The Puerto Rico Appellate Case Recognizing a Second Amendment Right to Carry Guns in Public

I blogged about this last week, but now I have a translation of both the majority and the dissent, translated by reader Rick Nemcik Cruz (many thanks to him for this). Since this is the first post-Heller appellate case, to my knowledge, that has held that a Second Amendment includes the right to carry guns in public, it struck me as especially worth noting. Note also that the Puerto Rico government has apparently decided not to ask the Puerto Rico Supreme Court to reconsider the case. (Thanks to Antonio A. Hernández Almodóvar for that information.)

Ex Parte Roque César Nido Lanausse (Puerto Rico Court of Appeals, Guayama Judicial Region, Panel XII, Case Num. KLAN201000562, Jan. 31, 2011).

Opinion by Judge Cordero Vázquez, joined by Judge Cortés Trigo.

Roque César Nido Lanausse (petitioner) appears via appeal asking that we revoke the Judgment issued on 8 March 2010, served the 18th of that month and year by the Court of First Instance, District of Guayama (CFI). [Footnote: As the final disposition of a petition of voluntary jurisdiction is properly by Certiorari. We so resolve it. In conformity with the calendar and the holidays involved, we conclude that the appellant presented his appeal timely. The Appellate Court (TA) consented to process the appeal and we decide it with the benefit of the transcript of the hearing. On 28 October 2010, we ordered the Solicitor General to file her brief and she did so. ] By the Judgment (the Judgment), after a judicial hearing, the CFI denied his Ex parte petition seeking issuance of a license to carry a firearm.

Not satisfied with the decision of the CFI, the petitioner formulated an assignment of error:

(1) In denying the license to carry a firearm requested by the petitioner, the CFI erred in its consideration of the proof by finding that insufficient evidence was presented because the petitioner did not testify to specific facts on which he bases his fear and for failing to testify about some other situation that would justify his request.

After examining the file presented, the transcript of the testimony, the currently applicable law, and the briefs of the parties, we conclude that the error assigned was committed.

In the Judgment appealed, the CFI found the following relevant facts:

1. The petitioner is an unmarried adult, medical surgeon and a resident of Guayama.

2. The petitioner has shown that he has a Firearms License, issued by the Puerto Rico (Emphasis ours. The license was current on the operative date.)

3. The petitioner testified that he meets all of the requirements established in Article 2.02 of the Puerto Rico Firearms Act, Law 404 of 11 September 2000, as amended, 25 P.R.L.A. section 455, et seq. (Firearms Act), and that entire content of his application is true and correct.

4. At the hearing held on 8 March 2010, the petitioner testified that he was afraid for his safety. Notwithstanding, the petitioner did not testify about specific facts that underlie his fear. Nor did he testify to some other situation that justifies his request. (Emphasis ours and, the conclusion of the CFI that we address in dispositive section III-A of this Judgment is in italics.) [Footnote: Except for the inference in italics, upon review of the record on appeal, we found that we did not have to address any of the findings of fact of the CFI; our decision addresses only the weighing of the evidence and the conclusion of law of the CFI.]

5. During the hearing, the Public Ministry stated having no objection to the issuance of the requested license, on the grounds that all of the required documents for issuance of a license to the petitioner were submitted. (Emphasis ours and we address it in dispositive section III-B of this Judgment.) [Translator’s note: The local District Attorney representing the Public Ministry is an ex officio party to every request for a CCW.]

To these facts found by the CFI, itself, we add others that appear from the proof.

The petitioner testified that he is a businessman and rented offices. The petition to the CFI states that the petitioner transports valuables or large sums of money from his profession and the rents from his properties. The petitioner collects the rents and transports them personally. To this end, he testified that he does not receive rent by mail. (See pp. 8-9 in the Transcript of the testimony.)

The evidence in the case reveals, in addition, that the petitioner possesses a target-shooting license. [Translator’s note: The Puerto Rico Firearms Act provides for three classes of firearms license: (1) Simple possession, with restrictions on the number of firearms that may be owned and severe restriction on the amount of ammunition that may be purchased annually; (2) Target shooting, with no restrictions on the number of firearms that may be owned and no restriction on the amount of ammunition that may be purchased; and, (3) Concealed carry, that allows concealed carry of no more than one handgun. Either 1 or 2 is a pre-requisite for 3.] He is also subject to annual recertification in the use of firearms as part of his work in the Puerto Rico National Guard and the United States Army, in which he holds the rank of Brigadier General. (See Transcript, p. 5).

