NO. 2014-01
IN THE
SUPREME COURT OF THE UNITED STATES
SPRING TERM 2014
CITY OF NEW OLYMPIA,
Petitioner, v.
BUD SOMERVILLE,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WIGMORE
BRIEF FOR THE PETITIONER
NORTHWESTERN UNIVERSITY SCHOOL OF LAW
JULIUS H. MINER MOOT COURT COMPETITION
ATTORNEYS FOR THE PETITIONER:
TEAM 26
ii
QUESTIONS PRESENTED
I. Whether the core Second Amendment right to bear arms extends beyond the home, and if
not, to what extent the government may enact legislation restricting the ancillary right of
carrying firearms in public.
II. Whether the discovery of an outstanding arrest warrant is a sufficient intervening
circumstance to purge the taint of an illegal stop and allow for the use of evidence found
pursuant to the legal arrest and subsequent search.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................................... ii TABLE OF CONTENTS ............................................................................................................... iii TABLE OF AUTHORITIES ......................................................................................................... iv OPINIONS BELOW ....................................................................................................................... 1 STATEMENT OF THE CASE ....................................................................................................... 1 SUMMARY OF THE ARGUMENT ............................................................................................. 3 ARGUMENT .................................................................................................................................. 5
I. NEW OLYMPIA MUNICIPAL CODE 8-24-17 SUBSTANTIALLY RELATES TO THE IMPORTANT INTEREST OF SAFETY AND DOES NOT VIOLATE THE SECOND AMENDMENT........................................................................................................................... 5
A. The two-part approach in Marzzarella is the proper test because it provides needed flexibility lacking in the categorical approach, which Heller’s progeny does not require. .... 6 B. New Olympia Municipal Code 8-24-17 does not implicate the core Second Amendment right and survives intermediate scrutiny by substantially relating to the important government aim of public safety. ............................................................................................ 8 1. The right to carry arms in public is ancillary to the core Second Amendment right of
self-defense in the home and is therefore subject to intermediate scrutiny. ............... 8 2. New Olympia Municipal Code 8-24-17 survives intermediate scrutiny because its
restrictions are substantially related to the important interest of public safety. ....... 11 II. THE DISCOVERY OF AN OUTSTANDING WARRANT IS AN INTERVENING CIRCUMSTANCE SUFFICIENT TO PURGE THE TAINT OF AN ILLEGAL STOP AND ALLOW FOR THE ADMISSION OF SEIZED EVIDENCE. ................................................ 13
A. The officer’s conduct was not undertaken consciously or with an investigative purpose, and does not rise to the level of purposeful and flagrant conduct. ....................................... 13 B. The importance of temporal proximity diminishes if the intervening circumstance is an arrest warrant. ....................................................................................................................... 14 C. The arrest warrant is an intervening circumstance because it was antecedent to the stop, inherently public, and necessitated by public policy considerations. . ................................. 15 1. Because the arrest warrant existed prior to the stop, the Respondent suffered no
infringement of his rights. ..................................................................................... 16 2. Since the arrest warrant could have been discovered using public information, it is
an intervening circumstance showing the attenuation between the illegal stop and the search. ............................................................................................................. 16
D. This Court should reverse the Supreme Court of Wigmore’s decision because it has undesirable public policy consequences and no effect on deterrence. .................................. 17
CONCLUSION ............................................................................................................................. 19
iv
TABLE OF AUTHORITIES
Cases
Atkins v. City of Chicago, 631 F.3d 823 (7th Cir. 2011). ....................................................... 15, 18
Brown v. Illinois, 422 U.S. 590 (1975) ................................................................................... 13, 14
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) ............................................... 12
City of New Olympia v. Somerville, 496 N.E.3d 12 (Wig. 2013). ......................................... passim
City of New Olympia v. Somerville, No. 2013-CM-0967 (Wig. Cir. Ct. Sept. 27, 2013). ..... passim
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) ................................................. 12
District of Columbia v. Heller, 554 U.S. 595 (2008) .............................................................. 5, 8, 9
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ................................................................ 10
Heller v. Dist. of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) ........................................................ 6
Hill v. Colorado, 530 U.S. 703 (2000) ......................................................................................... 12
Hudson v. Michigan, 547 U.S. 586 (2006) ............................................................................. 18, 19
Johnson v. California, 543 U.S. 499 (2005). ................................................................................ 11
Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2012). .................................................... 6, 10, 11
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). .................................................................. 5
Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)................................................................. 7, 9, 11
Mugler v. Kansas, 8 S. Ct. 273 (1887) ......................................................................................... 11
Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d
