Firearm restrictions on defendants awaiting trial are constitutional, 9th Circuit rules

Court orders that barred two criminal defendants from possessing guns while they awaited trial were in line with historical restrictions on firearms and therefore constitutional, a federal court ruled Monday.

While specific to the two cases in question, the court’s analysis adds to one of the most contentious debates in modern constitutional law: the scope of the 2nd Amendment’s protections when it comes to accused criminals.

Judge Gabriel P. Sanchez, writing for a unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals, found that American laws have long sought to disarm dangerous criminal defendants, and that broad tradition justified the restrictions placed on John Thomas Fencl and Jesus Perez-Garcia, federal defendants in California whose challenges to the law were consolidated in Monday’s order.

“Here, the historical evidence, when considered as a whole, shows a long and broad history of legislatures exercising authority to disarm people whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others,” Sanchez wrote. “The temporary disarmament of Fencl and Perez-Garcia as a means reasonably necessary to protect public safety falls within that historical tradition.”

Katie Hurrelbrink, an attorney for both men, said she intended to “continue litigating this” by asking for a review by a larger, en banc appellate panel and, if necessary, the Supreme Court. She otherwise declined to comment.

U.S. Atty. Tara McGrath, who oversees the Southern District of California, where the two cases originated, said in a statement that the ruling “recognized the long history of keeping firearms out of the hands of those who refuse to abide by the law” and would allow for “consistent enforcement of federal firearms laws to combat the scourge of gun violence in our communities.”

Sanchez’s analysis is the latest by an appellate court to grapple with the “history and tradition” test the U.S. Supreme Court established in 2022 for assessing the constitutionality of gun laws nationwide. In New York State Rifle & Pistol Assn. vs. Bruen, the high court said that gun laws are legitimate only if they are rooted in the nation’s history and tradition or are sufficiently analogous to some historic law.

The Bruen decision led to a surge in challenges to gun laws, many of them successful. For example, California’s bans on assault-style weapons and large-capacity ammunition magazines have been overturned, though those decisions are under appeal.

However, there has also been substantial disagreement among the lower courts on how to apply the Bruen decision, which experts say lacked clarity — including how precisely a historic law must match the circumstances in a modern case to be relevant.

Many are watching for additional guidance from the high court in another case, U.S. vs. Rahimi. That case deals with whether the government can preclude people who have domestic violence restraining orders from possessing firearms.

In the meantime, lower courts are weighing in with interpretations of Bruen — as the 9th Circuit did Monday.

According to court records, Fencl was arrested and charged with various crimes after law enforcement officials discovered more than 100 guns in his home in the San Diego suburbs, including 10 unregistered “ghost guns” and three illegal short-barreled rifles. Perez-Garcia was arrested at the U.S.-Mexico border when a customs inspection of a vehicle in which he was a passenger uncovered about 11 kilograms of methamphetamine and half a kilogram of fentanyl, court records show.

Both men were released from custody pending trial, and both subsequently challenged the terms of their release under Bruen.

“Fencl wanted to carry guns to protect his home and for self-defense when he traveled out of state for work. Perez-Garcia wanted to carry guns so that he could pursue employment as an armed security officer and protect his family,” the court wrote.

In January 2023, the 9th Circuit ruled against the men, without providing a full decision. It said a full explanation would follow.

Fencl was subsequently convicted at trial, and Perez-Garcia’s bond was revoked for repeated failures to appear for hearings, according to court records. Their attorneys sought to have their challenges to the gun restrictions dismissed as moot, since neither remained on pretrial release, but the 9th Circuit said it still had reason to explain its earlier decision against them in full — in part because the issue was likely to arise again in other cases.

Both Fencl and Perez-Garcia argued that while detained defendants had historically had firearms taken away from them, there was no historical record of detainees who had been released from detention being precluded from possessing firearms.

The U.S. government argued that restricting the men’s 2nd Amendment rights as a condition of pretrial release was a lesser restriction than the total deprivation of liberty the government could have imposed by denying release altogether, and therefore was acceptable. It also said the restrictions were consistent with historic restrictions on defendants facing serious charges and awaiting trial.

Sanchez, an appointee of President Biden, rejected the government’s former argument but accepted the latter.

“Based on our historical review, we agree that our society has traditionally subjected criminal defendants to temporary restrictions on their liberty — including restrictions that affect their ability to keep and bear arms — to protect public safety and to ensure defendants’ attendance at trial,” Sanchez wrote.

Sanchez rejected the argument by Fencl and Perez-Garcia that the historical restrictions did not match their own circumstances closely enough under the standards set out by Bruen.

Sanchez wrote that both men would likely have been detained, not released, in the founding era. And, he wrote, their focus on the specifics of their situations ignored Bruen’s guidance that a historic law does not have to be a “dead ringer” to support a modern one.

“They presume that if the Government cannot identify a historical regulation under which Perez-Garcia and Fencl, specifically, would have been disarmed pending pretrial release in the 18th century, then the Second Amendment forbids such regulation today,” Sanchez wrote. “They are mistaken.”

Sanchez wrote that the decision was “consistent with our nation’s long history of temporarily disarming criminal defendants facing serious charges and those deemed dangerous or unwilling to follow the law.”

Sanchez was joined by Circuit Judge Kim McLane Wardlaw, an appointee of President Clinton, and Circuit Judge Richard R. Clifton, an appointee of President George W. Bush.