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- [00:01]
Cheryl Achison
Hi everybody, Cheryl Achison here. I hope you enjoy this special from the archives edition of Full Measure After Hours. Hi everybody. Cheryl Achison here. Welcome to another edition of Full Measure After Hours. Today all eyes are on San Jose, California and a first of its kind gun control law that may surprise you. It has plenty of supporters and opponents. We'll tell why it could have implications for all of us. Sunday, March 26, 2023 on full measure. I'm off to San Jose, California for a look at a unique and controversial new gun control law. After a Supreme Court decision last summer threw out New York's long standing gun control law and laws like it in other states, many cities and states have been for new ways to restrict guns in a fashion that is defensible under the Constitution. First you'll hear from the brains behind San Jose's law, Sam Licardo who was mayor of San Jose when he came up with the idea and continues to work on it now that he is term limited out of office. Then we'll hear from someone in a group that opposes the law. Here's Sam Licardo.
- [01:27]
Sam Licardo
Well, like all big city mayors, we had been thinking hard about how we can reduce violence from gunshots here in our city because like every big city, we're afflicted with violence. And the mural behind me is a mural of a 13 year old girl. Her name is Kayla Salazar. She was the victim of the mass shooting just outside our city at Gilroy Garlic Festival a couple of years ago. She was a San Jose resident.
- [01:58]
Tim Biddle
One.
- [01:59]
Sam Licardo
Of three sisters who lost her life and her life is memorialized behind me. And it was after that incident that it became obvious to me that we needed to take greater risk in doing something. There are a lot of laws that confine and restrict cities about what could be done, state preemption, federal law of various kinds. So we just had to find a path to do something. And so we started working on it, brought in folks who are experts in a lot of legal issues and reached out in the community. And what became apparent is that this is like so many issues in our country, deeply divisive. There are folks who are adamant that can't take away their guns. And let's face it, we have 400 million guns in our country. We're not set link only to make them go away. So we had to do something that would recognize the reality that guns are in our streets, they're in our community. How do we make gun ownership safer? So that's the premise we started with.
- [03:03]
Interviewer
Can you just Sort of tick off the ideas, and then I'll ask you some more specific questions about them. But what's behind the actual law?
- [03:10]
Sam Licardo
Well, there are two elements of this law. One is we want to see how we can reduce the unintentional harms from shootings, which are actually very common. About 26,000Americans go into an emergency room every year because of unintentional shootings. We lose hundreds of children that way. About four and a half million kids right now live in a house where a gun is kept loaded but unlocked. And so there are things we know that gun owners can do to protect children, to protect their own families and their communities. And we know that insurance is much more effective at those kind of preventative measures than the government is.
- [03:51]
Interviewer
The insurance will require certain things in order to cover.
- [03:55]
Sam Licardo
We want insurance companies to get in this game, encourage gun owners to get gun safety locks, get gun safes, to take gun safety courses. The trigger locks and the chamber load indicators, those are certainly elements that most gun owners don't currently use, but could if there was a financial incentive for them to do that. So we know that premiums can have that financial nudge that gun owners might need. And we've seen that, certainly in the case of automobiles, a dramatic reduction in automobile deaths and injuries over the last 50 years, because insurance companies have been involved in pushing folks to get the analog brakes and the airbags and all the other things that make us safer. Most importantly, encouraging drivers could get the good driver discount.
- [04:45]
Interviewer
Is this a way to sort of get the government out of it and avoid some of the constitutional objections to say the government's not making you take these classes and do these things. The government's simply saying you have to have insurance, and it's a private company telling you what you have to do?
- [04:59]
Sam Licardo
Well, I'd like to believe so. I know there are those who would argue the government is still requiring the insurance. And we think that there's ample historic basis for that, and that's constitutional, and obviously the courts will decide. But at the end of the day, we're trying to get past this very polarized battle that the right and left are having over guns and talk about how we can agree that if we had safer gun ownership, we could at least reduce the harm, the deaths and the injuries. So the insurance is one element of this. The other element, which I think in many ways is much more important, is a fee that would be used to fund prevention programs in various ways, reducing domestic violence, suicide, mental health services, gun safety classes, a host of measures that can be taken to make those who are living in homes with a gun safer. All the data shows, and I think Stanford came out with the study last year, it's very clear that whatever the malady might be, whether it's domestic violence, depression, a whole host of issues that we know that families are dealing with every day, if there's a gun in a home, the outcomes are far more, far worse and far more likely to result in death. So if we can reach out to those same families and provide them the services they need, particularly mental health, we can do a world of good in reducing that harm. Problem is, cities don't have those resources. So the ordinance would require that gun owners pay a fee, and those dollars would be used by local foundation to fund non profits that would be involved in doing that work.
