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CITY' OF SAN BERNODINO - REQUEST F:JI COUNCIL ACTION
From: Mayor Evlyn Wil cox
Subject:
Resolution in Support of SB 292
(Roberti) and AB 357 (Roos)
Assault Weapon Legislation .
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Dept: Mayor's Office
Date: Fe b r u a r y 1 4, 1 989
Synopsis of Previous Council action:
None.
Recommended motion:
Adopt resolution.
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Contact parson:
Draft
Supporting data attached:
Mayor Evlyn Wilcox
Phone:
384-5051
All
Resolution, SB 292
Ward:
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
Finance:
Council Notes:
75.0262
Agenda Item NO",=,':; h
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DRAFT
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RESOLUTION IN SUPPORT OF SB 292 (ROBERTI)
AND AB 357 (ROOS)
WHEREAS, it is recognized that guns do not kill people
but people kill people; and
WHEREAS, it is also recognized that in recent years an
increase in the use of high powered, military assault
weapons by gang members has occurred in our community and
throughout the .tate of California; and
WHEREAS, in order to protect law abiding citizens from
the proliferation of assault weapons being used in the
State of California and our local communities; and
WHEREAS, we recognize the individual rights of citizens
to bear arms we also recognize the need to provide a
reasonable process that would reverse the trend of assault
weapons being readily available to that negative element in
our society which is bent on crime and personal assault;
and
WHEREAS, SB 292 and AB 357 provides for a reasonable
approach to addressing this problem:
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL
OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
1. That the Mayor and Common Council of the City of
San Bernardino endorse SB 292 and AB 357 and encourage our
State Senators and Assemblymen to support these initiative
in an effort to provide a reasonable process to limit the
use and abuse of assault weapons in our city and throughout
the State of California.
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I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the city of San
Bernardino at a
day of
meeting thereof, held on the
, 1989, by the following vote, to
wit:
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foregoing resolution is hereby approved this
day of , 1989.
Evlyn Wilcox, Mayor
city of San Bernardino
Approved as to form
and legal content:
City Attorney
-JOHN K. VAN DE KAMP
4.ttornf'Y Cf'n~"GI
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DEPARTMENT OF /flSTICH.c- _ ,_.,.,'
1515 II: STREET, SUITE 511
p.a BOX 94U.55
SACRAMENTO 94244-2550
(916) 445-9555
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sa 292 (k'beu.U)
AB 357 (lbls)
'lhese bills ad::iress the problan of assault '-'Sapoos with the follOlrinq
llajor prm-isiaulI
(1) make it a felaty to p:lSsess, sell or nanufacture an "assault
'-'Sapon," as defined, and ad::I a five-year enhanc::enent for use
of an assault '-'Sapon in the catmission of a crime.
(2) define "assault '-'Sapon" through generic language, with a
CCInpanion generic definition of those fireanns which are not
assault '-'Sapons;
(3) create an Assault ~pons Ccmnission to exenpt specific
\reapons found to be legit.inate sports or recreational fireanns.
( 4) Any individual who lawfully possessed an assault \reapon prior to
October 1, 1989, llay retain the gun by reg:i.sted,ng it with the
~t of Justice. '!his will be a sl.l!lllal:y Process akin to the
current check of those purchasing concealable fireanns.
Registration is limited to ooth the specific individual and the
specific gun. 'lhus even though a pre-1989 assault \reapon has been
registered, the owner llaY not thereafter transfer it to anyone
within California other than to a licensed gun dealer.
(5) Any individual wishing to aoquire any assault \reapon after
October I, 1989, must obtain a pecuit fran the D=parb:rent of
Justice under the existing Provisions regulating llachine guns.
'!his is a IlU.Ich !lOre thorough sCreening, limited to individuals who
can daronstrate JUStification. Presently, there are 350 pennits
outstanding for llachine guns, prillarily limited to licensed gun
dealers, nanufacturers or l10Vie studios.
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Assault Waapons
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(6) 'n1e r,fM Assault Waap:JllS Catmissian will be located within the
Department of Justice for administrative ~. It is c::anposed
of nine rranbers: the Director of the Department of Justice's
Division of Law EnfoJ:ceueut, the Director of the Department of
Fish an:i Garre Catmissian, a sheriff of a oounty over 500,000
appointed by the Senate, a chief of police frail a city over
250,000 appointed by the Assembly, a representative of a sports
club appointed by the Senate, a district attomey fran a oounty
over 500,000 appointed by the Govemor, a sheriff of a oounty
under 500,000 appointed by the Govemor, a chief of police of a
city under 250,000 appointed by the Govemor, an:i a representative
of a peace officer lal:::or organization appointed by the Speaker.
Carolyn McIntyre
Supervising Special Agent
(916) 324-5476
PARTD.L LIST OF W~PONS
REGULATED
RI FLES
AK 47
AUTO ORDNANCE MODEL 27 A- 1
BERETTA MODEL AR 70
DAEWOO K 1 AND K2
FN-FAL AND FN-FNC
GALlL
HECKLER AND KOCH MODELS 91, 93 AND, 94
RUGER MINI-14 AND MINI-30
SPRINGFIELD M 1 A
SPRINGFIELD/BERETTA BM 59
STEYER AUG
UZI CARBINES
V ALMET HUNTER AND MODEL 78
SHOTGUNS
BENELLI POLICE/MILITARY MODEL
MOSSBERG 500 BULLPUP
S.P.AS. 12
STREET SWEEPER
HANDGUNS
INGRAM (MACS)
INTRATEC
UZI
PARTIM LIST OF WMPONS
NOT REGULATED
RIFLES
REMINGTON MODELS 4, 6, 74, 700, AND 742
WINCHESTER MODELS 70, 94, AND 100
RUGER NO 1
RUGER 10-22
RUGER .44 MAGNUM CARBINE
RUGER MODEL 77
BROWNING AUTOMATIC RIFLE
WEATHERBY MK V
SAVAGE MODEL 110
MOSSBERG MODEL 1500
MARLIN MODEL 336
M 1 GARAND AND CARBINE
SIMONOV TYPE 56
SHOTGUNS
BROWNING AUTO 5
REMINGTON 1100
REMINGTON 11-87
ITHACA MODEL 37
HANDGUNS
GLOCK 19
COLT 45 ACP
BROWNING HIGH POWER
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AMENDED IN SENA~ FEBRUARY 1, 1989 r~S1
AMENDED IN SENATE JANUARY 31, 1989 hI-"
SENATE BILL No. 292
Introduced by Senator Roberti
(Principal coauthor: Assembly Member Roos)
(Coauthors: Senators Bill Greene, Montoya, and Torres)
(CSatlthSf'. ..\ss8Hlsly hfsmBer ]ek.HatsH)
(Coauthors: Assembly Members Johnston and Klehs)
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January 26,1989
An act to amend Sections 12020.5 and 12022.5 of, and to add
Chapter 2.3 (commencing with Section 12275) to Title 2 of
Part 4 of, the Penal Code, relating to weapons.
