Retired Attorney Asks San Jose to Consider New Rules on Assault Weapons

In the wake of the Newtown massacre, a semi-retired employment law and civil rights attorney thinks anyone in San Jose who wants to own an assault weapon should be required to pass a mental health check and hand over the gun to police for safekeeping.

San Jose resident Maurits Van Smith, 77, drafted a proposed city ordinance (pages 4-6), which he submitted to the police chief, the mayor and a handful of other public officials in the hopes that they’ll support his idea. City leaders will broach the topic at the Rules and Open Government Committee meeting Wednesday afternoon. If the committee moves it forward, the draft ordinance could go before the City Council.

“People think they have to wait on the state or the federal government to pass new gun control rules, but I think a city could be more effective,” says Smith, who spent a decade of his 50-year legal career as city attorney for Santa Clara. “I have some experience writing city ordinances, so I took the liberty of writing up a draft.”

The language in the ordinance would require assault weapon owners to provide fingerprint identification to check out the guns, explain the intended use of the guns and promise not to let anyone else use the guns during the time it is “checked out.” Possession of an assault weapon that is not registered would be then punishable by a fine of no more than $1,000 and six months imprisonment.

Smith’s open to feedback—in fact, his main goal, he says, was to spark a discussion in the wake of the Sandy Hook tragedy.

“Listen, my ideas aren’t the best ideas,” Smith says. “I just want to hear from our leaders and from other residents what we should do about this. It’s only for a specific type of gun control, and only to target these unusual, occasional, but increasingly common tragic situations like what happened in Connecticut.”

The proposed ordinance would not affect handguns in San Jose, which were increasingly used in last year’s surge of homicides.

Other notable items from the Rules and Open Government Committee agenda for January 16, 2013:

• Businesses looking to set up shop in San Jose could get a steep discount on a lease. The city is in the process of figuring out how much work it would take to implement a program encouraging commercial tenants to occupy ground-floor vacancies in downtown and other target neighborhoods by locking in their lease at a teaser rate of $1 per square foot for the first year.

To make it work, the city will have to convince property owners to lower their prices. The cost of convincing folks to do business: $250,000 in waived permitting fees.

The main concern for the city manager’s office, which proposed the initiative, is how to tackle the problem of blight perpetuated by vacant spaces. Per the staff report:

“Despite the resurgence of employment statistics in Silicon Valley, the ubiquity of vacancies in our neighborhood business districts and the Downtown plainly indicates that the recovery has not reached many of our neighborhoods. Large-mall vacancies remain relatively low, to be sure, reflecting rising sales activity, particularly for the more affluent consumers. Empty storefronts in several NBD’s and the Downtown persist, however. It is these street-level vacancies along our ‘pedestrian friendly’ retail corridors that have a unique impact on surrounding communities. Vacancies reflect missed opportunities for entry-level employment in many struggling neighborhoods, and reinforce the perceived dearth of consumer goods and services in underserved ethnic communities.

“Vagrancy, graffiti, and street-level crime proliferates in the absence of ‘eyes on the street’ and back-lit storefronts. Adjacent businesses suffer from reduced foot traffic, and from the perception that pedestrians don’t ‘feel’ safe walking along deserted sidewalks and empty storefronts. Landlords forego maintenance and basic investments in vacant buildings and even their occupied neighbors, thereby perpetuating a vicious cycle of urban decline. Surrounding neighborhoods feel the impacts, both in blight and in the decline of quality of life that walkable urban retail districts typically afford to nearby residents.”

• San Jose has the third-highest percentage of overweight children in the county, according to the city, which over the years has spent a good chunk of money to fix what it calls the “Let’s Move Campaign.” Recently, the city teamed up with the Santa Clara County Public Health Department to figure out how to spend a $3.6 million federal grant to fight childhood obesity. About $140,000 of that grant will go to the city’s Parks, Recreation and Neighborhood Services arm to come up with a handbook about youth nutrition and activity.

