Supreme Court
No. 2022-15-C.A. (P2/19-672AG)
State :
v. :
Jason Ortiz. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Robinson, for the Court. The defendant, Jason Ortiz, appeals from
a judgment of conviction and commitment1 following a bench trial held in the
Superior Court for Providence County. The defendant was charged with several
criminal counts on only one of which was he found guilty—viz., Count One
(carrying a pistol without a license in violation of G.L. 1956 § 11-47-8(a)). On
appeal, the defendant argues that § 11-47-8(a) violates the Second Amendment to
the United States Constitution.2
1 A corrected judgment of conviction and commitment on one count of carrying a pistol without a license was entered on March 2, 2023. 2 The Second Amendment to the United States Constitution reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
-1- For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
I
Facts and Travel
On February 26, 2019, a criminal information was filed, charging defendant
with: (1) one count of carrying a pistol without a license (Count One); (2) one
count of domestic assault (Count Two); (3) one count of resisting arrest (Count
Three); and (4) one count of disorderly conduct (Count Four).3
Subsequently, on July 29, 2019, defendant filed a motion to dismiss Count
One—the count which charged him with carrying a pistol without a license in
violation of § 11-47-8(a).4 The motion to dismiss was predicated on his contention
3 Because the complaining witness did not appear for trial, Counts Two and Four (domestic assault and disorderly conduct respectively) were in due course dismissed by the state pursuant to Rule 48A of the Superior Court Rules of Criminal Procedure. In addition, at trial after the state rested, defendant moved to dismiss Count Three (resisting arrest), and the trial justice granted that motion. 4 General Laws 1956 § 11-47-8(a) provides, in pertinent part:
“No person shall, without a license or permit issued as provided in §§ 11-47-11, 11-47-12, and 11-47-18, carry a pistol or revolver in any 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 or her[.] * * * Every person violating the provision of this section shall, upon conviction, be punished by imprisonment for not less than one nor more than ten (10) years, or by a fine up to -2- that § 11-47-8(a) was unconstitutional because, in his view, it violated his
“constitutional right to keep and bear arms under the Second Amendment * * *.”
In his memorandum filed in support of his motion to dismiss, defendant cited and
relied upon McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010), and
District of Columbia v. Heller, 554 U.S. 570 (2008). With respect to the Second
Amendment and the right to keep and bear arms, he argued that “[n]o other
fundamental right enumerated in the US Constitution is subject to the requirement
that the State grant permission to exercise it;” he contended that such a requirement
is inconsistent with the fundamental “right of individuals to bear arms in
self-defense.”
Approximately a year later, on August 14, 2020, the state filed an objection
to defendant’s motion to dismiss. In its supporting memorandum, the state
asserted that “the government can regulate one’s ability to keep and bear arms
publicly outside the home,” and it contended that the pertinent Rhode Island
statutory schemes did not violate defendant’s rights under the Second Amendment.
In addition, the state asserted in a supplemental memorandum that defendant
lacked standing to challenge the provisions at issue because he “failed to allege an
injury in fact resulting from the statutes”—in view of the fact that he had “never
ten thousand dollars ($10,000), or both, and except for a first conviction under this section, shall not be afforded the provisions of suspension or deferment of sentence, nor a probation.” -3- applied for a license pursuant to § 11-47-11 or § 11-47-18, and therefore he was
never denied a license under the statutes.”
A hearing on defendant’s motion to dismiss took place on October 29, 2020.
At the hearing, defendant argued that the Second Amendment does “not require a
person to apply for a license to exercise their constitutional rights in order to have
standing;” he contended that he had met all the requirements for standing to
challenge the criminal charge of carrying a pistol without a license. He added that
any ruling that he lacked standing because he had not applied for a license would
be a violation of his “procedural due process rights, his right to confront and
cross-examine the witnesses,” and “his right to be present in court during an
evidentiary hearing.” The defendant further asserted that he had “a fundamental
right to carry a firearm upon his person on the streets of Rhode Island for the
purposes of self-defense” and that the state had no “legitimate interest in
prohibiting him to do so or in requiring him to seek permission from the State
authorities to do so.”
The defendant additionally contended that the holding in Heller to the effect
that a citizen has a right to possess a firearm in the home “logically extends to the
street.” He further argued that the requirement in § 11-47-18(a) (which he noted
“applies to the Attorney General”) that there be a “proper showing of need” as
justification for the issuance of a firearm license violates procedural due process
-4- because a constitutional right should not be “subject to a review of the government
to determine need.” Similarly, defendant challenged the requirement in
§ 11-47-11(a) (which he noted is “directed at any city or town”) that an applicant
establish that he or she had a “good reason to fear an injury to his or her person or
property or have any other proper reason for carrying a pistol or revolver.”