185 (5th Cir. 2012) ...................................................................................................................... 6
New York v. Class, 475 U.S. 106 (1986) ...................................................................................... 16
People v. Brendlin, 195 P.3d 1074 (Cal. 2008) ............................................................................ 18
People v. Tomlins, 107 N.E. 496 (N.Y. 1914) .............................................................................. 10
v
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992) .................................... 11
Reed v. State, 809 S.W.2d 940 (Tex. Ct. App. 1991) ................................................................... 17
State v. Mazuca, 375 S.W.3d 294 (Tex. Crim. App. 2012), cert denied, 133 S. Ct. 1724 (2013) 15
United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) ................................................................ 6
United States v. Ellison, 462 F.3d 557 (6th Cir. 2006) ................................................................. 16
United States v. Green, 111 F.3d 515 (7th Cir. 1997) ............................................................ 14, 17
United States v. Johnson, 383 F.3d 538 (7th Cir. 2007) ............................................................... 14
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). ............................................. 5, 7, 10, 11
United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) ....................................................... 10
United States v. Simpson, 439 F.3d 490 (8th Cir. 2006) ............................................................... 13
Wong Sun v. United States, 371 U.S. 471 (1963) ................................................................... 13, 16
Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) cert. denied, 134 S. Ct. 422 (U.S. 2013) . 10
Statutes
New Olympia Municipal Code 8-24-17(a) ................................................................................... 12
Wigmore State Statute 720 WCS 550/4.......................................................................................... 3
Other Authorities
Darrell A.H. Miller, Guns As Smut: Defending the Home-Bound Second Amendment, 109
Colum. L. Rev. 1278 (2009) ................................................................................................. 9, 10
Gary L. McDowell, High Crimes & Misdemeanors: Recovering the Intent of the Founders, 67
Geo. Wash. L. Rev. 626 (1999) .................................................................................................. 9
Joseph Blocher, Firearm Localism, 123 Yale L.J. 82 (2013) ......................................................... 7
vi
Treatises
TIMOTHY A. BAUGHMAN, GILLESPIE MICH. CRIM. L. & PROC. SEARCH & SEIZ., § 6:7 (2d ed.
2013). ........................................................................................................................................ 18
Constitutional Provisions
U.S. CONST. amend. II. ................................................................................................................... 5
1
OPINIONS BELOW
The opinion of the Circuit Court of the Tenth Judicial Circuit for the State of Wigmore is
reported at City of New Olympia v. Somerville, No. 2013-CM-0967 (Wig. Cir. Ct. Sept. 27,
2013).
The opinion of the Supreme Court of Wigmore is reported at City of New Olympia v.
Somerville, 496 N.E.3d 12 (Wig. 2013).
STATEMENT OF THE CASE
Once a bucolic college town, the City of New Olympia (the City) has experienced
substantial population growth in recent years. City of New Olympia v. Somerville, No. 2013-
CM-0967, at 4 (Wig. Cir. Ct. Sept. 27, 2013). An unfortunate reality accompanying this
expansion has been a concomitant increase in gun violence. Id. During the summer of 2012,
gun violence reached record levels, with an average of two gun murders per day. Id. In a
population of only 120,000, nearly three hundred lives were lost that single summer. Id. The
City responded to public outrage after this devastating loss of life with an ordinance designed to
staunch the increasing rate of violence. Id. City councilors consulted a study that showed a
statistically significant increase in gun violence during the summer for each of the preceding five
years. Id. at 5.
The resulting ordinance was New Olympia Municipal Code 8-24-17 (the Firearm
Ordinance), id. at 4, which makes it unlawful for a person to possess or carry a firearm outside of
one’s home or business property within the City limits between June 21 and September 21, New
Olympia Municipal Code 8-24-17(a). Furthermore, any firearms transported by motor vehicle
during this time period must be rendered inoperable and stored in a vehicle’s trunk or truck bed;
a driver is irrebuttably presumed to have possessed the firearm in violation of the ordinance if an
2
operable firearm is found anywhere in the vehicle or if found in the passenger compartment. 8-
24-17(b). After the ordinance was passed, gun violence fell to a ten year low. Somerville, No.
2013-CM-0967, at 5. During the summer of 2013, gun murders decreased by more than 75%
from the prior year to sixty-three killings. Id.
On July 4, 2013, Officer Apolo Ohno was on duty with the City of New Olympia Police
Department and driving in the right lane of a road near Putin Park. Id. Officer Ohno has served
the City for ten years and has not received a single citizen complaint in his decade of service on
the force. The Respondent, Bud Somerville, was also driving near Putin Park to his annual
Independence Day gathering, where he planned to drink alcohol and clean his guns. Id.
However, there was an outstanding arrest warrant against the Respondent from a failure to
appear in court. Id. at 6. Earlier that year, he had attempted to incite a fiddle riot in front of a
police station as part of a demonstration and received a ticket for his conduct. Id. The
Respondent had also failed to pay attention to local news and was evidently unaware of the
City’s seasonal ban on gun possession. Id. at 5. Officer Ohno noticed the Respondent’s vehicle,
a teal Subaru, and a juxtaposed bright yellow bumper sticker that read “Folk the Police” on the
back of the car. Id. Officer Ohno was offended and angered by the sticker, and without thinking
twice, turned on his lights and siren and pulled over the Respondent. Id.
