Navigating A Hit and Run Claim

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland: I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least.  The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):

What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?

There are two ways that med pay typically works:

  1. You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
  2. You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?

There are several reasons this coverage is useful even if you have health insurance.

  1. First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
  2. Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments.
  3. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):

What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.  

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.  

How does it work?

With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage.

  1. First, there must have been contact between your vehicle and the hit and run vehicle.
  2. Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
  3. Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement.

These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?

In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault.  (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.  

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?

Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.  

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What You Should Know If You Are Injured as a Passenger on Public Transportation and The Defendant is a Government Entity

Written By Christopher Dolan and Cristina Garcia

This week’s question comes from Julia L. in Pacific Heights, CA, who asks: I am a frequent city bus rider who rides to work every day. While on the bus last week, I felt a sudden acceleration through the intersection followed by a strong impact on the right side of the bus, where I sat. The crash surprised me because I was reading an email at the time of the collision. When I looked up, the traffic light facing the bus was red, and there was a truck smashed into the side of the bus. At first, I was okay, then felt an unbearable pain in my right arm. The paramedics informed me that I had a broken arm and needed immediate medical attention. I had surgery and stayed overnight at the hospital. I have significant medical bills and missed several days of work due to the accident. Although the police report is not ready, based on the statements I heard from eyewitnesses, it appears that the city bus ran the red light. I have heard special rules apply when pursuing a personal injury claim against government entities, such as a city bus. However, I am not sure what are my next steps. How do I file my claim against a government entity?    

Hi Julia,

This is a great question. Many people are unfamiliar with the unique requirements an injured person must comply with before filing a lawsuit against a government entity. Generally, the statute of limitations (the period when a lawsuit can be filed) is two years from the date of the accident or injury in California. However, special rules apply when a government entity is responsible for the injury. When pursuing a personal injury claim against a government entity, in your case the City or County, you must first file a special claim often referred to as an “administrative claim” with the government office or agency before you file in court.

It is important to note that there is a limited time in which you can bring an administrative claim against a government entity. Under California Government Code Section 910, you must file a claim against the government entity within six (6) months after the event or occurrence. It must be filed with the appropriate government office or agency. Please note that you must use the claim form of the particular government agency when filing a claim, as section 910 prescribes a list of the required information you must provide in your claim. Otherwise, the claim may be deemed invalid.   

After filing your administrative claim, the government entity has 45 days to accept or reject the claim. If the government rejects all or part of the claim or does not respond within 45 days, the injured person can file a lawsuit in court. If the government entity rejects the administrative claim, the injured person only has six months from the date of the rejection letter to file a lawsuit.

If you are successful in your claim against the government, you can seek financial compensation for your injuries, including medical bills, loss of income, property damage, and pain and suffering. However, the statute of limitations for government claims can be complicated. Therefore, we highly encourage you to seek legal representation to ensure that you comply with all the requirements as prescribed in Government Code Section 910.

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Implementing Diversity, Equity and Inclusion (DE&I) Initiatives Within Law Firms and Corporations

Written By Christopher B. Dolan, Mari Bandoma Callado, and Katelyn P. Dembowski 

This week’s question comes from Skyler from San Francisco who asks: There is a lot of talk going on right now about diversity, equity, and inclusion within corporations. Is your firm doing anything to foster diversity yourselves? If so, what can others do to follow your lead? 

Thanks for your question, Skyler. In the winter of 2020, senior associate attorney Mari Bandoma Callado approached Dolan Law Firm Founder and Chief Legal Officer Chris Dolan about starting a Diversity, Equity & Inclusion (DE&I) Committee. This was right after the peak of the Black Lives Matter movement in the summer of 2020. Mr. Dolan was immediately on board with her vision. It was an easy transition because our firm has always been supportive of attorneys being involved in DE&I initiatives outside the firm, including but not limited to, sponsoring diverse bar association fundraising efforts, encouraging attorneys to take leadership roles and/or volunteering at community organizations and events. The firm was also very supportive of attorneys with children and has allowed a more flexible schedule for new parents.  