LEGISLATIVE COUNSEL'S DIGEST
SB 292, as amended, Roberti. Weapons: semiautomatic
firearms.
Existing law makes it a misdemeanor to advertise certain
weapons or devices, as specified.
This bill would add "assault weapon," as defined, to that list,
thus creating a state-mandated local program by expanding.
the scope of an existing crime: .
Existing law provides that any person wjlo is convicted of
a felony or an attempt to commit a felony, including murder
or attempted murder, in which that person discharged a
firearm at an occupied motor vehicle which caused great
bodily injury or death to another, shall, upon conviction of
that felony or attempted felony, receive a full, consecutive
sentence enhancement of 5 years in addition to the sentence
prescribed for the felony or attempted felony. Existing law
also provides that the firearm shall be deemed a nuisance and
shall be disposed of by law enforcement officials, as specified.
. This bill, in addition, would provide that any person who
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personally uses an assault weapon in the commission or ,
attempted commission of a felony shall receive the same
sentence enhancement. In addition, the bill would require
law enforcement officials to dispose of assault weapons, thus
increasing their responsibilities, and imposing a
state-mandated local program.
The bill also would include legislative findings and J
declarations concerning assault weapons and would make it a
felony for any person, firm, or corporation, within this state to
manufacture or cause to be manufactured, import into the
state, keep for sale, or offer or expose for sale, or give, lend,
or possess any assault weapon, except as provided by this bill.
Furthermore, any person who commits another crime while
violating this provision would be subject to an additional,
consecutive punishment of one year for violating the
provision in addition and consecutive to the punishment,
including enhancements, which is prescribed for the other
crime. Because the bill would create a new crime, it would
impose a state-mandated local program.
The bill also would establish a prQcedure for the registration 1.
of assault weapons by the Department ofJustice and issuance
of permits for their possession and sale, as specified.
In addition, the bill would establish an Assault Weapons
Commission, as specified, within the Department of Justice .
for the purpose of determining whether particular firearms ..
are legitimate sports or recreational firearms.
The bill would declare that if any provision is held invalid,
that invalidity shall not affect other provisions or applications
of the bill.
The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated
by the state. Statutory provisions establish procedures for
making that reimburseQlent.
This bill would provide that for certain costs no (
reimbursement is required by this act for a specified reason:
However, the bill would provide that, if the Commission on
State Mandates Claims determines that this bill contains other
costs mandated by the state, reimbursement for those costs
shall be made pursuant to those statutory procedures and, if
~he statewide cost does not exceed $1,000,000, shall be payable
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SB 292
o from the State Mandates Claims Fund.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
l' SECTION 1. Section 12020.5 of the Penal Code is
2 amended to read:
3 12020.5. It shall be unlawful for any person, firm,
4 corporation, or association, in any newspaper, magazine,
5 circular, form letter, or open publication, published,
6, distributed, or circulated in this state, or on any billboard,
7 card, label, or other advertising medium, or by means of
8 any other advertising device, to advertise the sale of any
. 9 weapon or device whose possession is prohibited by .
10 Section 12020 or 12280.
11 SEe. 2. Section 12022.5 of the Penal Code is amended
12 to read:
13 12022.5. (a) Except as provided in subdivisions (b)
14 and (c), any person who personally uses a firearm in the
15 commission or attempted commission of a felony shall,
16 upon conviction of such felony or attempted felony, in
17 addition and consecutive to the punishment prescribed'
18 for the felony or attempted felony of which he or she has
19 been convicted, be punished by an additional term of
20 imprisonment in the state prison for two years, unless use
21 of a firearm is an element of the offense of which he or
22 she was convicted.
23 (b) Notwithstanding subdivision (a), any person'who
24 is convicted of a felony or an attempt to commit a felony,
25 including murder or attempted murder, in which that
26 person discharged a firearm at an occupied motor vehicle
27 which caused great bodily injury or death to the person
28 of another, or any person who personally uses an assault
29 weapon, as specified in Chapter 2.3 (commencing with
30 Section 12275) ef ~ ~, in the commission or
31 attempted commission of a felony, shall, upon conviction
32 of thai: felony or attempted felony, in addition and
33 consecutive to the sentence prescribed for the felony or
34 attempted felony, be punished by an additional term of
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1 imprisonment in the state prison for five years. I
2 (c) Notwithstanding the enhancement set forth in
3 subdivision "(a), any person who personally uses a firearm
4 in the commission or attempted commission of a violation
5 of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378,
6 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety (
7 Code, shall, upon conviction of that offense and in
8 addition and consecutive to the punishment prescribed
9 for the offense of which he or she has been convicted, be
10 punished by an additional term of imprisonment in the
11 state prison for three, four, or five years in the court's
12 discretion. The court shalt order the imposition of middle
13 term unless there are circumstances in aggravation or
14 mitigation. The court shall state the reasons for its
15 enhancement choice on the record.
16 (d) The additional term provided by this section may
17 be imposed in cases of assault with a firearm under
18 paragraph (2) of subdivision (a) of Section 245, or assault
19 with a deadly weapon which is a firearm under Section
20 245. (
21 (e) When a person is found to have personally used a
22 firearm or an assault weapon in the commission or ~
23 attempted coIlUl}ission of a felony, as provided in this I
24 section and the firearm or assault weapon is owned by I
25 that person, the court shall order that the firearm be l
26 deemed a nuisance and disposed of in the manner
27 provided in Section 12028.
28 (f) For purposes of imposing an enhancement under
29 Section 1170.1, the enhancements under this section shall
30 count as one, single enhancement.
31 (g) Notwithstanding any other provision of law, the.
32 court may strike the additional punishment for the
33 enhancement provided in subdivision (c) in an unusual
34 case where the interests of justice would best be served,
35' if the court specifies on the record and enters into the
36 minutes the circumstances indicating that the interests of
37 justice would best be served by that disposition.
38 SEC. 3. Chapter 2.3 (commencing with Section
39 12275) is added to Title 2 of Part 4 of the Penal Code, to
40 read:
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SB 292
CHAPTER 2.3. ASSAULT WEAPONS
Article 1. General Provisions
12275. The Legislature hereby finds and declares that
the proliferation and use of assault weapons poses a threat
to the sMe~ health, safety, and security of all citizens of
this state. As used in this chapter, "assault weapon"
generally means a firearm of such a nature and with such
a high rate of fire and capacity for firepower that its
function as a legitimate sports and recreational firearm is
substantially outweighed by the danger that it 'NtH can be
used to kill and injure human beings. It is, therefore, the
intent of the Legislature in enacting this act to place
restrictions on the use of these assault weapons and to
establish a registration and permit procedure for their
lawful sale and possession. It is not, however, the intent
of the Legislature to place restrictions on the use of those
weapons which are primarily designed and intended for
hunting, target practice, or other legitimate sports or
recreational activities.
