The 21st Annual National Firearms

Law Seminar

Dallas, Texas
May 4, 2018
An Update on Second Amendment Litigation
The Fourth Amendment for Second Amendment Attorneys
Beyond Guns and Ammo: Building a Comprehensive Arms Law Practice
Understanding Texas Gun Laws
Hot Firearms Topics from Across the Country
Second Amendment Rights Restoration
Federal Firearms Licensee Issues
Hot Button Issues for Manufacturers, Importers, and Dealers
Ethics and Social Media
 21st Annual National Firearms Law Seminar
Dallas, Texas
Friday, May 4, 2018
Location: Hyatt Regency Dallas

8:00 - 8:20 Registration and Continental Breakfast

8:20 - 8:30 Welcoming Remarks

CAROL FRAMPTON

Law Seminar Steering Committee Chair

Board Member, National Rifle Association of America
General Counsel, Association of Fish and Wildlife Agencies

8:30 – 10:10 SESSION 1

An Update on Second Amendment Litigation: Developments in the Right to

Carry and Other Topics

Professor Michael O’Shea

Oklahoma City University School of Law

The Fourth Amendment for Second Amendment Attorneys

Gerald Goldstein
Goldstein, Goldstein, Hilley & Orr

10:10 – 10:20 Networking Break

10:20 – 12:00 SESSION 2

Beyond Guns and Ammo: Building a Comprehensive Arms Law Expertise

John Frazer
NRA General Counsel & Secretary

Understanding Texas Gun Laws

Handguns v. Long Guns - Licensed Carry v. Unlicensed Carry

Charles Cotton
Attorney, NRA Board Member
_____

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______________________________________________________________________________
12:00 – 1:00 SPECIAL LUNCH PRESENTATION

American Gun Culture: Natural, Not Manufactured

Clayton Cramer
Author & Second Amendment Researcher

1:00 – 2:40 SESSION 3

Hot Firearms Topics from Across the Country

Sarah Gervase
NRA Assistant General Counsel

Restoring a Constitutional Right: Second Amendment Right Restoration as a

Civil Rights Issue

Patrick J. McLain
Law Office of Patrick J. McLain, PLLC

2:40 – 2:50 Networking Break

____________
2:50 – 4:30 SESSION 4

Federal Firearms Licensee Issues: Dealing with Common Problems and

Complying with Federal Rulings and Regulations

James Vann, J.D.

Division Counsel, Washington Field Division, BATFE

Working with FFLs: Hot Button Issues for Manufacturers, Importers, and
Dealers

Stephen P. Halbrook, Ph.D.

Attorney & Author
_ ______
4:30 - 5:30 SESSION 5: LEGAL ETHICS

Legal Ethics and Social Media: Or How I Learned to Stop Worrying and At
Least Embrace Facebook

Judge David Newell

Texas Court of Criminal Appeals
____________
5:30 - 7:00 MEET & GREET: POST-COURSE COCKTAIL RECEPTION

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 2018 Speaker Biographies

SECTION 1
1. Professor Michael P. O'Shea is Professor of Law at Oklahoma City University. He
received a B.A. magna cum laude from Harvard College in 1995 and a J.D. cum laude from
Harvard Law School in 2001. He also holds an M.A. in philosophy from the University of
Pittsburgh (1998). Before entering law teaching, he practiced law in Chicago and in his
hometown of Kansas City, Missouri, and served as a law clerk to Chief Judge Danny J. Boggs of
the U.S. Court of Appeals for the Sixth Circuit.

Professor O'Shea is a nationally recognized expert on firearms laws, weapons laws, and
the constitutional right to keep and bear arms. He is a co-author of the first law school textbook
on these subjects, Firearms Law and the Second Amendment: Regulation, Rights and Policy (2d
ed. 2017). Professor O'Shea's current research also includes the future of the legal conservative
movement; originalism; federalism; and reforming the methods used by the states to select
appellate judges.

2. Gerald Harris Goldstein, of Goldstein, Goldstein, Hilley & Orr. Mr. Goldstein graduated
from Tulane University, B.B.A., 1965, University of Texas, JD, 1968, was an Adjunct Professor of
Law at the University of Texas School of Law, Austin, Texas (1982-1993), and currently serves on
the faculty of St. Mary’s University School of Law in San Antonio, Texas.

Mr. Goldstein is a Past President of the National Association of Criminal Defense Lawyers
(1994-1995) and the Texas Criminal Defense Lawyers Association (1992-1993), a Fellow of the
International Academy of Trial Lawyers (1997-), the American College of Trial Lawyers (1991-),
and the American Board of Criminal Lawyers (1997-).

He received the Robert C. Heeney Memorial Award [Outstanding Criminal Defense

Attorney] from the National Association of Criminal Defense Lawyers in 1991; was named the
Outstanding Criminal Defense Lawyer in Texas by the State Bar of Texas in 1991, and was named
a "Texas Legal Legend" by the State Bar of Texas in November of 2011. He received the Justice
Albert Tate, Jr. Award [for Outstanding Contribution to Criminal Advocacy] from the Louisiana
Association of Criminal Defense Lawyers in 1993, and the John Henry Faulk Civil Libertarian of
the Year Award from the American Civil Liberties Union in 1999. In 2002 he was named to the
Texas Criminal Defense Lawyers "Hall of Fame”, Best Lawyers in American [1987-], one of five
"Top Notch" Criminal Defense Lawyers in Texas in 2012, San Antonio Bar Association’s “Hall of
Fame” Award in 2013, and received the William S. Sessions American Inns of Court First Annual
“Goldstein Award of Excellence” in 2015, the First Annual Michael J. Kennedy Social Justice
Award, from the National Organization for the Reform of Marijuana Laws, in May of 2016, and
the San Antonio Bar Association’s Joe Frazier Brown, Jr., Award of Excellence for Outstanding
Leadership and Service to the Legal Community in 2016.

1
SECTION 2
1. John Frazer is Secretary of the National Rifle Association of America. He also serves as
the NRA’s General Counsel.

Frazer was born and raised in New York City, where he saw the ineffectiveness of strict
firearms controls first-hand. He received his bachelor’s degree in government and history from
Bowdoin College (Brunswick, Maine) and a master’s degree from the University of Virginia
(Charlottesville, Va.), where he was also a teaching assistant in American government and
political theory.

Frazer joined the NRA Institute for Legislative Action’s Research and Information
Division in 1993. In 1994, he became the executive assistant to NRA-ILA’s Executive Director,
and in 1997 moved to NRA-ILA’s Federal Affairs division, where for seven years he was a
lobbyist responsible for relations between the NRA and House and Senate delegations from
several states. In 2005 he returned to the Research and Information staff as deputy director, and
became director in 2007. In that capacity, he was responsible for developing and reviewing
materials for the NRA’s work in advocating for the Second Amendment rights of Americans,
ranging from magazine and online articles, to fact sheets and policy papers for use by NRA
lobbyists, to legal briefs.

Frazer attended the George Mason University School of Law (Arlington, Va.) at night
while working for NRA-ILA. In 2008, he received his law degree and was admitted to the
Virginia bar. In 2013, he left the NRA to start his own law practice in Fairfax, Va., where he
continued to advise and represent the NRA as well as a private clientele of gun owners, dealers,
manufacturers, and importers. He has taught at several continuing legal education seminars on
firearms law. He is also admitted to practice in the District of Columbia and in various federal
courts.

In January 2015, Frazer returned to the NRA as General Counsel, and in April 2015, the
NRA Board of Directors elected him Secretary. In that role, he is responsible for administering
and overseeing operations related to the NRA’s board elections, board meetings, and the Annual
Meeting of Members, among other duties.

Frazer is an NRA Benefactor Member and has shot competitively with pistols, rifles, and
shotguns. He is also a hunter, handloader, and amateur gunsmith.

2. Charles Cotton is a civil trial attorney and partner with the Cotton-Farrell law firm
focusing on representing sport shooting ranges and mediation. He is an NRA Benefactor
Member and TSRA Life Member, and a seminar creator and speaker on Texas carry, self-
defense laws, and constitutional protections.

Charles has authored all or part of numerous pro-firearms bills in Texas since 1987,
including the original Concealed Handgun License law and subsequent “clean-up” bills, the
Texas version of the Castle Doctrine law, the Motorist Protection Act, the law dealing with
improper posting under PC 30.06, and the Texas Range Protection Law, under which he also
2
won the state’s first trial. Since 1987, Charles has testified in numerous public hearings in the
Texas House and Senate. He is frequently interviewed by radio, TV, and newspaper reporters
concerning firearms and self-defense laws.

Charles has served as pro bono legislative counsel for Texas State Rifle Association since
1987, and is a recipient of the TSRA 2006 Presidential Citation Award. He is the founder of the
TexasCHLforum.com and the Texas Firearms Coalition.

Charles has been a Member of the NRA Board of Directors since 2001, where he serves
on the Legal Affairs, Finance, and Pistol Committees. He is also a Trustee on the NRA Civil
Rights Defense Fund Board, and is Chairman of the Audit Committee and Vice-Chairman of the
Bylaws and Resolutions Committee.

Charles can shoot too. He is an IDPA competitive shooter, an NRA Certified Instructor,
a Texas License to Carry a Handgun Instructor, and has completed numerous tactical firearms
courses, including many at Thunder Ranch. Charles is also a hunter and collector.

LUNCH
Clayton Cramer teaches history at College of Western Idaho. His ninth book, Lock,
Stock, and Barrel was published February, 2018. His law review article about the original
meaning of “bear arms” was cited in DC v. Heller (2008); his law review article about the
meaning of the Second Amendment in antebellum America and incorporation through the
Fourteenth Amendment was cited in McDonald v. Chicago (2010). His law review articles and
books have been cited in dozens of federal and state court opinions concern gun law, knife law,
and even libel law. He has published work on the connections between mass murder and the
destruction of the state mental hospital systems in the 1960s and 1970s.

SECTION 3

1. Sarah Gervase has been Assistant General Counsel at the National Rifle Association
since 2006. Gervase advises the NRA and NRA Foundation in a variety of fields, including law
enforcement issues, cyber law, trusts and estates, and contracts. Gervase also drafted the
women‘s amicus briefs on behalf of over a hundred women state legislators in the D.C. v. Heller
and McDonald v. Chicago U.S. Supreme Court cases. Justice Alito cited and quoted her brief in
the McDonald plurality opinion.

Sarah also teaches self-defense at NRA training courses and writes articles for the NRA
Law Enforcement Division’s quarterly newsletter. She was one of two 2012 recipients of the
NRA Executive Vice President’s Excellence Award.

Sarah is a graduate of Harvard, where she was a Harvard College Scholar, and Notre
Dame Law School. She holds a Certificate in Cybersecurity Strategy from Georgetown and is a
Certified Information Privacy Professional/US. Sarah is the proud sister of the head gunsmith at

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Ray’s Sporting Goods in Dallas and a Chief of Police in North Carolina. She enjoys reading,
architecture, the AR-15, cats, and American history. She is a Patron Life Member of the NRA
and a Member of the National Civic Art Society.

2. Patrick J. McLain, a retired Marine Corps military judge, has been in the practice of
criminal and military law since 1990. His first jury trials were tried in the deserts of Saudi
Arabia during operations Desert Shield and Desert Storm. He ended his federal government
service as a federal prosecutor in Dallas, Texas; serving in the child exploitation crimes,
computer crimes, and general federal crimes sections of the Office of the U.S. Attorney for the
Northern District of Texas.

Patrick McLain is an award-winning trial lawyer. He is recognized as AV (pre-eminent)

by Martindale-Hubbell, as an AVVO Client’s Choice attorney by his client and peer reviews, and
as a SuperLawyer since 2009 by Thomson Reuters’ lawyer rating service. Every one of his
assignments in the Marine Corps garnered him awards, including the Outstanding Career
Attorney Award from the Judge Advocates’ Association at the end of his twenty years of service.

Patrick McLain was graduated from the University of Dallas in 1980 with a concentration
in Medieval History, commissioned in the U.S. Marine Corps in 1982, and as a Marine officer,
was graduated from the University of Texas (Austin) School of Law in 1990. He has served as
instructor in trial advocacy at Emory University, Southern Methodist University, the Center for
American and International Law, the Naval Justice School, the US Air Force Judge Advocates’
School, as well as for the Texas Criminal Defense Lawyers Association, the Louisiana
Association of Criminal Defense Lawyers Association, and the State Bar of Texas. Patrick
McLain is also a graduate of Gerry Spence’s Trial Lawyers College and currently serves as the
President of the F Warrior Board, the alumni association of the Trial Lawyers College.

The Law Office of Patrick J McLain PLLC is headquartered in Dallas, Texas, where
Patrick McLain represents clients in state criminal cases in Texas. His practice, though, is
largely federal criminal cases in courts throughout the United States and the representation of
U.S. military personnel in trials and hearings all over the world, with several offices across the
country. Patrick McLain also represents citizens as plaintiffs in civil rights matters, including the
restoration of firearms rights.

SECTION 4

1. James P. Vann, J.D. serves as Division Counsel for the Washington Field Division of
the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In addition to representing
ATF at revocation hearings for firearms and explosives licenses, Mr. Vann provides legal advice
to agents and investigators on criminal and regulatory matters involving the Gun Control Act, the
National Firearms Act, the Safe Explosives Act, the Contraband Cigarette Trafficking Act, the
PACT Act, and other areas where ATF has jurisdiction. Mr. Vann also has been designated as a
Special Assistant United States Attorney in jurisdictions throughout the country to assist in the
prosecution of ATF cases.

