of existing laws, judicial decisions, policy research, studies, and other gun violence prevention data, and it should answer many questions about the options available to communities regarding firearms dealers and ammunition sellers. This report contains our nonpartisan analysis, study, and research on gun violence prevention case law and policies, and is intended for broad distribution to the public. Our presentation of this report is based upon our independent and objective analysis of the relevant law and pertinent facts and should enable public readers to form their own opinions and conclusions about the merits of this sample legislation. Part I of these materials provides the text of the model law. Part II provides examples of legal challenges typically brought against firearms laws and explains that in the majority of cases, courts reject these arguments. Part III describes and responds to ariticipated opposition arguments. LCAV is ready to provide additional legal research, analysis, and drafting assistance to those seeking to enact a law regulating firearms dealers and ammunition sellers, or other laws to reduce gun violence. Please see www.lcay.oriz for more information about our services. © Legal Community Against Violence 2010 Page 3 of 38 TABLE OF CONTENTS About LCAV and Our Model Laws ..... ............................... ...........................page 1 ExecutiveSummary ......................... ............................... ...........................page 1 I. Text of Model Law ........................ ............................... ...........................page 5 II. Common Legal Challenges to Gun Violence Prevention Laws ........................page 26 A. The Second Amendment and State Right to Bear Arms ...... ...........................page 26 1. The Second Amendment ........................... ............................... page 26 2. State Right to Bear Arms . ............................... ...........................page 28 B. Equal Protection ..................... ............................... ...........................page 28 C. Due Process ..................................'................. ............................... page 29 D. Privilege Against Self- Incrimination ............................ ...........................page 31 E. Preemption and Local Authority to Regulate Firearms ....... ...........................page 31 1. Federal Preemption ........ ............................... ...........................page 31 2. State Preemption ........... ............................... ...........................page 32 III. Responses to Common Opposition Arguments ................ ...........................page 35 Conclusion................................... ............................... ..........................page 37 © Legal Community Against Violence 2010 Page 4 of 38 I. Text of Model Law CHAPTER 1 REGULATION OF FIREARMS DEALERS AND AMMUNITION SELLERS ARTICLE 1 SALE OF FIREARMS AND AMMUNITION Sec.I Definitions Sec. 2 Law enforcement permit Sec. 3 Application for permit Sec. 4 Investigation by Chief of Police/Sheriff and employee background checks Sec. 5 Grounds for permit denial or revocation Sec. 6 On -site security Sec. 7 Liability insurance Sec. 8 Location of business premises Sec. 9 Ammunition sales records Sec. 10 Restricted admittance of minors and other prohibited purchasers Sec. 11 Inventory reports Sec. 12 Display of law enforcement permit Sec. 13 Issuance of law enforcement permit Duration Sec. 14 Nonassignability Sec. 15 Compliance by existing businesses Sec. 16 Law enforcement inspections Sec. 17 Warning regarding secondary sales Sec. 18 Penalties Sec. 19 Report of permit revocation to federal and state authorities Sec. 20 Hearing for permit denial or revocation Sec. 21 Severability clause ARTICLE 2 LAND USE PERMITS Sec. 1 Firearm and ammunition sales Sec. 2 Nonconforming uses Sec. 3 Severability clause Findings [Findings regarding the need for and benefits of these regulations should be included. Findings in support of a law are most effective when they are specific and localized. When possible, local data from law enforcement, the public health community, and the media should be added. General findings are provided below.] * Where the words "Chief of Police /Sheriff," .. Ci /County" or similar variations appear, simply select the appropriate designation for your jurisdiction. © Legal Community Against Violence 2010 Page 5 of 38 Findings Regarding Gun Violence in General Whereas, in 2006, 3,253 people died from firearm - related injuries in California2 and 4,305 other people were treated for non -fatal gunshot wounds,3 Whereas, in 2006, 3,567 people were assaulted with a.firearm in California, and 1,411 of those victims were under the age of 21,4 Whereas, in 2006, 1,874 homicides were committed with a firearm in California, and 538 of those victims were under the age of 21,5 Findings Regarding Current Federal Regulation of Firearms Dealers Whereas, federal regulation of firearms dealers and ammunition sellers is currently inadequate to protect the public safety, Whereas, although federal law requires firearms dealers to obtain a license from the Bureau of Alcohol, Tobacco, Firearms & Explosives ( "ATF "),6 ATF does not have the resources or authority to properly oversee the more than 100,000 firearms dealers, manufacturers, collectors and others that it licenses ( "FFLs" ),7 Whereas, ATF reported in 2007 that it inspects each FFL, on average, only once every 17 years,8 Whereas, between 1975 and 2005, ATF revoked, on average, fewer than 20 federal firearms licenses per year,9 Whereas, ATF faces numerous obstacles that limit its ability to enforce the law; for example, ATF may conduct only one unannounced inspection of each FFL per year, the burden of proof 2 California Dep't of Health Servs., Epidemiology & Prevention for Injury Control Branch (EPIC), EPICenter California Injury Data Online, Fatal Injury Data Custom Data Tables (2010), at http://www.qpplications.dlis.ca.p-ov/ei)icdata/coiitent/TB fatal'.htm. s California Dep't of Health Servs., Epidemiology & Prevention for Injury Control Branch (EPIC), EPICenter California Injury Data Online, Nonfatal Injury Data Custom Data Tables (2010), at http • / /www.appIications.dhs,ca,gov /epicdata /content /tb nonfatal.htm. 4 California Dep't of Health Servs., Epidemiology & Prevention for Injury Control Branch (EPIC), EPICenter California Injury Data Online, Nonfatal Injury Data Custom Data Tables (2010), at htto : / /www.applications.dhs.ca.2ov /epicdata /content /tb nonfatal.htm. 5 California Dep't of Health Servs., Epidemiology & Prevention for Injury Control Branch (EPIC), EPICenter California Injury Data Online, Fatal Injury Data Custom Data Tables (2010), at http : / /www.applications.dhs.ca.gov /epicdata /content /TB fatal.htm. 6 18 U.S.C. § 922(a)(1)(A). 7 The U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives provided the total number of federal firearms licensees as of November 8, 2007. 8 Mayors Against Illegal Guns, The Movement of Illegal Guns in America: The Link between Gun Laws and Interstate Gun Trafficking 18, December 2008, available at: www .mayorsagainstillegaiguns.org /downloads /pdf /trace report final.pdf. 9 Brady Center to Prevent Gun Violence, Shady Dealings, Illegal Gun Trafficking From Licensed Gun Dealers 23 (Jan. 2007), available at: http : / /www.bradycentei-.org /xshare/ pdf /reports /shady- dealings.pdf In 2006, ATF increased its total revocations to 131. Id. © Legal Community Against Violence 2010 Page 6 of 38 for ATF's prosecution and revocation of licenses is extremely high, serious violations of firearms law have been classified as misdemeanors rather than felonies, and ATF has historically been grossly understaffed,'0 Whereas, the Office of the Inspector General has concluded that inspections by ATF are not fully effective for ensuring that FFLs comply with federal firearms laws, 1 Whereas, ATF has found that FFLs are a major source of trafficked firearms. In June of 2000, ATF issued a comprehensive report of firearms trafficking in this country. That report analyzed 1,530 trafficking investigations during the period July 1996 through December 1998, involving more than 84,000 diverted firearms. 12 ATF found that FFLs were associated with the largest number of trafficked guns — over 40,000 — and concluded that "FFLs' access to large numbers of firearms makes them a particular threat to public safety when they fail to comply with the law," 13 Whereas, during fiscal year 2007, ATF found over 30,000 firearms missing from licensees' inventories with no record of sale, 14 Whereas, in 1998, ATF found that 56% of randomly inspected dealers and 30% of pawnbrokers selling 50 or more guns had violated federal firearms law, 15 Whereas, federal laws are silent regarding many important aspects of the dealer's business, such as its location (leaving dealers free to operate out of their homes and near schools and other places children frequent) and security requirements during business hours, Whereas, according to a 1998 ATF random sample of FFLs nationwide, 56% of all dealers operated out of their homes, and 33 %o were located in businesses that are not usually associated with gun sales, such as funeral homes or auto parts stores, 16 Findings Regarding Current State and Local Regulation of Firearms Dealers Whereas, as of September 23, 2009, there were 2,032 federally licensed firearms dealers and pawnbrokers in California. 17 10 Id. at 24 -26. " Office of the Inspector General, Evaluation and Inspections Division, U.S. Department of Justice, Inspection of Firearms Dealers by the Bureau of Alcohol, Tobacco, Firearms and Explosives i (July 2004), available at: http://www.usdoi.gov/oig/repoi-ts/ATF/eO4O5/exec.htin. " Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Following the Gun.: Enforcing Federal Laws Against Firearms Traffickers ix (June 2000), available at: www.atf.gov/pub/fire- explo pub /pdf/followinathe un internetxddf. " Id, at x. 14 Brady Center to Prevent Gun Violence, U.S. Gun Shops `Lost" More than 30,000 Firearms Last Year, June 17, 2008, available at: littp• / /www.bradycampaign ora /media /release php ?release =988. 15 Brady Center to Prevent Gun Violence, "Trivial Violations "? The Myth of Overzealous Federal Enforcement Actions Against Licensed Gun Dealers 1 (Sept. 2006), available at: www.bradycenter.org /xshare /pdf /reports /trivial- violations.pdf. " Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Commerce in Firearms in the United States 16 (Feb. 2000), available at: www .mayorsagainstillegalguns.ora /downloads /pdf /Commerce in Firearms 2000 pdf. © Legal Community Against Violence 2010 Page 7 of 38 Whereas, California is among a minority of states that impose licensing requirements on firearms dealers, but the standards are minimal,' Whereas, the Court of Appeals in Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420, 428 (Cal. Ct. App. 1997) held that state law authorizes local governments in California to impose additional licensing requirements on firearms dealers, 19 Whereas, FFLs are required by federal law to comply with all state and local dealer laws as a condition for retaining their federal licenses, 20 Whereas, in August 1994, the American Bar Association enacted a resolution expressing support for legislation to limit federal firearms licenses to bona fide firearms dealers, limit gun sales to the location of the licensed premises, limit ammunition sales to federal licensees, increase the number of permitted yearly inspections, and require licensed firearms dealers to: • Comply with state and local laws, • Maintain adequate business liability insurance, • Pay annual fees to cover the costs of investigating license applications, • Have all employees undergo background checks, and • Report gun thefts to ATF and local police, 21 Whereas, the International Association of Chiefs of Police recommends that local governments impose their own licensing requirements on firearms dealers because local requirements can respond to specific community concerns, and local review of licensees provides additional resources to identify and stop corrupt dealers,22 Whereas, a 2009 study found that cities in states that comprehensively regulate retail firearms dealers and cities where these businesses undergo regular compliance inspections have significantly lower levels of gun trafficking than other cities, 23 Whereas, no federal or California law imposes security requirements on firearms dealers during business hours or requires firearms dealers or ammunition sellers to install burglar alarms or surveillance cameras. California law explicitly allows local jurisdictions to impose security " Federal firearms licensee totals for California as of September 23, 2009 were provided by the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. 18 See Penal Code §§ 12070- 12071. 19 The court in Suter struck down a provision of Lafayette's ordinance imposing additional security requirements on firearms dealers. That part of the opinion has been superseded by the adoption of Cal. Penal Code § 12071(b)(15). 20 18 U.S.C. § 923(d)(1)(F). 21 American Bar Association, Item 10E, Annual Meeting 1994, at http:// www. abanet. org /criiniust /polic�/cjpol.html. 22 International Association of Chiefs of Police (IACP), Taking a Stand: Reducing Gun Violence in Our Communities 14 (Sept. 2007), available at: litter / /www theiacp or2 /LinkC]ici( aspic? fileticket= %2FsOLiOkJK5Q %3D &tabid =302. 23 Daniel W. Webster et al., Effects of State -Level Firearm Seller Accountability Policies on Firearms Trafficking, J. Urb. Health (July 2009). O Legal Community Against Violence 2010 Page 8 of 38 requirements on firearms dealers that are stricter or at a higher standard than those imposed by state law, 24 Whereas, no federal or California law requires agents and employees of firearms dealers or ammunition sellers to undergo background checks. California law explicitly2permits local jurisdictions to require firearms dealers to perform such background checks, 5 Whereas, no federal or California law requires firearms dealers to obtain liability insurance, prohibits firearms dealers or ammunition sellers from operating in residential neighborhoods or near schools, daycare centers, or parks, or requires firearms dealers or ammunition sellers to obtain a land use permit, Whereas, California law requires firearms dealers to report the loss or theft of any firearm within 48 hours of discovery to the local law enforcement agency where the dealer's business premises are located, but does not otherwise require dealers to provide inventory reports to local law enforcement agencies, 26 Whereas, according to a survey of local jurisdictions in California conducted in 2000 by Legal Community Against Violence (LCAV): a 29 cities and three counties in California require firearms dealers to obtain a license or permit, ® 21 cities and two counties in California require firearms dealers to obtain liability insurance, ® 34 cities and four counties in California prohibit firearms dealers in residential areas, ® 14 cities and two counties in California prohibit firearms dealers near sensitive areas, .such as daycare facilities, schools, parks, places of worship and community /recreation centers, and ® 31 cities and two counties in California require firearms dealers to conduct background checks on employees, 27 Findings Regarding Public Support for the Regulation of Firearms Dealers Whereas, a national poll conducted in March and April 2008 found that: ® 91% of Americans and 88% of gun owners favor requiring gun stores to perform background checks on employees; ® 86% of Americans and 83% of gun owners favor requiring gun retailers to inspect their inventories every year to report stolen or missing guns; 24 Cal. Penal Code § 12071(b)(15). 25 Cal. Penal Code § 1207 1 (b)(20). 26 Cal. Penal Code § 12071(b)(13). 27 For lists of the jurisdictions with the each of these requirements and prohibitions mentioned, see LCAV's publication, "Communities on the Move 2000: How California Communities Are Addressing the Epidemic of Handgun Violence," available at: ham: / /www.Icay.or /lg ibraiy /surveys local ords /com2000 pd£pd£ Please note that jurisdictions may have amended their ordinances since LCAV conducted that survey. For example, the City of Inglewood now prohibits firearms dealers in residential areas, but is not listed as such in that survey.. The City of Emeryville now requires firearms dealers to obtain a local license, obtain liability insurance, and conduct background checks on employees, and prohibits firearms dealers in residential areas and near sensitive areas. © Legal Community Against Violence 2010 Page 9 of 38 88 % of Americans favor requiring gun stores to keep all guns locked securely to prevent theft; and 74% of Americans favor requiring gun retailers to videotape all gun sales, 28 Whereas, in a nationwide poll conducted in January of 2007, 86% of gun owners reported that a gun store's decision to videotape all gun sales would not impact their decision to buy a gun at that store,29 Findings Regarding the Regulation of Ammunition Sellers Whereas, federal law prohibits possession of ammunition by the same categories of persons it prohibits from possessing firearms, 30 Whereas, California law requires persons who sell, loan or transfer firearms within California to obtain a license, but does not require persons who sell, loan or transfer ammunition to do so, 31 Whereas, the Cities of Berkeley, Emeryville, Los Angeles, Richmond, Sacramento, and San Francisco are among the jurisdictions that now require sellers of ammunition to obtain a license or permit, 32 Whereas, 14 cities (Beverly Hills, Carson, Hayward, Inglewood, Los Angeles, Oakland, Pomona, Sacramento, San Anselmo, San Francisco, Santa Ana, Santa Monica, Tiburon, and West Hollywood), and two counties (Contra Costa and Marin) require ammunition sellers to keep records of their ammunition sales, Whereas, law enforcement agencies in jurisdictions that require ammunition sellers to keep records of their ammunition sales have been able to detect illegal possessors of firearms and ammunition by cross - referencing the information in these records with California Department of Justice - maintained information regarding persons prohibited from such possession, Whereas, a two -month study of Los Angeles' ordinance requiring ammunition purchasers to present identification prior to purchase and requiring ammunition sellers to maintain a sales log found that prohibited purchasers accounted for nearly 3% of all ammunition purchasers over this period, acquiring roughly 10,000 rounds of ammunition, 33 Whereas, the Los Angeles ordinance led to 30 investigations, 15 search warrants, nine arrests, and the confiscation of 24 handguns, 12 shotguns, and nine rifles that were illegally possessed 28 Greenberg. Quinlan Rosner Research and the Tarrance Group, Americans Support Common Sense Measures to Cut Down on Illegal Guns 3, April 10, 2008, available at: http: / /www.mayorsagainstillegal uns.or� /downloads /pdf/pollin� memo. df. 29 Greenberg Quinlan Rosner Research & The Tarrance Group for the Mayors Against Illegal Guns, Strong Public Support for Tough Enforcement of Common Sense Gun Laws (Graphs), January 23, 2007, available at: http: / /www reg enbergresearch.com /articles /1849/2630 MAIGslides.pdf. 30 18 U.S.C. § 922(g). 31 Cal. Penal Code § 12070(a). 32 LCAV has not completed an exhaustive search for ordinances requiring sellers of ammunition to obtain a license or permit. 33 George E. Tita et al., The Criminal Purchase ofAmmunition, 12 Inj. Prevention 308, 308 (2006). © Legal Community Against Violence 2090 Page 10 of 38 between 2004 and the first half of 2006, as well as 39 investigations in 2007, and at least 24 investigations in 2008,34 Whereas, a report issued one year after Sacramento enacted an ordinance requiring ammunition sellers to record the thumbprint of each purchaser and to electronically transmit the records of ammunition sales to the Sacramento Police Department ( "SPD ") found that: The SPD and allied agencies use the information gathered as a result of the ordinance in criminal investigations regularly, These requirements have allowed the SPD to electronically check the legal firearms rights status of transferees, and The electronic system for transfer of purchaser information has proven to be secure, effective and reliable, 35 Whereas, between January 16 and December 31, 2008, the Sacramento ordinance led to the identification of 156 prohibited persons who had purchased ammunition, 124 of whom had prior felony convictions, 48 search warrants and 26 additional probation or parole searches. In addition, the ordinance led to 109 felony charges, 10 federal court indictments, 37 felony convictions and 17 misdemeanor convictions. The ordinance allowed law enforcement to seize a total of 84 firearms, including seven assault weapons, and thousands of rounds of ammunition, 36 Whereas, on October 11, 2009, Governor Schwarzenegger signed a new law, AB 962 (De Leon), to require handgun ammunition sellers to create and maintain records of handgun ammunition sales and transfers, effective February 1, 2011. No federal or state law, however, requires ammunition sellers to create or maintain records of sales or transfers prior to that date, or requires vendors to create or maintain records of sales or transfers of ammunition that is not principally for use in handguns, and Whereas, AB 962 (De Leon) also requires handgun ammunition sellers to store handgun ammunition so that it is inaccessible to customers without assistance from the seller or an employee, effective January 1, 2010. No federal or state law, however, governs the way sellers store ammunition that is not principally for use in handguns, Therefore, the jurisdiction/ overning body hereby adopts the following: 34 LCAV obtained these numbers from Lieutenant Steve Nielsen of the Los Angeles Police Department's Gun Unit in May 2007 and May 2008. 