San Jose becomes first in U.S. to require gun insurance
S E E D E D C O N T E N T
by Jana Kadah January 25, 2022. San Jose Mayor Sam Liccardo speaks about his proposed gun control legislation at NextDoor Solutions in San Jose on Jan. 24. NextDoor Solutions Executive Director Esther Peralez-Diekmann and San Jose Councilmember David Cohen stand in the background. Photo by Jana Kadah.
San Jose is now the first city in the nation to mandate gun owners to have liability insurance and pay an annual fee in an effort to curb gun violence.
On Tuesday, councilmembers voted to approve the gun control rules requiring San Jose residents who own guns to pay an annual $25 fee per household and purchase gun insurance that specifically covers losses or damages resulting from "any negligent or accidental use of the firearm" in six months, according to the ordinance.
After an intense five-hour discussion filled with emotive public comment and critical probing from councilmembers, the insurance liability mandate passed 10-1, with Councilmember Dev Davis as the lone dissenting vote. The annual gun owner fee passed with eight votes, with Councilmembers Matt Mahan and Pam Foley and Davis in opposition.
With roughly 50,000-55,000 San Jose households with guns, the annual fee is expected to bring in about $1.3 million per year.
San Jose Mayor Sam Liccardo, who introduced this legislation in 2019 after the mass shooting at the Gilroy Garlic Festival, said the goal is to mitigate harm inflicted by gun violence and shift the financial burden of gun education and victim services to gun owners instead of all taxpayers. Things stalled when COVID hit in March 2020, but Liccardo brought the idea back in May 2021 following the mass shooting at the VTA light rail yard.
"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)."
The laws are the latest in San Jose's local gun control measures, including requiring gun shops in June 2021 to record all firearm purchases. Buying a firearm from or inside a residence is also prohibited.
Unknowns
The legislation shifted significantly since its inception. Originally, the annual fees collected were designed to offset the nearly $8 million annual cost the city incurs responding to firearm incidents.
Now, the roughly $1.3 million expected to be collected annually from the fees will be sent to a nonprofit to distribute funds to other organizations providing "evidence-based solutions," like suicide prevention, mental health and addiction services and firearm safety training or victim compensation.
The problem for many councilmembers, however, is the nonprofit has not been created yet, which means there are a lot of unknowns—including how funds will be collected, potential legal challenges, the role of the nonprofit and its likely impact, and the city's role—or lackthereof—in oversight.
"These kinds of fees are typically paid by a customer who is asking for, or at least wants the service provided," Mahan said. "In my interaction with many, many constituents in District 10. That's just not been the sentiment."
Even those who support the fee are seemingly uncomfortable with the uncertainty. Councilmember Maya Esparza said such a program would not help residents in her district who often deal with gun violence.
"I think communities that have lived with this violence for a very long time would be left out of a lot of the programs and services that were being offered," Esparza said.
Frustrations and challenges
Residents also shared a myriad of concerns about the insurance and fee. Roughly 51 people spoke in opposition, saying it violates the constitution, misses the mark on solving gun violence and punishes legal gun owners who often do not commit these crimes.
"I have a right to keep and bear arms as I see fit to protect myself and property," resident Wally Gardner said. "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 rights to speak, assemble and worship freely."
About 26 residents voiced support for the gun control measures and praised the council for its "innovative approach."
"I am a resident and an educator who's been locked down for potential guns on campus right across the street at San Jose State several times," biological sciences professor Katie Wilkinson said. "Gun violence costs our city so much in terms of lost lives, as well as economic costs and this ordinance is a very innovative approach to try to address some of those costs, as well as to incentivize safer gun ownership and behavior."
The insurance and fee are contested by many gun rights activists and owners—some of which have threatened litigation. Liccardo expects legal backlash, but said he has the support of the city attorney, national organizations such as Everytown for Gun Safety, and Cotchett, Pitre & McCarthy, LLP who will provide pro bono legal services to defend the laws.
"There have been a lot of concerns about imposing fees and constitutional rights, and I can assure you there are already a lot of taxes upheld with the purchase of guns and ammunition," Liccardo said. "The question is whether or not there's a fee or an obstacle to exercise that right, and I believe this is not going to be a significant obstacle."
Sam Parades, executive director of Gun Owners of California, told San Jose Spotlight prior to the vote he and a "dream team" of Second Amendment advocates plan to sue the city.
While not opposed to the government funding programs to address gun violence, Parades said the solution should be rooted in solving the sources of violence—which to him means addressing poverty, mental illness and access to education. He said the new laws won't fix the problems both gun rights advocates and the city alike are looking to solve.
"This will have zero to less than zero impact on reducing gun violence or paying for the results of gun violence," Parades said. "There isn't an insurance policy that exists out there that would cover that."
