Brady Campaign Baker Amicus Brief

No. 12-16258

IN THE

United States Court of Appeals for the Ninth Circuit

CHRISTOPHER BAKER,

Plaintiff-Appellant,

v.

LOUIS KEALOHA, et al.,

Defendants-Appellees.

On Appeal from the United States District Courtfor the District of Hawaii, No. 1:11-CV-00528-ACK-KSC

Senior District Judge Alan C. Kay

BRADY CENTER TO PREVENT GUN VIOLENCE’SMOTION FOR LEAVE TO FILE IN SUPPORT OF APPELLEES’

PETITION FOR REHEARING EN BANC

BRADY CENTER TO PREVENT GUN

VIOLENCE - LEGAL ACTION PROJECT

Jonathan E. LowyAlla LefkowitzRobert B. Wilcox, Jr.840 First Street, N.E. STE 400Washington, D.C. 20002(202) [email protected]

DAMON KEY LEONG KUPCHAK

HASTERT

Mark M. Murakami1003 Bishop Street, STE 1600Honolulu, HI 96813(808) [email protected]

April 28, 2014

HOGAN LOVELLS US LLPNeil R. O’Hanlon, SBN 670181999 Avenue of the Stars, STE 1400Los Angeles, CA 90067(310) [email protected]

Jonathan L. DiesenhausAdam K. LevinJames W. ClaytonKathryn L. MarshallNathan G. FoellAnna M. Kelly555 Thirteenth Street, N.W.Washington, DC 20004(202) [email protected]

Counsel for Amicus Curiae

Case: 12-16258 04/28/2014 ID: 9074180 DktEntry: 61-1 Page: 1 of 8 (1 of 35)

BRADY CENTER TO PREVENT GUN VIOLENCE’SMOTION FOR LEAVE TO FILE IN SUPPORT OF APPELLEES’


The Brady Center to Prevent Gun Violence respectfully requests this Court

grant leave to file an amicus curiae brief in support of the Defendants-Appellees

petition for rehearing en banc in this matter.1 Defendants-Appellees have

consented to the filing of this brief, but the Plaintiff has not consented yet, despite

being asked to twice. The Brady Center was granted leave to participate as amicus

in this matter below with the District Court finding that the Brady Center’s brief

was “particularly valuable in light of the significant public interest in Second

Amendment litigation across the nation …”2 Indeed, the District Court’s decision

referenced the Brady Center’s amicus brief twice. This panel also granted leave

for Brady Center to file a brief in support of Defendants-Appellees’ position on the

merits.3 As such and as set forth below, this Court has broad discretion to grant

amicus status to the Brady Center to Prevent Gun Violence and it is urged to grant

this motion.

1 The Brady Center’s proposed brief is attached as Appendix “A”.2 See Order Granting The Brady Center to Prevent Gun Violence’s Motion for

Leave to File an Amicus Curiae Brief in Support of Defendants, filed Feb. 23,

2012, attached hereto as Appendix “B”, at 3.3 See Ninth Circuit Order, filed Sept. 4, 2012, attached hereto as Appendix

“C”, at 1.


2

I. IDENTITY OF AMICUS CURIAE

Amicus Brady Center to Prevent Gun Violence is a national, non-partisan,

non-profit organization dedicated to reducing gun violence through education,

research, and legal advocacy. Through its Legal Action Project, it has filed

numerous amicus curiae briefs in cases involving firearms regulations, including

McDonald v. City of Chicago, 130 S. Ct. 3020, 3095 n.13, 3105 n.30, 3107 n.34

(2010) (Stevens, J., dissenting) (citing Brady Center brief), United States v. Hayes,

555 U.S. 415, 427 (2009) (citing Brady Center brief), and District of Columbia v.

Heller, 554 U.S. 570 (2008). Amicus brings a broad and deep perspective to the

issues raised here and has a compelling interest in ensuring that the Second

Amendment does not impede reasonable governmental action to prevent gun

violence.

II. SUMMARY OF PROPOSED AMICUS BRIEF

The proposed brief, Appendix “A”, explains the exceptional importance of

the question decided on appeal in a Ninth Circuit panel’s recent Second

Amendment decisions. Specifically, the Brady Center’s brief provides an

overview of the immediate and life-threatening consequences that flow from these

decisions. In addition to the instant case, Baker v. Kealoha, No. 12-16258, 2014

WL 1087765 (9th Cir. Mar. 20, 2014), the same panel has recognized a

constitutional right to carry concealed firearms outside the home in two other cases


3

this year, each time upending state and local concealed-carry regimes. Richards v.

