Summary: Palm Springs adopted a gun control ordinance Wednesday night that speaks less to solving a real problem than it does to having the city go on record that it Deplores What Happened at the Pulse Nightclub in Orlando. The new Palm Springs gun-control ordinance, which is now awaiting second reading, is a classic example of legislation by anecdote, designed not so much to solve a real problem as much as it is to Make a Statement. Yet all the ordinance does is to balkanize the law in the state with 542 County and city jurisdictions. We need one uniform statewide set of gun safety legislation California, one uniform statewide set of gun safety legislation that does not unduly burden the exercise of constitutionally protected Second Amendment freedoms. The legislature should set to work at once on a package that will occupy the entire field of gun safety legislation, preempting local cities and counties. Unchecked, unsafe gun use is a social evil. It will not be addressed by bien pensant city councils looking to pick fights with the NRA.
To the east, in Cathedral City, the usual kitty litter box full of brain-dead Trump Tea Partisans and dead and Kathleen DeRosa loyalists is gearing up to oppose Cathedral City’s proposed charter, which is on the ballot for voter approval this November. Residents should not be swayed by either the Tea Partisans or the dead-end DeRosa loyalists. A city charter is long overdue, and while this one has some flaws which will need fixing, it’s a good start.
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It’s virtually a truism in the legal profession that “hard cases make bad law.” That’s especially the case where a legislative body decides to make law by anecdote, proposing legislation in response to some dreadful event on the other side of the country or of the world.
That’s especially the case with any sort of gun safety/gun control legislation. The city of Palm Springs finds itself succumbing to the temptation to go down the rabbit hole of legislating by anecdote, bringing forward a slate of proposed ordinances restricting the manner in which guns are kept, largely in response to the horrific mass shooting at the Pulse nightclub in Orlando, Florida.
The legislation, somewhat like that which was challenged in District of Columbia v. Heller and McDonald v. City of Chicago, is intended to impose a significant restrictions upon the ownership and possession of any form of firearm in the City of Palm Springs. The proposed ordinance would require 1) that a lost or stolen gun be reported to the authorities within 48 hours, with the potential $1000/day fine for failure to report; 2) that anyone storing guns or ammunition in their car will be required to obtain and have an effect a concealed carry permit, and 3) that guns stored in a residence would have to have a trigger lock or be kept in what amounts to a gun safe.
Naturally, the NRA has promised to initiate litigation fairly quickly against the city of Palm Springs if this ordinance passes, which it is expected to do unanimously at tonight’s counsel meeting. And of course, it’s easy to love the NRA. Their leadership shows all the signs of diagnosable psychopathy, and their reflexive opposition to any sort of gun safety measure at all represents not only the worst possible optics, but also an extended middle finger to an American public that is rightfully shocked by the extent of mass gun violence in this country.
Certainly, right thinking Americans were appalled by the mass shootings at Sandy Hook and repelled by the mass shooting at the Pulse nightclub in Orlando. Indeed, what happened at Pulse comes across to the metaphorical queer nation as a singular and disturbing event, without parallel since the June, 1973 arson fire at the UpStairs Lounge in New Orleans’ French Quarter that claimed the lives of 32 patrons and severely injured 15 others. The mass shooting at the Pulse nightclub brought back all those memories, and shocked a generation of queerfolk that had begun to exhale, as it were, following the Supreme Court’s historic decision in Obergefell v. Hodges, which had extended the right to marry to queerfolk nationwide.
Not surprisingly, a call went out that “something must be done,” “there oughtta be a law,” something “must change.” Predictably, states such as California, New York, and New Jersey all rushed to propose largely symbolic, “feel good” legislation by anecdote intended to convey official Legislative Disapproval of What Had Happened, and to make sure that the legislatures of the states in question were firmly on record Against It Happening Again. Unfortunately, no one bothered to perform due diligence to make sure this was not a solution in search of a largely nonexistent problem. In all three states, legislators eagerly went down the rabbit hole, and in Palm Springs, the city Council has eagerly followed them there.
After such a lengthy prolegomenon, I have little choice but to agree, with great unwillingness and with weeping and gnashing of teeth, that in this case, the NRA is telling us some truths we need to attend on. The NRA itself is the worst possible messenger for a call to restraint; its unrestrained conspiracy theories and its unabashed embrace of Donald Trump make it absolutely the worst possible messenger for such a message of legislative restraint. Nonetheless, we should sit back, take a metaphorical deep breath, and ask ourselves just exactly what Palm Springs proposes to accomplish with its ordinance, knowing as we do that it is but one of 10 CVAG cities, and that it may find itself very much alone on this issue.
