HomeMy WebLinkAboutCity of Pasedena Res - Violence Eradication LAW OFFICES OF
BEST, BEST & KRIEI
March 11, 1994
MEMORANDUM
TO: Bruce Altman, City Manager
City of Palm Desert
FROM: Dave Erwin, City Attorney
RE: Proposed Pasadena Resolution re Violence Eradication
Bruce:
Attached is a memo which has been prepared by one of our associates
in the Riverside Office regarding the above matter. This is for
your information, consideration and review.
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Original on File wit City Clerk' s Office
DJE48753
MEMORANDUM
TO: Dave Erwin
FROM: Elise Traynum
DATE: March 10, 1994
RE: PROPOSED RESOLUTION SUBMITTED BY THE CITY OF PASADENA -
ERADICATING RAMPANT VIOLENCE
INTRODUCTION AND SUMMARY OF FINDINGS
Pursuant to your request, the following is a brief
discussion regarding the above-referenced resolution. Given the
universal problems of the perpetration of violent street crimes
suffered in many cities throughout the United States, Pasadena' s
resolution is commendable. Palm Desert by use of its police power
may desire to enact such legislation as requested by Pasadena if
its problems are similar to Pasadena ' s. Certainly, it may
establish a committee or coalition to review crime within its
boundaries.
However, as will be summarized below, Palm Desert should
make its own findings based on the status of crime within its
jurisdiction. In addition, prior to adopting the Pasadena
resolution, or one similar, the Council must decide whether it
wants to take such an aggressive position on "gun control, " or in
fact, whether it wants to take a position on "gun control" at all.
This memorandum discusses cities police powers,
preemption, California and federal regulation of firearms and
EKT207028
Senate Bill 1607, "The Violent Crime Control and Law Enforcement
Act of 1993 . "
POWERS OF MUNICIPALITIES
The California Constitution empowers cities to make and
enforce within their jurisdictions all local, police, sanitary and
other ordinances and regulations not in conflict with the general
state law. (California Constitution Article XI § 7. ) The
governmental powers of a city embrace such matters as the making
and enforcing of police regulations, prevention of crime,
preservation of public health, prevention of fires, caring for the
poor, and education of the young. (Chafor v. Long Beach (1971) 174
C. 478 . )
It has been said that the police power granted to cities
is of the same general character as that familiarly exercised by
the state legislature. (Re-application of Iverson (1926) 199 C.
582 . ) Ordinances enacted by a city pursuant to its police power
will ordinarily be upheld by the courts if they reasonably relate
to promoting the public health, safety, comfort and welfare, and if
the means adopted to accomplish that promotion are reasonably
appropriate to that purpose. Sunset Amusement Co. v. Board of
Police Commis. (1970) 7 Ca1. 3d 64 . Cities have the authority to
enact police regulations if there is no general law on a particular
matter. (Ex parte Daniels (1912) 183 C. 636 . )
Cities enact its laws by ordinance and resolution. An
ordinance in its primary and usual sense means a local law. It
prescribes a rule of conduct prospective in operation, applicable
EKT207028 -2-
generally to persons and things subject to the jurisdiction of the
city. Oakland v. Oakland Water Front Co. (1897) 118 C. 160. It is
adopted with the legal formality of a statute. (McPherson v.
Richards (1933) 134 CA 462 . ) On the other had, a resolution is
something less formal. It is the expression of the opinion of the
legislative body concerning some administrative matter.
Ordinarily, it is of temporary character. By adopting the Pasadena
resolution, Palm Desert is expressing its opinion and policy
regarding violent street crime.
PREEMPTION
Article XI, Section 7 of the California Constitution-1/
grants cities the authority to legislate provided that such laws
and regulations do not conflict with general statewide laws. To
determine whether there is a conflict with general statewide laws,
one must ask whether the state has "occupied" a field of law. If
yes, local regulation is precluded. Cities may enact regulations
that supplement general state law only if the state has not fully
occupied the field. Thus, there must be only partial state
occupation or none at all. (James v. Myers (1945) 68 Cal.App. 2d
443 . See also 30 Ops. Cal. Atty. Gen. 69 (1957) , 24 Ops. Cal.
