In early February, the City Council of San Jose, California, approved a first-of-its-kind ordinance requiring gun owners to carry liability insurance. One of our readers wrote to us around the same time wanting to know more about the policy. This reader asked:
Gun rights advocates claim the Second Amendment ensures their right to bear arms. But the Second Amendment does not require the public to subsidize gun ownership by paying for the ambulances, police, emergency room technicians, therapists, and compensation to victims. Should gun owners be required to purchase mandatory gun liability insurance in the event their guns kill or maim an innocent person?
In San Jose, city leaders say gun liability insurance will work like auto insurance by incentivizing safe behavior through lower premiums for responsible gun owners. They also claim that requiring insurance will offset the cost of the city’s gun violence to taxpayers, which was recently estimated at nearly $40 million a year. “We believe we can better, more equitably distribute that cost and reduce the harm from guns,” said Mayor Sam Liccardo, who first proposed the insurance measure after a series of mass shootings in 2019.
But as we pored over the particulars of San Jose’s ordinance and interviewed insurance experts, we found that the plan may end up not being as effective as proponents have advertised: It will only cover shootings that occur under a narrow and specific set of circumstances, providing little incentive for gun owners to adopt safer practices.
Below, we break down the basics of this novel policy and examine how this new ordinance might work in practice.
What does San Jose’s ordinance require?
Starting in August, gun owners in San Jose must have a homeowners, renters, or firearms liability insurance policy that covers property damage, bodily injury, and other losses resulting from the accidental use of a firearm. They have to complete a city-issued form listing the insurance company and the policy number. This form must be kept wherever the firearms are stored or transported, and gun owners must show it to police if asked.
Property and liability coverage for gun accidents is already included in most standard homeowners policies, usually at no additional cost, said Janet Ruiz, a spokesperson for the Insurance Information Institute, an industry trade group. “If you already have homeowners or renters before the ordinance, you don’t have to do anything differently once it takes effect.”
In addition to buying the insurance policy, San Jose gun owners will have to pay an annual $25 “gun harm reduction fee” that will go toward the creation of a new nonprofit devoted to preventing gun violence. Per a memorandum on the ordinance, that nonprofit will distribute the funds to groups that provide behavioral and mental health services, suicide prevention counseling, violence reduction and domestic abuse services, and firearms education and training. The city will not have any say over how the funds are distributed, according to the ordinance.
Why the City Council decided to set the fee at $25 may have something to do with the results of a recent study by the nonprofit Pacific Institute for Research and Evaluation. The study, which was commissioned by city officials, pegged the annual cost of unintentional shootings in San Jose at $1.26 million. Were that cost to be spread among the city’s estimated 50,000 to 55,000 gun-owning households, that would work out to between $23 and $25 each.
There are exemptions for licensed concealed carriers, current and former police officers, and those experiencing financial hardship. But gun owners not in those groups who don’t comply with the ordinance will face a financial penalty, and their weapons could be impounded.
What does the city hope the ordinance will accomplish?
San Jose officials view it as a way of encouraging firearm safety. Such a strategy has proven effective in the past, said Peter Kochenburger, an insurance law expert at the University of Connecticut School of Law. Before seat belts, airbags, and anti-lock brakes became standard in cars, insurance companies rewarded drivers with premium discounts for buying vehicles that came with such features. Homeowners get discounts for installing smoke and carbon monoxide detectors, erecting childproof fences around swimming pools, and buying homes close to fire stations. Instead of mandating safe gun storage directly, by requiring insurance coverage, “the enforcement mechanism is financial,” Kochenburger said.
The city is also looking to redistribute the costs of gun violence currently borne by victims, taxpayers, medical insurers, and life and disability insurers. San Jose spends around $7.9 million annually to deploy emergency services and police officers to shootings, according to the Pacific Institute study. When you add in medical and mental health care, victim services, criminal justice, and employer spending to compensate for absent workers, shootings in the area cost the local, state, and federal government around $39.7 million per year.
How will the premiums for gun liability insurance be determined?
Liccardo, the mayor, has said that safe gun behavior will determine insurance rates and lead to discounts. He told Slate last month: “When you notify the insurance company, the insurance company can start to ask questions like, ‘Do you have a gun safe? Do you have a trigger lock? Have you taken gun safety classes?’ And those kinds of actions can help to reduce the premium.”
But experts we spoke with said insurance companies won’t be asking these questions, and gun owner behavior probably won’t influence rates, because the ordinance only requires policies that cover accidental shootings, which are rare in San Jose. “It’s totally oversold,” said George Mocsary, a law professor at the University of Wyoming. “I think it’s an idea that makes sense on the surface. But when you dig into it a little bit, it essentially falls apart.”
A spokesperson for the Mayor’s Office, Rachel Davis, told us that staffers reached out to “over a dozen” insurance companies and that all of them asked about risk factors. These included whether children lived in the home, whether someone was on medication for depression, whether there is a gun safe, how many guns were in the house, and if the gun owner had safety training. But Davis didn’t say how these factors would affect premiums.
“While there’s a clause in most policies that covers negligent gun harm, it’s up to the gun owner to disclose more information that could affect their rates,” Davis said in an emailed response to our questions. “It’s also up to each of the insurance companies to define their policy requirements and up to residents to find the insurance policy that will work for them.” Davis insists that when gun owners file a claim, they will be asked about risk factors like gun storage, and the answers to those questions will determine whether a shooting is covered.
