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NYCLA Amicus FINAL – SCOTUS NYS Rifle no. 20-843
No. 20-843
In the Supreme Court
of the United States
New York State Rifle &
Pistol Association, Inc., Et Al.,
Petitioners,
v.
Kevin P. Bruen, In His Official Capacity
As Superintendent New York State Police, Et Al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
AMICUS BRIEF OF THE NEW YORK
COUNTY LAWYERS ASSOCIATION
IN SUPPORT OF RESPONDENTS
Benjamin G. Shatz
Counsel of Record
Manatt, Phelps & Phillips, LLP
2049 Century Park East
Los Angeles, CA 90067 BShatz@manatt.com
(310) 312-4000
Jacqueline C. Wolff
Matthew F. BrunoManatt, Phelps & Phillips, LLP
7 Times Square
New York, NY 10036
(212) 790-4500
Counsel for Amicus Curiae
New York County Lawyers Association
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TABLE OF CONTENTS |
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INTEREST OF AMICUS CURIAE |
1 |
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SUMMARY OF ARGUMENT |
3 |
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ARGUMENT |
6 |
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The Proliferation of Concealed Weapons Places the Judiciary, Attorneys, and the Public at Undue Risk of Harm from Gun Violence |
6 |
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I. Courthouse Operations Are, By Their Very Nature, a Forum for Conflict |
7 |
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II. Courthouse Violence Continues to Rise |
13 |
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III. Violence Against Legal Professionals Continues to Rise |
17 |
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CONCLUSION |
19 |
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TABLE OF AUTHORITIES |
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CASES |
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Bonidy v. U.S. Postal Serv., 790 F.3d 1121 (10th Cir. 2015) |
11 |
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District of Columbia v. Heller, 554 U.S. 570 (2008), |
passim |
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Ex Parte Cheney, 90 Cal. 617 (1891) |
20 |
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STATUTES Cal. Penal Code §§ 26150-26225 |
13 |
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Ga. Code Ann. §§ 16-11-126-130 |
13, 19 |
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Minn. Stat. § 624.714 |
13 |
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Miss Code Ann. § 45-9-101 |
13 |
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Nev. Rev. Stat. Ann. §§ 202.3653-202.369 |
13 |
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Ohio Rev. Code Ann. §§ 2923.124-125 |
13 |
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S.C. Code Ann. §§ 23-31-210-240 |
13 |
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Wis. Stat. § 175.60 |
19 |
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OTHER AUTHORITIES |
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ABA Report with Resolution 19A105 (Standing Committee on Gun Violence) (Aug. 2019), available at https://www.americanbar.org/ groups/public_interest/ gun_violence/policy/19A105/ |
16 |
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TABLE OF AUTHORITIES (continued) |
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ABA, Report with Resolution 11A115 (Standing Committee on Gun Violence) (Aug. 2011), available at https ://www.americanbar.org/ groups/public_interest/ gun_violence/policy/11A115/ |
16 |
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Adam Lamparello, Why Wait Until The Crime Happens? Providing for the Involuntary Commitment of Dangerous Individuals Without Requiring a Showing of Mental Illness, 41 Seton Hall L. Rev. 875 (2011) |
10 |
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Alison Dirr & Andy Thompson, When Domestic Violence Becomes a Public Risk, Wausau Daily Herald (Mar. 25, 2017), available at www.wausaudailyherald.com /story/news/ 2017/03/25/when-domestic-violence- becomes-public-risk/9955806/ |
18 |
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Associated Press, Man Arrested in March 2020 Shooting of a Judge, U.S. News (Mar. 15, 2021), available at https://www.usnews.com/ news/best- states/mississippi/articles/ |
12 |
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Chief Administrator of the Courts, New York State Unified Court System 2020 Annual Report (2020), available at https://www.nycourts.gov/ legacypdfs/ 20-UCS-Annual-Report.pdf |
17 |
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TABLE OF AUTHORITIES (continued) |
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CNN Editorial Research, Atlanta Courthouse Shootings Fast Facts, CNN (Mar. 1, 2021), available at https://www.cnn.com/2013/ 10/31/us/atlanta- courthouse-shootings- fast-facts/index.html |
9 |
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David Bailey, Sheriff Says Heroes Averted Worse Courthouse Shooting, Reuters (Dec. 16, 2011), available at https://www.reuters.com/ article/us-minnesota- courthouse-shooting/ sheriff-says-heroes- averted-worse-courthouse- shooting-idUKTRE7BF1Y820111216 |
11 |
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David Struett & Sophie Sherry, 2 Killed in ‘Brazen’ Gang-Related Shooting Outside Kankakee County Courthouse, Police Say, Chicago Sun Times (Aug. 27, 2021), available at chicago.suntimes.com/ crime/2021/8 /26/22643014/kankakee- courthouse-shooting-gang-related |