12276. (a) For purposes of this chaPter~" sault
weapon" includes all of the following:
(1) All semiautomatic action, centemre ~lI~hat
accept detachable magazines with a capacity o~ rounds
or more.
(2) All semiautomatic shotguns with a barrel of less
than 19 inches and a folding stack or a magazine capacity
of more than six rounds.
(3) All semiautomatic pistols, as defined in Section
12001, that are modifications of rifles described in
paragraph (1); that is, having the same make, caliber, and
action design but a shorter barrel and no ar stock, or
that are semiautomatic weapons ori' y designed to
accept magazines with a capacity of ounds or more.
(4) Any firearm which may be adily restored to an
operable assault weapon.
(5) Any part, or combination of parts, designed or
intended to convert a firearm into an assault weapon, or
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1 any combination of parts from which an assault weapon
2 may be readily assembled if those parts are in the
3 possession or under the control of the same person.
4 (b) As used in this chapter, "shotgun" means a
5 weapon, whether it is intended to be fired from the
6 shoulder, that is designed or redesigned, made or
7 remade, to fire a fixed shotgun shell.
8 As used in this chapter, "rille" means a weapon,
9 whether it is intended to be fired from the shoulder, that
10 is designed or redesigned, made or remade, to fire a fixed
11 cartridge and is notil "pistol," as defined in Section 12001.
12 As used in this chapter, "semiautomatic" means a
13 weapon which fires a single projectile for each single pull
14 of the trigger and which employs a magazine.
15 (c) As used in this chapter, "assault weapon" does not
16 include any of the following:
17 (1) All weapons that do not use fixed ammunition, all
18 weapons that were in production prior to 1898, all
19 manually operated bolt-action weapons, all lever-action
20 weapons, all slide-action weapons, all single-shot
21 weapons, all multiple-barrel weapons, all
22 revolving-cylinder weapons, all semiautomatic weapons
23 with a fixed magazine capacity of 10 rounds or less, all
24 semiautomatic weapons that use exclusively
25 Mannlicher-style clips, all semiautomatic weapons in
26 production prior to 1954, and all rimfire weapons that
27 employ a tubular magazine.
28 (2) Any short-barreled shotgun, as defined in
29 paragraph (1) of subdivision (c) of Section 12020.
30 (3) Any short-barreled rifle, as defined in paragraph
31 (2) of subdivision (c) of Section 12020.
32 (4) Any antique or relic firearm, movie prop, or other
33 weapon, as specified in paragraphs (1), (5), (7), (8), (9),
34 (10), (11), (12), and (13) of subdivision (b) of Section
35 12020, and subject to all the limitations and requirements
36 of those paragraphs.
37 (5) Any firearm that uses .22 caliber rimfire
38 ammunition.
39 (6) Any firearm that is declared to be a legitimate
40 sports or recreational firearm by the Assault Weapons
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SB 292
1 Commission pursuant to Section 12295.
2 (7) Any assault weapon which has been modified
3 either to render it Permanently inoperable or to
4 permanently make it a device no longer defined as an
5 assault weapon.
6 (d) Except as specifically stated in this section, the
7 provisions of this section are independent of, and'
8 supplemental to, any other provisions oflaw, and nothing
9 shall prevent a device defined as an "assault weapon" in
10 this section from also being regulated under other
11 provisions of law.
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Article 2. Unlawful Activities
12280. Any person, firm, or corporation, who within
this state manufactures or causes to be manufactured,
imports into the state, keeps for sale, or offers or exposes
for sale, or who gives, lends, or possesses any assault
weapon, except as provided by this chapter, is guilty of a
felony, and upon conviction shall be punished by
imprisonment in the state prison, or in the county jail, not
exceeding one year. Notwithstanding Section 654 or any
other provision oflaw, any person who commits another
crime while violating this section may receive an
additional, consecutive punishment of one year for
violating this section in addition and consecutive to the
punishment, including enhancements, which is
prescribed for the other crime.
Article 3.' Registration and Permits
12285. (a) Any individual who lawfully possesses an
assault weapon, as defined in Section 12276, prior to
October 1, 1989, shall register the firearm by January 1,
1991, with the Department of Justice pursuant to such
procedures as the department may establish. The
registration shall contain a description of the firearm that
identifies it uniquely, including all identification marks,
the full name, address, date of birth, and fingerprints of
the owner, and such other information as the department
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1 may deem appropriate. . Any change of address of the
2 owner must be registered with the department within 90
3 days of the change. The department may charge a fee for
. 4 registration'notte' exceed the actual processing costs of
5 - the department. After the department establishes fees
6 sufficient to reimburse the department for processing
7 costs, fees charged shall increase at a rate not to exceed
8 the legislatively . approved annual cost-of-living
9 adjustment fol' the department's budget.
10 (b) No assault weapon possessed pursuant to this
11 section may be sold or transferred on or after January 1,
12 1990, to anyone within this state other than to a licensed
13 gun dealer as defined'in subdivision (b) of Section 12290.
1:4 Any individual who obtains title to an assault weapon
15 - registeredl. under this' section by bequest or intestate
16 succession must, within 90 days, either render the
17 weapon inoperable in accordance with paragraph (7) of
18 subdivision (c) of Section 12276, sell the weapon to a
HI licensed. gun dealer, obtain a permit from the
20 Department of Justice in the same manner as specified in
21 Article 3 (commencing with Section 12230) M ~ flMe, .
22 or remove the weapon from this state.
23 (c). A person who has registered an assault weapon ;
24 acquil'ed.prior to October 1,1989, under this section may
25 possess it only under the following conditions:
26 ('1) At that person's residence, place of business, or
27 other property owned by that person, or on property
28 ,owned by another withe the owner's express permission.
29, ' (2) :While on the premises of a target range of a public
30 ' or private club or organization organized for the purpose
31 of practicing' shooting at targets.
32 (3) While on a target range which holds a regulatory
33 or business :license for the purpose of practicing shooQng
34 at that target range. .
35 (4) While on the premises of a shooting club which is
36 licensed pursuant to the Fish and Game Code.
37 (5~ While; attending any exhibition, display, 0
38 eduoational project which is about firearms and which i .'
39 . sponsored by, conducted under the auspices of, o'
40 approved by a law enforcement agency or a nationally 0
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sa 292
state recognized entity that fosters proficiency in, or
promotes education about, firearms.
(6) While transporting the assault weapon between
any of the places mentioned in this subdiyision, if the
assault weapon is transported as required by Section
12026.1.
