Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 1 of 35 No. 12-17808 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT George K. Young, Jr., Plaintiff-Appellant, v. State of Hawaii, et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Hawaii, No. 1:12-cv-00336-HG-BMK District Judge Helen Gillmor BRIEF OF AMICUS CURIAE PROSECUTORS AGAINST GUN VIOLENCE IN SUPPORT OF DEFENDANTS-APPELLEES ANTONIO J. PEREZ-MARQUES SUSHILA RAO PENTAPATI VICTOR OBASAJU KOREY BOEHM THOMAS DEC DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4000 Counsel for Amicus Curiae Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 2 of 35 Corporate Disclosure Statement Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for amicus curiae Prosecutors Against Gun Violence certifies that amicus is not a publicly held corporation, that amicus does not have a parent corporation, and that no publicly held corporation owns 10% or more of its stock. /s/ Antonio J. Perez-Marques ANTONIO J. PEREZ-MARQUES DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 antonio.perez@davispolk.com Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 3 of 35 TABLE OF CONTENTS PAGE Identity and Interest of Amicus Curiae ........................................................... 1 Summary of Argument ................................................................................... 2 Argument ........................................................................................................ 4 I. Localized Discretion in Issuing Public Carry Permits Is Essential to Exercising a State’s Police Power to Protect the Public .................. 4 A. State and Local Governments’ Paramount Duty to Protect Citizens Is Accompanied by Broad Discretion to Enact Localized Frameworks Responding to Public Safety Concerns ......................................................................... 4 B. Appropriate, Common-Sense Gun Regulations Vary with Each Community’s Distinctive Public Safety Needs, Making Localized Permitting Standards a Valuable Tool ............................................................................. 7 C. Courts Have Recognized the Constitutionality of Discretionary Licensing Regimes Vesting Authority in Local Officials .......................................................................... 10 II. Non-Discretionary Carry Licensing Improperly Limits the Discretion Required by State and Local Authorities to Fulfill Their Obligation to Protect Their Citizens ......................................... 14 A. Non-Discretionary Carry Licensing Hampers Law Enforcement’s Ability to Protect the Public, Including by Increasing Risks Inherent in Civilian-Police Encounters ................................................................................ 14 B. Non-Discretionary Carry Licensing Schemes Would Further Increase the Risks to the Lives of Law Enforcement Personnel ............................................................ 19 C. The Empirical Evidence Demonstrates That Non- Discretionary Carry Licensing Laws Would Result in Increased Gun Violence ........................................................... 22 i Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 4 of 35 Conclusion .................................................................................................... 24 Certificate of Compliance ............................................................................. 25 ii Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 5 of 35 TABLE OF AUTHORITIES CASES PAGE(S) Baker v. Kealoha, No. CV 11-00528 ACK-KSC, 2012 WL 12886818 (D. Haw. Apr. 30, 2012), vacated and remanded, 564 F. App'x 903 (9th Cir. 2014) ......... 12 District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................................................... 10 Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) ............................................................. 11, 12 Gonzales v. Oregon, 546 U.S. 243 (2006) ................................................................................. 5 Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) ...................................................... 11, 15, 22 Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012) ............................................................... passim Kelley v. Johnson, 425 U.S. 238 (1976) ................................................................................. 5 McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................................................... 10 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ............................................................................. 2, 5 Panhandle E. Pipe Line Co. v. State Highway Comm’n of Kan., 294 U.S. 613 (1935) ................................................................................. 5 Peruta v. Cty. of San Diego, 742 F.3d 1144 (9th Cir. 2014) .................................................................. 13 Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir. 2016) .............................................................. 10, 11 iii Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 6 of 35 Piszczatoski v. Filko, 840 F. Supp. 2d 813 (D.N.J. 2012) ......................................................... 22 Richards v. Cty. of Yolo, 821 F. Supp. 2d 1169 (E.D. Cal. 2011) .................................................. 22 United Auto., Aircraft & Agric. Implement Workers of Am. v. Wis. Emp’t Relations Bd., 351 U.S. 266 (1956) ................................................................................. 5 United States v. Comstock, 560 U.S. 126 (2010) ................................................................................. 5 United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) .................................................................... 2 United States v. Morrison, 529 U.S. 598 (2000) ............................................................................. 4, 5 Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) .......................................................... passim BRIEFS Brief of the Brady Center to Prevent Gun Violence, Ceasefire NJ, International Brotherhood of Police Officers, Major Cities Chiefs et al. as Amici Curiae, Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) ........................ 20 DECLARATIONS Declaration of Andrew Lunetta, Deputy Inspector, New York City Police Department, Joint Appendix, Kachalsky v. City of Westchester, 701 F.3d 81 (2d Cir. 2012) ................................................................................................ 