- [06:43]
Interviewer
How much is the fee?
- [06:44]
Sam Licardo
The fee is $25 per year. That's right.
- [06:49]
Interviewer
And then it goes to a group that will then. Or groups reach out and do gun violence prevention activities.
- [06:57]
Tim Biddle
Yeah.
- [06:58]
Sam Licardo
And you know, the good news is we have nonprofits that are already deeply engaged in domestic violence prevention and mental health provision. And so we know that the services are out there, they're underfunded, they're not able to make the connections all the time to be able to get to where the need is the greatest. And we want to make sure we have the resources to actually enable them to be effective.
- [07:21]
Interviewer
You mentioned the garlic festival killer, and I don't remember much about him offhand.
- [07:26]
Sam Licardo
Yeah.
- [07:26]
Interviewer
Would any of these provisions potentially have stopped him from act, from taking action?
- [07:31]
Sam Licardo
I don't want to reduce every case of mass violence to mental health, but let's face it, we know an awful lot of these shooters have very severe mental health issues. And I don't want to play amateur psychologists in this case, but this was a young man who was drawn to racist ideology and clearly had mental health issues. I'd like to believe if we had an organization that knew he was troubled and was able to get to him and reach him before he made the decision to go buy that gun in Nevada, that would have made a difference. Obviously, you can't possibly know and you're not going to prevent all the harm. All you can do is try, and this is our effort to at least make the effort to see. Can we. I'll try to rephrase that. I'm sorry. This initiative is an effort to see how can we direct the services and resources where they could have the most impact. There's domestic violence, suicide prevention, mental health, reducing the likelihood of that. Person with a gun will do harm.
- [08:50]
Interviewer
So part of the provisions include you have to keep your paperwork with you, I guess, that you pay the fee or you have insurance or both.
- [08:56]
Sam Licardo
That's right.
- [08:57]
Interviewer
With the gun.
- [08:58]
Tim Biddle
Yep.
- [08:59]
Interviewer
Which makes sense. On the other hand, are the. Is the other side. I haven't interviewed them yet. Are they saying that's too close to. You must have your papers with you. You. Does it sound like something that the government's doing involving a constitutional right? That's just going too far and sounds too bad.
- [09:16]
Sam Licardo
All of us drive every day and we're required to keep proof of insurance and registration with a car. This is not. You have to keep proof of identification with you at all times. This is. Keep it with a gun. That is the instrument that can cause the harm. Just demonstrate that you've paid the fee and you have the insurance.
- [09:35]
Interviewer
I mean, the difference being, I don't think we have a constitutional right to have a driver's license and have a car. Yeah, we'll argue we do have one to bear arms.
- [09:43]
Sam Licardo
The good news is there's a lot of constitutional and historical precedent for these kinds of requirements. When the 14th Amendment was passed 1860s, there were called surety laws in many states throughout the country. In fact, the Supreme Court's recent decision referred to many of these surety laws that would require gun owners to, in fact, pay sureties to compensate those who are harmed for whatever harm may result from the use of that gun. That is insurance. This is something that's existed in our country for hundreds of years. And I think those who were framing these constitutional measures were well aware these requirements.
- [10:27]
Interviewer
Have other cities or states talked with you or San Jose about this and described some interest in following the same path?
- [10:35]
Sam Licardo
Yeah, a lot of mayors reached out to me because I think mayors are uniquely frustrated by violence in their communities. So far, several states have introduced measures of some kind. Here in California, after we introduced ours, Nancy Skinner is the chair of the Budget Committee, introduced a measure here. I know New Jersey recently introduced some legislation. Whether or not those pass, I don't know.
- [11:01]
Interviewer
But could Congress do something like this?
- [11:03]
Sam Licardo
Yeah, actually, you know, every year there's actually been an insurance requirement bill that has been proposed for several years and hasn't gotten anywhere. Never gotten out of committee.