Prieto, 11-16255, 2014 WL 843532 (9th Cir. Mar. 5, 2014); Peruta v. Cnty. of San

Diego, 742 F.3d 1144, 1116 (9th Cir. 2014). In the wake of these the first two

decisions, counties across California experienced a surge in applications for

concealed-carry permits. A similar influx is expected in Hawaii. As the brief

explains, this result is troublesome because of the unique and lethal risks

associated with wanton carrying concealed firearms in public. In part because of

these risks, a majority of circuits have expressly declined to recognize a right to

carry guns in public. Their restraint only highlights the exceptional importance of

the question on appeal.

III. ARGUMENT

A. Court has Broad Discretion to Authorize Amicus Parties

This Court has the discretion to grant this motion and allow the Brady

Center to file its brief. Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) (abrogated

on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). The classic role of

amici curiae is three-fold: (1) assist in a case of general public interest; (2) to

supplement the efforts of counsel; and (3) to draw the court’s attention to law that

escaped consideration. Miller-Wohl Co., Inc. v. Comm’r of Labor and Industry,

694 F.2d 203, 204 (9th Cir. 1982). The Court may also exercise its discretion to

grant amicus status in order to avail itself of the benefit of thorough and erudite


4

legal arguments. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 n.3 (9th

Cir. 1987).

The Brady Center’s brief fulfills the role of amici curiae. It explains the

exceptional importance of the question decided in this appeal, including the unique

risks posed to the general public by an expansive Second Amendment right to

carry concealed firearms in public. Briefing on this issue will also supplement the

Defendants’ arguments, which focus instead on the implications of the procedural

posture of this case and the conflicts between the panel’s recent decisions and the

Second Amendment jurisprudence of the Supreme Court, Ninth Circuit, and other

United States courts of appeal.

B. Brady Center’s Brief Will Assist the Court

The Brady Center to Prevent Gun Violence has participated in Second

Amendment litigation throughout the nation, including the seminal cases of

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) and District of Columbia v.

Heller, 554 U.S. 570 (2008). Its brief can help inform the Court of the immediate

effects the panel’s decisions are having on concealed-carry regimes across the

Ninth Circuit and the intense public concern that accompanies those effects. The

district court allowed the Brady Center to participate as amicus curiae below,

finding that its brief was “particularly valuable in light of the likely significant

public interest in this case.” See Appendix “B” at 3; see also Appendix “C” at 1.


5

The court also noted that the Brady Center’s brief helped with substantive issues,

while the other parties may be litigating procedural issues. Appendix “B” at 3.

Brady Center’s broader and more public-policy-oriented perspective would be

similarly useful to the full Court at this stage of the litigation.

IV. CONCLUSION

For the reasons explained above, this Court has wide discretion to allow

amicus status. The parties have been consulted and, with the exception of the

Plaintiff-Appellant who did not respond, have consented to the Brady Center filing

an amicus curiae brief in support of Appellees’ petition for rehearing en banc. The

Brady Center, therefore, respectfully requests this Court grant this motion and

grant leave to file the proposed brief.

Date: April 28, 2014 Respectfully submitted,


6

/s/ Neil R. O’HanlonNeil R. O’HanlonHOGAN LOVELLS US LLP1999 Avenue of the Stars,Suite 1400Los Angeles, CA 90067(310) [email protected]

Jonathan L. DiesenhausAdam K. LevinJames W. ClaytonKathryn L. MarshallNathan G. FoellAnna M. KellyHOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, DC 20004(202) [email protected]

Jonathan E. LowyRobert B. Wilcox, Jr.Alla LefkowitzBRADY CENTER TO PREVENT GUN


840 First Street, N.E. Suite 400Washington, D.C. 20002(202) [email protected]

Mark M. MurakamiDAMON KEY LEONG KUPCHAK

HASTERT

1003 Bishop Street, STE 1600Honolulu, HI 96813(808) [email protected]



7

CERTIFICATE OF SERVICE

I certify that the foregoing Petition was filed with the Clerk using the

appellate CM/ECF system on April 28, 2014. All counsel of record are registered

CM/ECF users, and service will be accomplished by the CM/ECF system.

