San Jose Gun Insurance Edict Not Ripe For Block, Judge Says
A California federal judge indicated Thursday she'll likely deny a gun rights group's bid to block the city of San Jose's new ordinance requiring gun owners to purchase insurance and pay an annual fee, saying the group's constitutional claims aren't ripe yet because the law hasn't taken effect.
During a hearing held via Zoom, U.S. District Judge Beth Labson Freeman told Michael A. Columbo of Dhillon Law Group Inc., who represents the National Association for Gun Rights, that its "entire preliminary injunction isn't ripe yet," particularly since the city manager said San Jose has delayed the implementation of the new rules until January at the earliest.
"I don't actually see any irreparable harm, because that's postponed for many months," Judge Freeman said.
The judge's comments came during a hearing on the NAGR's motion for preliminary injunction seeking to block a new law that the city council passed in January requiring gun owners to purchase insurance and pay an annual "gun harm reduction fee," which is estimated to be $25.
According to the ordinance, which the city said is the first of its kind to be passed, gun-owning residents must own a homeowner's, renter's or gun liability insurance policy that specifically covers losses from negligent or accidental firearm use. Additionally, gun owners are required to pay an annual gun harm reduction fee, which will go to a designated nonprofit aimed at providing firearm safety education, mental health services, or suicide or domestic violence prevention.
The gun rights group sued in California federal court hours after the city council voted in favor of the new ordinance. It asked the court to block the law because its requirements amount to illegal taxes, it will unfairly burden gun owners, and it violates California's Constitution and San Jose's charter, in addition to the First, Second, Fifth and 14th Amendments.
Last month, Judge Freeman asked the parties to submit additional briefing on the injunction in light of the U.S. Supreme Court's 6-3 decision on June 23 in New York State Rifle & Pistol Assn. v. Bruen, which held that New York's restrictive licensing regime for firearm carry permits is unconstitutional.
During a hearing on the injunction bid Thursday, Columbo argued that the city has acknowledged that the ordinance burdens gunowners' Second Amendment rights, and the city tried to justify the new rules by making random historical comparisons and citing irrelevant situations that require insurance, like insurance required of dog owners.
Columbo argued that Bruen fundamentally changed the framework that courts must use to evaluate gun regulation, and under that new standard, the ordinance is clearly unconstitutional because its requirements are burdensome and inconsistent with the nation's historical tradition of firearm regulation.
However, Judge Freeman noted that the city ordinance doesn't threaten to impound guns by gun owners who don't have insurance, and therefore she's skeptical that the Second Amendment could even be implicated by the new requirements.
"With impoundment not on the table ... I think there is a serious question as to whether the Second Amendment is even implemented here, because this ordinance doesn't regulate who can own a gun or where they can carry the gun," she said. "If there is ever a challenge here it would be an implied ... challenge."
Judge Freeman added that the city of San Jose's supplemental briefings, which argue that Bruen doesn't apply to the ordinance, provide evidence that "our nation supports the insurance and the fee" requirements and that case law indicates that facially a fee would not deny citizens a right to keep and possess guns unless those fees were exorbitant.
But the judge added that she would need more information on the exorbitant fee issue, and possibly an evidentiary hearing.
"I don't think this is a tax," she added.
Judge Freeman additionally pointed out that the Supreme Court acknowledged in Bruen that certain requirements and impediments to owning a gun — like gun licenses, concealed carry licenses and mandatory background checks — are valid.
And she noted that it's possible that "garden-variety homeowners insurance and renters insurance" offers the insurance coverage that the new city law requires.
However, Judge Freeman also told San Jose's counsel, Tamarah P. Prevost of Cotchett Pitre & McCarthy LLP, that the gun rights group's counsel "have a strong point" on their arguments that the city can't force gun owners to donate to particular nonprofits, even if she finds that the issue isn't ripe yet for a ruling.
"I don't want to get ahead of this. I don't want to speculate," she said, adding later, "even if I find it's not ripe today, I don't want the city to walk away thinking this is a win. I think there are a lot of problems here."
Prevost said she agreed with many of the judge's comments on the prematurity of the injunction bid, as well as her interpretation of Bruen. Prevost also noted that the ordinance specifically exempts any portion of the fee from going to lobbying of any kind, and roughly 200 people in the city's borders die annually from gunshot wounds. Dozens are suicides and accidental gunshots, and the fee could go to suicide prevention groups, she said. (To read the entire article, please click HERE)