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Rodriguez v San Jose - Demand for return of firearms seized without warrant


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#1 Euler

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Posted 25 February 2020 - 10:29 PM

Docket

...
On January 24, 2013, Petitioner Lori Rodriguez called the San Jose Police Department for help because her husband was exhibiting erratic behavior. The police came and took custody of her husband and put him in an ambulance so that he could be placed on a mental health hold ...

[T]he officer at the scene, Respondent Valentine, falsely told Petitioner Rodriguez that he had a legal duty to confiscate all firearms in her home and that she was required to surrender the firearms by providing the combination to the gun safe. None of the firearms were outside of the safe until it was opened. ...
...
On February 22, 2013, the City filed an action against Petitioner's husband under CAL. WIC § 8102 seeking to maintain possession of the firearms. Petitioner Rodriguez intervened in that action to assert her own rights and interests notwithstanding her husband's change of status. She confirmed to the trial court that she would take any required steps to comply with the limitations on her husband's ownership or possession of firearms. Despite uncontradicted evidence that Lori could legally go and purchase a new firearm given that she was not prohibited herself and owned an approved gun safe, ... the trial judge ordered the City to retain the firearms until
further resolution or disposition of the firearms. Respondent appealed.
...
[T]he California Court of Appeal ... eventually held, however, that Petitioner Rodriguez could still seek to recover her property because "the record on appeal shows that the procedure provided by [Penal Code] section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori."
...
Petitioner Rodriguez complied with the specified procedures to seek return of firearms that she owned, including showing that she was in compliance with the safe-storage laws as amended in PENAL CODE § 25135, and possessed the necessary transfer and release certificates from California's Department of Justice. Despite having done precisely what the court of appeals had described, Respondents continued to refuse to return the Petitioner's firearms to her.
...
[T]he district court issued a brief six-page Order denying summary judgment to Petitioners and granting summary judgment to Respondents. The court summarily rejected the Fourth Amendment claim regarding the warrantless search and seizure ...

The district court also rejected the Second Amendment claim by holding that because the City agreed that Petitioner Rodriguez could lawfully purchase other guns for self-defense, forfeiture of these particular guns did not violate the Second Amendment. ...

On July 23, 2019, the Ninth Circuit affirmed the district court's grant of summary judgment to defendants ...


Edited by Euler, 25 February 2020 - 10:30 PM.

The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

- Albert Camus, Resistance, Rebellion, and Death, 1960.


#2 TomKoz

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Posted 26 February 2020 - 12:21 AM

Stolen from another thread ...

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#3 Euler

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Posted 26 February 2020 - 12:50 AM

Stolen from another thread ...


This isn't a case about red flag laws, though. Red flag laws provide a basis for warrant. In this case, there was no warrant.

The cert petition alleges there's no legal basis for perpetuating the confiscation at all, much less a red flag law, yet the California courts keep affirming it.
The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

- Albert Camus, Resistance, Rebellion, and Death, 1960.


#4 Bitter Clinger

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Posted 26 February 2020 - 06:06 AM

Wow, that's just an awful story.

 

What can a person do against a seemingly all powerful government who conspired from the start to take and keep your guns?



#5 TomKoz

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Posted 26 February 2020 - 08:57 AM

Wow, that's just an awful story.
 
What can a person do against a seemingly all powerful government who conspired from the start to take and keep your guns?


NOT vote Democrat !
Stay Alert ... Stay Alive !!
11Bravo Infantry
Yeah, Id die for my country, but Ive been trained to make the other guy die for his instead !

#6 WitchDoctor

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Posted 26 February 2020 - 08:28 PM

Take my kids EZ Bake, I might bake a cake. Or have threatened too. Jeez!


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#7 JTHunter

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Posted 26 February 2020 - 09:15 PM

Wow, that's just an awful story.
 
What can a person do against a seemingly all powerful government who conspired from the start to take and keep your guns?


NOT vote Democrat !

Or for a RINO !


“We, the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution.” - - Abraham Lincoln

“Small minds adhere to the letter of the law; great minds dispense Justice.” - - S. C. Justice Oliver Wendell Holmes

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#8 Euler

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Posted 20 April 2020 - 09:36 PM

San Jose missed its March 26 deadline to reply to Rodriguez's petition. (Defendants aren't required to respond.)

On Monday, the Supreme Court requested a response by May 20. That's a sign that they're interested.

Edited by Euler, 20 April 2020 - 09:51 PM.

The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

- Albert Camus, Resistance, Rebellion, and Death, 1960.


#9 Silhouette

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Posted 09 July 2020 - 08:21 AM

This case is now fully briefed (including the ordered response from the City of San Jose) and distributed for the "long conference" at the end of September.

 

All files can be found here:  https://www.supremec...ic/19-1057.html

 

The city's response argues (in essence) that the second amendment claims should not be considered for technical reasons.  



#10 Silhouette

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Posted 05 October 2020 - 08:43 PM

This case survived the long conference and is re-listed for 10/9.  The plaintiffs response filed on 9/22 deals more with the fourth amendment than the second, but argues that the ninth did proverbial backflips to avoid ruling on the second amendment.  This case would likely get a narrow ruling if decided, but may be an interesting bellweather for how the Court will approach 2A cases going forward.



#11 press1280

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Posted 17 October 2020 - 06:27 AM

This case was just denied cert at the last conference. Not sure what other cases are on the horizon right now. Young is a good year away.






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