State v. Ortiz, P2/19-0672AG

CourtSuperior Court of Rhode Island
Writing for the CourtKRAUSE, J.
Docket NumberP2/19-0672AG
Decision Date15 December 2020




December 15, 2020


KRAUSE, J. In the off chance that he might have to shoot someone, even in a public library, Jason Ortiz says that he has a right under the Second Amendment of the United States Constitution to carry a loaded handgun in his pocket without a permit whenever and wherever he wants to in the State of Rhode Island.

That delusive intellection is antithetical to courts and commentators, including the United States Supreme Court, which has said in plain English that the Second Amendment is simply not unlimited and does not protect an illusory right to carry any weapon wherever and in any manner for whatever purpose and for any type of confrontation.

I. Exordium
The Charges Against the Defendant

On July 24, 2018, when Ortiz was nineteen, Pawtucket police officers chased him on foot through city streets and the public library after he had allegedly assaulted his girlfriend. During the pursuit, surveillance cameras recorded Ortiz allegedly discarding a handgun just before he was apprehended. The police found a loaded pistol where a video camera had captured that scene.

A criminal information was filed on February 26, 2019, charging Ortiz with a felony count of unlawfully carrying a pistol without a license or permit under G.L. 1956 § 11-47-8(a) and three

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misdemeanors (domestic assault upon his girlfriend, resisting arrest, and domestic disorderly conduct).1

The Defendant's Claim

Principally relying upon the United States Supreme Court decisions of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), Ortiz entreats this Court to dismiss the firearm charge. He insists that it no longer matters whether he was licensed to carry the weapon because, he says, the Second Amendment, as prescribed by those decisions, accords him an unfettered right to the public carriage of a handgun for self-defense, which cannot be trenched upon by any government policy requiring him to obtain a carry permit.

Ortiz has misread, much too expansively, the limited holdings of those two cases and, as further discussed herein, he can draw no such support from them.

The Public Carriage Permit Statutes

Ortiz targets the Rhode Island Firearm Act (§§ 11-47-1 et seq.), particularly the public carriage permit provisions in §§ 11-47-11, 11-47-18, and 11-47-8(a), the latter criminalizing the carrying of a pistol without a license or permit. Those three sections provide in relevant part:

"§ 11-47-8. License or permit required for carrying pistol:
(a) No person shall, without a license or permit issued as provided in §§ 11-47-11 [] and 11-47-18, carry a pistol or revolver in any

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vehicle or conveyance or on or about his or her person whether visible or concealed, except in his or her dwelling house or place of business or on land possessed by him...Every person violating the provision of this section shall [be guilty of a felony and subject to imprisonment]."2

"§ 11-47-11. License or permit to carry concealed pistol or revolver.
(a) The licensing authorities of any city or town shall, upon application of any person twenty-one (21) years of age or over having a bona fide residence or place of business within the city or town, or of any person twenty-one (21) years of age...issue a license or permit to the person to carry concealed upon his or her person a pistol or revolver everywhere within this state...if it appears that the applicant has good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver, and that he or she is a suitable person to be so licensed."

"§ 11-47-18. License or permit issued by attorney general on showing of need:
(a) The attorney general may issue a license or permit to any person twenty-one (21) years of age or over to carry a pistol or revolver, whether concealed or not, upon his or her person upon a proper showing of need, subject to the provisions of . . . § 11-47-15."

II. Standing

The state contends that before this Court considers Ortiz's claim, he must demonstrate that he is in a position to make it. After all, argues the state, even when invoking fundamental Fourth and Fifth Amendment protections, a defendant must first affirmatively demonstrate standing before he may substantively contend that the state violated those constitutional sanctuaries. State v. Bertram, 591 A.2d 14, 18, 22 (R.I. 1991); State v. Casas, 900 A.2d 1120, 1129 (R.I. 2006); State v. Ducharme, 601 A.2d 937, 940 (R.I. 1991).

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In United States v. Salvucci, 448 U.S. 83, 92-93 (1980), the Supreme Court overturned precedent which had accorded automatic standing to a defendant charged with possessory crimes simply because he possessed the contraband. Ortiz, however, insists that because he is charged with a criminal offense, he enjoys automatic standing to challenge the constitutionality of the permit statutes relating to the criminal conduct alleged. We are not so sure.

