Month: February 2020

Torts, Insurance, and Mass Shootings

After the Supreme Court refused to halt a state tort claim by Sandy Hook plaintiffs against a gun manufacturer last November, debate over tort liability for gunmakers and sellers is getting a lot of attention, with  experts increasingly weighing in on these types of lawsuits. To help inform the public, the Center is hosting a panel discussion on these issues next Monday, March 2, at the law school.

I also wanted to highlight a recent rundown of these issues in the American Bar Association’s Tort Trial & Insurance Practice Section publication, The Brief. In the article, “Liability for Mass Shootings: Are We at a Turning Point?,” Michael Steinlage lays out the issues facing practitioners, especially insurance lawyers, in these types of lawsuits. From the introduction:

When it comes to mass shootings, insurers historically have relied on the infrequency of such events, favorable liability laws, and their ability to selectively exclude gun-related injuries to justify a hands-off approach to assessing and managing such risks. For those insurers who do underwrite these risks, measuring and pricing the exposure can be difficult. However, with the number of mass shooting incidents increasing and the significant claims and liability that they spawn, recognizing and addressing these types of risks have taken on greater importance. The recent MGM Las Vegas shooting settlement announced in early October—$751 million of which reportedly will be funded by insurance—puts these risks firmly in the category of exposures that companies and insurers can no longer ignore.

It’s worth the read to think about all the practical litigation and legal questions that arise after these horrific tragedies. I suspect, to answer the rhetorical question in the article’s headline, that we are at something of a turning point.

Firearm Policy and Alcohol Abuse

In my forthcoming article, The Complex Interplay Between the Controlled Substances Act and the Gun Control Act, I focus on 18 U.S.C. §922(g)(3), which in its current form incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection currently results in more than 14,200 individuals per year failing a background check for gun purchases, and around two hundred prosecutions per year for possession of guns by drug users as the lead charge.  Circuit courts have consistently upheld the constitutionality of §922(g)(3), even in the years after Heller.

SCOTUS Gun Watch – Week of 2/24/20

With the Court’s return from winter recess, we have a little more news than we’ve had in a few weeks. The Court, as expected, granted cert in Matsura to vacate the judgment below and remand in light of last Term’s decision in Rehaif v. United States, requiring the government to prove an individual knew his status that made him a prohibited person. (The Court also sent back two other cases in a similar posture as Matsura.) The Court also denied cert in Baker, challenging the reasonableness of a search in light of the Second Amendment.

Also, we have a new cert petition filed this week. In Rodriguez v. San Jose, the petitioner challenges the Ninth Circuit’s denial of her Second and Fourth Amendment claims arising from a warrantless seizure of her firearms after law enforcement took her husband into custody for a mental health evaluation.

Legal Marijuana & Gun Possession

ATF Guidance Documents and Enforcement

In September 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives released an Open Letter to All Federal Firearms Licensees (FFL’s), providing regulatory guidance as to the intent of 18 U.S.C. §922(g)(3) and its interaction with state laws that legalize marijuana in some way. The guidance document reminds FFL’s that as the Controlled Substances Act lists marijuana as a Schedule I controlled substance “and there are no exceptions in Federal law for . . . . medicinal purposes, even if such use is sanctioned by State law,” the use of marijuana qualifies an individual under federal law as an “unlawful user” for purposes of 18 U.S.C. §922(g)(3).  Nevertheless, since 1996, at least thirty-three states and the District of Columbia have legalized medical marijuana.

In January 2018, the Department of Justice (DOJ) issued a memorandum (the “Sessions Memo”) rescinding all previous guidance regarding prosecutions in medical marijuana states, deferring instead to nebulous “well-established general principles” which included considerations such as “the deterrent effect of criminal prosecution.” This superseded prior DOJ policy (also known as the “Cole Memorandum” from 2013) which focused prosecutions, in relevant part, in “[p]reventing violence and the use of firearms in the cultivation and distributions of marijuana” and deferring to state and local law enforcement for activity beyond the stated scope of DOJ priorities. It is unclear how the shift in DOJ directives after the 2018 memorandum has impacted federal prosecutions of gun possession prosecutions under §922(g)(3) in states with medical marijuana and legalized marijuana, but 2017 statistics indicate that the number of prosecutions under §922(g) generally had already begun to increase following a decline in the period from 2013 to 2015 (the timeframe after the Cole memorandum through the end of the sitting administration). Given the growing resistance among some big city prosecutors to charge for mere possession of marijuana without aggravating factors indicating dealing, the federal prosecutors’ directives appear to be going in a different direction than at least some state prosecutors in areas having the highest incident rates.