The defendant argued that there was “nothing objective about either statute,”
that the statutes did not provide guidelines as to how the determinations were to be
made, and that they were “not public safety statutes.” For its part, the state
contended that defendant did not have standing to challenge § 11-47-11 or
§ 11-47-18, given that he had “not established any injury in fact from those
licensing statutes, because he never even attempted to apply for a license.”
On December 15, 2020, the trial justice issued a written decision denying
defendant’s motion to dismiss. The trial justice observed that defendant “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.” 5 The
trial justice also stated that he had “difficulty accepting [defendant’s] claim that he
enjoys automatic standing to contest this state’s statutory permit policies.” The
trial justice further noted that § 11-47-11 and § 11-47-18 are integrally related to
5 It is undisputed that, at the time of his arrest, defendant was nineteen years old and was a resident of Massachusetts.
-5- § 11-47-8(a),6 and he added that § 11-47-11 and § 11-47-18 “cannot be so
cavalierly disengaged from the criminal statute.” In addition, the trial justice
decided that, quite apart from his conclusion relative to the issue of defendant’s
lack of standing to assert the constitutional challenge, he would address the
constitutional argument made by defendant. The trial justice ultimately concluded
that the statutes in question were reasonably adopted to address the compelling and
paramount government interest in “reducing catastrophic gun violence and the
harm caused by the misuse of firearms.”
A bench trial took place on July 26, 2021. The single witness to testify was
Detective Jeffrey Furtado of the Pawtucket Police Department, who described an
incident involving defendant that occurred on July 24, 2018. Detective Furtado
began by testifying that he had responded to a domestic incident after dispatch
received a 911 call from a woman (later identified as the complaining witness) to
the effect that “she had been brutally beaten by her boyfriend,” whom the woman
named during the 911 call as defendant.
Detective Furtado testified that he proceeded to check the area and that he
observed a person he believed to be the suspect walking along the sidewalk on
Summer Street on the same side as the Pawtucket Public Library. Detective
Furtado further testified that, when the suspect saw the police cruiser, he started
6 See footnote 4, supra. -6- walking toward the front entrance of the library. Detective Furtado added that,
upon entering the library, he heard a loud bang. He stated that library employees
directed him to where the suspect had gone; he thereafter saw the suspect leave
through an emergency exit doorway. He further testified that he followed the
suspect and saw him running through a “small alleyway.” He confirmed that he
was eventually able to catch up with the fleeing subject at a parking lot on North
Union Street, where he apprehended him. At trial, Det. Furtado identified
defendant as the person whom he apprehended on that occasion.
Detective Furtado testified that his dispatcher alerted him that a citizen had
found a gun on North Union Street and that surveillance video from a business on
that same day showed an individual wearing the same clothing as the suspect
fleeing through the area where the gun was found. He further stated that a buccal
swab DNA sample that was taken from defendant and tested by the forensic unit of
the Department of Health indicated that defendant could not be eliminated as a
source of DNA found on the seized weapon. Detective Furtado testified that, at the
time of his arrest, defendant was nineteen years old and a resident of Brockton,
Massachusetts.
Although defendant did not present evidence nor did he testify, defense
counsel delivered a closing argument, in which he conceded that defendant did not
have a license to carry a firearm. Upon reviewing the evidence, the trial justice
-7- found defendant guilty on the sole remaining charge of the information—viz.,
carrying a pistol without a license (Count One). At the conclusion of the trial, the
trial justice sentenced defendant to five years imprisonment, with eighteen months
to serve and the balance of the sentence suspended, with probation.
The defendant filed a premature but valid notice of appeal on August 11,
2021. A judgment of conviction entered on October 25, 2022.7
II
Analysis
A
Standing
On appeal, defendant contends that the trial justice’s denial of his motion to
dismiss must be reversed on the ground that § 11-47-8(a) violates the constitutional
right to keep and bear arms guaranteed by the Second Amendment. Specifically,
defendant relies upon New York State Rifle & Pistol Association, Inc. v. Bruen,
597 U.S. 1 (2022), for the proposition that the Second Amendment guarantees
individuals the freedom to carry firearms in public spaces and that it must not be
subject to the broad discretion of public officials “to deny licenses based on their
interpretation of subjective criteria like ‘suitability,’ ‘proper reason,’ and ‘need’ for
a firearm.”