Nothing appears in the record of this case that shows that the CFI questioned the credibility of the testimony of the petitioner or his witness during the hearing, nor the correction to the transcript presented. Nor is there any evidence that tends to discredit the truth-value of the documentary proof. What the CPI finally resolved was that “after examining the oral and documentary proof presented, I conclude that insufficient proof was presented to grant the petition”. (Emphasis ours.) The petitioner timely sought recourse in this court.


On repeated occasions, the Puerto Rico Supreme Court (PRSC) has stated that in its mission to do justice, discretion is the most powerful instrument reserved to judges. Banco Metropolitano v. Berríos, 110 D.P.R. 721, 725 (1981). In the scope of judicial performance, discretion does not mean power to act in one form or another, rendering the rest of law an abstraction, but rather a form of reasonableness applied to judicial discernment to arrive at a Just conclusion. Banco Popular de P.R. v. Municipio de Aguadilla, 144 D.P.R. 651, 657-658 (1997).

In Pueblo v. Ortega Santiago, 125 D.P.R. 203, 211 (1990), it was established that:

[A]buse of discretion may be manifested in various ways in the judicial sphere. One incurs in it, among others and in the relevant part, when the judge, in the decision he or she emits, does not take into account or ignores, without basis for doing so, and important material fact that could not be bypassed; when on the contrary, the judge, without justification and without any basis for doing so, gives great weight and value to an irrelevant fact and bases the decision exclusively on it; or when, despite considering and taking into account all of the material and important facts and discarding the irrelevant ones, the judge lightly weighs and calibrates them.

In this doctrinal context, we should keep in mind our role as an appellate forum upon carefully intervening with [the exercise of] judicial discretion. Well then, it is an oft repeated rule that this forum may not intervene in the exercise of judicial discretion by the CPI, except in case of “a gross abuse of discretion or if the court acted with prejudice of partiality or erred in the interpretation or application of any procedural rule or substantive law, and that our intervention at this stage would avoid substantial harm.” Lluch v. España Service, 117 D.P.R. 729, 745 (1986).

Notwithstanding, it is clear that the judgment of the trier of fact is due deference, but is not absolute. That is why an incorrect weighing of the evidence has no credential of immunity before the review function of an appellate court. Nonetheless, is clear that respect is owed the judgment of the trier of fact, but not absolutely. That is why an erroneous appreciation of the evidence has no credential of immunity during an appellate court review. Rivera Pérez v. Cruz Corchado, 119 D.P.R. 8 (1987).


As a threshold question, the majority of this Special Panel recognizes the compelling State interest in protecting the physical security of the citizens that inhabit Puerto Rico. Nonetheless one must remember that that same “interest” is also recognized in the Puerto Rico Firearms Act, the legitimate bearing of firearms.

As Judges, we cannot prevent every type of eventuality in those cases in which a weapons carry permit is legitimately granted. Everyone who has presided over a Courtroom of First Instance cherishes the hope that those to whom this type of license is granted recognize that, “the best firearm is one that was never used”. Despite that, our ministerial duty as judges requires us to be consistent in application of the provisions established in the Firearms Act, without inserting requirements that the Legislature did not contemplate including. Such a process would open the doors to the exercise of capricious or arbitrary judicial discretion and that is not permitted to us.


The determination of the CFI in this case constitutes an error in weighing the evidence and, in its interpretation of what is required by the Firearms Act. The Firearms Act does not require that he who carries a firearm have been a victim of a crime against his or her person, it only calls for a showing of “fear for his or her safety”. [Footnote: Rule 110(c) of Evidence provides that, “[t]o establish a fact, a standard of proof is not required that, by excluding the possibility of error, produces absolute certainty’. 32 P.R.L.A. Ap. VI, R.110(c).] Neither does it require, as the Solicitor General of Puerto Rico apparently argues in her brief, that the petitioner must be a victim or more than one crime or that the crime against his or her property must be verified in his or her presence or that the crime be against his or her person (or personal integrity). [Footnote: Rule 110(c) of Evidence provides that, “[t]o establish a fact, a standard of proof is not required that, by excluding the possibility of error, produces absolute certainty’. 32 P.R.L.A. Ap. VI, R.110(c).]

