Courtesy of James R. Touchstone, Esq.
In July 2019, the Ninth Circuit Court of Appeals, in Rodriguez v. City of San Jose, held that a wife’s Second Amendment claim, arising from seizure of firearms from her home, was barred by issue preclusion as the matter had already been considered and rejected by state courts. The Court also found that the wife’s Fourth Amendment claims failed on the merits.
Lori Rodriguez called 911 late one night in January 2013 to request that the San Jose Police Department (the “Department”) conduct a welfare check on her husband, Edward, who had mental health problems. Department officers had visited the Rodriguez home on previous occasions in response to Lori’s prior calls requesting assistance due to Edward’s mental health problems. San Jose Police Department Officer Steven Valentine and other responding officers learned that there were guns in the home before they arrived.
Upon arrival, Officer Valentine found Edward ranting that he was being watched by the CIA, the army, and others. Edward mentioned “[s]hooting up schools” and his “gun safe full of guns,” and tried to injure himself in response to an officer’s query. Under California Welfare & Institutions Code section 5150, if an officer has probable cause to believe that a person is a danger to himself or another because of a mental health disorder, the officer may take the person into custody and place him in a medical facility for 72-hour treatment and evaluation. The officers decided that Edward was having an acute mental health crisis that made him a danger to himself and others. The officers seized and detained Edward under Section 5150 for a mental health evaluation. Edward was placed in restraints in an ambulance for transport to a nearby hospital for an evaluation. In the ambulance, Edward repeatedly broke the restraints holding him to the gurney.
After Edward’s removal, Lori confirmed to the officers that there were firearms in the home in a gun safe. California Welfare & Institutions Code section 8102(a) requires law enforcement officers to confiscate any firearm or other deadly weapon that is owned, possessed, or otherwise controlled by an individual who has been detained under Section 5150. Officer Valentine informed Lori that he would have to confiscate the guns, pursuant to Section 8102. Lori provided keys and a combination code for the safe. Inside the safe, the officers found twelve firearms, including handguns, shotguns, and semi-automatic rifles. One of the firearms was a personal handgun registered to Lori alone, which she had obtained before marrying Edward. The other eleven were either unregistered or registered to Edward. Lori specifically objected to the removal of her personal handgun, but the officers confiscated it along with the other eleven firearms.
Edward was evaluated at the hospital and determined to be a danger to himself, and was therefore admitted. He was discharged approximately one week later.
The City of San Jose filed a petition in California Superior Court under California Welfare & Institutions Code section 8102(c), seeking an order of forfeiture based on a determination that the guns’ return would likely endanger Edward or others. Lori objected, asserting a violation of her Second Amendment rights due to her personal ownership of the personal handgun and asserting community property ownership of the other firearms. Lori also represented to the court that Edward would not have access to the firearms if returned because the guns would be secured in her gun safe and Edward would not have access to the firearms because Lori had changed the combination code. The Superior Court granted the City’s petition, holding that it was not appropriate to return the firearms given the public safety concerns at stake. After Lori’s subsequent appeal, the California Court of Appeal affirmed. The appellate court held that Lori had failed to show that the trial court’s order violated the Second Amendment.
Lori took steps under Penal Code sections 33850-65 to become eligible for the City to return her the firearms. She changed the registration and ownership so that she was named as the sole owner of all twelve guns and obtained gun release clearances from the California Department of Justice. However, the City still denied Lori’s request to return the guns.
Lori sued the City, the Department, and Officer Valentine (“Defendants”) under 42 U.S.C. section 1983 in the United States District Court for the Northern District of California, alleging violations of Lori’s Second and Fourth Amendment rights, among others. Lori was joined by two gun rights organizations as co-plaintiffs in her suit. The District Court granted summary judgment to Defendants. Lori appealed.
Second Amendment Claim
The Ninth Circuit Court of Appeals first addressed Lori’s Second Amendment claim that the seizure and retention of Lori’s firearms violated her right to keep and bear arms. Noting that the California trial court and the state appellate court had both addressed Lori’s Second Amendment claim, the Ninth Circuit explained that the United States Constitution provides that “Full Faith and Credit shall be given in each State to the public … judicial Proceedings of every other State.” U.S. Const. art. IV, section 1. As implemented under 28 U.S.C. section 1738, federal courts must “give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). This requirement has equal force in cases brought under 42 U.S.C. section 1983. See Allen v. McCurry, 449 U.S. 90, 97-98 (1980).
The Court explained that “[i]ssue preclusion … bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). The Ninth Circuit observed that Defendants had failed to raise a preclusion defense in either the District Court or in their principal brief on appeal, which would typically mean forfeiture of the defense. However, the Ninth Circuit explained that it would forgive Defendants’ forfeiture and consider preclusion sua sponte, “[g]iven the significant public interests in avoiding a result inconsistent with the California Court of Appeal’s decision on an important constitutional question and in not wasting judicial resources on issues that have already been decided by two levels of state courts.”