13 |
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Dow Constantine, Citizens Have a Right to Safety in the Courthouse, 28 Justice Sys. J. 36 (2007) |
8, 18 |
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TABLE OF AUTHORITIES (continued) |
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Eric H. Holder, Attorney General Eric Holder Speaks at the 15th Annual National Action Network Convention, Department of Justice (Apr. 4, 2013), available at https://www.justice.gov/ opa/speech/attorney- general-eric-holder-speaks- the15th-annual-national- action-network-convention |
1 |
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Ethan Fry, Police: Bridgeport Courthouse Shooting Linked to Weekend Homicide, CT Post (Jan. 27, 2020), available at https://www.ctpost.com/ local/article/3-reported- shot-at-Bridgeport- courthouse-15007621.php |
13 |
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Frederick S. Calhoun, Violence Toward Judicial Officials, 576 Annals of the Am. Acad. of Pol. & Soc. Sci. 54 (2001) |
8 |
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Gregg W. Etter & Warren G. Swymeler, Research Note: Courthouse Shootings 1907-2007, 14(1) Homicide Studies 90 (2010) |
15 |
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Jeffrey Collins, Mom Says Victim in S.C. Courthouse Shooting was Ambushed, The August Chronicle (Feb. 14, 2013), available at https ://www.augustachronicle.com /article/ 20130214/NEWS/302149900 |
12 |
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TABLE OF AUTHORITIES (continued) |
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Joshua Hoyos & Emily Shapiro, Man Who Allegedly Shot Ohio Judge was Father of Football Player Convicted in Steubenville Rape Case, ABC News (Aug. 22, 2017), available at https://abcnews.go.com/ US/ohio-judge-shot- courthouse-suspect-dead- custody/story?id=49333732 |
12 |
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Judge Chuck Weller, What Judges Should Know About Court-Related Violence, 53:3 Judges’ J. 28 (2014) |
15,18 |
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Lorelei Laird, The Job is Killing Them: Family Lawyers Experience Threats, Violence, ABA Journal (Sept. 1, 2018), available at http s ://www .abajournal.com/m agazine/article/the_job_is_ killing_them_family_lawyers experience threats violence |
17 |
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Martin Kaste, Heavily Armed Gunman Shot Dead Outside Federal Courthouse In Dallas, NPR (June 18, 2019), available at https://www.npr.org/2019/06/ 18/733568066/dallas- police-fatally-shoot-heavily- armed-gunman-outside-federal- courthouse-buil |
13 |
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Peter Y. Hong, Man Given Life Term for Shooting Lawyer, Los Angeles Times (Mar. 18, 2006), available at https://www.latimes.com/ archives/la-xpm-2006- mar-18-me-lawyer 18-story.html |
12 |
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TABLE OF AUTHORITIES (continued) |
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Raisa Habersham, Attorney Killed by Client’s Husband in Murder-Suicide, Officials Say, The Atlanta Journal-Constitution (June 21, 2018), available at https://www.ajc.com/news/ crime–law/breaking-homicide- investigation-underway-cartersville/ raLdF7XXoGnW0MStJZRUsM/ |
19 |
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Richard W. Carter, Keeping a Secure Courthouse, 76 Judicature 314 (1993) |
7, 8 |
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Seth A. Richardson, Darren Mack Case: Reno Judge Reflects On Assassination Attempt, Reno Gazette Journal (June 12, 2016), available at https://www.rgj.com/story/ news/crime/2016/06/12/10- years-later-reno-judge-reflects- assassination-attempt/85708968/ |
10 |
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Shaila Dewan, et al., Man Flees After Killing Judge and 2 Others at Atlanta Court, N.Y. Times (Mar. 11, 2005), available at http s ://www. nytimes.com/2005/ 03/11/national/man-flees- after-killing- judge-and-2-others-at- atlanta-court.html\ |
9 |
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Stephen D. Kelson, Violence in the Legal Profession: A Study of Our Colleagues Nationwide, available at https://paralegals.utahbar. org/uploads/9/1/9/4/ 91940160/ violence_in_the_legal_ profession_-_stephen_kelson.pdf |
17 |
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TABLE OF AUTHORITIES (continued) |
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Timm Fautsko, et al., Courthouse Security Incidents Trending Upward: The Challenges Facing State Courts Today, Nat’l Ctr. State Courts (2012), available at https://ncsc.contentdm. oclc.org/digital/ collection/facilities/id/163/ |
14 |
INTEREST OF AMICUS CURIAE
The New York County Lawyers Association (“NYCLA”) is a not-for-profit membership organization founded in 1908 and was one of the first major bar associations in the country to admit members without regard to race, ethnicity, religion, or gender. NYCLA’s 7,000 members practice law throughout the New York City metropolitan area. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy. NYCLA has a particular interest in governmental actions and the constitutional rights of individuals in New York County. NYCLA has been an active proponent of reasonable gun legislation, including legislation designed to address mass shootings and regulatory measures to address the proliferation of untraceable “ghost guns.”