However, every organization or law firm is different. There is no “one size fits all approach” to starting a Diversity, Equity and Inclusion Committee or implementing DE&I initiatives. This article will discuss information on the importance of DE&I and provide tools on how to establish a DE&I committee or initiative as well as reflect on the success and challenges of the Dolan Law Firm’s efforts.

What is Diversity, Equity and Inclusion (DE&I)

Diversity is expressed in different forms including visible and invisible diversity: race, ethnicity, gender and gender identity, sexual orientation, age, socioeconomic status, language, culture, religious commitments, and (dis)ability status.

However, diversity without “Inclusion” is exclusion.  Most lump diversity and inclusion together but they are actually two different things and having diversity does not necessarily translate to inclusion.  Inclusion is diversity in action.  It’s about creating an environment that understands, accepts, and values the differences between people – and not just different backgrounds but different ideas, experiences, and perspectives.

Equity or the experience of fairness is about ensuring that all people have equal opportunities, and that bias, harassment, and discrimination are not tolerated.  It involves an understanding that not everyone’s path is the same and eliminating the barriers that prevent the full participation of some groups.

Developing a DE&I Strategic Plan

We recommend collaborating with stakeholders and supporters in developing a DE&I strategic plan based on the firm-wide assessment you conduct. It was important for us to take our time in scaling the program and working as a group to build a shared vision and determine our goals.  This included extensive discussions within the committee (which included heads of human resources and marketing) and encouraged participation from everyone at the firm by inviting all staff to monthly planning meetings.

The Dolan Law Firm Committee drafted a mission statement and objectives as a group:

Mission Statement: In order to deliver equal justice for all, the Dolan Law Firm is committed to advancing and nurturing a diverse, equal, and inclusive workplace that reflects the communities we serve.

Implementing DE&I Initiatives

Implement a structure to facilitate your plan. Through our monthly meetings (which were held virtually during the pandemic), we were able to delegate tasks and coordinate the programming and activities to fulfill our objectives related to retention, recruitment, and community outreach.

  1. Retention

A key component is including an activity or discussion that allowed us to get to know each other better and for employees to be better understand their own experiences and even their own biases.  The Committee came up with group activities depending on the presentations we were doing that month, things that were happening at the firm, and/or current events.  Sample group activities include:

  • Discussion regarding the use of pronouns;
  • “Land Acknowledgement” presentation;
  • Activity on overcoming imposter syndrome;
  • “Wall of Appreciation” which allowed members of the committee to anonymously tell each other things they appreciated about their colleagues;
  • Activity on identity and diversity – “How Does the World See You?”;
  • Discussion on “What is your superpower?”; and
  • Check-in on the highlight of your week.

During the first year, we focused on developing DE&I presentations and activities created by our committee members to fulfill the retention objective of our mission statement.  Sample presentations include:

  • Black History Month presentation on the Unsung S/heroes of the Civil Rights Movement 
  • Women’s History Month Presentation on Intersectionality 
  • Anti-AAPI Hate Presentation + Bystander Intervention Training
  • Celebrating Diversity Month – Presentation on Implicit Bias 
  • Celebrating Pride Month – Pride Month Presentation 
  • Anti-Semitism in Progressive Spaces Presentation 
  • Latinx/Hispanic Heritage Month Presentation 

  1. Recruitment

It is important for the Committee to be part of recruitment efforts. We have a representative at each attorney and/or staff interview who shared the firm’s commitment to DE&I and to ask questions to gauge the candidate’s interest and/or commitment to DE&I.  We also added the mission statement/commitment to DE&I in job postings. The committee continues to collaborate with Human Resources in developing and implementing the DE&I talent acquisition strategy. 

  1. Marketing and Community Outreach

A DE&I representative is part of the marketing team and assists with ensuring that the firm continues to be connected to the community that we aim to serve.  The Committee regularly creates content for the firm’s website and social media accounts that highlights the diversity of our team, issue statements that reflect the commitments and values of the firm, and regularly spotlight our team members who are doing incredible things for the community through their leadership roles and volunteer work.

