9/4/24: A published update to 3/18/24's Interesting Second Amendment decision

Before I get to today's interesting published order -- and the Circuit infighting it reveals -- I wanted to address United States v. Ovsepian, --- F.4th ---, No. 21-55515 (9th Cir. 2024). 

In the habeas appeal, Ovsepian argued that he was factually innocent of aggravated identity theft, a crime for which he was prosecuted and convicted at trial."  The Court agreed:  "In light of Dubin, we excuse Ovsepian’s procedural default and conclude that the jury instructions used in his trial were erroneous because they did not convey that his “possession” of another’s identifying information must have been at the crux of the healthcare fraud to sustain a conviction of aggravated identity theft and, because no jury so instructed could find Ovsepian guilty of that offense on the record before us, we vacate Ovsepian’s conviction for aggravated identity theft."

The opinion has a lot of helpful language for 1028A cases.  It also has a thorough discussion of the actual innocence exception to procedural default. 

Today, in United States v. Perez-Garcia, --- F.4th ---, No. 22-50314 (9th Cir. 2024), the Court issued a published order denying rehearing en banc in this Second Amendment related case.  

My original summary of the panel decision is below.  Today's order is 66 pages because of the concurrence and dissent.  The tension is clear.  For your reading pleasure, here is a bit of the concurrence:

A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.”

The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” 

I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia.  

In United States v. Perez-Garcia, --- F.4th ---, No. 22-50314 (9th Cir. 2024), the Court denied Appellants’ motion to dismiss the appeal as moot, and held that the Bail Reform Act of 1984’s firearm condition on pretrial release is constitutional as applied to the appellants. 

This is a case out of the SDCA. 

After their arrests in unrelated cases, two magistrate judges released Fencl and Perez-Garcia pending their trials but subjected them to a condition of pretrial release that temporarily barred them from possessing firearms pending trial.  The magistrate judges concluded that the firearm condition was the least restrictive way to assure the safety of the community and the defendants’ appearances in court. Two district court judges agreed.

In consolidated appeals, Appellants Fencl and Perez-Garcia contended that the pretrial firearm condition violates their Second Amendment rights under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). 

The Ninth Circuit affirmed in a brief dispositive order stating: “We affirm the district court’s orders. An opinion explaining this disposition will follow.”

Fencl and Perez-Garcia moved to dismiss their appeals as moot after the Court ruled against them but before the opinion was released. 

Today, the opinion was filed.  As noted, the Court declined to dismiss the appeals.  

Next, the Court held that "the Bail Reform Act’s firearm condition on pretrial release is constitutional as applied to Fencl and Perez-Garcia. Our holding is consistent with how we have long balanced the constitutional rights of pretrial detainees and releasees with legitimate public safety and logistical considerations. And our holding is 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."