Petitioners’ arguments, if accepted by this Court, would jeopardize longstanding prohibitions of firearms in sensitive areas, including courthouses, as observed by Respondents. Gun violence at courthouses is, sadly, an increasing problem, and the targets of that violence are frequently judges and lawyers. NYCLA’s members, who work and practice in and around the courts, are extremely concerned about this rising trend. As an organization of lawyers, NYCLA has a direct and vital interest in the issues before this Court.
Indeed, as part of their ethical and professional responsibilities, lawyers and jurists interact with angry and unhappy people in trying circumstances on a daily basis. Proximity to people at their most vulnerable and emotional moments is hard enough under normal circumstances, but it can create a tinderbox when people in trying circumstances are armed with handguns or concealable weapons.
Moreover, NYCLA is based in Manhattan, one of the most densely populated areas of the country. For well over a century, New York City has been a place where only law enforcement and those who can demonstrate proper cause have been able to carry firearms outside the home. This rule is rational and understandable, given the realities of city life. It also comports with years of jurisprudence permitting local regulations regarding the carrying of firearms in dense, urban, populated areas. In fact, to people who live, work, and practice law in Manhattan, eliminating those regulations would be unimaginable.
SUMMARY OF ARGUMENT
The core right of people to protect themselves identified in Heller is implicated only marginally, if at all, by a law that rationally limits the circumstances under which guns can be carried outside one’s home or business, such as on subways, buses, crowded city streets, and public parks and buildings, including in the vicinity of courthouses and government buildings, by requiring a showing of proper cause.
As New Yorkers, we urge a recognition of the special problems associated with the carrying of concealed weapons in densely populated urban areas. As an organization whose membership includes lawyers and judges, we ask this Court to imagine a New York where anyone could carry a gun in or near the courthouse, or in close proximity to a government building or to an attorney’s office or home.
Imagine a New York City where concealed weapons are ubiquitous. Imagine a hot, muggy afternoon in Times Square where armed strangers collide with one another, even inadvertently, while rushing to a crowded office building, restaurant, or theater. It is not hard to imagine a wayward glance, or an exchange of words, escalating into a firefight.
Imagine a crowded, Manhattan tavern where armed patrons disagree about politics, a sporting event, or a romantic interest, or even about who was saving a vacant barstool for someone. It is not hard to imagine a devastatingly unhappy result.
Imagine riding on a crowded subway train when many or most of those around you carry concealed handguns. Would an inadvertent push or a quizzical look at the wrong person, at the wrong time, cost you your life or the life of an innocent bystander unwittingly sitting in the bullet’s path? It is not hard to believe that it might.
Now imagine the steps of a Manhattan courthouse, where armed individuals conceal themselves in a crowd and lie in wait for an opposing party, for an adverse witness, for a judge whom they perceive as biased, or for a lawyer whom they believe caused an unjust outcome. Would it not be easy to take revenge with a gunshot and disappear into the crowd? Can we imagine this happening? Should lawyers, litigants, witnesses, and judges live every day in fear that it might? And how would that impact on our judicial system? If New York’s regulatory scheme is repealed, it could have devastating consequences.
