TELL THE SAN JOSE CITY COUNCIL TO VOTE NO ON 1/25/2022 ITEM 4.1

EMAIL BODY:

I am writing to inform you of my objection to the proposed changes to Chapter 10 of the San José Municipal Code as defined in the Gun Harm Reduction Ordinance Memorandum dated January 14, 2022, scheduled to be heard on January 25, 2022 as Item 4.1.  I urge you to VOTE NO on this item.

Item 4.1 proposes unlawful and unenforceable changes to the Municipal Code which will not stop gun violence in San José.  Legal owners of firearms will be unduly punished because, by definition, they are the only people that will be impacted by these proposals. Taxing and isolating a group of people purely based on their decision to embrace an enumerated constitutional right is discriminatory.

Proposed Change: 10.32.210 Liability Insurance Required

“Specifically covering losses or damages resulting from any negligent or accidental use of the Firearm, including but not limited to death, injury or property damage.” 

• Negligent use of a firearm is defined in CA Penal Code 246.3 as someone who willfully discharges a firearm (pulls the trigger intentionally) which could result in injury or death to a person.

• The City Council is requiring firearm owners to purchase insurance for intentionally pulling the trigger of a firearm to harm life and/or property, which is already defined as a serious violent crime.

• This type of insurance does not exist and if it did, would be so cost prohibitive that it would place an unconstitutional barrier to the free exercise of the Second Amendment.

• Lawmakers are allowed to approve the ordinance without defining the insurance coverage type and limits, having up to six months after the vote to define it.

• Murdock v. Pennsylvania, 319 U.S. 105 (1943) established that the government “may not impose a charge for the enjoyment of a right protected by the federal constitution.”

Proposed Change: 10.32.215 Annual Gun Harm Reduction Fee

“A person who resides in the City and owns or possesses a Firearm in the City shall pay an Annual Gun Harm Reduction Fee to the Designated Nonprofit Organization each year.” 

• San José is taxing gun-owning, law abiding residents and visitors for the illegal actions of criminals.

• The City is creating a law which forces gun owners to financially support a business they may not agree with. 

• The City Council is opening the floodgate for corruption, allowing former City employees to sit on the board of this nonprofit to be paid using additional monies from taxpayer dollars in the form of City grants.  No former city employee should ever be allowed to sit on this board.

• What is the fee?  Lawmakers are allowed to approve the ordinance without defining the fee and have up to six months after the vote to define it.

• Murdock v. Pennsylvania, 319 U.S. 105 (1943) the Supreme Court ruled that “since the privilege in question is guaranteed by the Federal Constitution, and exists independently of state [or municipal] authority, the inquiry as to whether the State [or Municipality] has given something for which it can ask for a return is irrelevant.”

Proposed Change: 10.32.245 Impoundment

“The Firearm or Firearms of a person that is not in compliance with this Part may be impounded subject to a due process hearing.”

• Violation of the proposed changes will most likely result in an infraction.

• State law only allows for the impoundment of firearm for a felony or one of 20 defined violent misdemeanors.  Infractions do not reach the state threshold requirement to legally confiscate and/or impound property.

• Because the ordinance improperly compares the Second Amendment right to the privilege of owning a car for justification of these changes:

  • California state law does not grant peace officers the authority to impound a vehicle on site for lack of insurance and requires a minimum of six months registration expiration before they can impound a vehicle [CVC 16028(a-c) and CVC22651(o)].

Focus on Real Solutions to Stopping Gun Violence

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 law-abiding residents of San José.  Please look at taking the following actions to stop gun violence:

1. Have the city council write and approve an amicus curia resolution to send to the California Assembly and Senate to repeal Propositions 47, 57, and AB109

2. Establish the Gun Harm Reduction Commission (GHRC) pilot program with balanced community representation

3. Enforce and prosecute existing gun laws

4. Support recommendations 1 through 5 of the 9/16/2021 Rules and Open Government Committee memorandum entitled, "Community Violence Prevention & Response"

5. Fund attorneys that will prosecute gun crimes in the county

6. Hire more police officers

7. Build mental health hospitals and fund sobriety programs

Yours Sincerely,

Your Constituent