SUPREME COURT OF THE UNITED STATES · 2020-06-19 · This Court should vacate the Supreme Court of Wigmore’s decision as to Respondent’s motion to dismiss the 8-25-17(a) violation

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

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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.