Officer Ohno approached the Respondent’s vehicle and asked for his license and
registration. Id. at 6. The Respondent told Officer Ohno he had been driving at sixty-three miles
per hour, two miles per hour below the legal limit, and was on his way to Putin Park to celebrate
Independence Day. Id. After returning to his vehicle with the Respondent’s information, Officer
Ohno was informed of the outstanding warrant for the Respondent’s arrest by the dispatcher. Id.
3
Officer Ohno returned to the Respondent’s vehicle and informed him he would be taken to the
police station after a search of his car. Id.
The Respondent complied with Officer Ohno’s request to put his hands on the steering
wheel. Id. Officer Ohno opened the rear driver-side door and found three fiddle cases. Id. The
officer moved the cases aside and discovered a bag of marijuana and a loaded pistol. Id. Both
items were placed in evidence bags. When asked why he was carrying a loaded gun, the
Respondent stated it was his Second Amendment right. Id. at 7. The officer handcuffed the
Respondent, escorted him to the police car, and drove him to the police station. Id. The
Respondent was charged with violating the Firearm Ordinance and Wigmore State Statute 720
WCS 550/4 for possession of marijuana. Id.
SUMMARY OF THE ARGUMENT
This Court should vacate the Supreme Court of Wigmore’s decision as to Respondent’s
motion to dismiss the 8-25-17(a) violation and motion to suppress evidence related to the 720
WCS 550/4 violation for marijuana possession.
The lower court erred in assessing the constitutionality of the Firearm Ordinance.
Although the court correctly found the Marzzarella test should be used, it did not apply it
properly. The first prong of the test requires defining the core Second Amendment right, and the
court erroneously held that the core protection extends beyond the home to carrying firearms in
public. This conclusion extrapolates too much from Heller and ignores countervailing historical
arguments. Furthermore, this conflicts with Heller’s analogy of gun possession rights to First
Amendment doctrine, which distinguishes between the home and public domain by invoking
differing levels of scrutiny. Carrying firearms in public is therefore ancillary to the core right
found in the home.
4
Due to the court’s incorrect definition of the core Second Amendment right, it also erred
in applying strict scrutiny. Because intermediate scrutiny is the proper test for regulations that
implicate ancillary rights, the disputed statute need only advance an important government
interest through substantially related means. This ordinance was passed in furtherance of public
safety, a governmental interest widely recognized as important. The restriction on carrying
firearms in public is substantially related to this objective by only covering a time of year
statistically linked to gun violence by an academic study. The ordinance is also analogous to
time, place, or manner restrictions on free speech that have passed intermediate scrutiny. Thus,
the Firearm Ordinance should be upheld as imposing a restraint substantially related to an
important government interest.
The evidence in this case should not be suppressed, as the presence of the valid arrest
warrant was sufficiently attenuated as to purge the evidence of the taint of the illegal stop. Three
factors are examined in the attenuation analysis: first, the purpose and flagrancy of the illegal
stop; second, the temporal proximity between the stop and discovery of the incriminating
evidence; and third, the presence of intervening circumstances. While the initial stop was illegal,
the conduct of the officer in question does not rise to the level of purposeful and flagrant
behavior. The officer acted suddenly and seemingly unconsciously, not with an investigatory
purpose or design. Although there was close temporal proximity between the stop and the
search, the importance of this factor is diminished because the Respondent’s consent was not
required to search the vehicle.
The lower court incorrectly held that the presence of a valid arrest warrant was not a
sufficient intervening circumstance. The legal and valid warrant for the Respondent’s arrest
existed before the illegal stop, meaning the Respondent had no right to be at large at the time of
5
the stop and search. Furthermore, the existence of the warrant could have been ascertained using
other means through which the Respondent would have no reasonable expectation of privacy.
Although the lower court argued that admission of the evidence would permit the police to stop
citizens and check for warrants without valid cause, the attenuation factors would serve as an
effective safeguard by prohibiting admission of such evidence. Suppressing the evidence is not
necessary to disincentivize police from stopping citizens to check for warrants for any reason, as
other deterrents already exist and civil suits provide a remedy for citizens whose Fourth
Amendment rights are infringed. Because the officer’s behavior was not purposeful and flagrant,
the temporal proximity is of diminished importance, and the presence of the valid arrest warrant
is an intervening circumstance in this case, the evidence was purged of the taint of the initial
illegal stop and should not be suppressed.
ARGUMENT
I. NEW OLYMPIA MUNICIPAL CODE 8-24-17 SUBSTANTIALLY RELATES TO THE IMPORTANT INTEREST OF SAFETY AND DOES NOT VIOLATE THE SECOND AMENDMENT.
This Court should reverse the Supreme Court of Wigmore and find the Firearm
Ordinance does not violate the Second Amendment. The Second Amendment protects the right
to “keep and bear arms.” U.S. CONST. amend. II. The scope of the Second Amendment right
was deemed to be individual in nature in District of Columbia v. Heller, 554 U.S. 595 (2008); it
has been incorporated against the states through the Fourteenth Amendment. McDonald v. City
of Chicago, 130 S. Ct. 3020, 3050 (2010).
