Supreme Court ruling leaves fate of stun gun ban unclear

High court rejects argument that stun guns lack utility in warfare

By Kris Olson
The Daily Record Newswire

BOSTON, MA - While the U.S. Supreme Court may not have invalidated the state's ban on possession of stun guns by anyone but trained police officers, local Second Amendment advocates and others hope the court's unanimous decision will jolt the state toward a more sensible approach to allowing access to vital self-defense tools.

In Caetano v. Massachusetts, Jaime Caetano challenged her conviction under G.L.c. 140, §131J, which bans the possession of electrical weapons. The filing of a petition for certiorari led to briefs from both sides; no oral arguments were held.

UCLA School of Law professor Eugene Volokh wrote in The Washington Post that the Supreme Court's March 21 per curiam decision suggests that the justices viewed Caetano as a "very easy case," distinguishing it from the court's recent landmark Second Amendment decisions, D.C. v. Heller and McDonald v. City of Chicago, which divided the court 5-4.

Committee for Public Counsel Services attorney Benjamin H. Keehn represents Caetano. He was unavailable for comment, but he has said in published reports that he intends to continue the fight to get his client's conviction vacated.

The case is in a holding pattern for at least 25 days, during which the state could file petition for rehearing, prompting a stay of the Supreme Court's mandate.

Once that mandate is officially issued, the Supreme Judicial Court would docket the case and decide what further proceedings are appropriate, and whether to request further briefing or oral argument, Trial Court spokesperson Jennifer Donahue said.

Misplaced justifications

In essence, the Supreme Court found that the three justifications the SJC used for taking stun guns outside the Second Amendment and upholding Caetano's conviction were incompatible with Heller.

Among the SJC's misguided arguments, the high court said, were that stun guns "were not in common use at the time of the Second Amendment's enactment," a matter about which Heller made a clear statement, placing newer weapons well within the reach of the Second Amendment.

The SJC's second argument - that it could limit the right to keep and carry arms because stun guns are a "dangerous" and "unusual" modern invention - fails for similar reasons, the Supreme Court continued.

The SJC tried to hang its decision on stun guns' lack of utility in warfare, which the Supreme Court rejected.

The Supreme Court remanded the case for "further proceedings not inconsistent with this opinion," leaving the door open to salvage the ban with a justification more in keeping with the Heller and McDonald precedents.

Justices Samuel A. Alito and Clarence Thomas would have instead slammed the door shut. In their stinging 10-page concurrence, Alito and Thomas sympathized with Caetano, a then-homeless woman who brandished but did not use a stun gun given to her by a friend when an abusive ex-boyfriend with a history of defying restraining orders showed up at her workplace. Faced with the stun gun, her tormentor retreated. Caetano was later arrested after she consented to police searching her purse during an investigation into a shoplifting incident.

"The lower court's ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense," Alito and Thomas concluded.

"Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding," they added.

Even if Caetano were comfortable carrying a gun, a cruel irony is that, now, her stun gun conviction would likely prevent her from obtaining a handgun license, they noted.

Not alone

Volokh, who authored an amicus brief in Caetano on behalf of the nonprofit Arming Women Against Rape & Endangerment, said the SJC should now follow the lead of the Michigan Appeals Court, which invalidated that state's stun gun ban in People v. Yanna.

Volokh's amicus brief leaned heavily on the reasoning in Yanna, along with that of the Connecticut Supreme Court in State v. DeCiccio, which struck down a ban on possessing dirk knives and police batons on Second Amendment grounds.

Volokh believes the Connecticut Supreme Court took a more sensible view than the SJC to weapons that are "dangerous" and "unusual" and thus outside Second Amendment protection.

"Dangerous," the Connecticut court wrote, "should be understood to mean more dangerous than constitutionally protected handguns."

Unusualness, meanwhile, should be determined not by looking at whether the weapon was used in Colonial times or is less prevalent than the handgun, but rather whether they are "routinely used by the police" or "typically possessed by law-abiding citizens for lawful purposes," the Connecticut court said.

