Metropolitan News-Enterprise


Tuesday, December 23, 2008


Page 1


C.A. Rejects Second Amendment Challenge to State Firearms Laws


By STEVEN M. ELLIS, Staff Writer


The U.S. Supreme Court’s June decision clarifying the right to bear arms did not invalidate state laws against carrying a concealed weapon or a loaded firearm in a public place, or those prohibiting possession of firearms by felons, the Fourth District Court of Appeal has ruled.

Concluding that the three types of laws have “nowhere near the broad sweep” of the Washington D.C. statutes the Supreme Court ruled unconstitutional in District of Columbia v. Heller (2008) 128 S. Ct. 2783, Div. One on Friday rejected a San Diego county man’s Second Amendment challenge to his California convictions.

A jury convicted Miguel Flores of violating Penal Code Secs. 12021(c)(1)), 12025(a)(2) and 12031(a)(1), as well as resisting a peace officer under Sec. 148(a)(1), in 2007 after he fled on foot the previous year from a vehicle being chased by San Diego Police Department officers—with a loaded .38-caliber handgun tucked into his waistband.

The officers had been pursuing the vehicle after observing it travel the wrong direction down a one-way street at about 10 p.m. when Flores emerged from the passenger side while the car slowed as it passed the city’s Grant Hill Park. They testified that Flores had been reaching toward his waistband with his right hand when they tackled him at the crest of a hill.

San Diego Superior Court Judge Bernard Revak sentenced Flores to three years probation, but Flores contended on appeal that the convictions violated his federal constitutional right to keep and bear arms under Heller.

Right to Carry

There, the U.S. Supreme Court ruled 5-4 that the Second Amendment protects an “individual[’s] right to possess and carry weapons in case of confrontation,” and opined that the District of Columbia’s “absolute prohibition of handguns held and used for self-defense in the home” as well as its “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” were unconstitutional.

However, Justice Joan Irion wrote on Flores’s appeal that Heller did not warrant invalidation of his convictions because of differences in the sweep of the respective prohibitions.

Noting that the Heller court emphasized that Second Amendment rights are not unlimited, and provided a nonexhaustive list of “presumptively lawful regulatory measures” including “longstanding prohibitions on the possession of firearms by felons,” Irion said Heller could not be read to undermine the constitutionality of prohibitions on firearms possession by felons, or those convicted of misdemeanors.

Concealed Weapons Prohibitions

She further pointed out that the Supreme Court provided similar guidance with respect to concealed weapons prohibitions, and concluded that Heller did not require reversal of Flores’s conviction for carrying a loaded firearm in a public place.

“Although Heller does not explicitly discuss such a prohibition, we believe section 12031 is so far removed from the blanket restrictions at issue in Heller that its constitutional validity remains undisturbed by the Supreme Court’s opinion,” she explained.

In an unpublished portion of the opinion, Irion similarly rejected Flores’s contentions that Revak erred by declining to instruct the jury on the defenses of necessity and duress, and by instructing the jury regarding the criminal intent required for the offense of carrying a loaded firearm.

She did, however, agree with Flores and the Attorney General that Revak erred in requiring payment of probation costs and attorney fees as a condition of probation, and ordered the trial court’s probation order to be modified to delete such a requirement.

Judges Patricia D. Benke and Richard D. Huffman joined Irion in her opinion.

The case is People v. Flores, 08 S.O.S. 6858.


Copyright 2008, Metropolitan News Company