New York is emblematic of urban and surrounding areas where tens of millions of Americans live, work, and socialize. At the same time, New York’s distinctive personality must be factored into this equation. We New Yorkers are known for our strong personalities. What happens then, when people are carrying concealed firearms during their daily interactions with others, which not infrequently escalate into heated debates? More specifically, as practicing lawyers—especially in family and criminal law matters, where emotions run high—we know that self-control is easily lost. What happens when armed individuals learn they are losing custody of a child? Or that their significant other has filed for divorce? Or that they are being sentenced to prison? The raw emotional instinct to lash out may be overwhelming. And those closest at hand are judges and lawyers, as well as victims and other litigants. These realities have caught the attention of local and national bar associations alike, who have expressed concerns regarding the continued rise in gun violence and have advocated for new policies and regulations in response.
By their very nature, courthouses are venues for conflict that often impact one’s life and future. Court personnel are often the targets of violence by aggrieved litigants acting on their own perceptions of justice. Recent studies reflect a rising trend in threats and violence directed towards those who work in courthouses—a trend NYCLA fears will only worsen if firearms become commonplace on the streets of New York.
Significantly, states with “shall issue” licensing schemes have greater incidents of gun violence, particularly in the courtroom context. And those states do not have such densely populated places as Manhattan, which by its nature breeds strong emotions and conflict. New York’s decision over a century ago to adopt a “proper cause” licensing scheme reflects the State’s well-founded concern regarding the safety of its populace—an interest recognized in Heller. This Court should affirm that, just like Texas is Texas, New York is New York, and its partial, not full, grant of Petitioners’ applications for concealed-carry licenses was based on well- founded local concerns and Petitioners’ showing of a need for self-defense. Allowing New York deference in this regard is consistent with Heller and does not violate the Second Amendment.
ARGUMENT
The Proliferation of Concealed Weapons
Places the Judiciary, Attorneys, and the
Public at Undue Risk of Harm from Gun
Violence
An individual’s right to bear arms outside the home is not unfettered and does not take precedence over a State’s interest in protecting public safety. That public-safety interest is paramount in densely populated places like New York City and in government buildings such as courthouses.
Petitioners heavily rely on a single sentence from this Court’s opinion in District of Columbia v. Heller, 554 U.S. 570, 628 (2008)—that “the inherent right of self-defense has been central to the Second Amendment right.” This right, however, is “not unlimited,” and the Heller majority expressly cautioned that its opinion “should [not] be taken to cast doubt on longstanding prohibitions” such as “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.” Id. at 626-27 (emphasis added). Petitioners, therefore, are wrong to argue that New York’s regulatory framework must be dismantled, simply because they desire to carry concealed firearms in heavily populated areas. Instead, because New York’s “proper cause” standard furthers the State’s legitimate and well- founded interest in maintaining public safety, it is consistent with the Constitution.
Nevertheless, Petitioners and their amici argue for prioritizing their individual interests, without considering the added dangers presented to the public. There is, by now, incontrovertible evidence that the proliferation of firearms in urban areas is associated with an increase in gun violence. This compromises public safety, including the safety of the very courthouses in which our judicial system functions.
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Courthouse Operations Are, By Their Very Nature, a Forum for Conflict
A courthouse is a forum for conflict—a venue open to the public to address and resolve disputes, which can frequently become emotionally charged. In these proceedings, lawyers argue, and judges decide, matters that impact life, liberty, and property. To aggrieved parties—with their own personal perceptions of justice (or injustice)—this can trigger violent responses. This is especially true in family and criminal matters. “Violence toward judicial officials does not occur by happenstance or as a political or symbolic statement. Rather, it derives from the judicial process itself.” These concerns are amplified should individuals be generally permitted to carry concealed firearms in the vicinity of crowded, urban court buildings without establishing proper cause.
In fact, even if a person might have some cause to carry a firearm for self-defense, that should not outweigh the State’s interest in regulating the carrying of dangerous weapons in a dense, urban environment. After all, even a trained marksman who fires in self-defense on a crowded, Manhattan street is likely to hit an innocent bystander—if, for instance, a pedestrian suddenly moves into the line of fire at the last second, or if the intended target jumps away, leaving an unlucky bystander in the bullet’s path. For that reason, it is rational for a densely populated state like New York to reserve the right to carry concealed weapons to a limited group of people whose need for a firearm, and whose skill at using it, is well documented.