Since Heller, most circuits have adopted the test from United States v. Marzzarella,
which examines whether the law imposes a burden in the scope of the Second Amendment’s
guarantee and, if so, determines its constitutionality based on the appropriate level of means-end
6
scrutiny. 614 F.3d 85, 89 (3d Cir. 2010). If the core Second Amendment right is implicated,
then strict scrutiny must be applied. Id. at 96–97. Conversely, if the burden is merely related to
the Second Amendment, intermediate scrutiny should be used. Id. While there has been
discussion of a “categorical test” relying exclusively on “text, history, and tradition” to
determine if a statute implicates a Second Amendment right without applying any means-ends
scrutiny, City of New Olympia v. Somerville, 496 N.E.3d 12, 13 (Wig. 2013), no circuit has
expressly endorsed this approach, See Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012) (noting the “two-step
inquiry has emerged as the prevailing approach” and while the Seventh Circuit has “eschew[ed]
the two-step framework,” it still applied intermediate scrutiny).
Although the lower court correctly held that the Marzzarella test applies to the Firearm
Ordinance, it erred in its application. The court incorrectly ruled that carrying arms in public is
part of the core Second Amendment right. As a result of this conclusion, the court then
inappropriately applied strict—instead of intermediate—scrutiny.
A. The two-part approach in Marzzarella is the proper test because it provides needed flexibility lacking in the categorical approach, which Heller’s progeny does not require.
In determining which test to endorse, this Court should consider how lower courts have
implemented Heller; the majority practice not only reflects prevailing institutional wisdom, but
also provides flexibility in evaluating laws along the continuum around the core Second
Amendment right. The Third, Fourth, Seventh, Ninth, Tenth, and D.C. Circuits have all formally
endorsed this test. United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013). Additionally,
the First, Second, and Seventh Circuits have applied intermediate scrutiny to their review of gun
control laws. Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 93–94 n.17 (2012). Since the
7
categorical approach eliminates all means-ends analysis, applying intermediate scrutiny is an
implicit rejection of this test. See Heller v. Dist. of Columbia, 670 F.3d 1244, 1273 (D.C. Cir.
2011) (Kavanaugh, J., dissenting) (noting the Court “made no mention of strict or intermediate
scrutiny”).
While the Seventh Circuit emphasized history in its application of Heller in Moore v.
Madigan, it did not expressly endorse the categorical approach, and parts of the opinion
contradicts such a conclusion. 702 F.3d 933 (7th Cir. 2012). For example, the discussion of
empirical support would be misplaced under a categorical approach. Id. at 938–39. The opinion
does state that “our analysis is not based on degrees of scrutiny,” but this excerpt must be
evaluated in context: that sentence concludes with “but on Illinois’s failure to justify the most
restrictive gun law of any of the 50 states.” Id. at 941. Another interpretation is that the court
would have rejected the law under any level of scrutiny due to the insufficient justifications
proffered by Illinois. This view comports with other language in the opinion indicating the state
failed to make a required “strong showing” that the ban was “vital to public safety.” Id. at 940.
Finally, the Marzzarella test has an advantage over the categorical approach by
considering text, history, and tradition in the “scope of right” component while allowing courts
to vary the level of scrutiny based on whether the core right is implicated. As Marzzarella noted,
strict scrutiny does not automatically apply when an enumerated right is at issue. 614 F.3d at 96.
Furthermore, permitting multiple levels of scrutiny recognizes that regulations may be on
different ends of the “spectrum” of proximity around the core right, id. at 97, while furthering the
federalist principle of affording more deference on a localized policy issue, see Joseph Blocher,
Firearm Localism, 123 Yale L.J. 82, 104 (2013) (noting the “geographic concentration” of
ideological differences on this issue).
8
B. New Olympia Municipal Code 8-24-17 does not implicate the core Second Amendment right and survives intermediate scrutiny by substantially relating to the important government aim of public safety.
Under Marzzarella, intermediate scrutiny is the appropriate standard of review for this
ordinance because carrying guns outside the home is not the core right protected by the Second
Amendment. A close review of Heller and its historical analysis indicates the core right is self-
defense in the home. Furthermore, New Olympia’s purpose in passing the ordinance was to
promote public safety: it was enacted after the summer of 2012 with record rates of gun violence.
Somerville, No. 2013-CM-0967, at 4. The Supreme Court of Wigmore also acknowledged the
importance of public safety. Somerville, 496 N.E.3d at 14. The City Council’s reliance on a
study finding a statistically significant increase in gun violence during summer months shows the
means chosen are substantially related. Somerville, No. 2013-CM-0967, at 5. Thus, the
ordinance passes constitutional muster.
1. The right to carry arms in public is ancillary to the core Second Amendment right of self-defense in the home and is therefore subject to intermediate scrutiny.