16 Declaration of Franklin E. Zimring, Professor of Law, the University of California, Berkeley, Joint Appendix, Kachalsky v. City of Westchester, 701 F.3d 81 (2d Cir. 2012) ..................................................................... 9, 11 Declaration of James W. Johnson, Chief of the Baltimore County Police Department, Joint Appendix, Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) .............................................................................................. 20 Declaration of Terrence B. Sheridan, Superintendent of the Maryland State iv Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 7 of 35 Police, Joint Appendix, Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) .......................................................................................... 15, 19, 20, 21 STATUTES & RULES 1933 Haw. Sess. Laws (Special Sess.) Act 26, §§ 6, 8 .............................. 12 1961 Haw. Sess. Laws Act 163, § 1 ........................................................... 12 Fed. R. App. P. 29(a)(4).................................................................................. 2 Haw. Rev. Stat. § 134-9(a) ......................................................................... 10 Haw. Sess. Laws Act 206, §§ 5-7 ............................................................... 13 N.J.S.A. § 2C:58-4 ...................................................................................... 12 N.Y. Penal Law § 400.00(2)(f) ................................................................... 11 OTHER AUTHORITIES Allison Schaefers, Honolulu LEO Killed in Ambush Remembered as ‘Rock’ of Community, THE HONOLULU STAR-ADVERTISER (Mar. 9, 2020), https://www.policeone.com/police-heroes/articles/honolulu-leo-killed-in- ambush-remembered-as-rock-of-community-fNO3LHrrhrOKzcKM/ ........ 19 Andrew Warren, State Attorney for the 13th Judicial Circuit, Concealed- Carry Reciprocity Would Be Bad for Florida, TAMPA BAY TIMES (Dec. 5, 2017), www.tampabay.com/opinion/columns/Column-Concealed-carry- reciprocity-would-be-bad for-Florida_163306216 ......................................... 6 Arlin James Benjamin Jr. et al., The Weapons Priming Effect, CURRENT OPINION IN PSYCHOLOGY 12:45-48 (2016) ................................................... 22 Bernard D. Rostker et al., RAND Ctr. on Quality Policing, Evaluation of the New York City Police Department Firearm Training and Firearm-Discharge Review Process 14 (2008) ............................................................................ 15 v Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 8 of 35 Cassandra K. Crifasi, et al., Association Between Firearm Laws & Homicide in Urban Counties, 95 J. URB. HEALTH 383 (2018), https://doi.org/10.1007/s11524-018-0273-3 ................................................. 23 Center for Disease Control and Prevention, National Center for Health Statistics, Firearm Mortality by State (April 29, 2020), https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/ firearm.htm.................................................................................................... 13 Chris Magnus, Lawmakers Must Listen to Law Enforcement on Dangerous Gun Bills, ARIZONA DAILY STAR (Sept. 21, 2017), https://tucson.com/opinion/local/chris-magnus-lawmakers-must-listen-to- law-enforcement-on-dangerous/article_50ad9a22-74ba-5c15-acf3- 10b22598804a.html ....................................................................................... 7 Corey Hutchins, In Colorado Springs, Dispatcher Brushed Off Reports of a Man with a Gun, Witness Says, WASH. POST (Nov. 3, 2015), htttps://washingtonpost.com/new/post-nation/wp/2015/11/03/in-colorado- springs-dispatcher-brushed-off-reports-of-a-aman-with-a-gun/................... 18 David Hemenway et al., Variation in Rates of Fatal Police Shootings across US States: the Role of Firearm Availability, 96 J. URB. HEALTH 63 (Feb. 2019) ............................................................................................................. 15 David I. Swedler et al., Firearm Prevalence and Homicides of Law Enforcement Officers in the United States, 105 AM. J. PUB. HEALTH 2042 (Oct. 2015) .................................................................................................... 20 Doyin Oyeniyi, Texas Law Enforcement Group Wants Changes to Open Carry, But Will Lawmakers Listen?, TEXAS MONTHLY (Aug. 1, 2016), https://www.texasmonthly.com/the-daily-post/texas-law-enforcement-group- wants-changes-open-carry-will-lawmakers-listen/ ......................................... 7 Emily Schultheis, Dallas Mayor on “One of the Real Issues” with Guns, CBS NEWS (July 10, 2016), https://www.cbsnews.com/news/dallas-mayor- talks-one-of-the-real-issues-with-gun-rights/ ............................................... 17 Francis Wilkinson, The Dangerous Theater of Open Carry, PITTSBURGH POST-GAZETTE (Sep. 3, 2019), https://www.post- gazette.com/opinion/Op- Ed/2019/09/03/Francis-Wilkinson-The-dangerous-theater-of-open- carry/stories/201909030019 ......................................................................... 17 vi Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 9 of 35 Harry Cheadle, Why the US Gun Violence Epidemic Hasn’t Reached Hawaii, VICE (Aug, 21, 2019), https://www.vice.com/en_us/article/zmjxqe/why-the-us-gun-violence- epidemic-hasnt-reached-hawaii .................................................................... 13 Julia Harte, In Some U.S. Cities, Police Push Back Against ‘Open-Carry’ Gun Laws, REUTERS (July 19, 2016), https://www.reuters.com/article/us- usa-police-guns-analysis/in-some-u-s-cities-police-push-back-against-open- carry-gun-laws-idUSKCN0ZZ0BQ ................................................................ 8 John Donohue et al., Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data, the LASSO, and a State-Level Synthetic Controls Analysis (Nat’l Bureau of Econ. Research, Working Paper No. 23510, 2017) ...................................................................... 9, 22, 23 Joseph A. Peters et al., Gun Crime and Gun Control: The Hawaiian Experience, UNIVERSITY OF CHICAGO LEGAL FORUM: Vol. 2005: Iss. 1, Article 3, at 67 (2005) ..................................................................................... 9 Joseph Blocher, Firearm Localism, 123 Yale L.J. 82 (2013) ........................ 8 Letter from David LaBahn, President & CEO, Ass’n of Prosecuting Attorneys to Congressional Leaders (Nov. 27, 2017) .................................... 