Quarae if under the current state of the law, the statute in controversy is constitutionally valid. Notwithstanding, for sake of argument in this part of the Judgment, we hold that the concept “fear for his or her safety”, or suspicion of future harm, is one subjective to the person who avers it. It depends on his or her particular mental or emotional state, not that of the CFI. What can cause fear in a common person may not cause fear in a judge that must confront all types of social controversies daily and still continues being the “fear” to which the Firearms Law alludes.

Nor does the provision at issue demand that a petitioner must provide to the CFI a specific list of experiences to sufficiently corroborate upon demonstrating the aforementioned “fear for his or her safety” to a particular CFI. Such a requirement could develop the use of stereotyped testimony that would endanger the purpose of the statutory requirement.

The evidence does not support the second and third sentences in the findings of the Judgment of the CPI. The petitioner did testify to specific facts that demonstrate his “fear”. The petitioner testified to the following at the public hearing:

P. Where is your place of work?

R. Uh, usually in the San Lucas Hospital Guayama, which is here nearby, and my private office.

P. … Uh, can you give us the reason why you are petitioning for it?

R. Uh. Because I am afraid for my safety.

P. Why do you fear for your safety?

R. Well. Being a doctor, I still have to be on duty at the hospital, I have to, at late hours, travel from my house in Barrio Guamaní to the hospital, we would say that is not a safe route. Eh, being a businessman, I have to charge rent to my tenants. Uhh, I think that something could happen to me. Ah, uhh, more than a year ago they, they, entered into my house and they robbed me, and that creates some fear that it might happen to me again. Lately, eh, I saw that someone was at one of the window bars that I had put around the house. As the house is often empty, I’m at the hospital a lot, someone was like opening the window bars and trying to get in. (Transcript, p. 4.)

Precisely, the elements of “fear for his or her safety” are found in the testimony that the CFI had to weigh. The petitioner is a businessman, he is also a physician, he charges rents for rental of his properties, the rents are paid in person (his clients do not pay him by mail), he carries considerable sums of money produces by his rents and profession, which is easily known. He works extended hours and late at night. He lives alone and has been the victim of a crime against his property and he resides in a community that has been suffering from crime.

It seems to us that this is the type of testimony that corroborates the “fear for his or her safety” of a citizen. Nothing in the Firearms Act authorizes a court to insert elements (or a list of expressions) in the sufficiency of that “requirement”. In Cancio, Ex parte, 161 D.P.R. 479, 490-491 (2004), the PRSC sets forth that “the courts may not, in our interpretive function, add conditions or restrictions that were not foreseen by the legislator at the moment of enacting the legislation under analysis. (Citations omitted.) … [w]hen the letter of a statute does not contain ambiguities and its language is clear and simple, …, the courts are not authorized to add limitations or restrictions that do not appear in its text.” The CFI lapsed in this case upon weighing the evidence and the assigned error was committed.


In Article 2.05 (section 456d, 25 P.R.L.A.) The Firearms Act authorizes the CFI to hold a hearing related to an application to carry firearms, when requested by the Public Ministry (PM). Curiously, such a hearing was held in this case and afterwards the PM recorded his assent to the petitioner’s application.

That is to say, the PM AGREED TO, or did not object to the petitioner’s application. He repeated the same to the CPI on more than one occasion. (See Transcript, pp. 14, 15 y 17, as well as the fifth finding in the Judgment appealed from.) Notwithstanding, despite what we are addressing today related to the Judgment of the CFI, the State does not advise the AT [Appellate Tribunal] of this important detail. All to the contrary, it presents a brief with issues that were never brought or presented to the CFI.

As we address a judicial decision in a case of voluntary jurisdiction (civil) that was against the petitioner and the PM, and because fundamentally we face the weighing of the evidence of the CFI, as well as the currently applicable law, it is unnecessary to dwell further on this detail. Nonetheless, we feel it pertinent to emphasize it.


