What Is The New Gun Law Being Considered in San Jose and is it Constitutional?

Written By Christopher B. Dolan 

This week’s question comes from Jason P. from San Jose: I know you are personal injury lawyers but, read that you are also civil rights lawyers. I was wondering if you can answer my question on whether the new gun law in San Jose is constitutional?

Thanks for you question Jason. You are correct we are personal injury attorneys, as well as employment attorneys, and cover various civil litigation issues. At the same time, we wanted to share our thoughts on the question you have for us.    

The Second Amendment to the Bill of Rights in the Constitution of the United States of America is a single sentence:

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” 

Many outspoken proponents of the Second Amendment focus on the second half of that sentence while dismissing the first. But the first half of the sentence is of equal importance to the second not the least of which is because it includes the phrase “well regulated.”  

Every right we have as Americans is subject to regulation or limitation. There are limitations on our First Amendment rights to freedom of speech, the most familiar being that no one has the right to yell “Fire!” in a crowded theater if there is, in fact, no fire.  The Second Amendment is no exception. Ask any gun owner who lives in California about the State’s gun laws and you will surely get an earful about how overbearing, cumbersome and confusing they are. Gun owners in California are not legally permitted to buy many of the same guns that gun owners in Nevada or Arizona are. Gone are the days or ordering ammunition online and having it delivered to your home. Those purchases must now be made in person and require a background check. Similarly, California has no open-carry law for either handguns or rifles. Such activity is legal in 31 other states but is illegal within California.

Last week the city council of San Jose approved a proposed ordinance placing additional requirements on gun owners living within the city. This is the first law of its kind to be passed by any city in the United States. The new law would require gun owners to carry liability insurance to cover accidents and negligence. The law would also require gun owners to pay an annual $25 fee, the proceeds of which would be given to a nonprofit organization to fund crime prevention and assist victims of gun violence. It has been reported that approximately 50,000 to 55,000 households in San Jose own guns. The fee provision of the new law would generate somewhere around $1.3 million per year. Prior to last week’s city council vote, Mayor Sam Liccardo estimated that gun-related expenditures cost San Jose residents approximately $440 million per year.

At first glance, the new law (which has not yet taken effect) does not seem unreasonable or overly burdensome. Every person who operates a motor vehicle in the State of California is required to carry liability insurance for negligence and accidents. And every motorist is also required to pay annual fees to register their vehicle or renew their registration. There are bridge tolls and toll roads also that exclusively effect those driving cars and trucks and motorcycles.  

Critics of the proposed law, however, say that there is no Constitutional right to drive a car or truck, while the right to own firearms is actually enshrined in the Constitution. Their argument is that you cannot regulate or tax a right guaranteed by the Bill of Rights. Gun ownership has been heavily regulated for as long as the Second Amendment has existed and many of those regulations have been upheld by multiple courts, including the Supreme Court. Recently, California’s ban on high-capacity magazines, magazines that can hold more than ten rounds of ammunition, was upheld by a 7-4 ruling from the Ninth Circuit Federal Court as not placing too great a burden on gun owners or constituting an improper infringement on their Second Amendment rights.

As with most “new” gun laws and regulations, San Jose’s new proposal, which is expected to take effect later this year, will most certainly be challenged in the courts. In fact, Colorado-based National Association for Gun Rights filed a lawsuit the same day San Jose’s city council preliminarily approved the bill. The group filed for an injunction in U.S. District Court in San Jose. That lawsuit is pending.

California has been a hotbed of gun control laws and subsequent litigation in the courts ever since passage of the passage of The Mulford Act in 1967 by the state legislature and signed into law by then-governor Ronald Reagan. Prior to 1967 it was legal to carry loaded firearms in public. During the late 1960s The Black Panthers availed themselves of this right by conducting armed patrols of Oakland neighborhoods, keeping an eye on local law enforcement. The Black Panthers also regularly showed up at protests at various city halls and the statehouse fully armed. The Mulford act was carefully crafted to prevent The Black Panthers doing this, and it was successful in that regard.

San Jose’s proposed new law has no such racial targeting component or intent. But we will have to wait for several years and endure multiple court challenges to learn whether the new law is, in fact, Constitutional or not.

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California Gun Laws Prohibit Access To Convicted Felons

This week’s question comes from Anonymous in the East Bay who asks: “I read your article last week on guns and crazy neighbors while riding home on BART. It got me to thinking: I know some shifty dudes who have a lot of guns.  Some of them are felons and some have restraining orders out on them for domestic violence. They have some heavy pieces including AK 47’s and other assault weapons, machine pistols and silencers. I’ve also seen some bullet proof vests. They deal a lot of drugs and use the guns to “protect their interests.” Isn’t there some restriction on criminals owning guns? Can people still buy AK’s in California? What about body armor?”