35 Sacramento, Cal., City Code, Chapters 5.64, 5.66; Sacramento Chief of Police Rick Braziel et al., Report to Council, Ammunition Sales Records Study (Aug. 12, 2008), at: http: // Sacramento .granicus.com /MetaViewer.php ?view id =8 &clip id =1590 &meta id= 155275. 36 These statistics were obtained from Captain Jim Maccoun, Office of Technical _Services, Sacramento Police Department on January 27, 2009. For the statistics for the period between January 16 and June 29, 2008, see id. © Legal Community Against Violence 2090 Page 11 of 38 ARTICLE 1 SALE OF FIREARMS AND AMMUNITION Sec.I Definitions "Ammunition" means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm, and any component thereof, but shall not include blank cartridges or ammunition that can be used solely in an "antique firearm" as that. term is defined in section 921(a)(16) of Title 18 of the United States Code. "Applicant" means any person who applies for a law enforcement permit, or the renewal of such a permit, to sell, lease or transfer firearms or ammunition. "Chief of Police /Sheriff' means the Chief of Police /Sheriff or the Chief's /Sheriff's designated representative. To "engage in the business of selling, leasing, or otherwise transferring any firearm or ammunition" means to conduct a business by the selling, leasing or transferring of any firearm or ammunition, or to hold one's self out as engaged in the business of selling, leasing or otherwise transferring any firearm or ammunition, or to sell, lease or transfer firearms or ammunition in quantity, in series, or in individual transactions, or in any other manner indicative of trade. "Firearm" means any device, designed to be used as a weapon or modified to be used as a weapon, from which is expelled through a barrel a projectile by the force of explosion or other means of combustion, provided that the term "firearm" shall not include an "antique firearm" as defined in section 921(a)(16) of Title 18 of the United States Code. "Permittee" means any person, corporation, partnership or other entity engaged in the business of selling, leasing, or otherwise transferring any firearm or ammunition, which person or entity has obtained a law enforcement permit to sell, lease or transfer firearms or ammunition. Sec. 2 Law enforcement permit [This model requires both firearms dealers and ammunition sellers to obtain a land use permit as well as a law enforcement permit. Alternatively, jurisdictions may choose to make the land use permit requirement in Article 2 of this model applicable only to firearms dealers, and not to persons and entities that sell only ammunition. ] It is unlawful for any person, corporation, partnership or other entity to engage in the business of selling, leasing, or otherwise transferring any firearm or ammunition within City /County without a law enforcement permit, as required by this Article, and a land use permit, as required by Article 2. Sec. 3 Application for permit (a) An applicant for a permit or renewal of a permit under this Article shall file with the Chief of Police /Sheriff an application in writing, signed under penalty of perjury, on a form © Legal Community Against Violence 2010 Page 12 of 38 prescribed by the Cit /� County. The applicant shall provide all relevant information requested to demonstrate compliance with this Article, including: (1) The applicant's name, including any aliases or prior names, age and address; (2) The applicant's federal firearms license and California firearms dealer numbers, if any; (3) The address of the proposed location for which the permit is sought, together with the business name, and the name of any corporation, partnership or other entity that has any ownership in, or control over, the business; (4) The names, ages and addresses of all persons who will have access to or control of workplace firearms or ammunition, including but not limited to, the applicant's employees, agents and /or supervisors, if any; (5) A certificate of eligibility from the state Department of Justice under Penal Code Section 12071 for each individual identified in Sec. 3(a)(4) demonstrating that the person is not prohibited by state or,federal law from possessing firearms or ammunition; (6) Proof of a possessory interest in the property at which the proposed business will be conducted, as owner, lessee or other legal occupant, and, if the applicant is not the owner of record of the real property upon which, the applicant's business is to be located and conducted, the written consent of the owner of record of such real property to the applicant's proposed business; (7) A floor plan of the proposed business which illustrates the applicant's compliance with security provisions, as outlined in Sec. 6 of this Article; (8) Proof of the issuance of a land use permit at the proposed location; (9) Proof of compliance with all applicable federal, state and local licensing and other business laws; (10) Information relating to every license or permit to sell, lease, transfer, purchase, or possess firearms or ammunition which was sought by the applicant from any jurisdiction in the United States, including, but not limited to, the date of each application and whether it resulted in the issuance of a license, and the date and circumstances of any revocation or suspension; (11) The applicant's agreement to indemnify, defend and hold harmless the City /County, its officers, agents and employees from and against all claims, losses, costs, damages and liabilities of any kind pursuant to the operation of the business, including attorneys fees, arising in any manner out of the negligence or intentional or willful misconduct of: (A) The applicant; Page 13 of 38 © Legal Community Against Violence 2010 (B) The applicant's officers, employees, agents and /or supervisors; or (C) If the business is a corporation, partnership or other entity, the officers, directors or partners. (12) Certification of satisfaction of insurance requirements, for applicants applying for a permit to sell firearms; (13) The date, location and nature of all criminal convictions of the applicant, if any, in any jurisdiction in the United States. (b) _ The application shall be accompanied by a nonrefundable fee for administering this Article as established by City Council /County Board of Supervisors resolution. Sec. 4 Investigation by Chief of Police /Sheriff and employee background checks (a) The Chief of Police /Sheriff shall conduct an investigation to determine, for the protection of the public health and safety, whether the law enforcement permit may be issued or renewed. The Chief of Police /Sheriff shall require the following individuals to provide fingerprints, a recent photograph, a signed authorization for the release of pertinent records, and any additional information which the Chief of Police /Sheriff considers necessary to complete the investigation: (1) The applicant; (2) All persons who will have access to or control of workplace firearms or ammunition, including but not limited to the applicant's employees, agents and /or supervisors, if any. (b) Prior to issuance or renewal of the permit, the Chief of Police /Sheriff shall inspect the premises to ensure compliance with this Article. (c) The Chief of Police /Sheriff may grant or renew a law enforcement permit if the applicant or permittee is in compliance with this Article and all other applicable federal, state and local laws. Sec. 5 Grounds for permit denial or revocation (a) The Chief of Police /Sheriff shall deny the issuance or renewal of a law enforcement permit, or shall revoke an existing permit, if the operation of the business would not or does not comply with federal, state or local law, or if the applicant or permittee: (1) Is under 21 years of age; (2) Is not licensed as required by all applicable federal, state and local laws; [A jurisdiction may choose to replace this language with: "(2) Is not licensed as a dealer in firearms under all applicable federal, state and local laws." This option would © Legal Community Against Violence 2010 Page 14 of 38 prohibit the sale of ammunition by persons not engaged in the business of selling firearms, such as hardware and convenience stores.] (3) Has made a false or misleading statement of a material fact or omission of a material fact in the application for a law enforcement permit, or in any other documents submitted to the Chief of Police /Sheriff pursuant to this Article. If a permit is denied on this ground, the applicant is prohibited from reapplying for a permit for a period of five years; (4) Has had a license or permit to sell, lease, transfer, purchase or possess firearms or ammunition from any jurisdiction in the United States revoked, suspended or denied for good cause within the immediately preceding five years; (5) Has been convicted of: (A) An offense which disqualifies that person from owning or possessing a firearm under federal, state or local law, including, but not limited to, the offenses listed in Penal Code Sections 12021 and 12021.1; (B) An offense relating to the manufacture, sale, possession or use of a firearm or dangerous or deadly weapon or ammunition therefor; (C) An offense involving the use of force or violence upon the person of another; (D) An offense involving theft, fraud, dishonesty or deceit; (E) An offense involving the manufacture, sale, possession or use of a controlled substance as defined by the state Health and Safety Code; (6) Is within a class of persons defined in Welfare and Institutions Code Sections 8100 or 8103; or (7) Is currently, or has been within the past five years, an unlawful user of or addicted to a controlled substance as defined by the Health and Safety Code. (b) Employees, agents or supervisors of the applicant or permittee may not have access to or control over workplace firearms or ammunition until the Chief of Police /Sheriff has conducted an investigation pursuant to Sec. 4(a)(2), and verified that none of the conditions listed in Sec. 5(a)(1), (4), (5), (6) or (7) exist, as applied to those employees, agents or supervisors. A new law enforcement investigation and background verification of such persons must be conducted each time the permittee renews his or her permit, or applies for a new permit. Except as provided in subsection (c), the Chief of Police /Sheriff shall deny the issuance or renewal of a law enforcement permit, or shall revoke an existing permit, if the applicant or permittee allows any employee, agent or supervisor to have access to or control over workplace firearms or ammunition prior to the completion of the law enforcement investigation and background © Legal Community Against Violence 2090 Page 15 of 38 verification of those persons, or if those persons have not undergone the law enforcement investigation and background verification process within the last 365 days. (c) Where an applicant is applying for a law enforcement permit to sell, lease or transfer firearms or ammunition within the first 90 days of the effective date of this Article, and where the applicant has a pre- existing firearms dealer business which complies with all applicable federal, state and local laws, or is not a firearms dealer but is already engaged in the sale of ammunition: (1) The applicant's current employees, agents or supervisors may continue to have access to or control over workplace firearms and ammunition pending the completion of the Chief of Police's /Sheriff s investigation and background verification. (2) Where one or more of the applicant's employees, agents or supervisors are found to be in violation of the conditions enumerated in subsection (b), the applicant shall have 21 days from the mailing of written notification from the Chief of Police /Sheriff to verify that such persons have been removed or reassigned so that they no longer have access to or control of workplace firearms or ammunition. Failure of the applicant to comply with this subsection shall cause the Chief of Police /Sheriff to deny the application for a law enforcement permit. (d) The law enforcement permit of any person or entity found to be in violation of any of the provisions of this Article may be revoked. See. 6 On -site security (a) If the proposed or current business location is to be used at least in part for the sale of firearms, the permitted place of business shall be a secure facility within the meaning of Penal Code Section 12071(c)(2).37 (b) If the proposed or current business location is to be used at least in part for the sale of firearms, all heating, ventilating, air - conditioning, and service openings shall be secured with steel bars or metal grating. (c) Any time a permittee is not open for business, every firearm shall be stored in one of the following ways: (1) In a locked fireproof safe or vault in the licensee's business premises that meets the standards for a gun safe implemented by the Attorney General pursuant to Penal Code Section 12088.2; or 37 A "secure facility" is defined by Penal Code § 12071(c)(2) as a building that meets certain specifications, including: certain types of locks on all doorways; steel bars on all windows; and steel bars, metal grating, or an alarm system on all heating, ventilating, air - conditioning, and service openings. State law allows a firearms dealer to avoid these requirements by utilizing other security features. See Penal Code § 12071(b)(14). Penal Code § 12071(b)(15) explicitly allows local jurisdictions to impose security requirements on firearms dealers that are stricter or at a higher standard than those imposed by state law. © Legal Community Against Violence 2010 Page 16 of 38 (2) Secured with a hardened steel rod or cable of at least one - fourth inch in diameter through the trigger guard of the firearm. The steel rod or cable shall be secured with a hardened steel lock that has a shackle. The lock and shackle shall be protected or shielded from the use of a boltcutter and the rod or cable shall be anchored in a manner that prevents the removal of the firearm from the premises. No more than five firearms may be affixed to any one rod or cable at any time. (d) Any time a permittee is open for business, every firearm shall be unloaded, inaccessible to the public and secured using one of the following three methods, except in the immediate presence of and under the direct supervision of an employee of the permittee: (1) Secured within a locked case so that a customer seeking access to the firearm must ask an employee of the permittee for assistance; (2) Secured behind a counter where only the permittee and the permittee's employees are allowed. During the absence of the permittee or a permittee's employee from the counter, the counter shall be secured with a locked, impenetrable barrier that extends from the floor or counter to the ceiling; or (3) Secured with a hardened steel rod or cable of at least one - fourth inch in diameter through the trigger guard of the firearm. The steel rod or cable shall be secured with a hardened steel lock that has a shackle. The lock and shackle shall be protected or shielded from the use of a boltcutter and the rod or cable shall be anchored in a manner that prevents the removal of the firearm from the premises. No more than five firearms may be affixed to any one rod or cable at any time. (e) Any time a permittee is open for business, any ammunition that is not principally for use in pistols, revolvers, or other firearms capable of being concealed upon the person, as that term is defined in Penal Code § 12001(a), shall be inaccessible to the public and secured using one of the methods mentioned in subsection (d)(1) or (2), except in the immediate presence of and under the direct supervision of an employee of the pei'mittee.38 (f) The permitted business location shall be secured by an alarm system that is installed and maintained by an alarm company operator licensed pursuant to the Alarm Company Act, Business & Professions Code Sections 7590 et seq. The alarm system must be monitored by a central station listed by Underwriters Laboratories, Inc., and covered by an active Underwriters Laboratories, Inc. alarm system certificate with a #3 extent of protection. 39 38 Penal Code § 12061(a)(2) addresses the storage of handgun ammunition by sellers. That provision is effective January 1, 2010. See AB 962 (De Leon). "Handgun ammunition" is defined as ammunition principally for use in pistols, revolvers, or other firearms capable of being concealed upon the person, as that term is defined in Penal Code § 12001(a). Penal Code § 12060(b). 39 Underwriters Laboratories, Inc. uses the term "extent of protection" to refer to the amount of alarm protection installed to protect a particular area, room or container. Systems with a #3 extent of protection include complete protection for all accessible openings, and partial motion and sound detection at certain other areas of the premises. For more information, see Central Station Alarm Association, A Practical Guide to Central Station Burglar Alarm Systems (3rd ed. 2005). © Legal Community Against Violence 2010 Page 17 of 38 (g) The permitted business location shall be monitored by a video surveillance system that meets the following requirements: (1) The system shall include cameras, monitors, digital video recorders, and cabling, if necessary. (2) The number and location of the cameras are subject to the approval of the Chief of Police /Sheriff. At a minimum, the cameras shall be sufficient in number and location to monitor the critical areas of the business premises, including, but not limited to, all places where firearms or ammunition are stored, handled, sold, transferred, or carried, including, but not limited to, all counters, safes, vaults, cabinets, cases, entryways, and parking lots. The video surveillance system shall operate continuously, without interruption, whenever the permittee is open for business. Whenever the permittee is not open for business, the system shall be triggered by a motion detector and begin recording immediately upon detection of any motion within the monitored area. (2) In addition, the sale or transfer of a firearm or ammunition shall be recorded by the video surveillance system in such a way that the facial features of the purchaser or transferee are clearly visible. (3) When recording, the video surveillance system shall record continuously and store color images of the monitored area at a frequency of not less than 15 frames per second .4() The system must produce retrievable and identifiable images and video recordings on media approved by the Chief of Police /Sheriff that can be enlarged through projection or other means, and can be made a permanent record for use in a criminal investigation. The system must be capable of delineating on playback the activity and physical features of persons or areas within the premises. (4) The stored images shall be maintained on the business premises of the permittee for a period not less than one year from the date of recordation and shall be made available for inspection by federal, state or local law enforcement upon request. (5) The video surveillance system must be maintained in proper working order at all times. If the system becomes inoperable, it must be repaired or replaced within fifteen calendar days. The permittee must inspect the system at least weekly to ensure that it is operational and images are being recorded and retained as required. (6) The permittee shall post a sign in a conspicuous place at each entrance to the premises that states in block letters not less than one inch in height: THESE PREMISES ARE UNDER VIDEO SURVEILLANCE. YOUR IMAGE MAY BE RECORDED. (h) The Chief of Police /Sheriff may impose security requirements in addition to those listed in this section prior to issuance of the law, enforcement permit. Failure to fully comply with the ao Television in the U.S. has 30 frames per second. However, 15 frames per second is generally described as viewable, and is used in similar regulations. See, e.g,, 02- 392 -013 Me. Code R. 6(6). © Legal Community Against Violence 2090 Page 18 of 38 requirements of this section shall be sufficient cause for denial or revocation of the law enforcement permit by the Chief of Police /Sheriff. Sec. 7 Liability insurance (a) If the proposed or current business location is to be used for the sale of firearms, no law enforcement permit shall be issued or reissued unless there is in effect a policy of insurance in a form approved by the Ci /County and executed by an insurance company approved by the City /County, insuring the applicant against liability for damage to property and for injury to or death of any person as a result of the theft, sale, lease or transfer or offering for sale, lease or transfer of a firearm or ammunition, or any other operations of the business. The policy shall also name the City /County and its officers, employees and agents as additional insureds. The limits of liability shall not be less than $1,000,000 for each incident of damage to property or incident of injury or death to a person; provided, however, that increased