Attorneys Seek to Uphold 2A Rights for Non-Criminal Defendants

GOA Files New Case Against New York's CCIA, iStock-697763642
Attorneys Seek to Uphold 2A Rights for Non-Criminal Defendants, iStock-697763642

U.S.A.-(AmmoLand.com)- On June 14, 2022, Jesus Perez-Garcia, was arrested as a passenger in a car crossing the Mexican border into the United States. A significant quantity of Illegal drugs was found in the vehicle’s bumper. Jesus claimed he did not know about the drugs being there. The driver of the vehicle, Antonio, supported Jesus’ claim, saying he took full responsibility for the drugs in the vehicle. Jesus admitted the driver told him he was going to get drugs but says he thought the drugs would be for personal use in Mexico.

Jesus has no criminal history. He worked in California as a security guard and is a U.S. citizen. He pled not guilty and was released on bond on June 30. The conditions of bail were not disclosed at the hearing.

Later, Jesus learned one of the conditions of the bond was that he be disarmed.

This meant he could not work as an armed security guard or protect his family. After learning of the no firearms condition, Jesus appealed the bail condition on July 29, 2022. The District Judge, Gonzalo P. Curiel, held the bail condition of no firearms did not violate rights protected by the Second Amendment because there was historical precedent in 19th-century surety statutes, which required a bond for people who were accused of violent intent, for them to carry firearms in public. Judge Curiel found the surety statutes to be close enough fit for purposes of release on bond.  Jesus has appealed the District court ruling to the Ninth Circuit. From the appeal to the Ninth Circuit, USA v Jesus Perez-Garcia:

Mr. Perez-Garcia is one of the pretrial releasees subject to this condition. A U.S. citizen and licensed gun owner with no criminal history, Mr. Perez-Garcia used his firearm to work as a security guard and to defend his home. Ex.B-27. He was arrested as a passenger in a car containing drugs. He denied knowing about the drugs, and the driver took sole responsibility. Ex.C-78–79. Yet the court concluded that Standard Condition #4 could constitutionally be applied to him because the government had accused him of a “serious” drug crime.Ex.A-10–11.

The Ninth Circuit Federal Public and Community Defenders filed an amicus brief supporting Jesus. From the amicus brief in USA v Jesus Perez Garcia:

II. The district court’s affirmance of the no-firearms condition violated this Court’s precedents requiring conditions that infringe upon significant constitutional liberty interests to be justified by on-the-record, evidence-based findings of necessity.

Here, notwithstanding these principles, the magistrate judge disarmed Mr. Perez-Garcia without making any findings at all. Mem. Ex. C at 25. Unfortunately, this is the norm in this Circuit. Mr. Perez-Garcia has shown that, in the Southern District of California, the Second Amendment right is stripped from pretrial releasees virtually across the board. Mem. Ex. C at 28–72. An informal survey of amici’s offices confirms that the same practices are in effect across the Circuit. Pretrial releasees are routinely disarmed—generally with no discussion and no explanation of why their disarmament qualifies as the “least restrictive” measure necessary to reasonably assure their appearance at trial or the safety of the 11 community. 18 U.S.C. § 3142(c)(1)(B). And this practice is largely impervious to the type of charge, affecting even those accused of the least violent—and least weapons-related—offenses imaginable. See, e.g., United States v. Lopez, No. 21-cr -69 (D. Mont.) (Doc. 11 at 2) (bookkeeper charged with embezzlement);United States v. Mosmiller, No. 21-cr -84 (D. Mont.) (Doc. 13 at 2) (pharmacy technician charged with purloining hydrocodone pills); United States v. Uziewe, No. 20-cr -196 (E.D. Cal.) (Doc. 20 at 1) (owner of Christian bookstore charged with bank fraud).

There is a peculiar article published in Jurist.org. about the case.  It claims the amicus brief from the public defenders states the Supreme Court Bruen decision was “interest balancing under the guise of historical comparison”, and the amicus brief, from the public defenders, cautions against the Bruen test. The understanding of this correspondent is exactly the opposite. From the article at Jurist.org:

The brief asserts that the Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen amounted to “interest balancing under the guise of historical comparison.” In that case, the Court struck down a New York law requiring individuals applying for unrestricted handgun licenses to demonstrate a greater need for self-defense than the general public. The brief contends that the Bruen rule insists “that the government demonstrate that challenged regulations are consistent with a narrow, well-defined historical tradition.” The brief cautions against the Bruen test.

Perhaps there is some strange, legalistic interpretation that would show the amicus brief to say the opposite of what it says. Perhaps a peculiar edit substituted “brief” for the opinion of the court or confused the words of the Judge for those of the public defenders’ group in the Jurist.org article.

It is most peculiar. To determine who is correct, read the amicus brief at the link, and the article at Jurist.org, by Lou Kettering.

There are at least two cases on appeal in the Fifth Circuit with a common theme. The theme is simple. A court cannot take away fundamental constitutional rights from ordinary citizens without a criminal conviction.  In Texas, a judge ruled a mere restraining order, without a trial and conviction for domestic violence, is not sufficient to take away the right to keep and bear arms. The same court found a mere indictment was insufficient to remove the fundamental right to keep and bear arms because the person had not been convicted of a crime.

The two judges in the Ninth Circuit have found precisely the opposite: a person not convicted of any crime may have their fundamental right to keep and bear arms removed as a condition of bond, regardless of the circumstances, merely because they have been arrested and accused.


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.

Dean Weingarten