Atty. Gen. 107 (1954) . ) A local law is invalid to the extent that
it is in conflict with or to the extent that it duplicates state
law. (Chavez v. Sergeant (1959) 52 Cal. 2d 162 , 176. )
1/ Article XI Section 7 states in its entirety as follows: "A
county or city may make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not in
conflict with general laws. "
EKT207028 -3-
There are three tests to determine whether a subject has
been preempted by the Legislature: (1) Whether the subject matter
has been so fully and completely covered by general law as to
indicate that it has become exclusively a matter of state concern;
(2) whether the subject 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 addition local
action; or (3) whether 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.
(Yuen v. Municipal Court (1975) 52 Cal.App. 3d 351. )
By applying the Yuen elements, we can determine whether
the proposed resolution is preempted by state (and federal) law.
Theo operative statute
s for comparison are Penal
p Code Sections 12001
et seq. and the Second Amendment of the United States Constitution.
As discussed below, such laws preempt any local regulation of guns.
GUN CONTROL
The possession, use or transfer of firearms is
extensively regulated by statute at California Penal Code Section
12001 et seq. The courts have held that the enactment of such
statutes is a proper exercise of the state' s police power.
(Galavan v. Superior Court of San Francisco (1969) 70 C. 2d 851. )
Further, the Second Amendment of the federal Constitution
provides that "the right of the people to keep and bear arms shall
EKT207028 -4-
not be infringed, "2/ applies only to the exercise of power by the
federal government, and, since the state constitution contains no
provision on the subject, the state legislature is free to deal
with this issue. (Re-application of Ramirez (1924) 193 C. 633 . )
In other words, the state legislature, in the absence of federal
provisions is free to regulate the manner of bearing arms, although
it lacks the power entirely to destroy the right to bear arms
guaranteed to all people. (People v. Seale (1969) 274 CA 2d 107 . )
Government Code Section 53071 expressly preempts local
regulations of guns:
"The legislature has provided that it is its
intention to occupy the whole field of
regulation of the registration or licensing of
firearms, as encompassed in the Penal Code,
and that such provisions shall be exclusive of
all local regulations, relating to such
registration or licensing, by any political
subdivision. " (Government Code Section
53071. )
California courts have interpreted Government Code
Section 53071 to invalidate city ordinances regulating ownership
and possession of firearms. Sippel v. Nelder (1972) 24 C.A. 3d 173 ;
Olsen v. McGillicuddy (1971) 15 C.A. 3d 897 . The Attorney General
of our state has, also, opined that a California city does not have
the legislative authority to prohibit the possession of handguns
within the city. 65 Ops. Atty. Gen. 457 (1992) .
2/ U. S. Constitution Second Amendment.
EKT207028 -5-
The Pasadena resolution seeks the repeal of Sections
53071. The intent, to allow each city (or, maybe, the federal
government) to regulate guns within its boundaries.
Accordingly, the existing right to bear arms provided in
the United States Constitution and the extensive state regulation
regarding the possession carrying and use of firearms constitutes
the ball court upon which the proposed Pasadena resolution must
play. In my opinion this is an appropriate matter for the state
legislature to review.
THE PASADENA RESOLUTION
Paragraph 1 of the resolution requests that the Attorney
General opine on the sale of ammunition; paragraph 2 requests that
the City Council support SB 1607 , proposed legislation restricting
the manufacture, transfer and possession of certain semi-automatic
assault weapons and large capacity ammunition feeding devices; and,
paragraph 3 requires that the City (in association with the
Coalition for Nonviolent City, a group yet to form) petition state
and federal legislative bodies to enact more stringent gun control
measures including the repeal of the preemption statute in the
Government Code. (i. e. , Section 15071. ) As you can see the brunt
of the Pasadena resolution is to control guns within cities and the
sale of ammunition to operate guns.
The question is, does the City Council want to take such
an aggressive position on gun control.
Senate Bill 1607 authored by Senator Biden is entitled
the "Violent Crime Control and Law Enforcement Act of 1993 . " The
EKT207028 -6-
•
bill is 468 pages long. It deals with the death penalty, habeas
corpus reform, enhanced penalties for crimes perpetrated with guns,
obstruction of justice, youth violence, including increased
penalties for drug trafficking, and criminal street gangs,
terrorism, sexual violence and child abuse, victims ' rights,
prisons, rural crime, drug control in general, drunk driving, motor
vehicle theft prevention, protection for elderly, consumer
protection, computer crime, parental kidnapping and more. Senator
Fienstein' s amendment to SB 1607, "Public Safety and Recreational
Firearms Use Protection Act" restricts the manufacture, transfer
and possession of certain semiautomatic assault weapons and large
capacity ammunition feeding devices.
