On Monday, the Lafayette City Council unanimously passed an ordinance requiring that city gun owners keep firearms in locked containers or use a safety lock.
The ordinance presented for consideration, would require any person in a residence in Lafayette to store firearms in a locked container or disable them with an appropriate safety device. The requirements of the ordinance would not apply when a firearm is legally carried on the person, or otherwise in his or her immediate possession and control, nor when the firearm is in the immediate possession and control of a peace officer.
The ordinance isn’t new; however, Lafayette now joins several cities who already have a similar ordinance such as Antioch, Alameda, Berkeley, Dublin, Moraga, Oakland, Orinda, Palm Springs, San Francisco, San Jose, Santa Cruz, South San Francisco and Walnut Creek. It also prompted more than 100 pages of written comments.
Councilmember Susan Candell stated she was puzzled.
“I am a little puzzled because it seems like the city attorney’s opinion is different than the crime commissions recommendation,” said Candell. “It seems like our city attorney is saying we can enact this but crime prevention is saying we probably shouldn’t. Is there anything you can offer us city attorney to help us make that decision.”
City Attorney Mala Subramanian explained she did not give legal advice to the crime commission which is why there is differences but that it will be harder to regulate.
“As you can imagine, the Second Amendment has been litigated recently at the Supreme Court so I can understand the crime commissions concerns. As you noted, I do think we can get to a point where you can adopt an ordinance and did our best to comply with the Supreme Courts Decision in adding certain background information to the staff report to talk about historical context… many cities have adopted this ordinance so I do feel comfortable.”
Daniel Horowitz, who sat on the subcommittee, said he had no doubt the purpose of the ordinance is “wonderful” but his only concern was where they wanted to stand legally.
“We can adopt this ordinance with the understanding that it will fall under the New York State Rifle & Pistol Ass’n v. Bruen, I don’t even think it’s a close call if you read the case because Bruen said we are going to stop the State of New York from regulating the carrying of firearms outside the house. In essence expanding the greater protections of in home possession to possession outside the home,” explained Horowitz. “If you try and justify this regulation under some historical precedent, you will find nothing.”
He explained if they did the morally right thing to do, it wouldn’t hold up and they would have to litigate but in the end it wouldn’t cost them very much money but they should be aware Bruen destroys almost every gun regulation out there.
Councilmember Gina Dawson asked what the discussion was around enforcement and what would happen if it needed to be enforced or consequences.
Chief Ben Alldritt stated if adopted into Municipal Code, it would be reported to code enforcement with notices and warnings to get to compliance. He stated this would be a reactive enforcement rather than proactive due to staffing.
“It could be a civil matter versus a criminal matter so it allows the city to address it through code enforcement processes as they enforce municipal code,” explained Alldritt. “The challenge is this is inside the home so who is going to report it so its probably a friend or someone in a home. I don’t know if we will see many reportings of it. Watching other cities, I’ve not been made aware of any cases they have had at this point.”
He further explained that if they are inside the home, they are typically looking at other legal things that they would use to address the situation at hand.
After public comments, vice mayor Carl Anduri urged the council to introduce the ordinance tonight to ensure the second reading could be at the next meeting. He then made the motion to bring it back at the December 12 meeting.
The item was approved unanimously.
Mayor Teresa Gerringer asked when they look at the education element of this ordinance. She proposed bringing it forward to city schools to look at.
Alldritt added the crime prevention commission was in support of gun safety and that the crime prevention commission will look at something similar to the lock your doors like your windows campaign. They will continue to talk about it.
