Policy | Dolan Law Firm

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.

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:

You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
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.

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.
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. 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.

First, there must have been contact between your vehicle and the hit and run vehicle.
Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
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.

Jury duty and disabilities

Following an article I wrote recently on jury selection, I was contacted by a Stephen W., a psychiatrist, who asked that I inform people who suffer from disabling conditions about their rights if called for jury selection. I was reluctant to write this article, as I do not want to provide people with excuses to try and get out of jury service. However, I have personally observed over the past 25 years that there are people with disabilities, both physical and mental/emotional, for whom jury service may be ill-advised or damaging.

Jury service is a civic duty. The right to a jury trial is one of the fundamental rights all Americans possess, ensconced within the Bill of Rights, the first ten amendments to the Constitution, and the Seventh Amendment. Interestingly enough, there is no right to vote contained in the Bill of Rights. Not until 1870, following the civil war, was the Fifteenth Amendment passed which stated that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State because of race, color, or previous condition of servitude [slavery].”

Jury service is a fantastic experience in participatory democracy. You and twelve ordinary citizens, after listening to the facts of a case, and the instructions on the law given by the judge, get together in a room and deliberate. Webster’s Dictionary defines “deliberate” as “to think about or discuss issues and decisions carefully.”

Jurors are identified by voter roles and DMV records and are chosen at random. The local jury commissioner issues subpoenas through the mail. California law provides that a juror may be summoned only once a year. Some trials are longer than others. For example, a criminal misdemeanors trial for shoplifting may take a day, whereas a murder trial may take several months. Likewise, a civil trial for a simple rear-end collision may be a day long, whereas a complicated wrongful death case or employment discrimination case may take weeks or months. The longest trial I have ever participated in was an employment case that lasted three and a half months.

There are penalties for any prospective trial juror who has been summoned for service and fails to attend as directed. Pursuant to California Civil Code Section 209, a judge may issue a warrant of attachment compelling a person who fails to respond to a juror summons to come before the judge. Following a hearing, the court may find a prospective juror in contempt of court, a crime punishable by fine, incarceration, or both.

Nevertheless, under Code of Civil Procedure Section 228, a prospective juror may be disqualified at the judge’s discretion if they have an incapacity which makes them unable to perform the duties of a juror. The California Rules of Court Rule 2.1008(d) states reasons for which a judge may grant an excuse from jury duty, including when a prospective juror:

Lacks “reasonably available means of public or private transportation to the court”
Must travel in excess of 1.5 hours from home to the court
Would bear extreme financial burden taking into consideration their income, expected length of jury service, availability of reimbursement for lost income, risk of compromising their ability to support themself and any dependants, and other unjust outcomes
Would unduly and unavoidably risk material injury to their property
Is “immediately needed for the protection of the public health and safety” to prevent “substantially reducing essential public services”
Is required for the personal care and attention of a dependant with no comparable economical substitute

Finally, and relevant to your question, a judge may grant a prospective juror excusal from service if they have “a physical or mental disability or impairment, not affecting that person’s competence to act as a juror, that would expose the potential juror to undue risk of mental or physical harm.”

Prospective jurors who believe that they medically or psychologically cannot sit as jurors should come to court on the date of their summons with a letter from their physician, psychologist or psychiatrist. Before jury selection, the judge will ask the assembled prospective jurors if they have a hardship which would preclude them from jury service. Those who believe they do will be allowed to fill out a hardship questionnaire. That is the time to inform the judge of your disability, supported by documentation verifying appropriate impairments and detailing their probable duration and impacts on ability to serve as a juror. If such an individual is aged 70 years or older, no documentation is required. They will then review your request, may ask for a letter or further explanation, and will grant or deny your request as appropriate.

A juror with a disability may alternatively be entitled to an accommodation so that the prospective juror can participate in the trial. California Civil Code Section 224 states, “The court shall appoint a service provider whose services are needed by a juror with a disability to facilitate communication or participation.” Available services include court-appointed sign language interpreters, oral interpreters, or deaf-blind interpreters. Likewise, a juror may ask for breaks, the ability to stand or even lie down. (Yes, one time I had a juror with a bad back who was allowed to lie down during the trial with her head propped up so she could see the evidence)

Some prospective jurors may seek disqualification due to a special vulnerability to emotional distress given the facts of the case at hand. In a case I tried several years ago, a prospective juror indicated they suffered from depression and felt that the case we were about to try, involving a woman claiming severe emotional distress, would be emotionally damaging to her. The judge, after hearing from the prospective juror, and observing her demeanor, dismissed her from further jury service. In another case, involving gynecological malpractice leading to the death of a baby, the judge excused a prospective juror who was pregnant and felt that it would be psychologically traumatizing for her to hear the facts in the case. Moreover, criminal trials for rape, assault, sexual abuse or death of a loved one may involve facts which are too intense for some people who may have suffered from similar crimes. If the facts of a particular case are the basis for a hardship, the judge may dismiss such a juror or send them back to the Jury Commissioner for assignment to a different type of case.

