Metropolitan News-Enterprise


Monday, February 28, 2011


Page 1


Court Upholds Ban on Misdemeanants Possessing Arms




A California law banning possession of firearms by persons convicted of certain misdemeanors does not violate the Second Amendment or the Equal Protection Clause, the First District Court of Appeal ruled Friday.

In a 2-1 decision, Div. One affirmed Rick Charles Delacy’s convictions on four counts of unlawful possession of firearms and one count of unlawful possession of ammunition.

Prosecutors charged Delacy, as a result of two separate incidents, with violating laws prohibiting possession of firearms or ammunition by persons convicted of battery within the previous 10 years or by persons released on bail. He was also charged with receiving stolen property.

The guns and ammunition were found during two probation searches of defendant’s home in April and October 2008. The first search resulted in the seizure of four firearms, at which time the defendant told officers “They’re ain’t nothing wrong with me having guns.”

The second search produced shotgun shells, which were kept in a bag in the defendant’s bedroom closet, and in his garage. Delacy later testified he used the weapons and ammunition for hunting.

The defense moved to dismiss the charges based on District of Columbia v. Heller (2008) 554 U.S. 570, in which the Supreme Court held that citizens have an individual right to possess firearms. Napa Superior Court Judge Diane M. Price denied the motion, citing People v. Flores (2008) 169 Cal.App.4th 568, in which the court rejected a post-Heller challenge to the law banning persons convicted of violent misdemeanors from possessing firearms for 10 years.

 The ammunition charge was tried to a jury, which found the defendant guilty and sustained the enhancement allegation that he was on bail as a result of the first arrest at the time of the offense. The same jury found him not guilty of receiving stolen property.

The parties waived jury trial on the gun charges, and the judge found the defendant guilty. She placed him on three years’ probation on all charges.

Justice Sandra Margulies, writing for the Court of Appeal, rejected the defense argument that—as a result of Heller and McDonald v. City of Chicago {2010] 130 S.Ct. 3020, which held that the individual right is fundamental and applies to the states—restrictions on firearm possession are now subject to strict scrutiny.

While broad restrictions might be judged under a stricter standard, Margulies wrote, Heller makes clear that courts will continue to apply rational-basis review to laws barring possession by “disqualified” persons, including misdemeanants and those on pretrial release.

Courts in a number of jurisdictions, she noted, have held that felon- and misdemeanor-in-possession laws have been upheld in a number of jurisdictions, as have laws banning carrying of concealed firearms, possession of guns with obliterated serial numbers, and possession by persons who are subject to domestic violence restraining orders.

Margulies also rejected the argument that California violates the Equal Protection Clause by prohibiting gun possession by persons convicted of certain misdemeanors in the state, while placing no such prohibition against those convicted of similar crimes in other states. The Legislature, she could, could rationally have determined that it is too difficult to establish a test for determining when an out-of-state misdemeanor is equivalent to one of the California misdemeanors which disqualify a defendant from being allowed to possess a firearm.

Justice Kathleen Banke concurred in the opinion, but dissenting Justice Robert Dondero argued that the statute violates the Equal Protection Clause.

The dissenting justice argued that after Heller and McDonald, firearms restrictions must be given intermediate scrutiny. He also argued that in this case, even the rational basis test does not save the statute.

He declared:

“It simply cannot be considered a valid argument that individuals convicted of the enumerated misdemeanors in [Penal Code] section 12021, subdivision (c) are more likely to use firearms improperly than those who commit similar crimes in the other states or federal jurisdictions and now reside in California. Geography does not determine dangerousness or likelihood of felonious behavior; yet that is the singular basis for the classification in section 12021, subdivision (c).”

The case is People v. Delacy, A125803.


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