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California’s Gun Regulations Explained

Today’s question comes from Priscilla in Hayes Valley who asks “As I would hope everybody else would be, I am outraged, sickened and angry with the senseless gun violence that we saw, AGAIN, in Florida when 17 people were senselessly gunned down by a man who was, apparently, suffering from mental illness. How can such a person get access to a gun? Is there law which limits access of crazy people to weapons? A member of my family is a gun nut and has a bi-polar disorder. He has a lot of guns and has made statements about “going postal” and “shooting up the town.” I am afraid of him going off and hurting someone. Please let me know what someone can do when they think that there is a time-bomb ticking away like this.”

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Dolan Law Firm Is Promoting Social Justice And Public Safety

Fatima Casas Dolan Law Firm Scholarship Winner
UC Berkeley student Fátima Casas, winner of the inaugural Dolan Law Firm Justice Empowerment Scholarship

Last Fall, I announced the Dolan Law Firm Justice Empowerment Scholarship for college students. The purpose of the scholarship is to encourage young people to advance the cause of social justice. Scholarship applicants were required to produce and post on YouTube a short video on the topic of justice. You can see the student videos at dolanlawfirm.com/about-us/scholarship.

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Dolan Law Firm Awards $2,500 Justice Empowerment Scholarship To UC Berkeley Student

2017 Justice Empowerment Scholarship winner Fátima Casas (on left) with Dolan Law Firm Litigation Paralegal Evette Padilla at our Oakland office.

Christopher Dolan, founder and lead trial counsel at the Dolan Law Firm, announced today that Fátima Casas, an undergraduate student at the University of California at Berkeley, has been selected as the winner of the inaugural Dolan Law Firm Justice Empowerment Scholarship. The firm awarded Casas a $2,500 scholarship.

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San Francisco Product Liability Lawyers

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Thousands of unsuspecting people each year are injured or killed because of dangerous and defective products that should never have been sold. Likewise, if the product, such as a car was recently repaired, that repair may have been done negligently, leading to liability for your damages.

Injured by a Dangerous or Defective Product?

The San Francisco product liability lawyers of the Dolan Law Firm have represented numerous individuals injured by defective products with excellent results. If you have been hurt by a product, you may be entitled to recover damages from the manufacturer, distributor, seller and/or installer of the product.

Injuries Due To Defective Designs

Products are sometimes defective in their design: They have a design flaw that causes them to harm people who are using them like any reasonable consumer would expect to use a product. They may also be defective because of inadequate or nonexistent warnings of known risks of injury. Sometimes, this can give rise to a third-party liability claim if someone uses one of these products while at work.

One example of a design defect is the Ford Pinto, which had a gas tank exposed to rear-end collisions. Other examples are:

  • Tires that blow out
  • Hoverboard accidents
  • Lawn mowers that have no protection from shooting rocks out of the side
  • Nail guns that fire without being depressed on wood
  • Circular saws with no guards
  • Baking pans that collapse under the weight of a turkey
  • SUVs that have too high a center of gravity
  • Helmets made out of plastic
  • Defective medical products, implants and drugs

Unfortunately, many manufacturers put profits ahead of people and do not adequately test their products for safety. We are here to hold these companies responsible when they do not put the public first.

IF YOU HAVE BEEN INJURED BY A PRODUCT, SAVE WHAT REMAINS OF THE PRODUCT AND ANY PACKAGING THAT CAME WITH IT IF YOU CAN. IT IS ESSENTIAL THAT YOU DO NOT DISCARD OR DESTROY THE PRODUCT AS THAT IS EVIDENCE CRITICAL TO EVALUATE YOUR CASE.

YOU HAVE A LIMITED TIME TO ACT OR YOUR RIGHTS MAY BE LOST. BE SURE TO CHECK IMPORTANT INFORMATION ON STATUTES OF LIMITATIONS.

Injuries Due to Manufacturing Defects

Sometimes products are defective because of their manufacturing: The design may be fine, but the manufacturing process was done negligently, causing the product to become dangerous. This often happens with food products that are not processed properly and cause the spread of disease or introduce foreign particles such as glass. Other examples include:

  • Tires that are made with defective rubber that blow out and cause wrongful death and injury
  • Cars that are not assembled properly that crash when wheels fall off or engines blow up
  • Planes that crash
  • Glass in food
  • TV screens that explode
  • Defective devices or batteries that leak and cause caustic burns
  • Hot tubs that short-circuit, etc.