/s/ Neil R. O’Hanlon


APPENDIX A


No. 12-16258

IN THE

United States Court of Appeals for the Ninth Circuit

CHRISTOPHER BAKER,

Plaintiff-Appellant,v.

LOUIS KEALOHA, et al.,

Defendants-Appellees.

On Appeal from the United States District Courtfor the District of Hawaii, No. 1:11-CV-00528-ACK-KSC

Senior District Judge Alan C. Kay

BRIEF FOR AMICUS CURIAE BRADY CENTERTO PREVENT GUN VIOLENCE IN SUPPORT OF APPELLEES’


BRADY CENTER TO PREVENT GUN


Jonathan E. LowyAlla LefkowitzRobert B. Wilcox, Jr.840 First Street, N.E. STE 400Washington, D.C. 20002(202) [email protected]

DAMON KEY LEONG KUPCHAK

HASTERT

Mark M. Murakami1003 Bishop Street, STE 1600Honolulu, HI 96813(808) [email protected]

April 28, 2014

HOGAN LOVELLS US LLPNeil R. O’Hanlon, SBN 670181999 Avenue of the Stars, STE 1400Los Angeles, CA 90067(310) [email protected]

Jonathan L. DiesenhausAdam K. LevinJames W. ClaytonKathryn L. MarshallNathan G. FoellAnna M. Kelly555 Thirteenth Street, N.W.Washington, DC 20004(202) [email protected]



i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, the

Brady Center to Prevent Gun Violence states that it has no parent corporations, nor

has it issued shares or debt securities to the public. The organization is not a

subsidiary or affiliate of any publicly owned corporation, and no publicly held

corporation holds ten percent of its stock.

/s/ Neil R. O’HanlonNeil R. O’Hanlon


ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF INTEREST OF AMICUS CURIAE.............................................1

INTRODUCTION .....................................................................................................2

ARGUMENT .............................................................................................................3

I. THE PANEL’S DECISIONS IMPLICATE ANEXCEPTIONALLY IMPORTANT AND RECURRINGQUESTION ...........................................................................................3

CONCLUSION..........................................................................................................9


iii

TABLE OF AUTHORITIES

Page(s)CASES

Commonwealth v. Robinson,600 A.2d 957 (Pa. Super. Ct. 1991)......................................................................7

Commonwealth v. Romero,673 A.2d 374 (Pa. Super. Ct. 1996)......................................................................7

District of Columbia v. Heller,554 U.S. 570 (2008)......................................................................................1, 2, 8

Drake v. Filko,724 F.3d 426 (3d Cir. 2013) .................................................................................8

Kachalsky v. Cnty. of Westchester,701 F.3d 81 (2d Cir. 2012) ...................................................................................8

McDonald v. City of Chicago,130 S. Ct. 3020......................................................................................................1

Moore v. Madigan,702 F.3d 933 (7th Cir. 2012) ................................................................................9

Peruta, Baker v. Kealoha,No. 12-16258, 2014 WL 1087765 (9th Cir. Mar. 20, 2014) ........................2, 3, 4

Peruta v. Cnty. of San Diego,742 F.3d 1144 (9th Cir. 2014) .....................................................................passim

Peterson v. Martinez,707 F.3d 1197 (10th Cir. 2013) ............................................................................8

Richards v. Prieto,11-16255, 2014 WL 843532 (9th Cir. Mar. 5, 2014) .......................................2, 3

United States v. Hayes,555 U.S. 415 (2009)..............................................................................................1

United States v. Masciandaro,638 F.3d 458 (4th Cir. 2011) ........................................................................3, 7, 8


iv

Woollard v. Gallagher,712 F.3d 865 (4th Cir. 2013) ............................................................................2, 8

CONSTITUTIONAL AMENDMENTS

Second Amendment ..........................................................................................passim

RULES

Fed. R. App. P. 32......................................................................................................1

Fed. R. App. P. 32(a)(5).............................................................................................1

Fed. R. App. P. 32(a)(6).............................................................................................1

Fed. R. App. P. 29......................................................................................................1

9th Circuit Rule 29-2....................................................................................................

9th Circuit Rule 32.......................................................................................................