William P. Barr became Attorney General in 2019, and announced that he supports “the prosecutorial priorities” that were put in place by the Sessions Memo, which included an emphasis on “violent crime, drugs, immigration, and national security.” The DOJ appears to have turned more of its resources to the prosecution of firearms offenses, prosecutions under §922(g) are at an all-time high, and convictions under §922(g) have risen every year since 2015 (see here).

Gun Permits & Licenses for Lawful Marijuana Users 

Four months before the 2011 ATF Open Letter, Oregon’s highest court, sitting en banc, decided Willis v. Winters, which held that the federal prohibition on firearm possession “by persons who, under federal law, are ‘unlawful user[s] of a controlled substance,’” does not preempt the State’s licensing statute. The Oregon Medical Marijuana Act authorizes medical marijuana use and requires registration of such authorized users, and Oregon state statutes have a “shall issue” regime for concealed handgun licenses.  Several sheriffs had denied concealed carry licenses applications and renewals submitted by medical marijuana registrants, despite their full compliance with the State’s statutory standards for licensing, on the premise that 18 U.S.C. §922(g)(3) preempted the State’s licensing statute – arguably, issuance of a license under the circumstances would violate §922(t)(3) and §922(a)(6) (which prohibits false statements on background check forms and similar actions).  The Willis court, however, held that under Oregon’s statutory code, the sheriffs are statutorily-bound “to issue CHLs to qualified applicants, without regard to the applicant’s use of medical marijuana.” Because the licensing statute proscribes the concealment of firearms and “is not directly concerned with the possession of firearms,” it does not interfere with the full enforcement of the Federal statute.  The court explained:

[I]t is possible that the sheriffs in this case could themselves enforce section 922(g)(3) of the federal Gun Control Act against medical marijuana users who possess guns in violation of federal law. The federal act makes such possession illegal, the sheriffs generally are authorized to enforce federal as well as state law, and no state law prohibits the sheriffs from taking such enforcement actions. But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.

In other words, the sheriffs cannot deny concealed handgun licenses to medical marijuana registrants, but they are free to arrest those registrants if they do, in fact, possess a handgun.  Federal law does not mandate the use of state gun licensing schemes in enforcing §922(g)(3), nor, the court held, could Congress do so without commandeering “the policy-making and enforcement apparatus of the states.” This decision remains good law in Oregon.

The Willis decision garnered attention from both marijuana advocates and pro-gun advocates, but other cases since then have been trending in the other direction, and the federal classification of marijuana as a Schedule I drug under the Controlled Substances Act continues to give concern to the courts and create confusion for firearm owners who may use medical marijuana in the (majority of) states that have now legalized its use.  For a recent example, in Bradley v. United States, 402 F.Supp.3d 398 (N.D. Ohio, Aug. 14, 2019), a gunowner wanted to register for Ohio’s medical marijuana program and claimed that §922(g)(3) prevented him from doing so, thereby violating his Second Amendment rights, as well as the Equal Protection clause.  Bradley was diagnosed with post-traumatic stress disorder (PTSD) but was barred by federal law from participating in Ohio’s medical marijuana program because he was in possession of a firearm. The court rejected his claims, in part because he faced no imminent threat of prosecution (lacked standing) and partly because his Second Amendment claim was implausible.  The court cited numerous cases from other district and circuit courts consistently holding that §922(g)(3) did not violate the Second Amendment, including situations where marijuana consumption would have been legal under state law, yet the courts affirmed “the constitutionality of §922(g)(3) under the Second Amendment” in that context.

The Sixth Circuit reached the same conclusion in United States v. Bellamy, 682 Fed.Appx. 447 (6th Cir. 2017) (unpublished), holding that §922(g)(3) applied even if defendant held a state-issued medical marijuana card.  At the same time, Bellamy did not include a Second Amendment claim, but was decided on statutory and preemption grounds.

