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Elections
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SJ Isn’t Enforcing Its Gun Insurance Requirement (The Reload; 3/2/2023)
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San Jose Isn’t Enforcing Its Gun Insurance Requirement
by Stephen Gutowski | March 2, 2023
Officials in one California city have not attempted to enforce their novel requirement that gun owners buy specialized insurance.
San Jose has yet to issue a single citation to any of its 52,000 gun owners for failing to buy insurance since the ordinance went into effect at the beginning of the year, according to a report from San Jose Inside. The city has defaulted to an “honor system” for the insurance mandate. And officials have no idea whether anyone has actually bought the insurance they’ve mandated.
The lack of enforcement comes after city officials broadened which kinds of insurance policies meet the requirement, from the non-existent “gun liability” insurance policy to common homeowners and renters policies, which don’t cover most forms of firearm accidents or any intentional criminal acts. On top of that, the city has effectively thrown in the towel on trying to track who is complying with the requirement.
“Staff has published an attestation form that San José gun owners will use to certify that that (SIC) they have insurance as required by the ordinance (or, alternatively, indicate that they qualify for one of the three exemptions established in the ordinance),” Sarah Zarate, director of the Office of Administration, Policy and Intergovernmental Relations, said in a memo from October. “Gun owners are not required to submit this form to the City—rather, they should complete it and keep it with their guns at all times to demonstrate compliance with the ordinance.”
However, the memo also warns anyone caught with a gun but no papers could be subject to a fine.
The city’s gun ownership fee has yet to go into effect either. And it said neither the fee nor the non-profit anti-gun-violence initiative it’s meant to fund would likely be created for several more months.
San Jose’s disinterest in attempting to enforce the novel gun ordinance that officials, such as former mayor and leading proponent Sam Liccardo (D.), previously touted as “a constitutionally compliant path to mitigate the unnecessary suffering from gun harm in our community” may hint at reduced confidence over its legality as the city faces down multiple lawsuits from gun-rights and taxpayer groups alike. The city’s seeming decision to abandon the ordinance in practice may make it harder to challenge in court, where plaintiffs are generally required to show how a law has harmed them before questioning its merits. Of course, refusing to enforce a rule as a way to avoid legal scrutiny is not guaranteed to work and is self-defeating for proponents of the restrictions.
The turnaround on enforcement comes despite Liccardo’s repeated assurances that the first-of-its-kind ordinance will pass constitutional muster and save lives.
“Tonight, San Jose became the first city in the United States to enact an ordinance to require gun owners to purchase liability insurance, and to invest funds generated from fees paid by gun owners into evidence-based initiatives to reduce gun violence and gun harm,” Mayor Sam Liccardo said after the vote.
But opponents of the fee requirement and insurance mandate have argued it violates the federal and state constitutions in multiple ways. The Firearms Policy Coalition, which several other gun groups joined in challenging the ordinance, said it violates the Second Amendment.
“Governments cannot run roughshod over the constitutional rights of their People simply because they do not care for the rights they choose to exercise,” Adam Kraut, who led the group’s litigation at the time, said in a statement. “San Jose’s gun-owner insurance requirement is a demonstrable attack on a right exercised that lies outside of the policy preferences of its Government.”
On the other hand, the Howard Jarvis Taxpayers Association, the Silicon Valley Public Accountability Foundation, and the Silicon Valley Taxpayers Association said the fee payments violate gun owners’ First Amendment rights.
“By requiring San Jose gun owners to pay an Annual Gun Harm Reduction Fee to private non-profit organization that the City Manager will designate, the Ordinance forces San Jose gun owners to associate with or support that private group and to fund their message, in violation of the gun owners’ rights of free speech and association under the United States and California constitutions,” their complaint reads.
Liccardo was unmoved by the arguments, though.
“No good deed goes unlitigated,” the former mayor’s office told The Reload last year. “Fees and taxes on guns and ammunition have existed since 1919 and have repeatedly been upheld.”
One federal court has already sided with San Jose on the insurance mandate, denying a request for a temporary restraining order in one of the first cases against the ordinance.
“Having defined the conduct at issue as ‘owning or possessing a firearm without firearm liability insurance,’ the Court finds that Plaintiffs are likely to prevail on a finding that this conduct is covered by the plain text of the Second Amendment. And, as Bruen teaches, the Constitution thus ‘presumptively protects that conduct,'” Judge Beth Labson Freeman, an Obama appointee, wrote in her August 2022 opinion. “However, the Court finds that the mid-19th century surety statutes, cited by the City and discussed at length in Bruen, bear striking analogical resemblances to the Insurance Requirement.”
Judge Freeman admitted the surety laws she cited were not perfect fits for the mandate but said they were close enough to find the insurance requirement constitutional.
“Although the Insurance Regulation is not a ‘dead ringer’ for 19th-century surety laws, the other similarities between the two laws would render the Ordinance’ analogous enough to pass constitutional muster,'” she wrote. “The Court finds that the City has presented a sufficiently ‘relevantly similar’ historical regulation to defeat Plaintiffs’ likelihood of success on Bruen’s historical tradition prong.”
Several cases from gun-rights and taxpayer groups are still pending. And other federal judges have taken a far less broad view of historical analogs while striking down numerous gun laws with longer pedigrees than San Jose’s ordinance.
Click here to read the article at the web site of the Reload.