9th Circuit Rule 35.....................................................................................................1

OTHER AUTHORITIES

Charles C. Branas, et al., Investigating the Link Between Gun Possessionand Gun Assault, 99 AM. J. PUB. HEALTH 2034 (2009)........................................6

Cheryl K. Chumley, California Sheriffs See Surge in Concealed CarryPermits, THE WASHINGTON TIMES (March 18, 2014)...........................................3

Philip Cook et al., Gun Control After Heller: Threats and Sideshows from aSocial Welfare Perspective, 56 UCLA L. REV. 1041, 1081 (2009) .....................6

John Donohue, The Impact of Concealed-Carry Laws, EVALUATING GUN

POLICY: EFFECTS ON CRIME AND VIOLENCE 289 (Jens Ludwig & PhillipCook eds. 2003) ....................................................................................................6

Mark Duggan, More Guns, More Crime, 109 POL’Y. ECON. 1086 (2001)................5

Chris Eger, Hawaii firearms permits at record levels in 2013; up over 500percent since 2000, GUNS.COM (April 4, 2014)....................................................4


v

Lisa M. Hepburn & David Hemenway, Firearm Availability and Homicide:A Review of the Literature, 9 AGGRESSION & VIOLENT BEHAV. 417(2004)....................................................................................................................5

David McDowall, et al., Easing Concealed Firearms Laws, 86 CRIM. L. &CRIMINOLOGY 193 (1995) .....................................................................................6

Joshua Rhett Miller, Surge in Concealed Weapon Permits FollowsCalifornia Court Second Amendment Decision, FOX NEWS (Feb. 27,2014) .....................................................................................................................4

Matthew Miller et al., Firearm Availability and Unintentional FirearmDeaths, 33 ACCIDENT ANALYSIS & PREVENTION 477 (Jul. 2000).........................5

Matthew Miller et al., Rates of Household Firearm Ownership and HomicideAcross US Regions and States, 1988–1997, 92 AM. J. PUB. HEALTH 1988(Dec. 2002) ...........................................................................................................5

Adam Nagourney, In California, a Fevered Rush for Gun Permits, N.Y.TIMES (April 26, 2014)......................................................................................3, 4

Kirk Siegler, Calif. Fight Over Concealed Weapons Could Head to HighCourt, NATIONAL PUBLIC RADIO (March 18, 2014) .............................................4

Violence Policy Center, Concealed Carry Killers, available athttp://vpc.org/ccwkillers.htm (last visited April 24, 2014) ..................................5


1

CONSENT TO FILE

Pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, amicus

Brady Center to Prevent Gun Violence sought consent from the parties prior to

filing this brief. Defendants-Appellees consented to this filing, but the Plaintiff did

not respond, despite being asked to consent twice. Accordingly, pursuant to Rule

29(b), Counsel for Respondents has filed a separate motion for leave to file. No

party or party’s counsel authored this brief in whole or in part. No party, party’s

counsel, or person other than amicus, its members, or its counsel contributed

money intended to fund preparation and submission of this brief.

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus is a national, non-partisan, non-profit organization dedicated to

reducing gun violence through education, research, and legal advocacy. Through

its Legal Action Project, it has filed numerous amicus curiae briefs in cases

involving firearms regulations, including McDonald v. City of Chicago, 130 S. Ct.

3020, 3095 n.13, 3105 n.30, 3107 n.34 (2010) (Stevens, J., dissenting) (citing

Brady Center brief), United States v. Hayes, 555 U.S. 415, 427 (2009) (citing

Brady Center brief), and District of Columbia v. Heller, 554 U.S. 570 (2008).

Amicus brings a broad and deep perspective to the issues raised here and has a

compelling interest in ensuring that the Second Amendment does not impede

reasonable governmental action to prevent gun violence.


2

INTRODUCTION

Two months ago in Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1116 (9th

Cir. 2014), a divided panel of this Court became the first circuit to strike down a

concealed-carry permitting regime. The majority’s underlying holding–that the

Second Amendment protects a right to bear arms outside the home–went far

beyond the Supreme Court’s 2008 decision in Heller and this Circuit’s own

precedent. In fact, when a Maryland district court reached a similar result last

year, the Fourth Circuit characterized it as “trailblazing” before reversing.

Woollard v. Gallagher, 712 F.3d 865, 868 (4th Cir. 2013). The same panel of this

Court has now twice compounded this result, first in Richards v. Prieto, 11-16255,

2014 WL 843532 (9th Cir. Mar. 5, 2014), and now in this case, by undermining

Hawaii’s concealed-carry permitting policy on the same basis as Peruta, Baker v.

Kealoha, No. 12-16258, 2014 WL 1087765 (9th Cir. Mar. 20, 2014).