Heller should not be read as defining the precise contours of the Second Amendment, as
the question before the Court narrowly pertained to whether the right it confers is individual or
collective. 554 U.S. at 595. The vast majority of the opinion, forty-three pages, is a historical
analysis of the Second Amendment, with a focus on its prefatory clause1 and if it was intended to
restrict the right to the militia. See id. at 576–619. Furthermore, the Court framed both the
question before it and its holding around the home. Id. at 573 (“We consider whether a District
of Columbia prohibition on the possession of usable handguns in the home violates the Second
Amendment.”); id. at 635 (“[W]e hold that the District's ban on handgun possession in the home
1 “A well regulated Militia, being necessary to the security of a free State . . . .” U.S. CONST. amend. II.
9
violates the Second Amendment”). While Heller is integral to this analysis, it is inapposite to
read more into its holding to assess a distinct issue.
However, Heller does provide two crucial tools: historical analysis, see id. at 576–619
(discussing the history of the Second Amendment), and First Amendment parallels, see, e.g., id.
at 582 (using the First Amendment’s protection of modern communications to show that the
Second Amendment should not be interpreted to protect “only those arms in existence in the 18th
Century”); id. at 595 (indicating the First Amendment’s right of free speech is not unlimited).
First, the historical evidence supports a distinction between one’s home and the public
domain. Blackstone emphasized this by observing that gun possession for home defense was not
a crime, while publicly brandishing arms could be unlawful. Darrell A.H. Miller, Guns As Smut:
Defending the Home-Bound Second Amendment, 109 COLUM. L. REV. 1278, 1324 (2009).
Furthermore, Blackstone’s synopsis of the Statute of Northampton notes that being armed in
public is a crime against the public peace because doing so makes people nervous, a concern that
persists today. Moore, 702 F.3d at 944 (Williams, J., dissenting). This commentary is relevant
because Blackstone was a critical source of common law for the Constitution’s drafters. See
Gary L. McDowell, High Crimes & Misdemeanors: Recovering the Intent of the Founders, 67
GEO. WASH. L. REV. 626, 640 (1999).
Next, the First Amendment parallels in Heller are instructive in defining the Second
Amendment right to bear arms in public. For example, the Court described the need for self-
defense as “most acute” in home, Heller, 554 U.S at 571, which implies the right is subject to
varying degrees of protection depending upon where it is exercised. Such a position is well
established in First Amendment doctrine’s protection of obscenity in the home but not in the
10
public sphere, where competing values and counterweights (such as promoting the democratic
deliberation of ideas) result in fewer safeguards. Miller, supra, at 1307.
Similarly, while the right to keep arms at home may receive special protection, when
arms are brought into the public sphere, they must comport with competing values of a peaceable
society where citizens should not have to travel in fear. This is not a new construct due to the
long-standing history of gun regulation in public. See, e.g., Kachalsky, 701 F.3d at 96 (noting a
tradition which “clearly indicates a substantial role for state regulation of the carrying of firearms
in public”); Ezell v. City of Chicago, 651 F.3d 684, 705–06 & nn.13–14 (7th Cir. 2011)
(observing the existence of “time, place, and manner” regulations of firearms in public in the
eighteenth- and nineteenth-centuries).
The lower court’s argument that self-defense is of equal importance in public as the home
is an oversimplification. First, a historical analysis of self-defense does not support such a
sweeping statement. Self-defense was historically not recognized as a valid defense in England,
and defendants had to seek a pardon from the King. Miller, supra, at 1341. Furthermore, the
home has been recognized as a relevant consideration in self-defense. The “castle doctrine”
developed to address the question of whether a duty to retreat exists and established that it does
not when one is “assailed in [one’s] own dwelling.” Id. at 1343 (quoting People v. Tomlins, 107
N.E. 496, 497 (N.Y. 1914)).
Since the ordinance does not implicate a core Second Amendment right, intermediate
scrutiny must be applied. See, e.g., Marzzarella, 614 F.3d at 96–97 (describing the regulation in
Heller as being “at the far end of the spectrum” and therefore requiring strict scrutiny); United
States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (finding strict scrutiny applicable to
laws implicating the core Second Amendment right of self-defense in the home and intermediate
11
scrutiny applicable to those governing firearms outside the home). Even accepting the
proposition that some contradictory historical evidence exists would not require expanding the
core Second Amendment right, since it merely indicates the record is mixed. See Woollard v.
Gallagher, 712 F.3d 865, 876 (4th Cir. 2013), cert. denied, 134 S. Ct. 422 (U.S. 2013)
(describing the application of intermediate scrutiny to regulations of gun possession outside the
home as a “judicious course”).
2. New Olympia Municipal Code 8-24-17 survives intermediate scrutiny because its restrictions are substantially related to the important interest of public safety.