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 Mr. Vann began his legal career as an Assistant Commonwealth’s Attorney for
Virginia. He became a Project Exile attorney after the first year, focusing solely on the
prosecution of gun crimes. Mr. Vann received his bachelor’s degree in economics from the
University of Virginia and his juris doctorate from William and Mary School of Law.

2. Stephen P. Halbrook, Ph.D.

“Stephen Halbrook is an attorney with extensive knowledge of the historical

underpinnings of the Second Amendment and practical knowledge of litigating in this rapidly
evolving area of law. His writings include topics as diverse as Gun Control in the Third Reich
and The Founders’ Second Amendment, and he was heavily involved in Heller and McDonald.”
– U.S. District Judge Michael J. Reagan, in Shepard v. Madigan, 2014 WL 4825592, *7 (S.D. Ill.
2014) (awarding attorney’s fees in challenge to Illinois carry ban). See further
http://stephenhalbrook.com/.

Legal background and focus

Stephen Halbrook has been engaged in civil litigation and criminal defense since 1978,
particularly regarding constitutional issues involving Federalism and Bill of Rights guarantees.
Represents firearm associations, manufacturers, importers, dealers, and owners in administrative,
civil, and criminal proceedings under federal, state, and local law, with a major focus on ATF
compliance.

Member of Virginia State Bar, District of Columbia Bar, U.S. Supreme Court, U.S.
Courts of Appeals - all circuits, other federal courts.

Testified in Senate and House Committees, U.S. Congress, including on the Sportsmen’s
Heritage and Recreational Enhancement (SHARE) Act of 2017 and numerous other firearm bills,
and on the nominations of Eric Holder and Sonia Sotomayor.

Academic background

Georgetown University Law Center, J.D. (1978); Florida State University, Ph.D.
Philosophy (1972). Assistant Professor of Philosophy 1972-81, George Mason University,
Howard University, Tuskegee University. Senior Fellow, The Independent Institute.

Supreme Court cases litigated

Argued Castillo v. U.S., 530 U.S. 120 (2000); Printz v. U.S., 521 U.S. 898 (1997); U.S. v.
Thompson/Center Arms Co., 504 U.S. 505 (1992). Co-counsel in Small v. U.S., 544 U.S. 385
(2005), and for NRA in McDonald v. Chicago, 130 S.Ct. 3020 (2010). Counsel for amici curiae
55 Senators, the Senate President, and 250 Representatives in D.C. v. Heller, 554 U.S. 570
(2008).

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Books

Firearms Law Deskbook: Federal and State Criminal Practice (Thomson/West 2017).

Gun Control in Nazi-Occupied France: Tyranny and Resistance (2018).

Gun Control in the Third Reich: Disarming the Jews and “Enemies of the State” (2013).
Also published in German, French, and Portuguese.

The Founders' Second Amendment: Origins of the Right to Bear Arms (2008). Cited in
McDonald v. Chicago.

Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998).
New Edition: Securing Civil Rights (2010). Cited in McDonald v. Chicago and DC v.
Heller.

That Every Man Be Armed: The Evolution of a Constitutional Right (1984, New Ed.
2013).

A Right to Bear Arms: State & Federal Bills of Rights & Constitutional Guarantees
(1989).

The Swiss and the Nazis: How the Alpine Republic Survived in the Shadow of the Third
Reich ( 2006). Also published in German, French, and Polish.

Target Switzerland: Swiss Armed Neutrality in World War II (1998, 2003). Also
published in German, French, Italian and Polish.

Selected Articles

“Firearm Sound Moderators: Issues of Criminalization & the Second Amendment,” 46:1
Cumberland L. Rev. 33 (2016).

“Reality Check: The ‘Assault Weapon’ Fantasy and Second Amendment Jurisprudence,”
14 Georgetown Journal of Law & Public Policy 47-76 (2016).

“New York’s Not So ‘SAFE’ Act,” 78 Albany L. Rev. 789 (2014/15).

“The Empire Strikes Back: D.C.’s Post-Heller Firearm Registration System,” 81 Tenn. L.
Rev. 571 (2014).

“Why Can’t We Be Like France?” 34 Fordham Urban Law Journal, No. 5, 1637 (2012).

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SECTION 5 ETHICS

Judge David Newell serves on the Texas Court of Criminal Appeals, the court of last
resort for criminal cases in Texas. Prior to his election in 2015, Judge Newell served as an
assistant district attorney for seventeen years, first at the Fort Bend County District Attorney’s
Office and later at the Harris County District Attorney’s Office. In his career, he appeared
before both the Court of Criminal Appeals and the Texas Supreme Court. Additionally, he
assisted in briefing before the United States Supreme Court in the case Salinas v. Texas. He is a
frequent presenter on the significant criminal cases from the United States Supreme Court and
the Court of Criminal Appeals for the State Bar of Texas as well as the Texas District and
County Attorneys Association. Judge Newell received his undergraduate degree from the
University of Houston and his J.D. from the University of Texas School of Law. He is board
certified in both criminal law and criminal appellate law.

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 National Firearms Law Seminar

Section One

An Update on Second Amendment Litigation: Developments in the

Right to Carry and Other Topics

Professor Michael O’Shea

The Fourth Amendment for Second Amendment Attorneys

Gerald Goldstein
AN UPDATE ON SECOND AMENDMENT LITIGATION:
Developments in the Right to Carry and Other Topics

Prof. Michael P. O’Shea

21st Annual National Firearms Law Seminar

May 4, 2018
Dallas, Texas

1
 INTRODUCTION – Two Divergent Paths
Today, a decade after the landmark decision in District of Columbia v. Heller,
554 U.S. 570 (2008), the lower court landscape of Second Amendment litigation
offers a picture of two increasingly divergent paths.
On one hand, we have a clearer and clearer idea of what a normal
jurisprudence of the Second Amendment ought to look like. Some lower federal and
state courts employ standard doctrinal techniques in Second Amendment cases,
upholding some forms of regulation while holding others unconstitutional. They
apply at least somewhat rigorous constitutional scrutiny, and treat Heller and its
Fourteenth Amendment sequel, McDonald v. Chicago, 561 U.S. 742 (2010), as
containing principles that extend beyond their most narrowly defined facts – not
only limiting principles, but also constructive principles that inform the scope and
purposes of the right to arms. The resulting decisions tend to take seriously the
ways that the right to arms is actually practiced by Americans, and they evaluate
restrictions, in part, in terms of whether they frustrate the ability of law-abiding
citizens to do certain things, to exercise the right.
On the other hand, many lower court decisions seem to relate to Heller,
McDonald, and the culture and practice of the right to arms in a fundamentally
external way. They apply “intermediate scrutiny” in ways that tolerate even fairly
obvious gaps in the government’s evidence or argumentation, without leading to
invalidation of a challenged measure. These courts are often willing to uphold gun
restrictions based on government interests such as “reducing the number of guns in
public” – interests that seem incompatible with the substantive judgment embodied
in a constitutional right to keep and bear arms. They tend to confine Heller and
McDonald’s coverage closely to the narrow facts of each case.
The pattern is well illustrated by the ongoing lower court litigation over the
existence and scope of the right to carry handguns (and other common weapons)
outside the home for self-defense.
Because of the importance of this topic, the volume of litigation, and the
possibility that this will be the issue that breaks the Supreme Court’s post-
McDonald blockade on hearing Second Amendment cases, I will give special
emphasis to the right-to-carry cases before turning to other notable recent Second
Amendment case law.

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 I. Carrying Weapons for Self-Defense Outside the Home
When Heller and McDonald struck down bans on handgun possession in the
home, many observers expected that the Supreme Court would soon turn to the next
logical question: how does the individual right to “bear arms” apply to carrying
handguns (or other common arms) outside the home? 1 There is a long tradition in
the state courts of applying the right to bear arms outside the home, and
invalidating overbroad restrictions on weapons carrying. 2 And Heller contained
many suggestions that the right to carry was constitutionally protected, citing early
cases striking down bans on weapons carrying as an example of enforcing the
Second Amendment, 3 and defining the right to bear arms as an individual right “to
… carry weapons in case of confrontation.” 4
The Supreme Court still has not yet revisited the issue. However, the right
to carry outside the home remains one of the most active Second Amendment issues
in the lower courts, and one of the most likely to lead to eventual Supreme Court
review.
After McDonald, the Second, Third, and Fourth Circuits issued decisions
upholding the restrictive carry laws of New York, New Jersey, and Maryland
against Second Amendment challenges 5 – although some of the judges who heard

1 See, e.g., Heller, 554 U.S. at 679-680 (Stevens, J., dissenting) (“Given the
presumption that most citizens are law abiding, and the reality that the need to
defend oneself may suddenly arise in a host of locations outside the home, I fear
that the District [of Columbia’s handgun possession ban] may well be just the first
of an unknown number of dominoes to be knocked off the table.”)
2The nineteenth and twentieth century case law recognizing a right to carry for
self-defense is surveyed in Michael P. O’Shea, Modeling the Second Amendment
Right to Carry Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for
Self-Defense, 61 AM. U. L. REV. 585, 623-665 (2012).
3 Heller, 554 U.S. at 629, citing Nunn v. State, 1 Ga. 243 (1846); Andrews v. State,
50 Tenn. 165 (1871) (striking down broad bans on handgun carrying).
4 See Heller, 554 U.S. at 592 (“Putting all of [the Second Amendment’s operative
clause’s] textual elements together, we find that they guarantee the individual right
to possess and carry weapons in case of confrontation.”).
5Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), cert. denied,133
S.Ct. 1806 (2013); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), cert. denied sub nom.
Drake v. Jerejian, 134 S.Ct. 2134 (2014); Woollard v. Gallagher, 712 F.3d 865 (4th
Cir. 2013), cert. denied, 134 S.Ct. 422 (2013).

3
those actions disagreed. 6 (These states’ laws are often referred to as “may-issue,”
but a more exact description might be “exceptional-issue,” since they block ordinary
citizens from the ability to carry unless the citizen demonstrates an exceptional
situation creating “a special need for self-defense which sets him apart from the
general public.” 7 [NY])
The three circuit courts refused to hold that the Second Amendment right
extends at all to carrying outside the home, reasoning that, even if it does, it
extends significantly weaker protection to carrying than it does to home possession.
The Third Circuit, like the other circuits, described itself as applying constitutional
intermediate scrutiny, but it excused New Jersey’s failure to offer any evidence that
restricting carry permits would increase public safety, on the ground that, since
New Jersey’s restrictions were enacted before the recognition of a Second
Amendment individual right, there was no reason for its legislators to produce
evidence to justify their action. 8 The Fourth Circuit concluded that Maryland’s
“good and substantial reason” requirement satisfied intermediate scrutiny because
the measure was tailored to serve the government interest in public safety by
“reduc[ing] the number of handguns carried in public” 9 – a putative government
interest that is difficult to square with the premise that carrying a handgun is part
of the exercise of a constitutional right. 10

6 See Woollard v. Sheridan, 863 F. Supp. 2d 462 (D. Md. 2012) (holding that
Maryland’s restrictive-issue statute failed intermediate scrutiny because merely
seeking to reducing the number of handguns in public was not adequately tailored
to the government’s interest in promoting public safety), rev’d, 712 F.3d 865 (4th
Cir. 2013); Drake v. Filko, 724 F.3d 426, 440-458 (Hardiman, J., dissenting).
7 N.Y. Penal L. 400.00(2)(f) (requiring an applicant for a handgun carry permit to
establish “proper cause”); Klenosky v. N.Y.C. Police Dep’t, 428 N.Y.S.2d 256, 257
(1st Dep’t 1980); aff’d, 53 N.Y.2d 685 (1981) (holding that proper cause cannot be
established from a simple desire for self-defense; rather, the applicant must
“demonstrate a special need for self-protection distinguishable from that of the
general community….”).
8Drake, 724 F.3d at 437-38 (arguing that New Jersey’s “predictive judgment” in
practically banning handgun carry could be justified, despite the absence of
evidence in the case, as a matter of “history, consensus and simple common sense”).
9 Woollard, 712 F.3d at 879 (“The State has clearly demonstrated that the good-and-
substantial-reason requirement advances the objectives of protecting public safety
and preventing crime because it reduces the number of handguns carried in
public.”).
10 As pointed out by the federal district judge below:

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The U.S. Supreme Court denied petitions for certiorari in all of the above cases.
In Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), a Ninth
Circuit panel rejected this analysis and held that California’s “good cause”
requirement would violate the Second Amendment if it required a special showing
of need above the ordinary desire for self-defense. 11 The Peruta panel began with
the Supreme Court’s interpretation in Heller of the meaning of “bear arms” as
“carry[ing] weapons,” and concluded that this right was not naturally limited to the
home. 12 The panel also noted the heavy emphasis Heller placed on the natural
right of self-defense, which suggested that the right should extend into potentially
dangerous public places. 13 The Peruta panel departed most clearly from previous
courts by conducting a full historical analysis of the right to bear arms for self-
defense, including the nineteenth century American sources the Supreme Court had
canvassed in Heller, which supported a presumptive right to carry common
weapons outside the home. 14 The panel concluded that, while a legislature could
regulate the right by requiring a particular mode of carrying (such as open or
concealed carry), it could not “destroy” the right by disqualifying most citizens from
having any practical way to exercise it. 15 Thus the restrictive “good cause”
requirement for concealed carry was categorically invalid under the Second
Amendment. California could not save the restrictions on concealed carry by

A law that burdens the exercise of an enumerated constitutional right by

simply making that right more difficult to exercise cannot be considered
‘reasonably adapted’ to a government interest, no matter how substantial
that interest may be.
Woollard v. Sheridan, 863 F. Supp. 2d 462, 475 (D. Md. 2012), rev'd sub nom.
Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); see also id, 863 F. Supp. 2d at
474 (arguing that Maryland’s special-need requirement is no better tailored to
reduce misuse of guns by permit holders than “a law indiscriminately limiting the
issuance of a permit to every tenth applicant” would be).
11 Peruta v. County of San Diego, 742 F.3d 1144, 1170 (9th Cir. 2014).
12 Id. at 1151-53.
13 Id. at 1155.
14 Id. at 1153-1167; see id. at 1173 (criticizing the Second through Fourth Circuit
decisions on the ground that they “all … declined to undertake a complete historical
analysis of the scope and nature of the Second Amendment right outside the
home.”).
15 Id. at 1169-1170.

