HomeMy Public PortalAbout2020-03-10 Item 10CITY COUNCILAGENDA REPORTT^^^y?.CITY OF MILLBRAE621 Magnolia AvenueMillbrae, CA 94030SUBJECT: Consider Approval of an OrdinanceRegarding Safe Storage of Firearms inResidencesATTACHMENTS: Proposed OrdinanceReport No. ^ ^j?/For Agenda of: March 10, 2020Department: City ManagerOriginator: ^^ ^j?liamsApproved:I/Budget ActionYes:No: XFinance RevieREPORT TYPE: ACTION XEVFORMATIONALITEM TYPE: CONSENT PUBLIC HEARING EXISTING BUSINESS NEW BUSINESS^RECOMMENDATION:Waive first reading and introduce an ordinance adding a new Chapter 5.130 to the City ofMillbraeMunicipal Code entitled "Safe Storage of Firearms in Residences."55BACKGROUND:As part of the 2019-2020 adopted City Council goals, staff is bringing forth a proposed ordinance,modeled after San Mateo County's ordinance, requiring safe storage of firearms in residences. Inaddition to the City Council-directed preparation of the subject ordinance, the City has been approachedby several Millbrae residents and their affiliated group "Moms Demand Action," requesting such anordinance be adopted in the City.Existing Firearm Storage LawsSan Mateo County approved an ordinance codified as Chapter 3.54 of the San Mateo County codeimposing additional requirements for safe storage of firearms in March of 2019. This ordinanceprohibits keeping a firearm in any residence unless it is carried on the person, stored in a lockedcontainer, or disabled with a trigger lock. A violation was classified as a misdemeanor and it carries apenalty of up to 6-months in county jail and a $1,000 fine. This ordinance was expressly limited tounincorporated areas of the county and does not apply with in the city limits ofJVIillbrae. The proposedCity of Millbrae ordinance (Attachment ) largely mirrors the county ordinance except the violationwould be classified as a civil penalty with fines of $250, $500 and $1,000 rather than as a misdemeanor.As of January 1, 2020, modifications to existing State law went into effect and expanded therequirements for the safe storage of firearms in residences. See Penal Code §§ 25100. Thesemodifications were enacted in order to limit access by minors or individuals prohibited from possessingfirearms. Violations of these sections carry a range of punishments and penalties. If a child orPage 1 of 516366407.1
unauthorized person actually accesses an unsecured firearm and causes some sort of harm, penalties canrange from a misdemeanor to a felony conviction with state prison time. In the event a firearm isimproperly stored but has not been accessed, violations are classified as a misdemeanor. Individualsconvicted of improper storage of a firearm are also prohibited from owning a firearm for 10 years fromthe date of conviction. This Penal Code section is enforceable throughout the state.Firearm InjuriesFirearm injuries have a significant public health impact as it is proven that a loaded or unlocked gun inthe home can increase the risk of gun-related injury and death. According to a 2008 report published inthe New England Journal of IS^edicine, living in a home where guns are kept increased an individual'srisk of death by homicide by between 40 percent and 170 percent. Similarly, a 2004 national studydetermined that the presence of guns in the home increased an individual's risk of death by homicide by90 percent. According to a 2015 study, researchers conservatively estimate that gun violence costs theAmerican economy at least $229 billion every year, including $8.6 billion in direct expenses such asthose for emergency and medical care.In California, the direct costs of hospital use for firearm assault injuries alone was estimated at $87.4million in 2010. Sixty-five percent of these costs were borne by taxpayers. Children are particularly atrisk of injury and death from firearms when firearms are not safely secured in their own homes or inhomes they visit.According to national data, children and young adults (24 years of age and under) constitute 38 percentof all firearm deaths and non-fatal injuries. More than 75 percent of guns used in suicide attempts andunintentional injuries of children and young adults (0-19 years of age) were stored in the residence ofthe victim, a relative, or a friend. Eighty-nine percent of accidental shooting deaths among childrenoccur in the home, and most of these deaths occur when children are playing with an unsecured loadedgun in their parents' or caregivers absence.In San Mateo County, there have been 301 gun-related deaths over the past 10 years. According to datacollected in 2018 by the group Citizens for a San Mateo County Gun Buy Back, participants at twoseparate gun buy back events found a majority of respondents reported "hiding [the gun] in a discretelocation" and/or "keeping it unloaded" as a safety measure, even though these methods are not generallyconsidered safe storage. A significant number of respondents (27 percent in May 2018 and 60 percent inDecember 2018) reported that they surrendered the firearms for "safety reasons," and nearly half ofrespondents indicated that they did not know how to properly store an inherited fireann.Requiring firearms to be stored in the home in a safe manner, through either