limits of liability may be required by the City Attorney /County Counsel if deemed necessary. (b) The policy of insurance shall contain an endorsement providing that the policy shall not be canceled until written notice has been given to the City Manager /County Administrator at least 30 days .prior to the time the cancellation becomes effective. (c) Upon expiration of the policy of insurance, and if no additional insurance is obtained, the law enforcement permit is considered revoked without further notice. Sec. 8 Location of business premises (a) The business shall be carried on only in the building located at the street address shown on the permit. This requirement does not prohibit the permittee from participating in a gun show or event which is authorized by federal, state and local law upon compliance with those laws. (b) The business premises shall not be located in any district or area that is zoned for residential use, or within 1,500 feet of any school, pre - school, day -care facility, park, community center, place of worship, liquor store, bar, youth center, video arcade, amusement park (not including a temporary carnival or similar event), other permittee as defined in Sec. 1 or residentially zoned district or area. Sec. 9 Ammunition sales records (a) No permittee or any agents, employees, or other persons acting under the permittee's authority shall sell or otherwise transfer ownership of any ammunition without verifying the identity of the transferee and recording the following information on a form to be provided by the Chief of Police /Sheriff. (1) The date of the transaction; (2) The name, address and date of birth of the transferee; © Legal Community Against Violence 2010 Page 19 of 38 (3) The number of the transferee's current driver's license or other government - issued identification card containing a photograph of the transferee, and the name of the governmental authority that issued it; (4) The brand, type, caliber or gauge, and amount of ammunition transferred; (5) The transferee's signature; and (6) The name of the permittee's agent or employee who processed the transaction. (b) The permittee and any agents, employees, or other persons acting under the permittee's authority shall also, at the time of purchase or transfer, obtain the right thumbprint of the transferee on the above form. (c) Within five calendar days of a firearm ammunition transfer, the permittee and any agents, employees, or other persons acting under the permittee's authority shall electronically transmit to the Police /Sheriff's Department all of the information set forth in paragraph (a). The electronic transmittal shall be by a method, and in a format, approved by the Chief of Police /Sheriff. (d) The records created in accordance with this section must be maintained on the business premises of the permittee for a period not less than five years from the date of the recorded transfer and shall be made available for inspection by federal, state or local law enforcement upon request. (e) Within one year of the effective date of this section, the Chief of Police /Sheriff shall submit a report to the City Council /County Board of Supervisors regarding the ammunition sales records maintained since the effective date of this section. The report shall state information including, but not limited to: the number of prohibited persons who had purchased ammunition and who were identified through use of these records, as well as the number of searches, arrests, and investigations performed, charges filed, convictions obtained and firearms and ammunition seized, as a result of these records. (f) This section shall not apply if the transferee is: (1) A "peace officer" as that term is defined in Penal Code § 830 et seq., or a federal law enforcement officer; or (2) A person licensed as a dealer or collector in firearms pursuant to Chapter 44 (commencing with Sec. 921) of Title 18 of the United States Code and the regulations issued pursuant thereto. (g) Effective February 1, 2011, this section shall not apply to the sale or transfer of ammunition that is principally for use in pistols, revolvers, or other firearms capable of being concealed upon the person, as that term is defined in Penal Code § 12001(a).41 41 Penal Code § 12061 {a)(3) -(7), (b) addresses records of the sale or transfer of handgun ammunition. Those provisions are effective February 1, 2011. See AB 962 (De Leon). "Handgun ammunition" is defined as ammunition © Legal Community Against Violence 2090 Page 20 of 38 Sec. 10 Restricted admittance of minors and other prohibited purchasers (a) Where firearm sales activity is the primary business performed at the business premises, no permittee or any of his or her agents, employees, or other persons acting under the permittee's authority shall allow the following persons to enter into or remain on the premises unless accompanied by his or her parent or legal guardian: (1) Any person under 21 years of age, if the permittee sells, keeps or displays firearms capable of being concealed on the person, provided that this provision shall not prevent a supervisory agent or employee who has the authority to control activities on the business premises from keeping a single firearm capable of being concealed on the person on the business premises for purposes of lawful self - defense; or (2) Any person under 18 years of age, if the permittee sells, keeps or displays only firearms other than firearms capable of being concealed on the person. (b) Where firearm sales activity is the primary business performed at the business premises, the permittee and any of his or her agents, employees, or other persons acting under the permittee's authority shall be responsible for requiring clear evidence of age and identity of persons to prevent the entry of persons not permitted to enter the premises pursuant to subsection (a) by reason of age. Clear evidence of age and identity includes, but is not limited to, a motor vehicle operator's license, a state identification card, an armed forces identification card, or an employment identification card which contains the bearer's signature, photograph and age, or any similar documentation which provides reasonable assurance of the identity and age of the individual. (c) The permittee shall post the following conspicuously at each entrance to the establishment in block letters not less than one inch in height: (1) If the permittee sells, keeps or displays firearms capable of being concealed on the person, the sign shall state, "FIREARMS ARE KEPT, DISPLAYED OR OFFERED ON THE PREMISES, AND PERSONS UNDER THE AGE OF 21 ARE EXCLUDED UNLESS ACCOMPANIED BY A PARENT OR LEGAL GUARDIAN." (2) If the permittee sells, keeps or displays only firearms other than firearms capable of being concealed on the person, the sign shall state, "FIREARMS ARE KEPT, DISPLAYED OR OFFERED ON THE PREMISES, AND PERSONS UNDER THE AGE OF 18 ARE EXCLUDED UNLESS ACCOMPANIED BY A PARENT OR LEGAL GUARDIAN." (d) Where firearm sales activity is the primary business performed at the business premises, no permittee or any of his or her agents, employees, or other persons acting under the permittee's authority shall allow any person to enter into or remain on the premises who the permittee or any principally for use in pistols, revolvers, or other firearms capable of being concealed upon the person, as that term is defined in Penal Code § 12001(a). Penal Code § 12060(b). © Legal Community Against Violence 2010 Page 21 of 38 of his or her agents, employees, or other persons acting under the permittee's authority knows or has reason to know is prohibited from possessing or purchasing firearms pursuant to federal, state, or local law. Sec. 11 Inventory reports Within the first five business days of April and October of each year, the permittee shall cause a physical inventory to be taken that includes a listing of each firearm held by the permittee by make, model, and serial number, together with a listing of each firearm the permittee has sold since the last inventory period. In addition, the inventory shall include a listing of each firearm lost or stolen that is required to be reported pursuant to Penal Code § 12071(b)(13). Immediately upon completion of the inventory, the permittee shall forward a copy of the inventory to the address specified by the Chief of Police /Sheriff, by such means as specified by the Chief of Police /Sheriff. With each copy of the inventory, the permittee shall include an affidavit signed by an authorized agent or employee on behalf of the permittee under penalty of perjury stating that within the first five business days of that April or October, as the case may be, the signer personally confirmed the presence of the firearms reported on the inventory. The permittee shall maintain a copy of the inventory on the premises for which the law enforcement permit was issued for a period of not less than five years from the date of the inventory and shall make the copy available for inspection by federal, state or local law enforcement upon request. Sec. 12 Display of law enforcement permit The law enforcement permit, or a certified copy of it, shall be displayed in a prominent place on the business premises where it can be easily seen by those entering the premises. Sec. 13 Issuance of law enforcement permit -- Duration (a) A law enforcement permit expires one year after the date of issuance. A permit may be renewed for additional one -year periods if the permittee submits a timely application for renewal, accompanied by a nonrefundable renewal fee established by City Council /County Board of Supervisors resolution. Renewal of the permit is contingent upon the permittee's compliance with the terms and conditions of the original application and permit, as detailed in this Article. Police /Sheriff s department personnel shall inspect the permitted business premises for compliance with this Article prior to renewal of the permit. The renewal application and the renewal fee must be received by the Police /Sheriff's department no later than 45 days before the expiration of the current permit. (b) A decision regarding issuance or renewal of the law enforcement permit may be appealed in the manner provided in Sec. 20 of this Article. Sec. 14 Nonassignability A law enforcement permit issued under this Article is not assignable. Any attempt to assign a law enforcement permit shall result in revocation of the permit. © Legal Community Against Violence 2010 Page 22 of 38 Sec. 15 Compliance by existing businesses A person engaged in the business of selling, leasing, or otherwise transferring any firearm or ammunition on the effective date of this Article shall, within 90 days of the effective date, comply with this Article. However, any person whose business is located in any location described in Sec. 8 of this Article may continue to sell, lease, or transfer firearms and ammunition for up to one year after the effective date of this Article. After the one -year period has expired, all such persons are prohibited from selling, leasing or transferring firearms or ammunition in the named locations. Sec. 16 Law enforcement inspections Permittees shall have their places of business open for inspection by federal, state and local law enforcement during all hours of operation. The Police/Sheriff s department shall conduct periodic inspections of the permittee's place of business without notice. Permittees shall maintain all records, documents, firearms and ammunition in a manner and place accessible for inspection by federal, state and local law enforcement. Sec. 17 Warning regarding secondary sales A permittee shall post conspicuously within the licensed premises the following warning in block letters not less than one inch in height: WITH FEW EXCEPTIONS, IT IS A CRIME TO SELL OR GIVE A FIREARM TO SOMEONE WITHOUT COMPLETING A DEALER RECORD OF SALE (DROS) FORM AT A LICENSED FIREARMS DEALERSHIP. Sec. 18 Penalties [Penalties for the violation of provisions of this ordinance may vary based on the law enforcement and policy needs of each community. Jurisdictions are encouraged to consult with local law enforcement to develop appropriate penalties. While the language below makes each violation of any provision of this Article a misdemeanor, jurisdictions may choose to make violations of particular provisions an infraction instead.] (a) Any person violating any of the provisions of this Article shall be guilty of a misdemeanor. Any person convicted of a misdemeanor under the provisions of this Article shall be punished by a fine of not more than $1,000 or by imprisomilent for a period not exceeding six months, or by both. Each such person shall be guilty of a separate offense for each and every day during any portion of which a violation of any provision of this Article is committed or continued by such person and shall be punishable accordingly. (b) In addition to any other penalty or remedy, the City Attorney /County Counsel may commence a civil action to seek enforcement of these provisions. Sec. 19 Report of permit revocation to federal and state authorities In addition to any other penalty or remedy, the City Attorney /County Counsel shall report any person or entity whose law enforcement permit is revoked pursuant to this Article to the © Legal Community Against Violence 2010 Page 23 of 38 Bureau of Firearms of the California Department of Justice and the Bureau of Alcohol, Tobacco, Firearms & Explosives within the U.S. Department of Justice. Sec. 20 Hearing for permit denial or revocation (a) Within ten days of the Chief of Police /Sheriff mailing a written denial of the application or revocation of the permit, the applicant may appeal by requesting a hearing before the Chief of Police /Sheriff. The request must be made in writing, setting forth the specific grounds for appeal. If the applicant submits a timely request for an appeal, the Chief of Police /Sheriff shall set a time and place for the hearing within 30 days. (b) The Chief of Police /Sheriff shall provide a written decision regarding the appeal within 14 calendar days of the hearing. An applicant may appeal the decision of the Chief of Police /Sheriff to the [appropriate government body. The appeal process should also be detailed or referenced here]. Sec. 21 Severability clause If any section, subsection, sentence or clause of this Article is for any reason declared unconstitutional or invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the constitutionality, validity or enforceability of the remaining portions of this Article or any part thereof. The City Council /County Board of Supervisors hereby declares that it would have adopted this Article notwithstanding the unconstitutionality, invalidity or unenforceability of any one or more of its sections, subsections, sentences or clauses. © Legal Community Against Violence 2010 Page 24 of 38 ARTICLE 2 LAND USE PERMITS [This model requires both firearms dealers and ammunition sellers to obtain a land use permit as well as a law enforcement permit. Alternatively, jurisdictions may choose to make the land use permit requirement in Article 2 of this model applicable only to firearms dealers, and not to persons and entities that sell only ammunition.] Sec. 1 Firearm and ammunition sales (a) Purpose. The purpose of this section is to provide for the appropriate location of any person, corporation, partnership or other entity engaging in the business of selling, leasing, or otherwise transferring any firearm or ammunition (hereinafter "firearms dealer or ammunition seller ") through the permitting process. (b) Permit Requirement. It is unlawful for any firearms dealer or ammunition seller to sell, lease or transfer firearms or ammunition unless the dealer or seller has obtained a land use permit pursuant to this chapter and a law enforcement permit as provided under Article 1 of this chapter. Subject to the restrictions listed below, firearms dealers and ammunition sellers are permitted in [enumerate permitted districts, e.g., commercial, industrial, etc.]. Firearms dealers and ammunition sellers are prohibited in all other land use districts. (c) Procedure. An applicant for a land use permit shall apply to the planning commission by application prescribed by the City /County in the manner provided. (d) Location. A land use permit for the sale of firearms or ammunition will not be issued if the proposed business premises are located in any district or area that is zoned for residential use, or within 1,500 feet of any school, pre - school, day -care facility, park, community center, place of worship, liquor store, bar, youth center, video arcade, amusement park (not including a temporary carnival or similar event), other firearms dealer or ammunition seller or residentially zoned district or area. (e) Other Criteria. The planning commission shall approve or conditionally approve a land use permit application only if, on the basis of the application, plans, materials, and testimony submitted at the hearing, the planning commission finds: (1) The location of the proposed land use is in accordance with the general plan of City /County; and (2) The location, size, design, and operating characteristics of the proposed use will be compatible with and will not be detrimental to the public health, safety or welfare of persons residing or working in or adjacent to the proposed land use and the surrounding neighborhood. (f) Public Hearing and Notice Required. A public hearing shall be held with reference to an application for a land use permit. Notice for the public hearing shall be set forth as follows: (1) The contents of a public notice must include the following: © Legal Community Against Violence 2010 Page 25 of 38 (A) Date, time, and place of the public hearing; (B) Identity of the hearing body or hearing officer; (C) General explanation of the matter to be considered and where more specific information may be obtained; (D) General description in text or by diagram of the location of the real property /parcel or building which is the subject of the hearing; and (E) A statement that any interested party or agent may appear and be heard. (2) [Insert any additional desired notice provisions.] (g) Conditions. An approved land use permit is not effective until the applicant satisfies the following terms and conditions: (1) Possession of a valid law enforcement permit as required under Article 1; (2) Possession of all licenses and permits required by federal, state and local law; and (3) Compliance with the requirements of the City's /County's building code, fire code and other technical codes and regulations which govern the use, occupancy, maintenance, construction or design of the building or structure. The use permit shall require that the applicant obtain a final inspection from the City /County building official demonstrating code compliance before the applicant may begin business at the premises at issue. Sec. 2 Nonconforming uses A firearms dealer or ammunition seller located in any location described in Sec. 1(d) may continue to sell, lease or transfer firearms and ammunition for up to one year after the effective date of this Article, provided the dealer or seller obtains a law enforcement permit from the Ci /County, pursuant to Article 1, within 90 days of the effective date of that Article. After the one -year period has expired, all firearms dealers and ammunition sellers are prohibited from selling, leasing or transferring firearms and ammunition in the named locations. Sec. 3 Severability clause If any section, subsection, sentence or clause of this Article is for any reason declared unconstitutional or invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the constitutionality, validity or enforceability of the remaining portions of this Article or any part thereof. The City Council /County Board of Supervisors hereby declares that it would have adopted this Article notwithstanding the unconstitutionality, invalidity or unenforceability of any one or more of its sections, subsections, sentences or clauses. © Legal Community Against Violence 2010 Page 26 of 38 II. Common Legal Challenges to Gun Violence Prevention Laws Litigation challenging firearm laws has become a routine strategy of the gun industry, the National Rifle Association and other "gun rights" groups. These challenges sometimes raise the following issues: (1) the Second Amendment to the U.S. Constitution and state right to bear arms provisions; (2) equal protection; (3) due process; (4) the privilege against self - incrimination; and (5) in the context of local gun regulations, preemption and local authority to regulate firearms. This section provides an overview of these issues. A. The Second Amendment and State Right to Bear Arms The Second Amendment and state right to bear arms provisions are often raised as a bar to gun violence prevention laws and regulations. In fact, these provisions permit a broad range of gun violence prevention measures. 1. The Second Amendment The Second Amendment to the U.S. Constitution states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Until recently, the courts, including the United States Supreme Court, interpreted and applied the Amendment to protect a right to keep and bear arms only in relation to service in a well- regulated militia.42 However, in 2008, the Supreme Court issued a historic decision in District of Columbia v. Heller, holding that the Second Amendment confers an individual right to possess handguns in the home for self - defense, unrelated to service in a well - regulated state militia. 