Esparza and Davis echoed similar sentiment, noting insurance agents they spoke to said only accidental firings outside of a household could potentially be covered. Negligence or criminal behavior would not.
"I spoke with two insurance agents including my own from different companies and neither of them said that negligence use is specifically covered in their policies," Davis said. "I'm still not certain how we can require a specific type of insurance that does not exist."
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Seems like there is a good chance this might be unconstitutional, but even if it’s not, it’s hard to see how this would have a real impact on gun violence.
I agree with you. San Jose is a very large city with an estimated population of 1M. 1.3 M a year sounds like a pittance. And this is supposed to go to a non profit that hasn't even been established yet?
Agreed. It's doubtful that the drive by shooters and gang bangers will pay much attention to it.
I wonder if insurance companies can refuse to offer a policy based on those um . . . pre-existing conditions.
Well, just like the article states :
So if drive by shooters and gang bangers won't be able to buy the required insurance, will the DA's treat that absence like they treat felons who lie on their 4473?
And really no insurance policy covers deliberate misuse of a thing.
Agreed. That's why your comment in 3.1.1 is so true, this is all about election optics so that they can stand up and should how they did something to help stop the evil scourge of gun violence and that they should be re-elected to continue to good fight.
But my question above is still valid. If a gang-banger cannot get the required insurance, or even if they have it but an insurance company won't pay out for the deliberate misuse of the gun, then what will the DA do? Or will it get ignored similar to how DA's don't usually prosecute felons who lie on a 4473 when attempting to purchase a gun from a licensed dealer?
I suppose it does create another thing to charge someone with. “The defendant is charged with murder in the first degree and failure to procure insurance for his weapon.”
There a lot of ways a DA can manipulate stuff like this. It becomes a factor in plea bargains (we’ll dismiss the insurance charge if you plead to the assault), sentencing (even if dismissed, the charge can be a factor in sentencing), probation, probation and parole violations, future charges that become enhanced (because of a previous conviction for uninsured firearm), etc.
This is how unthinking, knee-jerk government works. Criminal assholes misuse a thing and the rest of us law-abiding citizens pay the price. What criminal is ever going to buy gun liability insurance?
I can see it now. My gangbanger friends come over cuz they want to cap some guy and they need a gun. Now, I can be like, “here, take my gun. It’s cool. I got insurance.”
Laws against murder and extreme penalties stop as much gun violence as they’re going to stop. Why would a requirement to buy insurance do what criminal laws and prisons have failed to do?
That's a good question, do they think gun crimes are committed by responsible people that guy a gun legally.
No. This is all about getting reelected. Now they’ll campaign on the claim that they “took bold action to stop gun violence.” What horseshit.
Maybe Chris Rock has the right idea:
I always laugh when i see this one , even 20 some years later .
problem is , too many ways to get around such a proposal.
How 'bout - the insurance company gets all these folks to sign up for insurance and then the company hands the names of the insured to the city/county folks - names that the city/county folks haven't had previously. So, when an incident occurs, the city immediately goes to the list to "scrub" the names for evidence and potential malfeasance.
Nah - not in America.
how can a right be taxed? This is like a poll tax and is unconstitutional
This will do nothing but give a lot of lawyers more billable hours.
I don’t want to say 100% yet that it’s unconstitutional. We have a right to own property but we pay property tax. We have a right to travel but we still have to pay tolls. Marriage licenses are not free but marriage is a fundamental right. And of course we already pay sales tax when buying a gun.
So I don’t know. The courts might allow it.
None of those things are “specifically” constitutionally enumerated rights.
Guns are.
Just like a poll tax was found to be unconstitutional, I don't believe this one will stand up in court.
The Court doesn’t seem to care if a right they identify is enumerated or not. To be fair, that is how the founders hoped they would handle it. They resisted creating a Bill of Rights for that reason.
It is my understanding the "resistance " was mainly due to some thought that they were unneeded and they thought that the amendments proposed were , at that time, unnecessary., they felt the government would never impinge on those rights .
Thing is , without those amendments, there was not enough votes to ratify and accept the new constitution and they would be stuck working under the articles of confederation that the constitution replaced .
already are 2 different places that have something akin to this .
morten grove Ill. where firearms are somewhat outlawed ( not sure that law is still in effect since the heller ruling )
kennesaw ga , where every able bodied person that can legally have a firearm is required to have one ( again unknown if the law is actually still in effect )
Both were allowed , both only dealt with specific town jurisdictions , just as this ordinance in SJ does , and that points to the so called "fly in the ointment ' it is only enforceable within the town or city limits . It is not really enforceable on those from outside of those limits .
And that is not even thinking of the "unintended consequences " that could occur and there could be many of them .
Is everyone in Cali just stark raving bonkers?
Many are very awoke.