The first problem with the Palm Springs ordinance is that it flies in the face of both McDonald and Heller, which established that the Second Amendment is one of those preferred rights that is enforceable against the states through the 14th Amendment. Thus, a state or municipality which adopts ordinances that are intended to make the ownership of firearms difficult if not impossible does so at the acknowledged risk of falling afoul of the Supreme Court’s teaching in McDonald and Heller. When a preferred freedom in the Bill of Rights is implicated, a legislature must demonstrate not only that there is a compelling government interest that the legislation in question seeks to vindicate, but that there is in fact no less compelling means to vindicate it, that there are no less drastic means to vindicate the restriction at issue, and that the legislation is narrowly tailored to accomplish the compelling governmental interest.
In this case, the ordinance appears to be nothing more than another case of what may be described on charitably as nanny state legislation by anecdote. Palm Springs been remarkably free of the kind of gun violence that the proposed ordinance is ostensibly intended to address. In short, the proposed ordinance is less about solving an actual municipal problem than it is about making a statement that the city of Palm Springs, that Progressive Citadel in Riverside County, Officially Deplores What Happened at the Pulse Nightclub in Orlando and Desires to Go on Record That It Disapproves of Such Violence and Intends to Stamp It out by Any Means Necessary. In short, it’s less about solving an actual problem that it is about making a normative statement.
Worse, there are 484 incorporated cities in California, together with 58 counties. That produces a figure of 542 separate jurisdictions all of which might be tempted to pass their own “gun control” legislation, turning the state into a patchwork of gun legislation, and leading California residents to surmise as to what the statutory schema will be respect to firearms if they drive 10 blocks down the street and into a neighboring jurisdiction. This kind of patchwork approach does violence to the certainties the law is intended to promote.
Rather than having 542 separate bodies of legislation concerning firearms, the state needs to take a firm hand on the situation. Let the legislature do its duty and develop a comprehensive, uniform body of preemptive state legislation that will occupy the field in this area to the entire exclusion of counties and cities, including Palm Springs. No California County or city should be in the business of passing any form of gun control or gun safety legislation. That is emphatically the province of the Legislature, and the Legislature needs to get off its duff, perform some due diligence, and at the very least, send a clear message to cities and counties that firearms legislation is not for cities or counties.
The city of Palm Springs should have done the right thing and either stayed this ordinance pending further action by the Legislature, or it should have rejected the ordinance altogether, which would also have had the effect of throwing it back into Sacramento’s bailiwick. At all events, Palm Springs should not have allowed itself to become another Morton Grove, Illinois or another Chicago, or another Washington City, where attempts to ban the possession of handguns fell afoul of the Second Amendment. What Palm Springs has adopted is arguably beyond its powers even as a charter city, what the legal profession might describe as ultra vires. After all, there is a right way and a wrong way to do things.
Unfortunately, Palm Springs has opted to go about things the wrong way. There is no doubt that the Council majority was as much motivated by a desire to “fling down the gauntlet” to the NRA as by any legitimate desire to address a problem whose existence had been vouchsafed by an empirical data set. Sad to have to say it, in this case, the NRA, as loathsome and objectionable as they are, may very well possess the constitutional high ground. And that is a concept that, as George Orwell put it in “Politics and the English Language,” frightens me worse than bombs. Nonetheless, if it takes the NRA suing the city of Palm Springs on the authority of Heller and McDonald, then so be it.
What we may hope, therefore, is that the legislature takes up a package of common sense, non-burdensome, Second Amendment-compliant preemption legislation in the next session. We don’t need, and can’t afford, 542 conflicting sets of compliance mandates. I should not be in danger, should I relocate 10 blocks from Cathedral city into Palm Springs, of becoming a gun criminal because my method of storing my weaponry doesn’t meet with the approval of the bien pensant city fathers of Palm Springs.
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While Palm Springs is busy going down a rabbit hole of unnecessary and foolish legislation by anecdote, Cathedral City is in the process of something rather more consequential. After more than 30 years as a so-called General Law City, Cathedral City has before at this November an opportunity to adopt an autonomous city charter.
A city charter in Cathedral City will give the municipality a far greater degree of autonomy than it currently enjoys under general California municipal corporation law. It will enable us to make important commitments to workers, enshrine our living wage and nondiscrimination policies in a way that protects them from legislative forays, and it will provide for rotating mayoralty. Indeed, a rotating mayoralty is one of the significant selling points of the charter. By rotating the mayoralty annually among councilmembers, no single mayor has the opportunity that Kathleen Joan DeRosa had to do the damage she did to Cathedral City during the 10 long winters that she was the elected mayor.
