San José, California, Mayor Sam Liccardo (D) first suggested gun liability insurance in August 2019 following a shooting at the Gilroy Garlic Festival. He reintroduced the legislation in May 2020 in response to the San José VTA light rail shooting, which left nine employees dead.
“When we think about the horrible mass shootings, I don’t pretend to know that we could have stopped it or not. But if in fact, we could have delivered some mental health services, there may have been a chance,” Liccardo said. “That’s the point of this [legislation].”
On January 25, the San José City Council approved Mayor Liccardo’s proposed ordinance. It will vote on the ordinance one last time on February 8. If approved, the ordinance would go into effect 180 days after and require residents to pay a “Gun Harm Reduction Fee” of $25, as well as obtain liability insurance.
What Is Required of California Gun Owners?
The ordinance stipulates that gun owners in San José must pay the $25 fee and acquire and maintain liability insurance. On a city-designated attestation form, they are required to state the insurance company issuing the policy with the number of the policy and sign the form under penalty of perjury. Gun owners must keep the attestation form with the firearm(s) at all times. Each person also must affix proof of payment of the annual fee to the attestation form.
I’m still not certain how we can require a specific type of insurance that does not exist.
Each gun owner is required to complete and sign a new attestation form in the event any of the information on the form changes. He or she must present the form when lawfully requested to do so by a peace officer who knows or has reason to believe that the person possesses a firearm(s).
Where Does the Annual Fee Go?
The city of San José estimated it would collect around $1.3 million per year from the annual fee. The city will reportedly send the funds to a designated nonprofit. The nonprofit will then distribute them to other organizations that would provide “services to residents of the city that own or possess a firearm in the city, members of their household, or to those with whom they have a close familial or intimate relationship.”
These “services” are said to include:
- Suicide prevention services or programs
- Violence reduction or gender-based violence services or programs
- Addiction intervention and substance abuse treatment
- Mental health services related to gun violence
- Firearms safety education or training
However, the nonprofit where the funds will be sent has not been created yet. This has justifiably generated some concern.
To Whom Does the Law Apply?
The ordinance will impact any person who resides in the city and owns or possesses a firearm(s). The San José Spotlight estimates that it will impact roughly 50,000-55,000 households.
Some individuals are exempt from the ordinance. These individuals include:
- Those designated as peace officers pursuant, including sworn peace officers, active reserve peace officers and retired peace officers
- Those who have a license to carry a concealed weapon
- Those for which compliance would create a financial hardship
What Kind of Insurance Does Ordinance Require?
The ordinance states that gun owners must “continuously maintain in full force and effect a homeowner’s, renter’s or gun liability insurance policy from an admitted insurer or insurer as defined by the California Insurance Code, specifically covering losses or damages resulting from any negligent or accidental use of the firearm, including but not limited to death, injury or property damage.”
Councilmembers Dev Davis and Maya Esparza expressed concern that only accidental firings outside of a household could potentially be covered. Those that involved negligence or criminal behavior may not.
“I spoke with two insurance agents, including my own, from different companies and neither of them said that negligent use is specifically covered in their policies,” said Councilmember Davis. “I’m still not certain how we can require a specific type of insurance that does not exist.”
How Will It Be Enforced? What Are the Consequences, and How Long Do Gun Owners Have to Comply?
The city hasn’t determined yet how it intends to collect the $25 fee.
“These kinds of fees are typically paid by a customer who is asking for, or at least wants, the service provided,” declared Councilmember Matt Mahan. “In my interaction with many, many constituents in District 10. That’s just not been the sentiment.”
Any person who owns a firearm must obtain liability insurance within 30 days of the ordinance going into effect.
Any violation will be punishable by an administrative citation in accordance with the procedures set forth in Chapter 1.15 (Administrative Citations) of Title 1. The amounts of the fines for violations imposed will be set forth in the schedule of fines established by resolution of the City Council. The city may also impound the firearm(s) of a person that is not in compliance, subject to a due process hearing.
California Insurance Attacks Gun Rights
If passed, San José will be the first U.S. city to require firearms owners to purchase gun liability insurance. Those who opposed it in person or by email argued that it would violate the U.S. Constitution and infringe on Second Amendment rights. Additionally, the ordinance would fail to solve any gun violence problems and punish gun owners who aren’t committing crimes.
“I have a right to keep and bear arms as I see fit to protect myself and property,” one San José resident stated. “A law-abiding citizen should not have to pay for this right just like they don’t have to pay or should not pay for the First Amendment right to speak, assemble and worship freely.”
There are individuals and groups pursuing lawsuits against the city in response to the anticipated ordinance. Mayor Liccardo expects the litigation and has the support of anti-gun organizations, such as Everytown for Gun Safety and Moms Demand Action, as well as the law firm Cotchett, Pitre & McCarthy, LLP, which will provide pro bono legal services.
You can read the entire ordinance here.
UPDATE (June 19, 2023)
San José’s gun liability insurance ordinance was scheduled to go into effect on Jan. 1, 2023, but the city hasn’t enforced it since it was sued by the National Association for Gun Rights, Inc. in the U.S. District Court for the North District of California (Case No.: 5:22-cv-00501-BLF).
California Gun Owners: