Doing something that is not helpful is counterproductive. Legal owners of firearms will be unduly punished because, by definition, they are the only people that will be impacted by the majority of these proposals. Taxing and isolating a group of people purely based on their decision to embrace an enumerated constitutional right is discriminatory and un-American.

Our elected officials need to address the criminals who commit violence in our city and the solution to this problem should not be to punish the innocent due to false fears that guns cause crimes. That is a false equivalent.

That kind of profiling is the very behavior we are trying to remove from our society. Lastly, most of the proposals particularly target people of color and the economically disadvantaged who statistically are also the most susceptible to violence in San Jose.

SAN JOSE GUN CONTROL PROPOSALS

1.1 GUN OWNERS MUST PAY AN ANNUAL FEE (TAX)

Unconstitutional
Waiver for low income families unattainable due to poor city outreach policies
Does nothing to stop criminal violence

The Supreme Court has ruled that the government cannot require an individual to pay a fee in exchange for their exercise of a constitutional right on multiple occasions, including Murdock v. Pennsylvania and the abolition of the racist poll tax. Unlike a privilege such as driving a car, owning a gun is a natural right which cannot be legally taken away, except through a court of law.

A privilege is something which may be given and taken away at any time and is only available to certain individuals. Rights are not granted or taken by anyone, they are inherent and they belong to every one of us equally by virtue of the fact that we are all humans. Our Constitution does not grant us our rights, it protects them because we were born with them.

Waivers for this fee exist for our low-income families who make $31,375 or less for a family of four, the city fails in outreach to the community so many people will be unaware of the waiver and the law, inadvertently becoming criminals due to the failures of our city government.

This San Jose proposal will only hurts those who follow the law. Criminals will never pay this fee because by definition they break the law.

1.2 GUN OWNERS MUST PURCHASE GUN INSURANCE FOR CRIMES THEY HAVE NOT AND PROBABLY NEVER WILL COMMIT

Unconstitutional
Coverage is unattainable and not provided by insurance carriers
Waiver for low income families unattainable
May turn law abiding residents into criminals
Does nothing to stop criminal violence

Similar to Proposal 1.1, this places the barrier of an insurance mandate (financial fee) as a restriction to the free exercise of a right and is therefore unconstitutional. Additionally the insurance requirement the city has been discussing is unobtainable. Imagine calling your insurance provider and asking them for an insurance policy that would cover you for millions of dollars in the event that you decided to break the law and kill some people. They would probably think you were crazy, just like this proposal.

This new insurance requirement proposal is based on the statement that this will reduce violence in homes, "where a gun is kept unlocked and loaded." However, chapter 10.32.170 of the San Jose municipal code already requires residents to store a Firearm in a Locked Container or disable the Firearm with a Trigger Lock. Either the first law does not work, or this second proposal is not needed.

Criminals will never pay this fee because by definition they break the law. This San Jose proposal will only hurts those who follow the law and does nothing to stop criminal violence.

1.3 GUN SEIZURE FOR NON COMPLIANCE WITH FEE TAX AND INSURANCE MANDATE (1.1 & 1.2)

Unconstitutional
Unenforceable – cannot seize guns in CA for civil violations or almost all misdemeanors
Does nothing to stop criminal violence

This proposal states that “Failure to comply [with the law] shall constitute a civil violation subjecting the owner to the temporary or permanent seizure of the gun…or a fine.” The proposal additionally states that “failure to yield firearms upon the lawful demand of a law enforcement official under this ordinance would constitute a misdemeanor.”

This is illegal under California state law.

A gun cannot be taken away from a legal owner unless:

They have been convicted of a felony
There is a court order by a judge or court commissioner
They have been convicted of, or have a current warrant for, one of 40 very specific misdemeanors in violation of Penal Code 29805 PC.
1. Click here for the list of misdemeanors.

This proposal does not fall under the category of a violent misdemeanor, and an infraction is a lower crime than misdemeanor.