5 Letter from 17 Attorneys General to Congressional Leaders (Oct. 22, 2017) ................................................................................................ 6 Letter from the National Law Enforcement Partnership to Prevent Gun Violence to Congress (July 7, 2017) .............................................................. 7 Lupe Valdez, Our Police Officers Need Protection From Gun Violence Too, THE HILL (May 17, 2017, 11:40 AM), http://thehill.com/blogs/pundits- blog/civil-rights/333819-our-police-officers-need-protection-from-gun- violence-too................................................................................................... 19 Martin Kaste, Gun Carry Laws Can Complicate Police Interactions, NPR (July 19, 2016), https://www.npr.org/2016/07/19/486453816/open-carry- concealed-carry-gun-permits-add-to-police-nervousness ............................ 17 Matthew D. Moore & CariAnn M. Bergner, The Relationship Between Firearm Ownership and Violent Crime, 13 JUSTICE POLICY J. 1 (2016) ....... 9 vii Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 10 of 35 Michael Siegel et al., Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United States, 107 AM. J. PUB. HEALTH 1923 (2017) ............................................................................................... 9, 22 Molly Hennessey-Fiske, Dallas Police Chief: Open Carry Makes Things Confusing During Mass Shootings, THE LOS ANGELES TIMES, July 11, 2016, https://lat.ms/2GpxGUw ............................................................................... 21 Perry Vandell & Russ Wiles, Arizona’s Open-Carry Gun Law Poses Challenges for Police, Businesses, THE ARIZONA REPUBLIC (Aug. 7, 2019), https://www.azcentral.com/story/news/local/arizona/2019/08/07/open-carry- gun-law-poses-challenges-police-businesses-mass-shooting/1927290001/ .. 7 Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, FORDHAM L. REV. 487 (2004) ................ 2 Siegel et al., The Impact of State Firearm Laws on Homicide and Suicide Deaths in the USA, 1991-2016: A Panel Study, 34 J. GEN. INTERNAL MED. 2021 (2019), https://link.springer.com/article/10.1007/s11606-019-04922-x ................... 23 Tom Jackman, Police Chiefs Implore Congress Not to Pass Concealed- Carry Reciprocity Gun Law, WASH. POST (Apr. 19, 2018), https://www.washingtonpost.com/news/true-crime/wp/2018/04/19/nations- police-chiefs-implore-congress-not-to-pass-concealed-carry-reciprocity-gun- law/?noredirect=on&utm_term=.73bc281f4c6c............................................. 6 U.S. Census Bureau, Guide to State and Local Census Geography: Hawaii, https://www2.census.gov/geo/pdfs/reference/guidestloc/hi_gslcg.pdf (2010) .............................................................................................................. 8 viii Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 11 of 35 Identity and Interest of Amicus Curiae Prosecutors Against Gun Violence (“PAGV”) is an independent, nonpartisan coalition that identifies and promotes prosecutorial and policy solutions to the national public health and safety crisis of gun violence. PAGV’s membership comprises 50 prosecutors, and serves over 76 million Americans in 24 states. Its mission includes sharing best practices for prosecuting gun offenders and defending common-sense gun safety policies. Prosecutors, and other local law enforcement agencies with which they collaborate daily, play a critical role in promoting citizen safety—the highest objective of state and local governments. The key issue before this Court is whether a state may require that a citizen “sufficiently indicate” an “urgency” or “need,” and be “engaged in the protection of life and property,” in order to carry a firearm in public. From their position on the front lines of efforts to curb gun violence and defend public safety in a wide cross-section of communities, prosecutors in the Ninth Circuit, and throughout the nation, will be directly affected by this case’s outcome. Accordingly, PAGV submits this amicus brief to emphasize the need for deference to local jurisdictions’ determinations about the type of firearm licensing requirements that are best suited to their specific public safety challenges, and to extend its support for Hawaii’s determination that a 1 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 12 of 35 “sufficient need” requirement for the public carry of firearms effectuates that state’s interest in promoting public safety and reducing crime.1 Summary of Argument Localized public carry permitting standards are often critical tools for combating unlawful gun use and its deleterious effects on public safety. The Supreme Court has emphasized that, pursuant to their police powers, states have broad discretion in creating legislative standards aimed at protecting citizens’ lives. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996). The determination of how to regulate firearms is well within this discretion. Since our nation’s founding, there has been a longstanding tradition of states regulating the possession of firearms in public due to the dangers posed to the public.2 Accordingly, the weight of precedent demonstrates that 1 All parties in this case have consented to PAGV filing this amicus brief. 9th Cir. R. 29-2(a) (amicus curiae briefs submitted during pendency of en banc rehearing); Appellant’s Ltr. Consenting to Filing of Amicus Briefs, ECF. No. 228. PAGV certifies that this brief was not written in whole or in part by counsel for any party, and no person or entity other than PAGV, its members, and its counsel has made any monetary contribution to the preparation or submission of this brief. Fed. R. App. P. 29(a)(4). 2 Kachalsky v. Cty. of Westchester, 701 F.3d 81, 94 (2d Cir. 2012); United States v. Masciandaro, 638 F.3d 458, 470-71 (4th Cir. 2011) (“[O]utside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.”); see also Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 FORDHAM L. REV. 487, 502-16 (2004). 