• Apparently, enough inconsiderate cyclists have bumped into elderly pedestrians that the city’s Senior Citizens Commission has taken to imploring the council to do something. The commission says the Department of Transportation has done a fine job focusing on children’s safety but “is woefully lacking in a similar outreach for senior citizen pedestrians.”

• Seniors forwarded several letters to the city this month, including one that demands San Jose police undergo sensitivity training to deal with a population of senior citizen’s slated to double in the next decade.

• The city’s most tenacious critic, David S. Wall, wrote a sarcastic letter to the council about a homeless camp behind Columbus Park, asking if the city would oblige to give executives from Nippon Airways a guided tour of the spot bordered by Coleman Avenue between West Hedding and West Taylor streets.

“Perhaps our good friends at [the Office of Economic Development] would describe the vagrant encampment as an ‘urban village’ that is part of the Envision 2040 General Plan to our honored guests from [Nippon Air]. Or perhaps OED might say that the vagrant encampment is part of Mayor [Chuck] Reed’s ‘Green Vision’ since all of the habitats exceed energy and water conservation goals …Either ploy might just work to sway the tired ANA executives who just stepped off that really cool Boeing 787 Dreamliner.”

WHAT: City of San Jose Rules and Open Government Committee meeting
WHEN: 2pm Wednesday
WHERE: Wing 118-120, City Hall, 200 E. Santa Clara St., San Jose
INFO: Deputy City Clerk Tamara Davis, 408.535.1265

Jennifer Wadsworth is a staff writer for San Jose Inside and Metro Newspaper. Email tips to jenniferw@metronews.com or follow her on Twitter at @jennwadsworth.

27 Comments

  1. If Maurits Van Smith is obviously not a very good lawyer.  If he was he would know that California has state preemption of local firearms ordinances, which prohibits cities from creating their own laws similar this this.  California Government Code 53701, case law is “Fiscal v. City” where San Francisco tried something similar and was shot down in the courts, in addition to having to pay a $380,000 settlement for their violation of state law to cover NRA lawyer fees. 

    Might want to read up on the law, Mr lawyer

    • SR,

      Think not, another insurance /govt tax.  How about prison for anyone breaking the law and victims can sue the suspect in civil court.  Why raise taxes on responsible gun owners.

      Better to go after drivers with no drivers license or insurance, oh forgot they can’t pay so we are screwed again by all of us who are law abiding, have a license and pay for car insurance.

      Responsible people register their guns and cars.

      • I keep hearing and reading about these “responsible gun owners”.  Was that San Jose policeman that let his 3-year old child play with a loaded pistol one of them?

        http://www.mercurynews.com/crime-courts/ci_21020993/probe-continues-into-shooting-death-gilroy-san-jose

        I grew up on a farm.  I know about guns.  The Game Warden that gave my gun safety class that I had to take to get a hunting license had all kinds of stories about people that made careless mistakes. Some of them fatal. These things are not safe, and it’s always because the “other guy” is an idiot.  Fact is there are a lot of idiots.

        • I understand you are trying to make a point, but maybe you should choose your words more carefully.  Stating that the San Jose policeman “let his 3-year old play with a loaded pistol,” is inaccurate, and somewhat malicious. The officer got home while his wife and kids were out, and did not expect them home.  His loaded backup service weapon was in a nightstand drawer in his bedroom.

          http://sanfrancisco.cbslocal.com/2012/09/26/san-jose-police-officer-wont-be-charged-in-death-of-young-son/

        • Your one sick puppy and one of those idiots. To bring up a policeman’s dead child.  It was a tragic accident. That officer protects you everyday and is willing to give up his life for you.  He will have to live with the fact of his mistake.  But he is not there killing innocent kids in the classroom or a movie or on the streets.

          Your the reason I joined NRA yesterday.  If you are so adamant, turn in all your guns and put up a sign on your front lawn that states “this house is gun free”.

        • The point is that people that are supposed know how to handle guns make mistakes.  It was a mistake that was made by someone that should have known better.  It served no useful purpose to punish the police officer.  I agree with that.  But what if a neighbor’s kid had been killed?