The panel’s reading of Heller raises issues of exceptional and recurring

importance. For one, the majority’s insistence that Heller confers a right to bear

concealed arms outside the home contradicts dozens of courts that have either

refused to expand Heller beyond the home absent more explicit guidance from the

Supreme Court, or upheld concealed-carry restrictions under appropriate scrutiny.

Other courts’ caution is well-advised because “[t]his is serious business. We do not

wish to be even minutely responsible for some unspeakably tragic act of mayhem


3

because in the peace of our judicial chambers we miscalculated as to Second

Amendment rights.” United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir.

2011). Major shifts in Second Amendment jurisprudence, like those wrought by

the panel’s decisions in Peruta, Prieto, and now in Baker, warrant the full Court’s

consideration; indeed, human lives depend upon it. En banc review should be

granted.

ARGUMENT

I. THE PANEL’S DECISIONS IMPLICATE AN EXCEPTIONALLYIMPORTANT AND RECURRING QUESTION

1. The panel’s decisions authorize individuals without good cause to

carry concealed firearms in public places, equipped with no more than an

expressed interest in self-defense. This expansion of the Second Amendment

creates unique risks and threatens to condemn concealed-carry restrictions

throughout the Western United States. California, for example, has been deluged

by a wave of applications for concealed-carry permits since the panel’s decision in

Peruta.1 Even though the Peruta mandate has been stayed, Sheriff Sandra

1 Cheryl K. Chumley, California Sheriffs See Surge in Concealed CarryPermits, THE WASHINGTON TIMES (March 18, 2014), available athttp://www.washingtontimes.com/news/2014/mar/18/california-sheriffs-see-surge-concealed-carry-perm/ (“Sheriffs in California say they’ve been swamped withrequests for concealed carry permits since last month’s court ruling that residentsonly have to show a desire for self-defense – and little else – in order to takeadvantage of the right.”); see also Adam Nagourney, In California, a Fevered Rushfor Gun Permits, N.Y. TIMES (April 26, 2014) (“The surge [in applications for


4

Hutchens of Orange County told the New York Times that she has spent $1.6

million to hire fourteen “additional part-time workers, many working through the

weekend, in response to the crush of [concealed-carry permit] applications,”–

nearly 4,000 in two months. Adam Nagourney, In California, a Fevered Rush for

Gun Permits, N.Y. TIMES (April 26, 2014); 2 see also Kirk Siegler, Calif. Fight

Over Concealed Weapons Could Head to High Court, NATIONAL PUBLIC RADIO

(March 18, 2014).3 Baker is expected to produce a similar result in Hawaii,

prompting a potentially “huge reversal” in the traditionally low number of

concealed-carry permits in the state. Chris Eger, Hawaii firearms permits at record

levels in 2013; up over 500 percent since 2000, GUNS.COM (April 4, 2014).4 That

influx is unsurprising because the panel’s decisions were “bombshell ruling[s]”;

now “citizens need not justify their requests [for a concealed-carry permit].”

Joshua Rhett Miller, Surge in Concealed Weapon Permits Follows California Court

Second Amendment Decision, FOX NEWS (Feb. 27, 2014).5

concealed-carry permits] in Orange County and, to a lesser extent, a handful ofother [California] counties stunned law enforcement officials.”).2 Available at http://www.nytimes.com/2014/04/27/us/politics/in-california-a-fevered-rush-for-gun-permits.html?_r=0.3 Available at http://www.npr.org/2014/03/18/290252895/calif-fight-over-concealed-weapons-could-head-to-high-court.4 Available at http://www.guns.com/2014/04/04/hawaii-firearms-permits-record-levels-2013-500-percent-since-2000/.5 Available at http://www.foxnews.com/us/2014/02/27/surge-in-concealed-weapon-permits-follows-california-court-second-amendment/.


5

Simply put, Peruta and its progeny are currently upending concealed-carry

regimes across the Ninth Circuit, and forcing the issuance of thousands of

concealed-carry permits to persons without allowing law enforcement the

discretion to determine whether they have good cause to carry concealed firearms

in public spaces.

2. This result is particularly troublesome because of the unique and

lethal risks associated with wanton carrying concealed firearms in public.