In one case handled by the lawyers of the Dolan Law Firm, the tires on the defendant’s vehicle blew out, causing loss of control and colliding with our client’s vehicle. Our client suffered serious head injuries as a result. Head trial lawyer Christopher Dolan won a $650,000 settlement, including $550,000 from the tire manufacturer.

Visit our verdicts and settlements page to read about other cases handled by Chris Dolan and his team of lawyers.

Contact Our Product Liability Attorneys Today

The Dolan Law Firm uses experts to investigate the cause of a product failure. We retain and employ metallurgists, mechanics, draftsmen, machinists, accident reconstruction experts, physicists, rubber experts, scientists, chemists, doctors, designers, electricians, safety engineers and other experts to review these cases to identify what, if anything, about the product was defective.

Contact our San Francisco product liability lawyers online or call  415-636-8160 for a free case evaluation.


Se habla español.

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Motorcycle officer loses life, widow files lawsuit in California

We all have heard that accidents can happen anywhere and at anytime. This statement is literally true as one California family learned this past year when they lost their husband and father on May 26, 2011 in a motorcycle accident. Now, approximately 10 months later, the widow and her two sons have filed a lawsuit in Los Angeles Superior Court.

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CA Lawmakers Try to Decrease Motorcycle Accidents with More Safety Training

As we have mentioned over and over again, many accidents involving motorcycles often lead to serious injury or even death. Motorcycles are harder to see in traffic and do not provide a lot of protection when they are involved in a motorcycle accident. Crashes are often caused by the drivers of larger automobiles who fail to notice a motorcycle when they are driving on a roadway or turning a corner, but motorcycle crashes are also often caused by inexperienced cyclists.

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How will Supreme Court Opinions Affect California?

Written By Christopher B. Dolan and Cristina Garcia

This week’s question comes from Leticia who asks: Lately, the news has focused on the Supreme Court and their rulings. I’m concerned how all this will affect me. I live in the Bay Area and don’t plan to leave California any time soon. I want to know how the opinions released by the Supreme Court of the United States affect Californians? 

Dear Leticia,

Thank you for your question. The Supreme Court of the United States, also called SCOTUS, has released a series of opinions that affect various issues, from reproductive rights to environmental protection. A question that many Californians are asking themselves is how do the SCOTUS decisions affect our state?    

To understand how the SCOTUS decisions will affect Californians, reviewing the Supremacy Clause is essential. The Supremacy Clause is a clause within Article VI of the United States Constitution, which states that federal law is the “supreme law of the land.” Federal law preempts state law if it interferes with or conflicts with federal law. 

For example, the case of the New York State Rifle & Pistol Association, Inc., et al. v. Bruen, et al. illustrates how the Supremacy Clause preempted New York state law. This case involved two men who applied for permits to carry a concealed weapon in public. Under New York State’s Sullivan Act, local officials were given discretion in determining whether the applicant proved “good moral character” and “proper cause” for needing the concealed-carry licenses for self-protection distinguishable from the general community. Local officials determined that neither of the men had demonstrated proper cause and denied their requests. The two men then sued the state officials who oversee the process of licensing applications, alleging that their Second and Fourteenth Amendment rights were violated by denying their unrestricted-license applications.

After reviewing the case, the SCOTUS determined that “New York’s proper-cause requirement violates the Fourteenth Amendment. It prevented law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.” (Id.) The SCOTUS effectively struck down New York State’s Sullivan Act, which placed restrictions on individuals carrying concealed weapons. 

The SCOTUS decision is important to California specifically, as we have similar gun control laws to New York, and the recently decided case is now precedent. This means that the SCOTUS opinion will be used as authority by other courts when deciding subsequent cases involving similar facts or similar legal issues. Therefore, they SCOTUS opinion may be used to challenge gun laws in California. 

Although in New York’s case, the SCOTUS determined that federal law preempted state law, it has also issued opinions that embolden a state’s ability to enact legislation on various other issues, including those which the SCOTUS itself had once settled. A couple of those decisions are Dobbs, et al. v. Jackson Women’s Health Organization, et al., which overturned the landmark case of Roe v. Wade. The SCOTUS opined that the Constitution does not confer a right to abortion. They would return the authority to regulate abortion to the states. As a result, each state can ban abortions, place restrictions on abortions, or allow for safe abortions to take place. Similarly, in West Virginia v. Environmental Protection Agency (“EPA”), the SCOTUS limited the federal EPA’s ability to overhaul the nation’s electricity supplies in favor of wind power and other renewable resources. Therefore, allowing the states to determine what legislation to enact. Thus, although the SCOTUS opinions did not involve California, they may affect California laws. The cases discussed above are a short synopsis of the SCOTUS opinions. We strongly encourage everyone to read the opinions themselves or the detailed summaries of organizations such as the American Civil Liberties Union (ACLU). 

