Last week, Assistant Attorney General Harmeet Dhillon warned officials in San Jose, California that if they didn't take steps to bring down the cost of a concealed carry permit, they could expect a lawsuit.
As anticipated, the city hasn't done squat, and now the Dhillon has followed through with her promise by filing suit.
At nearly $1,600 per license, the City’s application fee to carry a firearm is the highest in the nation. Indeed, San Jose’s fee towers over those imposed by the country’s biggest cities. New York, Washington, D.C., Boston, and Chicago all charge a small fraction of San Jose’s fee. The Supreme Court has held that “exorbitant fees” such as San Jose’s violate the Second Amendment because they deny ordinary citizens their right to carry firearms for self-defense.
"All law-abiding Americans have a constitutional right to bear arms for self‑defense. This right is not a luxury reserved for a privileged few, but a fundamental element of our republic,” said Assistant Attorney General Harmeet K. Dhillon. “You don’t need a law degree to recognize that charging a fee several times higher than the cost of the firearm itself is illogical, and an unconstitutional attempt to impede Americans’ Second Amendment rights."
The DOJ's complaint points to the Supreme Court's language in Bruen that even a presumptively constitutional "shall issue" licensing scheme can violate the Second Amendment if it imposes exorbitant fees on applicants.
Defendants’ permitting scheme is exactly that. In June, the San Jose City Council increased the license fee to $1,591. California Penal Code section 26190(b)(1) allows localities to charge “an additional fee” for the “reasonable costs for processing” new concealed carry licenses. The new price point reflects a nearly $300 increase in just two-and-a-half years since the City’s last increase.
By way of comparison, across the Bay, San Francisco charges only $144 for the same fee. Although still high, none ofDefendants’ neighbors come close to charging the nearly $1,600 application fee that Defendants do. In Berkeley, it costs $255 to apply, and $325 more once approved. Santa Clara charges $488 up front and $488 at issuance, and Alameda County charges $347 and $346 for the same.
I'm glad to see the DOJ going after San Jose, but honestly, I would have liked to have seen similar suits brought against locales like Santa Clara and Alameda as well (though Santa Clara is already facing a lawsuit from California Rifle & Pistol Association, Second Amendment Foundation, and several individual plaintiffs). It's pretty easy to argue that San Jose's sky-high price tag on concealed carry permits is abusive, but I don't want jurisdictions to get away with charging "only" $1,000 (plus the cost of training, a mandatory psych evaluation, and fingerprinting) either.
Still, if the DOJ is successful at bringing down the cost of carrying in San Jose, that could have a ripple effect across the state.
As with the other challenges to gun control laws brought by DOJ's Civil Rights Division, the complaint against San Jose is a "pattern and practices" lawsuit. It alleges that the San Jose PD is enforcing a policy or engaging in a practice that deprives persons of rights held under the Constitution, which gives the Division the authority to sue under 34 U.S.C. § 12601.
The DOJ is seeking a permanent injunction barring the SJPD from "charging abusive licensing fees", including an order that:
(1) Defendants and their agents and employees refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of unlawful conduct described herein;
(2) Defendants and their agents and employees adopt and implement policies and procedures to remedy the pattern or practice of unlawful conduct described herein; and
(3) Defendants adopt systems that identify and correct conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
How much could San Jose charge without its fees becoming abusive and unlawful? The DOJ complaint doesn't give a specific dollar amount, but it notes that other cities around the country "charge a pittance relative to San Jose," including New York City ($340), Boston ($100), and Philadelphia ($20).
My county charges $50 for a carry permit, and I think that's fairly reasonable (though I don't believe a permit should be necessary for me to bear arms). Once we start getting into triple digits, though, I think the fees are on shaky ground. The nearly $1,600 that San Jose forces applicants to cough up is utterly ridiculous, and it undoubtedly has a chilling effect on who can exercise their right to bear arms; not just in San Jose, but across the state of California and in those states that recognize California carry permits.
I'd like to think this will be a slam dunk legal case, but it is California we're talking about. I'm also very interested to see if San Jose will enter into any settlement negotiations, and if so, what amount DOJ would find acceptable going forward.
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