Numerous studies have shown that the presence of firearms in the public sphere

augments the risks associated with gun violence in at least three ways. First,

carrying firearms outside the home threatens the safety of a much broader range of

individuals than firearm possession in the home. 6 Since 2007, fourteen law

enforcement officers, in addition to more than 600 private citizens, have been

killed by concealed handgun permit holders. See Violence Policy Center,

6 And even within the home, gun possession has been linked to increasedviolence. Lisa M. Hepburn & David Hemenway, Firearm Availability andHomicide: A Review of the Literature, 9 AGGRESSION & VIOLENT BEHAV. 417(2004) (“[H]ouseholds with firearms are at higher risk for homicide, and there isno net beneficial effect of firearm ownership.”); Matthew Miller et al., Rates ofHousehold Firearm Ownership and Homicide Across US Regions and States,1988–1997, 92 AM. J. PUB. HEALTH 1988 (Dec. 2002) (“[I]n areas where householdfirearm ownership rates were higher, a disproportionately large number of peopledied from homicide.”); Mark Duggan, More Guns, More Crime, 109 J. POL’Y.ECON. 1086 (2001); Matthew Miller et al., Firearm Availability and UnintentionalFirearm Deaths, 33 ACCIDENT ANALYSIS & PREVENTION 477 (Jul. 2000) (“Astatistically significant and robust association exists between gun availability andunintentional firearm deaths.”).


6

Concealed Carry Killers, available at http://vpc.org/ccwkillers.htm (last visited

April 24, 2014).

Second, public carrying increases violent crime. Studies analyzing the

connection between increased gun prevalence and crime indicate that most states

that broadly allow concealed firearms in public appear to “experience increases in

violent crime, murder, and robbery when [those] laws are adopted.” John

Donohue, The Impact of Concealed-Carry Laws, EVALUATING GUN POLICY:

EFFECTS ON CRIME AND VIOLENCE 289, 320 (Jens Ludwig & Phillip Cook eds.

2003). Importantly, “guns did not seem to protect [even] those who possessed

them from being shot in an assault.” Charles C. Branas, et al., Investigating the

Link Between Gun Possession and Gun Assault, 99 AM. J. PUB. HEALTH 2034

(2009). In fact, another study indicated that:

Two-thirds of prisoners incarcerated for gun offenses reported that thechance of running into an armed victim was very or somewhatimportant in their own choice to use a gun. Currently, criminals useguns in only about 25 percent of noncommercial robberies and 5percent of assaults. If increased gun carrying among potential victimscauses criminals to carry guns more often themselves, or becomequicker to use guns to avert armed self-defense, the end result couldbe that street crime becomes more lethal.

Philip Cook et al., Gun Control After Heller: Threats and Sideshows from a Social

Welfare Perspective, 56 UCLA L. REV. 1041, 1081 (2009). Conversely, “policies

to discourage firearms in public may help prevent violence.” David McDowall, et


7

al., Easing Concealed Firearms Laws, 86 CRIM. L. & CRIMINOLOGY 193, 203

(1995).

Third, law enforcement’s ability to protect themselves and the public could

be greatly restricted if officers were required to presume that a person carrying a

firearm in public was doing so lawfully. When the carrying of guns in public is

restricted, “possession of a concealed firearm by an individual in public is

sufficient to create a reasonable suspicion that the individual may be dangerous,

such that an officer can approach the individual and briefly detain him in order to

investigate whether the person is properly licensed.” Commonwealth v. Robinson,

600 A.2d 957, 959 (Pa. Super. Ct. 1991); accord Commonwealth v. Romero, 673

A.2d 374, 377 (Pa. Super. Ct. 1996). By contrast, under an expansive Second

Amendment regime, an officer might not be deemed to have cause to arrest,

search, or stop a person seen carrying a loaded gun, even though far less risky

behavior could justify police intervention. Law enforcement should not have to

wait for a gun to be fired before protecting the public from the potential danger

posed by increased guns in public.

3. Cognizant of the increased danger of violence that comes with

allowing concealed weapons in public spaces, other circuits have tread with

particular caution when addressing this recurring question. See, e.g., Masciandaro,


8

638 F.3d at 476 (the risks associated with gun carrying could “rise exponentially as

one moved the right [announced in Heller] from the home to the public square”).

A majority of circuits have expressly declined to recognize a right to carry guns in

public, refusing to “push Heller beyond its undisputed core holding.” Id. at 475;

Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (declining to “declare that the

individual right to bear arms for the purpose of self-defense extends beyond the

home”); Woollard, 712 F.3d at 872 (reversing district court’s holding that the

Second Amendment right “extends beyond the home,” noting that such a ruling

“br[oke] ground that our superiors have not tread”) (internal quotations marks and

citations omitted) (alteration in original).