In its brief “regarding the recent interpretations of the Second Amendment to the Constitution of the United States. (Second Amendment) about the right to bear arms”, the State argues that we have to confirm the Judgment appealed. We should consider the proposal of said analysis. In the first place, because the State proposes to substantiate the appealed Judgment on the premise that these recent interpretations (federal) leave our Firearms laws unaltered, and in addition, because they argue that: “according to our Supreme Court, in our jurisdiction, possession of a firearm is not a right it is a privilege”. Secondly, we should consider said analysis although the Judgment of the CFI does not mention the “basis” the State mentions, it is necessary to review it in light of the recent federal interpretations, because it [the Judgment] is not yet final and the subject matter is certainly of a constitutional nature. [Footnote: The decision appealed is not yet final and also is related to an appeal of voluntary jurisdiction of constitutional dimensions that may be re-litigated with the arguments that we face today. ]

Despite what has been said above, we also recognize that it is unnecessary to address the constitutionality of specific provisions of our Firearms Act. The appeal can also be resolved in conformity with what was stated in part III-A and we owe deference to the SCPR for future intervention related to the reach or legal significance of the concept “bear arms”, or if it understands that this [language] exclusively addresses the “bearing of arms inside the home” that the States brief argues.

None of the local cases cited in the State’s brief, in which are stated that the possession and bearing of arms is simply a privilege granted by the State, can be upheld in light of the “recent interpretations” of the Supreme Court of the United States. (SCOTUS). [Footnote: Although the SG does not argue that the possession and carry of firearms is a privilege “granted” by the State, we consider it acceptable to so categorize it, as we understand by the limited scope of her discussion that the SG so considers it. Likewise, we presume that the State does not allude to a “privilege” guaranteed by the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution. For purposes of keeping and bearing arms, there is a great difference between what can be considered a privilege granted by the State and what, is now recognized as a fundamental right.] The federal cases alluded to are: District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller), and, McDonald v. City of Chicago, 130 S.Ct. 3020, 177 L.Ed 2d 894 (2010) (City of Chicago). In these cases, the SCOTUS resolved constitutional controversies related to prohibitions or regulations of the possession or carriage of firearms, as guaranteed in the Second Amendment.

Consonant with the holding in Pueblo v. Santana Vélez, res. 13 October 2009, 177 D.P.R. ___ (2009), 2009 TSPR 158 (Santana Vélez), a fundamental right that applies to the states via the due process clause of the Fourteenth Amendment to the Constitution of the United States. (Fourteenth Amendment) also applies to Puerto Rico. In that case, the PRSC adopted the principle that said “applicability” operated under “the doctrine of territorial incorporation”. Even the dissent also concurs in the applicability to Puerto Rico, by means of the due process clause of the Fourteenth Amendment, of a fundamental right recognized in the Federal Constitution, Id.

In his concurrence in Santana Vélez, Associate Justice Sr. Martínez Torres highlights that “the Insular Cases resolve only the “fundamental rights” in the Constitution of the United States are applicable to Puerto Rico”. (Citations omitted.) Regarding the law at issue therein [Santana], he added that: considering a Federal Constitutional right recognized as fundamental, it is extended to Puerto Rico, according to the doctrine in the Insular Cases. (Citations omitted.) In his exposition, he concludes it would be unacceptable that American citizens born in or residents of Puerto Rico should have fewer fundamental rights than those that they would enjoy if the were in any of the states of the Union, because it would be a head-on collision with the privileges and immunities provision of the Federal Relations Act. (Citations omitted.)

City of Chicago was decided 28 June 2010. The State correctly argues that the opinion reaffirmed that the states may regulate the subject matter. Where we have a discrepancy with the State’s analysis is in its interpretation of the scope of regulation. The state argues the City of Chicago reaffirms that carrying firearms continues to be a “privilege” granted by the State. In support, the SG quotes the following language from the federal case:

“[i]t is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (Citation omitted.) We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (Citation omitted.) We repeat those assurances here.” (Emphasis supplied by the SG.)

Notwithstanding, to understand the reach of this quotation, it must be analyzed in the context of the totality of the opinion. What City of Chicago reaffirms is that not all regulation by the States will be considered unconstitutional on its face. And we suggest that the quoted enumeration is specific enough. Obviously we should presume that the SG is not arguing that the petitioner is a: “felon”, or is “mentally ill”, or that he [Translator’s note: Petitioner] is applying for a license to carry firearms in a “sensitive place” like a school or inside government buildings, etc. Consequently, the reach of the quotation does not have the effect of sustaining the judgment appealed from, rather, it is a general affirmation, in City of Chicago, of the power the State still has to maintain certain reasonable regulations. That is what the phrase: incorporation does not imperil every law regulating firearms means. And the rational basis for it is found in the statement of Associate Justice of the SCOTUS, Mr. Scalia’s, concurrence: “[n]o fundamental right—not even the first Amendment—is absolute”. (Emphasis ours)