(d) No person under the age of 18 years and no person
described in Section 12021 or 12021.1 of this code or
Section 8100 or 8103 of the Welfare and Institutions Code
may register or possess an assault weapon. .
12286. Any individual who acquires or wishes to
acquire any assault weapon in existence on or after
October 1, 1989, must first obtain a permit from the
Department of Justice in the same manner as specified in
Article 3 (commencing with Section 12230) ef tfti8 tHIe.
Article 4. Licensed Gun Dealers
12290. (a) Any licensed gun dealer, as defined in
subdivision (b), who lawfully possesses an assault weapon
pursuant to Section 12285, in addition to the uses allowed
in Section 12285, may transport the weapon between
dealers or out of the state, display it at any gun show
licensed by a state or local governmental entity, or sell it
to a resident outside the state. Any transporting allowed
by this section must be done as required by Section
12026.1.
(b) The term "licensed gun dealer," as used in this
article means a person who has a federal firearms license,
any business license required by a state or local
governmental entity, and a seller's permit issued by the
Board of Equalization.
Article 5. Assault Weapons Commission
12295. .(a) There is hereby created the. Assault
Weapons Commission within the Department of Justice
which shall consist of nine members, appointed as
follows: the Director of the Division of Law Enforcement
within the Department of Justice, who shall be the
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1 presiding officer; the Director of the1Department;ot Fish
2. and Game; a district attorney of a county or city and
3 . county with a population over &lO,OOO', . who. shall be
. 4. appointed by the Governor; a sheriff of a county or city
5 and county with a population under 500,000; who shall be
6 appointed by the Governor; a chief of police bfa city or
7 city. and county with a population under 250,000, who
8 shall be appointed by the Governor; a sheriff of a county
9 or city and county with a population over 500,000, who
10 shall be. appointed by the Senate Rules Cominittee; a
11 chief of police of a city or city and county with a
12 population over 250,000, who shall be appointed by the
13 S~aker of the Assembly; a member of a broad-based
14 organization representing hunters or others who use
15 firearms for sports and recreational purposes, who shall
16 be appointed by the Senate Rules Committee; and a
17 member of a broad-based peace officer labor
18 organization, who shall be appointed by the Speaker of
19 the Assembly.
20 The Director of the Department of Fish and Game and
21 the Director of the Division of Law Enforcement within
22 the Department of Justice shall serve as ex officio
23 members. Each of the other members' shall serve
24 . two-year terms, except that for the initial term after
25 enactment of this section the district attorney, the sheriff
26 oCa county or city and county with a population under
27 500,000, the member of a broad-based organization
28 representing hunters or others who use firearms for
29 sports or recreational purposes, and the member of a
30 ,broad-based peace officer labor organization shall serve
31 for one year.
32 Members of the commission shall be entitled to a
33 reasonable per diem and reimbursement for other
34 : expemes necessary to the fulfillmljlnt of their duties, an
35 staff and administrative StlPport as shall be deeme
36 appropriate by the Director of the Division of La
37 Enforcement. The commission shall meet from time t
38 time as is necessary to perform its duties.
39 (b) .The commission, as soon as is practical, shall ado
40 rules. and regulations establishing procedures f
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SB 292
. 1 . determining whether particular firearms are legitimate
.2 sports or recreational firearms. The adoption of the rules
3 and regulations shall be exempt from the requirements of
:4 Chapter 3.5 (commencing with Section 11340) of Part 1
:5. of Division 3 of Title 2 of the Government Code, but shall
6 provide for reasonable prior notice and hearing before
7 the commission may declare any. firearm to be a
8 legitimate sports or recreational firearm. The rules and
9 regulations shall provide for the speedy resolution of
10 petitions filed pursuant to subdivision (d). Copies of the
11 rules and regulations shall be made available to the
12 public.
13 ((:) In determining whether a firearm is a legitimate
14 sports or recreational firearm, the commission shall
15 consider the findings and intent set forth in Section 12275
16 The commission shall specifically consider the
17 usefulness and actual use of the firearm for hunting,
18 target practice, or other sports or recreational activities,
19 as well as the firearm's history of and potential for use in
20 criminal activity.
21 In general, a shorter length than that of widely
22 accepted hunting or other recreational firearms, the use
23 of a folding stock, an original design for military use, a
24 greater rate of fire or firing capacity than reasonably
25 necessary for legitimate sports or recreational activities,
26 or a uniquely aild particularly lethal nature, are factors
27 indicating that a firearpl is not a legitimate sports or
28 tecreational firearm.
29 (d) Any licensed gun dealer, as defined in Section
30 12290, or any manufacturer of any firearm which is
31 described in subdivision (a) of Section 12276 may petition
32 the cOnu:lUssion to have that firearm declared to be a
33 legitimate sports or recreational firearm under the
34 procedures established under this section. The
35 commission may impose a fee for each petition not to
36 exceed the actual cost <;If investigating and processing the
37 petition.
38 (e) The commission shall notify the Legislature within
39 seven days of any finding made under this section. No
40 decision by the commission under this section shall
f11220
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SB 292
1 become effective for 90 days.
2 SEe. 4. If any provision of this act or the application
3 thereof to any person or circumstances is held invalid,
4 that invalidity shall not affect other provisions or
5 applications of the act which can be given effect without
6 the invalid provision or application, and to this end the
7 provisions of this act are severable. .
8 SEe. 5. No reimbursement is required by this act
9 pursuant to Section 6 of Article XIII B of the California
10 Constitution for those costs which may be incurred by a .
11 local agency or school district because this act creates a
12 new crime or infraction, changes the definition of a crime
13 or infraction, changes the penalty for a crime or
14 infraction, or eliminates a crime or infraction.
15 However, notwithstanding Section 17610 of the
16 Government Code, if the Commission on State Mandates
17 determines that this act contains other costs mandated by
18 the state, reimbursement to local agencies and school
19 districts for those costs shall be made pursuant to Part 7
20 (commencing with Section 17500) of Division 4 of Title
21 2 of the Government Code. If the statewide cost of the
22 claim for reimbursement does not exceed one million
23 dollars ($1,000,000), reimbursement shall be made from
24 the State Mandates Claims Fund.
25 Notwithstanding Section 17580 of the Government
26 Code, unless otherwise specified in this act, the provisions
27 of this act shall become operative on the same date that
28 the act takes effect pursuant to the California
29 Constitution.
1
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1
. CiTY- OF SAN BERN~DINO - REQUEST FOR COUNCIL ACTION
From: Mayor Evlyn Wil cox
Subject:
Resolution in Support of SB 292
(Roberti) and AB 357 (Roos)
Assault Weapon Legislation
Dept: Mayor's Office
Date: February 14. 1989
Synopsis of Previous Council action:
None.
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Recommended motion:
Adopt resolution.