7 As noted supra, a corrected judgment of conviction and commitment on one count of carrying a pistol without a license was entered on March 2, 2023. -8- On the issue of standing, defendant argues that he has standing to assert that
§ 11-47-8(a) is unconstitutional “because he is being punished for violating an
unconstitutional licensing scheme that is explicitly incorporated into the text of”
§ 11-47-8(a). The defendant avers that he has suffered an injury in fact from the
challenged statute in that “the state charged him criminally with violating that
statute, and he was convicted and sentenced to prison.” The defendant further
addresses the issue of standing by responding to the state’s argument that “an
attack on * * * § 11-47-8(a) does not encompass an attack on the licensing
statutes;” defendant contends that the enforcement statute, which incorporates the
two permitting statutes by reference, “rises and falls with the permitting statutes by
its plain text.”
For its part, the state does not dispute that defendant would ultimately have
standing to challenge the constitutionality of § 11-47-8(a); rather, the state argues
that defendant cannot sustain his independent challenge that § 11-47-8(a) is
unconstitutional without first establishing that § 11-47-11(a) and § 11-47-18(a) are
unconstitutional. And the state argues that defendant lacks standing to challenge
the constitutionality of § 11-47-11 and § 11-47-18 because “he never applied for a
license or permit to carry a firearm in Rhode Island.”
This Court has stated that, “[a]t its core, inquiries into standing consider
whether the party seeking relief has alleged such a personal stake in the outcome of
-9- the controversy as to ensure concrete adverseness that sharpens the presentation of
the issues.” 1112 Charles, L.P. v. Fornel Entertainment, Inc., 159 A.3d 619, 625
(R.I. 2017) (internal quotation marks and deletion omitted). We have emphasized
that the question of standing is a threshold inquiry into whether a party that is
seeking relief is legally entitled to bring an action. See id. Specifically, the
question of standing requires that the “party asserting standing must have an injury
in fact that is (a) concrete and particularized * * * and (b) actual or imminent, not
conjectural or hypothetical.” Id. (internal quotation marks omitted). We have
made clear that, “[f]or questions on standing, the court must focus on the party
who is advancing the claim rather than on the issue the party seeks to have
adjudicated.” Key v. Brown University, 163 A.3d 1162, 1168 (R.I. 2017) (internal
quotation marks omitted).
As we have previously noted, § 11-47-8(a) prohibits the possession of a
firearm without a license, stating in pertinent part, as follows:
“No person shall, without a license or permit issued as provided in §§ 11-47-11, 11-47-12, and 11-47-18, carry a pistol or revolver in any 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 or her[.] * * * Every person violating the provision of this section shall, upon conviction, be punished by imprisonment for not less than one nor more than ten (10) years, or by a fine up to ten thousand dollars ($10,000), or both, and except for a first conviction under this section, shall not be afforded
- 10 - the provisions of suspension or deferment of sentence, nor a probation.”
Section 11-47-11(a), which provides one procedural route through which an
individual may apply for a firearm license or permit (viz., by applying to a city or
town) provides, in pertinent part:
“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 or over having a bona fide residence within the United States and a license or permit to carry a pistol or revolver concealed upon his or her person issued by the authorities of any other state or subdivision of the United States, issue a license or permit to the person to carry concealed upon his or her person a pistol or revolver everywhere within this state for four (4) years from date of issue, 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.”
The alternative licensing statute, § 11-47-18(a), which deals with an application to
the Attorney General for a license or permit, provides in pertinent part:
“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 §§ 11-47-12 and 11-47-15; that license or permit may be issued notwithstanding the provisions of § 11-47-7.”
- 11 - To support his contention that one need not have applied for a license or
permit in order to challenge what he considers is an unconstitutional scheme,
defendant cites Staub v. City of Baxley, 355 U.S. 313 (1958), which involved a
defendant who was charged with “the offense of Soliciting Members for an
Organization without a Permit & License.” Staub, 355 U.S. at 317. The defendant
in Staub moved to dismiss the charge and argued that the permitting ordinance
violated the First Amendment by “requiring, as conditions precedent to the
exercise of those rights, the issuance of a ‘license’ which the Mayor and city
council are authorized by the ordinance to grant or refuse in their discretion * * *.”
Id. The United States Supreme Court addressed the argument that “appellant
lacked standing to attack the constitutionality of the ordinance because she made
no attempt to secure a permit under it;” the Court stated that its decisions have
“uniformly held that the failure to apply for a license under an ordinance which on
its face violates the Constitution does not preclude review in this Court of a
judgment of conviction under such an ordinance.” Id. at 319. The Supreme Court
ultimately struck down as invalid the licensing scheme at issue in that case because
it made the enjoyment of speech “contingent upon the will of the Mayor and
Council of the City” and subject to “uncontrolled discretion.” Id. at 325.