trigger locks or lockingstorage boxes, can reduce the risk of firearm injury and death and prevent access and use by otherswithout the owner's knowledge or permission. These measures can decrease the risk that the gun will beused to commit suicide, homicide, or inflict injury, whether intentionally or unintentionally. Safe storagemeasures have a demonstrated protective effect in homes with children and teenagers where guns arestored.ANALYSIS:Proposed OrdinanceThe proposed ordinance would prohibit any person from keeping a firearm in a residence unless thefirearm is 1) stored in a locked container; 2) disabled with a trigger lock; 3) on the body of a person whois legally allowed to possess the firearm; or 4) within close enough proximity and control of a personPage 2 of 516366407.1
who is legally allowed to possess the firearm that the person can readily retrieve and use the firearm as ifcarried on their person.To encourage reporting of lost or stolen firearms, a person who reports the loss or theft of a firearm theyown or possess to a local law enforcement agency within five days from the time they knew orreasonably should have known the firearm had been lost or stolen shall not be prosecuted for violationof the ordinance. A violation of the ordinance would be subject to enforcement through criminalprosecution by the City Attorney's Office and/or civil penalties.Relation to Existing LawsIf the proposed ordinance is enacted in Millbrae, it would cover similar ground as state law but would bemore easily prosecuted than the state statute due to its broader scope and fewer exceptions. The Cityordinance has four narrow exception and no defenses, while the state law has several exceptions anddefenses. However, the state law also carries more significant penalties, up to and including a felonyconviction, based on how an unlawfully stored firearm is used after access is gained. The City ordinancemakes no such differentiation. The state law also prohibits possession of a firearm for ten years after aconviction, while the City ordinance does not.The provisions under the San IVIateo County ordinance, the proposed City ordinance, and State law aresummarized in the chart below.Ordinance/StatuteElements to Prove aViolationNotable ExceptionsPenaltiesSan Mateo CountyOrdinance Chapter 3.54A firearm waspresent in aresidence• If the firearm isphysically carriedon the personIt was stored in alocked container orwith a trigger lockMisdemeanor: upto 6 months incounty jail and upto $1000 fineCityofMillbraeProposed OrdinanceA firearm waspresent in aresidence• If the firearm isphysically carriedon the person• The firearm iswithin closeenough proximityand control of aperson who islegally allowed topossess the firearmthat the person canreadily retrieve anduse the firearm asif carried on theirpersonThe firearm wasstored in a lockedcontainer or with a• AdministrativeCitation: escalatingfines starting at$250 for the firstviolation, $500 forthe secondviolation, and$1,000 forsubsequentviolations withinthe same calendaryearPage 3 of 516366407.1
trigger lockState Penal CodeSection 25100^seq.This offense isdivided into threedegrees, each withincreasing penaltiesA firearm waskept on premisesunder a person'scontrol• The person knewor reasonablycould have knownit was likely achild or prohibitedperson couldaccess it, unlessreasonable stepsare taken toprevent accessAdditional Elements forFirst DegreeAccess resulted indeath or GreatBodily Injury(GBI)Additional Elements forSecond Degree• Access resulted ininjury other thanGBlorThe firearm iscarried to a publicplaceAccess is obtainedby illegal meansFirearm waslocked in acontainer orotherwise secureFirearm wascarried on theperson or in closeproximity• Firearm was usedin lawful self-defense•Person had areasonableexpectation that nochild would be onthe premisesFirst Degree - Felony,up to 3 years in stateprison and $10,000 fine.Second Degree -Misdemeanor, up to ayear in county jail,$1,000 fine.Third Degree -Misdemeanor, nospecified jail time, nospecified fine.In all cases a convictionof state law carries aten-year firearmpossession prohibition.Typically, when state law and local ordinances overlap, law enforcement will first seek prosecutionunder the state law and this would likely be the case here. As a practical matter, it is unlikely lawenforcement would become aware of a violation of either the state law or local ordinance unless therewas some subsequent improper use of an improperly stored firearm and the state law carries greaterpenalties when this occurs.In short, the state law is more narrowly focused on preventing the harm that can result from improperstorage, i.e., a child or prohibited person accesses a firearm and then does something with it, and statelaw carries more serious punishment when this occurs, whereas the proposed City ordinance (like theCounty ordinance) focuses solely on the manner in which a firearm is stored, irrespective of any otherfactors. The City ordinance would likely be used only if the elements of the state law could not beproven or the District Attorney declined to prosecute for some other reason. In the event the DistrictAttorney declined to prosecute a case under state law, the City could fall back on its ordinance forprosecution through the City Attorney's office.Legal FrameworkPage 4 of 516366407.1