Additionally, the firm is committed to supporting organizations that share the same commitment to DE&I. The firm is a long-time supporter and sponsor of various organizations such as the CAOC Diversity, Equity and Inclusion Committee, the Bay Area Lawyers for Individual Freedom (BALIF), Filipino Bar Association of Northern California (FBANC), East Bay La Raza, and just recently became a sustaining law firm member of the Charles Houston Bar Association.  

We hope you found this information useful and if you know any firms or organizations looking to implement more DE&I measures, please do not hesitate to reach out to us. 

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Celebrating Cesar Chavez Day

Today, we celebrate and honor Cesar Chavez, an American labor leader and civil rights activist, and his commitment to social justice. Chavez’s work and that of the United Farm Workers — the union he helped found — improved pay and working conditions for farm laborers in the 1960s and 1970s, and paved the way for landmark legislation in 1975 that codified and guaranteed agricultural workers’ right to unionize, bargain collectively with their employers and vote in secret-ballot elections in California.

Learn more about Cesar Chavez and the Organized Labor Movement today at 11:30 am.

Webinar: Cesar Chavez and the Organized Labor Movement – History and Perspectives
March 31, 2022 @ 11:30 a.m. | FREE REGISTRATION
In this webinar, you will hear from individuals who knew and worked alongside Cesar Chavez, and those who work to continue his legacy. They will describe how Chavez’s life and work impacted the organized labor movement, and how that impact continues to be felt today.
Speakers: Ira “Buddy” Gottlieb, Carlos Perez, Cinthia Flores, and Emilio Huerta
Moderator: Stephanie J. Joseph

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Blog post:
Today, we celebrate and honor Cesar Chavez, an American labor leader and civil rights activist, and his commitment to social justice. Chavez’s work and that of the United Farm Workers — the union he helped found — improved pay and working conditions for farm laborers in the 1960s and 1970s, and paved the way for landmark legislation in 1975 that codified and guaranteed agricultural workers’ right to unionize, bargain collectively with their employers and vote in secret-ballot elections in California.
Learn more about Cesar Chavez and the Organized Labor Movement today at 11:30 am.
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The Difference Between Personal Injury and Workers’ Compensation

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Kisha J. from San Francisco who asks: Hi, my friend Angelino is a garage door repair man, and he recently got hurt while on a job. While he was up on the ladder working on the overhead door opener, the homeowner put several boxes behind his ladder. He fell on them when he came down the ladder and broke his ankle. He said he has been off work for a couple of weeks now and is making a worker’s compensation claim. I think the homeowner has some responsibility too, because he would not have fallen and broken his ankle if he hadn’t put boxes behind him.  Is the homeowner responsible too?

Dear Kisha,

Your friend’s claim may be both a workers compensation claim and a third-party personal injury claim. The two types of claims are compatible and can be made simultaneously. In the most basic sense, a worker’s compensation claim is more limited in the compensation available, but it is often very quickly awarded, and there is no consideration of the injured party’s fault. Third-party personal injury claims often yield more compensation, but usually take longer and will examine the injured party’s own role in the cause of the injury and harm.  

The worker’s compensation system is a “no fault” system. So long as the injury occurred while a person was at work, it does not matter who caused the injury. One does not need to prove that the employer or co-workers did anything wrong. Even if the injured party did something wrong, they are still usually covered. The workers compensation system has limited coverage though and is only available to cover medical costs and replace a person’s lost wages. Workers’ compensation claims do not cover general damages.  

In a third-party action, when someone is at fault for doing something wrong, the harmed person can seek to recover both special and general damages. In a third-party action the injured party must prove that a third party was negligent, and that the third party’s negligence caused the injury. For example, failing to stop at a red light causing a vehicle collision would likely qualify as negligence by another that caused harm to the injured party. In such a case, special damages are available and cover, in very general terms, things the injured person has receipts for, such as medical bill and lost wages. Moreover, in a third-party action one can also seek to recover general damages, which are typically referred to as pain and suffering. The law includes physical and mental pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress as elements of general damages. 