5
pointing to the possibility of carrying openly, as open carry had been completely
banned in California while Peruta’s appeal was pending.
However, the Ninth Circuit granted rehearing en banc and reversed the
panel’s decision, with four judges dissenting. 16 The Peruta en banc majority
declined to decide whether the Second Amendment protected a right to carry
outside the home, but concluded that if so, the right was confined to open carry
only. 17
After the en banc reversal in Peruta, the Ninth Circuit joined the Second
through Fourth Circuits’ camp, returning the courts of appeals to their prior status
quo. The Seventh Circuit had held in 2012, in Moore v. Madigan, 702 F.3d 933 (7th
Cir. 2012), that the Second Amendment right extends to handgun carrying and that
its self-defense purpose is “as important outside the home as inside.” 18 but Moore
struck down Illinois’s “no carry” law, a statute that contained no exceptions for a
special need of self-defense, 19 unlike the laws in California, Maryland, New Jersey,
and New York. Thus, Moore’s conflict of authority with the Second through Fourth
Circuits was not as unmistakable as the Peruta panel’s had been. The same was
true of Palmer v. District of Columbia, a federal district court decision that
invalidated D.C’s ban on handgun carrying – the last remaining “no carry” statute
in the continental United States. 20
The Supreme Court denied a petition for certiorari in Peruta, with Justice
Thomas dissenting, joined by Justice Gorsuch. 21
Yet one month later, the U.S. Court of Appeals for the D.C. Circuit changed
the landscape again. After Palmer, the District of Columbia revised its carry statute
to an exceptional-issue statute that authorizes permits only in special
circumstances. The new statute drew a fresh challenge, and in Wrenn v. District of
Columbia, 22 the D.C. Circuit held that the statute was categorically invalid, without
needing to resort to a tier of means-ends scrutiny such as strict or intermediate

16 Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016).
17 Id. at 939.
18 Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012).
19 Id. at 934.
20 Palmer v. D.C., 59 F. Supp. 3d 173 (D.D.C. 2014).
21 Peruta v. California, 137 S.Ct. 1995 (June 26, 2017).
22 864 F.3d 650 (D.C. Cir. 2017).

6
scrutiny. 23 The majority turned aside a historical challenge based on the 1328
Statute of Northampton, concluding that whatever the contours of the English right
to arms, the American right protected a general right to carry a usable firearm for
self-defense. 24 Crucially, the Wrenn majority (like the Peruta panel) treated the
ability of the average citizen to exercise the right to bear arms as a touchstone in
gauging the constitutionality of regulation. Since D.C.’s exceptional-issue law left
most citizens with no alternative channels by which to bear arms for self-defense, it
could not stand. 25 A dissenting judge argued that only the home possession of
firearms fell at the core of the Second Amendment right, and that restrictions on
carrying firearms elsewhere should receive, at most, a deferential form of
intermediate scrutiny. 26
D.C. filed a petition for rehearing en banc, which (to the surprise of some
observers, myself included) was denied. The District of Columbia then announced
that it would not petition the Supreme Court for certiorari, but instead would
implement a new carry permitting law consistent with Wrenn.
The lower court landscape now has a feature it has not previously had in the
eight years since McDonald: a hard circuit split on the question of whether
exceptional-issue carry permit laws are constitutional. Wrenn holds these laws
violate the right to bear arms. The Second (Kachalsky), Third (Drake), Fourth
(Woollard), and Ninth (Peruta en banc) Circuits have held they do not. Plaintiffs in
New York and other states have filed new suits renewing the challenge to the
exceptional-issue laws in their states. See, e.g., NYSRPA v. Beach (N.D.N.Y.).
These suits call for the contrary circuit decisions to be overruled en banc or by the
Supreme Court. These suits are likely to yield certiorari petitions that will squarely
present presenting the new circuit split for Supreme Court review.

II. OTHER RIGHT TO CARRY TOPICS

23 Id. at 665-666 (“[T]he point of the [Second] Amendment isn't to ensure that some
guns would find their way into D.C., but that guns would be available to each
responsible citizen as a rule (i.e., at least to those no more prone to misuse that
access than anyone else).”).
24 Id. at 660-661.
25 Id. at 662 (“The rights to keep and to bear, to possess and to carry, are equally
important inasmuch as regulations on each must leave alternative channels for
both.”).
26 Id. at 668-670 (Henderson, J., dissenting).

7
 The lower courts have also been active in evaluating more limited regulations
of the right to carry.
Open vs. Concealed Carry: In Norman v. State, 27 a three-judge plurality
upheld Florida’s ban on open carry (while allowing concealed carry on a “shall issue”
basis) against a challenge under both the Second Amendment and Florida’s right to
arms, Fla. Const. art. I, § 8. The plurality concluded that since the open carry ban
did not severely burden the exercise of the right to bear arms for self-defense (since
citizens could carry concealed), it was subject only to intermediate scrutiny. 28 The
plurality did not require Florida to provided statistical or other empirical evidence
to justify its open carry ban. Instead, it concluded that the ban could be seen to
“reasonably fit” the government interest’s in promoting public safety – because
mandating concealed carry could make it less likely that wrongdoers would either
(a) target open carriers for attack or (b) attempt to take an open carrier’s gun. 29
Two judges dissented, arguing on originalist grounds that the right to bear arms
under the Second Amendment was specifically a right to openly bear arms, and thus
Florida’s open carry ban amounted to a nullification of the constitutional right. 30
The dissent cited an opinion from the late Justice Scalia’s jurisprudence, for the
proposition that when using history to define a constitutional right, courts should
“refer to the most specific level at which a relevant tradition protecting, or
denying protection to, the asserted right can be identified.” 31
The “form of carry” question presents another split of authority: the
Florida Supreme Court’s conclusion that the ability to carry concealed is a
valid way to vindicate the right to bear arms is consistent with the D.C.
Circuit’s decision in Wrenn. It is contrary to the Ninth 32 and Tenth Circuit’s
holdings that only open carry can possibly claim constitutional protection:
“the concealed carrying of firearms falls outside of the scope of the Second
Amendment’s guarantee.” 33

27 215 So.3d 18 (Fla. 2017).

28 Id. at 36-38.
29 Id. at 39-41.
30 See id. at 42-46 (Canady, J., dissenting).
31Id. at 44 (Canady, J., dissenting), quoting Michael H. v. Gerald D., 491 U.S. 110,
127 n.6 (1990).
32 In the Peruta en banc decision, discussed above.
33 Peterson v. Martinez, 707 F.3d 1197, 1212 (10th Cir. 2013).

8
 Post office parking lots: In Bonidy v. U.S. Postal Service, 34 a Tenth Circuit
panel upheld the Postal Service’s policy prohibiting firearms from post office
parking lots, in a case involving an as-applied challenge by a state-permitted
handgun carrier who wanted to park at an isolated rural post office. The majority
held that if the right to carry extends outside the home, then the government should
be given “considerable flexibility” to regulate handguns in public, 35 and the postal
service’s ban could be upheld as reasonable even if not all post office property raised
the same degree of security concerns. A dissenting judge argued that the service’s
policy was not adequately tailored to protect public safety to the extent that it
applied to Bonidy (a background-checked and permitted handgun carrier), at a rural
post office that had no special features that made it particularly “sensitive.” 36
Army Corps of Engineers land: Another split. The U.S. Army Corps of
Engineers administers millions of acres of federal land throughout the country that
adjoin dams and other water projects, including recreational areas that draw over
300 million visitors annually. In Morris v. US Army Corps of Engineers, 37 an Idaho
federal district court enjoined a federal regulation, 36 C.F.R. § 327.13, that
prohibited loaded firearms and ammunition in most circumstances on Corps land.
The Idaho federal court followed the Ninth Circuit’s Peruta panel opinion, which
had recognized a general right to carry in public, and treated the Corps regulation
as tantamount to a complete ban on carrying for self-defense, which the Peruta
panel had held was categorically unconstitutional. 38
In conflict with this decision, the federal district court in GeorgiaCarry.org v.
U.S. Army Corps of Engineers 39 upheld the Corps carry ban. It treated the entirety
of the Corps’ land properties (one of which encompassed over 75,000 acres) as a
“sensitive area” within the meaning of Heller, because of the presence of “sensitive
infrastructure” such as dams.

34 790 F.3d 1121 (10th Cir. 2015).

35 Id. at 1126.
36 Id. at 1137-38 (Tymkovich, J., dissenting).
37 990 F. Supp. 2d 1082 (D. Idaho 2014).
38Although Morris was appealed to the Ninth Circuit under the caption Nesbitt v.
US Army Corps of Engineers, No. 13-36049, the parties settled shortly before oral
argument and the Ninth Circuit granted an unopposed motion to dismiss the Corps’
appeal. Morris (now Nesbitt) was granted permission to carry on Corps land, and
the district court’s injunction remains in place in the state of Idaho while the Corps
considers potential revisions to its regulation.)
39 212 F. Supp. 3d 1348 (N.D. Ga. 2016).

9
 Public Parks: Two recent state cases struck down carry bans involving public
parks.
In People v. Chairez, 40 the state supreme court unanimously held that
Illinois’s ban on licensed handgun carry within 1000 feet of a public park
violated the Second Amendment. 41 The court reasoned that “sensitive places”
laws, which Heller described as “presumptively lawful,” should still receive
constitutional scrutiny – the presumption is a rebuttable one. The burden
imposed by the no-guns-within-1000-feet-of-a-park rule was “not minimal”;
and the combined effect of the overlapping ban zones functioned as a near-
complete ban on carrying in urban areas (Chicago alone has over 600 parks).
The court expressed concern that this made it difficult for citizens to exercise
the right to carry in a practicable manner. Thus the court chose to apply a
demanding version of intermediate scrutiny, which required evidence that
the scope of the ban was necessary to serve public safety interest. It
concluded that the State had offered no meaningful evidence to support the
ban. It also expressed concern about the impossibility of adequate notice to
citizens of the scope of the prohibition, since so many areas could be within
1000 feet of a park even if a citizen could not know it. It is interesting to
compare the 1000’-of-a-park ban in Chairez with the federal 1000’-of-a-
primary-or-secondary-school ban in the Gun Free School Zones Act of 1995,
18 U.S.C. § 922(q), which also creates a daunting pattern of overlapping no-
go zones in populous areas. However, the federal GFSZA contains an
exception for persons holding a state-issued carry permit from the same state
where the school is located.
In Bridgeville Rifle & Pistol Club, Ltd. v. Small, 42 the state supreme court
held that Delaware state agencies’ ban on carrying firearms in over 40,000
acres of state parks and forests violated the state’s 1987 constitutional right
to arms, Del. Const. art. I, § 10. The majority used Wrenn v. District of
Columbia, and other Second Amendment precedent recognizing a right to
carry, to guide its interpretation of the state guarantee. It concluded that
large, open-access parks and forests could not be characterized as “sensitive”
areas. Thus the agencies’ ban on the right to bear arms (with a narrow
exception for hunting) was tantamount to “eviscerat[ion]” of the right, and
was arguably categorically unconstitutional with no need for tiered scrutiny.

40 2018 IL 121417, --- N.E.3d --- (Ill. Feb. 1, 2018).

41 In People v. Aguilar, 2013 IL 112116, 2 N.E.3d 321 (Ill. 2013), which struck down
Illinois’s former “no carry” law, the same court had held that the Second
Amendment protects the right to bear arms outside the home.
42 176 A.3d 632 (Del. 2017).

10
It also failed intermediate scrutiny because the agencies had not provided a
justification for the broad ban beyond the general argument that the “private
possession of firearms is inconsistent with, and contrary to, preserving public
safety.”
Two justices wrote a 95-page dissenting opinion arguing, inter alia, that the
government could prohibit firearms on its property on the same terms as a
private property owner, and that the agencies’ ban was adequately tailored to
protect public safety because “[w]hen people come together in parks and
forests for games and recreation, emotions can run high. … When folks drink
and carouse, they sometimes get jealous and angry.” (In truth, possessing
firearms while under the influence of alcohol is an independent crime under
Delaware law, 11 Del. C. § 1460, a regulation that the majority noted was not
placed at issue by the case.)