Ortiz resists the concept that his very failure to apply for a permit ought to be a sufficient reason to deny him standing to criticize the constitutionality of the subject statutes. The First Circuit, however, has essentially held just that. In Morin v. Leahy, 862 F.3d 123, 125 (1st Cir. 2017), the Court held that Morin's failure to apply for a firearm identification card, which is a prerequisite to the issuance of a carry permit and also the purchase of a gun, precluded him from challenging the constitutionality of the Commonwealth's firearm licensing scheme. "Morin lacks standing to bring such a challenge, because he has not applied for a FID Card, and has thus not been denied one." Id.3 See Hightower v. City of Boston, 693 F.3d 61, 70 (1st Cir. 2012) (holding that the petitioner, who challenged the Massachusetts firearms licensing scheme after her Class A firearm license had been revoked, "lacks standing to raise a claim as to a [lesser] Class B license [because] she has never applied for such a license, been denied one, or had such a license revoked").4

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Moreover, Ortiz could never have obtained a carry permit, as he would have been unable to satisfy the statutory age and residence prerequisites, which he has not even challenged. Issuance of a carry permit is said to be "mandatory" under § 11-47-11 so long as an applicant demonstrates that he or she meets the eligibility criteria which include (1) a minimum age of twenty-one, (2) a Rhode Island residence, (3) a good reason to fear personal injury, property damage, or any other proper reason for carrying a concealed handgun; and (4) be a "suitable person" to be licensed. "Each of these components must be satisfied in order for a license or permit to be issued under § 11-47-11." Gadomski v. Tavares, 113 A.3d 387, 390 (R.I. 2015) (emphasis added); see Mosby v. Devine, 851 A.2d 1031, 1047-48 (R.I. 2004).5

At the time of the charged event, Ortiz was nineteen years old and was residing in Massachusetts. He would have thus failed both the age and residency requirements and been

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immediately disqualified from obtaining a permit under § 11-47-11, as well as under § 11-47-18, which also includes the same minimum age requirement. Ortiz's pleadings are bereft of a challenge to either criterion, and any such protest would have been foredoomed. United States v. McGinnis, 956 F.3d 747, 753, 757 (5th Cir. 2020) (citing National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives [NRA], 700 F.3d 185, 205 (5th Cir. 2012) (upholding federal laws disarming those under the age of twenty-one)). See Schrader v. Holder, 704 F.3d 980, 990-91 (D.C. Cir. 2013) (noting that among the principal purposes of gun control legislation was to curb crime "by keeping firearms out of the hands of those not legally entitled to possess them because of age" (quoting Huddleston v. United States, 415 U.S. 814, 824 (1974)); Gould v. Morgan, 907 F.3d 659, 669 n.4, (1st Cir. 2018), cert. denied sub nom. Gould v. Lipson, ___ U.S. ___, 2020 WL 3146683 (June 15, 2020) ("[W]e traced the historical roots of laws prohibiting minors from possessing firearms from the founding era through the early twentieth century and concluded that the challenged law was of a type historically understood to be consistent with the Second Amendment.") (citing United States v. Rene E., 583 F.3d 8, 14-16 (1st Cir. 2009)); see Culp v. Raoul, 921 F.3d 646 (7th Cir. 2019), cert. denied, ___ U.S. ___, 2020 WL 3146689 (June 15, 2020) (upholding Illinois' denial of carry permits to nonresidents whose home states did not have substantially similar statutory licensing standards).

Furthermore, at any trial on Ortiz's criminal charge of carrying a pistol without a license, the state would be statutorily entitled to an evidentiary inference under § 11-47-27 that his mere possession of the weapon was unlawful. That statute provides:

"§ 11-47-27. Standard of proof under §§ 11-47-1 -- 11-47-34.
No negative allegation of any kind need be averred or proved in any complaint under §§ 11-47-1 -- 11-47-34, and the carrying or use of any firearm contrary to the provisions of those sections shall be

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evidence that the possession, carrying or use of any firearm is unlawful, but the respondent in any case brought under those sections may show any fact that would render the possession, or use, or carrying of the firearm lawful."

Since that statutory adverse inference is available to the state at trial, where a court hews most closely to the rules of procedure and evidentiary standards than at any other juncture of a criminal proceeding, it is equally, if not even more, accessible to the state in the flexible setting of pretrial proceedings. Cf., State v. Benevides, 420 A.2d 65, 68 (R.I. 1980) (allowing the state to reopen its case at a probation violation hearing after having rested); State v. Bojang, 83 A.3d 526, 536 (R.I. 2014)...

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