And then, of course, there is the danger that if concealed carry in a place like New York City becomes the norm, emotionally charged circumstances will escalate into tragedy all too often. Given recent trends, the victims will likely include lawyers and even judges.
The 2005 shooting of Judge Rowland Barnes in Georgia is a grim example of the dangers judges face when presiding over highly emotional matters. The assailant, Brian Nichols, was in custody for rape charges. While being escorted to the court for trial, Nichols disarmed a sheriff’s deputy of her firearm, and proceeded to fire a fatal shot at the judge. Nichols was later apprehended, charged, and convicted for the deaths of Judge Barnes and his court reporter. While, as noted, Nichols did not obtain the gun by lawful means, this incident illustrates the dangers that judges face when presiding over trials in which a person’s life, liberty, or fortune hangs in the balance.
In 2006, Nevada family court Judge Chuck Weller survived an assassination attempt by Darren Mack, who fired shots into the judge’s chambers from a courthouse parking lot. Judge Weller was presiding over a contentious divorce proceeding involving Mack and his estranged wife, whom Mack had murdered earlier that day.
In 2011, a county courthouse in Minnesota came under gunfire after the shooter, Daniel Schlienz—who was in custody after being convicted of criminal sexual conduct—was permitted to leave the courthouse unsupervised. After leaving the courthouse, Schlienz grabbed a handgun from his truck, re-entered the courtroom, and opened fire at the prosecutor, a witness from his trial, and the courtroom bailiff.
To be sure, Heller and its progeny have reinforced longstanding jurisprudence permitting prohibitions on guns in government buildings. But this does not obviate NYCLA’s concerns about the security of judges, lawyers, and the buildings in which they work. As demonstrated by the examples above, guns and bullets can still make their way into courthouses. Moreover, gun violence frequently occurs outside the courthouse, when judges, court officials, litigants, and others are entering or leaving the building.
For instance, in 2003, a California attorney was shot several times as he was leaving a Los Angeles courthouse. The attorney was managing a trust that his assailant “felt was denying him money.”
In February 2013, a woman was critically shot as she was leaving a courthouse in South Carolina. The woman had come to the courthouse for a child support hearing. But instead of attending the hearing, the father of her child waited for her in the courthouse parking lot and opened fire.
Similarly, in 2017, an Ohio state court judge was ambushed and shot while entering the courthouse. More recently, in March 2020, a Mississippi chancery judge was shot while getting out of his vehicle in the courthouse parking lot. Six of the seven incidents described above occurred in states with “shall issue” licensing regimes. Beyond that, courthouses have also been at the center of gang- related violence and mass-shootings.
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Courthouse Violence Continues to Rise
Recent studies on gun violence occurring at courthouses further support NYCLA’s concern that adopting a more lenient licensing regime would lead to increased gun violence at or near courthouses in dense, urban areas.
According to a study prepared by the National Center for State Courts (the “Center”) violent Incidents directed towards the judiciary have increased every year since 1970:
The number of threats and violent incidents targeting the judiciary has increased dramatically in recent years. At the federal level, the U.S. Marshals Service’s Center for Judicial Security reports the number of judicial threat investigations has increased from 592 cases in fiscal year 2003 to 1,258 cases by the end of fiscal year 2011. At the state and local levels, the most informative data about state courts comes from studies conducted by the Center for Judicial and Executive Security (CJES). Their data show that the numbers of violent incidents in state courthouses has gone up every decade since 1970.
Between 1970 and 2009, the study reported 199 “violent incidents in state courthouses.” The study also reported that many of these incidents were “case related,” meaning “the person committing or plotting [the] violent act was involved in a past or present matter before the court.” More recently, between 2000 and 2011, 102 violent incidents occurred in state courts. This, the Center concluded, “clearly” indicates that violent incidents “are on the rise.” A separate study, focused exclusively on gun violence in courthouses, further reflects the upward trend in violence. More than 60% of reported courthouse shooting incidents between 1907 and 2007 have occurred in the last twenty years.
This upward trend in courthouse shootings has caught the attention of judges, lawyers, and bar associations—all of whom stress the need to consider alternative measures, in addition to enhanced security, to address this spike in gun violence. For instance, Judge Weller, who survived an assassination attempt in 2006, observed that weapon-detection technology and advanced security systems “have proven to be insufficient”—pointing to the fact that “incidences of violence continue to increase” and “[c]ourthouse shootings, bombings, and arson attacks have doubled over the last two decades.”