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Mass Shootings and the Impact of Biden’s Executive Actions on California

Written By: Christopher B. Dolan and Katelyn P. Dembowski 

Tess from San Francisco asks: President Biden just announced new executive actions on gun control. What do these actions mean? Isn’t Congress supposed to make these laws? How will this impact gun laws in California? 

Dear Tess: These are really pressing questions. As the number of distributed COVID-19 vaccines has surpassed 183 million, we have seen many parts of the country, and California, return to normalcy. Yet with guidelines softening and the pandemic coming to a close, we have found ourselves facing another epidemic: a resurgence of mass shootings and gun violence. 

President Biden’s Executive Actions

On April 8, 2021, President Biden announced a series of executive actions he would be taking to curb gun violence after two mass shootings in Georgia and Colorado left 18 people dead. The executive actions are only small steps towards a bigger goal for the Biden Administration. Aggressive and comprehensive federal regulations, like an assault weapons ban, strengthening background checks, and removing liability immunity from gun manufacturers are still in the hands of Congress. For now, President Biden has laid out the following actions, among others, that his administration will be taking:

  1. The Justice Department will issue a proposed rule to help stop the proliferation of “ghost guns.” 

Ghost guns are firearms that are assembled from kits, usually without any serial numbers, that cannot be traced. According to Everytown for Gun Safety, such firearms are easy to assemble and comparatively inexpensive: an AR-15 build kit costs as little as $345. The use of ghost guns has increased exponentially in places with strict gun laws like California. The Justice Department will issue a proposed rule within the next month that subjects buyers to background checks and requires the components to have serial numbers that allow them to be traced.

  1. The Justice Department will issue a proposed rule to make clear when a device marketed as a stabilizing brace will be subject to the requirements of the National Firearms Act. 

On March 22, 2021, an armed assailant walked into a King Soopers supermarket in Boulder, Colorado and killed ten people. The shooter was using an AR-556 semi-automatic pistol with a stabilizing brace, making the gun more stable, accurate, and more like a rifle. President Biden’s order will make these stabilizing braces subject to the National Firearms Act, requiring registration with the federal government and a $200 fee. 

  1. The Justice Department will publish model “red flag” legislation for states. 

“Red flag” laws permit police officers and family members to petition a state court to order the temporary removal of firearms from a person who they believe may present a danger to others or themselves. A 2016 study by Law and Contemporary Problems analyzed data from 762 guns removed under Connecticut’s “red flag” law, finding that for every ten to eleven guns seized, there was one averted suicide. “Red flag” laws used in other states could potentially mitigate some gun violence. 

For a comprehensive list of President Biden’s actions, please see the White House Fact Sheet. 

Congress’s Role 

While President Biden’s executive actions will offer federal rules and guidelines for the states to follow, Congress will have to pass any meaningful gun control legislation. In 1994, Congress enacted the U.S. Assault Weapons Ban of 1994. The law put a ten year ban on the manufacture of semi-automatic firearms for civilian use as well as “large capacity” ammunition magazines. The ban expired in 2004 under President Bush. 

A new bill introduced last week would have a similar effect. The Assault Weapons Ban of 2021, introduced by Representative Cicilline, RI and Senator Feinstein, CA will prohibit the sale, manufacture, transfer, and importation of 205 “military-style assault weapons” and magazines that hold more than 10 rounds of ammunition. This bill does not affect guns already in possession of gun owners and it exempts more than 2,200 types of firearms for hunting, household defense and recreational purposes. Democrats in Congress are adamant about passing gun control legislation while acknowledging rights under the 2nd Amendment. “We have to respect people who are gun owners.” stated Rep. Cicilline, “We have a right, too, to ensure that people can live a life free from gun violence.” 

Should this bill pass both the House and the Senate, President Biden would sign it and it would become a national law. 

Impact on California 

California has some of the strictest gun laws in the country. California already requires universal background checks for all gun sales, limits ammunition magazines to 10 rounds, requires a 10-day waiting period before a buyer can take possession of a firearm and banned military-style weapons decades ago. California further requires gun owners to store guns unloaded and in places not accessible by children or adults prohibited from possessing a gun.  

President Biden’s executive actions will change very little about gun regulation in California. Many of the actions he announced are already law in the state, including a “red flag” law, ammunition limits, waiting periods, rifle regulations, and handgun safety training. However, ghost guns have been linked to many shootings in California because of the more stringent gun laws. There is hope that the proposed federal rule will help decrease the circulation and use of ghost guns in California. 

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