          I’m not as afraid of the mass killers as I am of the bozos with half a brain running around thinking they’re trained and competent with firearms.  People like you demand the right to bear arms, but you should be willing to take responsibility for your actions too.  When I see these “open carry” people on TV talk about how they’re highly trained and so on, my BS detector goes off.  These people have big chips on their shoulders and are itching for an opportunity to show how manly they are.  Like that guy in Florida that shot Trayvon Martin.

        • S randall get your facts straight you dont even know the circumstances of this tragic child death…. You have truly shown your colors. You are proof of what Chuck and council are all about. You will all go at any length to get your twisted sick msg out…… YOU FAIL AT CREDIBILITY

        • Who owned the gun?  Who is responsible for keeping the gun secure?

          The fact that that “officer protects you everyday and is willing to give up his life for you” matters, but doesn’t change the fact that he was someone that had the training and background to have done better.  A mistake was made.  It’s not a matter of who the person is, or what he does for a living.  A mistake was made, and there were real consequences.

          I think the DA did the right thing by not pursuing the case.  If it was a neighbor’s kid, or if it was your kid that was killed, it would have been a much harder call.

          My whole point in bring this up is that guns are dangerous, and when something goes wrong, there are financial and sometimes criminal implications.  Second Amendment or not, we should at least deal with the financial implications.

    • Randall you are so small minded and a fool. To mandate liability insurance is to make it too costly and create a barrier for lawful access to gun ownership thus you are discriminating against our very own 2nd amendment rights! It is unconstitutional and you are creating a false sense of security just like the foolhardy attempt to reinstate the federal ban!

      And to even require a lawful gun owner to post money when something happens to their firearms is a terrible way to help them be more forthcoming with their situation. Why would anybody want to report an incident if it involves incriminating themself or subject themself to any sort of financial punishment? It’s better just to require gun owners to report their guns stolen, for instance, which would clarify the any liability on their part.

      And why in the world would you want to open the gun industry to the insurance industry??? You’ve seen with your very own eyes what a FAILURE the prviate insurance industry has been with healthcare. They’re all about maximizing profit. You may compare having gun insurance to car insurance, but that is FLAWED LOGIC. Lawful gun ownership is an ABSOLUTE right. Driving on the road is NOT a right but a PRIVILEGE!

      And to insure drivers instills a sense of moral hazard when they drive. FACT! It is an innate fact with any kind of insurance. I hope you know what moral hazard means..keep up with me here..What you’re basically saying is to insure gun owners so they can be less careful with operating firearms. Clearly, a logic of an imbecile.

      Now speaking of “personal responsibility” I think you ought to tend to your own and get an ACTUAL EDUCATION BEFORE YOU OPEN YOUR MOUTH AND SPEW YOUR HIPPY BS.

      • The unintended consequence of any law is that people with not be forthcoming when they break said law.  That’s a great argument for repealing every law.

        With Lance Armstrong in the news now, people might want to think about Greg LeMonde.  Greg was from Carson City and raced around here as a junior rider.  He was shot by his brother-in-law while hunting birds.  That probably took a couple of Tour de France wins from his career.

        Maybe it’s me, but I won’t go hunting, because I’ve heard too many stories about idiots with guns, and they let any idiot have a gun.  Like your hero of “personal responsibility”, Dick Cheney.

      • > To mandate liability insurance is to make it too costly and create a barrier for lawful access to gun ownership thus you are discriminating against our very own 2nd amendment rights! It is unconstitutional and you are creating a false sense of security just like the foolhardy attempt to reinstate the federal ban!

        Mr. BlueCollarDemocrat:

        I don’t think you really have that much in common with many Democrats. 

        If Rich Robinson, Dianne Feinstein, or Barry Obama had their way, they would probably confiscate your guns, put your children in foster care, and send you to a re-education camp.

        Brand loyalty is an admirable trait, but when Coca Cola starts making their soda pop with bilge water, it’s time to switch to Pepsi.

  2. > … anyone in San Jose who wants to own an assault weapon should be required to pass a mental health check and hand over the gun to police for safekeeping.

    Why limit this to just assault weapons?

    Why not make this a requirement for people who make assault postings to assault blogs?