The American Bar Association too has studied the rise in gun violence and its impact, noting that “[i]ncreasingly there have been occurrences where violence has erupted and firearms are used inside and outside of the courtroom.” This, the ABA observed, directly impacts the public’s entrustment in the judicial system: “When litigants and the court personnel believe their courthouses and court facilities are not safe, integrity of the entire judicial process is compromised and undermined.” As a result, the ABA has lobbied for a number of policies and procedures that advocate for tightened security practices and the prohibition of concealed firearms at or near courthouses. Id.
NYCLA is especially troubled by this upward trend, given the dozens of state and federal courthouses and government buildings in New York City. Every year, hundreds of thousands of new cases are filed in these courts. In 2020, just at the state level, there were 6,430 criminal and 65,603 family court filings in New York City. With so many new matters filed each year—especially in the family and criminal areas—and with so many people entering the courthouses each day, the concern is well-founded.
III. Violence Against Legal Professionals Continues to Rise
Violence against legal professionals has steadily increased in recent years. According to a 27-state survey of almost 12,000 lawyers, 42% of lawyers reported having experienced at least one in-person confrontation that fell short of assault. A subsequent study of 28 states and more than 28,000 responding lawyers similarly reflects a growing rate of violence aimed at lawyers—depending on the state, 32.5% to 52.9% of lawyers reported experiencing some form of violence. “The results of these state surveys show that violence and threats of violence against members of the legal profession are much more prevalent than reported by the media or commonly perceived by practitioners.”
Legal professionals practicing in criminal and family law matters are especially exposed. This is largely attributable to the fact that these professionals handle highly sensitive and emotional matters and often personally “interact with individuals whose history and presentation indicate a likelihood of potential violence.” For instance, in March 2017, Sara Quirt Sann, a family-law attorney in Wisconsin, was shot and killed at her law office after previously representing the shooter’s ex-wife in divorce proceedings against him. A similar incident occurred in June 2018, when a Georgia divorce lawyer was shot and killed by his client’s estranged husband. Both attacks occurred in “shall issue” states.
As gun violence continues to grow nationwide— especially in states with licensing regimes that lack proper cause requirements—so too does the concern for the safety of legal professionals, who continue to face increasing incidents of violence. These safety concerns are magnified in locations, like New York City, where population density creates a breeding ground for conflict, and where crowds allow shooters to lie patiently in wait, fire their shots, and then melt away into a mass of people.
CONCLUSION
Over a century ago the California Supreme Court made an obvious observation: “It is a well-recognized fact that the unrestricted habit of carrying concealed weapons is the source of much crime, and frequently leads to causeless homicides, as well as to breaches of the peace, that would not otherwise occur.” Human nature has not changed since then.
State and local governments cannot be powerless to take appropriate measures, consistent with Heller, to protect the millions who live and work in urban environments and who are particularly vulnerable to gun violence simply in going about their daily lives. Indeed, it is imperative to limit the proliferation of dangerous weapons in the crowded streets, sidewalks, public buildings, and subways of cities such as New York.
By fostering public security, the present regulatory scheme has helped make New York a world-class city for business, tourism, and the practice of law. A heavily armed Manhattan would create a tinderbox that could ignite at the mildest provocation, exacerbated by the tensions of city life. Simply put, New York’s regulatory scheme recognizes the fragile balance of life, public safety, and individual rights in the Empire State. This Court should decline petitioners’ invitation to upset that balance. The Constitution does not compel transforming Broadway, Times Square, or Foley Square into the O.K. Corral.
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September 21, 2021 Benjamin G. Shatz Counsel of Record Manatt, Phelps & Phillips, LLP 2049 Century Park E Suite 1700 Los Angeles, CA 90067 (310) 312-4000 |
Respectfully submitted, Jacqueline C. Wolff Matthew F. Bruno Manatt, Phelps & Phillips, LLP 7 Times Square New York, NY 10036 (212) 790-4620 |
All Footnotes:
1 All parties consent to the filing of this brief. No counsel for any party authored any part of this brief. No person or entity other than Amicus made a monetary contribution for preparation or submission of this brief.
