Teter combined 28j and response.pdf -

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(1 of 5) Case: 20-15948, 12/11/2020, ID: 11924306, DktEntry: 42-1, Page 1 of 2 DAVID Y. IGE CLARE E. CONNORS GOVERNOR ATTORNEY GENERAL DANA O. VIOLA FIRST DEPUTY ATTORNEY GENERAL STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL 425 QUEEN STREET HONOLULU, HAWAII 96813 (808) 586-1360 December 11, 2020 Via CM/ECF system Molly C. Dwyer Clerk of the Court U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Re: Teter v. Connors, No. 20-15948 FRAP Rule 28(j) Letter Dear Ms. Dwyer: Defendants-Appellees CLARE E. CONNORS and AL CUMMINGS submit this Federal Rules of Appellate Procedure Rule 28(j) letter for the above-entitled case, notifying this Court of the following authority that came to Defendants’ attention after the Answering Brief was submitted in this case on October 20, 2020. The Appeals Court of Massachusetts entered a decision in Commonwealth v. Cosme, No. 19-P-1732, 2020 WL 7134833, at *2 (Mass. App. Ct. Dec. 7, 2020), holding that “double-edged knives are ‘dangerous and unusual weapons’ not subject to Second Amendment protections.” This supports the argument on pages 5, 12-20 of the Answering Brief that butterfly knives are dangerous and unusual weapons that do not fall under the protection of the Second Amendment. The Cosme decision also states that “the statute is not facially unconstitutional where it is not an impermissible blanket restriction on all knives[.]” Id. at *2 n.8. This supports the argument on pages 7, 8, 27, and 34 of the Answering Brief that Haw. Rev. Stat. § 134-53 does not ban all knives. (2 of 5) Case: 20-15948, 12/11/2020, ID: 11924306, DktEntry: 42-1, Page 2 of 2 Molly C. Dwyer, Clerk of the Court December 11, 2020 Page 2 A copy of the decision is attached for the Court’s convenience. Sincerely, s/ Robert T. Nakatsuji ROBERT T. NAKATSUJI First Deputy Solicitor General Attorney for Defendants-Appellees CLARE E. CONNORS and AL CUMMINGS Attachment cc: Counsel for all participants (via CM/ECF system) (3 of 5) Case: 20-15948, 12/11/2020, ID: 11924306, DktEntry: 42-2, Page 1 of 3 Commonwealth v. Cosme, Slip Copy (2020) 2020 WL 7134833 Motion to suppress. In reviewing the denial of a motion to Unpublished Disposition suppress, we accept the motion judge’s “subsidiary Only the Westlaw citation is currently available. findings of fact absent clear error ‘but conduct an NOTE: THIS OPINION WILL NOT APPEAR IN A independent review of his ultimate findings and PRINTED VOLUME. THE DISPOSITION WILL conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. APPEAR IN THE REPORTER. 642, 646 (2004), quoting Commonwealth v. Jimenez, NOTICE: Summary decisions issued by the Appeals 438 Mass. 213, 218 (2002).2 Court pursuant to M.A.C. Rule 23.0, as appearing in 2 97 Mass. App. Ct. 1017 (2020) (formerly known as The defendant does not object to any of the rule 1:28, as amended by 73 Mass. App. Ct. 1001 motion judge’s findings of fact, but contends that [2009] ), are primarily directed to the parties and, neither the exit order nor the ensuing patfrisk was therefore, may not fully address the facts of the case justified as a matter of law. or the panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that Our review finds no error in the motion judge’s denial of decided the case. A summary decision pursuant to the defendant’s motion to suppress because both the exit rule 23.0 or rule 1:28 issued after February 25, order and patfrisk were justified, for the reasons that 2008, may be cited for its persuasive value but, follow. because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. Exit order. An exit order may be justified by a police App. Ct. 258, 260 n.4 (2008). officer’s “reasonable suspicion (based on articulable Appeals Court of Massachusetts. facts) that the defendant was engaged in criminal COMMONWEALTH of Massachusetts activity.” Commonwealth v. Cruz, 459 Mass. 459, 466 v. (2011). Where the exit order stems from information David COSME. provided via a police broadcast, the Commonwealth must establish “both the indicia of reliability of the transmitted 19-P-1732 information and the particularity of the description of the | motor vehicle.” Commonwealth v. Lopes, 455 Mass. Entered: December 7, 2020 147, 155 (2009). By the Court (Green, C.J., Desmond & Lemire, JJ.1) In the present case, an identified caller reported to the 1 The panelists are listed in order of seniority. police that