/1eh~J ;?2/~
r Slgn~ture
Contact parson:
Dra ft
Supporting data aUechad:
Mayor Evlyn Wilcox
Phone:
384-5051
All
Resolution. SB 292
Ward:
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
Finance:
Council Note.:
75.0262
Agenda Item No~ .:; c:2J /I
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RESOLUTION IN SUPPORT ;; c.(1 e
IdfB AS 357 (ROO8)
WHEREAS, it is recognized that guns do not kill people
but people kill people, and
WHEREAS, it is also recognized that in recent years an
increase in the use of high powered, military assault
weapons by gang members has occurred in our community and
throughout the .tate of California, and
WHEREAS, in order to protect law abiding citizens from
the proliferation of assault weapons being used in the
State of California and our local communities, and
WHEREAS, we recognize the individual rights of citizens
to bear arms we also recognize the need to provide a
reasonable process that w~uld reverse the trend of assault
weapons being readily available to that negative element in
our society which is bent on crime and personal assault,
and
,
.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL
OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
1. That the Mayor anj Common Council of the City of
sa;;;;B ardino .ader.. 51 393 and AI 3&7 and encourage our
:. ~~~(~~
Sta senator~~nd Assemb1ym~n to support th~se inft1ative
/I ~ VW71/iY"7 u.K :d ~ ~
~ an effort to provide a reasonable process to limit the
use and abuse of assault weapons in our City and throughout
the State of ca;Jfornia.
.(;t~~)~~~~y~
~ ~na/ tb dt/ /2--7 tI '" ~
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I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the city of San
Bernardino at a
day of
meeting thereof, held on the
, 1989, by the following vote, to
wit:
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foregoing resolution i. hereby approved this
day of , 1989.
Evlyn Wilcox, Mayor
City of San Bernardino
Approved as to form
and legal content:
City Attorney
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CI
BERNARDINO
300 NORTH "0" STREET, SAN BERNARDINO. CALIFORNIA 92418
JAMES F. PENMAN
CITY ATTORNEY
17141384-5355
February 17, 1989
Mayor Evlyn Wilcox
City of San Bernardino
300 North "0" Street
San Bernardino, California 92418
RE: Does the City have legislative authority to prohibit the
possession and sale of assault weapons within City-limits?
Dear Mayor Wilcox:
After Patrick Edward Purdy opened fire with an AK-47 assault
rifle in a Stockton schoolyard on January 17, 1989, killing five
children and wounding 29 others, numerous jurisdictions have
considered prohibiting the possession and sale of assault
weapons. As of the date of the writing of this letter, at least
six California cities, including Los Angeles, Compton, Stockton,
Carson, Gardena and Lynwood, and as well as Santa Clara County,
have adopted ordinances banning the possession and sale of
assault weapons. The County of Los Angeles and the City of San
Diego are currently considering similar bans. At least two bills
are now being debated before the California State Legislature:
Senate Bill 292 (Roberti) and Assembly Bill 376 (Klehs), both
restricting the possession and sale of such weapons.
With some minor differences, the Los Angeles and Stockton
ordinances both define "assault weapons" as any semiautomatic
action, center fire rifle or carbine which accepts a detachable
magazine with a capacity of twenty rounds or more.
No court cases have yet ruled on the validity of
ordinance which prohibits the possession or sale
weapons.
a municipal
of assault
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February 17, 1989
Mayor Evlyn Wilcox
On February 13, 1989, Colt Industries, Inc., the
manufacturer of the AR-15, an assault rifle, filed a civil
complaint in Federal Court in Los Angeles, seeking an injunction
prohibiting enforcement of the Los Angeles ordinance. The
Honorable William P. Gray, Judge of the United states District
Court for the Central District of California, in Colt Industries,
Inc. v. City of Los Angeles, Case No. 89-0846WPG, set February
22, 1989 for a hearing on a Temporary Restraining Order.
Although secondary issues, such as the ambiguity and
overbreadth of the definition of "assault weapon", must
eventually be addressed, the primary issue is whether an
ordinance banning the possession and sale of assault weapons is
invalid because it is in conflict with the general laws of the
state.
A local ordinance regulating or prohibiting the possession
of certain firearms would be enacted pursuant to the inherent
police power of the City to promote the order, safety, health,
morals and general welfare of its citizens. The police power is
reserved to the states by the 10th Amendment to the United States
Constitution. (Brown v. Brannon (1975) 399 F. Supp. 133, Aff'd
535 F.2d 1249; and State v. Whitaker (1947) 45 SE.2d 860, 228
N.C. 352, Aff'd 69 S.Ct. 251, 335 U.s. 525, 93 L.Ed. 212) This
power is delegated to cities by the provisions of Article 11,
Section 7 of the California Constitution which reads:
"A County or City may make and enforce within
its limits all local, police, sanitary, and
other ordinances and regulations not in con-
flict with general laws."
This grant is echoed in the provisions of Section 40(b) of
the Charter of the City of San Bernardino.
The test for determining whether a local law is in conflict
with general laws is stated in Lancaster v. Municipal Court
(1972) 6 Cal.3d 805, 807-808, as fOllows:
"Conflicts exist if the ordinance duplicates,
contradicts, or enters an area fully occupied by
general law, either expressly or by legislative
implication." [Citations omitted]
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February 17, 1989
Mayor Evlyn Wilcox
Accordingly, this letter will analyze these issues by
examining: (1) duplication; (2) contradiction; (3) express
preemption; and (4) implied preemption.
I. Duplication:
It appears from a review of state law that the State
presently has no regulations directly banning the possession or
sale of assaul t weapons. Should any of the aforementioned
pending bills or any other bill pass the state legislature and
become enacted into law, then any municipal ordinance duplicating
such a statute would be invalid because it would then be
preempted by state law.
II. Contradiction:
The proposed ordinance would be invalid if it contradicts
state law by prohibiting what is allowed by general state law.
A defensible argument can be made that the proposed
ordinance contradicts the state legislature's intent when it
amended Penal Code Section 12200 by deleting semiautomatic
weapons from the definition of "machine gun".
Although the state prohibited the possession of machine guns
as early as 1927, it codified this prohibition into Penal Code
Section 12220 in 1953 by providing criminal penalties of state
prison and a fine for any person who "sells, offers for sale,
possesses or knowingly transports any firearms of the kind
commonly known as a machine gun. "In 1965, the state
rewrote the definition of machine gun in Penal Code Section 12200
to read:
"The term machine gun as used in this chapter
means any weapon which shoots, or is designed to shoot,
automatically or semiautomatically, more than one shot,
without manual reloading, by a single function of the
trigger."
Under the 1965 definition of machine gun in Section 12200,
the possession or sale of assault weapons, which are
semiautomatic weapons, would have been prohibited.
In 1967, the state legislature amended the definition in
Section 12200 by deleting the words "or semiautomatically". This
amendment implies a specific intention by the state to remove
semiautomatic weapons from the category of prohibited weapons in
state law.