11
 III. OTHER SECOND AMENDMENT TOPICS

Rifle and Magazine Bans

Federal circuit decisions prior to 2016 had upheld the semiautomatic firearm
and magazine “assault weapon” bans of the District of Columbia, New York and
Connecticut. These decisions conceded that modern rifles such as the AR-15 (which
are possessed in the millions by peaceable Americans) and magazines holding over
10 rounds were “in common use” as that term was used in Heller, and assumed
arguendo that they were within the scope of the Second Amendment’s protections.
These courts had nevertheless upheld wide-ranging bans using a loose form of
intermediate scrutiny, arguing that the weapons were disproportionately used in
mass shootings and attacks on police (although handguns, not rifles, still account
for a large majority of firearm homicides).
A panel decision of the Fourth Circuit, reviewing Maryland’s ban, broke from
this approach, concluding that a ban encompassing widely owned modern rifles
such as the AR-15 was analogous to a ban on an entire category of speech and
demanded the application of strict scrutiny. However, the en banc Fourth Circuit
abrogated this decision and adopted the least rights-protective approach yet. Kolbe
v. Hogan 43 held that these arms and magazine are constitutionally unprotected –
even if they are in common use – because they are “like” weapons that are “most
useful for military service,” such as (full automatic) “M-16 rifles” – portions of
phrases that the en banc majority culled from the Heller opinion. (Of course, these
semiautomatic rifles and magazines are actually in widespread use by municipal
police forces and sheriff’s departments, which are not military organizations and, it
goes without saying, are not engaged in waging war on the public.)
It is hard to characterize the Fourth Circuit’s move otherwise than as
removing pieces of language from their context in Heller and employing them for a
purpose that was not the Supreme Court’s. After all, Heller discussed weapons
“useful for military service” in the course of distinguishing that possible criterion
from the “common use” test that Heller actually adopted to help define the Second
Amendment’s coverage. The Supreme Court’s point was that, although the Second
Amendment’s preface refers to the militia, contemporary military utility neither
bolsters a weapon’s claim to constitutional protection, nor – contrary to the Kolbe en
banc majority – does it disqualify it. The test simply asks a different question:
whether the weapon is in common use by Americans today for traditionally

43 849 F.3d 114 (Feb. 21, 2017) (en banc), cert. denied, 138 S.Ct. 469 (2017).

12
legitimate purposes like self-defense. In a prior case, the Supreme Court actually
took care to distinguish the AR-15 from unusual weapons like the M-16 in the
statutory case of Staples v. United States. 44 In that case, the Court held that it was
improper to impose strict criminal liability on the owner of a malfunctioning AR-15,
because unlike machineguns, semiautomatic firearms are part of the “long tradition
of widespread lawful gun ownership” in America. 45

Prohibited Persons
The en banc Third Circuit held in Binderup v. Attorney General, 46 that
individuals prohibited from owning firearms by 18 U.S.C. 922(g)(1) could mount as-
applied Second Amendment challenges to their prohibited status if they could show
that their offense of conviction was not a “serious” crime, despite being punishable
by more than one year in prison. Factors such as lack of violence, misdemeanor
status under state law, and a modest sentence imposed can suggest a prior
conviction lacks “serious” status. 47 To defeat the as-applied challenge, the
government would have to satisfy intermediate scrutiny, such as by establishing a
likelihood of recidivism by the plaintiff. The U.S. Supreme Court denied a certiorari
petition by the federal government to review the case. 48

Waiting Periods
The Ninth Circuit in Silvester v. Harris 49 reversed a contrary district court
ruling and upheld California’s 10-day waiting period for firearm purchases, even as
applied to someone who had previously passed a state background check as the
holder of a concealed carry permit, or as a previous purchaser of a registered
firearm. The court stated that cooling off period “may prevent or reduce impulsive
acts of gun violence or self-harm,” and that this was “no less true for a purchaser
who already owns a weapon and wants another, than it is for a first time
purchaser.” The court indicated that the waiting period could be adequately
tailored because some subsequent purchasers might be upgrading from a less

44 511 U.S. 600 (1994).

45 Id. at 610.
46 836 F.3d 336 (3d Cir. 2016) (en banc).
47 Id. at 351.
48 Sessions v. Binderup, 137 S.Ct. 2323 (2017).
49 843 F.3d 816 (9th Cir. 2016).

13
dangerous firearm to a more dangerous one. However, the waiting period was not
conditioned on any particular kind of firearm being purchased in the subsequent
transaction(s). Silvester illustrates the deferential “intermediate scrutiny” practiced
by many lower courts, where fairly obvious gaps exist in the justification offered for
a restriction, but these deficiencies do not yield a finding of inadequate tailoring or
“fit.” (Justice Clarence Thomas later wrote an opinion dissenting from the U.S.
Supreme Court’s denial of certiorari in this case. 50)

Nonfirearm Weapons
State v. Montalvo, 162 A.3d 270 (N.J. 2017) – recognized a Second
Amendment right to possess a machete at home for self-defense.

Firearm Commerce
Out of state FFL sales: The Fifth Circuit, reversing a contrary district court
ruling, held in Mance v. Sessions 51 that 18 U.S.C. § 922(a)(3)’s ban on sales of
handguns by an FFL to a non-resident of the FFL’s state did not violate the Second
Amendment; the opinion asserted that the prohibition survived even strict scrutiny.
Gun store zoning:
The Ninth Circuit in Texeira v. Alameda County 52 upheld a county zoning
ordinance banning gun stores in all unincorporated areas of the county. The
en banc majority held that there was no freestanding Second Amendment
right to sell firearms. (A certiorari petition is pending.)
However, Ezell v. City of Chicago (Ezell II)53 struck down severe zoning
restrictions on gun ranges and ban on persons under 18 being in gun ranges.

Prohibited Persons

50 Silvester v. Becerra, 138 S.Ct. 945, 945 (Feb. 20, 2018) (Thomas, J., dissenting
from denial of certiorari) (arguing that the Ninth Circuit’s “deferential analysis was
indistinguishable from rational-basis review” and “is symptomatic of the lower
courts' general failure to afford the Second Amendment the respect due an
enumerated constitutional right.”).
51 880 F.3d 183 (5th Cir. Jan. 19. 2018).
52 873 F.3d 670 (9th Cir. 2017) (en banc).
53 846 F.3d 888 (7th Cir. 2017).

14
 Stimmel v. Sessions 54 – A divided panel of the Sixth Circuit, applying
intermediate scrutiny, held that 18 USC § 922(g)(9)’s prohibition of firearm
possession was not unconstitutional as applied to a one-time domestic violence
misdemeanant who subsequently had a clean criminal record for 20 years. Judge
Boggs dissented, arguing that government had not presented sufficient evidence of
recidivism/ ongoing dangerousness to justify the ban as applied to Stimmel. The
dissent would have remanded for further evidence.

54 879 F.3d 198 (6th Cir. 2018).

15
 IV. LOOKING TO THE SUPREME COURT
The U.S. Supreme Court has not heard oral argument in a Second
Amendment case since McDonald v. Chicago, eight years ago.
The Court’s stance on the Second Amendment has been nonintervention,
with a sole exception: the summary certiorari grant, vacate, and remand in Caetano
v. Massachusetts. 55 Heller had concluded that the Second Amendment protects
“arms … that were not in existence at the time of the founding,” yet the state court
in Caetano had held that Massachusetts could ban stun guns because they “were
not in common use at the time of the Second Amendment’s enactment.” The
Supreme Court tersely pointed out the obvious inconsistency with its precedents,
vacated and remanded (after which the charge against Caetano was dismissed).
Although the Court had denied an earlier certiorari petition in a rifle-and-
magazine-ban case that had made similar errors, 56 Caetano suggests that the Court
is willing to intervene in cases that present an exceptionally overt contradiction of
its own opinions – at least, perhaps, in some factual settings.
Last year the Court adhered to its nonintervention path in a watched case
where, contrary to the usual pattern, the lower court had granted relief on Second
Amendment grounds and the certiorari petition was filed by the government.
Review was ultimately denied in Sessions v. Binderup, 57 discussed above, which
upheld two plaintiffs’ as-applied challenges to the federal “felon in possession”
statute, 18 U.S.C. § 922(g)(1). Justices Ginsburg and Sotomayor would have
granted the petition.
In the past few years Justice Thomas has dissented from the Court’s Second
Amendment certiorari denials in an increasing number of cases:
• Friedman v. City of Highland Park, 58 where the court below had upheld a
municipal “assault weapons” ban, partly on the ground that it “may
increase the public’s sense of safety,” even if it does not actually
significantly reduce criminal violence;

55 136 S.Ct. 1027 (2016) (per curiam).

56 Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015), cert. denied, 136
S.Ct. 447 (2015).
57 Sessions v. Binderup, 137 S.Ct. 2323 (2017).
58136 S.Ct. 447 (2015) (Thomas, J., joined by Scalia, J., dissenting from denial of
certiorari)

16
 • Jackson v. City and County of San Francisco, 59 where the Ninth Circuit
had upheld a municipal gun-storage restriction requiring handguns to be
either disabled, stored in a locked container, or worn on the owner’s
person at all times;
• Peruta v. California, 60 where the en banc Ninth Circuit had held that
concealed carry was not constitutionally protected; and
• Silvester v. Becerra, 61 where the Ninth Circuit had upheld California’s 10-
day waiting period for firearm purchases, even as applied to carry-permit
holders and persons who already owned a registered firearm.
Justice Thomas has used these “dissentals” to criticize the lower courts for
applying overly deferential forms of scrutiny to Second Amendment claims, and the
Court itself for failing to grant review and clarify the development of Second
Amendment rights.
At various times, Justices Thomas, Alito, 62 and Gorsuch (as well as the late
Justice Scalia) have joined opinions suggesting that lower courts are
underprotecting the Second Amendment rights recognized in Heller.

59135 S.Ct. 2799 (2015) (Thomas, J., joined by Scalia, J., dissenting from denial of
certiorari).
60137 S.Ct. 1995 (2017) (Thomas, J., joined by Gorsuch, J., dissenting from denial of
certiorari). Justice Thomas argued that review should have been granted because
the Second Amendment likely protected a right to carry arms in public in some
fashion, and the issue of its application outside the home had been “fully vetted” by
the lower courts. Id. at 1997-1999.
61138 S.Ct. 945, 945 (Feb. 20, 2018) (Thomas, J., dissenting from denial of
certiorari) (arguing that the Ninth Circuit’s “deferential analysis was
indistinguishable from rational-basis review” and “is symptomatic of the lower
courts' general failure to afford the Second Amendment the respect due an
enumerated constitutional right.”).
62Justice Alito wrote a separate concurring opinion in Caetano, the Massachusetts
stun gun case, in which he (joined by Justice Thomas) argued that the Court should
have held the stun gun ban unconstitutional on the merits instead of simply
vacating the state court’s judgment and remanding. Caetano v. Massachusetts, 136
S.Ct. 1027, 1033 (2016) (Alito, J., concurring in the judgment) (“While less popular
than handguns, stun guns are widely owned and accepted as a legitimate means of
self-defense across the country. Massachusetts' categorical ban of such weapons
therefore violates the Second Amendment.”).

17
 If certiorari petitions ultimately arise from the right-to-carry lawsuits
recently filed in the aftermath of the “hard” circuit split created by Wrenn v.
District of Columbia, these will present perhaps the strongest practical claim on the
Supreme Court’s plenary review since McDonald was decided eight years ago.

* * *

18
THE FOURTH AMENDMENT
FOR SECOND AMENDMENT
ATTORNEYS

21st Annual National Firearms Law

Seminar
Hyatt Regency
300 Reunion Blvd.
Dallas, Texas

May 4, 2018

Presented by:
GERALD H. GOLDSTEIN
29th Floor Tower Life Building
San Antonio Texas 78205
(210) 226-1463
ggandh@aol.com

Outline Prepared by:

JOHN S. GILMORE III

GOLDSTEIN, GOLDSTEIN, HILLEY & ORR

29TH FLOOR TOWER LIFE BUILDING
310 S. ST. MARY’S STREET, SUITE 2900
SAN ANTONIO, TEXAS 78205

1
 TABLE OF CONTENTS:

I. Introduction ................................................................................................................. 2
A. “Knock and Announce”- The New Majority ......................................................................................... 2
1. Hudson v. Michigan, 547 U.S. 586 (2006) ......................................................................................... 2
B. “Knock and Talk” .................................................................................................................................. 3
1. Carroll v. Carman, 135 S.Ct. 348 (2014) (per curiam). ..................................................................... 3
II. THE EXCLUSIONARY RULE:.............................................................................. 4
A. SUPPRESSION OF EVIDENCE, PROTECTING THE CITIZENRY FROM ITS PROTECTORS. .. 4
1. U.S. v. LEON, 468 U.S. 897 (1984).................................................................................................... 4
B. THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE ............................................. 5
1. United States v. Leon, 468 U.S. 897 (1984). ...................................................................................... 5
2. Davis v. United States, 131 S. Ct. 2419 (2011). ................................................................................. 6
3. Heien v. North Carolina, 135 S.Ct. 530 (2014). ................................................................................. 7
4. Utah v. Strieff, 136 S. Ct. 27 (2015). .................................................................................................. 7
C. EXCEPTIONS TO OFFICER'S "GOOD FAITH" RELIANCE UPON WARRANT........................... 8
1. "SUBJECTIVE" GOOD-FAITH INSUFFICIENT: OFFICER'S RELIANCE WAS NOT
REASONABLY BASED UPON "OBJECTIVE" STANDARDS ......................................................... 8
2. FRANKS-TYPE MISREPRESENTATIONS IN OBTAINING WARRANT: ................................... 8
3. MAGISTRATE NOT "NEUTRAL AND DETACHED" .................................................................. 8
4. AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE ........................................................ 9
5. FACIALLY DEFICIENT WARRANT .............................................................................................. 9
6. TIMELINESS ....................................................................................................................................10
7. RELIABILITY OF INFORMANT AND/OR INFORMATION.......................................................10
8. ANYTIME IT WOULD BE "UNREASONABLE" TO RELY ON THE WARRANT ....................10
9. COLLECTIVE BAD FAITH (WHAT IS GOOD FOR THE GOOSE) ............................................10
III. OTHER CASES: .................................................................................................... 11
A. OVER BREADTH AND GENERAL SEARCH: ................................................................................ 11
B. NO NEXUS BETWEEN PROBABLE CAUSE AND THE PLACE TO BE SEARCHED................ 12
IV. “GOOD FAITH” ISSUES:.................................................................................... 14
A. BURDEN OF PROOF ON PROSECUTION TO DEMONSTRATE "GOOD FAITH"..................... 14
B. GOOD FAITH RELIANCE ON SUMMONS ..................................................................................... 15
C. "GOOD FAITH" EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES
AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL.......................................... 15
1. ILLINOIS v. KRULL, 480 U.S. 340 (1987). ......................................................................................15
V. OTHER WARRANTLESS SEARCHES .............................................................. 16
A. City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015)........................................................................... 16
B. Rodriguez v. United States, 135 S. Ct. 1609 (2015)............................................................................. 16