Scholarship Highlight: Sanctuary Jurisdictions

Shawn Fields has posted an original and through-provoking new paper on Second Amendment Sanctuaries that will be published in the Northwestern Law Review later this year. From the abstract:

The term “sanctuary” has long expressed a sympathy for immigrants’ rights and resistance to federal immigration enforcement. Recently, the word has become associated with another divisive political topic, as local governments have begun declaring themselves “Second Amendment Sanctuaries” in defiance of statewide gun control measures they deem unconstitutional. This gun rights resistance movement not only flips the political script on the nature of sanctuaries but presents important and challenging questions about local-state power sharing, the proper scope of “subfederal commandeering,” and the role of coordinate branches in constitutional decision making.

This Article provides the first scholarly treatment of Second Amendment Sanctuaries. In doing so, it explores both the unique facets of this new localism and the broader implications for sanctuary movements generally. Most early commentary on Second Amendment Sanctuaries dismisses them as purely symbolic and presumptively invalid pursuant to state preemption principles and the judicial supremacy model of constitutional interpretation. This Article challenges that narrative and articulates a theory of limited viability for these and other local intrastate resistance movements.

The theory proceeds in three parts, with each part presenting a novel approach to local-state governmental conflict that contributes to the existing literature. First, localities can resist broad state preemption in limited circumstances via the state’s “home rule” provisions when local regulation of a particular issue is rooted in history and has normative policy appeal. Second, localities may passively resist statewide regulation through a form of “subfederal anticommandeering” analogous to the Tenth Amendment’s anticommandeering principles protecting states from federal overreach, so long as the locality takes no affirmative steps to frustrate state enforcement. Third, local enforcement officers may defend their resistance on substantive constitutional grounds when the right at issue is not settled firmly by the judiciary. This “first impression departmentalism” reflects the proper role all coordinate branches of government have in defining the contours of constitutional provisions when emerging doctrine remains in a state of flux. These principles counsel in favor of the viability of at least some Second Amendment Sanctuaries as currently constructed, as well as sanctuaries resisting firearm deregulation and other statewide policy initiatives.

The Federal Prohibitor and Unlawful Drug Users

I’m reading a draft of a fantastic forthcoming article by Dru Stevenson on the how federal drug law operates as what he calls one of the primary forms of gun control today. Under federal law anyone “who is an unlawful user of or addicted to any controlled substance” is forbidden from possessing firearms. So those active users are barred, whether they have any conviction or not. And, of course, the felon prohibitor in 18 U.S.C. § 922(g)(1) bars anyone who has ever had a felony drug conviction from ever again possessing firearms. We are fortunate that Dru will be blogging on his own article, but in this short post, I wanted to just highlight a few things that stood out to me from his article and the broader debate over guns and drugs (also the name of a great article by Benjamin Levin).

SCOTUS Gun Watch – Week of 2/10/20

The Court is still on winter recess and no new petitions have been filed, so we’re waiting still. Here’s where things stand:

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed

18-Oct-19 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks distributed

24-Jan-20 conf. (relisted for 3rd conference)

Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed

10-Jan-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed

24-Jan-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed for

21-Feb-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person distributed for

21-Feb-20 conf.

Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment distributed for

21-Feb-20 conf.

Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban reply due @

17-Feb-20

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) resp. due 11-Mar-20

Laws with an Ugly Past

A few weeks ago, the Supreme Court heard arguments in Espinoza v. Montana Dep’t of Revenue, which concerns the use of public funds for religious schools. Part of the issue in that case is what to make of Montana’s Blaine Amendment, a type of state constitutional provision that prohibits appropriating funds to religious sects or institutions. Although innocuous enough on their face, Blaine Amendments have a sordid history in virulent anti-immigrant and anti-Catholic bigotry. They raise the question about the relevance of legislative purpose to the constitutionality of governmental decrees. A similar issue often arises when talking about laws regulating guns. Just what role does an ugly past play in the constitutional calculus?

Scholarship Highlight: Cottrol & Diamond on Public Safety and the Second Amendment

Robert Cottrol and Ray Diamond have posted on SSRN a new piece on Public Safety and the Right to Bear Arms. In the piece, Cottrol and Diamond provide a detailed and thorough examination of the debates and historical understanding that influenced codification of the Second Amendment and its interpretation in the ensuing years, decades, and centuries.