43 On June 28, 2010, the Supreme Court in McDonald v. City of Chicago, held that the Second Amendment as interpreted in Heller applies to state and local governments in addition to the federal government. 44 In Heller, the Court struck down the District's ban on handgun possession, finding that "the inherent right of self - defense has been central to the Second Amendment" and that handguns are "overwhelmingly chosen by American society" for self - defense in the home, "where the need for defense of self, family, and property is most acute. "45 The Court also struck down the District's requirement that firearms in the home be stored unloaded and disassembled or bound by a trigger lock or similar device, because the law contained no exception for self - defense. 42 Prior to June 2008, the U.S. Supreme Court last addressed the scope of the Second Amendment in United States v. Miller, 307 U.S. 174 (1939). In that case, the Court rejected a Second Amendment challenge brought by two individuals charged with violating a federal law prohibiting the interstate transportation of sawed -off shotguns. The Court held that the "obvious purpose" of the Amendment is to "assure the continuation and render possible the effectiveness" of the state militia, and the Amendment "must be interpreted and applied with that end in view." Id. at 178. After Miller, the scope of the Second Amendment was addressed in more than 200 federal and state appellate cases. These decisions overwhelmingly rejected Second Amendment challenges to firearm laws. See LCAV's web site, www.lcay.ora, for summaries of over 200 federal and state appellate cases prior to District of Columbia v. Heller rejecting Second Amendment challenges to firearms laws. " District of Columbia v. Heller, 128 S. Ct. 2783 (2008). 44 McDonald v. City of Chicago, No. 08 -1521, 2010 U.S. LEXIS 5523 (June 28, 2010). 41 Id at 2817. © Legal Community Against Violence 2010 Page 27 of 38 Although the Heller decision established a new individual right to "keep and bear arms," the opinion made it clear that the right is not unlimited, and should not be understood as "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. "46 The Court provided examples of gun laws that it deems "presumptively lawful" under the Second Amendment, including those which: Prohibit the possession of firearms by felons and the mentally ill; Forbid firearm possession in sensitive places such as schools and government buildings; and a Impose conditions and qualifications on the commercial sale of firearms. The Court made clear that this list is not exhaustive. 47 The Court in McDonald reiterated this list. 48 The Court in Heller also concluded that the Second Amendment is consistent with laws banning "dangerous and unusual weapons" not "in common use at the time," such as M -16 rifles and other firearms that are most useful in military service. 49 Finally, the Court declared that its analysis should not be read to suggest "the invalidity of laws regulating the storage of firearms to prevent accidents. "50 The Heller and McDonald decisions failed to articulate a legal standard of scrutiny, or test, to be applied in evaluating other laws under the Second Amendment. However, these decisions leave no doubt that regulation of firearms remains legally permissible. Even after Heller and McDonald, most common sense gun violence prevention measures, such as those contained in this model law, are likely to be upheld. As mentioned above, the Court made clear that the right to bear arms is not unlimited and that its list of presumptively lawful regulations was not exhaustive. Moreover, the Court specifically declared that its analysis should not cast doubt on laws imposing conditions and qualifications on the commercial sale of firearms. 51 For more information about the Second Amendment, including summaries of federal appellate cases decided after Heller, see: http:// www .Icay.or_/content /secondamend index.asp. 2. State Right to Bear Arms The constitutions of most states recognize a "right to bear arms." However, the California Constitution contains no "right to bear arms" provision. In Kasler v. Lockyer, 2 P.3d 581, 586 (Cal. 2000), the California Supreme Court rejected a challenge to the state ban on assault weapons, confirming that "no mention is made in [the California Constitution] of a right to bear arms," and "regulation of firearms is a proper police function." 46 Id. at 2816. 4' Id. at 2817 n.26. 48 McDonald, 2010 U.S. LEXIS 5523 at *79. 49 128 S. Ct. at 2817. so Id. at 2820. In addition, the Heller Court did not invalidate D.C.'s requirement that firearm owners be licensed. Mr. Heller's attorney conceded that the licensing scheme was not, in itself, unlawful. Therefore, the Court did not address this requirement. Id. at 2819. " Heller, 128 S. Ct. at 2816 -2817; McDonald, 2010 U.S. LEXIS 5523 at *79. © Legal Community Against Violence 2010 Page 28 of 38 B. Equal Protection The Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." However, when a law makes a classification neither "involving fundamental rights nor proceeding along suspect lines," the law will withstand constitutional scrutiny so long as it bears a rational relationship to a legitimate governmental interest. 52 In Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420 (Cal. Ct. App. 1997), a firearms dealer brought an equal protection challenge against a law prohibiting minors from entering premises where the sale of firearms is the primary business performed at the site. The court held that "[b]ecause minors have a legitimate reason for entering sports or department stores that sell merchandise other than weapons or weapons - related goods, a rational basis exists for distinguishing between such businesses and those that primarily sell weapons. "53 The dealer also claimed that the requirement that firearms dealers carry liability insurance was a denial of equal protection because it discriminates between firearms dealers and other businesses selling products that can and do cause injury, and because it fails to discriminate between firearms dealers on the basis of size and probable volume of sales. The court also rejected these claims. 54 In Koscielski v. Minneapolis, 435 F.3d 898 (8th Cir. 2006), a firearms dealer brought an equal protection challenge against the City of Minneapolis's zoning ordinance requiring firearms dealers to obtain conditional use permits and locate within particular zones and only in locations sufficiently distant from day care centers and churches. The court first held that the dealer's claim involved neither a suspect classification nor a fundamental right. Therefore, the law would be found constitutional if it bore a rational relationship to a legitimate governmental interest. Upholding the law, the court concluded, "the implications for public safety warrant regulating and zoning firearms dealerships differently than other retail establishments. "55 The majority of cases also have rejected equal protection challenges to firearms laws under the U.S. Constitution and analogous state constitutional provisions. 5 12 Heller v. Doe, 509 U.S. 312, 320 (1993), see also Schweiker v. Wilson, 450 U.S. 221, 230 (1981). Classifications along "suspect lines" can include a suspect class (e.g., race) or quasi- suspect class (e.g., gender). See, e.g., Lavia v. Pennsylvania, 224 F.3d 190, 200 (3d Cir. 2000). 53 Suter, 67 Cal. Rptr. 2d at 434. 54 Id. at 435 -436. 55 Koscielski, 435 F.3d at 902. 56 See, e.g., United States v. Lewitzke, 176 F.3d 1022 (7th Cir. 1999) (rejecting equal protection challenge to federal law banning possession of firearm by person convicted of domestic violence misdemeanor); United States v. McKenzie, 99 F.3d 813 (7th Cir. 1996) (rejecting equal protection challenge to federal law banning possession of firearm by felon); California Rifle and Pistol Ass'n. v. City of West Hollywood, 78 Cal. Rptr. 2d 591, 605 -606 (Cal. Ct. App. 1998) (rejecting equal protection challenge to ban on the sale of "junk guns "); Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002) (rejecting equal protection challenge to the definition of "assault weapon" in the 1994 federal assault weapon ban, which expired in 2004). But see Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir. 1998) (upholding equal protection challenge against federal law banning possession of firearms by government employees convicted of domestic violence misdemeanors but allowing possession by government employees convicted of domestic violence felonies). © Legal Community Against Violence 2010 Page 29 of 38 Note that the decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. City of Chicago, No. 08 -1521, 2010 U.S. LEXIS 5523 (June 28, 2010) did not address equal protection claims, but the Court's dicta suggests that the rational basis test is not appropriate for reviewing firearms regulation under the Second Amendment. 57 The Court did not set a standard for reviewing firearms laws. Although the Court in McDonald called the right "fundamental" for other purposes, the Court did not consider whether the Second Amendment right is a fundamental right for purposes of equal protection review. It is likely that future cases will resolve these issues. C. Due Process The due process clause of the Fourteenth Amendment to the U.S. Constitution provides that no person shall be deprived of "life, liberty, or property, without due process of law...." Courts have held that the due process clause includes both substantive and procedural guarantees. Substantively, a law failing to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or failing to provide explicit standards for those who apply the law, violates due process under the federal constitution. As the U.S. Supreme Court has explained, "[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. "58 Note, however, that clearly written laws also can violate due process when they are overbroad, impinging on constitutionally - protected conduct. 59 Procedural due process imposes constraints on governmental decisions which deprive individuals of "liberty" or "property" interests within the meaning of the due process clause of the Fifth or Fourteenth Amendment. 60 Courts have held that the due process clause generally requires the government to provide the affected person with the opportunity to be heard at a meaningful time and in a meaningful manner, before the deprivation of the liberty or property interest. 61 In Suter v. City of Lafayette, 67 Cal, Rptr. 2d 420, 433 (Cal. Ct. App. 1997), a firearms dealer challenged the City of Lafayette's requirements that firearms dealers obtain land use and police permits, and the city's zoning ordinance, which limited firearms dealers to areas zoned for retail or general commercial uses. The court held that these restrictions do not violate the substantive due process clause, noting that: As the operation of a firearms dealership is a commercial enterprise, there is a rational basis for confining that operation to commercially zoned areas. In addition, because dealerships can be the targets of persons who are or should be excluded from possessing weapons, it is reasonable to insist that dealerships be located away from residential areas, schools, liquor stores and bars. 62 " Heller, 128 S.Ct. at 2818 n.27. 58 Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). " Id. at 114-15. 60 Mathews v. Eldridge, 424 U.S. 319, 333 (1976). G1 Id 62 Suter, 67 Cal. Rptr. 2d at 433. © Legal Community Against Violence 2010 Page 30 of 38 The court also noted that substantive due process allows for imprecise zoning or licensing ordinances, because of the need for government "in large urban areas to delegate broad discretionary power to administrative bodies. "63 In Baer v. Wauwatosa, 716 F.2d 1117 (7th Cir. 1983), a licensed gun dealer brought an action against a city, mayor, and council members, alleging that by taking away his license to sell guns, the defendants had deprived him of property without due process of law. The city had revoked the license when the dealer was convicted of a felony. The court held that the dealer was deprived of "property" within the meaning of the due process clause when the city revoked his license, but that the procedures used for the revocation were adequate. 64 The court also held that the revocation of the license did not violate the substantive due process clause, stating: The sale of guns is fraught with both short -term and long -term danger to the public -- or so at least the Wauwatosa authorities could rationally conclude, and no more is required to uphold the substantive validity of their action under the due process clause. The short- term danger is that the guns will be sold to criminals, children, and others who are, for excellent reasons, forbidden by law to have them; the long -term danger is that the circumstances of sale will encourage people to think of guns as weapons of aggression.65 Most courts have rejected due process challenges to firearms laws under the U.S. Constitution and analogous state constitutional provisions. 66 Note that the decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. City of Chicago, No. 08 -1521, 2010 U.S. LEXIS 5523 (June 28, 2010), did not address due process claims, but the Court's dicta suggests that the rational basis test is not appropriate for reviewing firearms regulation under the Second Amendment. 67 The Court did not set a standard for reviewing firearms laws. It is likely that future cases will resolve these issues. D. Privilege Against Self- Incrimination The Fifth Amendment to the U.S. Constitution provides in part that no person "shall be compelled in any criminal case to be a witness against himself." Record - keeping requirements 63 Id. at 431. 64 Baer, 716 F.2d at 1122 -1123. 61 Id at 1123. 66 See, e.g., United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000) (rejecting due process challenge to federal law prohibiting possession of firearms by persons convicted of misdemeanor crimes of domestic violence); United States v. Lim, 444 F.3d 910 (7th Cir. 2006) (rejecting due process challenge to federal law requiring registration of sawed - off shotguns); United States v. Edwards, 182 F.3d 333 (5th Cir. 1999) (rejecting due process challenge to federal law banning possession of firearm by an unlawful user of a controlled substance); City of Cincinnati v. Langan, 640 N.E.2d 200 (Ohio Ct. App. 1994) (rejecting due process challenge to local assault weapon ban). But see Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994) (upholding a due process challenge to portions of the definition of "assault weapon" in local assault weapon ban); United States v. Vest, 448 F. Supp. 2d 1002 (S.D. Ill. 2006) (upholding as applied due process challenge to law enforcement exception to federal laws restricting transfer and possession of machine guns). 67 Heller, 128 S.Ct. at 2818 n.27. © Legal Community Against Violence 2010 Page 31 of 38 violate the "privilege against self - incrimination" when they are directed principally at persons "inherently suspect of criminal activities. "68 As discussed below, opponents of this model law may argue that the requirement that ammunition sellers maintain a record of each ammunition sale violates the privilege against self - incrimination because it requires purchasers, even those who are prohibited by law from possessing ammunition, to admit they purchased ammunition. However, the type of information recorded pursuant to this model law is neutral on its face, and this part of the model law is directed at ammunition purchasers generally, not a group inherently suspect of criminal activity. This requirement therefore does not violate the privilege against self - incrimination. E. Preemption and Local Authority to Regulate Firearms Preemption occurs when a higher level of government removes regulatory power from a lower level of government. For example, Congress may remove legislative authority from the states in certain areas. Likewise, state governments may, in some cases, remove local legislative authority. 1. Federal Preemption Under the Supremacy Clause of Article VI of the U.S. Constitution, a federal law is binding on all state and local governments so long as Congress duly enacted the law pursuant to one of its limited powers. When federal law removes state authority (and thus local authority) to regulate a specific subject matter, the process is called "federal preemption." Federal preemption of state law is uncommon in the area of firearms regulation. Congress may make its intention to preempt an area of state law clear by expressly stating its intent in the language of a statute. Absent such a statement, when considering a challenge to a state or local law based on the claim that regulation of the subject has been preempted by Congress, courts presume that the federal government does not intend to preempt state and local authority. 69 When the challenged law is within an area of traditional state authority, the reviewing court will find preemption only when the court is "absolutely certain" that Congress intended to take away that authority. 70 Courts look for the existence of a pervasive scheme of federal legislation of the particular subject, or an irreconcilable conflict between the federal regulation and the challenged law, to determine congressional intent. 71 Congress has not expressly preempted the broad field of firearms regulation. 72 Furthermore, courts have held that congressional regulation of firearms does not create a scheme so pervasive G8 Haynes v; U.S., 390 U.S. 85 (1968), Garner v. U.S., 424 U.S. 648 (1976); California v. Byers, 402 U.S. 424 (1971). 69 Richmond Boro Gun Club, Inc. v. City of.New York, 896 F. Supp. 276, 285 (E.D.N.Y. 1995), aff'd, 97 F.3d 681 (2d Cir. 1996) (upholding New York City's assault weapon ban against a federal preemption challenge). 70 Gregory v. Ashcroft, 501 U.S. 452, 464 (199 1) (rejecting a federal preemption challenge to a Missouri constitutional provision setting mandatory retirement age for state judges). 71 Richmond, 896 F. Supp. at 285. 72 Rather, courts have cited 18 U.S.C. § 927 for the proposition that Congress has expressed an intent not to preempt the field of firearms. See, e.g., Oefinger v. Zimmerman, 601 F.Supp. 405 (W.D. Pa. 1984) (rejecting a federal preemption challenge to a state law banning machine guns and sawed -off shotguns); C.D,M. Products, Inc., v. City © Legal Community Against Violence 2010 Page 32 of 38 that it leaves no room for state and local law. 73 Thus, absent a specific, irreconcilable conflict between a challenged state or local firearm law and a federal enactment, there is no federal preemption of that state or local law. 2. State Preemption Most state constitutions allocate authority to local governments to regulate in the interests of the public health, safety and welfare (which generally includes regulation of firearms). "State preemption" occurs when a state government removes a portion of a local government's legislative authority. States differ considerably in how and to what extent they preempt the regulation of firearms. Article XI, § 7 of the California Constitution provides that "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." A local government's police power under this provision includes the power to regulate firearms. 74 Ordinances enacted pursuant to the police power are valid unless they conflict with state law. 75 A conflict exists if the ordinance contradicts, duplicates, or enters an area occupied by general law, either expressly or by legislative implication. 6 The California Legislature has expressly preempted the following areas of firearms law: 1) licensing or registration of commercially manufactured firearms; 2) licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business; and 3) regulation of the manufacture, sale or possession of "imitation firearms." California Government Code § 53071 provides: It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the of New York, 350 N.Y.S.2d 500 (N.Y. Sup. Ct. 1973) (rejecting a federal preemption challenge to a local ordinance requiring licensing of wholesale firearm manufacturers and assemblers). 18 U.S.C. § 927 provides that "No provision of this chapter [18 U.S.C. § 921 et seq, which contains provisions regulating the licensing of firearms manufacturers and dealers, firearms possession, the carrying of weapons, and armor piercing ammunition] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together." Note, however, that 18 U.S.C. § 926A provides that, notwithstanding state or local law, a person may transport firearms "from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm" so long as he or she complies with the specified safety standards. Courts have found this provision to supersede local laws regulating transportation of firearms. See, e.g., Bieder v. United States, 662 A.2d 185 (D.C. 1995) (reversing conviction for multiple violations of District firearms laws on grounds that trial court failed to allow defense based on 18 U.S.C. § 926A); Arnold v, City of Cleveland, 1991 Ohio App. LEXIS 5246 (Ohio Ct. App. 1991) (upholding federal preemption challenge to local law banning transportation of assault weapons). But see Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415 (E.D. Cal. 1990) (rejecting federal preemption challenge to state law banning transportation of assault weapons). 73 Richmond, 896 F. Supp. at 285. 74 Galvan v. Superior Court of San Francisco, 452 P.2d 930 (Cal. 1969). 75 Sherwin- Williams Co. v. City of Los Angeles, 844 P.2d 534, 536 (Cal. 1993). 