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PA Bill Number: HB55

Title: A Joint Resolution proposing separate and distinct amendments to the Constitution of Pennsylvania, in declaration of rights, providing for ...

Description: A Joint Resolution proposing separate and distinct amendments to the Constitution of Pennsylvania, in declaration of rights, providing for ...

Last Action: Laid on the table

Last Action Date: Jan 13, 2021

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Rodriquez v. City of San Jose up for Supreme Court Conference on 24 April, 2020 :: 04/14/2020

U.S.A.-( In January, 2013, after a 911 call, a police officer of the City of San Jose seized 12 firearms from the home of Edward and Lori Rodriquez in the City of San Jose, California. No warrant was applied for.  The officer claimed knowledge that there were firearms in the house.  The firearms were removed under protest, even though one of the firearms completely belonged to and was registered to Lori Rodriquez, who remained in the home.

Edward was involuntarily admitted as a danger to himself and others, and lost his Second Amendment right to keep and bear arms, for a minimum of five years under California law.

None of the 12 firearms were illegal to own under California law. The City of San Jose asked for a forfeiture order for the firearms from the local court, which was granted.

Lori went through the legal hoops necessary to have the firearms returned to her legal possession.

The city refused to return those firearms. The California Superior Court and Court of Appeals agreed with the city. The argument appears to be the City was under no obligation to return this property, even though there was a legal property right and the property was not contraband.

Lori appealed to the Federal District Court under the 2nd, 4th, 5th, and 14th Amendments.  On 29 September, 2017, the District Court ordered, in summary judgment, for the City of San Jose, that those rights did not apply. From

(“[T]he Supreme Court decisions in Heller and McDonald 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.”) (emphasis added). As such, Defendants’ motion for summary judgment must be granted as to Plaintiffs’ Second Amendment claim.

Lori and Second Amendment advocates appealed to the Ninth Circuit. The Ninth Circuit, in the customary three judge panel, ruled to affirm the District Court, claiming the Fourth Amendment did not apply because of a controversial exception known as “community caretaking“.  They opined the Second Amendment did not apply because the Second Amendment did not apply to any particular firearm. From the Opinion of the Ninth Circuit, 23 July, 2019.


Civil Rights/Second Amendment

The panel affirmed the district court’s summary judgment for defendants City of San Jose, its Police Department and a police officer in an action brought by husband and wife, Edward and Lori Rodriguez, alleging civil rights violations when police seized firearms from their residence after detaining Edward for a mental health evaluation in response to a 911 call, and then declined to return the firearms.

The City petitioned in California Superior Court to retain the firearms on the ground that the firearms would endanger Edward or another member of the public. Lori objected that the confiscation and retention of the firearms, in which she had ownership interests, violated her Second Amendment rights. The Superior Court granted the City’s petition over Lori’s objection and the California Court of Appeal affirmed. After Lori re-registered the firearms in her name alone and obtained gun release clearances from the California Department of Justice, the City still declined to return the guns, and Lori sued in federal court.


The court granted the City’s petition. The court acknowledged that Lori could legally “walk . . . into any gun store and qualify to buy a handgun . . . and put [it] in that gun safe.” But it held that the City was nevertheless authorized to take the “low hanging fruit” of the guns the Rodriguezes already owned, irrespective of Lori’s ability to buy more, because of the danger that Edward presented. Stating that it was not “ignoring [Lori’s] Constitutional Rights,” the court concluded that it was not appropriate to return the firearms given the public safety concerns at stake.

It is instructive to notice the description of the guns confiscated by the city, even though none of them had been implicated in any criminal activity, as “low hanging fruit”. None of them were illegal to own under California law. There is an entire philosophy attached to that phrase. If the guns should not be returned because they are “low hanging fruit”, the point is that gun ownership, no matter if legal, is bad. Any way to diminish gun ownership, not matter how unjust, or ineffective, is good. The court is making a specific value judgement, rather than a legal one. It does not like legal gun ownership, so it will penalize legal gun owners whenever it can take “low hanging fruit”.

This is the very essence of disparate impact and the chilling of an enumerated Constitutional right.

Legal gun owners are a minority in California. The majority of Californians, through their elected representatives, are working to punish gun owners for exercising their Second Amendment rights.  This is precisely the situation which the Bill of Rights and the Fourteenth Amendment were designed to prevent.

Lori and the Second Amendment Foundation and Calguns Foundation asked for an en banc review of the case. As might be expected, as this case was decided to limit Second Amendment rights, en banc review was denied. If the case had been in favor of Second Amendment rights, as with the Young case from Hawaii, it has become expected that an en banc review would be granted.

Lori and the Second Amendment Foundation and Calguns Foundation appealed to the Supreme Court, asking for the grant of a writ of Certiorari, which would result in the Supreme Court hearing the case.

Of those cases asking for a write of Certiorari, only a small number are discussed by the court in conference.  This case has been accepted to be heard in conference.

The Supreme Court will listen to the arguments asking the case be  heard, in conference, then decide whether to grant the writ of certiorari or not.  The Supreme Court conference for the case on 24 April 2020. The results of the conference will probably be released on 27 April, 2020.

Here are the three primary questions the petitioners are asking the Supreme Court to decide in this case. From


1. Whether the Fourth Amendment allows an exception to its warrant requirement for so-called “community caretaking” where the alleged danger to the community has been resolved and the premises to be searched and items then seized do not contain or pose an immediate threat making it impossible to obtain a timely warrant?

2. Whether issue preclusion can bar a claim for deprivation of a constitutional right where the prior decision discussing the constitutional issue did not depend on resolving the merits of that issue, found state-law procedures remained that could moot the claimed infringement, and thus could not have been further reviewed in this Court given that the constitutional claim would be seen as unripe and potentially avoided by adequate and independent state grounds?

3. Whether this Court should exercise its supervisory powers to review the improper circumvention of Second Amendment protections in the Ninth Circuit or, at a minimum, hold this case for No. 18-280, New York State Rifle & Pistol Association, Inc. v. City of New York?

At least one justice on the Supreme Court has indicated the case is worth discussing, or it would not have been placed on the conference list.

The Supreme Court only hears a few dozen cases a year.

We will likely know if Rodriquez v. City of San Jose has made the cut in two weeks.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.