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February 17, 1989
Mayor Evlyn Wilcox
"As a general rule, an intention to change the law
or the meaning of a statute will be inferred or
presumed from a material change in the statutory
language, such as where the legislature undertakes to
amend existing law by deleting an express prov.ision of
the previous statute. "[Citations omitted] Cal.
Jur. III, Vol. 58, p. 384-385.
Any ordinance which bans semiautomatic weapons would likely
be found invalid because it contradicts the state legislature's
intention to permit such weapons statewide as evidenced by the
state enacting the 1967 amendment to Penal Code Section 12200.
III. Express Preemption:
We have found no express legislative statement that the
State intended to occupy the entire field of the possession of
firearms, nor the more narrow area of the possession of assault
weapons.
The state legislature has expressly stated its intention to
occupy the entire field of registration and licensing of
commercially manufactured firearms including assault weapons.
Government Code Section 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 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."
Labor Code Section 1721 includes a city as a political
subdivision. In Sipple v. NeIder (1972) 24 Cal.App.3d 173, the
court, in striking down an ordinance requiring local permits for
handguns, concluded that Government Code Section 53071 preempts
and fully occupies the entire field of registration and licensing
of commercially manufactured firearms. Government Code Section
53071 does not however expressly occupy or preempt the field of
possession of firearms. 65 Ops.Atty.Gen. 457, 462 (1982).
Because the proposed ordinance does not relate to the
registering or the licensing of assault weapons, it is not
expressly preempted by Government Code Section 53071.
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February 17, 1989
Mayor Evlyn Wilcox
IV. Implied Preemption:
The strongest challenges to the proposed ordinance will be
focused on the legal issue of state preemption by legislative
implication.
The California Supreme Court has enumerated three tests for
determining whether a local ordinance is preempted by legislative
implication:
"(I) the subject matter has been so fully and
completely covered by general law as to clearly
indicate that it has become exclusively a matter of
state concern; (2) the subj ect matter has been
partially covered by general law couched in such terms
as to indicate clearly that a paramount state concern
will not tolerate further or additional local action;
or (3) the subject matter has been partially covered
by general law, and the subject is of such a nature
that the adverse effect of a local ordinance on the
transient citizens of the state outweighs the possible
benefit to the municipality." Galvan v. Superior Court
(1969) 70 Ca1.2d 851, 859-860, citing In re Hubbard
(1964) 62 Cal.2d 119, 128.
In applying the first test for implied preemption cited in
Galvan v. Superior Court, firearms have been extensively
regulated by state law. See for example, Penal Code Sections
12020, 122220, 12230, 12251, 12403.7, 12420, 12091-12094, 12031,
and Fish and Game Sections 2008, 2010.
Because the field of possession of firearms has been so
fully, completely and comprehensively covered by general state
law as to clearly indicate a legislative intent to occupy the
field, we feel that it is very likely that the proposed ordinance
would not survive the first test of Galvan v. Superior Court.
In applying the second test for implied preemption cited in
Galvan, we note that in addition to the state laws enumerated
above under the first test, the state has also added the
provisions in Government Code Section 53071, mentioned earlier in
this opinion.
In Doe v. City and County of San Francisco (1982) 136
Cal.App.3d 509, the court struck down a local ordinance
prohibiting possession of handguns because it was, in effect, a
local regulation relating to licensing and was therefore
expressly preempted by Government Code Section 53071. Most
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February 17, 1989
Mayor Evlyn Wilcox
importantly, the court concluded that the express provisions of
Government Code Section 53071 impliedly barred cities from
prohibiting possession. The court stated:
"A restriction on requiring permits and licenses
necessarily implies that possession is lawful without a
permit or license. It strains reason to suggest that
the state legislature would prohibit licenses and
permits but allow a ban on possession." Doe v. City
and County of San Francisco, supra, at page 518.
Likewise, in any future challenge to the proposed ordinance,
we feel the court would probably find that it strains reason to
suggest that the state legislature would, on the one hand,
prohibit a municipality from enacting ordinances which, in
effect, licenses and permits assault weapons but, on the other
hand, allow a municipality to impose a ban on possession of
assault weapons.
Because the state laws which already cover the field of
firearms restrictions also by their language imply that a
municipality may not prohibit possession of firearms, we feel
that the proposed ordinance would very likely fail the second
test.
Finally, we also would conclude that in applying Galvan's
third test, the proposed ordinance would have adverse effects on
transient citizens outweighing local benefits. An unfair and an
unjustified burden would be placed on transient citizens of this
state if numerous cities were to enact different ordinances
prohibiting possession of assault weapons and other cities were
to permit possession.
Because the City of San Bernardino is a transportation hub
for rail, truck and automobiles carrying passengers and freight
traveling both intrastate and interstate, transient citizens
lawfully carrying assault weapons in their vehicles would be
unfairly burdened with potential charges of criminal misconduct
for merely passing through the City.
For all of the above reasons, we feel that it is very likely
that the City does not have legislative authority to prohibit the
possession and sale of assault weapons within City-limits because
state laws have preempted the field.
We agree with the California Attorney General's Opinion:
"We conclude that the subject of possession of
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February 17, 1989
Mayor Evlyn Wilcox
firearms is not a municipal affair wi thin the meaning
of Article XI, Section 5(a) of the California
Constitution. Accordingly, charter cities as well as
general law cities are subject to general state laws
governing the possession of firearms and the implied
preemption of that field of legislation by the
California Legislature." 65 Ops.Atty.Gen. 457, 467
(1982) .
As noted above, the power, if it exists at all, for the City
to adopt such an ordinance derives from the City's pOlice power.
With reference to the issue of "taking" of private property, the
traditional rule is that the proper exercise of the police power
does not give rise to the right of compensation under the 5th and
14th Amendments to the United States Constitution nor under
Article I, Section 19 of the California Constitution which
provide that property may not be taken (or damaged) for public
use without just compensation (Moreshead v. California Regional
Water Quality Control Board (1975) 45 CA.3d 442, 450).
". . . [T]hus where the police power is legitimately
exercised, uncompensated submission may be exacted
of the property owner whose property is either
damaged, taken, or destroyed." (13 Cal.Jur. III
"Constitutional Law" Section 122).
A significant reason for this result is that under the
exercise of the pOlice power there is no transfer of ownership
(13 Cal. Jur. III "Constitutional Law" Section 122).
However, the cases have acknowledged that in certain
instances the exercise of the police power crosses the line to
require compensation by the government.
"Whether the state or its subdivisions may
take or damage private property under the
pOlice power without compensation is a matter
of the degree of necessity in the particular
case. If not prompted by a sufficient necessity,
a taking without compensation is not justified."
(13 Cal. Jur. III "Constitutional Law" Section 122).