1
 C. THE "CURTILAGE" SURROUNDING A HOME IS INCLUDED WITHIN THE AREA OF
HEIGHTENED PROTECTION ............................................................................................................... 18
1. Florida v. Jardines, 133 S. Ct. 1409 (2013). .....................................................................................18
D. ELECTRONIC TRACKING DEVICES ("BEEPERS") ..................................................................... 19
1. United States v. Jones, 132 S. Ct. 945 (2012). ..................................................................................20
2. United States v. Riley- CELL PHONES “GET A WARRANT” ......................................................21
3. Grady v. North Carolina, 135 S. Ct. 1368 (2015) (per curiam) ........................................................22
VI. “GOOD FAITH” EXCEPTION DOES NOT APPLY TO STATUTORY
SUPPRESSION REMEDIES ...................................................................................... 22
A. “GOOD FAITH” MUST BE OBJECTIVE ......................................................................................... 22
B. “UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION
OF CONFESSION ................................................................................................................................... 24
1. Corley v. United States, 556 U.S. 303 (2009)....................................................................................24
C. STATES ARE FREE TO PROVIDE GREATER PROTECTIONS FOR THEIR CITIZENRY
UNDER STATE CONSTITUTION AND STATUTES .......................................................................... 25
1. LEGO v. TWOMEY, 404 U.S. 477 (1972). ........................................................................................25
D. SEVERAL STATES HAVE REJECTED ANY LEON "GOOD FAITH" EXCEPTION ................... 27
E. WHAT QUANTUM OF PROOF IS NECESSARY TO DEMONSTRATE PROBABLE CAUSE? . 30
F. SUBJECTIVE INTENT OF OFFICERS ............................................................................................. 31
VII. OTHER EXIGENT CIRCUMSTANCES .......................................................... 32
A. PROTECTIVE SWEEPS..................................................................................................................... 32
B. SEARCH INCIDENT TO ARREST ................................................................................................... 32
1. DNA EVIDENCE TAKEN UPON ARREST ...................................................................................32
C. ARREST IN ONE’S HOME ............................................................................................................... 34
1. SPOUSAL CONSENT ......................................................................................................................34
2. Physical presence of non-consenting spouse now required. ..............................................................35
D. EXIGENT CIRCUMSTANCES.......................................................................................................... 35
1. Kentucky v. King, 131 S. Ct. 1849 (2011). (8-1) Ginsburg dissenting...............................................35
2. Missouri v. McNeely, 133 S. Ct. 1552 (2013)....................................................................................36
3. DEADLY FORCE AND THE FOURTH AMENDMENT – ............................................................38
Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam). ..........................................................................38
VIII. CONCLUSION ................................................................................................... 39

2
 I. Introduction
The past years have seen significant
developments in criminal jurisprudence.
The following cases and issues represent
one lawyer’s view of important recent
precedents and what we may expect in
the future.
A. “Knock and Announce”- The
New Majority
1. Hudson v. Michigan, 547 U.S. 586
(2006)
Since the landmark case of Mapp v.
Ohio, 367 U.S. 643 (1961), the
“exclusionary rule” has functioned to
remedy and discourage violations of
individuals’ rights by state law
enforcement officers by preventing
evidence obtained by constitutionally
offensive means from being introduced
in a criminal prosecution. Following
Mapp, in the context of the Fourth
Amendment, an unreasonable search or
seizure has almost necessarily mandated
suppression of the tainted evidence.
Previously, the Supreme Court – in a
significant opinion authored by Justice
Scalia – determined that violations of the
Fourth Amendment’s “knock-and-
announce” requirement do not implicate
the exclusionary rule. 1 The opinion
1
In Wilson v. Arkansas, 514 U.S. 927
(1995), Justice Thomas, writing for a
unanimous Supreme Court, held that the
“[t]he common law ‘knock and
announce’ principle forms a part of the
reasonableness inquiry under the Fourth
Amendment,” however delaying entry
for 15 seconds was later held sufficient
to satisfy the knock-and-announce
requirement in United States v. Banks,
540 U.S. 31 (2003).
2
seems to have three lines of reasoning
justifying its conclusion. The first is that
the social costs of the exclusionary rule
(i.e. suppression of material evidence in
a criminal prosecution) substantially
outweigh the deterrent effect of the rule
in knock-and-announce violations.
Second, there now exist other means of
deterring police actions that violate
individual rights, including civil rights
suits and civilian review boards. Finally,
there is a substantially attenuated causal
connection between the failure to
announce entry and the recovery of
evidence once inside.
The Hudson Court reasoned that
whether the exclusionary sanction is
appropriately imposed in a particular
case, is an issue separate from the
question whether the Fourth Amendment
rights of the party seeking to invoke the
rule were violated by police conduct.
Scalia writes:
“Suppression of evidence…has
always been our last resort, not
our first impulse. The
exclusionary rule generates
‘substantial social costs’…which
sometimes include setting the
guilty free and the dangerous at
large…. We have…repeatedly
emphasized that the rule’s ‘costly
toll’ upon the truth-seeking and
law enforcement objectives
presents a high obstacle for those
urging its application.”
In this new majority, consisting of
Chief Justice Roberts, and Justices
Scalia, Thomas Alito and Kennedy,
Hudson is perhaps more disturbing for
what it portends than what it holds. For
many readers, the Court’s opinion
foretells a future where constitutional
rights are not substantively eroded by the
Court’s holdings, but rather stripped of
what may be the only truly effective
means of judicial enforcement. If the
exclusionary rule does not function to
enforce a right, does the right practically
exist? Will police and executive policy
makers truly be deterred from
constitutionally offensive conduct by the
threat of a civil rights lawsuit? And,
what other constitutional rights will the
Court deem unworthy of the severity of
the exclusionary rule?
Post Hudson, we already are starting
to see a retreat from the protections that
the exclusionary rule has generally
covered in the past. Almost every circuit
has weighed in and will continue to do
so post-Hudson. The Ninth Circuit has
now held that under Hudson, an officer’s
failure to leave a copy of the executed
warrant on the premises does not warrant
suppression, even if the requirements to
serve a copy of the warrant is of a
constitutional dimension. See U.S. v.
Hector, 474 F.3d 1150 (9th Cir. 2007) In
the Seventh Circuit, following a Hudson
analysis, the Court held that the failure
to create a written search warrant,
required by the federal telephonic search
warrant statute does not trigger the 4th
Amendment’s exclusionary rule. See
U.S. v. Cazares-Olivas, 515 F.3d 726
(7th Cir. 2008). The Tenth Circuit
refused to expand Hudson’s
exclusionary rule exception to consent
obtained from someone who police
mistakenly (and unreasonably) believed
had the right to consent, reasoning, “in
our view, the Supreme Court’s holding
in Hudson is based on considerations
pertaining to the knock-and-announce
requirement in particular rather than to
other Fourth Amendment violations” See
U.S. v. Cos, 498 F. 3d 1115 (10th Cir.
2007). The Fourth Circuit takes Hudson
further as well when it holds that
fingerprints taken following an illegal
arrest are subject to suppression only if
taken for an “investigative,” rather than
3
an “administrative” purpose. See U.S. v.
Oscar-Torres, 507 F.3d 224 (4th Cir.
2007).
B. “Knock and Talk”
1. Carroll v. Carman, 135 S.Ct. 348
(2014) (per curiam).
In Carroll, police officers received a
report that Michael Zita had stolen two
handguns and a vehicle and likely fled to
the Carman residence. 135 S.Ct. 348
(2014). Officer Carroll and another
officer went to the Carmen residence and
found a small structure in the rear of the
property with a door open. Id. at 349.
The officers approached and announced
their presence. Id. When no one
responded, they continued to approach
the home via a sliding glass door they
believed to be a customary entrance. Id.
Zita was not found and the Carmens
were not charged with a crime, but they
later sued Officer Carroll in district
court, arguing that he had unlawfully
entered their property in violation of the
warrant requirement of the Fourth
Amendment. Id. Carroll argued that his
entry was legal under the “knock and
talk” exception. Id. at 350. The
Carmens argued that the exception
didn’t apply because usual visitors use
the front door, not the back sliding door.
Id. The U.S. Court of Appeals for the
Third Circuit reversed the district court’s
ruling in favor of Carroll because the
“knock and talk” exception requires that
police begin their interaction at the front
door. Id. In a per curiam opinion, the
Court held that a government official is
entitled to qualified immunity unless his
actions violated a statutory or
constitutional right clearly established at
the time of the alleged conduct. Id. In
this case, they held that there was no
clearly established law that a police
interaction must begin at the front door
to be eligible for the “walk and talk”
exception to the warrant requirement. Id.
at 351.
II. THE EXCLUSIONARY
RULE:
A. SUPPRESSION OF
EVIDENCE, PROTECTING
THE CITIZENRY FROM ITS
PROTECTORS.
1. U.S. v. LEON, 468 U.S. 897 (1984).
Despite recent attempts to malign its
efficacy and efficiency, the Exclusionary
Rule has remained the primary vehicle
for enforcing compliance with the
Fourth Amendment since 1961 2. The
prohibition on admitting illegally
obtained evidence not only serves to
deter illegal police conduct, but also
maintains the "imperative of judicial
integrity" by extricating courts from
participation in police illegality.
"Courts which sit under our
Constitution cannot and will not
be made party to lawless
invasions of the Constitutional
rights of citizens by permitting
use of the fruits of such
invasions." Terry v. Ohio, 392
U.S. 1, 13, 88 S. Ct. 1868, 20
L.Ed.2d 889 (1968).
Thus, courts stand as protection
against our protectors.
"[Fourth Amendment rights] ...
are not mere second-class rights
2 [refusing to apply the exclusionary rule
Mapp v. Ohio, 367 U.S. 643, 81 1684,
6 L.Ed.2d 1081 (1961).
4
but belong in the catalog of
indispensable freedoms. Among
deprivations of rights, none is so
effective in cowing a population,
crushing the spirit of the
individual and putting terror in
every heart. Uncontrolled search
and seizure is one of the first and
most effective weapons in the
arsenal of every arbitrary
government....
"But the right to be secure
against searches and seizures is
one of the most difficult to
protect. Since the officers are
themselves the chief invaders,
there is no enforcement outside
the court." Illinois v. Gates, 462
U.S. 213, 274-75, 103 S. Ct.
2317, 76 L.Ed.2d 527, 572
(1983) [Brennan, J., dissenting,
citing Brinegar v. U.S., at 180-
181 (1949) (Jackson, J.,
dissenting)].
However, in U.S. v. Leon, 468 U.S.
897 (1984), a majority of the Supreme
Court rejected any justification other
than the deterrence rationale for
excluding illegally obtained evidence
from criminal trials, noting: "The rule
thus operates as 'a judicially created
remedy designed to safeguard Fourth
Amendment rights generally through its
deterrent effect, rather than a personal
right of the person aggrieved'...." Leon,
468 U.S. at 905 (1984). Thus, the Court
has held under some circumstances that
the exclusionary rule does not apply
because its deterrent effect is diminished
by competing interests or by attenuation
from the illegal police conduct. See, INS
v. Lopez-Mendoza, 468 U.S. 1032, 104
S. Ct. 3479, 82 L.Ed.2d 778 (1984)
to deportation proceedings because the
deterrent effect was outweighed by the
social costs involved in the context of
"unique immigration proceedings" that
are "preventative as well as punitive"];
U.S. v. Janis, 428 U.S. 433, 96 S. Ct.
3021, 49 L.Ed.2d 1046 (1976) [noting
evidence illegally seized by state officers
not excluded in federal civil tax
proceeding as additional deterrence
deemed outweighed by social costs];
U.S. v. Calandra, 414 U.S. 338 (1974)
[stating exclusionary rule not applicable
to grand jury proceedings]; Stone v.
Powell, 428 U.S. 465, 49 L.Ed.2d 1067,
96 S. Ct. 3037 (1976) [suppression
issues are not cognizable in writs of
habeas corpus because the proceeding is
so removed from the prior police
illegality as to have lost its deterrent
effect]. In 2009, the Court decided
Herring v. U.S., 129 S. Ct. 695 (2009),
allowing an arrest when police arrested
defendant based on an invalid warrant,
because the mistake was not based on a
“systematic error or reckless disregard of
constitutional requirements.”
B. THE GOOD FAITH
EXCEPTION TO THE
EXCLUSIONARY RULE
1. United States v. Leon, 468 U.S. 897
(1984).
In U.S. v. Leon, 468 U.S. 897, 905
(1984) a majority of the Supreme Court
established the most significant
exception to the "exclusionary rule,"
allowing use of admittedly illegally
obtained evidence where the officer
acted in "objective good faith" reliance
upon a warrant signed by a neutral and
detached magistrate. U.S. v. Leon, 468
U.S. 897, 926 (1984).
See, e.g., Massachusetts v. Sheppard,
468 U.S. 981, 104 S. Ct. 3424, 82
5
L.Ed.2d 737 (1984) [holding officer's
reliance on warrant "reasonable", since it
lacked particularity due to magistrate's
clerical error and magistrate said he
would edit the form to include objects
sought by police who relied on
magistrate's assertions]; U.S. v. Gomez,
652 F. Supp. 461 (E.D.N.Y. 1987)
[holding a "reasonably well-trained
officer" could not have determined that a
magistrate-authorized search was illegal,
under good-faith exception].
An officer can only rely on the
decision of a neutral and detached
magistrate, if the court has issued a
warrant. Thus the “good faith”
exception does not apply to warrantless
searches. U.S. v. Winsor, 846 F.2d 1569
(9th Cir. 1988) (en banc). Nor does it
apply where the magistrate has been
misled by the officer who obtained the
warrant. Franks v. Delaware, 438 U.S.
154, 98 S. Ct. 2674, 57 L.Ed.2d
667(1978) [good faith exception does
not apply when determining whether
officer obtained a warrant by making
material misrepresentations to the
magistrate in reckless disregard for the
truth]. See also, United States v. Fisher,
22 F.3d 574, 578 (5th Cir. 1994)
[“Warrants based on affidavits for
lacking in evidence of probable cause as
to render official belief in its existence
entirely unreasonable do not fall within
this exception”]. In addition, courts do
not consider the Leon “good faith”
exception when deciding whether to
suppress evidence pre-indictment,
pursuant to a motion for return of seized
property. Ritchey v. Smith, 515 F.2d
1239, 1245 (5th Cir. 1975); Gurleski v.
U.S., 405 F.2d 253 (5th Cir. 1968). The
rationale for non-application of the
“good faith” exception here, is that the
court is exercising its authority to correct
the misconduct of the prosecutor and his
agents.
 Other circumstances under which the
“good faith” exception does not apply
include: when the issuing magistrate
wholly abandons his judicial role, when
the warrant is based on an affidavit so
lacking in indicia of probable cause that
belief that probable cause exists is
entirely unreasonable and when the
warrant is so facially deficient
particularizing the place to be searched
and things to be seized that the executing
officers cannot reasonably presume it to
be valid. U.S. v. Russell, 960 F.2d 421,
423 (5th Cir.), cert. denied, 506 U.S. 953
(1992).
2. Davis v. United States, 131 S. Ct.
2419 (2011).
In Davis, Officer Curtis Miller
arrested Petitioner Willie Davis for using
a false name during a routine traffic stop.
Incident to the arrest, Officer Miller
searched the vehicle and discovered a
gun in his jacket. Davis was
subsequently charged with being a
convicted felon in possession of a
firearm. Following a jury trial, Davis
was convicted and sentenced to 220
months in prison. The U.S. Court of
Appeals for the Eleventh Circuit found
that while the search was illegal the
evidence found in the vehicle was still
admissible. Davis obtained a writ of
certiorari on the issue of whether the
good-faith exception to the exclusionary
rule applies to a search that was
authorized by precedent at the time of
the search but is subsequently ruled
unconstitutional.
The Court devotes a considerable
amount of time to its pre-Arizona v.
Gant search-incident-to-arrest cases
because Davis’ arrest pre-dated Gant. At
first glance, such an approach would
seem most peculiar, until one reads the
language which follows. The Court
6
follows a crisp summary of New York v.
Belton and similar automobile search-
incident-to-arrest cases with a
frightening description of the
exclusionary rule; not as a personal,
individual right, but rather as a tool only
to find application when the benefit of
deterring future violations of the Fourth
Amendment outweighs the heavy social
costs of letting the guilty go free. The
Court adopts this stance to the absolute
detriment of its older conception of the
exclusionary rule as “synonymous with
violations of the Fourth Amendment.”
Arizona v. Evans, 514 U.S. 1, 13 (1995)
(citing Whiteley v. Warden, Wyo. State
Penitentiary, 401 U.S. 560 (1971)).
While the Court asserts that good faith
exceptions to the exclusionary are
commonplace, and that its holding in
this case remains in keeping with this
precedent, it is essential to note that most
of the decisions relied upon by the Court
for this proposition pertain to warrant
cases where the error was attributable to
ministerial errors of the magistrate.
Alternatively, in subsequently
invalidated statute cases, the letter of the
law was objectively ascertainable
although illegal. In contrast, an officer’s
understanding of court decisions
undoubtedly requires officers to make
subjective judgments impenetrable from
scrutiny by reviewing courts. The Court
endeavors to assuage such fears by
assuring future defendants that there will
still remain an incentive to litigate
Fourth Amendment issues, albeit
without any sort of “windfall to . . . one
random litigant.” In any event, the Court
admits than an exception to this
judicially created exception to a
judicially created remedy might exist in
some extreme cases. Otherwise, cases
involving officers who reasonably rely
on binding appellate court precedent are
not subject to the exclusionary rule.