Randolph attorney Karen L. MacNutt confirmed Volokh's theory that the novelty of stun guns played a role in the state's ban. The consulting attorney for the Second Amendment Foundation, National Rifle Association and Gun Owners Action League recalled that the ban was enacted not long after stun guns come on the market some three decades ago.

"Massachusetts has a long history of simply banning anything anyone might use to protect themselves," MacNutt said, pointing to bans on martial arts weapons such as nun chucks, menaces fueled more by Hollywood hype than actual threats.

Massachusetts is part of a small minority of states with statewide bans on stun guns, joining Hawaii, New York, New Jersey and Rhode Island, though major cities, including Baltimore, New Orleans, Philadelphia and Washington D.C., have municipal bans.

Up to Beacon Hill

Attorneys predict it ultimately will be up to the Legislature, not the SJC, to move the state's treatment of stun guns to a place that the Supreme Court would find more palatable constitutionally.

"Because the fundamental problem is with the statute, the fundamental cure will lie with the Legislature," said Keith G. Langer, attorney for the group Commonwealth Second Amendment.

Taking another pass at justifying the stun gun ban would be a fool's errand for the SJC, suggested Berkshire County District Attorney David F. Capeless, president of the Massachusetts District Attorneys Association.

"It would appear the U.S. Supreme Court has made it clear these are weapons covered under the Second Amendment," he said, indicating that what is needed is a regulatory scheme similar to that applied to handguns.

On Beacon Hill, meanwhile, there are two pending proposals to modify G.L.c. 140, §131J, but they pertain solely to law enforcement. H.2184 would expand access to stun guns to county law enforcement officials, while H.2130 would require police Tasers to be outfitted with microphones and audio-recorders to increase monitoring of their use.

Opinions vary greatly, however, as to what the "regulatory scheme" for stun guns should look like. Langer equated stun guns with pepper spray, for which adults no longer need a license. Even Alito and Thomas drew that parallel, distinguishing stun guns only by their effectiveness.

"A spray can also be foiled by a stiff breeze, while a stun gun cannot," reads part of a footnote in their opinion.

Capeless, however, said stun guns belong in a different category, noting that the law even requires police officers to receive specialized training to carry stun guns.

But Shrewsbury lawyer Lisa J. Steele said that training - in which police officers themselves receive a jolt - illustrates stun guns' relative lack of lethality.

"I don't see a police officer being willing to be shot by his service revolver," she said.

Even by the commonwealth's accounting, stun gun deaths are fairly rare. A footnote in its opposition brief noted that more than 330 people in the U.S. died between June 2001 and August 2008 after being shocked by police Tasers and stun guns. The Taser or stun gun was listed as a contributing factor in the death in "at least 50 of those cases."

MacNutt said that police "extracting a little bit of street vengeance" accounts for a disproportionate share of stun gun abuses. Langer added that there is a big difference between the dart-shooting long-distance Tasers that police wield and the "purely defensive" weapon that Caetano was carrying, which requires close contact to administer the shock.

Capeless retorted that close contact, which invites confrontation, is a reason to tread carefully with opening the door to stun gun possession. The user has to "allow an attacker to be absolutely on top of them" and then runs the risk of having the weapon change hands in a scuffle, the DA said.

But Caetano's situation, in which the stun gun defused rather than escalated the confrontation, stands as a counterexample, Langer said.

In its opposition brief, the commonwealth pointed to the fact that, unlike handguns, stun guns "can be deployed without leaving marks on the victim."

The concern that stun gun use is minimally detectable becomes less compelling when one considers that certain guns, including revolvers, leave behind a deformed and thus untraceable piece of lead in shooting victims, Volokh noted.

Not only that, Langer said, but because stun guns require contact, there will be "all sorts of transfers" of DNA, fibers and other evidence when they are used.

Published: Mon, Apr 18, 2016

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