Attempt to block San José gun fee ordinance rejected by federal judge

SAN JOSÉ, Calif. (CN) — San José put a nascent ordinance requiring gun owners to pay a fee and carry liability insurance on hold Thursday, hours after a federal judge found a legal challenge was brought before the specifics of the ordinance have even been finalized — and therefore premature.

The San José City Council passed the ordinance this year partly in response to a 2021 mass shooting, when an employee of the regional transportation agency opened fire on fellow employees and killed nine people before turning the gun on himself. 

The ordinance requires gun owners to pay an annual “Gun Harm Reduction Fee” — the amount of the fee has not yet been determined — to a nonprofit chosen by the city manager to provide programs designed to reduce the risk of harm from guns and offer mental health support and suicide prevention. Anyone who does not comply could have their firearm impounded following a due process hearing.

Plaintiffs National Association for Gun Rights and Mark Sikes waited less than 24 hours before suing the capital of the Silicon Valley after it became the first U.S. city to require gun owners to carry liability insurance. Their federal lawsuit claims the ordinance creates a tax voters did not approve and violates their Second Amendment rights.

The association — which describes itself as a nonprofit grassroots organization dedicated to defending the Second Amendment right to keep and bear arms — and Sikes, a San José resident, claim the ordinance also violates their First Amendment rights because money paid for insurance would go to anti-gun organizations they do not choose to support. 

According to the complaint, about 50,000 people own guns in San José, all of whom would be required to pay insurance and some fees to maintain their gun ownership rights under the ordinance. The plaintiffs say the ordinance forces gun owners to pay for crimes committed by people using unregistered guns.

They asked for a preliminary injunction to stop the ordinance from being enforced starting Aug. 8, which was subsequently delayed to December this year. But after the U.S. Supreme Court ruled on concealed carry rights in New York State Rifle & Pistol Ass’n., Inc. v. Bruen in June, U.S. District Judge Beth Labson Freeman asked the parties to file supplemental briefs addressing Bruen and the legal standard for evaluating Second Amendment issues.

Under Bruen, government entities must justify any regulation by demonstrating that it is consistent with a “historical tradition of firearm regulation” and cannot simply claim the regulation promotes an important interest.

On Wednesday, Freeman denied the preliminary injunction request, finding the plaintiffs are unlikely to prove the city's regulation is inconsistent with other historical gun regulations. She also found the challenge unripe for review because the City Council has not yet decided what the fee will be or which nonprofit the money will go.

She rejected the gun owners' claims the ordinance's insurance and fee provisions are preempted by state law. As for their claim the fee violates their First Amendment rights because it's a tax that wasn't approved by voters, Freeman found that claim would likely fail because it's not a tax under state law since the money doesn't go into the city's coffers.

The city and gun owners appeared before Freeman on Thursday to argue the city's motion to dismiss. Freeman took the matter under submission.

Mayor Sam Liccardo first proposed similar legislation after a mass shooting at the Gilroy Garlic Festival in 2019. He has said gun owners should bear the burden of gun education and victim services. According to Liccardo, San José spends nearly $8 million a year responding to gun-related incidents.

After the Supreme Court's ruling in Bruen, Liccardo released a statement saying it will “create nightmares" for police departments and cities trying to control "ubiquitous gun possession.”

“The imperative grows for sensible gun regulation that reduces the risk of gun harm, such as through San José’s approach: requiring gun owners to obtain insurance, and reinvesting gun fees in mental health, domestic violence prevention, and other services — particularly for households where a gun is owned,” Liccardo said.

The city's attorney Tamarah Prevost called Freeman's ruling “a preliminary positive development, in that it prevents one gun rights group from immediately blocking San José’s groundbreaking law.”

Liccardo lauded the decision as an “important step forward for sensible gun regulation.” 

Michael Columbo of Dhillon Law Group said they are disappointed the ordinance was not paused but glad to hear the city announce it is shelving the ordinance for now.  He hopes Freeman will consolidate the case with two others and looks forward to an order on the city's motion to dismiss. 

“In the meantime, the ordinance is not in effect and, despite studying the legal landscape intensely before enacting the ordinance, the city manager is apparently now stumped on how to actually implement it in a lawful way,” Columbo said. 

Follow @nhanson_reports

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