A federal court has ruled it is constitutional to block a defendant’s Second Amendment rights while they are awaiting trial.
On March 18, the three-judge panel in the U.S. 9th Circuit Court of Appeals unanimously ruled that the restriction on the rights of Jesus Perez-Garcia and John Thomas Fencl to bear firearms is constitutional because it is consistent with historic legal precedent.
While these are two separate cases, with Judge Gonzalo Paul Curiel ruling on Mr. Perez-Garcia’s case on Dec. 2, 2022, and Judge Janis Lynn Sammartino ruling on Mr. Fencl’s case on Dec. 7, 2022, both men brought their legal challenge before the federal appeals court on Jan. 26, 2023.
In the 47-page appellate court opinion (pdf), Judge Gabriel P. Sanchez said, “Here, the historical evidence, when considered as a whole, shows a long and broad history of legislatures exercising authority to disarm people whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others.
“The temporary disarmament of Fencl and Perez-Garcia as a means reasonably necessary to protect public safety falls within that historical tradition,” Judge Sanchez wrote further, adding that the court found that restricting the defendants’ right to own firearms is “consistent with our nation’s long history of temporarily disarming criminal defendants facing serious charges and those deemed dangerous or unwilling to follow the law.”
Judge Sanchez wrote that the decision to confiscate the guns owned by Mr. Perez-Garcia and Mr. Fencl was “consistent with our nation’s long history of temporarily disarming criminal defendants facing serious charges and those deemed dangerous or unwilling to follow the law.”
“The temporary disarmament of Fencl and Perez-Garcia as a means reasonably necessary to protect public safety falls within that historical tradition,” Judge Sanchez wrote.
Judge Sanchez noted that Mr. Fencl was arrested after police discovered over 110 guns in his home, “including 10 unregistered and untraceable ‘ghost guns,’ four silencers, and three short-barreled rifles.”
“Officers also uncovered thousands of rounds of ammunition, including armor-piercing and incendiary rounds and a tear-gas grenade,” it said.
Judge Sanchez also advised that this was not Mr. Fencl’s “first transgression for unlawful gun possession.”
In 2019, he pleaded guilty to a misdemeanor charge of possessing a concealed firearm without a license. In April 2021, he was arrested again for possession of a concealed, privately-made ghost gun while on probation.
In the case of Mr. Perez-Garcia, he was arrested at the U.S.-Mexico border after a customs inspection turned up “11 kilograms of methamphetamine and half a kilogram of fentanyl” in the car he was a passenger in.
Consistent with the Bail Reform Act of 1984, Judge Curiel and Judge Sammartino released Mr. Perez-Garcia and Mr. Fencl pending their respective trials. However, both were subjected to a condition of pretrial release that temporarily restricted them from possessing firearms.
‘Fairly Justifiable’
Both defendants, who were released from custody pending trial, challenged the restriction of their Second Amendment rights according to the Bruen’s “history and tradition” test, established in the June 23, 2022, New York State Rifle & Pistol Assn. vs. Bruen ruling by the U.S. Supreme Court for assessing the constitutionality of national gun laws.
In that case (pdf), the Supreme Court overturned the Sullivan Act in New York, established over 100 years ago, which forced anyone seeking to carry a gun to provide “proper cause” to justify their need to bear arms.
In writing the majority opinion on the 6-3 ruling, Justice Clarence Thomas said, “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”
“That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense,” he wrote further.
However, a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, Amy Swearer, told The Epoch Times that Judge Sanchez’s ruling is “not surprising.”
Ms. Swearer said “the ruling is “fairly justifiable” because the case involves “individuals who have been charged with pretty serious offenses.”
While the defendants are arguing that they should be able to possess firearms while they are out on bail awaiting trial, the judge ordered that their guns be temporarily confiscated as a condition of pretrial release.
“That’s pretty standard,” Ms. Swearer explained, saying it might be different “if these were individuals who were charged or accused of something clearly non-violent and clearly not related to other weapons offenses, drug trafficking, or drug possession.”
“Constitutionally speaking, the government has the authority to detain a person pending the conclusion of a trial,” she explained, suggesting that accompanying that is the authority to establish a pretrial release condition of the forfeit of weapons, especially when the individuals’ actions “might be more of a danger to the public than your average person.”
“These do not seem to be very sympathetic defendants here who have been accused of white-collar crimes,” she noted, saying, “There’s a reasonable conclusion that these people are dangerous and even under Bruen’s analogy test [based on “history and tradition”], there is some strong historical evidence that there is a national tradition of disarming people who otherwise could have been held without bail.”
The Epoch Times reached out to Katie Hurrelbrink, the attorney for both Mr. Perez-Garcia and Mr. Fencl, for comment.
“Our usual policy is not to comment on pending cases,” Ms. Hurrelbrink replied by email. “So I have no comment other than to say that we will continue litigating this through the en banc and certiorari process.”
The “certiorari process” is when the losing side in a case at a lower court petitions the U.S. Supreme Court to take up the case.
As explained by the Supreme Court (pdf), a “review in this Court by means of a writ of certiorari is not a matter of right, but of judicial discretion.”
“The primary concern of the Supreme Court is not to correct errors in lower court decisions, but to decide cases presenting issues of importance beyond the particular facts and parties involved,” the high court explains, advising, “The Court grants and hears argument in only about 1 percent of the cases that are filed each Term.”
Petitioners must file for their writ of certiorari within 90 days from the date of the entry of the lower court’s final judgment.
From The Epoch Times