Generally speaking, third-party cases, are brought when someone other than the employer or coworker was negligent. The most common instances where an employee will bring a third-party action for injuries that occurred when they were working, are for defective products (action where a claim is made against the manufacturer of the product used to do a job), the injury was caused by a toxic or illegal substance, the employer did not carry worker’s compensation insurance, or the injury was caused by a third-party who was not a part of the company.

Workers Compensation and third-party personal injury claims can be brought at the same time. When they are, then the third-party claim may be required to reimburse the workers compensation claim. For example, if all of your friend’s medical bills have been covered in his workers compensation action and he makes a claim for the medical special damages in his third-party action, the worker’s compensation matter may seek reimbursement for what has paid out to your friend as replacement wages. The idea here being that the injured party should only recover his lost wages once. If he receives wage replacement from workers compensation, that is also later paid by the third party, it is only fair that the compensation system be reimbursed.  

While most jobs have worker’s compensation coverage, there are two categories of employees who do not receive coverage for injuries at work under a workers compensation plan. Those two special categories are interstate railroad workers and crew members on boats. The railway workers can bring an injury claim under the Federal Employers Liability Act, and vessel crew members can bring injury claims under the Jones Act.  

In this situation you’ve talked about the homeowner could face a claim as a third-party defendant. To bring a matter against the homeowner, the homeowner’s actions would need to be evaluated to establish if the actions were negligent. An attorney would need to evaluate the circumstances of your friend’s fall and see if there is a cause of action against the homeowner.  We wish your friend a speedy recovery.

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Who is responsible for Dangerous Conditions on Roadways?

Written By Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Ashely L.  from San Jose: My uncle Ralph was driving his motorcycle in an unincorporated area of San Jose when he lost control and went down. It appears that the road was unkept. I am trying to help my uncle, who doesn’t even have email and is not good with using the internet, with his case. The police officer said that the road should have had a sign and a barrier, because lots of accidents happen at that location where my uncle lost control. I am not sure how we go about proving the road caused my uncle’s accident. Does whomever own the roadway have insurance, like cars do to pay claims? 

Ashely, I am sorry to hear that your uncle was in the accident. The type of case you are describing is called a Dangerous Condition case. These are very complex legal cases, and they are not the kind of case that I advise that injured victims, or their families tackle alone. To prove a Dangerous Condition case, you must prove that the roadway was a dangerous condition, that the government entity who controlled or owned the road, knew or should have known about the dangerous condition, and that they had time and money to fix the condition, but did not. Your family would also have to prove that the dangerous condition in the roadway caused the accident. Dangerous condition cases can involve motorcyclist, runners on a highway, cars, trucks, or even bicycles. The Defendants in these cases are the cities or counties that own the road. 

It is important to document the scene immediately with photos if the injuries are serious. The first thing our law firm does is go to the roadway in question or use the police report to pull the location up on Google Earth. Often the police reports for accidents, wherein a roadway condition may have contributed to the loss, do not document the scene well, or even mention a dangerous condition that may have contributed to the accident. We have personally litigated a motorcycle collision wherein a pothole caused the crash, yet no pothole was photographed or even mentioned in the police report. In this case, a witness was able to describe what the motorcyclist hit, and what happen to him, as our client had no memory of the crash.  

After visiting the scene, the next thing your attorney should do is research the accident history through the TIMS database maintained by UC Berkley and issue a Public Records request of the county and city the subject roadway is in. The TIMS database allows you to enter in a county and city pull all accident history for the location by way of a map or a list. This can help us get an initial baseline on whether or not a dangerous condition can be proven. The number of accidents at a location, if it is higher than normal, goes to prove notice of the dangerous condition and that the location is dangerous. You want to look for similar accidents, so in your case you are looking for single vehicle accidents, as opposed to a sideswipe collision. This information is then verified with a public records request to Caltrans for the same data. The TIMS database is free, and so are public records requests typically. Remember, a court will only consider similar accidents in considering whether accident history is relevant to your case. 