We reached out to several major insurance providers for more details about how the policies will work, but only three got back to us. Farmers and State Farm, referred us to Ruiz of the Insurance Information Institute, while AAA said in a statement: “AAA supports the safety and security of our communities, which is why we offer insurance covering a broad scope of losses. We are reviewing the newly passed ordinance to determine whether it affects our products.”
According to the Pacific Institute study, San Jose has an average of two unintentional shooting deaths per year. The nonprofit Gun Violence Archive, meanwhile, has recorded just three unintentional shootings in San Jose since 2015, resulting in two deaths and two injuries. Those figures may be an undercount — GVA bases its tallies on news and police reports, which can be incomplete — but even so, none of those shootings would have been covered by San Jose’s gun owners insurance because they all resulted in criminal charges.
According to Mocsary, the rarity of unintentional shootings make the odds of ever paying out on a claim so low that “the insurance companies just don’t care.” “They’ve already had the opportunity to do the actuarial math on this, and they found that it makes no difference,” he added. If risky gun behaviors affected their bottom line, insurers would already be asking about them. “And they don’t,” he said.
That contradicts a major selling point of the ordinance: the claim that risk-adjusted premiums will encourage gun owners to take safety courses and invest in gun safes, trigger locks, or chamber-load indicators.
Why isn’t San Jose requiring coverage for intentional shootings?
Insurance companies generally don’t insure against expected or intended injuries, experts told us. “Covering an intentional, illegal act like armed assault would violate standard underwriting principles,” Ruiz said.
Under the ordinance, gun owners do have the option of getting a standalone gun liability insurance policy that covers self-defense shootings. These policies are considered specialty coverage, and they don’t violate insurance ethics because self-defense shootings are “fortuitous,” or unplanned, Mocsary said. He gives the example of a gun owner firing in self-defense at an attacker on the street. “Pulling out the gun and using it, that little tiny bit of it is intentional,” he said, “but that’s a reaction to a fortuitous event.”
Are there any other caveats?
Ruiz said standard homeowners and renters insurance plans generally don’t cover accidental shootings of household members by other household members; they only cover damages resulting from the accidental shooting of people who are visiting a residence. So if a gun owner unintentionally discharges a gun and strikes someone who lives under the same roof, it would not be covered.
There’s a reason for this exclusion, said Kochenburger, the insurance law expert at the University of Connecticut. A homeowners policy covers not just the policyholder but also relatives who live in the home, and insurers don’t want to incentivize policyholders to file fraudulent claims on intentional injuries to others in the home.
That significantly reduces the number of people who’d benefit from gun liability insurance. It’s also contrary to how the law has been characterized by city officials in public documents and in interviews. “We live in a nation in which 4.6 million children live in a household where a gun is kept unlocked and loaded,” Liccardo wrote in a January memo to the City Council, “and 72 percent of gun injuries occur at home, resulting in too many child victims.” But homeowners and renters insurance plans won’t cover the vast majority of unintentional child shootings.
Ruiz suggested that the insurance policy itself might not be the point of the ordinance. City officials “are looking at it to promote gun safety,” she said, through “the fee they’re going to charge, because they’re going to put that into gun safety programs.”
What are critics saying?
The gun lobby objects to the ordinance because it’s a government mandate. While the National Rifle Association, the National Shooting Sports Foundation, and other gun groups support things like liability insurance and gun safety training — and even profit from them — they draw the line at lawmakers forcing gun owners to use them. Doing so, they argue, amounts to an unconstitutional infringement on the Second Amendment.
The National Association For Gun Rights filed suit to block San Jose’s policy, arguing that the insurance requirement doesn’t alleviate “the scourge” of illegal gun use or recoup compensation from criminals. The NRA claims that the cost shuts out middle-class gun owners, and that the city’s real goal is to reduce gun ownership, not gun violence. P.B. Gomez, the founder of the Latino Rifle Association, described the insurance requirement as “fundamentally classist” and said he’s concerned that the ordinance will be enforced more often against Black and Latino gun owners, further harming an already overpoliced population.
Dave Truslow, an NRA-certified firearm instructor and former insurance executive who advised San Jose officials on the policy, said that while he’s glad the mayor is advocating for gun safety, the ordinance is “unenforceable and redundant.” California already mandates gun locks with every sale, makes it a felony to leave guns accessible to kids, and requires gun buyers to get safety training, he pointed out. “Mayor Liccardo has urged a number of recommendations that are not evidence-based, while neglecting to implement those that are,” he said. As an example he cited Ceasefire, which coordinates the efforts of police, social services, and community members to reduce shootings.
Are any other cities or states weighing gun insurance requirements?
Yes. A bill currently pending in Congress would require gun owners to buy liability insurance when they purchase a firearm or risk a $10,000 fine. Its sponsor, U.S. Representative Carolyn Maloney of New York, has filed the bill every year since the 2012 Sandy Hook shooting, but it’s never advanced and is unlikely to pass the bitterly divided Senate. Massachusetts and New York, which first proposed gun liability requirements nearly 20 years ago, also have active bills. And Los Angeles is exploring an ordinance similar to San Jose’s.
“Americans are asking Congress to provide real solutions for this epidemic and to evaluate both the human and economic cost of years of negligence,” Maloney told The Trace. “The gun industry must understand that deaths by their firearms have measurable effects on communities.”