Firearm safe storage ordinances have been subject to challenge in recent years under the SecondAmendment to the U.S. Constitution. In evaluating a safe storage ordinance under the SecondAmendment, courts examine whether (1) the government's stated objective is significant, substantial, orimportant; and (2) whether there is a reasonable fit between the challenged regulation and the assertedobjective.The proposed ordinance is modeled after a San Francisco ordinance upheld by the U.S. Court of Appealsfor the Ninth Circuit. (See Jackson v. City & Cty. of San Francisco, 746 F.3d 953 (9th Cir. 2014).) Inthat case, the court found that San Francisco's objective of reducing the number of gun related injuriesand deaths from having an unlocked firearm in homes was a significant interest, and that the measuresSan Francisco imposed - the same measures required in the proposed ordinance - were only minimallyburdensome on gun owners' ability to access their firearms for self-defense purposes. Accordingly, thecourt found the San Francisco ordinance to be consistent with the Second Amendment.The City of Sunnyvale has also successfully defended its ordinance, which includes similar safe storageprovisions, from several legal challenges.If adopted, the ordinance will be brought back to the City Council on March 24, 2020 for a secondreading and take effect 45 days later on May 8, 2020.FISCAL IMPACT:There is no direct fiscal impact to adopting the proposed ordinance.COUNCIL ACTION:Introduce and waive the reading of the proposed ordinance beyond the title and adopt the first reading.Page 5 of 516366407.1
ORDINANCE NO. 2020-
CITY OF MILLBRAE, COUNTY OF SAN MATEO
STATE OF CALIFORNIA
AN ORDINANCE ADDING CHAPTER 5.130 "SAFE FIREARMS STORAGE," TO TITLE 5
OF THE MILLBRAE MUNICIPAL CODE TO REQUIRE SAFE STORAGE OF FIREARMS
WHEREAS, citizens and numerous organizations have expressed concerns and made complaints
associated with the harm caused by unsafe firearms storage; and
WHEREAS, having a loaded or unlocked gun in the home is associated with an increased risk of gun
related injury and death; and
WHEREAS, according to a 2008 report published in the New England Journal of Medicine, living in a
home where guns are kept increased an individual's risk of death by homicide by between 40% and 170%; and
WHEREAS, a 2004 national study determined that the presence of guns in the home increased an
individual's risk of death by homicide by 90%; and
WHEREAS, firearm injuries have a significant public health impact; and
WHEREAS, according to a 2015 study, researchers conservatively estimate that gun violence costs the
American economy at least $229 billion every year, including $8.6 billion in direct expenses such as those for
emergency and medical care; and
WHEREAS, in California, the direct costs of hospital use for firearm assault injuries alone was
estimated at $87.4 million in 2010 with 65% of these costs being borne by taxpayers; and
WHEREAS, children are particularly at risk of injury and death from firearms when firearms are not
safely secured in their own homes or in homes they visit; and
WHEREAS, according to national data, children and young adults (24 years of age and under) constitute
38% of all firearm deaths and non-fatal injuries; and
WHEREAS, more than 75% of guns used in suicide attempts and unintentional injuries of children and
young adults (0-19 year of age) were stored in the residence of the victim, a relative, or a friend; and
WHEREAS, 89% of accidental shooting deaths among children occur in the home, and most of these
deaths occur when children are playing with an unsecured loaded gun in their parents' absence; and
WHEREAS, in California, between 2004 and 2014, 114 children and teenagers were unintentionally
killed with firearms, and approximately 500 children and teenagers committed suicide with firearms, according
to data from the Center for Disease Control and Prevention; and
WHEREAS, applying trigger locks or using lock boxes when storing firearms in the home reduces the
1
risk of firearm injury and death; andWHEREAS, keeping a firearm locked when it is not being carried ensures that it cannot be accessed andused by others without the owner's knowledge or permission.WHEREAS, this simple measiire significantly decreases the risk that the gun will be used to commitsuicide, homicide, or inflict injury, whether intentionally or unintentionally; andWHEREAS, according to a report by the Bureau of Alcohol, Tobacco and Firearms, private individualsin California reported nearly 10,000 stolen guns in 2012; andWHEREAS, unsecured guns are susceptible to theft and pose a significant public health and safetyhazard. A 2017 study in the journal Injury Epidemiology found that nationally-representative survey datasuggests that approximately 380,000 guns are stolen from individual gun owners each year and that gun ownerswho do not safely store their firearms are significantly more likely to have their guns stolen. Reporting from TheTrace in 2017 also disclosed that between 2006 and 2016, the number of guns reported stolen from individualsincreased by