Judge upholds San Jose's ordinance requiring gun owners to have liability insurance

Zach Fuentes Image
Tuesday, July 18, 2023
Judge upholds gun liability insurance requirement in San Jose
A California Judge on Thursday upheld San Jose's first-of-its-kind ordinance requiring gun owners to have liability insurance.

SAN JOSE, Calif. (KGO) -- The City of San Jose is calling it a victory in the fight against gun violence a judge upholding the city's Gun Harm Reduction Ordinance.

In 2022, the city of San Jose passed the first-of-its-kind ordinance requiring gun owners to have liability insurance.

The challenges against it began immediately with the city facing a lawsuit from groups like the National Association for Gun Rights.

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The proposed city ordinance would require all firearm owners in San Jose to carry liability insurance for their weapons.

Late last week a court dismissed the Second Amendment claims.

In effect since the start of 2023, gun owners have to have liability insurance and pay a fee of $25.

That fee would go to a nonprofit with the money to be used for firearm safety training, suicide prevention and more.

From the time the ordinance was announced it has faced backlash.

In January 2022, Harmeet K. Dhillon who represented the National Association for Gun Rights spoke at a press conference held to announce the lawsuit:

"It's going to be the law-abiding citizens who actually deter crime by having weapons in their homes who are going to be the ones who bear the burden of this unconstitutional ordinance," Dhillon said last year.

Along with the National Association for Gun Rights, plaintiffs also included the Howard Jarvis Taxpayers Association.

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Attorney Tamarah Prevost, a partner with Bay Area firm Cotchett, Pitre and McCarthy, took on the city's case pro bono.

"We felt very confident that the ordinance was constitutional," Prevost said. "The city did a lot of work on the front end to really craft something that it believed would be upheld, because the city is not taking guns away from people. It isn't banning certain guns."

The case was being fought as the U.S. Supreme Court came down with the Bruen Decision, one of the most significant cases regarding the Second Amendment.

The decision changed Second Amendment analysis in the courts and in turn, impacted the fight over the San Jose ordinance.

"We had to change gears and the judge had to change gears and apply a different legal standard that came down from the U.S. Supreme Court," Prevost said. "The ordinance had to be evaluated based on historic precedent, what the framers in the 1800s would have thought of at the time, and whether an ordinance has historic roots as it were."

With the change, Brady, a nonprofit that pushes for gun safety, was looked to by the court to weigh in.

The federal judge ruled Thursday that the insurance requirement for gun owners does not restrict gun firearm possession or use.

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In a statement sent to ABC7 the National Gun Rights Association for Gun Rights said:

"This ruling is what happens when judges rely more on anti-gun groups like Brady than the actual ruling authorities here - namely the U.S. Constitution and the U.S. Supreme Court. This ruling makes a mockery of the Supreme Court's Bruen standard with the claim that requiring an annual tax just to exercise a Second Amendment right somehow doesn't actually violate that right."

The statement goes on to say:

"No one would argue that having to pay $25 a year to petition your government or speak your mind wouldn't violate those rights - and yet that is exactly what this court has claimed when it comes to the right to keep and bear arms. This is a truly astounding example of bad-faith judicial acrobatics."

The $25 fee that was also part of the ordinance still hasn't been completely worked out by the city. As a result, the court said the fee is not ready for judicial review yet allowing the plaintiffs time to file an amended complaint.

The Howard Jarvis Taxpayers Association's, chief counsel Timothy A. Bittle sent ABC7 this statement:

"The ruling last week by the federal District Court on the City's latest motion to dismiss our Consolidated Amended Complaint in the San Jose gun fee case is nothing new. This is the third time the City has moved for dismissal and the third time its motion has been granted, but with leave for plaintiffs to file an amended complaint.

This revolving door of amended complaints and motions to dismiss is due to the City's long delay in implementing the gun fee ordinance. The ordinance requires gun owners to annually pay a fee of an unspecified amount to a nonprofit organization that the City will designate. However, the City has yet to fix the final amount of the fee, set a date for payment of the fee to commence, or identify a nonprofit organization to collect the fee.

The City has argued in its motions to dismiss that, until these steps are taken, plaintiffs' legal challenge is premature. The Court has repeatedly granted the City's motion, setting a date by which the City is "expected" to take the necessary steps, followed by a specific deadline for plaintiffs to file an amended complaint. When the City fails to take the necessary steps by the expected date, plaintiffs ask the City to stipulate to an extension of time for the filing of their amended complaint. The City refuses. We file an amended complaint. The City files a motion to dismiss, and round and round we go.

Fortunately, in again granting us leave to amend this time, the Judge did not impose a date certain for us to file our amended complaint, but rather gave us an open-ended deadline of 14 days after the City reports that the necessary actions have been taken."

While it's still not entirely clear yet whether appeals or amended complaints will be made by the plaintiffs, Prevost says she and the City of San Jose are ready to continue fighting.

"We are going to fight for the constitutionality of this law until the very end," she said. "It may go up to the U.S. Supreme Court, we're prepared for that."

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