This is 100% illegal, unenforceable, and does nothing to stop criminal violence.

1.4 GHOST GUN DEFINITION CHANGE

Unconstitutional
Turns law abiding residents into criminals
Duplicate of existing California state law
Does not understand current laws
Does nothing to stop criminal violence

Ghost guns are already illegal in California and it is a shame these City councilmembers do not understand this. Ghost guns are non-serialized and untraceable firearms which may be assembled, 3D printed, or which have had their serial numbers illegally removed.

This proposal removes the constitutionally protected right of a Do-It-Yourself (DIY) home builder to build their own firearm for their own use. The state of California allows residents who can legally own a gun to build their own firearms as long as they pass a background check, build the gun to the required safety specifications, apply for a serial number prior to manufacture, and permanently place (engrave/stamp) the serial number on their home built gun.

You can read the requirements here

Not being allowed to follow state laws to construct your own legal firearm for your own usage is illegal. Not applying for a serial number or permanently affixing that serial number to your gun is also illegal and turns that home built gun into a ghost gun.

Criminals will never follow this proposal because by definition they break the law. This San Jose proposal will only hurts those who follow the law, removes constitutional rights, and does nothing to stop criminal violence.

2. GUN VIOLENCE RESTRAINING ORDER ON-SITE GUN CONFISCATION

Better communication of court procedures with victims is much welcomed
Does nothing to stop criminal violence

There are parts of this proposal which we agree with and parts we absolutely disagree with and view as a violation of our civil rights.

The parts we agree with are improving communication about GVRO’s with victims of domestic violence, better outreach about GVRO’s in multiple languages on city properties, enhancing the sanction for violating a GVRO from a misdemeanor to a felony, and updating police training protocols pertaining to new changes to state law pertaining to DVRO’s.

We do not believe it is in the best interest of public safety for police officers to file this paperwork on behalf of the victim. The application takes about an hour to fill out and our city cannot afford to take police officers off the street for this amount of time while other crimes are occurring. SJPD can already issue a restraining order on site that prevents contact with the victim, giving the victim time to fill out their GVRO and submit it to the court.

The District Attorney’s Office should not have the power to file GVRO’s on behalf of anyone but themselves.

3. “ASSAULT” WEAPONS BAN

Deemed unconstitutional by the U.S. District Court
If not allowed at the state level, why would it be allowed at the city level?
Does nothing to stop criminal violence

On June 4, 2021, the U.S. District Court for the Southern District of California ruled the California assault weapons ban (Roberti–Roos Assault Weapons Control Act of 1989 [AWCA]) to be unconstitutional and issued a permanent injunction against enforcing provisions of the law.

California has had an assault weapons ban since 1989, yet homicides “jumped 31% last year (2020), making it the deadliest year since 2007, and Black people accounted for nearly one-third of all victims.” - The LA Times

About half of gun deaths in California are suicides, and there is no credible argument that an “assault-weapons” ban will have any effect on suicide rates. According to the FBI, the vast majority of firearms politically labeled as “assault weapons” are rifles, and during the most recent five years of data, there were nine times as many murders with knives, blunt objects, and “personal weapons” (hands, feet, etc.), as compared with rifles of all types. Additionally, there is no evidence that banning “assault rifles” would prevent mass shootings.

Lastly, Criminals will not follow this proposal, even if it wasn’t unconstitutional.

4. GHOST GUNS

Unconstitutional
Turns law abiding residents into criminals
Duplicate of existing California state law
Does not understand current laws
Does nothing to stop criminal violence

You can read the requirements here

5. VIDEOTAPING TRANSACTIONS TO PREVENT STRAW PURCHASES

A straw Purchases is already an illegal felony in California
Duplicate of existing California state law
Will shutdown businesses in San Jose
Does nothing to stop criminal violence

This proposal is a classic case of government creating bureaucracy and red tape to achieve nothing. A straw purchase is when someone buys a gun for someone else who is prohibited by law from possessing one or if they purchase a gun for someone else who does not want their name associated with the transaction. An illegal firearm straw purchase is already a federal crime and can bring a felony conviction with a sentence of ten years in prison and a fine of up to $250,000.