Under intermediate scrutiny, the government must prove that: (1) the law serves an
important governmental interest and (2) its restrictions are substantially related to achieving the
relevant objective. See Marzzarella, 614 F.3d at 97–98. The ordinance passes both hurdles by
advancing safety, an interest widely recognized as important, while employing a partial-year,
public carry ban substantially related to this goal.
First, public safety has long been recognized as an important objective. See, e.g., Mugler
v. Kansas, 8 S. Ct. 273, 292 (1887) (citing safety, health, and morals as valid objectives);
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 837 (1992) (recognizing the
State’s interest in promulgating laws to “further the health or safety of a woman”). In fact,
public safety has been recognized as a compelling interest under strict scrutiny, the least
deferential standard. See Johnson v. California, 543 U.S. 499, 514 (2005). Furthermore, the
context in which the ordinance was enacted shows a purpose of promoting safety: it was passed
shortly after gun violence reached record levels. Somerville, No. 2013-CM-0967, at 4.
In assessing whether the means are substantially related, a court must recognize the
institutional competency of the legislative body and afford substantial deference to its judgments.
12
See Kachalsky, 701 F.3d at 97. This is particularly important for gun regulation, given that the
legislature is better equipped to make sensitive policy judgments and weigh the significance of
empirical data. See, e.g., id.; Moore, 702 F.3d at 949 (Williams, J., dissenting).
The means selected by New Olympia are substantially related to the objective of
protecting the public. The ban extends outside of one’s home or business property, New
Olympia Municipal Code § 8-24-17(a), but is only applicable during summer months, id., and
permits guns to be transported from one location to another if inoperable, 8-24-17(b). The
seasonal nature of the restriction is based on the collective experience of New Olympia residents
following a surge in gun murders, Somerville, No. 2013-CM-0967, at 4, and on an academic
study linking gun violence to summer months, id. at 5. Under intermediate scrutiny, the
legislature need not even go to such lengths and instead may “appeal to common sense.” See
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 439–40 (2002) (plurality opinion).
The lower court’s analogy to restrictions on picketing outside abortion clinics during
select times of the year, which it claims would “be laughed out of court,” Somerville, 496 N.E.3d
at 18 (citing to Hill v. Colorado, 530 U.S. 703, 725–26 (2000), fails for several reasons. First,
the court incorrectly applied strict scrutiny and required narrow tailoring. The court’s analogy to
speech restrictions actually highlights this error, since speech regulations are reviewed under
different standards of review depending on whether they are content-based. See Hill, 530 U.S. at
735 (2000) (Souter, J. concurring). In fact, Hill expressly indicated that content-neutral
regulations need not be the “least restrictive or least intrusive” means possible. Id. at 726. Thus,
the crucial issue in Hill was whether the restriction was content-neutral, just as here it is whether
or not the core Second Amendment right is implicated by the ordinance.
13
Furthermore, the abortion example is not directly analogous because the important
government interest of safety is not relevant to the hypothetical time restriction, whereas such a
nexus clearly exists in this case. For example, courts have upheld restrictions on protestors
sleeping in parks overnight. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984).
The ban in Clark was upheld for an arguably less crucial government interest—the aesthetic
condition of the property—than safety. Id. at 296. Additionally, such a restriction has the effect
of limiting the protestors’ presence over the course of the year for a substantially similar length
of time as the three month ban in the instant ordinance.
II. THE DISCOVERY OF AN OUTSTANDING WARRANT IS AN INTERVENING CIRCUMSTANCE SUFFICIENT TO PURGE THE TAINT OF AN ILLEGAL STOP AND ALLOW FOR THE ADMISSION OF SEIZED EVIDENCE.
This Court should find the discovery of Respondent’s arrest warrant purges the taint of
the illegal traffic stop from the subsequent search of the vehicle and does not require exclusion of
the resulting evidence. Not all evidence is “fruit of the poisonous tree” simply because it was
discovered due to the illegal actions of the discovering police. Wong Sun v. United States, 371
U.S. 471, 487–88 (1963). As the Respondent challenges the use of the evidence found
subsequent to the illegal stop, the issue is of attenuation, or whether the evidence was discovered
by means sufficiently distinguishable from the primary taint. Id. at 488. The attenuation inquiry
considers three factors: first, the purpose and flagrancy of the initial illegality; second, the
temporal proximity of the illegal stop and discovery of the evidence; and third, any intervening
circumstances. Brown v. Illinois, 422 U.S. 590, 603–04 (1975).
A. The officer’s conduct was not undertaken consciously or with an investigative purpose, and does not rise to the level of purposeful and flagrant conduct.