Currently, California law prohibits the manufacture,
sale, transfer, possession, distribution, transportation and
importation into the state of certain semiautomatic assault weapons
without a permit under the Roberti-Ross Assault Weapons Control Act
of 1989 . Penal Code Section 12276 et seq. The Act does not place
such restrictions on the use of such weapons which are primarily
designed and intended for hunting, target practice or other
legitimate sports or recreational activities. Penal Code Section
12275 . 5 Senator Fienstein's amendment mirrors California law.
CONCLUSION
The Pasadena resolution presents an opportunity for
cities to take an aggressive stance in the eradication of violent
street crime. A committee or coalition to study such problems and
to create solutions is a positive approach. Moreover, the concerns
EKT207028 -7-
I have with adopting the resolution as presented is that it does
not make findings stating the status of crime in Palm Desert, and,
more importantly, it is establishing a city policy to aggressively
seek "gun control" legislation on a federal and statewide basis, an
issue that, usually, results in strenuous debate.
ELISE K. TRAYNUM
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INTEROFFICE MEMORANDUM
City of Palm Desert
TO: DAVID J. ERWIN, CITY ATTORNEY
STEVE BLOOMQUIST, PALM DESERT POLICE CHIEF
FROM: BRUCE A. ALTMAN, CITY MANAGER
DATE: FEBRUARY 25, 1994
SUBJECT: CITY OF PASADENA RESOLUTION #7045 - ERADICATING
RAMPANT VIOLENCE
Attached is a letter from the City of Pasadena seeking this city's support of its
Resolution #7045 dealing with the eradication of rampant violence. At its meeting of
February 10, 1994, the Palm Desert City Council referred this matter to staff for a
report and recommendation.
Steve, would you review and comment on this request from the law enforcement
standpoint. Dave, would you do the same from a legal standpoint. I would like to
place this back on the City Council Agenda for March 10, 1994.
Thank you for your assistance in this matter.
BRUCE A. ALTMAN, CITY MANAGER
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ONE HUNDRED NORTH GARFIELD AVENUE
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PASADENA, CALIFORNIA 91109
OFFICE OF THE MAYOR
January 26 , 1994 FAXX(818)(818)4 1 1
405-3921
City Council of the
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
RE . Pasadena Resolution #7045 - EradicaLin Rampant Violence
Dear City Councilmembers :
With each passing day, news magazines, newspapers, and other
forms of mass media document the infestation of violence plaguing
California cities, and cities across America. That kind of news
is deeply troubling. But on a positive note, and in response to
that violence, we are witnessing a rebirth of community activism.
This time that activism is centered on eradicating violence.
Here in the City of Pasadena, the residents are energized and
determined to implement concrete actions to address this problem.
As the Mayor of Pasadena, it has been personally heartening to
see the community coalition which formed after the recent murder
of three youngsters on Halloween night . The Pasadena Coalition
for a Nonviolent City is an action-oriented grassroots movement .
Its aim is "to reduce violence and its impact on Pasadena
citizens and to create a secure, nurturing community for every
resident, especially children and youth. " The task of the
Coalition is to intervene directly in the immediate crisis of
escalating violence, and also to address the structural and
systemic causes of violence .
On December 14, 1993 , one of the steps our City Council took was
to adopt a Coalition-sponsored Resolution which focused on some
of the contributors to the immediate crisis of violence,
including the proliferation of awesome firepower on our streets .
Resolution #7045 was adopted at a public meeting with lively
public participation. Many of the points enumerated in the
Resolution relate to legislative advocacy and community
mobilization.
Unless we are content with the bloody status quo, local
communities must become engaged in this dialogue about the
eradication of violence in our midst .
City Councilmembers Page 2 January 26, 1994
This is a tough subject to talk about because crime and violence
are complex issues . But we need to ask ourselves whether the "pat
answers" really make sense anymore and whether we need to rethink
all our assumptions about this issue. We also need to listen to
one another and attack this issue from many different
perspectives .
To that end, I would encourage you to place this matter on your
agenda and adopt similar Resolutions and action plans . Staff in
the City Manager' s Office and the City Attorney' s Office are
available to assist you with any question you may have concerning
this Resolution. Please call those offices at (818) 405-4222 and
405-4141 respectively.