    Or people who assault their bodies with assault junk food?

    Or people who assault their intelligence by reading assault newspapers or watching assault TV?

    Who can deny that universal universal mental health checks and closer police supervision wouldn’t make San Jose a better place to live.

  3. @ S Randall, if driving is such a “right” then show me WHERE in the constitution, its amendments, and subsequent articles does it guarantee you the right to drive a vehicle? There ISN’T ANY. While it is regulated it’s still a PRIVILEDGE.

    Who is the one with half a brain? The one with half a logic who believes that disarming law abiding citizens will somehow make society safer.The majority of of homicides across the country including San Jose are carried out with firearms that are illegally acquired according to the BATFE. Please explain to me how adding more gun restrictions to the currently endless list of regulations will somehow convince the criminals to finally obey them?!?!

    Delusional people like YOU Randall are ones who make this city unsafe, and you are far more dangerous with your distorted views of reality than any lawful gun owner. And the chance that your false impressions to actually become law will negatively impact everyone’s life and their chance to defend it for a LONG time. 

    Oh and the difference between a dog and gun is that a dog has a mind of its own…….are you telling me that its ultimately the fault of a gun for somehow firing a bullet by itself and not the fault of the evil, psycho behind it who has NO regard for the law?

    Who’s the one with half a brain?

    In an your earlier reply to my post,
    “The unintended consequence of any law is that people would not be forthcoming when they break said law.”
    You said, ” Thats an agrument for repealing every law.”

    Thanks for twisting my words and pulling a strawman fallacy on me. I DID NOT say ANY law, and its not an “unintended consequence” it is a failed proposal that can’t hold it’s own weight and has no tangible impact on curbing gun violence.

    Let me break it down and clarify for you. There are already existing laws that punish owners if anything illegal were to happen with their guns. Your foolish idea to require a monetary reparation for it is pointless and won’t accomplish anything. Your logic that somehow monetary punishment is more receptive and deterrent than criminal prosecution is proof that you know nothing about the law and how society behaves. 

    I don’t know what connection or point you’re trying to make with second amendment proponents and antiterrorism against other rights, but for the record I do support progressive movements and equality as such. Hell I’m a registered democrat!

    And if you respect my right to PROTECT life at ALL COSTS, then I’ll respect your right to ABORT LIFE.

    Now where I can agree with you is that something needs to be done to not let the victims die in vain, but HOW we are to go about doing so two different worlds. An understatement.

    A comprehensive background check is fine. Most lawful gun owners, left or right, will agree. Hell I’ve got a better more common sense idea – require psychiatric screening and longer wait periods prior to finalizing purchase!

    But you have to realize that banning these rifles and 30 round magazines simply will not work. For one, these are not “assault rifles.” Real assault rifles are only used by military law enforcement and criminals who get it through black market. Their assault rifles are FULLY AUTOMATIC which means one pull of the trigger gives a series of shots fired. And they often have shorter barrels for concealment.

    Now you may think, what’s a military weapon doing in civilian hands?”
    Law abiding civilian rifles are only SEMI auto SELECT FIRE which means one pull of the trigger gives only ONE shot. And we have a minimum required 16 inch barrel length which is not concealable. These civilian rifles only look more dangerous like their military counterpart but they are no more dangerous than many hunting rifles that use the same caliber, same trigger system aside from a bolt action.
    SETTLED

    Now then “Why do we need 30 round magazines to defend ourselves?”
    Simple. I REFUSE TO BE OUTGUNNED!
    Why would I want to give the killer an advantage to outgun me when he already has the advantage of a surprise attack – when he is the one who initiated the violence with no warning?

    Lastly,I would like to remind you of the recent Georgia home invasion that happened earlier this month where a mom and her two 9yr old children were scared shitless for their lives. The mom hid with the kids in the attic and all she had was a six round .38 caliber that was locked up in a safe. The intruder didn’t just want to steal their money or property and leave. He took the extra effort to break through multiple locked doors. When he finally found them, the mom fired all six rounds and all but one round hit him in his chest and face. Despite that, the intruder still survived, got up, and drove away in his SUV. Had he came at her a second time, there would be no more bullets left to stop him. If there were to more multiple intruders, you can bet that she and her children would not live to tell who attacked them. And in the confusion freight of being attacked, shots will be missed. Even professionally trained military and law enforcement personnel will miss!

