Metropolitan News-Enterprise


Wednesday, July 24, 2019


Page No.:1


Ninth Circuit:

Wife Can’t Regain Arms Seized Based on Husband’s Mental State

Panel Says Result Is Dictated by Need for Deference to State Court of Appeal Decision


By a MetNews Staff Writer


A woman who is at liberty to go out and buy firearms and keep them in her home cannot regain possession of the 12 weapons seized from her residence by police when her husband was undergoing a mental health crisis, under a decision yesterday by the Ninth U.S. Circuit Court of Appeals.

Giving full faith and credit to California decisions requires deference to a Court of Appeal ruling against the return of the firearms, the federal appeals court said, rejecting the contention that changed circumstances require a different result.

Eleven of the weapons were registered to the husband, Edward Rodriguez, and the other was a handgun owned by his wife, Lori Rodriguez, from a time before their marriage. San Jose police confiscated the firearms pursuant to California Welfare & Institutions Code §8102.

Edward Rodriguez, yesterday’s opinion notes, was admitted to a mental health facility and is statutorily barred from possessing a firearm for five years following his release from there.

The city petitioned the Santa Clara Superior Court for an order of forfeiture of the weapons pursuant to §8102(c) on the ground that a return of them could endanger Edward Rodriguez or others. The judge, while acknowledging that Lori Rodriguez was eligible to purchase and possess other firearms, granted the petition.

State Appeals Court

The Sixth District Court of Appeal on April 2, 2015, affirmed in an unpublished opinion by Acting Presiding Justice Patricia Bamattre-Manoukian. She said:

“[W]e understand Lori to argue that she has a Second Amendment right to return of the particular firearms that were confiscated under section 8102 for home protection. However, Lori has not provided any legal authority for the proposition that the spouse of a person whose firearms were confiscated under section 8102 has a Second Amendment right to the return of those confiscated firearms for home protection.”

Bamattre-Manoukian said U.S. Supreme Court decisions cited by Lori Rodriguez “did not state that the Second Amendment right to keep and bear arms extends to keeping and bearing either any particular firearms or firearms that have been confiscated from a mentally ill person.”

She suggested that the appellant might be able to secure the weapons to store away from the home or for the purpose of selling them.

Changed Circumstances Alleged

Following the issuance of that opinion, Lori Rodriguez assumed sole ownership of all 12 weapons and registered them in her name and obtained gun release clearances from the California Department of Justice. In light of that, she asked for a return of the weapons.

The city declined, and she filed an action in the U.S. District Court for the Northern District of California. Judge Edward J. Davila granted summary judgment in favor of the city and others, saying:

“The Second Amendment protects the right to keep and bear arms in general, but it does not protect the right to possess specific firearms.”

He also rejected a Fourth Amendment claim, ruling that seizure of the weapons was, under the circumstances, reasonable, as is the city’s retention of them.

Ninth Circuit Decision

The Ninth Circuit affirmed in an opinion by Judge Michelle T. Friedland.

“The California state courts addressed Lori’s Second Amendment claim at both the trial and appellate stages, concluding that the seizure and retention of Lori s firearms did not violate her right to keep and bear arms,” wrote. “For reasons of comity, we apply issue preclusion to bar our reconsideration of her Second Amendment claim, even though Defendants did not brief that defense in the district court.”

That failure will be overlooked, she said, explaining:

“Given the significant public interests in avoiding a result inconsistent with the California Court of Appeal’s decision on an important constitutional question and in not wasting judicial resources on issues that have already been decided by two levels of state courts, to the extent that relitigation of Lori’s Second Amendment argument would be precluded in California court, we will forgive Defendants’ forfeiture and hold that ‘relitigation of those issues in federal court is precluded’ as well.”

Addressing Lori Rodriguez’s argument that the state Court of Appeal decision does not bar relief in light of subsequent events, Friedland said that neither transmutation of community property to the wife’s separate property nor obtaining gun clearance releases “affects the premises underlying the state court’s Second Amendment analysis.”

The judge said, with respect to Lori Rodriguez gaining sole ownership:

“[T]he state appellate court already assumed that Lori had an ownership interest in the guns under California’s community property laws….Moreover, it is undisputed that at least one of the twelve guns. Lori’s personal handgun, was always her separate property—accordingly, the court must have considered her exclusive ownership of that gun as part of its analysis and determined that ownership did not affect the outcome under the Second Amendment.”

Friedland reached the conclusion that the state Court of Appeal “considered and rejected a Second Amendment argument identical to the one before us now.”

She agreed with Davila that there was no Fourth Amendment violation and also that pro-Second Amendment groups that sought to join as plaintiffs lacked standing.

The case is Rodriguez v. City of San Jose, 17-17144.


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