3. Heien v. North Carolina, 135 S.Ct.
530 (2014).
Heien involved a traffic stop
initiated because the initiating police
officer misinterpreted a North Carolina
statute involving break light
requirements. The officer believed that
the statute required all lights on the rear
of the vehicle to be in good working
order. However, North Carolina courts
ruled all rear brake lights were not
required to function, but rather only one
break light.
The majority opinion, written by
Chief Justice Roberts, held that the
police officer’s mistake of law was still
sufficient to satisfy Fourth Amendment
requirements for conducting a traffic
stop. That was because the mistake of
law was a reasonable one.
That ruling is interesting,
because the Court seems to say that a
reasonable mistake of law by the
government, when conducting a search,
does not necessarily violate the Fourth
Amendment. In her dissent, Justice
Sotomayor touches on this potential
consequence of the majority opinion.
She states, when discussing the good-
faith exception: “More fundamentally,
that is a remedial concern, and the
protections offered by the Fourth
Amendment are not meant to yield to
accommodate remedial concerns. Our
jurisprudence draws a sharp ‘analytica[l]
distinct[ion]’ between the existence of a
Fourth Amendment violation and the
remedy for that violation. Citing to
Davis, 564 U.S., at , 131 S. Ct. 2419,
180 L. Ed. 2d 285 (slip op., at 14).
4. Utah v. Strieff, 136 S. Ct. 27 (2015).
7
On January 16, 2015, the
Supreme Court of Utah decided Utah v.
Strieff, 357 P. 3d 532 (cert. granted),
136 S. Ct. 27, (2015), and held that an
officer’s discovery of outstanding arrest
warrant during an unlawful arrest did not
remove taint under the attenuation
exception to the exclusionary rule.
There, an anonymous message was left
on a drug tip line that narcotics activity
was taking place at a residence. Id. at
536. Throughout the week, an officer
monitored the home for about 3 hours
total and observed what he felt was
suspicious “short term traffic” at the
home. Id. He thus determined that the
traffic indicated possible drug sales
activity. Id. During his observations,
the officer did not see Strieff enter the
home but saw him leave the residence
and walk toward a convenience store.
Id. The officer ordered Strieff to stop so
that he could ask what was going on in
the home. Id. The officer asked Strieff
for his identification, to which he
complied, and discovered Strieff had an
outstanding traffic warrant. Id. The
officer arrested Strieff based on this
information and found a baggie of
methamphetamine and drug
paraphernalia during the search incident
to arrest. Id. The Supreme Court of
Utah held that the attenuation doctrine is
limited to circumstances involving a
defendant’s independent acts of free
will. Id. at 544. The court ultimately
held that Strieff was entitled to
suppression of the evidence secured
during the search incident to his arrest,
as the attenuation doctrine was not a
viable exception to the exclusionary rule
for the State in Strieff’s case. Id. at 546.
The Supreme Court granted certiorari on
October 01, 2015. On February 22,
2016, the first oral arguments were heard
on the case since the passing of Justice
Scalia. The government argued that the
officer’s stop was a reasonable and good
faith mistake and that suppression would
harm society far more than deterring
similar mistakes. Justice Sotomayor
expressed her concern that this approach
would give too much latitude to law
enforcement, and Justice Kagan added
that the treat of this behavior is
especially serious in lower-income
communities where many residents have
outstanding warrants for minor
infractions. 3 The Supreme Court held,
in 2016, that the officer’s discovery of
valid, pre-existing arrest warrant
attenuated connection between unlawful
investigatory stop and drug-related
evidence seized from defendant during
search incident to arrest, abrogating
State v. Moralez, 297 Kan. 397 (2013).
C. EXCEPTIONS TO
OFFICER'S "GOOD FAITH"
RELIANCE UPON WARRANT
1. "SUBJECTIVE" GOOD-FAITH
INSUFFICIENT: OFFICER'S
RELIANCE WAS NOT
REASONABLY BASED UPON
"OBJECTIVE" STANDARDS
"The officer's reliance on the
magistrate's probable-cause
determination and on the technical
sufficiency of the warrant he issues must
be objectively reasonable...and it is clear
that in some circumstances the officer
will have no reasonable grounds for
believing that the warrant was properly
issued." Leon, 468 U.S. at 922-23.
Moreover, this "objective
reasonableness" standard must be
applied to all officers involved, not
3 exclusionary rule should not apply
The Supreme Court and Police Searches, The
New York Times, Feb. 23, 2016, available at:
http://nyti.ms/1Rk7wzU
8
merely those who executed the warrant,
but also to those who obtained or
provided information to secure it. Leon,
468 U.S. at 923 n.1. See also U.S. v.
DeLeon-Reyna, 898 F.2d 486 (5th Cir.
1990).
2. FRANKS-TYPE
MISREPRESENTATIONS IN
OBTAINING WARRANT:
The Leon Court "noted" that the
deference accorded to a magistrate's
finding of probable cause does not
preclude inquiry into the knowing or
reckless falsity of the affidavit on which
that determination was based. Leon, 468
U.S. at 317.
"Suppression therefore remains
an appropriate remedy if the
magistrate or judge in issuing a
warrant was misled by
information in an affidavit that
the affiant knew was false or
would have known was false
except for his reckless disregard
of the truth." Leon, 468 U.S. at
923.
Furthermore, Material omissions
from the officer’s affidavit have been
considered equivalent to misstatements.
United States v. Martin, 615 F.2d 318,
328 (5th Cir. 1980). Furthermore,
“recklessness can in some circumstances
be inferred directly from the omission
itself.” United States v. Tomblin, 46 F.
3d 1369 (5th Cir. 1995).
3. MAGISTRATE NOT "NEUTRAL
AND DETACHED"
The Leon Court also recognized the
"good faith exception" to the
where the issuing magistrate wholly
abandoned his role as a "neutral and
detached" judicial officer. Leon, 468
U.S. at 923[citing Lo-Ji Sales Inc. v.
New York, 442 U.S. 319, 99 2319, 60
L.Ed.2d 920 (1979) where a magistrate
utilizing prepared form warrants, joined
and led search].
But see U.S. v. Orozco-Prader, 732
F.2d 1076, 1088 (2d Cir.), cert. denied,
469 U.S. 845 (1984) [judge was neutral
and detached despite his statement at
time of issuing the search warrant that
government agents and U.S. Attorney
"know proof and know significance ...
and therefore the court has to accept
their representations without question"];
U.S. v. Rome, 809 F.2d 665 (10th Cir.
1987) [the Magistrate's failure to follow
letter of Rule in issuing telephonic
warrant by neglecting the requirements
of (1) a verbatim record (2) a "duplicate
original warrant" (3) particularity and (4)
his immediate signature of the "original
warrant" did not abandon detached and
neutral role]; U.S. v. Breckenridge, 782
F.2d 1317 (5th Cir. 1985) [stating a
neutral and detached magistrate who
failed to read warrant affidavit had not
abandoned his judicial role and did not
spoil officer's good faith reliance on
warrant]; U.S. v. Harper, 802 F.2d 115
(5th Cir. 1986).
4. AFFIDAVIT TOTALLY
LACKING IN PROBABLE CAUSE
The Leon Court further indicated that
the "good faith exception" to the
exclusionary rule would not apply where
the warrant affidavit was so totally
lacking in probable cause as to make any
reliance thereupon unreasonable. See
Illinois v. Gates, 462 U.S. 213, 103
2317, 76 L.Ed.2d 527 (1983).
"Nor would an officer's manifest
objective good faith in relying on
a warrant based on an affidavit
9
'so lacking in indicia of probable
cause as to render official belief
in its existence entirely
unreasonable'." Leon, 468 U.S.
at 923.
See People v. Mitchell, 678 P.2d 990
(Colo. 1984) [Colorado "good faith"
statute inapplicable where individual
arrested and searched on strength of
arrest warrant "totally devoid of factual
support".]
"...The warrant was void not
because the facts supporting it
fell somewhat below the
Constitutional threshold of
probable cause, but so far as the
record shows, because there were
no facts at all to support its
issuance. " Mitchell, 678 P.2d at
2004.
See also U.S. v. Cardall, 773 F.2d
1128 (10th Cir. 1985) [a warrant should
not be considered to be so deficient as to
defeat an officer's "good faith" reliance
upon it unless the underlying affidavit is
totally devoid of factual support];
Cassias v. State, 719 S.W.2d 585
(Tex.Crim.App. 1986) [refusing to read
into the lengthy affidavit material that
does not appear on its face, court holds
that, under the "totality of the
circumstances", the "facts and
circumstances presented... are too
disjointed and imprecise to warrant a
man of reasonable caution in the belief
that marijuana and cocaine would be
found at the described residence"].
5. FACIALLY DEFICIENT
WARRANT
Particularity of place to be searched or
items to be seized:
 The Court in Leon also recognized
that reliance may be unreasonable where
the warrant is "facially deficient", such
as failing to particularize the place to be
searched or the things to be seized. Leon,
468 U.S. at 923.
6. TIMELINESS
U.S. v. Jones, 640 F.Supp. 143 (S.D.
W.Va. 1986), rev'd, 822 F.2d 56 (4th
Cir. 1987) an executing officer could not
have relied in objective good faith on a
warrant that on its face reflects that it has
not been executed on time]; Herrington
v. State, 697 S.W.2d 899 (Ark. 1985).
Most warrants require that they be
executed within three days and during
daylight hours.
7. RELIABILITY OF INFORMANT
AND/OR INFORMATION
U.S. v. Stout, 641 F. Supp. 1074
(N.D. Cal. 1986) [stating affidavit was
totally lacking in any basis to determine
either reliability of informant or
dependability of his information].
8. ANYTIME IT WOULD BE
"UNREASONABLE" TO RELY ON
THE WARRANT
All of the above exceptions
enumerated by the Court appear to be
based on circumstances in which
"manifest objective good faith"... would
fail because "no reasonably well-trained
officer should rely on the warrant".
Leon, 468 U.S. at 923.
9. COLLECTIVE BAD FAITH
(WHAT IS GOOD FOR THE
GOOSE)
Just as courts may cumulate officers'
knowledge to determine whether
10
probable cause existed to justify a
search, officers obtaining or executing a
warrant may not insulate their
knowledge or good intentions from
fellow officers acting in bad faith.
One can cumulate an officer's "bad
faith" in viewing the representations of
even an "innocent" affiant. Leon, 468
U.S. at 923 n.24.
"It is necessary to consider the
objective reasonableness, not
only of the officers who
eventually executed a warrant,
but also of the officers who
originally obtained it or who
provided information material to
the probable cause determination.
Nothing in our opinion suggests,
for example, that an officer could
obtain a warrant on the basis of a
'bare bones' affidavit and then
rely on colleagues who are
ignorant of the circumstances
under which the warrant was
obtained to conduct the
search...." Leon, 468 U.S. at 923
n.24.
Franks v. Delaware, 438 U.S.
154, 163, 98 2674, 57 L.Ed.2d
667, 677, n. 6 (1978):
"...[P]remise ...[-] police [can]not
insulate once [sic] officer's
deliberate misstatement merely
by relaying it through an officer-
affiant personally ignorant of its
falsity."
U.S. v. Cortina, 630 F.2d 1207, 1212,
1217 (7th Cir. 1980)[the good faith
exception would become a Maginot
Line, laughingly circumvented by police
if we are to insulate falsehoods in an
affidavit from invalidating a warrant
simply because the executing officer was
unaware of the lies]; U.S. v. Calists, 838
F.2d 711, 714 (3d Cir. 1988) (en banc)
[quoting Franks "'police [can] not
insulate one officer's deliberate
misstatement..."]; U.S. v. Coplon, 185
F.2d 629, 640 (2d Cir. 1950)[matters