    I REST MY CASE

    • I wrote, “The parallels between irresponsible dog ownership and irresponsible gun ownership are too strong for anyone with half a brain to ignore.”

      Remember that woman in San Francisco that got killed by a dog?  It was her fault for living next to a dangerous dog.  Talk about “personal responsibility”.

      http://www.sfgate.com/news/article/Mauling-Death-Victim-s-Fault-Lawyers-Say-2957615.php

      Can you post a news link for your Georgia story?  Reading your account caused my BS detector to go off.

      You say,  “I REFUSE TO BE OUTGUNNED!”  I’m sure you won’t.  Just make sure you know exactly what you’re shooting at when you pull the trigger.

  4. We should demand proof of US Citizenship for guns and ammo purchases.  Do we really want aliens, illegal or otherwise, buying guns and ammo?

  5. randall, fundamental constitutional rights do not require insurance in order to exercise.  The idea that an insurance cash payout would be a good way to solve this problem is also rather disgusting.

  6. @ randall

    Maybe it’s me, but I won’t go driving, because I’ve heard too many stories about idiots with cars, and they let any idiot have a car

    Maybe it’s me, but I won’t have a drink, because I’ve heard too many stories about idiots with too much to drink, and they let any idiot have a drink

    Maybe it’s me, but I won’t get a dog, because I’ve heard too many stories about idiots with dogs, and they let any idiot have a dog

    Your arguments are beyond ridiculous, and pure nonsense.

    • Driving is a right not a privilege.  If too many idiots are allowed to drive, that’s a failure of government.  I don’t care about your drinking and dog, unless you drive drunk, beat your wife, your dog attacks someone or craps on my lawn.  Fact is that people drive drunk, beat their wives in drunken fits and allow dangerous dogs to attack and sometimes kill little children.  The parallels between irresponsible dog ownership and irresponsible gun ownership are too strong for anyone with half a brain to ignore.

      The evidence is that firearms are dangerous, and people like you don’t make me feel like they shouldn’t be better regulated.

      Speaking of Constitutional rights, how come most Second Amendment proponents don’t feel the same affinity toward the other amendments in the Bill of Righs, especially when it comes to terrorism?  I would rather keep guns away from terrorists, you would would rather have your other freedoms curtailed.

  7. @ S Randall

    What amuses me is that anti gun supporters presume to know exactly how every life and death situation will play out and claim that ten bullets is more than sufficient for home defense. It just tells me how out of touch they are with reality. Now you’ve read about my compromise and willingness to agree on comprehensive background checks, closing the gun show loopholes, psych evaluations, and longer waiting periods. The question is if we are to reach an agreement, then what are you willing to compromise? 

    Here’s the link to the GA Home Invasion.

    http://www.cnn.com/2013/01/10/us/home-invasion-gun-rights/index.html

    • He’s another account of the story.

      http://www.gadailynews.com/news/147692-loganville-woman-hiding-with-kids-shoots-intruder-paul-slater.html

      This is from your story link:

      “It’s a good thing she wasn’t facing more attackers. Otherwise she would have been in trouble and she would have run out of ammunition,” said Erich Pratt, director of communications for the Gun Owners of America.
      “She shot him five times and he still didn’t drop. This is going to endanger people’s safety.”

      The is from the above link:

      The woman grabbed a revolver fled into a crawlspace with her children.

      When the man opened the crawlspace door, she fired six shots with her .38 revolver, hitting the man several times.

      “She comes out of the crawlspace and she’s standing over the perpetrator, who she says is crying, telling her to stop shooting,” said Walton County Sheriff Joe Chapman.

      I’m inclined to believe the woman was justified in shooting the man.  If the man had died, it would have been justified.  I’m also inclined to believe that the man was only after things to steal, and that he would have fled if he’d know that someone was home.