Staff Report
Background
Currently, there is no state law that requires safety devices, such as lock boxes or trigger locks, be used on all firearms stored in a residence. Keeping a firearm locked when it is not being carried ensures that it cannot be accessed and used by others without the owner’s knowledge or permission. Applying trigger locks or using lock boxes when storing firearms in the home reduces the risk of unauthorized users, including children, from accessing and using firearms which can reduce unintentional discharges, firearm theft, gun-related homicides, and suicides. Safe storage measures have a demonstrated protective effect in homes with children and teenagers where guns are stored. The position of the American Academy of Pediatrics (AAP), the largest organization of pediatric physicians, is as follows: “The AAP affirms that the most effective measure to prevent suicide, homicide, and unintentional firearm-related injuries to children and adolescents is the absence of guns from homes.” If firearms are in the home, the AAP recommends that they be stored locked, unloaded and with ammunition stored in a separate locked location.
Several California jurisdictions have adopted “safe firearm storage” ordinances to bolster firearm safety in the home. Safe storage ordinances are in effect in area municipalities, including Antioch, Alameda, Berkeley, Dublin, Moraga, Oakland, Orinda, Palm Springs, San Francisco, San Jose, Santa Cruz, South San Francisco and Walnut Creek.
The ordinance presented for consideration, would require any person in a residence in Lafayette to store firearms in a locked container or disable them with an appropriate safety device. The requirements of the ordinance would not apply when a firearm is legally carried on the person, or otherwise in his or her immediate possession and control, nor when the firearm is in the immediate possession and control of a peace officer.
To encourage reporting of lost or stolen firearms, a person who complies with California Penal Code section 25250, by reporting the loss or theft of a firearm they own or possess to a local law enforcement agency within five days from the time they knew or reasonably should have known the firearm had been lost or stolen, would not be prosecuted for a violation of the ordinance. A violation of the ordinance would be subject to enforcement through criminal prosecution as an infraction or misdemeanor, and each violation would be deemed a distinct and separate offense. A violation could also be considered a violation of probation and may be utilized in child custody and civil lawsuits.
The ordinance would not create a substantial burden to persons lawfully carrying and storing firearms in the home, but it would require safe firearm storage in an effort to decrease the risk of harm to children and the entire community. The safe storage ordinance is consistent with, and builds upon, existing state law by requiring gun owners to always use safety devices when storing a firearm in their residence. The ordinance fills an important gap in existing law and aims to reduce accidental gun shootings, gun-related homicides and suicides, and the theft of unsecured firearms.
City Attorney’s Comments – Safe Gun Storage and Preemption
Under the doctrine of preemption, state and federal law preempt local law when the local law allows something the state/federal law prohibits, prohibits something state/federal law allows, or enters an area fully occupied by general law. Existent federal law does not require safe gun storage in homes, but requires the availability of safe gun storage devices when sale is conducted by federal firearm licensees. (27 FR 182; 27 CFR 478) Meanwhile, existent California law imposes
penal consequence when a gun owner’s firearm causes a harm due to unsafe storage. (See Penal Code section 25100 et. seq.) This means that California’s law applies retrospectively, whereas Lafayette’s law would apply prospectively to prevent the criminal outcome California’s existent law envisions. Additionally, California state law does not actually require the safe storage of a firearm, instead, it allows use of a safe gun storage device to act as an exemption from liability. (See Penal Code section 25105). By contrast, Lafayette’s proposed law requires that all guns be stored safely as a precautionary measure, without undermining the right to self-defense as discussed in the next section.