2 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 13 of 35 restrictions on public carry do not impermissibly burden conduct protected by the Second Amendment. Even assuming that public carry falls within the scope of protected conduct, permitting laws similar to the challenged Hawaii statute have been upheld as substantially related to the important governmental objective of public safety. Federal courts—including the First, Second, Third, and Fourth Circuits—have upheld various states’ licensing schemes vesting authority in local officials to impose “proper purpose,” “proper cause,” “justifiable need,” or “good and substantial reason” requirements for acquiring public carry permits. In contrast, eliminating law enforcement officials’ prerogative to make discretionary licensing decisions, as Appellant demands, will thwart law enforcement’s ability to promote public safety and protect lives. Empirical data and expert testimony from law enforcement officials confirm non-discretionary licensing laws’ deleterious effects. Non- discretionary licensing increases the number of guns carried in public, which transforms routine police encounters into potentially high-risk scenarios and threatens the safety of both law enforcement and the public. Discretion in issuing public carry permits is not only a common-sense administrative tool, but also a necessary means of controlling crime and 3 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 14 of 35 violence. That is why tens of millions of Americans, through their elected officials, have exercised their choice to grant local law enforcement agencies discretion concerning the issuance of such permits. This Court should not discount either the will of these citizens or the dangers inherent in Appellant’s position. Argument I. Localized Discretion in Issuing Public Carry Permits Is Essential to Exercising a State’s Police Power to Protect the Public The highest purpose of state and local governments is protecting and promoting the physical safety of their citizens. Accordingly, state and local governments retain broad discretion under their police powers to legislate in a manner reflecting local needs. Pursuant to this mandate, law enforcement across the country believes in the importance of vesting discretion with local decision makers to regulate firearms according to localized standards. A. State and Local Governments’ Paramount Duty to Protect Citizens Is Accompanied by Broad Discretion to Enact Localized Frameworks Responding to Public Safety Concerns The Supreme Court has observed that there is “no better example of the police power . . . reposed in the States, than the suppression of violent crime and vindication of its victims.” United States v. Morrison, 529 U.S. 4 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 15 of 35 598, 618 (2000).3 Protecting citizens’ physical safety is not merely a power, but an obligation of state and local authorities. Panhandle Eastern Pipe Line Co. v. State Highway Comm’n of Kan., 294 U.S. 613, 622 (1935) (stating that state police power “springs from the obligation of the state to protect its citizens and provide for the safety and good order of society”). Commensurate with this significant responsibility, states retain “great latitude under their police powers to legislate as to the protection of the lives, limb, health, comfort and quiet of all persons.” Medtronic, 518 U.S. at 475 (quotation omitted); accord Gonzales v. Oregon, 546 U.S. 243, 270 (2006). State and local lawmakers discharge this duty by “carefully and thoughtfully creat[ing] their own framework of standards . . . to suit public safety needs.”4 These homegrown standards reflect “the great diversity in 3 See also Kelley v. Johnson, 425 U.S. 238, 247 (1976) (“The promotion of safety of persons and property is unquestionably at the core of the State’s police power . . . .”); United Auto., Aircraft & Agric. Implement Workers of Am. v. Wis. Emp’t Relations Bd., 351 U.S. 266, 274 (1956) (“The dominant interest of the State in preventing violence and property damage cannot be questioned. It is a matter of genuine local concern.”); United States v. Comstock, 560 U.S. 126, 153 (2010) (Kennedy, J., concurring in result) (“Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone.”). 4 Letter from David LaBahn, President & CEO, Ass’n of Prosecuting Attorneys to Congressional Leaders (Nov. 27, 2017). 5 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 16 of 35 geography, population, culture, and tradition” of lawmakers’ constituents.5 They not only represent “decisions by state and local authorities about how to best ensure public safety,”6 but also reflect “the will of their citizens” and symbolize “the core democratic principle that . . . elected representatives make those laws.”7 Law enforcement leaders combating the gun violence epidemic consistently underline the foundational nature of this principle. Chris Magnus, Chief of Police for Tucson, Arizona, is entrusted with protecting a community that witnessed a gunman kill six people and injure others, including former Congresswoman Gabby Giffords. Based on his extensive policing experience, Magnus believes that the “best strategy for preventing and reducing crime is the ability to listen and respond accordingly to the 5 Letter from 17 Attorneys General to Congressional Leaders (Oct. 22, 2017). 6 Id. 7 Andrew Warren, State Attorney for the 13th Judicial Circuit, Concealed-Carry Reciprocity Would Be Bad for Florida, TAMPA BAY TIMES (Dec. 5, 2017), http://www.tampabay.com/opinion/columns/Column- Concealed-carry-reciprocity-would-be-bad-for-Florida_163306216. See also Tom Jackman, Police Chiefs Implore Congress Not to Pass Concealed- Carry Reciprocity Gun Law, WASH. POST (Apr. 19, 2018), https://www.washingtonpost.com/news/true-crime/wp/2018/04/19/nations- police-chiefs-implore-congress-not-to-pass-concealed-carry-reciprocity-gun- law/?noredirect=on&utm_term=.73bc281f4c6c. 6 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 17 of 35 needs of the community.”8 As Magnus correctly stated, “[p]rotecting the safety of their residents has long been the purview of individual states, a right ensured by the 10th Amendment[.]”9 B. Appropriate, Common-Sense Gun Regulations Vary with Each Community’s Distinctive Public Safety Needs, Making Localized Permitting Standards a Valuable Tool In analyzing a regulation’s public-safety impact and justifications, the views of officials entrusted with protecting Americans are entitled to considerable deference. PAGV strongly believes in the importance of vesting local authorities with adequate discretion to regulate firearms based on localized standards. This sentiment has particularly resonated with law enforcement leaders in the context of their communities’ needs to reasonably restrict public carry of firearms and promote public safety.10 Indeed, the “vast 8 Chris Magnus, Lawmakers Must Listen to Law Enforcement on Dangerous Gun Bills, ARIZONA DAILY STAR (Sept. 21, 2017), https://tucson.com/opinion/local/chris-magnus-lawmakers-must-listen-to- law-enforcement-on-dangerous/article_50ad9a22-74ba-5c15-acf3- 10b22598804a.html; see also Perry Vandell & Russ Wiles, Arizona’s Open- Carry Gun Law Poses Challenges for Police, Businesses, THE ARIZONA REPUBLIC (Aug. 7, 2019), https://www.azcentral.com/story/news/local/arizona/2019/08/07/open-carry- gun-law-poses-challenges-police-businesses-mass-shooting/1927290001/. 