8 Problems With San Jose’s Gun Insurance Mandate and Gun Ownership Tax

COMMENTARY Firearms

8 Problems With San Jose’s Gun Insurance Mandate and Gun Ownership Tax

Feb 2nd, 2022 5 min read

Commentary By

Amy Swearer @AmySwearer

Legal Fellow, Meese Center

Abby Kassal

Spring 2022 Member of the Young Leaders Program at The Heritage Foundation

Mayor Sam Liccardo of San Jose, California, speaks to the media in Washington, D.C., July 12, 2021, after attending a meeting with  President Biden about reducing gun violence. SAUL LOEB / AFP / Getty Images

Key Takeaways

The new law imposes unnecessary burdens on lawful gun owners and are unlikely to save taxpayers a single dollar, much less save a single life.

The law’s burdens on San Jose gun owners aren’t justified by the rare times when insurance might cover an incident of gun violence.

If San Jose officials are serious about reducing gun violence and lowering associated financial costs, there are plenty of better solutions.

Lawful gun ownership in San Jose, California, is about to become more expensive and onerous after the City Council passed a measure imposing two unprecedented burdens on the possession of firearms inside city limits.

Beginning later this year, San Jose’s lawful gun owners will be required to maintain “a homeowner’s, renter’s, or gun liability insurance policy … specifically covering losses or damages resulting from any negligent or accidental use” of their firearms.

Gun owners also must pay an annual “Gun Harm Reduction Fee”—an as-yet undetermined amount that officials suggest will be roughly $25 a year. 

City officials claim these are necessary steps that will save lives by incentivizing responsible gun ownership practices while making gun owners foot the bill for the financial costs of gun violence.

In reality, the new law imposes unnecessary burdens on lawful gun owners and are unlikely to save taxpayers a single dollar, much less save a single life.

Here are eight major problems with San Jose’s latest gun control push:

1. Enforcement Nearly Impossible

The new ordinance doesn’t require gun owners to certify that they’ve obtained coverage or paid the annual fee.

Unless the city plans on conducting door-to-door compliance checks, it will face a nearly impossible task of ensuring widespread compliance with what is essentially an honor system.

2. Insurance Policies Don’t Exist

Currently, the only independent liability insurance for gun owners is self-defense insurance, which covers the costs for any criminal or civil proceedings resulting from a gun owner’s intentional defensive use of a firearm.

These plans don’t cover civil liability for cases of negligence or accidental shootings, as required by the San Jose ordinance.

This means gun owners will have to rely exclusively on personal liability provisions in their homeowner’s or renter’s insurance plans, or pay hundreds of dollars for a personal liability umbrella plan. Even then, such plans rarely include specific provisions covering liability for gun-related injuries.

3. Insignificant Coverage

Even in a best-case scenario where gun liability insurance is widely available and the requirement is widely enforced, these insurance plans will cover only a miniscule fraction of gun deaths and injuries occurring inside San Jose.

Most acts of gun violence involve criminal or intentionally wrongful acts, which California law prohibits insurance companies from covering. Importantly, this would exclude coverage not just for homicide and assault, but also for gun suicides, which comprise 60% of all gun deaths.

Additionally, while the new law purports to make gun owners responsible for any harm inflicted by lost or stolen firearms unless the guns were first reported as lost or stolen, homeowner’s and renter’s insurance policies cover acts committed only by the insured person while on the insured property.

So regardless of who San Jose deems responsible, if the gun owner has a typical homeowner’s or renter’s insurance policy, that policy simply wouldn’t cover, for example, harm inflicted by a thief who stole the gun or by the gun owner during an off-property hunting accident.

Nor do these policies cover harm inflicted on an insured party, as when a gunowner accidentally shoots himself or a household member while cleaning his gun.

This leaves coverage limited to the narrow circumstances in which an insured gun owner, while on his or her own property, accidentally or negligently harms a third party with a firearm.

This type of gun violence is relatively rare.

According to a report that the city itself relied on to support the mandate, San Jose averages only two “unintentional/undetermined” gun deaths a year, amounting to only 3.4% of all annual gun deaths.

At the same time, the city with a population over 1 million averages 25 annual nonfatal hospital inpatient admissions and 59 annual emergency room visits without hospitalization due to “unintentional/undetermined” gun injuries. 

Even if most of these deaths and injuries are truly “unintentional,” as opposed to merely “undetermined,” it’s impossible to know how many were committed with lawfully possessed guns in circumstances that would be covered with traditional homeowner’s or renter’s liability policies.

And, of course, no insurance policy would cover situations involving unlawfully possessed guns.

The law’s burdens on San Jose gun owners aren’t justified by the rare times when insurance might cover an incident of gun violence.

4.  Payouts Don’t Reduce Taxpayer Burden

San Jose officials repeatedly defended their gun insurance mandate by lamenting the financial cost of gun violence on the city’s emergency response services and insisting that gun owners should pick up the tab for gun violence.

And yet, mandating gun liability insurance does nothing to alleviate the cost to taxpayers. In the rare instances where insurance policies might cover gun injuries, the payouts wouldn’t go to the city or to its emergency responders.

Instead, the payments would be directed toward the victim’s medical bills (a cost only sometimes and indirectly borne by taxpayers if the victim is uninsured or on state-subsidized insurance) and any potential civil damages for lost wages or pain and suffering (a cost never borne by taxpayers).

5.  Mandate Won’t Save Lives

Just as the insurance mandate is unlikely to save taxpayer money, it’s equally unlikely to save lives by deterring future acts of gun violence.

California has the most stringent gun laws in the nation. If gun owners aren’t deterred from negligent, reckless, or unsafe conduct by the state’s existing criminal sanctions or impositions of civil liability, why would they be deterred by the risk of increased insurance premiums?

Perhaps worse, gun liability insurance for negligence may create perverse disincentives for gun owners, who no longer risk financial ruin for careless conduct that harms others.

6. Unconstitutional Tax

San Jose refers to the new fee imposed on gun owners as a “Gun Harm Reduction Fee,” but it’s nothing less than an unconstitutional tax on the exercise of an enumerated right.

The Supreme Court has struck down similar laws, reasoning that “a state may not impose a charge for the enjoyment of a right granted by the federal Constitution.”

This is precisely what San Jose’s fee does—require gun owners to pay an annual sum of money to exercise their Second Amendment rights inside the city.

7. Misplaced Blame

Lawful gun owners aren’t the driving force behind gun violence, and yet San Jose has singled them out to pay for gun violence.

Law-abiding citizens shouldn’t be saddled with the blame (or the bill) for criminal actions they didn’t commit, encourage, or facilitate.

8.  Legitimate Solutions Ignored

If San Jose officials are serious about reducing gun violence and lowering associated financial costs, there are plenty of better solutions.

The city could focus its energy on enforcing existing gun laws—perhaps, for example, by disarming its share of the 23,000 Californians who state authorities know possess guns despite being prohibited persons.

It could make these unlawful gun owners and others who commit gun crimes pay by imposing fees and restitution to the state as part of criminal sentencing.

The city also could increase the size of its police force to deal with chronic understaffing and workload problems that inhibit officers’ ability to enforce the law.

Instead of opting for these rational and straightforward steps, however, the city apparently has defaulted to what’s become an all-too-common tactic in gun control politics—passing unserious laws that burden lawful gun ownership without addressing any of the real problems.

This piece originally appeared in The Daily Signal