76 Id. at 536 -7. © Legal Community Against Violence 2010 Page 33 of 38 provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in section 1721 of the Labor Code. California Penal Code § 12026(b) provides: No permit or license to purchase, own, possess, keep, or carry... shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident. California Government Code § 53071.5 provides: By the enforcement of this section, the Legislature occupies the whole field of regulation of the manufacture, sale, or possession of imitation firearms, as defined in section 12550 of the Penal Code, and that section shall preempt and be exclusive of all regulations relating to the manufacture, sale, or possession of imitation firearms, including regulations governing the manufacture, sale, or possession of BB devices and air rifles described in subdivision (g) of Section 12001 of the Penal Code. 77 Courts will not infer preemption unless the circumstances clearly indicate the Legislature intended to preempt the field.78 Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420 (Cal. Ct. App. 1997) involved a preemption challenge to an ordinance regulating the location and operation of firearms dealers, and requiring firearms dealers to obtain local land use and police permits. The court of appeal dismissed the action, holding that local governments are not generally excluded by state law from imposing additional requirements on firearms dealers. 79 In fact, the court noted that California Penal Code § 12071 explicitly contemplates local regulation of firearms dealers, including local licensing requirements. The court in Suter found that the ordinance did not conflict with, duplicate, or enter into a field fully occupied by state law and was not, therefore, preempted, with one exception. The court struck down the portion of the ordinance regulating firearm storage, stating that it was preempted by the storage requirements in Penal Code § 12071(b)(14). However, subsequent to that case, the Legislature added Penal Code § 12071(b)(15), which states, "The licensing authority in an 77 In addition, California generally permits local regulation of sport shooting ranges, but provides that local jurisdictions may not enforce new or amended noise control laws on shooting ranges that are in operation and not in violation of existing law at the time of the enactment of the new or amended noise control ordinance, if there has been no substantial change in the nature or use of the range. Cal. Civ. Code § 3482.1(d). 78 California Re and Pistol Assn, Inc. v. City of West Hollywood, 78 Cal. Rptr. 2d 591, 600 (Cal. Ct. App. 1998) (holding that state law did not preempt a local ordinance banning the sale of Saturday Night Specials). 79 Suter, 67 Cal. Rptr. 2d at 427. © Legal Community Against Violence 2010 Page 34 of 38 unincorporated area of a county or within a city may impose security requirements that are more strict or are at a higher standard than those specified in paragraph (14)." Hence, California law does not preempt local governments from imposing requirements on firearms dealers, including licensing and security requirements, to supplement state law. 80 The California Legislature has not expressly preempted any field related to ammunition sellers or sales. California adopted a law in 2009, AB 962 (De Leon), that governs certain aspects of ammunition sales and transfers, specifically requiring ammunition sellers to create and maintain records of handgun ammunition sales and transfers, and to store handgun ammunition so that it is inaccessible to customers without the assistance of the seller or an employee. However, there is no evidence that the Legislature intended through this law to remove local authority to regulate long gun ammunition sales. While this is an open question for the courts, we believe strong legal arguments exist in support of a variety of local ammunition- related ordinances. 80 Note that, in Fiscal v. City and County of San Francisco, 70 Cal. Rptr. 3d 324 (Cal. Ct. App. 2008), a court of appeal held that Proposition H, a municipal ordinance prohibiting all handgun possession and the sale, distribution, transfer and manufacture of all firearms and ammunition in San Francisco, was preempted by state law. © Legal Community Against Violence 2010 Page 35 of 38 III. Responses to Common Opposition Arguments Opponents of this model law might argue that it creates undue burdens for firearms dealers and ammunition sellers, especially small businesses, by increasing the costs of doing business. However, the provisions of this model law impose modest costs to businesses. Furthermore, the benefits to public safety detailed in the findings of this model law clearly outweigh the costs imposed on the gun industry. In addition, the security measures required by the law prevent the theft of merchandise and protect the dealer's inventory. Responsible firearms dealers and ammunition sellers already use these measures and should welcome the elimination of competition from irresponsible dealers who present a danger to the public. Several arguments are sometimes raised specifically in opposition to the record - keeping requirement for ammunition purchases. Some of the most common arguments are that: • The record - keeping requirement for ammunition purchases will significantly delay transactions and drive customers outside the jurisdiction. • Congress repealed a similar requirement in 1986, presumably because it was ineffective or costly to enforce. • The requirement violates the purchaser's right to privacy and will lead to identity theft. • The requirement is unconstitutional because it violates the privilege against self - incrimination. These arguments lack merit, as shown by California's recent adoption of a law (AB 962- De Leon) imposing this requirement on all handgun ammunition purchases. The record - keeping requirement will not significantly delay transactions or drive customers outside the jurisdiction. The Sacramento Police Department has estimated that this requirement only adds two minutes to a transaction, significantly less time than if the customers got in their cars and traveled elsewhere to purchase ammunition. The inconvenience to law- abiding citizens is minor and is warranted by the lethal nature of the product being purchased. It is true that the Firearm Owners' Protection Act of 1986 (FOPA) repealed several ammunition - related provisions of the Gun Control Act of 1968. However, the elimination of almost all federal regulation of ammunition sales and transfers constituted only a fraction of FOPA's sweeping changes to federal firearms regulations. 81 FOPA was sponsored by the gun lobby, and the NRA website currently states that its lobbying arm worked for more than a decade to secure FOPA's passage. 82 The NBA's argument that the ammunition record- keeping provisions of federal law were ineffective is also undermined by California's recent adoption of AB 962. This law is based on the experiences in Los Angeles and Sacramento (discussed above), which showed that a record - keeping requirement for ammunition sales can be quite effective. In addition, technological advances since the date of FOPA now allow records to be transmitted electronically, making enforcement less burdensome. Moreover, the federal record- keeping law " FOPA also limited the number of inspections of dealers' premises ATF could conduct without a search warrant; prevented a central federal database of firearms, firearms owners, or firearms transactions; legalized sales by dealers at gun shows within the same state; and loosened the requirement of a federal license for persons engaged in the business of firearms sales. Pub. L. No. 99 -308. 62 National Rifle Association, About NRA -ILA, Who We Are, And What We Do, at http: / /www.nraila.ora /About /. © Legal Community Against Violence 2010 Page 36 of 38 was difficult to enforce because state and local law enforcement agencies were required to petition the Secretary of the Treasury for access to the sales logs. AB 962 and this model law, in contrast, allow state and local law enforcement to independently access the records. The record- keeping requirement does not violate the purchaser's right to privacy or lead to identity theft. Only the seller and law enforcement are granted access to the information that the ammunition purchaser must provide. This information is identical to the information that a person purchasing a firearm must provide. There is no evidence that identity theft has ever occurred in connection with a firearm sale. Accordingly, there is no reason to believe that ammunition sellers or law enforcement officers will steal an ammunition purchaser's identity. Moreover, the requirement that ammunition sellers maintain a record of each ammunition sale does not violate the privilege against self - incrimination. As noted above, record- keeping requirements violate the "privilege against self - incrimination" when they. are directed principally at persons "inherently suspect of criminal activities. "83 However, the type of information recorded pursuant to this model law is neutral on its face, and this provision is directed at ammunition purchasers generally, not a group inherently suspect of criminal activity. This requirement therefore does not violate the privilege against self - incrimination. Finally, opponents of the requirement that firearms dealers provide an inventory of their merchandise to local law enforcement every six months sometimes argue that this requirement constitutes "registration" of commercially manufactured firearms and is therefore preempted by California Government Code § 53071. However, "registration" refers to a system that records the identity of the purchasers or owners of firearms along with information about the firearms purchased or owned by those individuals. The inventory, requirement described in this model law does not involve recording information about the purchasers or owners of firearms. As a result, it is not a registration requirement and is not preempted. 83 Haynes v. U.S., 390 U.S. 85 (1968); Garner v, U.S., 424 U.S. 648 (1976); California v. Byers, 402 U.S. 424 (1971). © Legal Community Against Violence 2010 Page 37 of 38 Conclusion LCAV hopes that this report will be useful to local jurisdictions in California considering the adoption of ordinances to regulate firearms dealers and /or ammunition sellers. LCAV is available to provide additional legal research, analysis, and drafting assistance to those seeking to enact this or other laws to reduce gun violence. Please see www.lcay.org for more information about our services, and contact us at 415 -433 -2062 if we can be of assistance. © Legal Community Against Violence 2010 Page 38 of 38 BECAUSE SMART GUN LAWS SAVE LIVES Model Law to Ban Assault Weapons and Large Capacity Ammunition Magazines December 2012 The Law Center to Prevent Gun Violence has developed a model assault weapon law that combines the best elements of assault weapon bans across the country, bringing together the strongest and most effective provisions into a single document. The model law is based on our review of existing laws, judicial decisions, policy research, studies, and other gun violence prevention data. Part I of this report provides a summary of the provisions of the model law. Part 11 provides an image of an assault weapon with labels and descriptions of the features that make assault weapons inappropriate for civilian use. The model law itself is presented in Part III. Part IV of this report discusses opposition arguments to laws banning assault weapons and large capacity ammunition magazines. For more information on assault wea ons nd lar e ca�aci . ammunition magazines enerally, see the Law Center's policy discussions on these topics. Model laws provide a starting point — a framework from which legislation may be drafted, reviewed, debated, and ultimately adopted. A jurisdiction seeking to enact this model law must integrate the model language with existing laws, and any jurisdiction considering firearms legislation should seek the advice of legal counsel. The Law Center is available to provide assistance to any jurisdiction seeking to tailor a model law to its particular needs. This model law is not intended as legal advice to any person or entity, and should not be regarded as such. For more information and assistance in drafting a law, please contact the Law Center at (415) 433 -2062, or via e -mail at re uestassistance smart6unlaws.orc This report contains our nonpartisan analysis, study, and research on gun violence prevention case law and policies, and is intended for broad distribution to the public. Our presentation of this report is based upon our independent and objective analysis of the relevant law and pertinent facts and should enable public readers to form their own opinions and conclusions about the merits of this sample legislation. Part I Summary of Provisions The principal elements of the Law Center model include: • Definition of assault weapons. Based on a "single military feature test," the definition eliminates one of the weaknesses of the expired federal ban, which included a two feature test, and emphasizes high capacity and enhanced control during firing. • Ban on assault weapons. The manufacture, importation, possession, purchase and transfer of assault weapons are prohibited. • Ban on large capacity ammunition magazines. Also separately prohibited are the manufacture, importation, possession, purchase and transfer of large capacity ammunition magazines — feeding devices whose capacity greatly enhances the lethality of assault weapons and other firearms. • Treatment of assault weapons already in circulation Two options are included. Under Option 1, assault weapons already in circulation are banned and must be removed from the jurisdiction, sold to a licensed firearms dealer, rendered permanently inoperable, or surrendered for disposal to the appropriate law enforcement authority. This option has been adopted by the District of Columbia. Under Option 2, "pre -ban" assault weapons are grandfathered and must be registered with the Law Center to Prevent Gun Violence appropriate law enforcement authority, a process included in a number of state and local bans, but not in the federal ban. The federal law did not require registration and allowed the continued transfer and possession of pre -ban assault weapons. Treatment of large capacity ammunition magazines already in circulation. As with assault weapons, two options are included. The first option provides that large capacity ammunition magazines already in circulation are banned and must be removed from the jurisdiction, sold to a licensed firearms dealer, or surrendered for disposal to the appropriate law enforcement authority. This option has been adopted in Hawaii and New Jersey. The second option allows an individual who lawfully possesses a pre -ban large capacity ammunition magazine to register his or her possession of the magazine with the appropriate law enforcement authority. A person may register their possession of no more than three large capacity magazines and must dispose of any additional large capacity ammunition magazines in his or her possession. Part 11 Assault Weapon Features Assault weapons are distinguishable from other semi - automatic firearms based on the combat -style features that allow a shooter to control the weapon while rapidly spraying large amounts of fire. The image below is of a Bushmaster Carbon 15 M4 Rifle which includes all of these features. (This M4 Rifle has a telescoping stock. The folding and thumbhole stock are pictured separately.) It can be purchased by civilians in most states. Assault weapon features are discussed in greater detail in the findings on pages four and five. PO IF 51 FOLDING STOCKS provide concealability and mobility, Pod THUMBHOLE STOCKS allow the shooter to control the weapon during rapid firing. TELESCOPING STOCKS provide concealability and mobility, 2 Law Center to Prevent Gun Violence BARRELSHROUDS allow the shooter to hold the barrel without getting burned and thus control the firearm during rapid firing. �'- DETACHABLE MAGAZINES PISTOL GRIPS continually feed ammunition into the chamber allow the shooter to allowing the shooter to fire without the need to control the weapon stop and reload, The magazine can be loaded during rapid firing, or unloaded while detached from the firearm. Large capacity magazines can hold as many as 100 rounds of ammunition. 2 Law Center to Prevent Gun Violence Part I I I Text of Model Law ACT BANNING ASSAULT WEAPONS AND LARGE CAPACITY AMMUNITION MAGAZINES Findings [Findings in support of a law are most effective when they are specific and localized. When possible, incorporating state and /or local data from law enforcement, the public health community, and the media is advised. General findings are included below.] Whereas, assault weapons are semi - automatic firearms designed with military features to allow rapid spray firing for the quick and efficient killing of humans. Whereas, large capacity ammunition magazines (generally defined as magazines capable of holding more than 10 rounds) are feeding devices that and may hold as many as 100 rounds of ammunition. Whereas, assault weapons and /or large capacity ammunition magazines have been the tools of choice in many mass shootings of innocent civilians, including those described below: • Newtown, Connecticut, December 14, 2012: Adam Lanza killed 26 and wounded 2 at Sandy Hook Elementary School. Twenty of the dead were young children. Lanza was armed with a Bushmaster AR -15 assault rifle, two regular handguns, multiple 33 -round magazines, and hundreds of rounds of ammunition; • Oak Creek, Wisconsin, August 5, 2012: Wade Michael Page killed 6 and wounded 4 armed with a regular handgun and 19 -round ammunition magazines; • Aurora, Colorado, July 20, 2012: James Holmes killed 12 and wounded 58 armed with a Smith & Wesson M &P15 assault rifle and 100 -round ammunition magazines; • Tuscon, Arizona, January 8, 2011: Jared Loughner killed 6 and wounded 13 armed with a regular handgun and 33 -round ammunition magazines; • Carson City, Nevada, September 6, 2011: Eduardo Sencion killed 4 and wounded 7 armed with a Norinco Mak 90, that had been altered from a semi- automatic assault weapon to a fully- automatic machine gun; • Blacksburg, Virginia, April, 2007: Seung -Hui Cho killed 32 and wounded 17 at Virginia Tech armed with a regular handgun and 15 -round ammunition magazines; • Washington D.C. area, October 2002: John Allen Muhammad and Lee Boyd Malvo killed 10 and wounded 3 during a 3 -week rampage armed with a Bushmaster XM -15 E2S assault rifle; • Columbine, Colorado, April 20, 1999: Eric Harris and Dylan Klebold killed 12 and wounded 21 at Columbine High School. Klebold was armed with a TEC -9 assault pistol and several large capacity ammunition magazines; • San Francisco, California, July 1, 1993: Gian Luigi Ferri killed 9 and wounded 6 armed with TEC -9 assault pistols and 40- and 50 -round ammunition magazines. Law Center to Prevent Gun Violence Whereas, assault weapon shootings are responsible for a significant percentage of the deaths of law enforcement officers killed in the line of duty.' Anecdotal evidence from law enforcement leaders suggests that military -style assault weapons are increasingly being used against law enforcement by drug dealers and gang members.' In response, law enforcement agencies are upgrading their arsenals to include more assault weapons.3 Whereas, the International Association of Chiefs of Police recommends enactment of effective bans on military -style assault weapons in order to curb the ability of criminals to "outgun" law enforcement officers.4 Whereas, in 1994, a federal ban on the manufacture, transfer, and possession of semi - automatic assault weapons and the transfer and possession of large capacity ammunition magazines was enacted.5 The law included a ten -year sunset provision. In 2004, Congress allowed the law to expire. Seven states and the District of Columbia currently ban assault weapons and (with the exception of Connecticut) large capacity ammunition magazines at the state level .6 The District of Columbia ban does not grandfather pre -ban weapons and the laws in Hawaii and New Jersey do not grandfather pre -ban large capacity ammunition magazines.' Two additional states regulate, but do not ban, assault weapons.8 Whereas, studies show that the federal assault weapon ban resulted in a marked decrease in the use of assault weapons and large capacity ammunition magazines in crime. One study found that in several major cities, the share of recovered crime guns that were assault weapons declined by at least 32% after the federal ban was adopted.9 Another study analyzed data kept by the Virginia State Police and found a clear decline in the percentage of crime guns that were equipped with large capacity ammunition magazines after the federal ban was enacted. The percentage reached a low of 10 % in 2004 and then steadily climbed after Congress allowed the ban to expire; by 2010, the percentage was close to 22 %.'0 ' Violence Policy Center, Officer Down — Assault Weapons and the War on Law Enforcement, May 2003. ' International Association of Chiefs of Police (IACP), Taking a Stand: Reducing Gun Violence in Our Communities 26 -7 (Sept. 2007). 