While illegal, Officer Ohno’s actions were not purposeful and flagrant conduct, and thus
the first attenuation factor weighs in favor of the petitioner. Flagrant and purposeful conduct
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occurs when “(1) the impropriety of the official's misconduct was obvious or the official knew,
at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2)
the misconduct was investigatory in design and purpose and executed ‘in the hope that
something might turn up.’” United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quoting
Brown, 422 U.S. at 605). The Petitioner concedes that the stop was illegal, but Officer Ohno’s
decision to stop the vehicle was not undertaken purposefully or even consciously: he pulled over
the Respondent “without thinking twice.” Somerville, No. 2013-CM-0967, at 5. It therefore is
implausible that the stop was instigated with an investigatory purpose or design. The Supreme
Court of Wigmore argues that a warrant check could only have an investigatory purpose, but it is
the illegal stop and not the warrant check the Respondent contests.
B. The importance of temporal proximity diminishes if the intervening circumstance is an arrest warrant.
The close temporal proximity between the illegal stop and discovery of the evidence does
not weigh in favor of excluding the evidence when an arrest warrant is the intervening
circumstance. See United States v. Green, 111 F.3d 515, 522 (7th Cir. 1997); see, e.g., United
States v. Johnson, 383 F.3d 538, 544–45 n.7 (7th Cir. 2007). In Green, the defendant was pulled
over by law enforcement officers who suspected a wanted individual with an outstanding warrant
for his arrest was in the car. 111 F.3d at 517. The officers found the warrant for the passenger
and conducted a search of the vehicle, finding crack cocaine and a firearm. Id. While less than
five minutes had elapsed between the stop and search in Green, id. at 521, the court noted that
temporal proximity was unimportant because the outstanding arrest warrant eliminated the need
15
for consent to search the vehicle, id. at 522. In contrast, if consent had been required,2 the close
temporal proximity between the officer’s illegal act and the defendant’s consent may weigh in
favor of suppressing the evidence. See id.
Like the discovery of the Respondent’s marijuana and firearm following an illegal stop,
Green also involved an illegal stop and subsequent discovery of banned drugs and firearms. The
events in the instant case and in Green both unfolded in a matter of minutes. However, in both
cases, the intervening circumstance was the discovery of an arrest warrant and the seizure of
evidence did not require the defendant’s consent, so “the importance of the temporal proximity
factor decreases.” State v. Mazuca, 375 S.W.3d 294, 306–07 (Tex. Crim. App. 2012), cert
denied, 133 S. Ct. 1724 (2013). Thus, the close temporal proximity in this case does not weigh
in favor of suppressing the evidence.
C. The arrest warrant is an intervening circumstance because it was antecedent to the stop, inherently public, and necessitated by public policy considerations.
The Supreme Court of Wigmore erred in holding that the discovery of the arrest warrant
did not constitute an intervening circumstance that weighed in favor of attenuation. Circuit
courts are split on whether the discovery of an outstanding arrest warrant following an illegal
stop constitutes an intervening circumstance sufficient to purge the taint of the illegal stop in the
attenuation analysis. Somerville, No. 2013-CM-0967, at 11. The lower court held the
outstanding arrest warrant resulted from “means that are indistinguishable from the illegal stop,”
and thus was not dissipated from the taint of the illegal stop. Somerville, 496 N.E.3d at 20.
2 For example, if a voluntary confession had been given following an illegal stop, the amount of time elapsed between the stop and the confession would be important in determining if the consent was influenced or exploited by the illegality of the stop. Green, 111 F.3d at 522.
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1. Because the arrest warrant existed prior to the stop, the Respondent suffered no infringement of his rights.
The Respondent was searched and arrested based on a valid warrant, and has suffered no
infringement of his Fourth Amendment rights because he had no right to be at large. Atkins v.
City of Chicago, 631 F.3d 823, 826–27 (7th Cir. 2011). In Atkins, the defendant was a passenger
in a car stopped by police. Id. at 826. The stop was made without probable cause, but the court
held that if the passenger was the individual named in the warrant, the illegal stop did not
invalidate the arrest. Id. The court explained, “[A] person named in a valid warrant has no right
to be at large, and so suffers no infringement of his rights when he is apprehended unless some
other right of his is infringed, as would be the case had the police roughed up Atkins
gratuitously . . . .” Id. at 827. Because the defendant had not made such claims, the court
declined to find the arrest was invalid. Id. at 826. The Respondent in this case, like in Atkins,
was named in a valid warrant and stopped illegally by police. He has not argued any improper
treatment following the stop and his arrest. Thus, the respondent suffered no violation of his
Fourth Amendment rights in his arrest and search after the discovery of the valid warrant,
because he had no original right to be at large.
2. Since the arrest warrant could have been discovered using public information, it is an intervening circumstance showing the attenuation between the illegal stop and the search.
The court erred in stating that but for the illegal stop, the officer would not have had the
information necessary to run the warrant check. Somerville, 496 N.E.3d at 20. The means are
sufficiently distinguishable from the illegal stop because the arrest warrant could have been
discovered without the stop by checking his license plate, in which there is no reasonable
expectation of privacy. See Wong Sun, 371 U.S. at 488; United States v. Ellison, 462 F.3d 557,
561 (6th Cir. 2006); see generally New York v. Class, 475 U.S. 106, 113–14 (1986) (holding that
17
individuals have a lessened expectation of privacy in a vehicle and for items like license plates,
which are “required by law to be located in a place ordinarily in plain view from the exterior”).