2 Eric H. Holder, Attorney General Eric Holder Speaks at the 15th Annual National Action Network Convention, Department of Justice (Apr. 4, 2013), available at https://www.justice.gov/opa/speech/ (mentioning NYCLA report on mass shootings).
3 Br. for Resp’ts 2, 36 n.18
4 The views expressed here are those of the officers of NYCLA only, have not been approved by the NYCLA Board of Directors, and do not necessarily represent the views of the Board.
5 See Br. of Amici Curiae Soc. Scientists and Pub. Health Rschs. in Support of Resp’ts.
6 Richard W. Carter, Keeping a Secure Courthouse, 76 Judicature 314, 314 (1993) (“The courthouse is a place where moods, personalities, and lives come together at a time of disagreement. It is possible for a person to lose control of his behavior at any type of court proceeding.”)
7 Frederick S. Calhoun, Violence Toward Judicial Officials, 576 Annals of the Am. Acad. of Pol. & Soc. Sci. 54, 55 (2001) (“Frequently, [disputants] bring before the bar an intense emotional investment in how the case should be resolved. … In deciding the case, the courts can take their, liberty, or property.”).
8 Dow Constantine, Citizens Have a Right to Safety in the Courthouse, 28 Justice Sys. J. 36, 37 (2007) (“Courthouse shootings are often intensely personal. Half the shootings involved family-law disputes such as child-custody or child- support hearings, divorces, or no-contact-order cases involving family members”); Carter, Keeping a Secure Courthouse, 76 Judicature at 314 (“Criminal and domestic relations cases are the source of a great number of acts of violence.”)
9 Calhoun, Violence Toward Judicial Officials, 576 Annals of the Am. Acad. of Pol. & Soc. Sci. at 55
10 Shaila Dewan, et al., Man Flees After Killing Judge and 2 Others at Atlanta Court, N.Y. Times (Mar. 11, 2005), available at https://www.nytimes.com/2005/03/11/national
11 Id.
12 CNN Editorial Research, Atlanta Courthouse Shootings Fast Facts, CNN (Mar. 1, 2021), available at https://www.cnn.com/2013/10/31/us
13 Id.
14 NYCLA recognizes that, as a convicted felon, Nichols would not, under any scheme—including a “shall issue” state—have been able to obtain a permit, provided the state also conducts a background check. That said, “longstanding prohibitions on the possession of firearms by felons and the mentally ill” (Heller, 554 U.S. at 626) are not always effective, and even a prohibited purchaser like Nichols can obtain a permit where no proper cause is required. For example, Seung-Hui Cho—the gunman responsible for the 2007 Virginia Tech massacre—was able to purchase two handguns, despite a court order finding him mentally ill, a finding that should have rendered him a prohibited purchaser under Federal law. See Adam Lamparello, Why Wait Until The Crime Happens? Providing for the Involuntary Commitment of Dangerous Individuals Without Requiring a Showing of Mental Illness, 41 Seton Hall L. Rev. 875, 881-83 (2011)
15 Seth A. Richardson, Darren Mack Case: Reno Judge Reflects On Assassination Attempt, Reno Gazette Journal (June 12, 2016), available at www.rgj.com/story/news/crime/2016/06/12/
16 Id.
17 David Bailey, Sheriff Says Heroes Averted Worse Courthouse Shooting, Reuters (Dec. 16, 2011), available at www.reuters.com/article/
18 Id.
19 Heller, 554 U.S. at 626-27 (recognizing that Second Amendment rights do not supersede “long standing prohibitions on the possession of firearms by felons and the mentally ill, or 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”); Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015) (“the Second Amendment right to carry firearms does not apply to federal buildings, such as post offices”).
20 Peter Y. Hong, Man Given Life Term for Shooting Lawyer, Los Angeles Times (Mar. 18, 2006), available at www.latimes.com/archives/
21 Id.
22 Jeffrey Collins, Mom Says Victim in S.C. Courthouse Shooting was Ambushed, The August Chronicle (Feb. 14, 2013), available at www.augustachronicle.com/article
23 Id.
24 Joshua Hoyos & Emily Shapiro, Man Who Allegedly Shot Ohio Judge was Father of Football Player Convicted in Steubenville Rape Case, ABC News (Aug. 22, 2017), available at abcnews.go.com/US/
25 In Mississippi, chancery judges primarily handle family matters, such as divorce and child custody disputes. See Associated Press, Man Arrested in March 2020 Shooting of a Judge, U.S. News (Mar. 15, 2021), available at www.usnews.com/news
26 Compare Ga. Code Ann. §§ 16-11-126–130; Ohio Rev. Code Ann. §§ 2923.124–125; Nev. Rev. Stat. Ann. §§ 202.3653– 202.369; Minn. Stat. § 624.714; Miss Code Ann. § 45-9-101; S.C. Code Ann. §§ 23-31-210–240, with Cal. Penal Code §§ 26150–26225.