3 See, e.g., Susan Candiotti, Cops Find Themselves in Arms Race with Criminals, Cable News Network, Nov. 6, 2007, available athttp: / /www.enn.com/ 2007 /US /11 /05 /cops.guns /index.html (last visited Aug. 21, 2012); Kevin Johnson, Police Needing Heavier Wea p ons, USA Today, Feb. 20, 2007, at IA. 4 Taking a Stand, supra note[p]2 , 5 18 U.S.C. § 922(v)(1). All references to sections of the Violent Crime Control and Law Enforcement Act of 1994, codified at 18 U.S.C. § 921 at Seq., are to the sections as they appeared on September 12, 2004. 6 The states that ban assault weapons are: California (Cal Penal Code §§ 16350, 16790, 16890, 30500- 31115); Connecticut (Conn. Gen. Stat. §§ 53 -202a – 53- 2020); Hawaii (assault pistols only)( Haw. Rev, Stat. Ann. §§ 134 -1, 134 -4, 134 -8); Maryland (assault pistols only)( Md. Code Ann,, Crim. Law §§ 4 -301 – 4- 306); Massachusetts (Mass. Gen. Laws ch. 140, §§ 121, 122, 123, 131, 131M); New Jersey (N.J. Stat. Ann. §§ 2C:39 -1w, 2C:39 -5, 2C:58 -5, 2C:58-12,2C:58-13); and New York (N.Y. Penal Law §§ 265.00(22), 265.02(7), 265.10). The District of Columbia's ban is codified at D.C. Code Ann, §§ 7- 2501.01(3A), 7- 2502.02(a)(6), 7- 2505.01, 7- 2505.02(a), (c). ' D.C. Code Ann. §§ 7- 2501.01(3A), 7- 2502.02(a)(6), 7- 2505.01, 7- 2505.02(a), (c); Haw. Rev. Stat. Ann. §§ 134 -1, 134 -4, 134 -8; N.J. Stat. Ann. §§ 2C:39 -1w, 2C:39 -5, 2C:58 -5, 2C:58 -12, 2C:58 -13. 8 The states that regulate but do not ban assault weapons are Minnesota (Minn. Stat. §§ 624.712 – 624.7141) and Virginia (Va. Code Ann. §§ 18.2- 287.4, 18.2- 308.2:01, 18.2- 308.2:2, 18.2- 308.7, 18.2 - 308.8). In addition to its ban on assault pistols, Maryland also re ulates the sale of other assault weapons. Md. Code Ann., Pub. Safe § 5-101(p). 9 Christopher S. Koner, An Updated Assessment of the Federal Assault Weapons Ban: lmdaCtS on Gun Marlrets and Gun Violence, 1Y,94-L0031 Report to the National Institute of Justice, U.S. Department of Justice (June 2004) 49. About the Pro%ect: The Hidden Life of Guns Wash. Post, Jan. 22, 2011; David S. Fallis & James V. Grimaldi, Virginia data show drop in criminal firepower during assault gun ban, Wash. Post, Jan. 23, 2011. Law Center to Prevent Gun Violence Whereas, the expired federal assault weapon ban would have been even more effective had it not contained major loopholes that allowed manufacturers to easily evade the ban; Whereas, assault weapons are inappropriate for civilian use due to their unique combinations of features. An assault weapon allows a shooter to fire a large number of rounds rapidly while maintaining control of the firearm. Specific features that allow an assault weapon to perform this way are: ® Detachable ma ag Line: A firearm that can accept a detachable magazine allows a shooter to attach magazines of any size available for the firearm. In some cases, magazines can hold as many as 100 rounds. Even smaller detachable magazines greatly increase firepower since the firearm can be reloaded with pre - filled magazines in seconds; ® Pistol Grip: To counteract the movement that occurs when a semi - automatic weapon is fired rapidly, assault weapons are typically equipped with features that allow the shooter to steady the weapon. A pistol grip, not typically found on a sporting rifle or shotgun (which would be fired from the shoulder), allows the shooter to control the firearm by shooting from the hip during rapid fire; ® Thumbhole stock: As with a pistol grip, a thumbhole stock allows the shooter to control the firearm by shooting from the hip during rapid fire; o Folding or telescoping stock: A folding or telescoping stock folds or collapses to make the weapon easier to conceal and transport. ® Barrel shroud: As with a pistol grip and thumbhole stock, a barrel shroud allows the shooter to steady the firearm during rapid fire. The shroud encircles the barrel of the firearm and allows the shooter to hold it without getting burned. Whereas, our nation's lax gun laws adversely impact other nations, especially Mexico. A joint report by scholars in Mexico and the United States found that semi - automatic assault rifles are the most sought after and widely used weapons by Mexican drug trafficking organizations.11 According to the Bureau of Alcohol, Tobacco, Firearms and Explosives ( "ATF "), over two - thirds of firearms seized by Mexican authorities and traced over fiscal years 2007 -2011 originated in the U.S.12 The actual percentage is likely much higher due to the large number of trace requests that lacked sufficient data to determine the source country of the firearm.13 Whereas, mass murderer Anders Behring Breivik, who gunned down 77 people at a summer camp in Norway in 2011, stated in his written manifesto that he purchased 30 -round ammunition magazines via mail order from a dealer in the United States. 14 11 Colby Goodman & Michel Marizco, U.S. firearms Trafficking to Mexico: New Data and Insights Illuminate Key Trends and Challenges, in SHARED RESPONSIBILITY: U.S.- MEXICO POLICY OPTIONS FOR CONFRONTING ORGANIZED CRIME 185 (Eric L. Olson, David A. Shirk & Andrew Selee eds., 2010). 12 U.S. Department of Justice, Bureau of Alcohol, Tobacco and Firearms and Explosives, Office of Strategic Intelligence and Information, International Firearms Trace Data, Mexico 2007-2011 (March 2012), available at: 14 CBSNews.com, Norway Massacre Spurs Calls for New U.S. Gun Laws (Jul. 28, 2011), available at http://www.ebsnews.coin/8301-503544-162-20085056-503544.htrnl. Law Center to Prevent Gun Violence Whereas, laws banning assault weapons are consistent with the Supreme Court's interpretation of the Second Amendment. In the 2008 ruling in District of Columbia v. Heller, the United States Supreme Court stated for the first time that the Second Amendment protects a law - abiding citizen's right to possess an operable handgun in the home for self-defense. 15 The Court noted, however, that the right is limited. Among other limitations, the Court recognized that the Second Amendment would not preclude banning "dangerous and unusual weapons" such as M -16 rifles. 16 Whereas, after the Ho//or decision, the District of Columbia adopted a set of strong new gun laws, including a measure prohibiting the possession of assault weapons and large capacity ammunition magazines. In 2011, the D.C. Circuit Court of Appeals upheld these laws against a Second Amendment challenge. 17 Whereas, a majority of Americans support banning military -style firearms and large capacity ammunition magazines. A CNN poll conducted in December 2012, found that 62% of the public supports a ban on semi- automatic assault guns and high - capacity ammunition magazines.18 A Field & Stream poll revealed that sixty -seven percent of its readers did not consider assault weapons to be legitimate sporting guns.19 Whereas, the wide availability of assault weapons is a serious risk to public health and safety; Therefore, the State legislature/Coun1y or City governing body hereby adopts the following: 2. Definitions (a) "Assault weapon" means any: (1) Semi - automatic rifle that has the capacity to accept a detachable magazine and has one or more of the following: (i) A pistol grip or thumbhole stock; (ii) Any feature capable of functioning as a protruding grip that can be held by the non - trigger hand; (iii) A folding or telescoping stock; (iv) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non - trigger hand without being burned, but excluding a slide that encloses the barrel; (2) Semi - automatic pistol, or any semi- automatic, centerfire or rimfire rifle with a fixed magazine, that has the capacity to accept more than 10 rounds of ammunition; (3) Semi - automatic pistol that has the capacity to accept a detachable magazine and has one or more of the following: 15 District of Columbia v. Helfer, 554 U.S. 570 (2008). 16 /d at 626 -28. 17 Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011). For other decisions and additional analysis, see the Opposition Arguments section of this document. " CNN Poll: Bare majority now support majorgun restrictions (Dec. 19, 2012)(citing a national poll conducted by ORC International from December 17 -18, 2012), available athttp:// politicalticker .blogs.enn.com/2012 /12 /19 /enn- poll- bare -maj ority- now - support -maj or- gun - restrictions /. 19 Field & Stream, The 2003 National Hunting Survey (July 2003). Law Center to Prevent Gun Violence (i) Any feature capable of functioning as a protruding grip that can be held by the non - trigger hand; (ii) A folding, telescoping or thumbhole stock; (iii) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non - trigger hand without being burned, but excluding a slide that encloses the barrel; or (iv) The capacity to accept a detachable magazine at any location outside of the pistol grip; (4) Semi - automatic shotgun that has one or more of the following: (i) A pistol grip or thumbhole stock; (ii) Any feature capable of functioning as a protruding grip that can be held by the non - trigger hand; (iii) A folding or telescoping stock; (iv) A fixed magazine capacity in excess of 5 rounds; or (v) An ability to accept a detachable magazine; (5) Shotgun with a revolving cylinder; (6) Conversion kit, part, or combination of parts, from which an assault weapon can be assembled if those parts are in the possession or under the control of the same person. (b) "Assault weapon" does not include any firearm that has been made permanently inoperable. [Note: Some jurisdictions exclude from the definition of "assault weapon" antique firearms (generally meaning firearms manufactured before 1899, although sometimes including replica firearms) and weapons designed for Olympic target shooting events. However, these exceptions are not required. Such categories of assault weapons also can be subject to registration rather than an outright ban.] (c) "Detachable Magazine" means an ammunition feeding device that can be loaded or unloaded while detached from a firearm and readily inserted into a firearm. (d) "Fixed Magazine" means an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action. (e) "Large capacity magazine" means any ammunition feeding device with the capacity to accept more than 10 rounds, or any conversion kit, part, or combination of parts, from which such a device can be assembled if those parts are in the possession or under the control of the same person, but shall not be construed to include any of the following: (1) A feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds. (2) A 22 caliber tube ammunition feeding device. (3) A tubular magazine that is contained in a lever- action firearm. Law Center to Prevent Gun Violence 3. Prohibitions (a) No person, corporation or other entity in the state /count, /y city_ may manufacture, import, possess, purchase, sell or transfer any assault weapon or large capacity magazine. (b) Section (a) shall not apply to: (1) Any government officer, agent, or employee, member of the armed forces of the United States, or peace officer, to the extent that such person is otherwise authorized to acquire or possess an assault weapon and /or large capacity magazine, and does so while acting within the scope of his or her duties; or (2) The manufacture of an assault weapon or large capacity ammunition magazine by a firearms manufacturer for the purpose of sale to any branch of the armed forces of the United States, or to a law enforcement agency in this state /coup / city for use by that agency or its employees, provided the manufacturer is properly licensed under federal, state and local laws. (3) The sale or transfer of an assault weapon or large capacity ammunition magazine by a dealer that is properly licensed under federal, state and local laws to any branch of the armed forces of the United States, or to a law enforcement agency in this state /county /city- for use by that agency or its employees for law enforcement purposes. (4) An individual who lawfully possesses a large capacity ammunition magazine if he or she is the lawful owner of a firearm for which no magazine that holds 10 or less rounds of ammunition is compatible, if both the magazine and the firearm were obtained prior to the effective date of this law. Such a magazine may be possessed solely for use with the firearm and no individual may possess more than three large capacity ammunition magazines. Possession must be properly registered pursuant to subsection (e). [Note that subsection (e) is part of Option 2, below.] [Option 1 — Banning assault weapons and Large capacity ammunition magazines already in circulation: Section (3)(c)] (c) Any person who, prior to the effective date of this law, was legally in possession of an assault weapon or large capacity ammunition magazine shall have 120 days from such effective date to do any of the following without being subject to prosecution: (1) Remove the assault weapon or large capacity ammunition magazine from the state/coup , /pity; (2) Sell the assault weapon or large capacity ammunition magazine to a licensed firearms dealer; (3) Surrender the assault weapon or large capacity ammunition magazine to the appropriate law enforcement agency for destruction [subject to specific agency regulations]; or (4) Render the assault weapon permanently inoperable and dispose of the large capacity ammunition magazine pursuant to section (1), (2), or (3); Law Center to Prevent Gun Violence [Option 2— Registration of assault weapons and possession of large capacity ammunition magazines already in circulation: Section (3)(c) through (i)] (c) Any person who, prior to the effective date of this law, was legally in possession of an assault weapon or large capacity ammunition magazine shall have 120 days from such effective date to do any of the following without being subject to prosecution: (1) Remove the assault weapon or large capacity ammunition magazine from the state/coup /city, (2) Sell the assault weapon or large capacity ammunition magazine to a licensed firearms dealer; (3) Surrender the assault weapon or large capacity ammunition magazine to the appropriate law enforcement agency for destruction [subject to specific agency regulations]; (4) Render the assault weapon permanently inoperable and dispose of the large capacity ammunition magazine pursuant to section (1), (2), or (3); or (5) If eligible, register the assault weapon as provided in subsection (d) and /or if eligible, register possession of the large capacity ammunition magazine pursuant to subsection (e). (d) Any person seeking to register an assault weapon that he or she legally possessed prior to the effective date of this law must comply with the following requirements: (1) Submit to a background check conducted by the appropriate law enforcement agency to confirm that he or she is not aprohibited purchaser under 18 U.S.C. § 922 [add the appropriate state and local citations]; (2) Unless the person is currently prohibited by law from possessing a firearm, immediately register the assault weapon with the appropriate law enforcement agency; (e) Any person seeking to register possession of a large capacity ammunition magazine must comply with the following requirements: (1) Submit to a background check conducted by the appropriate law enforcement agency to confirm that he or she is not a prohibited purchaser under 18 U.S.C. § 922 [add the appropriate state and local citations]; (2) Unless the person is currently prohibited by law from possessing ammunition, immediately register his or her possession of no more than three large capacity ammunition magazines with the appropriate law enforcement agency and dispose of any remaining large capacity ammunition magazines in his or her possession pursuant to section (c)(1), (c)(2), or (c)(3); (f) A registered owner of an assault weapon or large capacity ammunition magazine must comply with all of the following: (1) Safely and securely store the assault weapon and /or large capacity ammunition magazines pursuant to the regulations adopted by the appropriate law enforcement agency. Law enforcement is authorized to inspect the storage of assault weapons and large capacity ammunition magazines to ensure compliance with this subsection; (2) Annually renew the registration, subject to the completion of a new background check; Law Center to Prevent Gun Violence (3) Possess the assault weapon and /or large capacity ammunition magazines only on property owned or immediately controlled by the person, or while on the premises of a licensed firearms dealer or of a licensed gunsmith for the purpose of lawful repair, or while engaged in the legal use of the assault weapon and /or large capacity ammunition magazine at a duly licensed firing range, or while transporting the weapon or magazine in compliance with 18 U.S.C. § 926a; and (4) Report the loss or theft of a registered assault weapon and /or large capacity ammunition magazine to the appropriate law enforcement agency within 48 hours of the time the discovery of the loss or theft was made or should have been made. (g) Registered assault weapons or large capacity ammunition magazines may not be purchased, sold or transferred, except for transfer to a firearms dealer who is properly licensed under federal, state and local laws, transfer to a licensed gunsmith for the purpose of lawful repair, or transfer to the appropriate law enforcement agency for the purpose of surrendering the assault weapon or large capacity ammunition magazine for destruction. (h) The registered owner of an assault weapon and /or large capacity ammunition magazine may not purchase additional assault weapons or large capacity ammunition magazines. (i) Law enforcement may charge a fee for each registration and registration renewal pursuant to Section (c). 0) Persons acquiring an assault weapon or large capacity ammunition magazine by inheritance, bequest, or succession shall, within 120 days of acquiring title, do one of the following: (1) Surrender the assault weapon and /or large capacity ammunition magazine to the appropriate law enforcement agency for destruction [subject to specific agency regulations]; (2) Transfer the assault weapon and /or large capacity ammunition magazine to a firearms dealer who is properly licensed under federal, state and local laws; or (3) Modify the assault weapon to render it permanently inoperable and dispose of the large capacity ammunition magazine pursuant to section (1) or (2). 4. Penalties [Penalties vary significantly based on the standards of each state and local government. States almost always make assault weapon violations a felony. Maximum penalties range from three to 15 years in prison (but may be lower for first -time offenders), and a fine of several thousand dollars is sometimes an additional penalty, depending on the circumstances. Local penalties are usually limited to one year in jail and /or a $1,000 fine, although these penalties maybe lower in some cases /jurisdictions. In almost all cases, the weapons are subject to seizure and destruction.] 5. Severability If any provision or term of this Chapter is for any reason declared unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or the effectiveness of the remaining portions of this Chapter or any part thereof. The state /county /city hereby declares that it would 10 Law Center to Prevent Gun Violence have adopted this Chapter notwithstanding the unconstitutionality, invalidity or ineffectiveness of any one or more of its articles, sections, subsections, sentences or clauses. Law Center to Prevent Gun Violence Part II I Opposition Arguments to Laws Banning Assault Weapons and Large Capacity Ammunition Magazines Policy Arguments Opponents of laws banning assault weapons and large capacity ammunition magazines often argue that the term "assault weapon" is meaningless and that all semi - automatic firearms are appropriate for sporting purposes. This argument is easily disposed of, given the clearly identifiable features that make certain semi- automatic firearms more appropriate for killing humans than for hunting or other recreational activities. Civilian assault weapons are essentially copies of military assault weapons. the Violence Policy publication Semiautomatic Assault Rif le Used in the Aurora Colorado Mass Murder] illustrate the similarity between fully automatic, military assault weapons and their semi - automatic, civilian copies. The first image below is an STG 44 military assault weapon, developed for combat in Germany and used in World War II. The second image is the Smith & Wesson MP 15 that is available to civilians in most states today and is similar to the firearm James Holmes used to kill 12 people and injure 58 more in Aurora, Colorado. Both of the firearms can accept a large capacity ammunition magazine and both have pistol grips. A shooter using either weapon could spray a large volume of fire rapidly while maintaining control of the weapon. Opponents argue that even if civilian assault weapons are equipped with many of the same features found on military firearms, they are not capable of fully automatic tiring and therefore they are "sporting" firearms that need not be regulated. "Fully automatic" fire means that the weapon continues to fire as long as the trigger is held down (or the ammunition is expended). "Semi- automatic" means that one round of 12 Law Center to Prevent Gun Violence ammunition is fired each time the trigger is pulled. However, semi - automatic assault weapons are capable of firing many rounds per second, limited only by the speed of the shooter's trigger finger. Opponents of laws banning assault weapons and large capacity ammunition magazines also sometimes assert that the federal assault weapon ban was ineffective and, therefore, all such laws would be ineffective. However, as discussed on page four of the findings, studies show that the federal assault weapon ban resulted in a marked decrease in the use of assault weapons and large capacity ammunition magazines in crime. One study found that in several major cities, the share of recovered crime guns that were assault weapons declined by at least 32% after the federal ban was adopted .20 Another study analyzed data kept by the Virginia State Police and found a clear decline in the percentage of crime guns that were equipped with large capacity ammunition magazines after the federal ban was enacted. The percentage reached a low of 10% in 2004 and then steadily climbed after Congress allowed the ban to expire; by 2010, the percentage was close to 22 %.21 Furthermore, while the federal assault weapon ban was effective, enormous loopholes in the law diminished the law's ability to make a greater impact. The federal ban was a phenomenal achievement when it was passed in 1994, but it also was a victim of numerous compromises and, ultimately, exploitation by the gun industry. Specifically: ® The provision of the law banning "copies or duplicates" was intended to prevent manufacturers from re- releasing the 19 named assault weapons under new names with superficial changes.22 Unfortunately, the phrase "copies or duplicates" was not defined in the statute, and ATF did not enforce the provision. As a result, despite numerous cases of manufacturers exploiting this loophole by simply renaming the weapons, no firearms were banned for being a copy or duplicate.23 The generic definition of "assault weapon" required each weapon to have tW0 specified military features. In contrast, in 1989 when the administration of President George H.W. Bush blocked the importation of semi - automatic assault rifles .based on the "sporting purposes" provision of the Gun Control Act of 1968, and again in 1997 -98 when President Clinton took similar action, ATF used a test requiring only one specified military feature 14 as does this model law and the laws of California, New Jersey and the District of Columbia. 