9 Magnus, supra note 8. 10 See, e.g., Letter from the National Law Enforcement Partnership to Prevent Gun Violence to Congress (July 7, 2017) (asserting that “[s]tates 7 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 18 of 35 majority of gun control regulations in the United States are local,” and tailored to their respective communities’ needs.11 Localized firearm permitting standards take into account the salient factors affecting public safety at the community level. For instance, Hawaii’s high population density—which ranks 13th12 out of the 50 states— poses unique policing challenges. As a prominent criminology and criminal justice scholar notes, carrying loaded weapons in “shared public environments means that the implications . . . are spread over the community and localities should maintain their rights to legislate concealed carry laws that best meet the needs of their citizens.”); Doyin Oyeniyi, Texas Law Enforcement Group Wants Changes to Open Carry, But Will Lawmakers Listen?, TEXAS MONTHLY (Aug. 1, 2016), https://www.texasmonthly.com/the-daily-post/texas-law-enforcement-group- wants-changes-open-carry-will-lawmakers-listen/ (noting that a portion of a Texas open-carry bill that would have prevented law enforcement from checking people for gun licenses if they were openly carrying a gun was removed due to concerns from police officers and “75 percent of Texas police chiefs surveyed sa[ying] they were opposed to open carry”). Julia Harte, In Some U.S. Cities, Police Push Back Against ‘Open-Carry’ Gun Laws, REUTERS (July 19, 2016), https://www.reuters.com/article/us-usa- police-guns-analysis/in-some-u-s-cities-police-push-back-against-open- carry-gun-laws-idUSKCN0ZZ0BQ (noting that a majority of law enforcement leaders surveyed in Florida and Texas opposed proposed open- carry laws). 11 Joseph Blocher, Firearm Localism, 123 YALE L.J. 82, 99 (2013). 12 U.S. Census Bureau, Guide to State and Local Census Geography: Hawaii, https://www2.census.gov/geo/pdfs/reference/guidestloc/hi_gslcg.pdf (2010). 8 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 19 of 35 of users of public space.”13 Handguns in particular, being “easy to carry and conceal,” often become a “priority concern of law enforcement.”14 For governments responsible for maintaining public safety in densely populated areas, like Hawaii, this concern is amplified.15 Empirical studies also show that licensing standards resulting in higher rates of public carry correlate with higher rates of firearm-related homicide and violence. 16 The ability of local officials to determine who 13 Declaration of Franklin E. Zimring, Professor of Law, The University of California, Berkeley, Joint Appendix at 490, Kachalsky, 701 F.3d 81 (“Zimring Decl.”). 14 Id. at 487. 15 See Matthew D. Moore & CariAnn M. Bergner, The Relationship Between Firearm Ownership and Violent Crime, 13 JUSTICE POLICY J. 1, 12, 14 (2016) (finding that population density has a positive relationship with violent crime). 16 Michael Siegel et al., Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United States, 107 AM. J. PUB. HEALTH 1923, 1927-29 (2017); John Donohue et al., Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data, the LASSO, and a State-Level Synthetic Controls Analysis 63-65 (Nat’l Bureau of Econ. Research, Working Paper No. 23510, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2988731; see also Joseph A. Peters et al., Gun Crime and Gun Control: The Hawaiian Experience, UNIVERSITY OF CHICAGO LEGAL FORUM: Vol. 2005: Iss. 1, Article 3, at 67, 74 (2005) (finding that more robust gun purchase regulations in Hawaii likely contributed to “an unusually sharp and abrupt drop in gun homicides . . . .”). 9 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 20 of 35 may carry firearms publicly in their jurisdictions is thus critical to public safety. C. Courts Have Recognized the Constitutionality of Discretionary Licensing Regimes Vesting Authority in Local Officials Nor is a state’s broad discretion to legislate to protect its citizens through firearms permitting eliminated by the Second Amendment.17 The Supreme Court has clearly stated that the Second Amendment does not grant the “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626). Consistent with the obligation of state and local legislative bodies to enact laws addressing their communities’ particularized safety needs, courts have affirmed the constitutionality of licensing regimes vesting discretion in local authorities. Here, the challenged provision authorizes the respective chief of police to issue a public carry license upon determining that “the urgency or the need has been sufficiently indicated” and the applicant is “engaged in the protection of life and property.” Haw. Rev. Stat. § 134-9(a). 17 District of Columbia v. Heller, 554 U.S. 570, 636 (2008) (“The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.”); Peruta v. Cty. of San Diego, 824 F.3d 919, 928 (9th Cir. 2016). 10 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 21 of 35 Numerous circuits have upheld similar licensing standards requiring public carry permit applicants to demonstrate a need for self-defense greater than that of an ordinary member of the public.18 And these courts regularly cite deference to legislative judgments as an operative factor in their decision making.19 For example, New York law “delegates the authority to establish standards and make individual decisions to county licensing officials.”20 In upholding the state’s “proper cause” requirement, the Second Circuit reasoned that “the connection between promoting public safety and regulating handgun possession in public” was a conclusion reached by New York and also a “basis for other states’ handgun regulations.” Kachalsky, 701 F.3d at 98. The court deferred to New York’s determinations, holding that assessing “the risks and benefits of handgun possession and shaping a licensing scheme to maximize the competing public-policy objectives . . . is 18 Kachalsky v. Cty. of Westchester, 701 F.3d 81, 100-01 (2d Cir. 2012); Drake v. Filko, 724 F.3d 426, 440 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 882-83 (4th Cir. 2013); Peruta, 824 F.3d at 942; Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018). 