The panel’s decision in Peruta casts this Court as the only circuit to strike

down a concealed-carry permitting regime post-Heller. Compare Peruta, 742 F.3d

at 1179, with Drake, 724 F.3d at 433 (upholding New Jersey’s permitting scheme,

which requires a showing of “justifiable need” to carry); Wollard, 712 F.3d at 882

(same); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 83-84 (2d Cir. 2012);

Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013) (“In light of our

nation’s extensive practice of restricting citizens’ freedom to carry firearms in a


9

concealed manner, we hold that this activity does not fall within the scope of the

Second Amendment’s protections.”).7

The panel’s decisions are “needless, sweeping judicial blow[s] to the public

safety discretion invested in local law enforcement officers and to California’s [and

Hawaii’s] carefully constructed firearm regulatory scheme.” Peruta, 742 F.3d at

1199 (Thomas, J., dissenting). The Court should rehear this case en banc.

CONCLUSION

The Court should grant rehearing.

April 28, 2014 Respectfully submitted,

/s/ Neil R. O’HanlonNeil R. O’HanlonHogan Lovells US LLP1999 Avenue of the Stars,Suite 1400Los Angeles, CA 90067(310) [email protected]

7 As Honolulu points out in its petition for rehearing en banc, the one circuitcourt of appeals to embrace a broader right to carry firearms in public struck downa ban on total carrying, and it did not address a permitting scheme that simplyrequires a showing of “good cause” prior to obtaining a concealed-carry permit.See Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012).


10

Jonathan L. DiesenhausAdam K. LevinJames W. ClaytonKathryn L. MarshallNathan G. FoellAnna M. KellyHOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, DC 20004(202) [email protected]

Jonathan E. LowyRobert B. Wilcox, Jr.Alla LefkowitzBRADY CENTER TO PREVENT GUN


840 First Street, N.E. Suite 400Washington, D.C. 20002(202) [email protected]

Mark M. MurakamiDAMON KEY LEONG KUPCHAK

HASTERT

1003 Bishop Street, STE 1600Honolulu, HI 96813(808) [email protected]



CERTIFICATE OF COMPLIANCE

I certify that, pursuant to 9th Circuit Rules 29-2, 32 and 35, this brief does

not exceed 15 pages, excluding material not counted under Fed. R. App. P. 32.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using MS-Word in 14-

point Times New Roman font.



CERTIFICATE OF SERVICE

I certify that the foregoing Petition was filed with the Clerk using the

appellate CM/ECF system on April 28, 2014. All counsel of record are registered

CM/ECF users, and service will be accomplished by the CM/ECF system.



APPENDIX B


-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CHRISTOPHER BAKER,

Plaintiff,

vs.

LOUIS KEALOHA, as an individualand in his official capacity asHonolulu Chief of Police; STATEOF HAWAII; CITY AND COUNTY OFHONOLULU; HONOLULU POLICEDEPARTMENT; NEIL ABERCROMBIE,in his official capacity asHawaii Governor,

Defendants.

))))))))))))))))))

Civ. No. 11-00528 ACK-KSC

ORDER GRANTING THE BRADY CENTER TO PREVENT GUN VIOLENCE’S MOTIONFOR LEAVE TO FILE AN AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS

This matter comes before the Court on the Brady Center

to Prevent Gun Violence’s Motion for Leave to File an Amicus

Curiae Brief in support of the Defendants in the above-captioned

case. After reviewing the motion, against which no opposing

memoranda have been filed, the Court hereby GRANTS the Motion for

Leave to File an Amicus Curiae Brief.

Case 1:11-cv-00528-ACK-KSC Document 40-1 Filed 02/23/12 Page 1 of 4 PageID #: 383


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On February 13, 2012, counsel for the Brady Center to

Prevent Gun Violence (the “Brady Center”) filed a Motion for

Leave to File an Amicus Curiae Brief in support of Defendants.

In the Brady Center’s motion, counsel asserted, among other

things, that its proposed brief would provide the Court with “an

overview of recent and longstanding Supreme Court Second

Amendment jurisprudence and the policy implications of extending

the Second Amendment right beyond the home,” as well as a

discussion of an emerging trend towards using a two-pronged

approach to Second Amendment litigation, as discussed in United

States v. Skoien, 614 F.3d 638 (7th Cir. 2010).

