San José's Landmark Gun Control Law Free to Move Forward

A landmark gun control law in San José is free from legal challenges for the first time since its inception, following an appeals court ruling earlier this month, though it’s likely the issue will receive more scrutiny in the future.

Proponents of the law say the latest legal victory could push other cities toward adopting similar regulations, envisioned as a partial salve in addressing gun violence locally while national action has long stalled.

“There are other municipalities that have tried to model ordinances after ours or are contemplating it and have been watching this really carefully,” said Tamarah Prevost, an attorney representing San José in the gun ordinance case.

“I think overall what it shows is that municipalities can come up with creative solutions to what’s obviously a very complex problem. So San Jose’s hope is that it sends a signal and sort of a green light to other municipalities that they should hopefully do the same,” Prevost said.

San José’s Gun Harm Reduction Ordinance – which requires gun owners in the city to carry a liability insurance policy and to pay a fee toward gun violence prevention – was the first of its kind and was mired in litigation beginning minutes after its approval by the City Council in January 2022.

The insurance requirement has been in effect in the city since the start of 2023, though the city is still hammering out plans to enact the fee portion, which has been slowed in part as litigation continued.

Eventually, the city plans to designate a nonprofit organization to collect the fee from gun owners, which could be around $25 annually, and manage the spending of those funds to help “reduce the risk or likelihood of harm from the use of firearms in the city of San Jose,” among other purposes.

In July 2023, a federal court in San José dismissed the National Gun Rights Association’s arguments against the insurance mandate portion of the law, saying the new regulations are in line with the country’s “historical traditions” and constitutional guarantees for gun ownership.

The court also dismissed the Howard Jarvis Taxpayers Association’s challenge to the fee portion of the law.

The Howard Jarvis group then appealed its concerns with the fee, which it called an “illegal tax” on gun owners, to the U.S. Court of Appeals for the 9th Circuit in San Francisco. A panel of appeals court judges on Sept. 10 agreed the case should be dismissed, saying it is too soon to challenge the fee portion of the law because it hasn’t been implemented yet.

“No real threat of injury currently exists because the city has not set a precise collection date for the fee,” the panel of judges wrote in their decision.

Former San José Mayor Sam Liccardo, who championed the ordinance while in office, said the ruling is vindicating, and he hopes it will help strengthen the resolve of other local leaders looking to push back on the “epidemic” of gun violence.

“I got called or approached by more than a couple dozen mayors who all told me at one time or another, ‘We really want to do this, and my city attorney won’t let me until we find out that you get through the litigation first,’” Liccardo said.

“So we hope that this will spur the grassroots activity in communities throughout the country, particularly in states like California, where we have communities that are more eager to see sensible gun regulation in place.”

Tim Bittle, chief counsel for the Howard Jarvis Taxpayers Association, said the appeals court ruling was “no surprise,” but he still maintains the fee portion of the law is wrong.

“It bothers me that it’s on the books, that it’s still enacted, but I guess…it’s like hibernating,” he said.

Asked if his group plans to revive litigation against the city once the fee portion of the law is put into place, Bittle said “yes.”

“We’re just going to monitor what the city does in the future,” he said. “We’re still very interested.”

Both Prevost and Liccardo acknowledge that more legal challenges could lie ahead as enforcement of the ordinance progresses but feel confident those efforts would fail.

“Pioneering efforts are hard, particularly when there are powerful groups on the other side,” Liccardo said. “And certainly, many state legislatures have introduced measures like this only to see them die on the vine under the pressure of the gun lobby. So, of course, it’s going to take time to do this successfully.”

Liccardo, who is running to replace Rep. Anna Eshoo in the 16th District, said if he is elected to Congress, he doesn’t think the kinds of changes being made by the San José law would be possible at the federal level, though he does hope to push for other lower hanging fruit if elected.

“I’ll be going into a body where being able to do what we’ve done in San José is not on the table today. It’s really an opportunity for other city halls and other state legislatures,” Liccardo said.