19 See, e.g., Drake, 724 F.3d at 439; Woollard, 712 F.3d at 881; see also Kachalsky, 701 F.3d at 99 (“It is the legislature’s job, not [the court’s], to weigh conflicting evidence and make policy judgments”). 20 Zimring Decl. at 489; N.Y. Penal Law § 400.00(2)(f) (providing that a license “shall be issued to . . . have and carry [a firearm] concealed . . . by any person when proper cause exists for the issuance thereof”). 11 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 22 of 35 precisely the type of discretionary judgment that officials in the legislative and executive branches of state government regularly make.” Id. at 99. Similarly, the Third Circuit upheld a New Jersey statute requiring a public carry applicant to demonstrate “a justifiable need to carry a handgun,” and granting local authorities broad discretion to issue public carry permits. Drake, 724 F.3d at 440; N.J.S.A. § 2C:58-4. The court acknowledged New Jersey’s “policy judgment” and concluded that “[e]ven accepting . . . that there may be conflicting empirical evidence as to the relationship between public handgun carrying and public safety, this does not suggest, let alone compel, a conclusion that the ‘fit’ between New Jersey’s individualized, tailored approach and public safety is not ‘reasonable.’” Drake, 724 F.3d at 439. Since 1927, Hawaii has recognized the myriad public safety hazards inherent in public carry, and has responded “by enacting comprehensive place to keep and license to carry laws.”21 That determination has saved 21 Br. of the State of Hawaii as Amici Curiae Supporting the County of Hawaii Defendants-Appellees 20, Young, May 31, 2013, ECF No. 35 (“State of Hawaii Amicus Brief”) (citing Haw. Sess. Laws Act 206, §§ 5-7; 1933 Haw. Sess. Laws (Special Sess.) Act 26, §§ 6, 8; 1961 Haw. Sess. Laws Act 163, § 1); see also Baker v. Kealoha, No. CV 11-00528 ACK- KSC, 2012 WL 12886818, at *19 (D. Haw. Apr. 30, 2012) (stating that Hawaii has a “clear and important government objective in the protection of public health and safety” and that the “government has a significant interest in empowering local law enforcement to exercise control over both 12 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 23 of 35 lives and served Hawaii well. In 2018, Hawaii had the country’s third lowest gun death rate: four gun fatalities per 100,000 people.22 Public health researchers cite Hawaii as “a model for the nation in terms of putting together a set of firearms laws that work together to try to keep firearms out of hands of people who are at the greatest risk.”23 Consistent with its sister circuits that have deferred to local determinations regarding public carry permitting, this Court should reverse the panel opinion and defer to Hawaii’s policy judgment that vesting authority in local officials to determine “substantial need” to carry firearms publicly is substantially related to its public safety interest. concealed and open-carry firearm permits”), vacated and remanded, 564 F. App’x 903 (9th Cir. 2014) (vacating the district court’s judgment denying plaintiff’s motion for preliminary injunction and remanding in light of Peruta v. Cty. of San Diego, 742 F.3d 1144, 1166-67 (9th Cir. 2014)). 22 Centers for Disease Control and Prevention (“CDC”), National Center for Health Statistics, Firearm Mortality by State (April 29, 2020), https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm. 23 Harry Cheadle, Why the US Gun Violence Epidemic Hasn’t Reached Hawaii, VICE (Aug, 21, 2019), https://www.vice.com/en_us/article/zmjxqe/why-the-us-gun-violence- epidemic-hasnt-reached-hawaii. 13 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 24 of 35 II. Non-Discretionary Carry Licensing Improperly Limits the Discretion Required by State and Local Authorities to Fulfill Their Obligation to Protect Their Citizens A. Non-Discretionary Carry Licensing Hampers Law Enforcement’s Ability to Protect the Public, Including by Increasing Risks Inherent in Civilian-Police Encounters Eliminating discretion in carry licensing would increase the number of firearms carried in public spaces in Hawaii, undermining law enforcement’s ability to protect the public in two key respects. First, a higher incidence of armed individuals in public would increase the likelihood of violent encounters between civilians and law enforcement officials. As Hawaii explained in its Petition for Rehearing En Banc, “[f]irearms are a leading cause of death in this country” and “States that limit the public carry of firearms have markedly lower rates of gun violence than States that do not.”24 Moreover, public carry not only potentially “encourage[s] criminals to carry firearms themselves,” but law enforcement in routine interactions with the public may, “when faced with a civilian openly carrying, be quicker to draw their own firearms out of self- preservation,” likely leading to more shootings.25 24 Appellees’ Pet. for Rehearing En Banc at 17, ECF No. 155. 25 State of Hawaii Amicus Brief 9 (emphasis in original). 14 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 25 of 35 In upholding a Maryland statute conditioning public carry “on having [a] ‘good and substantial reason,’” the Fourth Circuit cited evidence from law enforcement officials indicating that a higher incidence of individuals being armed in public would increase the likelihood of violent encounters between civilians and law enforcement.26 Indeed, a recent empirical study found that the rate of fatal police shootings in states with a high gun ownership rate was 3.6 times greater than in states with a low rate of gun ownership.27 Second, there are risks inherent in “the presence of a third person with a handgun during a confrontation between a police officer and a criminal suspect[.]” Gould, 907 F.3d at 675 (citing Woollard, 712 F.3d at 879-80). The Gould court acknowledged Massachusetts’ “credible concern that civilians . . . might miss when attempting to use a firearm for self-defense on crowded public streets and, thus, create a deadly risk to innocent bystanders.”28 Similarly, the Woollard court accepted Maryland’s 26 Declaration of Terrence B. Sheridan, Superintendent of the Maryland State Police, Joint Appendix at 119, Woollard, 712 F.3d 865 (“Sheridan Decl.”). 27 David Hemenway et al., Variation in Rates of Fatal Police Shootings across US States: the Role of Firearm Availability, 96 J. URB. HEALTH 63 (Feb. 2019). 