Challenge to San Jose gun insurance, fee law can proceed

An attendee holds a small caliber pistol on display at the National Rifle Association (NRA) annual convention in Houston, Texas, U.S. May 29, 2022. REUTERS/Callaghan O'Hare
  • Judge previously denied injunction, finding challenge unlikely to succeed
  • Most claims dismissed with leave to re-file

(Reuters) - A gun rights group's legal challenge to a San Jose, California, city ordinance requiring gun owners to purchase insurance and pay a fee to a non-profit aimed at preventing gun violence can go forward, a federal judge has ruled.

U.S. District Judge Beth Labson Freeman on Friday granted much of the city's motion to toss the case, brought by the Colorado-based National Association for Gun Rights, but said the group could re-file most of the dismissed claims.

Labson also dismissed a similar lawsuit by two other groups, the Howard Jarvis Taxpayers Association and Silicon Valley Taxpayers Association, in its entirety, also with leave to refile.

San Jose in January passed the first-of-its-kind ordinance, which would require gun owners to obtain liability insurance covering losses and damages stemming from negligent or accidental use of their weapons. The law would also require gun owners to pay an annual fee to an anti-gun violence non-profit designated by the San Jose city manager.

NAGR sued immediately after the law was passed, saying the insurance requirement restricted the right to bear arms under the 2nd Amendment of the U.S. Constitution, and requiring payments to a non-profit was unconstitutional compelled speech under the 1st Amendment. HJTA and SVTA sued in March to challenge only the fee requirement, arguing that it violated the right to free speech under the 1st Amendment and the California constitution, and illegally delegated the city council's tax power to the city manager.

The measure was to take effect in August, but the city has postponed implementing it during the litigation.

In August, Freeman denied NAGR's motion for a preliminary injunction blocking the law, finding that the challenge to the insurance requirement was unlikely to succeed under the new standard set out in June by the U.S. Supreme Court in New York State Rifle and Pistol Association v. Bruen, which held that gun regulations are allowed if they are consistent with those traditionally used in U.S. history. Freeman said the insurance requirement was analogous to some 19th-century laws requiring gun owners to post bond in order to carry a gun.

Freeman also said the challenges to the fee requirement were premature since the non-profit had not yet been designated.

Friday's order followed similar reasoning. Freeman said the 2nd Amendment challenge must be dismissed because the complaint had been drafted before Bruen, but gave NAGR a chance to refile it under the new standard.

She said that the challenges to the fees were still not ripe to be decided in court, but said those could be re-filed as well by February, if the city takes further steps to implement the law.

Mike Columbo of Dhillon Law Group, a lawyer for NAGR, said the decision "explains that even now the city still hasn't made the most basic decisions about how to implement the ordinance" and that NAGR planned to refile its complaint

Tamarah Prevost of Cotchett, Pitre & McCarthy, a lawyer for the city, said the ruling "confirms the City's belief that this gun ordinance is lawful."

A lawyer for HJTA and SVTA did not immediately respond to requests for comment.

The case is National Association for Gun Rights Inc v. City of San Jose, U.S. District Court for the Northern District of California, No. 5:22-cv-00501.

For NAGR: Mike Columbo of Dhillon Law Group

For HJTA and SVTA: Timothy Bittle of HJTA

For San Jose: Tamarah Prevost of Cotchett, Pitre & McCarthy

(NOTE: This story has been updated with comment from the city's counsel).

Read more:

Judge says she is unlikely to block California city's gun insurance law

U.S. Supreme Court expands gun rights, strikes down New York law

San Jose votes to be first U.S. city to mandate gun liability insurance

Reporting By Brendan Pierson in New York

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.