Tax groups sue San Jose over firearm fee

San Jose is being sued for its gun harm reduction ordinance passed earlier this year—but not by gun rights activists.

This week, three local organizations—the Silicon Valley Public Accountability Foundation, Howard Jarvis Taxpayers Association and Silicon Valley Taxpayers Association—announced they are specifically challenging an annual $25 fee gunowners are required to pay per household.

The estimated $1.3 million generated from the fee will be allocated to a nonprofit created to distribute funds to other organizations that include suicide prevention, mental health and addiction services and firearm safety training or victim compensation. The nonprofit is still in the process of being created.

But the coalition sees the fee as an unlawful tax for numerous reasons. They say it’s a violation of First Amendment rights—freedom of speech—because it may force gun owners to fund an organization they do not support. They also claim it’s unlawful because it delegates taxing power to a private organization.

“It seems pretty clear that the organization could be an anti-gun group, right? So you’re forcing gun owners to pay money to an anti-gun group in violation of their right to not associate with that group,” said Tim Bittle, director of legal affairs for the Howard Jarvis Taxpayers Association—one of the state’s largest taxpayer groups.

In January, San Jose became the first city in the nation to mandate gun owners to have liability insurance and pay an annual fee in an effort to address gun harm. The idea was introduced by Mayor Sam Liccardo in 2019 after a shooting at the Gilroy Garlic Festival and brought back after the VTA mass shooting in May 2021. These rules followed a slew of local gun control measures, including requiring gun shops to record all firearm purchases.

The complaint also argues the fee is a violation of the Second Amendment by enforcing a fee, or tax, which puts conditions on the right to bear arms. Since it is levied to fund a particular program, the complaint claims it could qualify as a special tax, which needs 2/3 voter approval.

“This is definitely a tax. There’s no way around it,” Jonathan Fleming, CEO and executive director of the Silicon Valley Public Accountability Foundation, told San José Spotlight. “When you have a fee, person one pays a fee and gets a service in exchange for that fee, but a tax is when person one pays a tax and then the community gets a service out of it.”

Fleming said he didn’t want to sue the city, but after meeting with nine of the 10 council offices and the city attorney’s office, he and others felt like they had no other option.

“We tried to exhaust every possible means beforehand of resolving this and coming up with solutions that would actually solve violence in our city,” Fleming said. “They just met us with unfactual or untruthful statements.”

He continued that the “vague and disingenuous” responses from the city prompted his organization to do 25 different public records requests from September to December 2021. Only four of those got a response, Fleming said.

City officials declined comment on pending litigation. But Mayor Liccardo told San José Spotlight, “a good deed never goes unlitigated.”

It’s something Liccardo has said before, as he expected the gun harm reduction ordinance would be met with legal backlash. Almost immediately after the ordinance was passed, the city was served by the Dhillon Law Group on behalf of the National Association for Gun Rights. They are challenging the annual fee and the requirement for gun owners to purchase liability insurance.

Fleming said both issues were important to the coalition, but the tax was the main concern.

“We felt that it was more prudent and it would be more important to go after this unlawful tax in court,” Fleming said. “We know there are other lawsuits challenging the insurance so for our organization, we really wanted to focus our resources on this tax.”

Contact Jana Kadah at [email protected] or @Jana_Kadah on Twitter.