The defendant also cites to Bond v. United States, 564 U.S. 211 (2011),
which involved a claim that a state violated the Tenth Amendment to the United
- 12 - States Constitution. Bond, 564 U.S. at 214. He further cites to Smith v. Cahoon,
283 U.S. 553 (1931), which dealt with a challenge on due process and equal
protection grounds to a state statute that required auto transportation companies to
obtain certificates of public convenience and necessity.8 Smith, 283 U.S. at 556.
While we appreciate defendant’s attempt to base his arguments on the
above-referenced cases, upon reflection it is our view that the instant action poses
factually and legally significant differences, rendering those cases non-dispositive.
The defendant’s constitutional challenge in this case involves the Second
Amendment—not the First Amendment nor the Tenth Amendment—and he is not
claiming that § 11-47-8(a) is unconstitutional because the Second Amendment
prevents states from imposing licensing requirements; instead, he is contending
that the particular licensing scheme that is explicitly made part and parcel of
§ 11-47-8(a) is unconstitutional.
Although we understand that defendant is asserting that he has standing to
challenge § 11-47-8(a), which incorporates the two licensing statutes by explicit
reference, we re-emphasize that defendant has not suggested that the state is not
free to criminally penalize those who fail to procure a license to carry a firearm
8 Additionally, defendant points to two Second Amendment cases—one from the United States Court of Appeals for the Eleventh Circuit and one from the Supreme Court of Illinois. See United States v. Wright, 117 F.3d 1265, 1267 (11th Cir. 1997), vacated in part, 133 F.3d 1412 (11th Cir. 1998); People v. Aguilar, 2 N.E.3d 321, 323-24 (Ill. 2013). However, we do not view either of these cases as having persuasive value in the context of the instant case. - 13 - outside of their homes and within the boundaries of the state. The defendant
instead only directly attacks the licensing statutes, and the fact remains that
defendant is not in a position to be able to properly mount a constitutional
challenge to either § 11-47-11 or § 11-47-18.
In the case at bar, defense counsel expressly conceded that defendant did not
have the requisite firearm license. And, significantly, he does not claim to have
ever sought a license or to have been denied a license pursuant to either of the two
licensing statutes. See State v. Wilson, 543 P.3d 440, 445 (Haw. 2024) (stating that,
because the defendant did not seek a license pursuant to the relevant firearm
licensing statute, “he cannot claim the law’s application procedures are
unconstitutional as applied to him” and further stating that he cannot show “a
specific present objective harm based on” the licensing statute). Accordingly, we
are of the opinion that the factual context of this case precludes defendant from
pursuing in court the constitutional challenge that he has outlined in his papers. In
short, it is our view that defendant lacks standing to bring any challenge to the
licensing scheme.
We hasten to add that defendant would not be eligible for a license or permit
under either statute because he could not satisfy two objective requirements: age
and residency. It is uncontested that defendant was nineteen years old when he
was charged with possessing a firearm without a license or permit. Pursuant to
- 14 - either § 11-47-11 or § 11-47-18, an individual must be at least twenty-one years
old to be eligible for a license or permit. Additionally, it is also uncontested that
defendant was a resident of Massachusetts at the time when he was found to be in
possession of the firearm, whereas § 11-47-11 requires that an applicant be a
Rhode Island resident or be licensed to carry a concealed firearm in another state in
order to be eligible for a license or permit.
Accordingly, we hold that defendant does not have standing to challenge the
licensing statutes because he did not apply for a permit to carry a handgun, nor
would he have qualified for one had he applied; and because it is undisputed that
defendant did not have a license to possess a firearm, his arguments must fail for
want of standing.9
B
The Constitutionality of the Licensing Statutes
Because we have concluded that the defendant does not have standing to
assert his constitutional challenge to the substantive provisions of § 11-47-11 and
§ 11-47-18, we decline to reach his arguments pertaining to same.
9 Since defendant’s constitutional challenge to § 11-47-8(a) is framed in terms of a challenge on constitutional grounds to the licensing statutes (§ 11-47-11 and § 11-47-18), which are explicitly incorporated into § 11-47-8(a), his entire challenge to the latter statute is fatally flawed. - 15 - III
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The record may be returned to that tribunal.
- 16 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Jason Ortiz.
No. 2022-15-C.A. Case Number (P2/19-672AG)
Date Opinion Filed July 9, 2024
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Robert D. Krause
For State:
Christopher R. Bush Department of Attorney General Attorney(s) on Appeal For Defendant:
Kara J. Maguire Rhode Island Public Defender
SU-CMS-02A (revised November 2022)