Another thing you and your attorney should do is get public records request from the entity that owns or controls the subject roadway. These public records requests are usually tailored to government entity claims regarding the location, complaints, roadway work and maintenance, along with evaluations done for repair of the subject roadway such as pavement index reports or permit and bidding documents. Lastly, if the case is near commercial buildings or in a residential area, often our firm will hire a private investigator to conduct additional research. Long term business owners or homeowners may have taken pictures of your alleged dangerous condition. Depending on the type of dangerous condition, these business owners or property owners may have also attended City Council meetings and demanded action or emailed the city. There have even been instances where neighbors complained to the city on social media applications like Nextdoor, which can be used. 

Because these types of cases have strict guidelines regarding claim presentation and pleadings it is also advisable to seek counsel to investigate this for you. An attorney can gather this data and advise you of the likelihood of being successful in a dangerous condition case, very quickly. I hope your family continues to heal and you get answers as to what occurred that day for your uncle. 

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March 15 is Equal Pay Day

March 15 marks the day in 2022 when women finally catch up with what men were paid in 2021 #EqualPayDay. For every dollar a man makes, women, on average, only earn 83 cents. Women of color experience a much wider #WageGap. Black, Native American and Latina women earn 58 cents, 50 cents and 49 cents for every dollar a white, non-Hispanic man earns, respectively.  We cannot achieve #WomensEqualPay without ensuring women of color are supported and protected in the workplace. 

According to the history of the American Association of University Women, an analysis of newly released figures from the U.S Census Bureau and the Bureau of Labor Statistics shows that overall in 2020 women were paid just 83 cents for evert dollar paid to a man.

“In 2019, on average women took home 82.3 cents for every dollar paid to men, compared to 83 cents in 2020. But that number and the apparent change is misleading given the massive shifts in American labor force during the COVID-19 pandemic”. 

To learn more about the gender pay gap from AAUW, click here.

 California Labor Code 1197.5 and Labor Code section 432.3 contain California’s Equal Pay Act. These laws state no employer shall pay any employee at a wage rate less than an employee of a different sex or ethnicity performing substantially-similar work. Moreover, an employer may not base a wage differential on sex, ethnicity or another protected class. Instead, the employer must show valid and legal grounds for the difference in pay, such as merit, seniority, quality of production or a bona fide factor such as training, education or experience.

If you believe that you are being treated differently because of your race and/or gender, contact the Dolan Law Firm’s team of employment attorneys.

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Celebrating International Women’s Day

March is International Women’s Month and today Dolan Law Firm acknowledges our everyday heroes who work within this community. As a firm, we have more members who identify as women than any other gender classification/identity. The women in this firm are engines that make it possible for the DLF to provide justice, and make an institutional change, on a scale that exceeds expectations of what a firm our size could be expected to do.

The strength, power, loyalty, dedication, and determination, combined with the power each of our community members who identify as women brings to bear every day makes this a special and effective place. The insight and perspective often brought to bear in strategizing and executing our enhanced by this diversity. Today, and throughout this month, we wish to especially celebrate the powerful women who we have the honor of working with every day.

We appreciate your roles as a lawyer, mother, daughter, sister, friend, partner and colleague from running businesses to serving on boards, to working hard to change the world. Women empowerment is not just for today, it is for life.

International Women’s Day is observed annually on March 8th and celebrates the global “social economic, cultural and political achievements of women” according to the International Women’s Day website. Today also calls for action to advance gender equality. 

Even though women have made great strides towards equity, women’s fight for equal rights continues. The gender pay gap continues to impact women’s economic power. Gender discrimination and sexual harassment are still prevalent in the workplace. The Dolan Law Firm is committed to fighting for equal rights and justice for all. Contact us if you believe you have been discriminated against, sexually-harassed, or denied your rights at work. 

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Here’s how to celebrate International Women’s Day in 2022: 

Theme

The campaign theme for 2022 is #BreakTheBias. The hashtag spotlights the individual and collective biases against women that fuel gender inequality. 

Pictures/Selfies

Pictures of people crossing their arms to strike an “x” pose on social media show solidarity with the theme of International Women’s Day 2022. 

Colors

Purple, green and white are the colors of International Women’s Month. 

For Additional Guidance and Resources, visit International Women’s Month website

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

Written By Christopher B. Dolan and Matt Gramly

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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