The Ninth Circuit held that the California Court of Appeal had considered and rejected a Second Amendment argument identical to the one before it presently and that the state Court of Appeal’s decision was a final decision on the merits. The Ninth Circuit rejected Lori’s contention that her subsequent re-registration of the guns as separate property and the California Department of Justice’s ownership clearance were changes that affected the state court’s Second Amendment analysis. The Ninth Circuit stated that the California Court of Appeal had expressly rejected Lori’s argument that refusal to return the firearms despite her promise to secure the firearms in a gun safe was a violation of her Second Amendment rights. Finding that Lori’s exclusive ownership was irrelevant for preclusion purposes, the Ninth Circuit explained that the state court had already assumed Lori’s ownership interest under California’s community property laws, and must have considered Lori’s exclusive ownership of her personal handgun given that it was undisputed that the handgun always had been her separate property. Thus, the Ninth Circuit explained, the state court must have considered Lori’s exclusive ownership of that handgun as part of its analysis and determined that ownership did not affect the outcome under the Second Amendment.
The Ninth Circuit also determined that the gun organizations that had joined Lori in her federal lawsuit did not have Article III standing and therefore Lori was the sole plaintiff against whom preclusion would be applied. The Court finally concluded that redeciding the Second Amendment issue would undermine the issue preclusion doctrine’s goals of comity and judicial economy. Accordingly, the Ninth Circuit held that Lori’s Second Amendment claim was barred by issue preclusion under California law, and affirmed judgment for Defendants on Lori’s Second Amendment claim without additional analysis. The Court then turned its analysis to Lori’s Fourth Amendment claim.
Fourth Amendment Claim
The Court observed that, “[a] seizure conducted without a warrant is ‘per se unreasonable under the Fourth Amendment,’” with some limited exceptions. United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). Lori contended that the officers violated her Fourth Amendment rights when they confiscated her firearms without a warrant on the night of Edward’s hospitalization. However, the Ninth Circuit held that an exception to the warrant requirement did apply here, and rejected Lori’s claim.
Specifically, the Ninth Circuit explained that the Supreme Court has recognized that police have a “community caretaking function,” which refers to a category of police activity relating to the protection of public health and safety. The community caretaking function is one that is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). The Ninth Circuit explained that it had previously recognized two types of police action in which an officer may conduct a warrantless search or seizure when acting within the community caretaking function: (1) home entries to investigate safety or medical emergencies (otherwise known as the “emergency exception”), and (2) impoundments of hazardous vehicles.
The Ninth Circuit observed that, although its existing case law on seizures under the community caretaking function had related only to the second type of police action pertaining to hazardous vehicle impoundment, the dangerous vehicle seizure cases were similar to the emergency exception home entry cases because they allowed the police to respond to an immediate threat to community safety. The Court explained that a seizure of a firearm in the possession or control of a person who has been detained because of an acute mental health episode likewise responds to an immediate threat to community safety.
The emergency exception authorizes a warrantless home entry where officers “ha[ve] an objectively reasonable basis for concluding that there [i]s an immediate need to protect others or themselves from serious harm; and [that] the search’s scope and manner [a]re reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). The Court found the same factors at issue in the context of emergency exception home entries and vehicle impoundments, specifically: (1) the public safety interest; (2) the urgency of that public interest; and (3) the individual property, liberty, and privacy interests. The Court said that these factors must be balanced, based on all of the facts available to an objectively reasonable officer, when asking whether a seizure of a firearm falls within an exception to the warrant requirement.
Analyzing the balance of interests in the case here, the Ninth Circuit acknowledged the seizure of the firearms did affect a serious private interest in personal property kept in the home, but the private interest was counterbalanced by a substantial public safety interest in ensuring that the guns would not be available to Edward should he return from the hospital. The Court reminded that San Jose police had been to the Rodriguez house before because of Edward’s erratic behavior, and Edward’s behavior on the day the firearms were confiscated included paranoid ranting and mentioning shooting up schools while specifically referencing the guns in the safe. A reasonable police officer would, the Court said, have been “deeply concerned” by the prospect that Edward would have access to a firearm in the near future.
With significant private and public safety interests countering each other, the Court explained that the urgency of the public safety interest was the key consideration in deciding whether the seizure here was reasonable. The Court held that the urgency of the situation was sufficient to outweigh the significant privacy interest and justified the seizure of the firearms. The Court noted that the officers had no idea when Edward would return from the hospital, or if the hospital staff would even admit him in the first place. Thus, he could have returned to the home at any time, perhaps even before a warrant could be obtained. Even if Lori tried to prevent Edward from accessing the safe upon his return, it was reasonable to believe that the 400-pound Edward could have overpowered Lori to get to the guns. Urgency was thus paramount, and justified seizure of the firearms. The emergency exception applied.
The Court also affirmed summary judgment on the remaining claims. Accordingly, the Ninth Circuit affirmed.
HOW THIS AFFECTS YOUR AGENCY
Agencies should note that the Ninth Circuit emphasized that its holding that the warrantless seizure of the guns did not violate the Fourth Amendment was limited to the particular circumstances before it: the officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and to send the individual for evaluation, they expected the individual would have access to firearms and present a serious public safety threat if he returned to the home, and they did not know how quickly the individual might return. Accordingly, while the decision is a significant one from the perspective of application of the community care taking exception under these circumstances, subsequent courts may not necessarily determine that the doctrine would apply on different facts. The more conservative route, of course, is to seek a warrant to seize firearms from the home, absent a clear exception to the Fourth Amendment’s warrant requirement.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 Rodriguez v. City of San Jose, 2019 U.S. App. LEXIS 21897 (9th Cir. July 23, 2019).