25 ® The federal law only banned the transfer and possession of assault weapons and large capacity ammunition magazines manufactured afterthe effective date of the Act (September 13, 1994). Unlike several state bans that require the registration of "grandfathered" assault weapons, the federal law had 20 Doper, supra note. 21 Fallis & Grimaldi, Supra note 10 22 Of the nine assault weapon brand /types listed by manufacturer in the law, six have been remarketed in new, "sporterized" configurations. See Violence Policy Center, Illinois— Land of Post -Ban Assault Weapons, Mar. 2004. 23 For example, Colt simply removed the flash suppressor from the banned AR -15 "Sporter" and renamed it the "Match Target" to make the weapon post -ban compliant (the "Match Target" is now available with a muzzle brake instead of a flash suppressor). Another example is the AB -10 post -ban version of the TEC -9 and TEC -DC 9. The AB -10 removes the threaded barrel included on the TEC, but is otherwise virtually identical. 24 The features specified by ATF in 1989 were: folding/telescoping stocks, separate pistol grips, the ability to accept a bayonet, flash suppressors, bipods, grenade launchers, and night sights. In 1997 -98, ATF added to the list the ability to accept a detachable magazine (a feature that it had considered but excluded in 1989). See U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, 2 -3, Apr. 1998. 25 Cal. Penal Code §§ 16350, 16790, 16890, 30500- 31115; N.J. Stat. Ann. §§ 2C:39 -1w, 2C:39 -5, 2C:58 -5, 2C:58 -12, 2C:58 -13; D.C. Code Ann. §§ 7- 2501.01(3A), 7- 2502.02(a)(6), 7- 2505.01, 7- 2505.02(a), (c). Law Center to Prevent Gun Violence 13 no such requirement, leaving millions of unregulated assault weapons and large capacity ammunition magazines on the civilian market. The District of Columbia ban does not grandfather pre -ban weapons and the laws in Hawaii and New Jersey do not grandfather pre -ban large capacity ammunition magazines.26 ® Many firearms manufacturers wasted little time redesigning their assault weapons to skirt the ban — a tactic the gun industry called "sporterization" — either by removing a military feature without compromising the gun's ability to spray large amounts of ammunition rapidly, or by replacing suspect components with substitutes not named under federal law (but which serve similar or related functions). For example, pistol grips were sometimes swapped for thumbhole stocks.27 Legal Argument Opponents of laws banning assault weapons and large capacity magazines frequently posit the inaccurate claim that the Second Amendment is a bar to such laws. In June 2008, in District of Columbia v. Heller, 28 the U.S. Supreme Court held for the first time that the Second Amendment to the U.S. Constitution protects the right of responsible, law- abiding individuals to possess a handgun in the home for purposes of self - defense. In a 5 -4 ruling, the Court struck down Washington, D.C.'s decades -old ban on handgun possession, and the District's requirement that firearms in the home be stored unloaded and disassembled and bound by a locking device (a requirement which had no exception for self - defense). The Supreme Court explicitly found, however, that the right conferred by the Second Amendment is not unlimited, and should not be understood as "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose ."29 Among other limitations, the Court recognized that the Second Amendment would not preclude banning "dangerous and unusual weapons such as M -16 rifles.so After the Heller decision, the District of Columbia adopted a set of strong new gun laws, including a measure prohibiting the possession of assault weapons and large capacity ammunition magazines. In 2011, the D.C. Circuit Court of Appeals upheld these laws against a Second Amendment challenge .31 The court cited Justice Scalia's language quoted above regarding "dangerous and unusual weapons" such as "M -16 rifles and the like. 02 The D.C. court noted that the M -16 is a fully automatic machine gun that can fire continuously with one pull of the trigger while a semi - automatic assault weapon can fire only one round of ammunition per trigger pull. However, the court cited facts presented by an expert that a 30 -round magazine could be emptied in fully automatic mode in slightly less than two seconds while the same magazine could be emptied in semi- automatic mode in five seconds. The court upheld the ban on semi- automatic assault weapons stating that, "it is difficult to draw meaningful distinctions between the AR -15 [a semi - automatic assault weapon] and the M -16 [a fully automatic machine gun]. 03 After reviewing the evidence, the court also upheld the large capacity ammunition magazine ban reasoning that: 26 D.C. Code Ann. §§ 7- 2501.01(3A), 7- 2502.02(a)(6), 7- 2505.01, 7- 2505.02(a), (c); Haw. Rev. Stat. Ann. §§ 134 -1, 134 -4, 134 -8; N.J. Stat. Ann. §§ 2C:39 -1w, 2C:39 -5, 2C:58 -5, 2C:58 -12, 2C:58 -13. 27 Thumbhole stocks are already a specified military feature under the California and Connecticut bans. 28 District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). 29 /d. at 2816. 30 /d at 626 -28. 31 Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011). 32 Id. at 1263. 33 for 14 Law Center to Prevent Gun Violence Overall the evidence demonstrates that large - capacity magazines tend to pose a danger to innocent people and particularly to police officers, which supports the District's claim that a ban on such magazines is likely to promote its important governmental interests.34 In June 2010, the U.S. Supreme Court announced its decision in McDonald V. City of Chicago, holding in a 5 -4 ruling that the Second Amendment applies to state and local governments in addition to the federal government. In doing so, the Court reversed a Seventh Circuit decision that had affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois.35 The Supreme Court in McDonald reiterated that the Second Amendment protects the right to possess a handgun in the home for purposes of self - defense, and that a wide variety of gun laws are constitutionally permissible. The Court repeated that "the right to keep and bear arms is not `a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose, "' and listed again the presumptively lawful measures identified in HeUer.36 In 2009 a defendant challenged his conviction for unlawful possession of an assault weapon claiming that California's assault weapon ban violated the Second Amendment. 37 The Court of Appeal of California upheld California's assault weapon ban, concluding that the Second Amendment does not protect the possession of assault weapons and other military -style weapons. In support of its decision, the court relied on findings of the California Legislature, which enacted the law based on its belief that assault weapons are dangerous and unusual weapons. The court explained that, per Heller, military style weapons that are not in common use by law- abiding citizens are not protected by the Second Amendment.38 For additional discussion of the arguments frequently raised in opposition to laws banning firearms regulation in general, seethe Law Center' Mode/ Laws fora SaferAmerica: Seven Reaulations to Responsible Gun Ownership and Sales 3a Id. at 1263 -64. 35 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). 36 Id at 3047. 37 people V. James, 174 Cal. App. 4th 662 (Cal. App. 3rd Dist. 2009). 38 Id, Law Center to Prevent Gun Violence 15 This Page intentionally Left Blank Town Manager MUM From: Monte Smith <Full_Monte2 @yahoo.com> Sent: Thursday, February 28, 2013 6:05 PM To: Town Manager; BSpector; Steve Leonardis; Diane McNutt; Joe Pirzynski; Marcia Jensen Subject: Gun Sales in Los Gatos Follow Up Flag: Follow up Flag Status: Flagged I want you to know that I fully support the right of Templar Sports to sell guns in Los Gatos. If you think you can somehow draw a gun -free zone map around the town and have criminals honor it, you are mistaken. Making it more difficult for law- abiding citizens to protect themselves by trying to reduce the supply of guns to good people is not the solution I think anyone wants... certainly not I or my family. Please re -think your position on this. The second Amendment is very clear. It has a higher purpose than city officials have power to deal with. Best Regards, Monte Smith Town Manager From: Dennis Kelley <ss1970chevl @juno.com> Sent: Friday, March 01, 2013 7:22 AM To: Town Manager; BSpector; Steve Leonardis; Diane McNutt; Joe Pirzynski; Marcia Jensen Subject: Support Templar Sports Follow Up Flag: Follow up Flag Status: Flagged Dear Sir, I support Templar Sports as a business in Los Gatos. It should not be singled out to restrict the business. There are laws on the books that already restrict gun and ammo sales. The LG Town Council does not single out other businesses and doing so is prejudicial against Templar Sports. Sincerely, Dennis Kelley San Jose, CA Cindie Taylor Attachments: losgatos -final (3).pdf, Copy of FFL_List Los-Gatos-CA 02 13.xls; Law Center _Model_Dealer_Ordinance_CA.pdf From: Mike McLively [ mailto :MMcLively(a?smartaunlaws.org] Sent: Thursday, February 28, 2013 5:39 PM To: BSpector; Steve Leonardis; Diane McNutt; Joe Pirzynski; Marcia Jensen Cc: Greg Larson; Janette Judd; Judith Propp; Julie Leftwich Subject: Regulation of Firearms Dealers in Los Gatos Dear Councilmembers and Mayor Spector, Attached please find a letter from the Law Center to Prevent Gun Violence ( "Law Center ") regarding issues raised by the regulation of firearms dealers in the Town of Los Gatos. This letter is intended to provide helpful guidance in advance of the Council's March 4 hearing on this issue. Also attached is our "Model Law Regulating Firearms Dealers and Ammunition Sellers" for local governments in California, as well as a list of Federal Firearms Licensees (FFLs) operating in Los Gatos. By way of background, The Law Center provides assistance to state and local governments seeking to adopt or defend laws to reduce the more than 100,000 gun - related deaths and injuries that devastate American communities each year. We have been working with cities in California for nearly two decades and our services are available upon request. If you have any questions, please do not hesitate to contact us. Sincerely, Michael R. McLively Staff Attorney Law Center to Prevent Gun Violence (formerly Legal Community Against Violence) 268 Bush Street, #555 San Francisco, CA 94104 415 - 433 -2062, fax, 415- 433 -3357 smartgunlaws.org This Page Intentionally Left Blank BOARD OF DIRECTORS February 28, 2013 William 1, Eetl€an Los Gatos Town Counci l PRESIDENT Mayor Barbara Spector otevea L, Smith Vice Mayor Steve Leonardis VICE PRESIDENT CoundI member Diane McNutt David H. Fry Councilmembedoe Pirzynski TREASURER CoundI member Marcia Jensen Carc,l Psi, Kingsley SECRETARY Re: Regulation of Firearms Dealers in Los Gatos Steven L. liar an Imo,. €gfasBoxer Dear Councilmembers, Fret Brick Brown Elizabeth 1 Ccabraser owe n'), f lemrnts On behalf of the Law Centerto Prevent Gun Violence, we write you to address certain issues Alexis C,,>11-Vary surroundingthe regulation of firearms dealers in the Town of Los Gatos. The Law Centerwas Gone C.rew Ch ales M, Dyke formed by lawyers, originally as Legal CommunityAgainstViolence, in responseto an assault Jamos r. Fouseklc weapons massacre at a law firm at 101 California Street in San Francisco. The Law Center provides �irnnn J. Frankel Simn J. Frankel assistance to state and local governments seekingto adopt or defend laws to reduce the more than Illsert PonaldR_Joser,h 100,000 gun - related deaths and injuries that devastate American communities each year. Wetrack David J.Kapnick Second Amendment challenges to such laws and regularly fileamicus( "friend of the court ") briefs in William €:). Kksinger David Lipkin supportof state and local governments nationwide. Marls Mealickian Mark L, Mo "fl ly We understand several issues have arisen regardingthe extentto which the Town of Los Gatos may David J, Pa,,Aernxak RobprtK.Perun regulate firearms dealers doing business orseekingto do business within itsjurisdiction. Weseekto GuyRcaear'savifkc clarify the Town's authority i n this area and to offer ourservices should the Town requi re our Mr gin C,. Scully, `U,D, j arne s M, wolf assistance in the future. Randal 5tr srt K A, pier Note: This letter and attached Model Law do not offer, and are not intended to constitute, legal Reb Henry C, Su advice. The Law Centeris available to provide further research and support upon request. Roderick K Thotgpp. )n Robyn The runs The Need for Local Regulation of Firearms Dealers EXECUTIVE DIRECTOR Since the mid 1990's, local governments throughout California have regulated firearms dealers in an FOUND R$ CIRCLE effort to enhance public safety and fi I I gaps in federal and state laws. According to the Bureau of Cameron Baker Alcohol, Tobacco, Firearms & Explosives ( "ATF "), firearms dealers area major source of illegal wflli-ain i. Erilund fi is €: 'ILx; G. Elarlic h firearms trafficking in the United States. Although federal law requires firearms dealers to obtain a -""o.1. r o €''' license from ATF, the agency does not have the resources or authority to properly overseethe more John R. Ileisse 11 than 100,000 f i rearms dealers, manufacturers, collectors, and others that it licenses. caaorgeAHiscrt Edwas d Kalkgren L.awrenca-Low In addition, federal law is silent regarding many important aspects of a firearms dealer's business, Richard 'W, 0d9ers such as on -site security requirements and location restrictions, leaving dealers freeto operate out of 268 Buili Street t15,55, San Francisco, CA 94104 - (4153 433-2062 fax: (415> 4753-3357 sra;:€rttz €aral av s.€;rr� BECAUSE SMART GUN 1...AWS SAVE LIVES their homes and near schools and other places children frequent. The State of California also only minimally regulates firearms dealers and the California Department of Justice lacks the resources to adequately monitor the more than 2,000 dealers within the State. In light of these facts, it is entirely appropriate for cities and counties to enact local laws regulating firearms dealers in their communities. As discussed below, they are perfectly within their legal authority to do so. Local Authority to Regulate Firearms Dealers In Suter v. City of Lafayette, 57 Cal. App. 4th 1109 (1997), the California Court of Appeals rejected claims that state law preempts local firearms dealer regulations and that such regulations violate due process or equal protection rights. The court upheld ordinances passed by the City of Lafayette which confined firearms dealers to certain commercially zoned areas, required dealers to apply for land use permits as well as police permits, and required dealers to obtain liability insurance. In the words of the court: "state law does not preempt the broad field of sales of firearms or regulation of firearm dealers ... [w]e find that provisions such as those at issue here are well within the police powers granted municipalities and that they meet constitutional requirements for equal protection and due process." Id. at 1116. Dozens of local governments across California have exercised this authority to impose a variety of regulations on firearms dealers operating in their jurisdictions. According to a survey conducted by the Law Center in 2000, 29 cities and three counties require firearms dealers to obtain a license or permit, 34 cities and four counties prohibit firearms dealers in residential areas, and 31 cities and two counties in California require firearms dealers to conduct background checks on employees. These numbers have only grown in subsequent years. Attached with this letter is a list of Los Gatos Federal Firearms Licensees ( "FFLs ") provided by ATF. According to the list, there are currently four FFLs operating in Los Gatos. The Second Amendment The Second Amendment does not prevent local governments from regulating firearms dealers to protect public safety. In its 2008 Heller decision, the U.S. Supreme Court held that the Second Amendment protects an individual right to possess a handgun in the home for self- defense. However, the Court was clear that the right to bear arms is not unlimited and it specifically identified examples of firearms laws that are "presumptively lawful," including laws regulating the commercial sale of guns. District of Columbia v. Heller, 128 S. Ct. 2783, 2816 -17 (2008). Ordinances relating to firearms dealers qualify as regulations of the commercial sale of guns and are therefore "presumptively lawful." Even more fundamentally, however, such laws do not violate the Second Amendment because they in no way interfere with the narrow right established in Heller, i.e., the right of a law- abiding, responsible citizen to possess a handgun in the home for self- defense. For more information about the Second Amendment, including summaries of federal appellate cases decided after Heller, see: http: / /smartgunlaws.org /the- second - amendment. 268 Bus1i Street t i9,5. 