As local leaders, we have a responsibility to initiate this
dialogue on the eradication of violence. If we do not take
action now, there is a very good chance that in a future we will
live to see, our beloved cities will be unrecognizable.
Thank you for your consideration of this Resolution.
S ir�re ,
/RICK COLE
Mayor
Attachment
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Original cra File `l1 Cle1A' s
CWILLIA 11959.\1/14/94
RESOLUTION NO. 7045
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PASADENA RELATED TO COMBATTING RAMPANT VIOLENCE
IN THE COMMUNITY THROUGH JOINT EFFORTS AT THE
LOCAL, STATE AND NATIONAL LEVELS
WHEREAS, the City of Pasadena is committed to working
towards improving community safety as a part of the Healthy
Cities Project; and,
WHEREAS, gun violence in Pasadena is a health, safety
and economic issue costing lives and destroying the quality of
life for residents ; and,
WHEREAS , a recent escalation in acts of violence in the
City, including the ambush murder of three teenagers on Halloween
night, has highlighted the urgency of undertaking a multi-prong
approach to combatting a situation which is poisoning the life of
the community; and,
WHEREAS , murderous violence is increasingly
traumatizing the entire City; and
WHEREAS, Pasadena Police Department records show that
during calendar year 1993 , 27 murders occurred in the City of
Pasadena, 24 of which were gun-related; and,
WHEREAS , Pasadena Police Department records demonstrate
that 34 incidents of drive-by shootings occurred during the same
time period; and,
WHEREAS , residents in all districts of the City are
impacted by the easy availability of guns and ammunition, and the
fear of becoming a random victim of violence at some time in the
future; and,
WHEREAS, the City believes an effective way to combat
this problem is to mount a holistic approach to the eradication
of violence within the community and mobilize residents to deal
with this cancer in our midst; and,
WHEREAS, the City desires to enact or support
legislative efforts which offer hope of controlling the
availability of guns and restore the average resident' s sense of
security;
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Pasadena that the Council is committed to taking
concrete actions to respond to the escalating threats to the
community' s physical safety; will seek singly and jointly with
other municipalities , or as a part of regional efforts, to enact
legislative initiatives; and will support community action to
abate the scourge of violence in the city. To these ends, the
Council authorizes city staff to take the following actions :
1 . Request an opinion from the California Attorney
General ' s Office as to whether a restriction on the sale of
ammunition is preempted by statutory law;
2 . Communicate to Congressional representatives the
Council ' s opposition to the production and possession of assault
weapons and support of Senator Dianne Feinstein' s amendment,
SB 1607, "Public Safety and Recreational Firearms Use Protection
Act, " intended to restrict the manufacture, transfer and
possession of certain semiautomatic assault weapons and large
capacity ammunition feeding devices;
2
3 . Undertake efforts, in association with the
Coalition for a Nonviolent City, to petition state and federal
legislative bodies to enact more stringent gun control measures ,
including the repeal of the preemption statute in the Government
Code;
4 . Work with the League of California Cities and
county regional associations in developing a lobbying strategy on
this issue to garner the support of other cities and county
governmental bodies to advocate for legislative change at the
state level .
5 . Circulate this Resolution to other California
cities urging them to adopt similar measures .
6 . Take steps to work with the Coalition for a Non-
violent City so that the City is joined in partnership with the
Coalition in support of the holistic, preventive, anti-violence
measures identified by the Coalition' s subcommittee working on
alternatives and support for youth; and further, that the city
commit a budget line of $250 , 000 as a resource pool to be drawn
upon for initiatives that support youth.
3
r
Adopted at the regular meeting of the City Council on the
14th day of December, 1993 , by the following vote:
Action Item #1
AYES : Councilmembers Crowfoot, Holden, Paparian,
Thomson, Vice Mayor Nack, Mayor Cole
NOES : Councilmember Richard
ABSENT: None
Action Items #2 through 5
AYES : Councilmembers Crowfoot, Holden, Vice Mayor
Nack, Mayor Cole
NOES : Councilmembers Paparian, Richard, Thomson
ABSENT: None
Action Item #6
AYES : Councilmembers Crowfoot, Holden, Paparian,
Thomson, Richard, Vice Mayor Nack, Mayor Cole
NOES : None
ABSENT: None
Ma is S . Stewart, C ' y !•••- =-----.•
• 4
APPROVED AS TO FORM: ; *Cg-T-Ar (1. .
Carolyn illiams :A. • . JJ•,•�.
Deputy City Attorney
4