National Association for Gun Rights, Inc. v. City Of San Jose

Background

San Jose enacted an ordinance titled the “Reduction of Gun Harm – Liability Insurance Requirement and Gun Harm Reduction Fee” ordinance. The ordinance requires San Jose residents who own or possess a firearm to obtain homeowner’s, renter’s, or gun-liability insurance covering losses or damages from accidental firearm use. It also requires gun owners to pay an annual fee directly to a nonprofit selected by the City Manager. The fee must fund programs intended to reduce firearm-related harm and mitigate related risks and liabilities. The ordinance lists possible services such as suicide prevention, violence reduction, addiction intervention, mental-health services relating to gun violence, and firearms-safety education.

The ordinance allows exemptions for peace officers, concealed-carry license holders, and people for whom compliance would create a financial hardship. Violations may result in administrative citations and fines. The ordinance also contains a firearm-impoundment provision, but the City acknowledged that current federal and state law does not authorize impoundment under the ordinance, making that provision inoperable unless the law changes. At the time of the ruling, the City had not set the fee amount or citation fines, identified the nonprofit, or finalized the implementing regulations.

National Association for Gun Rights, Inc. and Mark Sikes sued the City of San Jose, City Manager Jennifer Maguire, and the San Jose City Council. They asserted claims under the Second Amendment, the First Amendment, the California Constitution, and the San Jose City Charter. They moved for a preliminary injunction, which would have temporarily barred enforcement of the ordinance.

Legal standard

A preliminary injunction is an extraordinary temporary remedy. The moving party generally must show a likelihood of success on the merits, likely irreparable harm without an injunction, favorable balancing of the hardships, and that an injunction serves the public interest. The court may also consider whether serious legal questions exist and the hardships sharply favor the plaintiff, along with the other required factors.

The court first addressed ripeness. Ripeness is a requirement that a dispute be sufficiently developed for judicial decision rather than based on uncertain future events. The court explained that the fee-related First and Second Amendment claims had to be considered separately from the other claims.

Fee-related First and Second Amendment claims

The court held that the plaintiffs’ First Amendment challenge to the fee was prudentially unripe. The plaintiffs argued that requiring gun owners to pay the fee would compel them to subsidize speech or expressive activity by the nonprofit. But the nonprofit had not yet been selected, its activities had not been determined, and the ordinance’s list of possible services was neither mandatory nor exhaustive. The court could not determine whether the nonprofit’s activities would involve speech, or whether any speech would be ideological or instead related to a permissible government interest. The court therefore concluded that the claim depended on contingent future events and was not fit for decision. It also found no immediate or significant hardship from delaying review.

The court likewise held that the plaintiffs’ Second Amendment challenge to the fee was prudentially unripe. Whether the fee would impose more than a minimal burden on firearm ownership would depend on the eventual fee amount and the criteria for receiving a financial-hardship exemption. Without that information, the court could not determine whether the fee would be so excessive that it infringed the right to keep and bear arms. The court did not address the fee’s constitutionality under the Second Amendment.

Second Amendment challenge to the insurance requirement

The court applied the framework announced in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. Under that framework, if the Second Amendment’s text covers the conduct at issue, the government must show that its regulation is consistent with the Nation’s historical tradition of firearm regulation.

For purposes of the motion, the court defined the relevant conduct as “owning or possessing a firearm without firearm liability insurance.” It found that the plaintiffs were likely to prevail on the argument that this conduct fell within the Second Amendment’s plain text, meaning the Constitution presumptively protected it.

The court nevertheless found that the City had identified a sufficiently similar historical tradition to defeat the plaintiffs’ likelihood of success. In particular, the court compared the insurance requirement to 19th-century surety statutes. Those laws could require certain people to post a bond before publicly carrying weapons when there was reasonable cause to fear that they might injure someone or breach the peace. The court found relevant similarities in the regulations’ preventive purposes, their use of financial consequences to encourage responsible conduct, and the fact that neither necessarily imposed a complete ban on firearm carrying.

The court recognized differences, including that the insurance requirement applied to all gun owners rather than only people found to pose a particular risk. But it concluded that insurance premiums could involve individualized risk assessments and that, at this stage, there was no evidence showing how burdensome premiums would be for low-risk owners. The court held that the insurance requirement was analogous enough to historical regulations to pass constitutional review at the preliminary-injunction stage. It therefore found that the plaintiffs had not shown a likelihood of success on this Second Amendment challenge.

California preemption claim

The plaintiffs argued that California law had fully occupied the field of residential handgun possession and therefore barred San Jose’s ordinance. The court rejected that argument at the preliminary-injunction stage. It concluded that the statutes cited by the plaintiffs showed, at most, an intent to occupy particular areas such as firearm permitting and registration, not the entire field of gun regulation. The court also relied on California authority stating that the Legislature had targeted specific areas rather than broadly eliminating local firearm regulation.

The court further held that the ordinance did not necessarily regulate residential handgun possession in the same way as the ordinance at issue in the plaintiffs’ cited precedent. San Jose’s ordinance did not remove firearms from an owner’s possession, and the impoundment provision was inoperable under current law. The court found that the plaintiffs had not shown a likelihood of success on their California preemption claim.

California tax claim

The plaintiffs argued that the required insurance and fee were taxes under the California Constitution and therefore required voter approval. The court relied on the California Court of Appeal’s decision in Schmeer, which it understood to limit the voter-approval requirement to charges payable to, or for the benefit of, a local government.

The court concluded that the insurance premiums would be paid to insurance companies and the fee would be paid directly to the nonprofit, not to San Jose. It also found that the charges did not provide a specific benefit to the City itself. The court therefore held that the plaintiffs had not shown a likelihood of success on their claim that the ordinance imposed taxes requiring voter approval.

San Jose City Charter claims

The plaintiffs argued that sending the fee directly to the nonprofit violated the City Charter’s provisions concerning city revenues, receipts, budgeting, and appropriations. The court rejected those arguments for purposes of the motion because the fee was not paid into the City Treasury or received by the City as revenue, and the nonprofit was not a City department or agency whose operations were covered by the cited budgeting and appropriations provisions.

The plaintiffs also argued that limiting the City’s ability to direct the nonprofit’s spending violated the City Manager’s executive and administrative responsibilities. The court found that issue difficult to assess without the regulations the City Manager had not yet promulgated. It noted that the ordinance authorized the City Manager to issue implementing regulations and audit the nonprofit’s use of the funds, but held that the plaintiffs had not met their burden on the present record. The court found that the plaintiffs had not shown a likelihood of success on their City Charter claims.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction seeking to restrain and enjoin the defendants from enforcing any provision of the ordinance. Because the plaintiffs had not shown a likelihood of success on the merits of the Second Amendment, California Constitution, and City Charter claims considered by the court, it did not reach the remaining preliminary-injunction factors. The First and Second Amendment challenges to the fee were not decided on the merits because the court found them prudentially unripe.