28 907 F.3d at 675 (citing Bernard D. Rostker et al., RAND Ctr. on Quality Policing, Evaluation of the New York City Police Department 15 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 26 of 35 determination that lax public carry laws risk increasing confusion and “potentially tragic consequences” during confrontations with suspects due to the presence of armed third parties. 712 F.3d at 879-80; see also Declaration of Andrew Lunetta, Deputy Inspector, New York City Police Department, Joint Appendix at 547, Kachalsky, 701 F.3d 81 (stating that the increased prevalence of armed individuals makes it “more difficult for police officers to distinguish between lawful and unlawful possession,” and “more dangerous . . . to deal with situations where they have reason to believe that concealed handguns are present”). These concerns are compounded in states with permissive open-carry regimes, where law enforcement must grapple with disproportionate and near-impossible burdens on a regular basis—with predictably deadly consequences. Not only does open carry strain limited law enforcement resources and effectively foreclose preventative or even timely responses to gun violence, it also impedes police response in high-risk situations by forcing them to decipher which openly armed individual is in fact an active threat. As a high-ranking Texas police officer explained, “[w]hen you have Firearm Training and Firearm-Discharge Review Process 14 (2008) (reporting that even trained NYPD officers had an “average hit rate [of] 18 percent for gunfights”)). 16 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 27 of 35 all these people running around with guns and rifles, you don’t know who the bad guy is.”29 By definition, permissive open carry eviscerates the ability of the public and law enforcement to distinguish between credible threats and the “legal” carry of firearms in public.30 “Open carry” means that civilians and police must decipher the mental state, physical demeanor, and subjective intent of every person they see carrying firearms. Therefore, law enforcement is put in the untenable position of deciding whether someone is engaging in “open carry” or “homicidal carry”31—especially when the former can transform into the latter by the mere pull of a trigger. 29 Martin Kaste, Gun Carry Laws Can Complicate Police Interactions, NPR (July 19, 2016), https://www.npr.org/2016/07/19/486453816/open- carry-concealed-carry-gun-permits-add-to-police-nervousness. 30 Emily Schultheis, Dallas Mayor on “One of the Real Issues” with Guns, CBS NEWS (July 10, 2016), https://www.cbsnews.com/news/dallas- mayor-talks-one-of-the-real-issues-with-gun-rights/ (quoting Dallas Mayor as saying that “open carry gun laws made it difficult for police to tell . . . who was a suspect and who wasn’t. . . . ‘When you have gunfire going on, you usually go with the person that’s got a gun.’”). 31 Francis Wilkinson, The Dangerous Theater of Open Carry, PITTSBURGH POST-GAZETTE (Sept. 3, 2019), https://www.post- gazette.com/opinion/Op-Ed/2019/09/03/Francis-Wilkinson-The-dangerous- theater-of-open-carry/stories/201909030019. 17 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 28 of 35 For example, in 2015, a Colorado man lawfully “open-carrying” a rifle in public killed three people before police neutralized him.32 Before the attack, an alarmed neighbor called 911 and reported that the man was walking with a rifle, but the 911 dispatcher responded that open carry was legal, and the call was deemed not urgent. Only after the would-be assailant opened fire did the witness call back and receive an emergency response. Nor was the dispatcher’s response necessarily improper—once public carry becomes the norm, dispatchers must make snap and necessarily subjective judgments of urgency and relative priorities to allocate scarce emergency resources. As Colorado police chiefs explained after the shooting, “calls related to weapons being carried openly . . . often leav[e] dispatchers in a difficult spot.”33 32 Corey Hutchins, In Colorado Springs, Dispatcher Brushed Off Reports of a Man with a Gun, Witness Says, WASH. POST (Nov. 3, 2015), https://washingtonpost.com/new/post-nation/wp/2015/11/03/in-colorado- springs-dispatcher-brushed-off-reports-of-a-man-with-a-gun/. 33 Id. 18 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 29 of 35 B. Non-Discretionary Carry Licensing Schemes Would Further Increase the Risks to the Lives of Law Enforcement Personnel As the fatal January 2020 shooting of two Honolulu police officers demonstrates,34 the risk of gun violence falls significantly on law enforcement personnel. This risk is not unique to Hawaii law enforcement. As Dallas County Sheriff Lupe Valdez noted, “[i]n the past decade, over 500 police officers have been killed in the line of duty by guns,” including the five Dallas police officers killed in the deadliest attack on police since 9/11.35 In Maryland, “[o]f the 158 [ ] law enforcement officers who have died in the line of duty from non-vehicular, non-natural causes, . . . 83.5% died as a result of intentional gunfire, usually from a handgun.”36 34 Allison Schaefers, Honolulu LEO Killed in Ambush Remembered as ‘Rock’ of Community, THE HONOLULU STAR-ADVERTISER (Mar. 9, 2020), https://www.policeone.com/police-heroes/articles/honolulu-leo-killed-in- ambush-remembered-as-rock-of-community-fNO3LHrrhrOKzcKM/. 35 Lupe Valdez, Dallas County Sheriff, Our Police Officers Need Protection From Gun Violence Too, THE HILL (May 17, 2017), http://thehill.com/blogs/pundits-blog/civil-rights/333819-our-police-officers- need-protection-from-gun-violence-too. 36 Sheridan Decl. at ¶ 9. 19 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 30 of 35 “[L]aw enforcement’s ability to protect themselves” is actively undermined by non-discretionary permitting.37 Officers in high-gun- ownership states are three times as likely to be killed compared to those in low-gun-ownership states.38 Non-discretionary permitting of weapons like handguns, for example, poses grave risks to officers. “[D]ue to their small size, light weight, and concealability, . . . [handguns can] be placed in the glove boxes of cars and stowed under car seats in ways that retain their ready accessibility, making them more of a threat for officers conducting traffic stops.”39 Terrence B. Sheridan, Superintendent of the Maryland State Police, has stated that “[i]f the MSP were required to issue handgun wear and carry permits to individuals without a good and substantial reason to carry, State Troopers 37 Br. of the Brady Center to Prevent Gun Violence, Ceasefire NJ, International Brotherhood of Police Officers, Major Cities Chiefs et al. as Amici Curiae at 25, Drake v. Filko, 724 F.3d 426. 