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2022.01.24 11:47 mirkalieve San Jose "Gun Harm Reduction Ordinance" Update; City Council Meeting Tomorrow 1/25/2022

I previously posted this thread, but I'm posting one more thread before the meeting to give an update on documents submitted to City Council since the last thread, and also to remind everyone to comment and/or attend. If you already read the previous thread, you can just read the updates.
First off though:

Update Summary:
Memorandum from Davis, 1/21/2022
Council Member Dev Davis opposed the Ordinance in her memorandum, on the basis that there's other more constructive ways to deal with gun violence and laws on the books to deal with it already, saying that passing the ordinance now where all of the details and structure are to be worked out later is "like shooting first and aiming later". See memorandum for details. She's running in the San Jose Mayoral Election on 6/7/2022.
Memorandum from Liccardo, Jones, Cohen & Carrasco, 1/21/2022
Mayor Sam Liccardo, Vice Mayor Chappie Jones, and Council Members David Cohen and Magdalena Carrasco support the ordinance in their memorandum, introducing various amendments to the proposed ordinance and discussing the ordinance. I encourage you to read the memorandum, but I'd note the following from the memorandum:
  • The proposed annual "Gun Harm Reduction Fee" is to start at $25, plus the administrative cost borne by the designated non-profit, The State of California, and The City. This number seems arbitrary and isn't explained as to how they came up with this number, or at what schedule that fee might increase. There's no cost estimate as to what the cost borne by these entities might be, nor is there a proposal for the fines and other administrative fees that are part of the ordinance.
  • They're incorporating the previously mentioned report's findings into the ordinance, which to quote Mayor Licardo is to "to establish the legal baseline and ceiling for that fee" (pdf pg. 1), which to refresh your memory the report alleges that the cost of gunfire in city services rendered is "$151 per firearm-owning household" and the alleged private/societal cost is "$432 per San Jose resident" (see pdf pg. 7 for both costs).
  • No fees shall be collected nor required until the City Attorney has determined the resolution of pending facial legal challenges (for any claim that is not precluded by final judgement).
  • The compliance section is amended to add "Each person shall present the form when lawfully requested to do so by a peace officer who knows or has reason to believe that a person possesses a firearm."
Memorandum from Peralez, 1/21/2022
Council Member Raul Peralez supports the ordinance and lays out suggestions on organizing various timelines, sessions, and the non-profit related to the ordinance. See memorandum for details. He's also running for Mayor.
Supplemental Memorandum, 1/21/2022
The City Attorney Nora Frimann provides a list of research and data sources used in the recitals of the proposed ordinance. See supplemental memorandum for details.
Mayor Sam Liccardo's 1/19/22 LA Times Op-ed on his proposed "Gun Harm Reduction Ordinance" (archive.org link)
He makes his sales pitch on the ordinance, and with phrases like "proposals include two requirements for gun owners that no city or state in the U.S. has ever implemented" he makes it very clear that he plans use this for his ambitions for higher office. He'll be termed out as Mayor after this year, so he's trying to pass this before he terms out.
Some Discussion:
Talking about the 1/21/2022 Memorandum mostly, Mayor Liccardo talks about how insurance is successful in other policy areas but fails to explain the availability of the kind of plans meet the insurance mandate and how much this insurance (or insurance additions) may cost; he could have issued a study on such but he has not. Furthermore, he discusses how imposing a gun-related fee is perfectly constitutional, and then goes on to defend the legality of taxing firearms.
However, since he brings up taxation: Why is this an annual Gun Harm Reduction "fee" rather than a "tax"? I'm no lawyer, but the answer likely lies within the California Constitution. I'll refer to Article XIII C, where in Section 1 it defines the terms "General tax", "Special tax" and "tax", and in Section 2 it states that taxes must be submitted to the electorate, with "any General tax" approved "by a majority vote", and "any special tax" approved by a "two-thirds vote". If this were a tax, it would likely fall under a "Special tax" given the definition of such, requiring a local ballot measure to pass by two-thirds vote... however the definition of what a "tax" is has various exclusions, including:
(e) As used in this article, “tax” means any levy, charge, or exaction of any kind imposed by a local government, except the following:
(1) A charge imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege.
This is likely why and how it's being proposed as a "fee" rather than a "tax", thus evading the need to put it as a local ballot measure to be voted on by the people. This allows Mayor Sam Liccardo to rely his influence with the city council rather than having to spend time, money, and effort convincing the people of San Jose to vote on this scheme.
