State v. Jason Ortiz

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

No. 2022-15-C.A.
(P2/19-672AG)

State :

v. :

Jason Ortiz. :

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)