There is a difference between a legal firearm acquisition and an illegal one, especially in California where there is a major disconnect between the rhetoric of “political loopholes” and the reality of law. These City Councilmembers need to stop using fear tactics and should study the requirements to purchase a firearm in California legally. The purchaser must:

Purchase through a licensed dealer with a Federal Firearms License (FFL), even at gun shows;
Submit to and pass a federal background check;
Submit their right thumbprint before completing any transaction.
Dealers are also required to maintain a firearms transaction record and this record must be made available to law enforcement during business hours.
Sign a federal document, under penalty of perjury, that they are buying the firearm for themselves only (straw purchases are already a felony and are illegal);
Presents a valid Firearm Safety Certificate (“FSC”) or a Handgun Safety Certificate (“HSC”);
Performs a safe handling demonstration with the firearm being purchased;
Wait ten days before they can take their firearm out of the FFL dealer (there are no loopholes for gun shows in CA).

Because straw purchases are already illegal, this proposal only adds increased financial burden and regulatory hurdles on Federal Firearm Licensed dealers in San Jose, forcing many of them to close. One business is known to have spent over $250,000.00 on upgrading equipment to comply with this overreaching law.

Criminals will never follow this proposal because by definition they break the law. This San Jose proposal only hurts those who follow the law, removes their constitutional rights, and does nothing to stop criminal violence.

6. AMMUNITION RESTRICTIONS: PERMITS, FINGERPRINTING, AND MORE

Ruled Unconstitutional by a U.S. District Court
Does nothing to stop criminal violence

Again, the City Councilmembers are trying to force an illegal law which has been struck down as unconstitutional by the courts.

On April 22, 2021 U.S. District Judge Roger Benitez ruled, “California’s [2016] new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured.” The law’s regulations and state database errors made it impossible for hundreds of thousands of law-abiding Californians to purchase ammunition.

Liccardo, Jones, Peralez, Carrasco, and Cohen appear to advocate for the citywide adoption of laws already deemed unconstitutional by higher courts and continue their assault on law-abiding San Joseans freedoms and rights.

7. “LOOKING OUT FOR ONE ANOTHER”

Empowering residents to report crime is essential to a safe community
Careful consideration needs to be taken to avoid Gestapo "informing“

A public campaign to encourage the appropriate notification to mental health or law enforcement authorities of threats of violence, planning or preparatory steps to commit violence, or apparent fascination with prior acts of violence, is a step we believe all community members can support. We strongly encourage caution with the implementation of this to prevent neighbors from informing on each other in retaliation for minor civil disputes.

8. MORE FREQUENT GUN "BUY-BACK" PROGRAMS

How does SJ "buy back" something they never owned in the first place?
Does nothing to stop criminal violence
May cause more gun violence

Several studies over the years have examined the weapons retrieved during gun “buy-backs” and the level of gun violence in the months after the events. Most reached the same conclusion: The guns collected usually aren't the type used in crimes, and the impact of the buybacks on crime was "not statistically significant." A few researchers believe buybacks may even do some harm: A 1999 article in the Law and Order journal found that some people sold guns to police during buybacks and then used the money to buy new guns.

9. LEVERAGING FEDERAL INFORMATION FOR EARLY INTERVENTION

We agree with this proposal.

Enhancing communication between SJPD and other local law enforcement agencies with key Federal agencies, including the Special Agents in Charge (SAC) for local FBI Investigations, Bureau of Alcohol, Tobacco, and Firearms, DEA, DHS, and U.S. Customs and Border Control—to improve protocols that will enable local law enforcement access to critical information about high-risk individuals in San José will give first responders the tools they need to do their job safely for both themselves, the public, and the suspect.

The official memorandum may be viewed on the City's website.

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