5tsn Pranciscea, CA 94104 s (415) 433-2062 4 fax: (415) 4)3 -3, 5W - smartgunlaws.01,g BECAUSE SMART GUN LAWS SAVE LIVES Non - Zoning Regulations of Existing Firearms Dealers As a general principle, a local government may enact new regulations that apply both to prospective and existing businesses as long as the regulations are rationally related to the promotion of the public welfare. The right to operate a legitimate business "is subject to the state's police power to subject individuals to reasonable regulation for the purpose of achieving governmental objectives such as public safety, health, morals and public welfare." Stewart v. County of San Mateo, 246 Cal. App. 2d 273, 285 (1966). A regulation restricting the operation of a business will be upheld by the courts "when any fact or facts appear, or may be hypothesized, which the Legislature might rationally have accepted as the basis for a finding of public interest." Varanelli v. Structural Pest Control Board, 1 Cal. App. 3d 217, 221 (1969) (upholding act requiring certain salesman to submit to new licensing requirements). California Penal Code section 26705 requires firearms dealers to obtain and maintain, in addition to other state and federal licenses, "a local license granted by the duly constituted licensing authority, valid for one year from the date of issuance..." This license may be in one of three forms: 1) the form prescribed by the Attorney General; 2) a regulatory or business license that states on its face, "Valid for Retail Sales of Firearms" and endorsed by the signature of the issuing authority; or 3) a letter from the licensing authority stating that the jurisdiction does not require any form of regulatory or business license or does not otherwise restrict or regulate the sale of firearms. California case law suggests that local government may impose new regulations on businesses that have properly obtained a license to operate, including firearms dealers. As stated by the California Court of Appeals, a business takes a license to operate "subject at all times to the paramount right of the state at any time that the public good demand[s], to further restrict his activities thereunder." Rosenblatt v. California State Board of Pharmacy, 69 Cal. App. 2d 69, 74 -75 (1945); see also Stewart, 246 Cal. App. 2d 273 (upholding local regulation of existing, licensed private patrol services which resulted in the revocation of plaintiff's existing license). A license "permitting the doing of that which without the license would be unlawful, is not a contract and does not convey a vested right ... but [rather] a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed." Id. at 74 (emphasis added). In the Suter case, for example, the court upheld a local ordinance which gave existing residential firearms dealers 60 days in which to comply with new regulations requiring dealers to obtain a police permit and requisite liability insurance. Suter, 57 Cal. App. 4th at 1117.1 The cities of San Francisco, Richmond, Palo Alto and Fremont, among others, have imposed a variety of regulations on firearms dealers, such as requiring police permits, security measures, and liability insurance, and these regulations also all gave existing dealers 60 days in which to comply. Even if a properly licensed firearms dealer could establish that new local regulations affect a right conferred by their current license, vested property rights may nonetheless be affected by local regulations where necessary to protect the public safety. "Vested rights, of course, may be impaired 'with due process of law' 1 The City of Lafayette chose to allow residential dealers to remain in their current locations as non - conforming uses. However, as discussed in detail in the following section, this approach was not necessary and several other California cities, including San Francisco and Palo Alto, have required non - conforming firearms dealers to comply with new zoning requirements within a reasonable period of time. 268 Bush Stmt et #,555 San -- randsr.o, CA 9410 , (415) 433-2062 Nix: (41.5) 433 -3357 - smart gur2eaw�3.org BECAUSE SMART GUN LAWS SAVE DIVES under many circumstances. The state's inherent sovereign power includes the so- called 'police power' right to interfere with vested property rights whenever reasonably necessary to the protection of the health, safety, morals, and general well -being of the people." Davidson v. County of San Diego, 49 Cal. App. 4th 639,648 (1996) (retroactive regulations valid if reasonably necessary to prevent business from being a danger to the public). The public safety threat posed by under- regulated firearms dealers likely justifies new regulations even if they are viewed as affecting existing property rights. Finally, it is well settled that a licensed business does not have a vested property right to a renewal license. See, e.g., Ficarra v. Dept of Regulatory Agencies, Div. of Ins., 849 P.2d 6 (Co. 1993) (finding no vested property right to renewal of bail bondsman license which expired annually); Nev. Rest. Servs. v. Clark County, 2012 U.S. Dist. LEXIS 135947 (Dist. Nev. 2012) (no vested property rights are affected when County imposes reasonable conditions in order to renew a license); Rosenblatt v. Cal. St. Bd. of Pharmacy, 69 Cal. App. 2d 69 (1945) (rejecting constitutional challenge brought by licensee denied of a renewal license after conditions for renewal were changed by the legislature). Accordingly, while it does not appear necessary based on the above, a local government could enact new regulations on existing firearms dealers that apply only upon application by a dealer for a renewal license. Zoning Regulations That Require Dealers to Relocate Local governments may also impose new zoning requirements on existing businesses as long as sufficient time is given to comply. New local zoning requirements —such as prohibiting firearms dealers from operating within a home or within a certain distance of schools —could prevent a business from operating in its current location. However, "California cases have firmly held [that] zoning legislation may validly provide for the eventual termination of nonconforming property uses without compensation if it provides a reasonable amortization period commensurate with the investment involved." Castner v. City of Oakland, 129 Cal. App. 3d 94, 96 (1982). For example, in World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004), the Ninth Circuit rejected a constitutional challenge to local regulations which restricted adult book stores from operating in close proximity to certain areas such as schools. The local regulations gave existing businesses a one -year period within which to comply with the new standards and allowed for a brief extension, if needed. In finding this one -year compliance period sufficient, the Ninth Circuit noted that "an amortization period is insufficient only if it puts a business in an impossible position due to a shortage of relocation sites." Id. at 1200. There are many other examples of courts upholding new zoning requirements that provide impacted . businesses a reasonable amount of time in which to comply or relocate. See, e.g., City of Vallejo v. Adult Books, 167 Cal. App. 3d 1169 (1985) (upholding ordinance regulating adult bookstores and theatres providing a one -year amortization period allowing them to apply for an extra year upon a showing of extreme hardship); County of Cook v. Renaissance Arcade& Bookstore, 122 III. 2d 123 (1988) (upholding six month amortization period with six month optional extension); Northend Cinema, Inc. v. City of Seattle, 90 Wash. 2d 709 (1978) (upholding ordinance providing a 90 -day amortization period for preexisting nonconforming adult theaters); Los Angeles v. Gage, 127 Cal. App. 2d 442, 460 (1954) (noting that "[a] legislative body may well conclude that the beneficial effect on the community of the eventual elimination of all nonconforming uses by a reasonable amortization plan more than offsets individual losses. "). As 268 Bu li Street V55 5, Sar) Frindsr:a, CA 941,04 x (415) 43z -2062 - fay (415) 433-3:57 , srnartyunl;awa .org BECAUSE BART GUN LAWS SAVE LIVE further examples, the cities of San Francisco and Palo Alto, among others, have limited the locations in which firearms dealers can operate and gave existing dealers 60 days in which to comply. In sum, these authorities indicate that existing firearms dealers must comply with new local zoning requirements as long as they are given a reasonable time in which to comply. In the words of the Ninth Circuit, "[n]othing in the Constitution forbids municipalities from requiring non - conforming uses to close, change their business, or relocate within a reasonable time period." World Wide Video of Wash., Inc., 368 F.3d at 1199 -1200. Model Law and the Role of the Law Center to Prevent Gun Violence Attached to this letter is our "Model Law Regulating Firearms Dealers and Ammunition Sellers" for local governments in California. The Model Law was drafted by the Law Center specifically for use by local governments in California and addresses many commonly raised issues. The Law Center is ready to provide legal research, analysis, and drafting assistance on these issue or others related to the reduction of gun violence. Please visit www.smartgunlaws.org for more information about our services and please do not hesitate to contact us. Very truly yours, Juliet A. Leftwich Legal Director Law Center to Prevent Gun Violence Cc: Judith Propp, Town Attorney Greg Larson, Town Manager Michael R. McLively Staff Attorney Law Center to Prevent Gun Violence 268 Bush 5tr,oet V599, Sian Francisco, CA 94104 > (415) 4.S3-2062 ° fax; (415> 433-3357 sm nrigur laws.org This Page Intepitioo ally Bea k Left �a��a z: License Name DEAN, BARRIE DAVIS List of Los Gatos, California Federal Firearms Licensees (FFLs) February 2013 (Source: Bureau of Alcohol, Tobacco, Firearms Explosives) Business Name Premise Street Premise Cit State Zip Code ANDREW NAPELL NAPELL, ANDREW BRADFORD CONSULTING J3 ASSOCIATES INC GREEN, KAREN M 14941 NATIONAL AVE LOS GATOS CA 95032000( 28750 LOMA CHIQUITA R LOS GATOS CA 95033 630 TIMBERLINE LOS GATOS CA 95033000( 25000 HIGHLAND WAY LOS GATOS CA 95033000( List of Los Gatos, California Federal Firearms Licensees (FFLs) February 2013 (Source: Bureau of Alcohol, Tobacco, Firearms Explosives) Mail Stree- Mail City State Zip Code Voice Phone 14941 NAI LOS GATO!CA 95032000(4083568780 28750LONLOS GATO!CA 95033 4089979838 2751 AIELL SAN JOSE CA 95111000( 4083953393 25000 HIG LOS GATO! CA 95033 4083531322 Thursday, February 28, 2013 Dear Mayor and Council, The purpose of this letter is to encourage the Town Council to pass an interim urgency ordinance to establish a forty -five day moratorium on the approval or issuance of any use permit, variance, building permit, business license, or other applicable entitlement for the establishment or operation of a firearms retailer in the Town of Los Gatos, for the immediate preservation of the public health safer and welfare. The Town of Los Gatos currently has no code that specifically addresses or regulates the existence or location of firearms retailers. However, in the past two years, the Town of Los Gatos has experienced an increase in gun related violence, including gun related homicides and suicides, as well as suspects apprehended with loaded and concealed guns. It is clear that firearms retailers raise complex issues of law and public policy, and the regulation of such retail outlets requires careful consideration and through study. As this careful consideration and through study was not performed prior to the installation of a firearms retailer, Templar Sports, the Town of Los Gatos has put the public at significant risk affecting the health, safety and welfare of town citizens. Therefore, the moratorium should be applied to the existing retailer; Templar Sports while the Town performs such study and consideration. We are requesting that Town Council apply the moratorium to the current firearms retailers to cease any expansion activities of Templar Sports during this period. Council, please consider the following findings pertaining to risks to the health, safety and welfare of town citizens and neighboring communities: 1. Los Gatos has the highest per capita suicide rate in Santa Clara County, according to the Santa Clara County Suicide Prevention Oversight Committee (SPOC) 2009 -2011 Data. (Citation follows, all statistics refer to this study.) This devastating statistic is based on reports from the County Coroner's office on deaths in 2009 -2011 and calculates Suicide Rate per 100,000 by City. Sadly, the most frequent means of committing these suicides are by firearm. It is likely the intentional suicide was performed using a gun registered to the individual or the family of the individual, as these deaths predominately occur in the person's own residence. These suicides affect a huge circle of people in our community, from the reporting of the death or personal connection to the individual. 2. Guns in the home are more often used in suicide or against family and friends than in self- defense. (Per Brady Center to Prevent Gun Violence, Citation follows) The awful murder suicide event of July 2011 involving a Los Gatos family is proof that guns in Los Gatos homes can have devastating results on the health.of our community. 3. Los Gatos /Monte Sereno has experienced an increase in gun related homicide, and gun assisted property theft (armed burglary,) in the past five years. (Citation follows.) 4. There are several findings on public health impact of firearms. It has been proven that increased number of firearms, and access to firearms and leads to increase risk of gun - related injury and death, and children are especially at risk. Death rates of children less than age 15 related to firearm homicide are almost 16 times higher in the U.S. than all other 26 industrialized countries combined; firearm suicide was almost 11 times higher and unintentional firearm fatalities 9 times higher. (Citation follows.) S. Per the ATF, it is unlawful for any individual to knowingly possess a firearm within a school zone. A school zone is defined as being within a distance of 1,000 ft. from the grounds of a public, parochial, or private school. (Citation follows) The University Avenue entrance of Templar Sports is located within 200 ft. from a children's ballet studio that serves 180 children from age 3 to 18; Town staff did not take those school zone prohibitions into consideration when locating a firearms retailer across the street from a children's ballet studio. Town Staff has put those children at risk. Templar Sports is within 200 ft. of a large residential apartment complex and single- family homes. Town staff has put town citizens at risk. Across the street from the Industrial Way entrance to Templar Sports, hundreds of people a day who visit the Department of Motor Vehicles building are put at risk. Accidental deaths in the parking lot of gun retailers happen. On December 9th, 2012 a 7 year -old boy was shot and killed in the parking lot of a gun store in Mercer County. (Citation follows) 6. Since December 22, 2012, . in direct relation with the opening of Templar Sports, in the Town of Los Gatos, there has been an increase in vandalism, protests, threats and intimidation directed at individuals peacefully protesting against the sale of firearms at 611 University Avenue. The activity of the store, as well as the threats against citizens exercising their First Amendment rights, have created a public nuisance. A public nuisance is defined as "an unreasonable interference with the public's right to property. It includes conduct that interferes with public health, safety, peace or convenience." (Citation follows). A public nuisance has resulted from the opening of Templar Sports. 7. Police Chiefs with more experience support regulations to restrict firearm sales. Police.._ chiefs__ with ..3.0....or._m_ore.,.years_.of_ experience ,in._law...enforcement were more likely fisupport gun control than those with less experience. The more experienced officers, for example, were more likely to support requiring background checks when purchasing a gun than those on the force for less than 30 years. (Citation follows) It should not take the tragic shooting of police officers in Santa Cruz this week, for the Town to consider Fcv, �_ 0� ,� the welfare of the Town's own police force. The additional impacts on the welfare of our law enforcement officers needs to be considered. 8. ATF resources are inadequate to provide oversight of Templar's operations. Although federal law requires firearms dealers to obtain a license from the Bureau of Alcohol,. Tobacco, Firearms & Explosives ( "ATF "), ATF does not have the resources or authority to properly oversee the more than 100,000 firearms dealers, manufacturers, collectors, and others that it licenses ( "FFLs "). In fact, on average, ATF inspects each FFL only once every 17 years and the Office of the Inspector General has concluded that inspections by ATF are not fully effective for ensuring that FFLs comply with federal firearms laws. (Citation follows) As such, there is no real oversight. The Town therefore should conduct a major review of the types of firearms available for sale at Templar Sports. This review and inventory should be required to ensure the safety and health of local citizens. As the business license was issued for "retail sporting goods," the saleable items should be limited to "retail sporting goods," i.e. firearms that are solely used for hunting and sport. 9. The direct involvement of a Los Gatos Police Officer puts the community at significant risk and creates a public safety issue. Please consider the following: if the Co -Owner of Templar Sports (Officer Fleming) is on duty, he is banned from interaction with Templar officially. How is Officer Fleming able to perform his duties to keep our community secure if he is banned from interaction with a specific business? Will that add a requirement for additional costly police surveillance? While the Town Council considers the impact and possible conflict of interest of a law enforcement officer owning a share of a firearms retailer based in town, the Town should consider the increased risk this situation creates for the community. 10. Templar Sports has received a death threat. The safety and welfare of the very owner of the firearms business is at risk. 11. The consideration of risks to health and safety of our Town should continue into the consideration of the Town's financial resources. The Town should investigate whether Templar Sports carries adequate liability insurance (with the Town named as an additional insured) that protects the Town from actions caused by those injured or aggrieved by Templar, its personnel, its merchandise, or its customers. The Town of Los Gatos could be liable for accidental or intentional deaths related to products sold at Templar Sports. This is a major vulnerability and needs to be addressed immediately. Putting the Town's financial resources at risk jeopardizes the health and safety of our Town. 12. In addition, impact on adjacent merchants, business and property owners was not considered. There was no notification to merchants, business owners, or property owners within 200 ft.. In addition, Templar Sports did not secure letters of compliance from those same merchants, business owners, or property owners prior to operation. paQ o Please consider all of the above when drafting the urgency ordinance for a moratorium on firearm sales. We urge you to include any expansion at Templar Sports in that moratorium and to make any future ordinances regulating sales universal in their reach. The above items were not considered prior to the issuance (and later alteration,) of the business license which allowed Templar Sports to begin operating. Finally, please consider the General Plan of Los Gatos, and whether this new firearms retailer is in line with the general plan. The General Plan of Los Gatos states: 2 -c Vision Statement Preserving the small -town character of Los Gatos requires attention to a collection of related issues including .......... the type of businesses located in Town protection of the Town's various neighborhoods, and community design. The Town can utilize 3 important means for ensuring the continuity of values: • providing mechanisms for broad public participation in government in general, and planning in particular; • Taking initiative to coordinate with other jurisdictions on regional issues that impact the Town's character and quality of life Consistent and resolute enforcement of the General Plan, specific plans and the Town code. Please consider whether the process of installation of the new firearms retailer was in line with the vision we have for Los Gatos. A community that prides itself on having an engaged populous should keep its public involved in the very important decisions about where to locate and how to regulate firearms retailers. Again, the General Plan of the Town of Los Gatos states: 2 -a What Makes Los Gatos Special The desire to protect the Town's high quality of life is demonstrated by extensive citizen participation in many service groups and community issues. Was that citizen participation fully realized prior to the installation of Templar Sports? Lastly, the General Plan of the Town of Los Gatos states: 3 -a Land Use Element Residential and non - residential uses produce different impacts on the community. The impacts on traffic, noise, schools, open space, and other quality- of -life issues will vary, depending on the final mixture of residential and non - residential uses approved within the area. The overall planning for the area needs to limit the adverse impacts on the quality of life of all of the residents of Los Gatos and to provide for open space. Please choose what is right for our community. The decisions of a few members of Town Staff are having major adverse impacts on the quality of life for all the residents of Los Gatos. Enough is Enough. Thank you for your consideration. Deborah Weinstein, Los Gatos Shannon Susick, Los Gatos Sandy Decker, Los Gatos Gil Decker, Los Gatos Cindy Schneider, Los Gatos Lainey Richardson, Los Gatos Bruce Richardson, Los Gatos Perry Richardson, Los Gatos Bailey Richardson, Los Gatos Fo�' 5 q (( Citations noted: 1. Santa Clara County Suicide Prevention Oversight Committee Analysis of 2009 -11 Suicide Data. 2. Wiebe, Douglas J. PhD., "Homicide and Suicide Risks Associated With Firearms in the Home: A National Case - Control Study," Annals of Emergency Medicine 41(6) (2003): 771 -782 - See more at: httt�: www.bradycampaign.or studies view f 106 #sthash.xPa GDx dpuf 3. Violent crime statistics from htt. p.;././ wvvvci_ ty,- cla :ta.,.con1 /criln_e /..,,c;rrn.e- :Los.. - Gates.- California.litml 4. Centers for Disease Control and Prevention, "Rates of Homicide, Suicide and Firearm - Related Death Among Children - 26 Industrialized Countries," Morbidity Mortality Weekly Report, 46(5)(02/07/97): 101 -105 - See more at: h,ttl�. / /www..h7.a,ctyc :m.pai.gn. erg /sfueli_es. /vi:ew /:1.1,5../# sthash_.Y.j:l_Rgm_h.P.._cl.p:uf S. U.S. Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Enforcement Programs and Services Firearms Programs Division, "Gun Free School Zone Notice," October 2006. S. htt : /.www. os- g azette cotn/ stories/ local/ neg hborh odds- nortl1/ 7- y ear-old ..... ... _ ..: ....._ .. . ... _ sh_ot.- a:n_d:.- bill. ed.. -at.- mercer - county. °g.u:a.. - store.. -.66 48 /. 6. Definition of public nuisance: http_/ /en.wikipedia.org/wiki /Nuisance 7. Coalition to Stop Gun Violence, http: www.csgv.org/media-web/press- releases/ 2006 - press - releases /120- study - police- chiefs - support - stronger -gun- control -laws 8. Law Center to Prevent Gun Violence, LCAV Model Law REGULATING FIREARMS DEALERS AND AMMUNITION SELLERS (LOCAL GOVERNMENTS IN CALIFORNIA) November 2010