Judge Boots Challenge To San Jose Gun Insurance Edict


A California federal court tossed a gun rights group's suit challenging the city of San Jose's ordinance requiring gun owners to purchase insurance and pay an annual fee, finding that the requirements do not violate Second Amendment protections.

A California federal court found that a San Jose city ordinance requiring gun owners to be insured and pay a yearly fee does not violate the Second Amendment.

Though Thursday's ruling dismissed most claims without leave to amend, U.S. District Judge Beth Labson Freeman did give the National Association for Gun Rights Inc. and the Howard Jarvis Taxpayers Association another chance to argue that the fee requirement violates gun owners' rights of speech and association.

"The plain text of the Second Amendment does not cover the course of conduct at issue here: 'choosing to keep and bear arms at home without the burden of insuring liability for firearm-related accidents,'" Judge Freeman said.

The City Council enacted an ordinance in January 2022, requiring gun owners to obtain a homeowners, renters or gun liability insurance policy that covers losses from negligent or accidental firearm use. The insurance requirement went into effect Jan. 1, 2023, according to court filings.

The ordinance also requires gun owners to pay an annual "gun harm reduction fee," which will go to a designated nonprofit selected by the city manager. The ordinance did not set the fee amount, but it is estimated to be $25 per gun-owning household.

The National Association for Gun Rights sued the city the same day the ordinance was enacted, urging the court to block the requirements from taking effect and declare that the law violates California's Constitution and San Jose's charter, in addition to the First, Second, Fifth and 14th amendments.

The HJTA, along with the Silicon Valley Taxpayers Association Inc. and Silicon Valley Public Accountability Foundation — whose members include San Jose gun owners who would be subject to the annual fee — also filed suit against the city in March 2022, according to court filings.

The court consolidated the cases in September 2022.

Judge Freeman rejected the National Association for Gun Rights' claim Thursday that the ordinance's insurance requirement violates the Second Amendment, saying the purchase of insurance does not restrict the public from possessing or using a firearm. Noncompliance with the ordinance can result only in an administrative citation or fine, the judge said, adding that the city cannot seize a person's gun.

Per the U.S. Supreme Court's June 2022 ruling in New York State Rifle & Pistol Association Inc. v. Bruen , Judge Freeman concluded that the fee provision is also constitutional. In Bruen, the high court held that regulations may include fee payments so long as they are not "exorbitant" so as to "deny ordinary citizens their right to public carry."

"The $25 amount is by no means 'exorbitant,'" the judge said. "And the court notes that there is a financial hardship exemption under which individual for whom compliance would create financial hardship are exempted from the ordinance."

Judge Freeman also tossed the HJTA's claim that the fee provision violates the unconstitutional conditions doctrine, saying the requirement does not condition the exercise of Second Amendment rights because there are no means by which gun owners will not be deprived of their firearms.

Additionally, the judge dismissed the HJTA's claims that the fee constitutes a tax that has not been submitted to the electorate for a vote and that the council unconstitutionally delegated its municipal power to collect taxes.

Because the fee is not "payable to, or for the benefit of, a local government," it is not a "tax" under a state appeals court's 2013 ruling in Schmeer v. County of Los Angeles , and both claims fail, Judge Freeman said.

Judge Freeman did find, however, that two claims were not yet ripe for review.

The National Association for Gun Rights and the HJTA alleged that paying a fee to a private nonprofit violates gun owners' First Amendment rights because they will be forced to associate with and support that private group and fund its ideology. The HJTA separately claimed that the fee provision will violate gun owners' rights under the California Constitution.

"Because the city manager has not promulgated regulations identifying the nonprofit's activities, the court cannot determine if the fee would fund any expressive activities and thereby remains unfit for judicial determination," Judge Freeman said.

Representatives of the parties did not immediately respond to requests for comment Friday.

The case is National Association for Gun Rights Inc. et al. v. City of San Jose et al., case number 5:22-cv-00501, in the U.S. District Court for the Northern District of California.

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