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US Judge Declines to Block San Jose Gun Liability Ordinance (2)

Aug. 4, 2022, 3:34 PMUpdated: Aug. 4, 2022, 5:52 PM

A federal judge has refused to block a San Jose, Calif., “harm reduction ordinance” that requires firearms owners to pay an annual fee and to carry liability insurance to cover unintentional deaths, injuries, or property damage.

The ruling, by Judge Beth Labson Freeman at the US District Court for the Northern District of California, came ahead of a hearing Thursday on the city’s motion to dismiss the first of three lawsuits challenging the first-in-the-nation law. The judge said she was likely to consolidate the three lawsuits and later issue a single ruling.

The lawsuits claim the ordinance violates the Second Amendment, is a special tax requiring a citizen’s vote, and implicates the First Amendment because fees are directed to an as-yet named nonprofit that will spend the money on programs to mitigate gun risk.

“I’m not exactly sure what I’m going to do here. I actually think I might grant the motion to dismiss in regard to insurance and deny the motion to dismiss in regard to the fee,” Freeman said. The judge said she was concerned that the nonprofit designated to receive the collected fees did not yet exist and that it might ultimately be “the city in nonprofit clothing.”

The National Association of Gun Rights Inc. alleges First and Second Amendment and California Constitution violations under the ordinance. The city on July 1 suspended its implementation pending legal clarification, what counsel for the gun group argued was a light switch that could be turned on at any time.

The hearing follows a landmark 6-3 Supreme Court ruling that struck down a New York law limiting who could carry a handgun in public. The high court ruling marked the first time the court has said the Second Amendment protects gun rights outside the home. New York was one of at least six states—along with California, Massachusetts, New Jersey, Maryland, and Hawaii—with laws that prevented most people from legally carrying a handgun.

‘A Mandatory Donation’

San Jose framed the law as public safety and an economic issue with the city annually spending $39.7 million, or approximately $151 per firearm-owning household, to respond to gun violence.

Much of the argument focused on the as-yet-unset fee to an as-yet unidentified or designated nonprofit. “This is a mandatory donation,” said Michael A. Columbo with Dhillon Law Group Inc. in San Francisco representing the gun group.

Freeman said she can’t evaluate the group’s argument until she sees what the fee is. “That’s not something you’re going to lean in discovery. It doesn’t exist yet. The ground hasn’t stopped shaking,” she said.

“I’m not ruling against you,” Freeman said to Columbo. “We’re just waiting until the city does its job, and if they never enact a fee amount, a penalty amount, and designate a nonprofit, then you win. So that’s not a bad outcome.”

The city’s motion to dismiss Howard Jarvis Taxpayers Association’s lawsuit will be heard Aug. 18. A third lawsuit a citizen filed against the city is scheduled for an Aug. 25 hearing on San Jose’s motion to dismiss.

California lawmakers are considering another national first in legislation, bill S.B. 505, which would establish statewide a gun owner liability insurance mandate. Owners under the bill, which is pending in the Assembly Appropriations Committee, would be held civilly liable for property damage, injury, or death resulting from the use of their firearms.

Everytown for Gun Safety advocates for gun control measures. Michael Bloomberg is the majority owner of Bloomberg Government’s parent company and serves as a member of Everytown’s advisory board.

Dhillon Law Group represents the National Association for Gun Rights. Cotchett Pitre & McCarthy LLP, Burlingame, Calif., represents the city.

The case is Nat’l Ass’n for Gun Rights v. City of San Jose, N.D. Cal., No. 5:22-cv-00501, hearing 8/4/22.

(Updates with details from hearing on motion to dismiss.)

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com