Indeed, having had to serve alongside Kathleen DeRosa for six of the 10 years that she was mayor, I can testify in detail to the significant damage and stagnation that occurred on her Leonid Brezhnev-like watch. Had DeRosa been limited to single nonconsecutive annual terms, her ability to do damage and her ability to stand in the way of needful projects might have been inhibited.
We might have a union destination resort in downtown Cathedral City, rather than acre upon acre of barren, empty, caliche lots where a thriving downtown used to be.
We might have a vibrant, world-class, showpiece renewable energy economy, but for the fact that DeRosa was a paid employee of Southern California Edison with a built-in conflict of interest.
We might even have an In-n-out Burger on East Palm Canyon Drive, to which locals could repair to enjoy animal style hamburgers without having to drive all over the Coachella Valley to satisfy their jones for one of California’s legendary burgers.
But DeRosa stood in the way of all of this.
We don’t have a resort because DeRosa put the interests of Palm Desert ahead of those of Cathedral City and did her best to squash it.
Edison’s interests, not those of Cathedral City, prevented our renewable energy economy from getting off the ground,
And we’re still jonesing for animal style burgers because DeRosa, quite simply, was a snob who didn’t want and In-N-Out Burger in downtown Cathedral city.
In short, Kathleen Joan DeRosa epitomized and personified all the arguments against a separately elected mayor and in favor of a rotating mayoralty in which the incumbent doesn’t have enough time to do significant damage.
Unfortunately, there are still dead-end DeRosa loyalists who pine for the do-nothing days of municipal stagnation on her watch. Many of them are Tea Partisan supporters of the Kremlin’s own candidate, the unspeakable Donald Trump. It is been this kitty litter box of brain-dead ultraconservatives who believe that government doesn’t work, and then they get elected and prove it, that has been leading the charge against the charter. Spearheaded by one Randy Winbigler, whose right-wing utterances in the letter to the editor page of our local Gannett publication (which is on track, predictably, to engage in the most unbelievable mental gymnastics imaginable to justify an endorsement of Donald Trump this November) make it reasonable to believe that the opposition to the charter is partisan, it is pernicious, and it is downright dangerous to the body politic in Cathedral City.
Add to that the opposition of city Council wannabe Sergio Espercueta, and it’s not hard to see where the opposition to the charter comes from. Espericueta himself, probably one of the least qualified, least knowledgeable, and least prepared Council candidates in the city’s recent history, has made opposition to the charter a centerpiece of his campaign. In doing so, he is certainly lost my vote, and, I expect, the vote of many other charter supporters throughout Cathedral City.
Cathedral City has been bedeviled throughout its history by a legion of naysayers, Winbigler and Espericueta among them, who have opposed everything that might have moved the city forward, enhanced its economy, or improved its quality of life.
These people can all be defined by the convenient acronym COVE: Citizens Opposed to Virtually Everything.
In 1999, they opposed measure J, the reauthorization of the city’s municipal services district, a move which forced the city to discontinue watering its parks for a time.
They opposed every revenue measure intended to make up the $3m shortfall caused by the demise of the municipal services district.
They opposed needful revenue measures to provide adequate funding for police and fire services.
They opposed efforts to kickstart our renewable energy economy.
They opposed (unsuccessfully) assessment districts in the Cathedral City Cove and in the Dream Homes to enable those neighborhoods to receive sewers and sewer hookups.
In short, the Citizens Opposed to Virtually Everything have much to answer for, and they had a friend in City Hall when Kathleen Joan DeRosa was mayor.
Fortunately, DeRosa is gone, but the COVE people still linger on, waiting to come out of the woodwork to bedevil us again.
They’ll tell you that government doesn’t work, then they’ll elect one of their own and prove it. We cannot afford to have such people at the head of our affairs. It will take the current Mayor and Council at least ten years to undo the damage and the stagnation that occurred on DeRosa’s watch. The charter, which DeRosa always opposed, is a good first step toward ridding Cathedral City of the blight her 10 winters in office engendered.
I am voting “YES” on measure HH, and I urge my fellow Cathedral City residents to do likewise.
Paul S. Marchand, Esq., is an attorney who lives and practices in Cathedral City, which has been his home for more than two decades. Between 2002 and 2010, he was a member of the city Council. Between 2001 and 2014, he served non-continuous terms on the Riverside County and California state Democratic central committees. The views set forth herein are his own, and should not be construed as legal advice. He's voting for Hillary Clinton and Tim Kaine because he's sane. Comments will be strictly moderated. Trump supporters and DeRosa loyalists, don't expect to see your comments here.