- [11:15]
Interviewer
The reality, like almost a response to the fact that the federal government. There's a lot of discussion in Congress and so on about doing certain measures, but these measures seem to never come to fruition. So is this why, I guess San Jose said we need to do something?
- [11:32]
Sam Licardo
Well, There are powerful forces at work in Washington, D.C. we know the gun lobby is very powerful, and there are a lot of ideological forces at work. The reality is cities can be more nimble, more pragmatic. We don't operate with an army of lobbyists on both sides. Mayors are able to actually get things done that are much harder to get done in Congress.
- [11:53]
Interviewer
I saw, I read as part of the research on this that you or someone said this was like two years in the making. And a lot of lawyers looked at it to try to make sure this was bulletproof. In terms of court challenges, where does it stand today and what do you think is going to happen?
- [12:10]
Sam Licardo
Well, there's no such thing as anything being bulletproof, and pardon the pun, but, you know, we know there'll be plenty more litigation to go. The good News is the US District Court has agreed with our position. So far, nine out of the 10 claims have been dismissed. We know the gun groups will continue to litigate. In this area of regulation. There's no good deed that goes unlitigated. And so this is just something we anticipated. A local law firm headed by an attorney, Joe Kochett, was kind enough to take this on as a pro bono project. So they're representing the city and they're committed to this. So they'll continue to litigate this all the way to the Supreme Court.
- [12:50]
Interviewer
And I know this is different, but are you thinking in some term that the mood of the court, should this make it to the Supreme Court, is more one of not letting there be sort of government control or interference?
- [13:03]
Sam Licardo
Well, I didn't agree with the Supreme Court decision in Bruin last year that invalidated the concealed carry permits. But the good news is that opinion actually had a lot of reference to the historic precedent of surety laws, for example, in the 1860s in many states. And we know this is a court that's very wedded to those historic precedents, so we feel confident that there's plenty of precedent for this. You know, the notion that somehow or another there are constitutional rights that could never in any way be taxed or assessed with a fee, that's just nothing the Supreme Court has ever decided. The question isn't whether or not there's a tax or a fee. The question is, is that unduly burdensome, the exercise of constitutional rights? We have taxes, for example, on newspaper companies that are obviously deeply engaged in First Amendment activity. Do you want to join a. An association or create one at the state? And you need to go pay a fee to the Secretary of State These are common fees that are paid all the time in the exercise of constitutional rights. The question is, are they unduly burdensome? We think this is a pretty modest fee to apply, particularly in a, in a world where guns cost hundreds or even thousands of dollars for a difficult owner.
- [14:19]
Interviewer
And then my last question, I didn't see this argument. Maybe it's been made and I thought of it. The law abiding citizens will buy their insurance and keep their papers with them. The crooks who probably do commit most of the violent crime and maybe even come from outside San Jose in many cases, they're not going to buy insurance and be contributing to this overall effort that you talk about. What about that argument? Yeah, you're making the law abiding good people basically subsidize and kind of pick up for the criminals.
- [14:48]
Sam Licardo
Well, part of this is one way to rapidly identify who the criminals are is when you're asked do you have insurance or have you paid a fee? If the answer is no, that puts you on a radar. It means someone's got to pay fine. And obviously that enables police department to ask additional questions. So that is helpful for those of us who are deeply involved. As a former criminal prosecutor, as you think about how the fourth Amendment works. When someone has demonstrated non compliance to the law, then the police are able to ask additional questions and that's helpful. Secondly, we know there's an enormous amount of harm that can be averted even within the realm of those who are law abiding. Look, 26,000 people will go to the emergency room every year because of accidental shootings. Overwhelmingly, our people come from families who are abiding, law abiding, they're doing their best. The truth is there's a lot of harm. Suicide, domestic violence that is resulting in families that are ostensibly or otherwise law abiding. We know we can do more to reduce injuries and deaths and we have to.
- [16:00]
Cheryl Achison
In a moment, the other side of the story now we hear from Tim Biddle, chief counsel for the Howard Jarvis Taxpayers Association.
- [16:15]
Interviewer
If you had to summarize what the controversy in San Jose is about before we get into it and just a paragraph or even a phrase, what would you say?