City Attorney’s Comments – Safe Gun Storage and Bruen
The Second Amendment guarantees an individual right to keep and bear arms, but “the right was not unlimited.” (District of Columbia v. Heller, 554 U.S. 570, 595 (2008). Any restriction imposed upon the Second Amendment right must be “consistent with the Nation’s historical tradition of firearm regulation.” (New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). Bruen clarified that this means that for a gun regulation to be valid, it must have a historical
analog. (Id. at 2132.) In reasoning by analogy, legislatures should look at the “how and why the regulations burden a law-abiding citizen’s right to armed self-defense. (Id. at 2133.) The Supreme Court has stated that its analysis in Heller did not “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” (Heller, 554 U.S. 570, 632.) The Bruen court footnoted the same statement, reemphasizing that its past holdings do not disallow the government from
regulating the safe storage of firearms. (Bruen, 142 S. Ct. 2111, FN 9.) The Bruen court said that laws closer in time to the enactment of the Constitution provide greater insight into how it should be interpreted. (See id. at 2137.) There is support for regulation of firearm storage from a Massachusetts law drafted near in time to the ratification of the Constitution. The 1782 Massachusetts law disallowed the residents of Boston from keeping loaded firearms in dwellings and other buildings. (Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts p. 218.) This law was enacted, at least in part, to limit “danger to firefighters posed by the ‘depositing of loaded arms’ in buildings.” (Heller, 554 U.S. 570, 631.) Philadelphia and New York had similar laws related to storage of gunpowder too. (Cornell & DeDino, A Well Regulated Right, 73 Ford. L.Rev. 487, 510- 512 (2004). The thrust of these regulations was that loaded firearms or gunpowder poses dangers to unassuming individuals, who may not know those firearms are loaded and capable of causing them harm. Like the danger to firefighters from negligently loaded firearms, there has been a reported and well-documented danger to children resulting from unsecured loaded firearms in homes. Thus, colonial era laws support the safe storage of firearms within homes.
Additionally, Lafayette’s proposed law does not prevent homeowners from keeping firearms for self-defense, instead, it encourages that the Second Amendment right be exercised safely and seriously. Modern safe storage of firearms places a minor burden on the Second Amendment self-defense right. Current safe storage technology allows homeowners to safely secure their firearms with locking mechanisms or gun safes that can be opened in seconds. This is in stark contrast with the speed of access to firearm use enjoyed in the colonial period, which necessitated significantly more time to load a firearm. Thus, Lafayette’s proposed law is rooted in historical tradition and grants firearm owners even faster access to a firearm than they would have enjoyed in colonial Boston, New York, or Philadelphia
Discussion
The Crime Prevention Commission met on October 26, 2022, in a publicly posted virtual meeting. This ordinance was an agenda item that was discussed by the Commission and public comment was provided. The Commission created a Subcommittee of three members, Traci Reilly, Daniel Horowitz, and Larry Bellusa, to further discuss the item and work to provide feedback to the City Council. The Subcommittee met on November 10, 2022. Police Chief Ben Alldritt and Police
Administrative Analyst Cathy Surges-Moscato were present for both meetings as City staff liaisons.
The following is a summary of Crime Prevention Commission feedback for City Council. The Commission understood the task they were given and strived to look at the facts. The Commission appreciated all the public comment and wanted to take a thoughtful approach to an emotional issue. A balanced approach was important for the Commission to provide for the Council’s consideration due to potential legal challenges to such an ordinance
It was acknowledged that the American Pediatric Association First has come out strongly in favor of mitigation. As a way of preventing gun violence, they have moved from a total ban on guns, and are looking toward mitigation measures. This ordinance is one measure they would likely endorse.
The Commission did not view their mission as to either support or oppose the ordinance, the philosophy, understanding the final decision is the City Council’s, with public input. Commissioner Horowitz, who is also an attorney, provided legal analysis for the Crime Prevention Commission. Commissioner Horowitz provided the analysis, highlighting issues, not deciding them, but pointing them out. Public comment provided discussed that safe storage laws have been upheld. Commission Horowitz addressed that – there are different levels of safe storage laws. The California Penal Code addresses that if you do not store guns safely and kids get them, it’s a crime; that’s a result-oriented approach. There is a state law preemption issue which have been addressed by parties in favor and opposed to these types of initiatives. There is no bright
line legally and the outcome of such challenge cannot be predicted with great certainty. However, proponents of the measure have argued that the state law only addresses criminal consequences for unsafe storage resulting in actual possession of the firearm by a child (or prohibited person) so that storage procedures are separate and not preempted. Opponents argue that the Legislature viewed the entire set of choices and selected only a result-oriented sanction in order
to avoid 2nd Amendment objections.