That's about it for updates. I'm going to copy-paste my original thread now with a few edits, which includes all the information you need to comment and/or attend the virtual meeting. He further talks about how a fee is on gun rights is perfectly constitutional, and further says that fees
Hello all,
I'm going off the CRPA email sent today, though I'm going to write out my own explanation here.
(You can get on their email list here by checking News/Legislative Updates and any other interests; or become a member here).
On Tuesday, January 25th @ 1:30PM (However the agenda claims this specific ordinance will be heard at 6PM) the San Jose City Council will meet to consider approving the "Gun Harm Reduction Ordinance". This was talked about previously on this sub, which City Council decided to have the lawyers draft up the text of the ordinance to present to City Council. The lawyers have now done that, and now we have the text of proposed Gun Harm Reduction Ordinance that will be voted on. In Summary, based off my reading, the Ordinance:
  • Defines a firearm as "a device, designed to be used as a weapon, from which is expelled though a barrel, a projectile by the force of an explosion or other form of combustible" while excluding antique firearms as defined by 18 U.S.C. Section 921(a) (see definition 16).
  • Requires any resident of the City of San Jose who owns or possesses a firearm to obtain and continuously maintain a homeowner's, renter's, or gun liability insurance policy (that's California compliant) which specifically covers losses or damages resulting from any negligent or accidental use of a firearm, including but not limited to death, injury, or property damage. Said person will be deemed the owner of lost/stolen firearms until such loss is reported to police/sheriff department in the area they reside.
  • Requires any resident of the City of San Jose who owns or possesses a firearm to pay an "Annual Gun Harm Reduction Fee" to a Nonprofit Organization designated by the City Manager. The date of payment and the amount of the annual fee is to be determined at a later date along with the schedule of fees/charges by resolution by City Council.
    • Update: The starting fee is to be $25 plus administrative costs, but beyond that it's unknown (see "Update Summary" at top of thread).
  • Current Proof of Insurance (a city form attesting current insurance under penalty of perjury) and Proof of Payment of Annual Gun Harm Reduction fee must be kept with the firearm(s) where stored or transported.
    • Update: Language added saying you must present said forms when asked by a peace officer who believes that a person possesses a firearm.
  • Residents violating the ordinance may be punished by administrative citation, fines (to be set by resolution by City Council at a future date), and any other civil and administrative remedies available to the City. The firearms may be impounded subject to a due process hearing.
  • City Manager is authorized to promulgate all regulations necessary to fulfill the requirements of the ordinance, as well as charge and collect any and all cost recovery fees associated with fulfilling the policies of the ordinance, including any associated third-party costs (fees and charges to be established by resolution by City Council at a later date).
  • LEOs, CCW holders, and I guess "the poor" are exempt from all of this. I say "the poor", but to be more specific and to quote: "Those persons eligible to proceed without paying court fees and costs pursuant to California Government Code § 68632 (a) and (b)". I don't know too much about how that is tested in reality other than as stated, so if anyone is more familiar with that please comment.
Again though, I encourage you all to read the ordinance text yourself.
I'm going to put some links, and then I'm going to discuss further:
Text of Proposed Ordinance
Ordinance Landing Page (which includes Memorandums and Letters from the Public)
Meeting Agenda and Landing Page (Ordinance is Agenda Item #4.1)
CRPA is encouraging not just residents of San Jose, but all members to attend and send in their comments.
Virtual Meeting Link (Via the Zoom app). This allows you attend the virtual meeting.
Note: Once again this meeting will be held on Tuesday, January 25th @ 1:30PM, however the agenda claims that the specific ordinance will be heard at sometime around 6PM.
eComment (You can click "4.1 22-045 Gun Harm Reduction Ordinance. - TO BE HEARD AT 6:00 P.M." where you can then sign in or enter your information, indicate your opposition, submit your Public Comment, and read other Public Comments posted here.
You can also email your comments to city.clerk@sanjoseca.gov with the Subject of Oppose Public Safety Gun Harm Reduction Ordinance; Agenda Item #4.1. Must be sent before 10AM on 1/25/22.
To comment on the day of the meeting:
By Email: email during the meeting to councilmeeting@sanjoseca.gov, identifying the Agenda Item Number in the email subject line. Comments received will be included as a part of the meeting record but will not be read aloud during the meeting.