District courts frequently welcome amicus curiae briefs

from non-parties concerning legal issues that have potential

ramifications beyond the parties directly involved or when the

amicus has “unique information or perspective that can help the

court beyond the help that the lawyers for the parties are able

to provide.” NGV Gaming, Ltd v. Upstream Point Molate, LLC, 355

F. Supp. 2d 1061, 1068 (N.D. Cal. 2005) (quoting Cobell v.

Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003) (quoting Ryan v.

Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir.

1997))).

Furthermore, courts in this Circuit have broad

discretion to appoint amici curiae. See Hoptowit v. Ray, 682

F.2d 1237, 1260 (9th Cir. 1982) (superceded by statute on other



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grounds). Clasically, amici curiae serve a role that is three-

fold: “(1) assist in a case of general public interest; (2) to

supplement the efforts of counsel; and (3) to draw the court’s

attention to law that escaped consideration.” Ocean Mammal Inst.

v. Gates, Civ. No. 07-00254 DAE-LEK, Order Granting the Honolulu

Council of the Navy League of the United States’ Motion to File

an Amicus Curiae Brief in Support of Federal Defendants’

Opposition to Plaintiffs’ Motion for Preliminary Injunction

(filed Nov. 1, 2007) (quoting Miller-Wohl Co., Inc. v. Com’r of

Labor and Industry, 694 F.2d 203, 204 (9th Cir. 1982)).

The Brady Center’s proposed amicus curiae brief

accomplishes these aims, and is particularly valuable in light of

the likely significant public interest in this case. As a

participant in Second Amendment litigation across the nation, the

Brady Center will provide the Court with information regarding

national trends, and will also contribute substantive legal

arguments to a discussion that may focus on procedural issues.

Accordingly, while the Brady Center is not a party in this

action, the Court deems it appropriate to consider its position.

In keeping with the Court’s broad discretion to

appoint amici curiae, the Court concludes that the Brady Center’s

participation will be valuable to the just disposition of this

case, and is in the best interests of the Court, the parties, and

the public.



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CONCLUSION

For the reasons stated above, the Court GRANTS the

Brady Center to Prevent Gun Violence’s Motion For Leave to File

an Amicus Curiae Brief.

IT IS SO ORDERED.

DATED: Honolulu, Hawai#i, February 23, 2012.

________________________________Alan C. KaySr. United States District Judge

Baker v. Kealoha, Civ. No. 11-00528 ACK-KSC: Order Granting The Brady CenterTo Prevent Gun Violence’s Motion For Leave To File An Amicus Curiae Brief InSupport Of Defendants.



APPENDIX C


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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER BAKER,

Plaintiff - Appellant,

v.

LOUIS KEALOHA, as an individual and

in his official capacity as Honolulu Chief

of Police; et al.,

Defendants - Appellees.

No. 12-16258

D.C. No. 1:11-cv-00528-ACK-

KSC

District of Hawaii,

Honolulu

ORDER

The court denies appellant’s motion to stay appellate proceedings in this

preliminary injunction appeal pending issuance of the decision in Richards, et al.

v. Prieto, et al., No. 11-16255.

The Clerk shall calendar this appeal, No. 12-16258, before the panel that

will be assigned to decide appeal No. 11-16255.

Briefing is completed.

The amicus brief submitted by the Brady Center to Prevent Gun Violence is

filed. Within 7 days of the filing of this order, the filer is ordered to file 7 copies of

the brief in paper format, with a green cover, accompanied by certification,

FILEDSEP 04 2012

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

Case: 12-16258 09/04/2012 ID: 8309708 DktEntry: 25 Page: 1 of 2Case: 12-16258 04/28/2014 ID: 9074180 DktEntry: 61-4 Page: 2 of 3 (34 of 35)

hmb/MOATT 2

attached to the end of each copy of the brief, that the brief is identical to the

version submitted electronically.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Holly Baldwin

Deputy Clerk

Case: 12-16258 09/04/2012 ID: 8309708 DktEntry: 25 Page: 2 of 2Case: 12-16258 04/28/2014 ID: 9074180 DktEntry: 61-4 Page: 3 of 3 (35 of 35)

Brady Campaign Baker Amicus Brief

Documents

Transcript of Brady Campaign Baker Amicus Brief