Nonetheless, the State can no longer argue that the possession and carry of firearms in Puerto Rico is a “privilege” (conceded by the State). Heller (before the Federal Government), as City of Chicago, establishes that the: right to keep and bear arms is a fundamental right. Besides, all of the possible arguments regarding cultural tradition, or historical moment, social risks, responsibilities of the States, statistical implications or institutional fears related to the possession and carry of firearms are discussed in the opinion (in City of Chicago) and did not change the final holding of the SCOTUS that clearly decided: “[w]e therefore hold that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment right recognized in Heller”.
Beginning with City of Chicago, and under the doctrine of selective constitutional incorporation (of the fundamental rights guaranteed in the United States Constitution.) the SCOTUS held that: “the right to keep and bear arms is fundamental to our scheme of ordered liberty”. (Citations omitted.) In addition, the SCOTUS indicated that: “on the contrary, we stressed that the right was also valued because possession of firearms was thought to be essential for self defense. As we put it, self-defense was “the central component of the right itself”. To highlight this line of argument, the majority opinion includes the following quotation from the Federal Congress related to approval of the Fourteenth Amendment:

“Every man… should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete”.

We hold that we can no longer speak of a “privilege” (conceded) by the State, because the SCOTUS has incorporated the possession and carry of firearms as a fundamental right and as such it is applicable to Puerto Rico by virtue of the Fourteenth Amendment, the doctrine of selective constitutional incorporation and the local cases that recognize the applicability of rights recognized as fundamental. Obviously, despite the recognition as a fundamental right, the States may prohibit its legitimate exercise to delinquents, convicts, the mentally incapacitated, nor may the right ever be justified for the commission of a crime nor for transport in “sensitive” places (schools or public buildings) and, although the SCOTUS does not so indicate, we presume that minors are also excluded from the free exercise of the right at issue.

Consequently, it appears to us that the phrase “fear for his or her safety” that exists in the Puerto Rico Firearms Act cannot conflict with the fundamental right to possess and carry firearms that a citizen may have to legitimately guarantee his or her personal defense, that of his family, or property. Nor can it represent an implicit waiver or the right in favor of the interest of the State in regulating the matter. That right does not have to be justified with any “fear” in particular, this said without prejudice to the reasonable regulations that the State may impose on the commerce in firearms.

In turn, reconsideration of the argument by the State in parts C and D of its brief is rendered unnecessary. There is not the most minimal controversy [in this case] that the petitioner complied with each and every one of the requirements enumerated therein. The documentary evidence and testimony prove it and the appealed Judgment itself acknowledges it. For this reason, its discussion becomes inconsequential.

In this case, we conclude that the CFI abused its discretion and overstepped its bounds in its interpretation of the Firearms Act, as applied to the petitioner’s case, by refusing to grant the Judgment requested on the bases that it employed. We decide that the error assigned was committed and in addition, that the Judgment of the CFI is inconsistent with applicable legal precedent.


For the reasons previously discussed, the writ of Certiorari is issued and the Judgment appealed from is reversed. The case is returned to the CFI to resolve in conformity with the law in a manner consistent with this opinion. Judge Domínguez Irizarry dissents with a written opinion.

Serve the parties.

Thus was decided and orders the Court and so certifies the Secretary of the Appellate Court.

Dissent by Judge Domínguez Irizarry.

It is the principal contention of the majority opinion of this Special Panel that the trier of fact abused its discretion in its appraisal of the instant case, by denying issuance of the license to carry firearms solicited. To their understanding, intervention by this Court in that decision is justified, thereby discarding the judicial precedent imposed on appellate courts to show great deference to the determinations of the Court of First Instance. At the same time, it holds that Article 2.05 of the Puerto Rico Firearms Act de 2000, Act Num. 404 of 11 September 2000, 25 P.R.L.A. sec. 456 (d), is contrary to federal doctrine about the categorization of the right to bear arms as a fundamental one.

It adduces that the most recent statements of the Federal Supreme Court validate its position that every duly qualified person has a right to the proper authorization to carry and transport a firearm. Respectfully, we [meaning “I” -EV] dissent from the majority in the decision of the instant matter as we find that the alleged error was not committed.


