The Supreme Court is giving the city of San Jose, California a month to respond to a request by the Second Amendment Foundation to hear a case dealing with the seizure of a resident’s legally-owned firearms by police officers in the city. The case, known as Rodriguez vs. San Jose, stretches back to 2013, when Lori Rodriguez had her firearms confiscated without a warrant and without any criminal charges or mental health holds levied against her. Seven years on, Rodriguez still doesn’t have her firearms, though courts have said she’s free to buy replacements.

The case began when Rodriguez’s husband Edward was taken into custody on a mental health hold. A San Jose police officer named Steven Valentine showed up at the home and confiscated twelve firearms, telling Rodriguez that the seizure was mandated under a California law that requires all firearms owned by someone placed into a mental health facility for evaluation to have their guns removed from the home. Eleven of the firearms in the home belong to Edward Rodriguez, but authorities also seized a handgun that was registered to Lori, over her vehement objections.

One month later, the city of San Jose filed a request to keep the guns, arguing that Edward Rodriguez and others would be endangered if his firearms were returned to him. While Edward Rodriguez didn’t contest the forfeiture, Lori Rodriguez did, arguing that:

the court had no power to interfere with her Second Amendment right to keep and bear arms because, even if Edward was prohibited from possessing and owning guns, she was not prohibited. In support, she emphasized that she had obtained a notice of eligibility to own and possess guns from the California DOJ Bureau of Firearms. Lori further represented to the court that, if returned, the guns would be secured in her gun safe and that she had changed the combination code so that Edward would not have access to them. The return of the guns, she contended, therefore would not present a danger to Edward or others.

A superior court judge disagreed, stating that it was “not appropriate” to return any firearms to the Rodriguez residence, though the judge did point out that Lori Rodriguez was free to purchase firearms to replace the ones confiscated by police. Rodriguez ended up registering all twelve of the firearms in her name and attempt to get the guns returned once more, only to be denied by the city of San Jose again. That’s when she filed her federal lawsuit.

The 9th Circuit Court of Appeals has upheld the lower court’s decision that Rodriguez is not entitled to get her guns back, ruling that the federal lawsuit Rodriguez filed is essentially the same suit that was filed (and lost) in state court and stating that the federal circuits are precluded from considering the Second Amendment issues raised by Rodriguez because they’ve already been adjudicated in state court. Rodriguez also claimed in her federal lawsuit that her Fourth Amendment rights were being violated, which was a claim she did not raise in her original litigation in state court, but the 9th Circuit Court of Appeals ruled that the warrantless seizure of the firearms didn’t violate her due process rights.

The seizure of the firearms did affect a serious private interest in personal property kept in the home. On the other hand, the public interest at stake here was also very significant. San Jose police officers had previously been to the home on prior occasions because Edward was acting erratically, and on the day in question, Edward was ranting about the CIA, the army, and other people watching him. He also mentioned “[s]hooting up schools,” specifically referencing the guns in the safe. Edward’s threats may not have been as explicit as the threats made in Mora, but a reasonable officer would have been deeply concerned by the prospect that Edward might have had access to a firearm in the near future. Consequently, there was a substantial public safety interest in ensuring that the guns would not be available to Edward should he return from the hospital. With significant private and public interests present on both sides, the urgency of the public safety interest is the key consideration in deciding whether the seizure here was reasonable. We believe that, on this record, the urgency of the situation justified the seizure of the firearms.

In their appeal to the Supreme Court, Rodriguez’s attorneys raised three questions for the high court to consider:

1. Whether the Fourth Amendment allows an exception to its warrant requirement for so-called “community caretaking” where the alleged danger to the community has been resolved and the premises to be searched and items then seized do not contain or pose an immediate threat making it impossible to obtain a timely warrant?

2. Whether issue preclusion can bar a claim for deprivation of a constitutional right where the prior decision discussing the constitutional issue did not depend on resolving the merits of that issue, found state-law procedures remained that could moot the claimed infringement, and thus could not have been further reviewed in this Court given that the constitutional claim would be seen as unripe and potentially avoided by adequate and independent state grounds?

3. Whether this Court should exercise its supervisory powers to review the improper circumvention of Second Amendment protections in the Ninth Circuit or, at a minimum, hold this case for No. 18-280, New York State Rifle & Pistol Association, Inc. v. City of New York?

Now the Supreme Court is asking the city of San Jose to weigh in with its answers, which will undoubtably parrot the arguments made by the 9th Circuit Court of Appeals in denying Lori Rodriguez relief. The substance of the city’s response is less important than the fact that the Supreme Court is asking for it, which indicates that there is at least some interest on the Court to hear the case.

It takes four justices to agree to hear a case before it can be put on the Court’s calendar, and at the moment, there are no Second Amendment-related cases scheduled to be heard. There is, however, a growing number of cases dealing with the right to keep and bear arms that the Court is actively considering in conference, including challenges to carry laws in Maryland and New Jersey, magazine bans in California, and more. The conventional wisdom is that SCOTUS is keeping these cases on hold until it rules on New York State Rifle & Pistol Association vs. New York City, because the opinion may have an impact on pending Second Amendment challenges. There’s no guarantee the court will agree to take the Rodriguez case, but the fact that they’re giving it a closer look along with the growing number of Second Amendment cases in conference is a good sign that the Court may finally be ready to take up cases dealing with our right to keep and bear arms on a more frequent basis.