- [16:26]
Tim Biddle
Well, if I was representing the national association of Gun Rights, I would say that it's about impairing the constitutional right to keep and bear arms. But for my organization, Howard Jarvis Taxpayers association, we're mainly concerned with the fee that's being charged, an annual fee in order to own a gun in San Jose. And for us, we believe it's A tax which under California law would need voter approval that it never got. Also that it's a violation of your First Amendment rights to free speech and association because the fee has to get paid to a private nonprofit organization that the city designates. And so they're forcing gun owners to associate with this organization and to support it financially, whether or not the gun owner approves of the activities or the messaging of the private nonprofit.
- [17:29]
Interviewer
Now, there were a number of claims initially, and I'm not sure which ones were brought by which group, but most of them have been thrown out so far. I know this will keep going, but the. The other side told us there's only one remaining claim about the fees. Is that your understanding, too?
- [17:44]
Tim Biddle
No, that was true a month ago. I don't know when you spoke to them, but what happened was. Well, first, let me just back up for a second. The national association of Gun Rights filed their lawsuit in federal court, Northern District federal court. My organization filed in state court, Santa Clara County Superior court, and the city removed our case to federal court. And then the court consolidated the two cases. So as soon as that consolidation took place, then the city filed a motion to dismiss both of our lawsuits on the grounds that they were not ripe yet, because the city had not designated a nonprofit yet. And the the court agreed that until the judge could determine what the activities of the nonprofit were going to be and what the messaging of the nonprofit was going to be, it didn't have enough information to rule on the case. So our judge dismissed the two cases with leave to amend. In other words, she's not saying you're out of court completely, it's just you have to come back later. So she gave the city until December 31st. That dismissal was back in August. So she gave the city until December 31st to designate a nonprofit, and then gave us until February 2nd to file an amended complaint giving specific details about the nonprofit that supported our claims. Well, December 31st came and went, and the city did not choose a nonprofit. So we filed a request for registration of time to file our amended complaint because we still knew no more than we had known back in August when our lawsuits were dismissed. And although the court did nothing to punish the city for never designating a non profit, it denied our motion for an extension of time. So on February 2nd, we filed an amended complaint that basically said the same thing as our first complaints did. And immediately the city filed another motion to dismiss on the same grounds that the cases are not ripe yet because there's no nonprofit. So our opposition to that is due this Thursday and the hearing is scheduled for June 15th. But right now we have a full complaint worth of claims.
- [20:31]
Interviewer
Okay, let me give a couple of their sides and let you answer it. What you said just makes sense. So you've kind of addressed it already in a way. But the other side argues there are fees on all kinds of things that involve people's rights. There have been fees before. There are fees involving guns that already exist. Why would it be wrong to impose a fee now?
- [20:54]
Tim Biddle
Well, it's not necessarily wrong to impose a fee. In California, we have a constitutional definition of what is a tax and what is a fee. And in order for something to be a fee, it has to be in exchange for something that the fee payer wants and is receiving. So maybe I'm paying a fee to get a permit or I'm paying a fee to register my gun on, you know, a list of gun owners that the police department keeps or something like that. So there's some, you know, regulatory process that applies to me or a permit that I'm getting, or in other contexts, you know, you pay a fee for utilities or water or sewer treatment, that kind of thing, where you're getting a product or service from the government in exchange for your fee. Here the fee isn't, first of all, it's not paid to the government. It's going to be paid to this private nonprofit organization. And the city's San Jose's ordinance explains what the nonprofit has to use the money for. Well, there are certain minimum things they have to use the money for. There's actually a lot of discretion on how they spend the money, but they do have to provide. See if I can remember the list. So it's domestic violence prevention, gender based violence prevention, suicide counseling, counseling for victims of gun violence, and then gun harm prevention education. So you can tell from that list that a gun owner like me would probably not need any of those services or request any of those services. So I'm not getting anything in return for my payment of the fee. Those services are basically offered to the general public. And that's the definition of a tax. When the government takes money from me in order to provide a public service to everybody.
- [23:14]
Interviewer
If they had done this as a tax with the vote of the local voters, will you have a gripe with it?
- [23:21]
Tim Biddle
No.
- [23:22]
Sam Licardo
Okay.
- [23:25]
Interviewer
In the big picture, what do you think is going on here besides picking apart both sides and the specifics of what the other side is doing and challenging in a court? In the big picture, looking at what's happening in America it seems like there are many cities and states and counties that are stepping in where Congress has not. You know, there's a lot of debate that Congress ought to do X, Y or Z and they don't do a lot of it. And the states and cities seem to be trying to think of ways to do it themselves. How would you characterize what you see happening?