This petitioner, a physician and businessman by profession, requested issuance of a license to carry a firearm from the Court of First Instance. Consequently, the forum a quo held the corresponding hearing to evaluate the merits of his request. During the hearing, testifying with the intention of supporting the validity of his arguments, he testified that, because of the nature of his employment, he was constantly exposed to dangerous situations that made him fear for his safety. He also alluded to an incident in his home reported in 2009, which had no repercussions. On its part, the Public Ministry did not oppose the arguments of the petitioner in any way. It limited its participation at the hearing to not presenting any objection regarding the application at issue.

After listening to the testimony of the petitioner and after evaluating in detail all of the evidence submitted for its consideration, the Court of first Instance decided the application as follows: […] the petitioner did not testify to specific facts upon which he bases his fear. Nor did he testify about another situation that justifies his request. So, in its judgment, it refused to grant the license at issue for failure to demonstrate a sufficient reason to provoke the fear for his or her safety, which is expressly required by the law.

Unsatisfied with said decision, he turned to this Forum by means of the present appeal. The appeal claims that:

The CFI erred in its consideration of the proof in denying the permit to carry firearms solicited by the petitioner by finding that insufficient evidence was presented because the petitioner did not testify to specific facts on which he bases his fear and for failing to testify about some other situation that would justify his request.


It is common knowledge that, in pursuit of the State’s compelling interest to guard the health and safety of the citizens that compose it, our legal system provides a rigorous regulatory scheme to authorize the possession and transport of a firearm, whether for recreational purposes or for personal protection. By this means, the state entity requires compliance with certain parameters before allowing a civilian to carry and transport a firearm. In relevant part, Article 2.05 of the Firearms Act, supra. expressly provides that a competent court, with prior service on the Public Ministry and after hearing, if so requested by the latter, shall grant, unless just cause exists to decide the contrary, authorization to the Superintendent of the Puerto Rico Police, to issue the corresponding permit to carry a firearm to everyone who possesses a firearms license, whenever it is shown that they fear for their safety. 25 P.R.L.A. sec. 456d (a). The statute expressly states this criterion, which forces the conclusion that it is a condition sine qua non in order to grant of the above-mentioned petition.

The issuance of a license to carry a firearm is contingent upon exact compliance with each one of the criteria incorporated in the Firearms Act, supra. Notwithstanding, the courts, in the proper exercise of the functions that are not inherent to them, are prevented from adding conditions that were not considered by the legislator at the moment of promulgating the particular statute. Cancio, Ex parte, 161 P.R.D. 479 (2004). Thus, the judicial task consists only of determining if the applicant citizen is duly qualified for the permit and if sufficient justification exists that merits its grant. Well then, to reach such a conclusion, a measured and correct examination of the evidence submitted before the proper tribunal is called for.

In harmony with the foregoing and in consideration of the function of the trial court, our precedent recognizes that, as a rule, appellate courts should not intervene with the weighing and decision and the impression that the evidence produces in the trial court in the absence of passion, prejudice, manifest error or partiality. Rodríguez v. Nationwide Insurance, 156 P.R.D. 614 (2002); Argüello v. Argüello, 155 P.R.D. 62 (2001). In principle, the appellate forum is disabled from discarding or substituting the findings of fact made by the Court of First Instance with it’s own, based on an examination of the record submitted for its scrutiny. Rolón v. Charlie Car Rental, Inc., 148 P.R.D. 420 (1999). Similarly, the determinations of credibility that are reached by the trial court deserve great deference, a rule imposed on the appellate courts. Argüello v. Argüello, supra; Blás v. Hosp. Guadalupe, 146 P.R.D. 267 (1998). In particular, it is a firmly established rule that, ordinarily, the Court of First Instance is in a better position to weigh testimony that is submitted for its consideration, given that it hear and observes the witnesses testify. Argüello v. Argüello, supra; Pueblo v. Bonilla, 120 P.R.D. 92 (1987). Because of this, the trier of fact enjoys preeminence in being able to evaluate the gestures, mannerisms, doubts, vacillations—an opportunity that permits it to form in its consciousness the conviction that they are telling the truth, or not. López v. Dr. Cañizares, 163 P.R.D. 119 (2004). Of course, what is set forth above does not constitute an absolute rule. Being so, an incorrect evaluation of the proof that it considered is not immune from the function of the reviewing tribunals. Méndez v. Morales, 142 P.R.D. 26 (1996). Nonetheless, at the moment of intervening with the same it is imperative that there be a gross error, patent partiality or an erroneous interpretation or application of a certain procedural or substantive rule, the consequence of which is substantial prejudice. Lluch v. España Service, 117 P.R.D. 729 (1986).