27 David Struett & Sophie Sherry, 2 Killed in ‘Brazen’ Gang- Related Shooting Outside Kankakee County Courthouse, Police Say, Chicago Sun Times (Aug. 27, 2021), available at chicago.suntimes.com/crime/2021/8/26 see also Ethan Fry, Police: Bridgeport Courthouse Shooting Linked to Weekend Homicide, CT Post (Jan. 27, 2020), available at www.ctpost.com/local/article
28 Martin Kaste, Heavily Armed Gunman Shot Dead Outside Federal Courthouse In Dallas, NPR (June 18, 2019), available at www.npr.org/2019/06/18/
29 Timm Fautsko, et al., Courthouse Security Incidents Trending Upward: The Challenges Facing State Courts Today, Nat’l Ctr. State Courts (2012), available at ncsc.contentdm.oclc.org
30 Id. (defining “incidents” to include shootings, bombings, and arson attacks at or near courthouses).
31 Id.
32 Id.
33 Id.
34 Gregg W. Etter & Warren G. Swymeler, Research Note: Courthouse Shootings 1907-2007, 14(1) Homicide Studies 90, 95 (2010).
35 Id.
36 Judges huck Weller, What Judges Should Known AboutCourt-Related Violence, 53:3 Judges’ J. 28, 29 (2014).
.
35 Id.
36 Id.
37 ABA Report with Resolution 19A105 (Standing Committee on Gun Violence) (Aug. 2019), available at: https://www.americanbar.org/
38 Id. (internal quotation marks and citations omitted)
39 Based on an expansive study assessing “shall issue” from “may issue” licensing regimes, the ABA has also advocated for the uniform adoption of “may issue” licensing regimes like New York’s. ABA, Report with Resolution 11A115 (Standing Committee on Gun Violence) (Aug. 2011), available at www.americanbar.org/
40 Chief Administrator of the Courts, New York State Unified Court System 2020 Annual Report, at 58, 60 (2020), available at www.nycourts.gov/legacypdfs
41 Lorelei Laird, The Job is Killing Them: Family Lawyers Experience Threats, Violence, ABA Journal (Sept. 1, 2018), available at www.abajournal.com/magazine/article/
42 Stephen D. Kelson, Violence in the Legal Profession: A Study of Our Colleagues Nationwide, available at www.paralegals.utahbar.org/
43 Id.
44 Id.; see also Judge Chuck Weller, What Judges Should Know About Court-Related Violence, 53 No. 3 Judges’ J. at 29 (“One- half of all court-related violence is family law related. It occurs in conjunction with cases involving divorce, alimony, child custody, child support, or domestic violence restraining orders.”); Constantine, Citizens Have a Right to Safety in the Courthouse, 38 Justice Sys. J. at 37 (“Half the shootings involved family-law disputes such as child-custody or child- support hearings, divorces, or no-contact-order cases involving family members”)
45 Id.
46 Alison Dirr & Andy Thompson, When Domestic Violence Becomes a Public Risk, Wausau Daily Herald (Mar. 25, 2017), available at wausaudailyherald.com/story/news/2 017/03/25
47 Raisa Habersham, Attorney Killed by Client’s Husband in Murder-Suicide, Officials Say, The Atlanta Journal- Constitution (June 21, 2018), available at www.ajc.com/news/crime–law/
48 See Ga. Code Ann. §§ 16-11-126–130; Wis. Stat. § 175.60
49 To the extent that some amici allege that New York’s gun laws are applied in a discriminatory manner, that allegation dehors the record and falls outside the question on which certiorari was granted. Any allegation of unfairness in the application of New York’s gun laws can and should be addressed separately by the courts, the legislature, and the relevant law enforcement authorities.
50 Ex Parte Cheney, 90 Cal. 617, 621 (1891).