The way the Roberts Court has punted on the Second Amendment I do not like Lori Rodriguez’s chances of getting her guns back.
Court has declined to hear all other Second Amendment cases this session.
In 2013, Lori Rodriguez called San Jose police to her home because her husband was having a mental health crisis and making violent threats. Seven years later, she is petitioning the Supreme Court to force the city to return her guns.
“It’s not right. I shouldn’t have to do this to get back what’s mine,” Rodriguez told the Washington Free Beacon. “They violated several of my constitutional rights.”
Rodriguez claims police ordered her to open the couple’s gun safe so they could seize all of the weapons in the home after her husband was detained for making threats that the city says included “shooting up schools.” Cops seized not only her husband’s weapons but also the guns that were personally registered to Rodriguez. The city has repeatedly rebuffed her requests to return her property.
The suit is now the sole case with Second Amendment implications remaining before the Court after the justices rejected 10 other gun-rights cases on June 15. Rodriguez’s legal challenge comes as the federal government and a number of states debate “red flag” bills that would allow authorities to deny gun rights to citizens. It has the potential to clarify the extent to which the Second Amendment protects individuals from seizures of firearms.
San Jose city attorney Richard Doyle did not respond to a request for comment. The city defended its actions, saying that authorities were within their rights to confiscate the guns, calling Rodriguez’s claim “borderline frivolous.”
“If the government has lawful authority to effect the forfeiture and observes the requirements of due process in so doing, it has complied with the Constitution,” Doyle said in a brief submitted to the Supreme Court on Wednesday. “The forfeiture does nothing whatever to impair the previous owner’s right to buy, possess, or use firearms, and notwithstanding that the owner may recover the full market value of the guns through their transfer and sale.”
The Supreme Court has been hesitant to take up gun-rights cases in recent years. It has ruled on only one Second Amendment case since 2011. Justices Clarence Thomas and Brett Kavanaugh recently rebuked their colleagues for refusing to accept lawsuits tackling gun-rights issues. On June 15, Thomas published a blistering dissent about the Court’s handling of the cases.
“This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights,” Thomas wrote. “And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.”
Several of the guns confiscated from Rodriguez by San Jose police have special sentimental value, according to Rodriguez. Police confiscated not only handguns that she and her husband purchased but also a war souvenir inherited from a family member.
“One of them is a gun my great uncle brought back from WWII,” she said. “I really want that one back. You can’t replace that one, obviously.”
Don Kilmer, Rodriguez’s lawyer, said that while the case implicates the 2nd Amendment, in addition to the 4th and even 14th Amendments, it ultimately comes down to an undisputed fact: Lori Rodriguez is not prohibited from owning the firearms San Jose took from her house.
“Her mental health has never been at issue,” Kilmer told the Free Beacon. “The law that the city is holding these guns under says that you can confiscate weapons of people who are mentally ill. Lori is not mentally ill.”
In the years since the initial police call, the Rodriguez family continues to live together, but Lori has taken steps to ensure she can legally own the confiscated firearms. She has transferred all of the firearms into her name and she is the only family member who knows the combination to the gun safe. Her lawyers argue that she is in compliance with all California gun laws—including those for individuals who live with people who can not own firearms themselves. Rodriguez, a lifelong San Jose resident, said that the city is depriving her of her constitutional rights despite all the steps she has taken to secure both her family and the public.
“I’m a law-abiding citizen,” she said. “I want to keep them for myself, you know. I wouldn’t just let him have access. … To me, there shouldn’t be a problem.”
Rodriguez said the same was true of the combination to the gun safe when police told her to open it back in 2013. Not only did the officers pressure her to surrender the guns without a warrant, but they also reassured her that she could get the firearms back later.
“When they were there, the guns that we owned were locked in a safe. He had no access to them,” she said. “They should’ve told me I don’t have to do it if I don’t want to. I wouldn’t have. But they didn’t come at me like that. It was like, ‘You don’t have a choice. You have to open that.'”
The case has attracted the attention of gun-rights activists, including the Second Amendment Foundation and California Gun Rights Foundation, which have both joined as co-petitioners. SAF founder Alan Gottlieb said San Jose police have punished the wrong person and threaten not only gun rights but also constitutional protections against the seizure of property.
“It combines the Second and Fourth Amendment in a way that is very advantageous to expand and further gun rights if the Supreme Court were to take the case,” Gottlieb told the Free Beacon.