obtained through a violation of law by
one official may not be introduced in
evidence by the prosecution].
Furthermore, evidence on
information which is the product of an
illegal search cannot serve as probable
cause for the issuance of a search
warrant entitling the executing officers
to good faith reliance. U.S. v. Vasey,
834 F.2d 782 (9th Cir. 1981).
III. OTHER CASES:
A. OVER BREADTH AND
GENERAL SEARCH:
U.S. v. Medlin, 842 F.2d 1194
(8th Cir. 1988) [allowing local
law enforcement officers
participating in search based on
federal warrant that did not
specify the items that were
actually seized by the local
officers, also called for
suppression of items seized by
federal agents that were
expressly authorized by the
warrant].
See also U.S. v. Fuccillo, 808 F.2d 173
(1st Cir. 1987); U.S. v. LeBron, 729 F.2d
533, 536-39 (8th Cir. 1984) [holding that
a warrant for "other stolen property" or
"any records which would document
illegal transactions involving stolen
property" lacks the requisite
particularity].
A valid warrant should describe
the things to be taken and the
11
place to be searched with
particularity such that it provides
a guide to the exercise of
informed discretion of the officer
executing the warrant.... We
recognize that, despite the
dangers, a warrant may issue to
search and seize records if there
is probable cause to believe that
records which are evidence or
instrumentality of a crime will be
there and the description is stated
with sufficient particularity....
The warrant in the instant case,
without more, authorized a
search for 'any records which
would document illegal
transactions involving stolen
property'. There is no attempt to
particularize the description of
the property or of the records
themselves. The only limiting
factor is the reference to 'stolen
property'. As earlier discussed,
this generic classification is not
sufficient to provide any
guidance to an executing officer.
Absent as well is any explanation
of the method by which the
officers were to distinguish such
records from any documents
relating to legal transactions."
LeBron, 729 F.2d at 539.
U.S. v. Guarino, 729 F.2d 864 (1st Cir.
1984) [striking down a warrant
authorizing seizure of "obscene" films
"of the same tenor" as certain
enumerated items]; U.S. v. Young, 745
F.2d 733 (2d Cir. 1984), cert. denied,
470 U.S. 1084 (1985) ["This
particularity requirement serves three
related purposes: preventing general
searches, preventing the seizure of
objects upon the mistaken assumption
that they fall within the magistrate's
authorization, and preventing the
issuance of warrants without a
substantial factual basis."]; U.S. v.
Spilotro, 800 F.2d 959 (9th Cir. 1986)
[items relating to loan sharking and
bookmaking not described with
sufficient particularity]; U.S. v. LeBron,
729 F.2d 533, 539 (8th Cir. 1984) [a
search for any records that would show
transactions in stolen property was too
generic a classification and thus
constituted an impermissible general
search].
Contra U.S. v. Gomez, 652 F.
Supp. 461 (E.D.N.Y. 1987)
[similar case with opposite
result]; U.S. v. Burke, 718 F.
Supp. 1130 (S.D.N.Y. 1989);
U.S. v. Buck, 813 F.2d 588 (2d
Cir. 1987), cert. denied, 484 U.S.
857 (1987) [even though warrant
lacked sufficient particularity,
same was not so apparent that
executing officers could not rely
on the warrant, especially in light
of fact that officers searching in
1981 could not reasonably have
anticipated developments in the
law]; U.S. v. Villegas, 899 F.2d
1324 (2d Cir. 1990) ["sneak
peek" warrant authorizing covert
entry to take pictures was held
constitutional].
Search warrant which utterly fails to
describe the persons or things to be
seized is per se invalid, even if the
particularized description is provided in
search warrant application [Groh v.
Martinez, 540 U.S. 551 (2004)].
B. NO NEXUS BETWEEN
PROBABLE CAUSE AND THE
PLACE TO BE SEARCHED
There must be sufficient "nexus"
between probable cause and the place to
12
be searched.
"For a probable cause
determination to be meaningful
there must be a nexus among (1)
criminal activity, (2) the things to
be seized, and (3) the place to be
searched." W. LAFAVRE
SEARCH AND SEIZURE: A
TREATISE ON THE FOURTH
AMENDMENT ' 33.7(d) (1978).
See also Amsterdam,
Perspectives on the Fourth
Amendment, 58 MINN. L. REV.
349, 358 (1974); U.S. v.
Freeman, 685 F.2d 942, 949 (5th
Cir. 1982); U.S. Maestas, 546
F.2d 1177, 1189 (5th Cir. 1977)
It also should be clear that an arrest
at one location does not give sufficient
particularized probable cause to believe
evidence of that crime will be located at
some distant location, even if same
constitutes the arrestee's residence. U.S.
v. Gramlich, 551 F.2d 1359 (5th Cir.
1977) [“This fact alone is insufficient to
justify the inference that incriminating
evidence existed at that residence"]. This
is because warrants are directed against
evidence of crime and not against
persons. Thus, the fact that there is
probable cause to arrest a person for a
crime does not automatically give police
probable cause to search his residence or
other area in which he has been observed
for evidence of that crime." U.S. v.
Savoca, 739 F.2d 220, 224 (6th Cir.
1984).
The affidavit in Gramlich stated that
the defendant had been observed over a
period of several weeks. During that
time, he purchased a van, motorboat and
radio equipment under an assumed
name. The defendant was also known to
possess a 23-foot motorboat named
"Pronto" which, according to the
affidavit had been docked at the pier
outside of the defendant's residence.
Gramlich, 551 F.2d at 1362 n.7. The
affidavit went on to relate that on several
occasions the defendant had been
observed piloting "Pronto" out into the
Gulf of Mexico in order to rendezvous
with other boats. Based upon the
surveillance described, in addition to the
arrest of the defendant fifty miles away
while he was unloading marijuana from
a motorboat, the magistrate granted a
search warrant for the defendant's house.
The Fifth Circuit suppressed the
evidence obtained as a result of that
search because the information in the
affidavit failed to establish an adequate
connection between the residence
searched and the alleged drug smuggling
activities. U.S. v. Gramlich, 551 F.2d
1359 (5th Cir. 1977).
Likewise, reliable information that a
known felon has committed a burglary
and was arrested with some of the
proceeds some distance from his home,
will not authorize a search of his
residence. U.S. v. Flanagan, 423 F.2d
745 (5th Cir. 1970). See also U.S. v.
Bailey, 458 F.2d 408 (9th Cir. 1972);
U.S. v. Whitlow, 339 F.2d 975 (7th Cir.
1964); Gillespie v. U.S., 368 F.2d 1 (8th
Cir. 1966).
"The statement (in an affidavit),
even if reliable, that a named
person who is a known felon has
committed a burglary, plus
possession by the suspect of
some of the proceeds when
arrested, does not without more
authorize the issuance of a
warrant to search the residence of
the accused miles away."
Flannagan, 423 F.2d at 747.
In U.S. v. Green, 634 F.2d 1222 (5th
Cir. 1981), the Fifth Circuit noted that
while a "careful review of the affidavit
13
reveals ample evidence from which the
magistrate could conclude that (the
defendant) was engaged in criminal
activity in California," . . . "no evidence,
other than residence, was set forth in the
affidavit that connected the Key West,
Florida, home to the criminal activity....
The motion to suppress should have
been granted." Green, 634 F.2d at 1225-
26.
Similarly, in U.S. v. Lockett, 674
F.2d 843 (11th Cir. 1982) the only
statement evidencing a nexus between
explosives and the residence to be
searched, in an affidavit reciting
numerous other events and activities of
George Lockett, read:
"On July 11, 1980, this affiant
observed these premises from the
public county road and I saw no
structures which would indicate
proper storage facilities on the
premises for storing high
explosives. Record, Vol. 1 at 16.
There follows a hand written
statement by the affiant to the
effect that he believes that
dynamite is on the premises."
Lockett, 674 F.2d at 845.
In the Eleventh Circuit's view, "such
a conclusory statement, without more, of
course has no probative value." As a
result, the Lockett Court concluded that
the affidavit set forth no facts from
which the magistrate could infer that
dynamite was located at that particular
place". Lockett, 674 F.2d at 846. See
U.S. v. Algie, 721 F.2d 1039, 1042 (6th
Cir. 1983) [fifteen phone calls from an
apartment "which authorities knew to be
used for gambling coupled with an
affiant's belief that telephones are often
used to make lay-off bets", is
"insufficient to convince a reasonably
prudent person that contraband or
evidence of a crime would be found on
the premises"].
Another court, however, has applied
the good faith exception despite any lack
of nexus between the house to be
searched and the evidence seized. U.S. v.
Hendricks, 743 F.2d 653 (9th Cir. 1984).
"Federal agents were in
possession of a cocaine-bearing
package from Brazil, which they
anticipated would be picked up
by the individual to whom it was
addressed, ...the warrant stated
that the package 'is now being
concealed' at defendant's
residence and added' the search
warrant is to be executed only
upon the condition that the above
described box is brought to the
aforesaid premises'."
The Court concluded the warrant lacked
probable cause and explained the
magistrate abdicated to the agents "an
important judicial function - the
determination that probable cause exists
to believe that the objects are currently
in the place to be searched".
Nevertheless, the court determined that
the agents acted in "reasonable reliance
on the warrant and hence declines to
order suppression of the fruits of the
search". Hendricks, 743 F.2d at 655. See
also U.S. v. Gant, 759 F.2d 484 (5th Cir.
1985); Commonwealth v. Way, 492 A.2d
1151 (Pa. 1985) [holding lack of
substantial nexus between the street
crime and the premises to be searched
renders the warrant facially invalid];
U.S. v. Marriott, 638 F. Supp. 333 (N.D.
Ill. 1986). But see U.S. v. Asselin, 775
F.2d 445 (1st Cir. 1985) [ officers were
found to have acted in "good faith"
interpreting the word "premises" to
include surroundings so as to authorize
two searches of a disabled car adjacent
to the carport and a birdhouse hanging
14
from tree fifteen feet from trailer steps];
U.S. v. Kenney, 595 F. Supp. 1453 (D.C.
Ma. 1984) ["probable cause existed to
search safety deposit box for cash
"because officers had probable cause to
believe defendant was engaged in
trafficking", but there existed no nexus
between the gold, silver and jewelry
found in the box and suspected drug
trafficking].
IV. “GOOD FAITH”
ISSUES:
A. BURDEN OF PROOF ON
PROSECUTION TO
DEMONSTRATE "GOOD
FAITH"
The Supreme Court in Leon
appeared to place the burden upon the
prosecution "to establish objective good
faith".
"The good-faith exception for
searches conducted pursuant to
warrants is not intended to signal
our unwillingness strictly to
enforce the requirements of the
Fourth Amendment, and we do
not believe that it will have this
effect. As we have already
suggested, the good-faith
exception, turning as it does on
objective reasonableness, should
not be difficult to apply in
practice. When officers have
acted pursuant to a warrant, the
prosecutions should ordinarily
be able to establish objective
good faith without a substantial
expenditure of judicial time."
Leon, 468 U.S. at 924.
See also U.S. v. Gant, 587 F.Supp. 128
(S.D. Tex. 1984), rev’d on other grounds
759 F.2d 484 (5th Cir. 1985), cert.
denied, 474 U.S. 851 (1985). [allocating
burden of proof upon the Government,
"which if proved by the government,
would save the evidence from the effects
of the exclusionary rule"]; U.S. v.