California Penal Code Section 25100 addresses the safe storage of firearms as it relates to a child having access to a firearm or a person prohibited from possessing a firearm accessing a firearm and causing injury; creating legal liability for the gun owner, requiring them to have the firearm safe and secured.
In June, the United States Supreme Court decided the case of New York State Rifle and Pistol v. Bruen, which overturned a New York gun safety law. Justice Thomas held that the 2nd and 14th Amendments, which applies things to the State are now not applicable. In other words, it means to the end scrutiny or intermediate scrutiny, which survived or helped these other cases survive, is no longer the standard. Basically, if there is a violation of the Second Amendment in principle,
then the law cannot stand. The Supreme Court decision addressed out of the home restrictions and broadly defined 2nd Amendment rights in that context. The decision itself cited in home protections as the broadest of protections and applied them to outside possession. For this reason, in home restrictions are likely to have less protection than out of home restrictions.
Recent federal court decisions have stricken restrictions on gun possession in churches and need based proofs for concealed weapons permits. Commissioner Horowitz believes given that status, it has to be considered the fact that this ordinance will likely fall as well for the same reason. So, what if the ordinance falls? We can consider the fact that the City wants to make a policy statement, which many people support. So, what’s the harm if it’s overturned? The answer is there may be no harm.
There may be a few criminal convictions thrown out related to, but unlikely. The City should consider Code of Civil
Procedure, the attorney fee provision that when a law is overturned, including a local ordinance, the person overturning it can collect attorney’s fees.
Many cities have a similar law, and it may be that a Lafayette ordinance would not be targeted or overturned as opposed to any other city with a similar ordinance. Several years ago, the City of Lafayette was sued, and part of a Lafayette gun ordinance was overturned in terms of restrictions on gun stores. The potential financial liability of defending a safe gun storage ordinance should be considered. There is also a possible State preemption issue, which can go either way.
The Commission discussed the enforceability of the ordinance. It was acknowledged enforceability would be challenging. A reported violation of this ordinance could require entering a private residence and would potentially involve 4th Amendment issues. The Commission fully supports promoting firearm safety for everyone but discussed the challenge of enforcing this ordinance.
The Commission discussed how the City would enforce this type of ordinance, asking if the Police Department enforces municipal code violations. Chief Alldritt advised that the police department does enforce a few ordinances, such as noise violations, while many violations fall to Code Enforcement or other City departments. It is not clear at this time which department would address violations of this ordinance, if passed.
The Subcommittee discussed the Crime Prevention Commission being supportive of safety, the Commission’s charge is to work to prevent crime. They discussed the value of creating more gun safety awareness in Lafayette and all cities. Encouraging citizens to be more conscious of where and how guns are kept and how guns are used, focusing on the safety of firearms.
The Subcommittee discussed providing support and education in an effort to prevent tragedy, while at the same time, addressing whether we really have the ability to pass an ordinance. Is the ordinance more symbolic or is it truly going to be enforceable and legally defensible.
The Commission also discussed observing how national interest groups address the recent Supreme Court decision as it is likely that new model ordinances that are adjusted to meet the holding in New York State Rifle and Pistol v. Bruen may be written and could be considered by the City Council.
Conclusion
In light of the recent United States Supreme Court decision, the Commission believes there are legal challenges to passing the ordinance. Understanding the ever-changing landscaping of public policy, it is suggested considering alternative approaches to ensure gun safety in Lafayette. The Commission acknowledges that future court rulings and state laws may support some type of overall gun storage in private residences. The Commission supports developing public education
focused on safe gun storage and overall gun safety. Education, a proclamation, and other options may be available to support our community in this effort.
Staff Report: https://lafayette.granicus.com/MetaViewer.php?view_id=&event_id=1129&meta_id=159626