a male with a red Jeep Cherokee was shooting a rifle at a target at a public boat ramp parking lot, with bystanders nearby, in the middle of the day.3 Upon arriving shortly thereafter, the police officers’ own observations corroborated the caller’s information: they found bystanders in the parking lot and, in a far corner, a red Jeep Cherokee with a male occupant. The defendant’s vehicle was the only Jeep Cherokee in the lot, and the only other vehicle in the lot belonged to the two bystanders.4 In light of these facts, we conclude that the MEMORANDUM AND ORDER PURSUANT TO identified caller’s description of the make, model, color, RULE 23.0 location, and occupant of the vehicle was sufficiently particular to identify the defendant’s vehicle as the subject *1 On appeal from his convictions of various charges of the call, and sufficiently corroborated the caller’s pursuant to a conditional plea, the defendant challenges report to support its veracity. See Lopes, 455 Mass. at the denial of his motion to suppress evidence seized 156-159. We agree with the motion judge that the exit following an exit order, warrantless patfrisk, and search of order was justified by reasonable suspicion that the his vehicle, and the denial of his motion to dismiss six defendant had engaged in criminal conduct.5 charges for possession of various double-edged knives, 3 arguing that the governing statute is unconstitutional. We This behavior implicates a number of possible affirm. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 ATTACHMENT (4 of 5) Case: 20-15948, 12/11/2020, ID: 11924306, DktEntry: 42-2, Page 2 of 3 Commonwealth v. Cosme, Slip Copy (2020) crimes. See, e.g., G. L. c. 269, § 12E (discharging The defendant argues that he is in the same position as the improperly patfrisked motorist in Torres-Pagan: firearm near building in use); G. L. c. 131, § cooperative, in full view, and not visibly armed. See id. at 58 (discharging firearm near highway; possession 39-41 (patfrisk after stop for cracked windshield and of loaded firearm near dwelling in use). expired registration not justified). Those facts may distinguish this case from others where the defendant resisted, moved furtively, or was observed to be carrying 4 The bystanders were questioned by the officers a weapon. See, e.g., Commonwealth v. Edwards, 476 prior to approaching the defendant, though the Mass. 341, 348 (2017); Commonwealth v. Goewey, results of that initial questioning are not in the 452 Mass. 399, 407 (2008). But here the Commonwealth record. One of the bystanders later indicated that did not seek to justify the patfrisk on those bases, nor did the defendant was the individual who had been the motion judge base his ruling on them. Instead, the firing the rifle. patfrisk was justified by the specific, corroborated details of the criminal conduct that was reported -- conduct that necessarily requires being armed and dangerous. See 5 Commonwealth v. Doocey, 56 Mass. App. Ct. 550, The serious nature of the reported crime (firearm 558 (2002) (stop and frisk justified by heightened danger being discharged in public) also weighs in favor stemming from report of firearm discharge). of the order being proper. See Commonwealth v. Depina, 456 Mass. 238, Motion to dismiss. The defendant additionally argues that 247 (2010). the motion judge erred in denying his motion to dismiss six charges for unlawful possession of a double-edged knife because the relevant statute, G. L. c. 269, § 10 *2 Furthermore, the exit order was also independently (b), is unconstitutional under the Second Amendment to justified by objectively reasonable safety concerns. The the United States Constitution.7 There was no error in same facts that established reasonable suspicion of denying the motion, because as the motion judge correctly criminal activity -- the credible report of a firearm being found, double-edged knives are “dangerous and unusual discharged in public near bystanders -- likewise weapons” not subject to Second Amendment protections.8 established the reasonableness of the responding officers’ See Commonwealth v. Powell, 459 Mass. 572, 584 belief “that the safety of the police or that of other persons (2011); District of Columbia v. Heller, 554 U.S. 570, was in danger.’ ” Cruz, 459 Mass. at 466, quoting 625-626 (2008). Commonwealth v. Gonsalves, 429 Mass. 658, 661 7 (1999). General Laws c. 269, § 10 (b), criminalizes possession of certain weapons, including double- Patfrisk. Justification of the ensuing patfrisk of the edged knives, “except as provided by law.” defendant6 requires showing “a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous.” Commonwealth v. Torres-Pagan, 8 484 Mass. 34, 39 (2020). Although this is a higher bar Even if that were not so, the statute is not facially than the showing required for an exit order, see id. at 38- unconstitutional where it is not an impermissible 39, the motion judge was correct in finding it met here. blanket restriction on all knives, and allows for The credible report of a firearm being discharged in a specific exceptions. See Ramirez v. public place, including specific details tying the shooting Commonwealth, 479 Mass. 331, 341-342 (2018). to the defendant’s vehicle, provided an articulable factual basis for the officer’s reasonable suspicion that the defendant was armed and dangerous. See id. Judgments affirmed. 6 On the defendant’s person, the officers discovered a double-edged knife, a metal ruler sharpened into All Citations a double-edged weapon, and an improvised electronic device with an on/off switch. Slip Copy, 2020 WL 7134833 (Table) © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 ATTACHMENT (5 of 5) Case: 20-15948, 12/11/2020, ID: 11924306, DktEntry: 42-2, Page 3 of 3 Commonwealth v. Cosme, Slip Copy (2020) End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 ATTACHMENT Case: 20-15948, 12/14/2020, ID: 11925357, DktEntry: 43, Page 1 of 3 Stamboulieh Law, PLLC P.O. Box 428, Olive Branch, MS 38654 | (601) 852-3440 | [email protected] December 14, 2020 Ms. Molly C. Dwyer, Clerk U.S. Court of Appeals for the Ninth Circuit 95 7th Street San Francisco, CA 94103 Re: Teter, et al. v. Connors, et al.; No. 20-15948 Dear Ms. Dwyer: Appellants write the Court to respond to Appellees’ Rule 28(j) letter filed on December 11, 2020. Appellees cite to an unpublished Appeals Court of Massachusetts decision that contains zero analysis of “dangerous and unusual”. See Commonwealth v. Cosme, 99 Mass. App. Ct. 1101 (2020) (unpublished). Cosme cites to two cases which were available to Appellees during the briefing stage, but Appellees failed to cite to either: Ramirez v. Commonwealth, 479 Mass. 331, 94 N.E.3d 809 (2018) and Commonwealth v. Powell, 459 Mass. 572, 946 N.E.2d 114 (2011). Appellants cited to Ramirez on pp. 26-27 of the Opening Brief for the proposition that it supports Appellants’ argument that Hawaii’s butterfly ban is a categorical ban. The court’s entire “analysis” in Cosme regarding dangerous and unusual is as follows: “There was no error in denying the motion, because as the motion judge correctly found, double-edged knives are ‘dangerous and unusual weapons’ not subject to Second Amendment protections. Cosme, 99 Mass. App. Ct. at *4. Cosme isn’t even a case about butterfly knives. Cosme cites to Powell which does not even discuss butterfly knives, much less hold butterfly knives unprotected by the Second Amendment.1 In Cosme, the court also stated, in a footnote, that “it is not an impermissible ban on all knives, and allows for specific exceptions.” Whatever the exceptions are in Massachusetts’ law, Hawaii flat out bans butterfly knives with no relevant exceptions. 1 Butterfly knives do not even appear to be banned in Massachusetts. See Mass. Ann. Laws ch. 269, § 10. Case: 20-15948, 12/14/2020, ID: 11925357, DktEntry: 43, Page 2 of 3 See Opening Brief, p. 4 (H.R.S. § 134-53). Additionally, Appellants have not asked for a double-edged knife. Both Appellants just want to own a legal butterfly knife. See ER134-ER137; ER153-ER154. And neither are prohibited persons. Id. Notwithstanding Cosme, this Court is bound by the dangerous and unusual holding found in United States v. Henry, 688 F.3d 637 (9th Cir. 2012) and briefed on pp. 9-10 of the Opening Brief and p. 4 of the Reply Brief. Yours very truly, /s/ Stephen D. Stamboulieh Stephen D. Stamboulieh Case: 20-15948, 12/14/2020, ID: 11925357, DktEntry: 43, Page 3 of 3 CERTIFICATE OF SERVICE On this, the 14th day of December 2020, I served the foregoing by electronically filing it with the Court’s CM/ECF system which generated a Notice of Filing and effects service upon counsel for all parties in the case. I certify that this supplement has 333 words as calculated by Microsoft Office 365. I declare under penalty of perjury that the foregoing is true and correct. Executed this the 14th day of December, 2020. s/ Stephen D. Stamboulieh