approximately 60%.WHEREAS, safe storage measures have a demonstrated protective effect in homes with children andteenagers where guns are stored; andNOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MILLBRAE, CALIFORNIA, DOESORDAIN as follows:SECTION 1. FINDINGS. The City Council of the City ofMillbrae finds that the recitals stated hereinare true and correct.SECTION 2. ADDITION OF THE SAFE FIREARMS STORAGE ORDINANCE. Title 5, Chapter5.130, "Safe Firearms Storage," of the Millbrae Municipal Code is added and stated in its entirety to read asset forth below:5.130.010 Purpose and Intent.5.130.020 Definitions.5.130.030 Safe storage of firearms in a residence required.5.130.040 Penalty.5.130.010 Purpose and Intent.The City Council finds that regulations on safe storage of firearms are necessary to protect the public health,safety, and welfare of the residents of the City ofMillbrae by requiring safer storage of firearms, and to strike areasonable balance between the need to reduce gun violence and injuries and the need to protect one's self inself-defense.5.130.020 Definitions.The following words and phrases, whenever used in this chapter, shall be constmed as defined in this section.A. "firearm" means a firearm as defined in California Penal Code, Section 16520, as may beamended from time to time.B. "locked container" means a locked container, as defined in California Penal Code, Section16850, as may be amended from time to time, listed on the California Department of Justice Bureau2
of firearms roster of approved firearm safety devices. For purposes of this chapter, a lockedcontainer does not include a bag or other container made of fabric or other penetrable material, suchas a regular purse, backpack, or gym bag.C. "residence" means any structure or vehicle intended or used for human habitation, including butnot limited to single family dwellings, boardinghouses, duplexes, dwellings, flats, garages,basements, attics, guesthouses, multifamily dwellings, short-term residential rentals, triplexes,condominiums, rooms, accessory dwelling units, commercial lodgings, single room occupancyunits, time shares, recreational vehicles, and other vehicles where human habitation occurs.D. "trigger lock" means a trigger lock that is listed on the California Department of Justice's roster of approvedfirearms safety devices and that is identified as appropriate for that firearm by reference to either themanufacturer and model of the firearm or to the physical characteristics of the firearm that match those listed onthe roster for use with the device under Penal Code section 23635, as may be amended from time to time.5.130.030 Safe Storage of firearms in a residence required.A. No person shall keep a firearm in any residence, except in the following circumstances:1. The firearm is stored in a locked container;2. The firearm is disabled with a trigger lock;3. The firearm is carried on the body of a person who is legally allowed to possess the firearm; or4. The firearm is within close enough proximity and control of a person who is legally allowed to possessthe firearm that the person can readily retrieve and use the firearm as if carried on their person.B. To encourage reporting of lost or stolen firearms, a person who complies with California Penal Code section25250 by reporting the loss or theft of a firearm they own or possess to a local law enforcement agency withinfive days from the time they knew or reasonably should have known the firearm had been lost or stolen shall notbe prosecuted for violation of subsection (a).5.130.040 Penalty.A violation of this section shall be subject to enforcement through the use of an administrative citation pursuantto City ofMillbrae Municipal Code Chapter 1.05.030 except that fines will be issued pursuant to the followingschedule:ViolationFine Not Exceeding:First violation$250Second violation within a year of the first violation$500Third violation within a year of the first violation$1,000Each violation shall be deemed a distinct and separate offense.Section 3. SEVERABILITY. In the event any section, clause or provision of this3
Ordinance shall be determined invalid or unconstitutional, such section, clause or provisionshall be deemed severable and all other sections or portions hereof shall remain in full forceand effect. It is the intent of the City Council that it would have adopted all other portions ofthis Ordinance irrespective of any such portion declared to be invalid or unconstitutionalSection 4. PUBLICATION. At least five (5) days prior it its adoption and within fifteen(15) days after its adoption, the City Clerk shall cause a summary of the Ordinance to posted in theCity Clerk's office; posted on the City's website; and be published once in a newspaper of generalcirculation published in the County of San Mateo and circulated in the City ofMillbrae.Section 5. LEGISLATIVE HISTORY AND EFFECTIVE DATE. This Ordinance isintroduced on March 10, 2020 with an adoption date of March _, 2020 and shall be effectiveApril _, 2020.-f4
The foregoing ordinance was adopted by the City Council of the City ofMillbrae, Countyof San Mateo, State of California by the following vote:AYES:NOES:ABSENT:MayorATTEST:City ClerkI;5