Despite the current furor over the tragic occurrence in
Stockton, it seems likely that a court would view such a
prohibition as not of sufficient necessity and therefore
requiring compensation.
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February 17, 1989
Mayor Evlyn Wilcox
As noted above, the 5th Amendment to the United states
Constitution provides:
". . . nor shall private property be taken for
public use, without just compensation."
This provision is made applicable to the states through the
14th Amendment. Article I, Section 19 of the California
Constitution provides in pertinent part as follows:
"Private property may be taken or damaged for
public use only when just compensation, ascertained
by a jury unless waived, has first been paid to,
or into court for, the owner."
The courts have held that the compensation provisions noted
above as well as the overall due process provisions protect both
real and personal property (King v. U.S. (1970) 427 F.2d 767,
192 Ct. Cl. 548 - specifically 5th Amendment). Different kinds
of property will not be distinguished in applying these
provisions (North Georgia Finishing, Inc. v. Di-Chem, Inc.
(1975) 419 U.S. 601, 608, 95 S.ct. 719, 723, 42 L.Ed.2d 751-
specifically 14th Amendment). In fact, it has been concluded
that any significant taking of property by governmental action is
within the purview of these provisions (Fuentes v. Shevlin
(1972) 407 U.S. 67, 85-86, 92 S.Ct. 1983, 1987, 32 L.Ed.2d 556,
rehearing Den. 409 U.S. 902, 93 S.Ct. 177, 180, 34 L.Ed.2d 1650
- specifically 14th Amendment).
It has been suggested that in order to avoid the just
compensation requirement, an amortization period could be
included in such an ordinance. This issue was carefully
discussed by the State Supreme Court in the case of Metromedia,
Inc. v. City of San Diego (1980) 26 C.3d 848, reversed on other
grounds in Metromedia, Inc. v. City of San Diego (1981) 453 U.S.
490, 101 S.ct. 2882, 69 L.Ed.2d 800 relating to the attempted
elimination of roadside billboards:
"California decisions establish that a City
seeking to eliminate nonconforming uses may
pursue two constitutionally equivalent alter-
natives. It can eliminate the use immediately
by payment of just compensation, or it can
require removal of the use without compensation
following a reasonable amortization period.
(Citation omitted) The choice between alternatives
largely involves budgetary considerations." (at
pg. 881).
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February 17, 1989
Mayor Evlyn Wilcox
With reference to how long a period is "reasonable" the
court stated:
"The determination of the length of a reasonable
period of amortization is not merely a matter of
accounting. 'It is not required that the non-
conforming property concerned have no value at
the termination date.' (Citation omitted) The
determination instead involves a process of
weighing the public gain to be derived from a
speedy removal of the nonconforming use against
the private loss which removal of the use would
entail." (Citation omitted) (at pg. 882-883)
In the Metromedia case the court upheld amortization periods
for billboards which ranged from one to four years. The court
also noted that in other similar cases one year had been
determined to be too short, but that periods of two years and
eight months to five years had been upheld. (at pg. 883)
Although a specific amortization period would depend on all
the circumstances available, it would seem highly likely that a
period of fifteen days as proposed in the Los Angeles ordinance
would be too short.
Given the strong legal challenges which we anticipate would
follow the adoption of such an ordinance banning the possession
and sale of assault weapons, we advise that the City not enact
such an ordinance. The City may, as an alternative, provide its
recommendations to the state Legislature in support or in
opposition to, pending bills proposing to ban statewide the
possession and sale of assault weapons.
CONCLUSION
Although no court decision or state law has directly
answered this specific question, and the matter is not free from
doubt, we feel that it is very likely that the City does not have
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February 17, 1989
Mayor Evlyn Wilcox
legislative authority to prohibit the possession and sale of
assault weapons within City-limits because state laws have
preempted the field.
s7ilCerelY, .1. .
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J. ES F. PENMAN,
.. i ty Attorney
JFP/dys
cc: Members of the Common Council
Shauna Clark, City Clerk
James Robbins, Acting City Administrator
Donald Burnett, Chief of Police
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1M! CITY ATTORNEY
CITY OF S^N DIEGO
JOHN w: wm
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l~arr to, it.,
RDOIl'1' 'J!O TBI C:0IIIII:I'l"'l'IZ O. PU8I.IC SDVIC38 utl SAnft
DAC,'l'.bln" or All OJDIDIrCZ 01' '1'IIB CIn 01' &&II DDGO PROBurUJrG
'l'IIII SALE UD .oaRS.IOII or ASSAULT nuotIS
&t aD blfom.l ...tiIl, 011 lebnuy 8, 1919, Coucil
llepreMAtathe BUl ..nil ot Ccue11--L,er W.. pratt', office
p~ided the SU Dieve City A t't on., , . Office both witll a copy of
the Ci~ of LOI AD,.l.. odi!laDce buzlulJ tile po.....ioll &lid Hle
of ...tallt~tic "'Blt ,-,..!W, UI4 . ~ of a report: by the
City At~orney of the City of Loa Aaqel.. coetauiA9 bb 1.,&1
4iaeull1oa. a!Id ~d1.18. CClaACll "'Z'eMllt:athe Bard. a180
advhe4 thoe. Faa'llt tIIat the, ..uau.atic ...a.lt ".apoDI it.
".. docketed for tII. RIll.. CC*a!tt.1 ...tia.~ achll.'hlle4 for
.e4I:le~, .ebnuy 15, 1 tit.
'1'1:Ie City of Lo. &IllJel.. a.aault ".pau =4iDmc:. ".. enacted
.. lIZ'fut lev1al.tioll to addn.. the 1Ilc:i:eaauq nam,u of
lIDCOA'tZOll..s .bootiJlV' Ur901'1iD9 r-~ '"1ltmAUc ....dt "..pOll'
aDd to.. ..,e neb _apell- fz:_ the .tz:Mta UI4 ceigbbothood. of
La. beJele.. It pz:ohiblu the ..1. or po....aion of
...t.utc8atic: weapou. 'ftw port:.1OD of the OZl!1DlnC8 pro.cdbiAc1
.de bee_ effectiw 4 !iatelf apoa the .ff.:t..i_ dAte ot the
or\llJlmce. fte ter-.. of the lndiauc:. proec:r1hillq po.....tOIl
b.cr . opeutiw fifteu (15) 4aYI .fter the .ff.t:i'le eI.te of
the o~inuce. fte tea. .....uIt _apcm. UI4 ...u.ntallaUc.
ue 4efiDe4 in the ozdiDuee. '1'IIe C1t.y of ea.ptcll palled .
.1JI11ar 0~1JIanc:. wb1cb tiff... -il'ltf Ul ita broalSu aefiJlitioD
of .....1l1t: ...peu..
