BRA Flashcards
It seems to me that for Mr. Perez-Garcia, the district court has not even satisfied the BRA’s standard for imposing a disarmament condition. So, as to him, shouldn’t we just avoid the constitutional question and decide it only for Mr. Fencl?
• If your honor were to essentially find Mr. Perez-Garcia’s condition essentially substantively unreasonable, and prohibit the district court from reimposing the condition on remand, then yes, I agree, that would take care of his appeal. But if your honor is thinking of just remanding for additional findings, then the Second Amendment question remains live, because a holding that this condition violates the Second Amendment in Mr. Perez-Garcia’s case would have the effect of barring the district court from reimposing it.
Are you making an as-applied challenge, a facial challenge, or both?
We’re are making an as-applied challenge. And I think this is an important point. The government may be able to show in a future case that disarmament is appropriate. But here, neither district court found that the defendants had engaged in any threatening or violent behavior, either with or without firearms.
Are we limited to facts relied upon by the district court?
When assessing conditions that impinge on fundamental liberties in the supervised release context, this Court has limited itself to the court’s findings and has not pieced together justifications from its own review of the record. Wolfchild.
So you’re saying that even a guy found with dozens of illegal guns and granades and all kinds of awful things can’t have a condition like this? We can’t infer that he’s reasonably likely to breach the peace? We have to wait until he shoots someone?
I want to start by really underscoring the nature of the charges here: Mr. Fencl is only being charged with failing to register three short-barrelled rifles and four silencers. These firearms, if registered, are not federally illegal. Furthermore, the government has never alleged that Mr. Fencl has engaged in threatening or violent conduct with or without firearms. He has no criminal history except for publically carrying a gun without a license under California’s now-unconstitutional licensing regime.
So, under Bruen, the question is whether these circumstances would have been enough to prevent someone like Mr. Fencl from keeping a legal firearm in his home for self-defense while he contests these charges. Courts are required to adhere faithfully to the balance that the founding generation struck - not impose modern standards.
Hasn’t a judge basically found that without this condition, your client should be detained? I mean, one way this could go is that we accept your challenge but remand with instructions to enter a detention order. I have to say I agree, without this conditions your client should not be out on the street.
• If that is what your honor is inclined to do, we would of course have to voluntarily dismiss this appeal to avoid harming our clients. But that in itself would create a problem under the unconstitutional conditions doctrine and the principle that Americans should not be forced to choose between two constitutional rights. (United States v. Simmons.) As this Court indicated in Scott, the government should not be able to use the threat of detention to run roughshod over pretrial releasees’ liberties
Doesn’t your legal theory risk detaining more people?
• I hear that concern, and as a public defender, it’s one I take very seriously. But this Court addressed the same kind of concern in Scott, and it gave both legal and practical answers. On the legal side, the Court raised the unconstitutional conditions doctrine, which limits the government’s ability to coerce defendants into accepting unconstitutional conditions by threatening to detain them. This is related to the idea that we as Americans should not be forced to choose between two constitutional rights.
• On the practical side, Scott pointed out that the government cannot realistically detain everyone, and if the district tried, appellate courts would provide protection. I’ll also note that this condition really only impacts a narrow set of our clients because all pretrial releasees are required to follow all local, state, and federal laws, and those laws prohibit ….. Plus, this condition 922(n) prevents detainees from acquiring new guns, so this would be a real issue only for individuals who already had firearms.
What should a magistrate judge do—i.e., what findings should she make—when a pretrial releasee raises a 2d Amendment challenge to the firearms condition?
(1) Identify the particular threat the person person poses by making factual findings.
(2) Decide if that threat falls within a historical tradition of regulation justifying disarmament.
Can you identify any scenario in which proper historical precedent would justify the firearms condition for a pretrial releasee?
Bruen places the burden squarely on the government to identify those circumstances. But I think the government has good arguments that historical affray statutes would allow confiscating the firearms of people who intentionally spread fear or terror with a firearm. The government can of course also use the surety system to regulate firearms use. My clients are already strongly incentivized to follow the law by the possibility of losing their sureties thousands of dollars, not to mention facing the possibility of revocation.
Do you agree that if the 2d Amendment bars the application of the firearm condition for a defendant who would otherwise be releasable, the defendant might effectively be too dangerous to release and thus might have to be detained?
But this Court addressed the same kind of concern in Scott, and it gave both legal and practical answers. On the legal side, the Court raised the unconstitutional conditions doctrine, which limits the government’s ability to coerce defendants into accepting unconstitutional conditions by threatening to detain them. This is related to the idea that we as Americans should not be forced to choose between two constitutional rights.
Aren’t we setting ourselves up for endless litigation about whether a particular person in these particular circumstances should be disarmed? Or massive evidentiary hearings in district court that are just about pretrial release conditions?
Not necessarily, your honor. Bruen was able to provide some generally applicable guidance about may-issue public carry regimes versus shall-issue regimes. And so while it make take a few cases to fully flesh out the scope of the government’s regulatory power, Bruen shows that it is possible to arrive at some general guidelines.