In Ellison, police observed the defendant in a vehicle idling in a no parking zone. 462 F.3d at
559. The officer ran a search on defendant’s license plates, revealing that the car’s owner had an
outstanding arrest warrant. Id. The officer approached the driver, confirmed he was the owner
of the vehicle, arrested the defendant, and found two firearms on him. Id. The court held that
while the officer may not have had probable cause to run the license plate search, the defendant
had no reasonable expectation of privacy in a license plate number, the “very purpose of [which]
is to provide identifying information to law enforcement officials and others.” Id. at 561.
While the police in Ellison used the information on the defendant’s license plates to learn
that there was an outstanding arrest warrant for his arrest, in this case, Officer Ohno obtained the
Respondent’s information from the illegal stop. However, the same information—the identity of
the Respondent—could have been ascertained through a check of his license plates and without
the illegal stop. The discovery of the arrest warrant is distinguishable from the illegal stop
because it could have been discovered without the illegal stop through a check of the
Respondent’s license plates, in which he has no reasonable expectation of privacy.
D. This Court should reverse the Supreme Court of Wigmore’s decision because it has undesirable public policy consequences and no effect on deterrence.
Excluding evidence found pursuant to a search from a valid arrest warrant could be
dangerous to public safety and pose further dilemmas to law enforcement. See Green, 111 F.3d
at 521; Reed v. State, 809 S.W.2d 940, 948 n.3 (Tex. Ct. App. 1991). The Supreme Court of
Wigmore’s decision to exclude the evidence found after the illegal stop could create troublesome
ambiguity for police officers. Reed, 809 S.W.2d at 948 n.3. If an outstanding arrest warrant is
discovered after an illegal stop, police may be unsure as to whether the individual can be arrested
18
or searched at a later date, and when and where the arrest could occur. Id. In this case,
Respondent’s outstanding arrest warrant was discovered following an illegal stop, but the lower
court’s holding would raise questions as to when and how the Respondent could later be detained
and searched.
Furthermore, “[i]t would be startling to suggest that because the police illegally stopped
an automobile, they cannot arrest an occupant who is found to be wanted on a warrant . . ."
Green, 111 F.3d at 521. There was a valid, lawful warrant for the Respondent’s arrest, and thus
the search incident to the arrest was also lawful. A contrary holding could pose public safety
threats by forcing police to release wanted and potentially dangerous individuals and give them a
head start before pursuing them again—“clearly an absurd result.” TIMOTHY A. BAUGHMAN,
GILLESPIE MICH. CRIM. L. & PROC. SEARCH & SEIZ., § 6:7 (2d ed. 2013).
The lower court is mistaken in assuming that allowing the use of seized evidence would
mean “any police officer may stop and run a warrant check on any citizen for any reason—or for
none at all.” Somerville, 496 N.E.3d at 21. This argument was specifically considered and
rejected by the Supreme Court of California, because if a seizure is “flagrantly or knowingly
unconstitutional or is otherwise undertaken as a fishing expedition,” it is unlikely the Brown
factors would allow for the use of the tainted evidence. People v. Brendlin, 195 P.3d 1074, 1081
(Cal. 2008). Courts that have held the discovery of a valid arrest warrant qualifies as an
intervening circumstance following an illegal search also agree that stopping random cars to
search for persons with outstanding warrants would give the passengers and drivers without
outstanding warrants valid Fourth Amendment claims. See Atkins, 631 F.3d at 827.
Exclusion is unnecessary to serve as a deterrent for police to engage in police
intimidating and harassment because the officer’s conduct was not willful and other forms of
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deterrence already exist. See Hudson v. Michigan, 547 U.S. 586, 595–99 (2006). Deterring
behavior logically requires that the relevant conduct be a willful, conscious choice. The search
incident to the arrest in this case was not willfully or consciously undertaken by Officer Ohno.
See Somerville, No. 2013-CM-0967, at 5. Officer Ohno has never received another citizen
complaint, id., and there is no evidence in the record to suggest that this problem is systemic in
the City or State of Wigmore. Additionally, this Court has recognized other effective forms of
deterrence to this type of behavior, such as citizen suits, increasing focus on police
professionalism and discipline, and the teaching and enforcement of constitutional requirements.
Hudson, 547 U.S. at 597–99. While the lower court argued that a remedy brought through a
citizen suit would be insufficient, the majority in Hudson rejected this premise, arguing that civil
liability was an effective deterrent and remedy for other abusive police behavior. See id. at 597–
98.
CONCLUSION
For the foregoing reasons, the Petitioner, the City of New Olympia, respectfully requests
that this Court vacate the Supreme Court of Wigmore’s decision as to both Respondent’s motion
to dismiss the 8-25-17(a) violation and motion to suppress evidence related to the 720 WCS
550/4 violation for marijuana possession.
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