- [23:55]
Tim Biddle
Well, I can't quote them exactly, but I remember that there was an interview with the mayor of San Jose right after this ordinance was passed and he was jubilant that it had passed and he said something like, now we have a tool to take more guns off the street. Now obviously criminals are not going to be participating in this program. They're not going to be obtaining insurance, which is the other half of the ordinance. You have to maintain gun harm insurance and they're not going to be paying the fee or registering their guns or anything like that. So it seems like the mayor's objective was to take guns out of the hands of law abiding citizens. And I'm not sure why. Maybe there's a fear that if, if people own guns in their private homes and criminals will be able to break in and steal those guns. I'm not sure, but I'll give you.
- [24:58]
Interviewer
One little, one sentence about that.
- [25:00]
Tim Biddle
Okay.
- [25:00]
Interviewer
They say that there's pretty high percentage of people who are unintentionally harmed with guns in the house, whether it's through an accident or higher chance of suicide involved in a home with a gun in it, and so on.
- [25:13]
Tim Biddle
Okay, well, when he said that this is a tool that they can use to get more guns out of private hands, what he meant is that the ordinance requires you to keep proof of insurance and proof of payment of the fee with the gun at all times and to produce that proof any time a peace officer requests it. There's no other details in that. So I assume a peace officer could knock on the door of your home and ask you for proof that you, that you carry the insurance and that you've paid the fee. And then the ordinance says if you don't produce proof to a peace officer when requested, you're subject to a fine and confiscation of your firearm.
- [26:03]
Interviewer
Are you concerned that if this stands up to challenges that this will be done in other places? Because the mayor did tell us that there are mayors of other cities who are waiting to see how this turns out and maybe going to jump on board with something similar.
- [26:18]
Tim Biddle
Yes, I think that it probably will set a precedent that other cities follow, but it could become state law because the California Legislature is currently considering in this legislative session a bill that would require insurance for gun owners. There's no mention in the bill of paying a fee, but the insurance requirement could become state law.
- [26:40]
Interviewer
How do you feel about the insurance requirement?
- [26:42]
Tim Biddle
Well, like I said, my organization doesn't take a position on the insurance requirement one way or the other because we're a taxpayer organization. The the reason NAGR is challenging it is because the ordinance, while it requires gun owners to purchase and maintain insurance, doesn't require private insurance companies to make that insurance available or to make it available affordably. And so their argument is we have this guaranteed right in the Constitution to keep and bear arms. You can't condition the exercise of that right on for profit business decisions that a private insurance company makes because if the insurance next year becomes unavailable, that means you don't get to own a gun anymore.
- [27:33]
Interviewer
It almost seems to me too, once the insurance companies know you have to have the insurance, they can pretty much price it wherever they want, like even out of reach. Almost true that we spoke to gun owners who indicated if all of this becomes the law, a lot of people will not abide by it. Sort of a civil disobedience. Have you heard about that or what do you think?
- [27:55]
Tim Biddle
No. I mean, maybe if somebody organized a movement, but I you can't fight city hall, you know. And as soon as you identify yourself as one of these scofflaws, they'll probably take your gun away. So.
- [28:13]
Cheryl Achison
This subject with additional interviews is the topic of my cover story on Sunday, March 26th. You can find a list of stations and times for Full Measure by going to cherylakkeson.com and clicking the Full Measure tab. If you missed the program, no worries. We post the segment at FullMeasure News after it airs around, I'd say noon Eastern time on Sundays. That's at fullmeasure News and I have some exciting news about the website. It has not been super user friendly these past eight years at FullMeasure News, but we are finally about to get a makeover which will make the live stream on Sundays at 9:30 Eastern Time better and the search bar will work well for the first time and there'll be a lot of good stuff. I hope you enjoyed today's podcast and that if so you leave us a good review. Subscribe and share it with your friends. Be sure and check out my other podcasts, the Cheryl Aguson Podcast, for more topics you won't hear on other media outlets. Now you can support independent journalism causes. It's never been more important. By visiting cherylaguson.com and clicking the store tab, there are some wonderful, thought provoking and fun ideas for gifts or for yourself Products designed exclusively for independent and free thinkers, with proceeds benefiting independent reporting causes. Do your own research. Make up your own mind. Think for yourself.
- [29:42]
Interviewer
SA.