38 David I. Swedler et al., Firearm Prevalence and Homicides of Law Enforcement Officers in the United States, 105 AM. J. PUB. HEALTH 2042, 2047 (Oct. 2015). 39 Decl. of James W. Johnson, Chief of the Baltimore County Police Department, Joint Appendix, Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), at ¶ 4; see also supra Part I.D. 20 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 31 of 35 would be in greater danger because they would encounter more armed individuals,” presumably with handguns.40 Similarly, lax open carry laws imperil officers on the front lines by creating confusion and delay in high-risk situations. The 2016 Dallas police officer shooting tragically demonstrated this reality, when law enforcement struggled to distinguish between people legally carrying guns openly and the gunman attacking the police.41 After the attack, Dallas Police Chief David Brown acknowledged the dangers of open carry to police, and called upon lawmakers to do their job: “We’re doing ours . . . [w]e’re putting our lives on the line. The other aspects of government need to step up and help us.”42 Licensing laws such as Hawaii’s do just that: they directly address these dangers by ensuring that only suitable individuals who show a “substantial need” may carry a firearm in public, and are thus critical to protecting officers’ lives. 40 Sheridan Decl. at ¶ 16. 41 Molly Hennessey-Fiske, Dallas Police Chief: Open Carry Makes Things Confusing During Mass Shootings, LOS ANGELES TIMES, (July 11, 2016), https://lat.ms/2GpxGUw. 42 Id. 21 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 32 of 35 C. The Empirical Evidence Demonstrates That Non- Discretionary Carry Licensing Laws Would Result in Increased Gun Violence There is significant support for law enforcement’s concerns that non- discretionary licensing regimes contribute to increased violence.43 A New York Coroner’s Office study, in 1911, noted a drastic decline in homicides and suicides shortly after the introduction of New York’s Sullivan Law, which made it unlawful to possess concealable firearms without a license. Kachalsky, 701 F.3d at 84. Kachalsky acknowledged that such evidence “has served as the basis for other states’ handgun regulations . . . .”44 A March 2019 study, examining the relationship between state firearm laws and overall homicide and suicide rates, found that non-discretionary 43 Michael Siegel et al., supra note 16 at 1927-29; John Donohue, supra note 16 at 63-65; see also Arlin James Benjamin Jr. et al., The Weapons Priming Effect, 12 CURRENT OPINION IN PSYCHOL. 45-48 (2016) (concluding that the presence of guns can prime people to behave more aggressively). 44 Kachalsky, at 98 (citing Piszczatoski v. Filko, 840 F. Supp. 2d 813, 835-36 (D.N.J. 2012); Richards v. Cty. of Yolo, 821 F. Supp. 2d 1169, 1172 (E.D. Cal. 2011). See also Gould, 907 F.3d at 675 (1st Cir. 2018) (accepting Massachusetts’ legislators’ findings that “more restrictive licensing schemes for the public carriage of firearms experience significantly lower rates of gun-related homicides and other violent crimes” and that “gun owners are more likely to be the victims of gun violence when they carry their weapons in public”) (internal citations omitted). 22 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 33 of 35 licensing laws were associated with a 9% increase in homicide.45 Another 2018 study determined that “[c]ounties in states with RTC [(‘right-to- carry’)] laws experienced a 4% increase in firearm homicide relative to counties in states with more restrictions on the issuance of concealed carry weapons permits.”46 Finally, a well-known study found not only that right-to-carry laws are associated with higher violent crime rates, but also that the size of the deleterious effects increases over time.47 A decade after the adoption of right-to-carry laws, the study found that violent crime was estimated to be 13 to 15 percent higher than it would have been absent such laws.48 45 Siegel et al., The Impact of State Firearm Laws on Homicide and Suicide Deaths in the USA, 1991-2016: A Panel Study, 34 J. GEN. INTERNAL MED. 2021, 2024 (2019), https://link.springer.com/article/10.1007/s11606- 019-04922-x. 46 Cassandra K. Crifasi et al., Association Between Firearm Laws & Homicide in Urban Counties, 95 J. URB. HEALTH 383 (2018), available at https://doi.org/10.1007/s11524-018-0273-3. 47 Donohue, supra note 16 at 63-65; see also Abhay Aneja et al., The Impact of Right to Carry Laws and the NRC Report: The Latest Lessons for the Empirical Evaluation of Law and Policy 80-81 (Nat’l Bureau of Econ. Research Working Paper No. 18294, 2014) (determining that right-to-carry laws lead to an increase in aggravated assaults, rapes, and robberies). 48 Id. 23 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 34 of 35 Conclusion PAGV respectfully asks this Court to affirm the district court’s opinion and to uphold Hawaii’s common-sense requirement of a “substantial need” for publicly carrying firearms. Licensing regimes that vest discretion in local and state authorities are fully consistent with the Second Amendment, effectuate the government’s duty to promote public safety, and reflect the will of the public responsible for electing such officials. Respectfully submitted, /s/ Antonio J. Perez-Marques ANTONIO J. PEREZ-MARQUES SUSHILA RAO PENTAPATI VICTOR OBASAJU KOREY BOEHM THOMAS DEC DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 antonio.perez@davispolk.com Attorney for Amicus Curiae Prosecutors Against Gun Violence June 4, 2020 24 Case: 12-17808, 06/04/2020, ID: 11711527, DktEntry: 244, Page 35 of 35 Certificate of Compliance This brief complies with the type-volume limitation of Ninth Circuit Local Rule 32(a)(7)(B) and Ninth Circuit Local Rule 29(a)(5) because this brief contains 4,980 words, excluding the parts of the brief exempted by Ninth Circuit Local Rule 32(f). This brief is an amicus brief and complies with the word limit of 5,000 words set by the Court’s order dated April 30, 2020 for such briefs. This brief complies with the typeface requirements of Ninth Circuit Local Rule 32(a)(5) and the type style requirements of Ninth Circuit Local Rule 32(a)(6) because this brief has been prepared in a proportionally spaced typeface, 14-point Times New Roman font, using Microsoft Word 2016. /s/ Antonio J. Perez-Marques ANTONIO J. PEREZ-MARQUES DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 antonio.perez@davispolk.com June 4, 2020 25
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