Ord~".""'. wtlich prohibit the pea..dCll II!.d ..1. of
...taatc:aatic: ....1l1t _&pOlls 12av. IlOt yet been t..ted u
C&1Uonl1. CGU'ta. b1:ic1pate4 ch&l1eftge. of nch o~uMc:e. are
apacte4 to f~. Oil the lec;al i..ft.e ot.Ute p:c.-ption by
leqi.1.ti~. ~11c.tiCll.
It 11 "eU ..tt:led that: . MUl1cipal ~an~ 1, b"lali4 if
it .u-.pt. to Uipo.. add1tioul requ~t:.a ill . tiele! that: i.
pr.-pt-.5 b7 tile .,-ru 1_1 U&7 loeal l..,idat:1oa 1n conflict
with the lJUeul 1_ 11 yoU. cOIItl1cu ai.t if the or4uuce
ltapl1c:.te. or COller_let. . ,'DUal 1_. Lulcut:er v.
MDAic1D&l Caazt, , CIl. 34105 (117%).
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REPORT TO PS'S
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February 10, 1989
In addre..ing preemption by implication .p.cifically, the
courts have held: "The ffir.tl te.t for determininq wh.th.r or
not the Leqislature has occupied a particular field by
implication. . . . [isJ (1) the ,ubj.ct matter h.. b.en so fully
and compleeely covered by qen.ral law a. to cl.arly indicaee thae
it has become exclu.ively a matter of .taee conC8rn . . . ."
Galvan v. Superior Court, 70 Cal. 2d 851/ 859 (1969).
The leqislature has address.d with detailed speCificity the
types ot tirearms which may not be po.....ed. Se. 'enal Cod.
section. 12020, 12220, 12230, 12251, 12403.7, 12420, 12403.7,
12420, 12091-12094, 12031: Fi.h and Game ..ctiona 2008, 2010.
Such exhau.tive leqi.lation .upports the po.ition that the field
of po...ssion of fir.arms has be.n fully, completely and
comprehensivelY covered by the qan.ral .tat. law a. to clearly
indicat. a l.qi.lativ. int.nt to occupy the field. Con.equ.ntly,
any local ordinance banninq the po.....ion of fir.arm. would have
difficulty .urvivinq the fir.t te.t of Galvan v. Superior Court,
70 Cal. 2d at 859-860.
In Do. v. City and County of San Franci.co, 136 Cal. App. 3d
509 (1982) the Court .truck down a local requlation which had the
effect ot prohibitinq the po..e..ion ofhandqun. under
circumstance. where pou.uion wa. permitted by r.qhtradon or
lic.n.inq und.r .tate law. The city and county arqued that .tate
law pr.empt.d only the ar.a of licen.inq and r.qi.tration, not
po..e..ion. The court rej.cted that arqument by .tatinq at 518:
"A re.triction on requirinq p.rmit. and licen... n.c.ssarily
implie. that po.....ion i. lawful without a permit or licen.e.
It .trains r.a.on to .uqq..t that the .tate leqislature would
prohibit licens.. and permits but allow a ban on po.....ion..
In SiP~.l v. Nelder, 24 cal. App. 3d 173 (1972), the court
found inva 1d . local ordinance banninq the sale of concealable
firearm. to p.r.on. not havinq a local permit. The court viewed
the ordinance as purportinq to requlate licensinq or
reqistratiCln of firearm. / .tatinq at 177: " [TJ he Leqhlature
re.olved any po..ibl. doubt as to it. intent to fully occupy the
field of firearm control, both in term. of reqistration and
licensinq. Indeed, the Itatute [Gov. Code, S 53071J could not
have been worded in a clearer and less ambiquous manner,"
In 65 Op. Att'y Gen. 457, 464/ (1982) the Attorney General
opined that cities are preempted from requlatinq the po.se.sion
of firearms.
No current provi.ion of state law .xpre..ly prohibits
localities from requlatinq the sale or possea.ion of
s.miaut.omatie allault w.apon.. At the pre.ent time, two (2)
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REPORT 1'0 PSiS
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February 10, 1989
bills relatinq to the sale and possellion of semiautomatic
al.ault we.pons are before the leqislature. They are Senate Bill
292 (~oberti) and Allembly 8ill 376 IKlehl).
Should The City ot San Oieqo adopt an ordinance limilar to
the City of Los Anqele.' .emiautomatie a..ault weapon. ordinane..
it would probably tace a Itronq challenqe to itl entorcement
ba.ed on the doctrine ot preemption by leqillative implication.
It is very likely that such a challenqe would be lu~e..tul.
It pendinq state leqislation on semiautomatic a..ault weapon.
is enacted, . subsequent leqa1 challenqe would probably focua on
the issue of express preemption. It il very likely that .uch a
challenqe would allo be succe..fu1.
ll'tod'
w. WITT [I):
Y Attorney
JMI:mk:520.1Ix043.1)
RC-89-4
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RESOLUTION IN OPPOSITION TO
SB 292 (Roberti) and AB 357 (Roos)
WHEREAS, the Second Amendment to the CONSTITUTION OF THE
UNITED STATES OF AMERICA provides that:
"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"; and
WHEREAS, Article 1, Section 1 of the CONSTITUTION OF THE
STATE OF CALIFORNIA provides that:
"all people are by nature
free and independent and have inalienable rights.
Among these
are enjoying and defending life and liberty and acquiring,
possessing and protecting property, .", and
WHEREAS, SB 292 (Roberti) and AB 357 (Roos), bills
presently pending in the State Senate and State Assembly,
respectively, are so worded as to potentially deny citizens of
this state and this city their rights under the United States
Constitution and the Constitution of the State of California by
denying to them the right to keep and bear arms and the right to
defend their life, liberty, and property, and
WHEREAS, stronger state laws are necessary to provide for
additional and lengthy terms in state prison for a person
convicted of using a firearm to commit a crime,
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
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Bernardino oppose SB 292 and AB 357 and
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OF SAN BERNARDINO AS FOLLOWS:
1.
That the Mayor and Common Council of the City of San
encourage our State
Senators and Assemblymen to oppose passage of these bills and to
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preserve the rights of the citizens of this state to protect
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2 their lives, their liberty and their property from those
criminals who should be imprisoned and thus removed from our
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20 City Clerk
society;
2. That the Mayor and Common Council of the City of San
Bernardino encourage our State Senators and Assemblymen to
introduce and support legislation providing for additional and
lengthy prison terms for those persons convicted of using a
firearm to commit a crime.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof,
held
on
the
day of
, 1989, by the following vote, to wit:
AYES:
Council Members
NAYS:
ABSENT:
21 The foregoing resolution is hereby approved this
22 day of
, 1989.
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24
EVLYN WILCOX, Mayor
City of San Bernardino
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Approved as to form and legal content:
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JAMES F. PENMAN
27 City Attorney
28 By: aLA- 1 j?~
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