As a trial lawyer I encourage everyone to serve as a juror. Jurors are essential to our system of justice and, if you were a defendant or plaintiff, you would want a fair jury of your peers to hear your case.

This week’s question comes from Bryan L. in Oakland, who writes: “How do I get out of jury duty?”

Dear Bryan: Seriously, shame on you. Simple answer, DON’T.

One sure way to get out of being on a jury is to be a criminal defendant. Then you don’t have to sit on a jury and, at the same time, you will hope to God that you will have a group of people who didn’t try and evade their civic responsibility and are willing to sit and fairly hear your case and defense. Another way is become a convicted felon and be deprived of your constitutional rights such as bearing arms, being free from unlawful search and seizure, and the ability to sit on a jury or vote.

The original founders, who fought and died for our independence called the right to a jury: “A sacred right” …. “the most important privilege which freemen can enjoy.” The deprivation of a right to jury trials was one of the main grievances leading to the Revolutionary War. This right is listed in the Magna Carta, the Declaration of Causes and Necessity of Taking Up Arms (1775) and the Declaration of Independence (1776). So, jury service is not a hassle, it is a sacred duty people died for. It is part of what we are fighting to establish all over the world with our armed forces.

The United States Constitution, in the Sixth Amendment (part of the Bill of Rights) proclaims: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The California Constitution Art. 1, Sec. 16 states: “Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute. In civil causes the jury shall consist of 12 persons….” In criminal actions in which a felony is charged, the jury must also consist of 12 persons, in misdemeanor cases the parties can agree to a lesser number.

The California Legislature has proclaimed: “The Legislature recognizes that trial by jury is a cherished constitutional right, and that jury service is an obligation of citizenship. It is the policy of the State of California that all persons selected for jury service shall be selected at random from the population of the area served by the court; that all qualified persons have an equal opportunity, in accordance with this chapter, to be considered for jury service in the state and an obligation to serve as jurors when summoned for that purpose; and that it is the responsibility of jury commissioners to manage all jury systems in an efficient, equitable, and cost-effective manner.”

As a practical matter, your county court uses DMV and voter registration lists to select potential jurors at random. The purpose of random selection is to ensure that cases are decided by a fair cross-section of the community, also affording members of all communities the opportunity to contribute to our justice system at the ground level. Jurors are not expected to have any specific knowledge prior to serving; they need not even speak perfect English to qualify so long as they can understand and discuss the case. The only requirements for jury service are U.S. citizenship, at least 18 years of age, residence in the county serving the summons, and absence of conservatorship or felony conviction. Persons with disabilities are entitled to reasonable accommodations including wheelchair access, readers, assistive listening devices, sign language interpreters, and real-time captioning.

Most trials require a week or less of your time, although length may vary depending on the complexity of the legal issues involved and how quickly jurors arrive at the required level of consensus. Jurors receive a $15 per day stipend plus one-way transportation costs beginning on the second day of service. Your employer is required by law to excuse you from work without negative repercussions while you serve as a juror; if you experience harassment or other adverse employment action, you can file a claim with the California Division of Labor Standards Enforcement. However, it is always advisable to notify your employer as soon as possible after receiving your juror summons to allow for any necessary preparations to be made in case of your absence. If there is a reason why a specific date is inconvenient for you, you can usually request to postpone your service for up to six months by following the instructions on your summons notice.

No potential juror should be called for service more than once in twelve months and no one may serve on more than one jury concurrently. If you think you have been called improperly, you should call the court to resolve the situation. Additionally, there are limited circumstances under which you may request an excusal from jury service for at least one year, including if you are over 70 and have a serious health condition, if you are a breastfeeding mother or are otherwise indispensable to a dependant’s care, if you require accommodations that the court is unable to provide, or in cases of extreme financial hardship. However, if you are qualified to serve and have not been granted an excusal, failure to respond may cost you up to $1,500 in fines.

As sacred of an institution as jury service should be held, it has not been spared by criminals seeking to fraudulently exploit others’ civic commitment. In recent years, there has been a trend in “spam” phone calls from people purporting to be court officials requesting personal identifying and financial information. Jury staff will never ask for personal information over the phone. If you receive such a phone call, do not give any personal information and immediately contact your local police department and jury service office.

As a trial lawyer who brings cases on behalf of his injured clients in front of juries, I can tell you that jury service is the purest form of democracy that exists on this planet. It is part of a process where 12 people decide what the community standards will be, whether rights will be bestowed or taken away. All juries that I have appeared in front of felt proud and patriotic after serving on a jury. So you should try it before the day that maybe your rights may be taken from you without a trial by your peers.

So lets all of us, be patriotic Americans and serve our country by responding to our summons for jury duty when called upon. Help bring fairness and justice to our troubled world.

By attorney Christopher B. Dolan, owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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