By Phone: (888) 475 4499. Webinar ID is 993 4684 3938. Press *9 to raise a hand to speak. Press *6 to unmute when called. Alternative phone numbers are: US: +1 (213) 338-8477 or +1 (408) 638-0968 or (877) 853-5257 (Toll Free)
By Online (Zoom, meeting link):
  1. Use a current, up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain functionality may be disabled in older browsers including Internet Explorer. Mute all other audio before speaking. Using multiple devices can cause an audio feedback.
  2. Enter an email address and name. The name will be visible online and will be used to notify you that it is your turn to speak.
  3. When the Mayor calls for the item on which you wish to speak, click on “raise hand.” Speakers will be notified shortly before they are called to speak.
  4. When called, please limit your remarks to the time limit allotted.
Now with that out of the way... it seems Mayor Licardo is asking the City Council to pass this ordinance without deciding any of the fees or charges relating to it, which is basically writing a blank check from every San Jose gun owner's pocketbook. The biggest question people would probably have is:
How much will the annual Gun Harm Reduction Fee be?
  • Update: The fee is to start at $25 + administrative costs, however there's no details as to how they came up with that or how the fee will increase; the study's findings are being incorporated by reference to "set the legal baseline and ceiling", so the below is still relevant. See "Update Summary" at top of thread for details.
As previously stated there's no specific answer, however they do give some hints. If you read the 1/19/2022 Supplemental Memorandum from Mayor Licardo though, he had the Pacific Institute on Research and Evaluation do a study on the alleged costs relating to gunshots each year so as "to establish the legal baseline and ceiling for that fee". From that study, a "conservative estimate" of the cost to San Jose Taxpayers from services provided is $151 per firearm-owning household. They also calculated the alleged cost of firearm injuries in San Jose, and they came out with a number of $432 per resident (see pdf page 7).
Without a specific fee proposal from Mayor Licardo at this time, by his own presented study it can only be assumed that this is the proposed annual fee ranges from anywhere from $151 to $432. He claims that a more "substantive memorandum with specific recommendations" is forthcoming, yet Mayor Licardo hasn't presented that information and we're a week away from voting, so I can only assume that Mayor Licardo wants the City Council to pass the Ordinance now and let him present his proposed fee later - again, blank check from gun owners pocketbook.
That's on top of the fines and other fees that will be voted on in the future. Furthermore, as far as I can tell... while there's an exemption from this process for those with lower income, as defined here, it's not clear how that would operate in reality.
For example: somebody has an income that is 125% or less than the Federal Poverty Level, and they have their firearm. According to the proposed ordinance they're exempt from the ordinance. A San Jose Police Officer investigates them for the firearm they're carrying, asks them for their papers. They don't have any papers they say, as their exempt because of their income. Now the investigating officer has to decide: Take the person at their word, or demand proof of their income. They may decide to cite them and impound their firearm; the otherwise compliant person would then have to go through an administrative hearing to clear the citation and a due process hearing to recover their impounded firearm. As proposed that could lead to undue harassment of those firearm owners with low incomes.
We don't even know what other fees may surround the impound process; I wouldn't be surprised if there was a "storage fee" for the impound process with how vague the proposed ordinance about other fees and fines. This ordinance, apart from being a a travesty, is half-baked at best.
As such, I encourage all of you read the documents, to discuss this in the comments in thread, then form those into the comments that you submit to San Jose City Council through the means linked above, and attend the meeting this upcoming Tuesday, January 25th. It's all hands on deck.
Please comment where I got anything wrong!
Edit 1: Sorry, I can't help myself: "We have to pass the ordinance so that you can find out what fees are in it" is basically what Mayor Licardo is saying by having this vote without proposed fees in the ordinance language or even submitted suggested fees.
Edit 2: Another scenario that comes to mind: How is this supposed to happen in reality? Police officer pulls you over in your car or whatever for some alleged moving violation, and either a.) sees the gun case in your car somewhere or b.) looks up your AFS record in CLETS and notes that you're a gun owner (which is going to lead to some profiling), and asks you if you have a firearm with you. You confirm that you do, they then ask if you have proof of insurance and proof of fee payment for your firearm. You say yes; they ask for the paperwork... you reach for your gun?
That's what the ordinance says; you store the paperwork "with the Firearms where they are being stored or transported". I don't think the ordinance is well thought out when it's telling you to reach for your firearm (or even firearm case) in the presence of a Police Officer. What other alternatives are there? That we have to surrender to a search of our vehicle or effects every time a Police Officer wants to confirm our paperwork, as, per ordinance, it's stored with the firearm? This ordinance is really poorly thought out.
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