The majority position in the decision of the present controversy is that the Court of First Instance abused its discretion when denying the grant of the license solicited, as, to its understanding, the trier of fact weighed the evidence submitted for its consideration erroneously. On the other hand, it is our position that at no time did the trier of fact transgress the limits that our precedent imposes on the proper exercise of the discretion reserved to it. Moreover, it appears to us that its decision was correct and reasonable in light of the evidence it had before it.

It appears from the documents that make up the file in this case the petitioner’s principal argument in favor of obtaining the license at issue, is that his profession, as a physician and as a businessman, exposes him to a greater probability of suffering the consequences of the high crime rate reported in our country. Although we recognize that [the crime rate] is apparent, in reality the mere apprehension of being a victim of some illegal act is not but a possibility of circumstance that any person might face. To our understanding, neither the exercise of a profession, nor the social position of a particular individual, make more likely a criminal

On the other hand, the fact that the petitioner meets all of the criteria set forth in the statute at issue does not have the effect of automatically providing him with a right to the corresponding license to carry firearms. Not even the experience he has in the use of a firearm is considered as fact that favors, without more, its grant. The required criteria must be accompanied by some specific and valid justification. This does not mean, contrary to the majority’s statements, that a burden is being imposed in addition to the letter of the Firearms Act, supra. On the contrary, said statute expressly delegates to the courts of justice the determination [of the existence] or not, of the alleged fear in order to consent to put a firearm in the hands of a civilian.

On this occasion, the Court of First Instance had the privilege of observing and listening to this petitioner testify. Nonetheless, his contribution, together with all of the evidence that was submitted for the court’s scrutiny, did not convincingly demonstrate the existence of a real fear. According to his evaluation, the trier of fact decided that the motivation of the petitioner to obtain the license to carry did not constitute a sufficient legal basis to justify granting his request. Although it is true that the Public Ministry presented no objection whatever to the petitioner’s application, it is useful to highlight that, upon questioning by the court, he recognized the insufficiency of the information and factual proof that made issuance of the license at issue viable. In this manner, by his affirmation, he supported the reasoning of the trial court.

We are of the opinion that the Court of First Instance did not abuse its discretion in evaluating the evidence presented by the appellant. The proof submitted to us supports the findings of fact and, finally, the conclusion. Being so, it is our position that the correct process for this tribunal was to abstain from intervening in the appealed decision. Since all of the criteria our precedent recognizes to support the exercise of our review are absent. Well then, with maximum respect, we differ with the majority in reversing the decision of the trial court. We consider that with a case clearly and correctly decided in conformity with the law, our best practice was to comply with the rule of deference imposed on us.

Finally, although we recognize that it is not correct, nor necessary, as stated by the majority of this Special Panel, to discuss the federal constitutional questions that were outlined in the State’s brief in opposition, we briefly address their analysis in the majority opinion. To begin, we clarify that our position should not be understood as though we do not recognize the application of the fundamental rights of the United States Constitution to Puerto Rico. Nonetheless, we consider that this matter does not merit the attention of this court for various reasons.

In the first place, the argument that the right to bear arms is of a fundamental nature, according to the provisions of the Federal Constitution and the pertinent jurisprudence, was never submitted, neither for our consideration nor that of the Court of First Instance. Consequently, this court is unable to clarify the present controversy by basing its judgment on the decision of a constitutional issue on its own motion. Let us remember that even when such a matter is submitted, the courts are called to avoid the constitutional issue if the case may be decided on other grounds. Also, according to current federal doctrine, the States may, within a framework of rationality, regulate, in their jurisdiction, carriage of a firearm. McDonald v. City of Chicago, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008). In this way, the power of the state authority in this matter extends to establish those parameters that it may consider pertinent to maintain the social order. Finally, the provision here at issue is a current and valid one in our law. As long as it continues in effect, the courts of justice must apply it as written by the legislator.


Based on the foregoing, we dissent from the majority opinion.