Hendricks, 743 F.2d 653, 656 (9th Cir.
1984)["The standard to be employed [in
determining the officers' good faith
reliance] is an objective one and the
prosecution bears the burden of proof"].
B. GOOD FAITH RELIANCE
ON SUMMONS
The good faith exception has also
been employed in other areas where law
enforcement officers are acting in
reliance upon the issuance of process by
a grand jury or prosecutor on its behalf.
U.S. v. Gluck, 771 F.2d 750 (3d Cir.
1985) ["good faith" exception applies to
IRS summons based on facially valid
grand jury disclosure order unauthorized
under U.S. v. Baggot, 463 U.S. 476, 103
3164, 77 L.Ed.2d 785 (1983)].
C. "GOOD FAITH"
EXCEPTION APPLIES TO
WARRANTLESS
ADMINISTRATIVE
SEARCHES AUTHORIZED BY
STATUTE LATER FOUND
UNCONSTITUTIONAL.
1. ILLINOIS v. KRULL, 480 U.S. 340
(1987).
The Supreme Court has extended the
good faith exception to a warrantless
administrative search conducted in
objectively reasonable reliance upon a
statute later held unconstitutional.
Illinois v. Krull, 480 U.S. 340, 107 1160,
94 L.Ed.2d 346 (1987). However,
constraints similar to those set forth in
15
Leon apply to such a search.
"A statute cannot support
objectively reasonable reliance if,
in passing the statute, the
legislature wholly abandoned its
responsibility to enact
constitutional laws. Nor can a
law enforcement officer be said
to have acted in good-faith
reliance upon a statute if its
provisions are such that a
reasonable officer should have
known that the statute was
unconstitutional.... [T]he
standard of reasonableness we
adopt is an objective one; the
standard does not turn on the
subjective good faith of
individual officers.” Krull, 480
U.S. at 355 [citing Leon, 468
U.S. at 919 n.10].
The Court also recognized the risks
involved in its holding.
"It is possible, perhaps, that there
are some legislators who, for
political purposes, are possessed
with a zeal to enact a particular
unconstitutionally restrictive
statute, and who will not be
deterred by the fact that a court
might later declare the law
unconstitutional. ...[W]e are not
willing to assume ...legislators ...
perform their legislative duties
with indifference to the
constitutionality of the statutes
they enact. If future empirical
evidence ever should undermine
that assumption, our conclusions
may be revised accordingly.
Krull, 480 U.S. at 352 n.8 [citing
Leon, 468 U.S. at 927-28.].
Four justices dissented against the
majority's empirical assumptions.
"Providing legislatures a grace
period during which the police
may freely perform unreasonable
searches in order to convict those
who might have otherwise
escaped creates a positive
incentive to promulgate
unconstitutional laws. . . . [i]t
cannot be said that there is no
reason to fear that a particular
legislature might yield to the
temptation offered by the Court's
good faith exception." Krull, 480
U.S. at 352 [O'Connor, J.,
dissenting].
V. OTHER
WARRANTLESS
SEARCHES
The police officers here violated this
constitutional principle. Accordingly, we
find that Morgan was illegally arrested
when the police surrounded the Morgan
home and utilized coercive tactics and
physical restraints which induced his
presence at the door. And because this
conduct was not justified by a valid
warrant or exigent circumstances, the
subsequent police seizure of the gun
placed inside of the door by Morgan was
illegally obtained, and therefore,
properly suppressed. U.S. v. Morgan,
743 F.2d 1158, 1165 (6th Cir. 1984).
A. City of Los Angeles v. Patel,
135 S. Ct. 2443 (2015)
The Supreme Court decided City of Los
Angeles v. Patel, 135 S. Ct. 2443 (2015)
on June 22, 2015. There, the Los
Angeles Municipal Code (LAMC)
required motel operators to keep records
16
with detailed information about their
guests. The LMAC also authorized
police officers to inspect said records at
any time without first requiring a search
warrant. The Patels, who owned and
operated a hotel in Los Angeles, filed a
petition, arguing that the LMAC violated
their Fourth Amendment protection
against unreasonable seizures. Justice
Sotomayor delivered the 5-4 majority
opinion and held that an individual may
challenge a statute for violating the
Constitution on its face without needing
to allege unconstitutional enforcement,
and that the municipal ordinance in
question is unconstitutional on its face
because it does not allow for hotel
operators to engage in pre-compliance
review by questioning the
reasonableness of the subpoena in
district court. The Court also held that
hotels are not a “closely regulated”
business and therefore do not fall under
that exception to the warrant
requirement. Justice Scalia wrote a
dissent, arguing that the ordinance is
constitutional because it is not
unreasonable under the circumstances.
B. Rodriguez v. United States, 135
S. Ct. 1609 (2015)
The Supreme Court also dealt with
Fourth Amendment search and seizure
when they decided Rodriguez v. United
States, 135 S. Ct. 1609 (2015).
Rodriguez was pulled over for a minor
traffic violation for which he received a
warning. After giving the warning, the
officer asked permission to walk his K-9
unit around Rodriguez’ vehicle, to which
he refused. The officer ordered
Rodriguez to exit the vehicle and walked
the K-9 around his car and the dog
alerted. A search revealed a large bag of
methamphetamine. Rodriguez argued
that the K-9 search violated his Fourth
Amendment rights. The Court held that
the use of a K-9 unit after completion of
an otherwise lawful traffic stop exceed
the time reasonably required to handle
the matter and therefore was
unreasonable under the Fourth
Amendment. The Court clarified that a
seizure unrelated to the reason for the
stop is lawful only so long as it doesn’t
measurably extend the stop’s duration.
C. Akinmboni v. United States,
126 A.3d 694 (2015)
In Akinmbomi, the question
presented before the court was whether
the warrantless search of and removal
items from his body cavity violates the
Fourth Amendment. The court held that
warrantless search compelling defendant
to remove items from his body cavity
violates the Fourth amendment.
Akinmboni v. United States, 126 A.3d
694, (2015). Here, the defendant was
pulled over a broken tail light. Officer
approached defendant’s car smelled
burnt marijuana, officer also noticed that
defendant had placed an item in his
mouth and began chewing. Id. at 695
The officers were unable to retrieve the
item. Officer conducted a search of the
vehicle, found marijuana, and arrested
defendant. In the stationhouse, Officer
conducted a pat down search of
defendant, and felt a foreign object.
Officer asked defendant to remove all of
his clothing and to manually expose the
area between his buttocks to permit
visual inspection of his anal cavity. Id. at
696. Upon inspection, officers found
three separate baggies containing
marijuana, pills of assorted colors, crack,
and cocaine. Defense counsel
subsequently filed a motion to
suppressed the evidence under the
Fourth Amendment, arguing that officers
lacked a warrant and that a doctor should
17
have been involved. Id. The trial court
denied the motion, and after a jury trial
Mr. Akinmboni was convicted of
possession of controlled substances. This
appeal follows.
On appeal, the United States does
not dispute that officer directive to
defendant to remove the items from his
anal cavity constituted a Fourth
Amendment search and seizure.
Determining whether a search or seizure
was reasonable in manner requires a
balancing of the needs of the
government against the invasiveness of
the intrusion and its impact on the
suspect. Bell v. Wolfish, 441 U.S. 520,
559, 99 S.Ct. 1861, 60 L.Ed.2d 447
(1979). In assessing reasonableness,
courts “must consider the scope of the
particular intrusion, the manner in which
it is conducted, the justification for
initiating it, and the place in which it is
conducted.” Id.; see also, e.g.,
Washington v. United States, 594 A.2d
1050, 1052 (D.C.1991). Where a search
or seizure involves the removal of items
from sensitive body cavities, including
anal or vaginal cavities, the
reasonableness of the methods used may
depend upon “a variety of factors
including hygiene, medical training,
emotional and physical trauma, and the
availability of alternative methods for
conducting the search.” United States v.
Fowlkes, 804 F.3d 954, 963 (9th
Cir.2015).
The United States argues that
officer acted in accordance with official
policy, and therefore the search was
constitutional. Id. at 700. the fact that a
search was conducted in accordance
with an applicable policy does not by
itself establish that the search was
reasonable. See, e.g., Way v. County of
Ventura, 445 F.3d 1157, 1160–62 (9th
Cir.2006). Therefore, the court found
that even though officers complied with
policy, the removal of the items was
substantially more intrusive than a
search that entails only visual inspection.
C. THE "CURTILAGE"
SURROUNDING A HOME IS
INCLUDED WITHIN THE
AREA OF HEIGHTENED
PROTECTION
1. Florida v. Jardines, 133 S. Ct. 1409
(2013).
The increased protection
afforded to houses by the Fourth
Amendment "has never been restricted
to the interior of the house", but includes
the "area immediately surrounding the
dwelling", known as the "curtilage", as
well. Wattenberg v. U.S., 388 F.2d 853,
857 (9th Cir. 1968).
See also Fullbright v. U.S., 392 F.2d
434-35 (10th Cir. 1968); U.S. v. Davis,
423 F.2d 974, 977 (5th Cir. 1970); Fixel
v. Wainwright, 492 F.2d 480, 483 (5th
Cir. 1974).
"The protection afforded by the
Fourth Amendment, insofar as
houses are concerned, has never
been restricted to the interior of
the house, but has extended to
open areas immediately adjacent
thereto. The differentiation
between an immediately
protected area and an unprotected
open field has usually been
analyzed as a problem of
determining the extent of the
'curtilage'." Wattenberg v. U.S.,
388 F.2d at 857.
18
In Fullbright v. U.S., 392 F.2d
432, 434-35 (10th Cir.), cert. denied,
393 U.S. 83 (1968_) the court noted that:
"The word 'houses' in the Fourth
Amendment has been extended by the
court to include the curtilage.... If the
investigators had physically breached the
curtilage there would be little doubt that
any observations made therein would
have been proscribed. But observations
from outside the curtilage of activities
within are not generally interdicted by
the Constitution." Fullbright v. U.S., 392
F.2d at 434-35.
"The sacredness of a person's
home and his right of personal privacy
and individuality are paramount
considerations in our country and are
specifically protected by the Fourth
Amendment. The Fourth Amendment's
protection, however, extends further than
just the walls of the physical structure of
the home itself. The area immediately
surrounding and closely related to the
dwelling is also entitled to the Fourth
Amendment's protection.... When
officers have physically invaded this
protected area either to seize evidence or
to obtain a view of illegal activities, we
have readily condemned such an
invasion as violative of the Fourth
Amendment." Fixel v. Wainwright, 492
F.2d at 483. See also U.S. v. Certain
Real Property located at 987 Fisher
Road, Grosse Point, Mich., 719 F. Supp.
1396 (E.D.Mich., 1989) [the search of
garbage placed for collector in backyard
and within a home's curtilage is
protected by the Fourth Amendment);
U.S. v. Whaley, 781 F.2d 417, 419-21
(5th Cir. 1986).
Plain view, without exigency,
does not justify a warrantless entry onto
the curtilage of a residence to investigate
what "appeared to be marijuana", and
the officer's ignorance of the warrant
requirement does not raise "good faith".
But see U.S. v. Emmens, 893 F.2d 1292
(11th Cir. 1990) [agents could lawfully
enter private hangar on residential
curtilage as same was, in this case,
functional equivalent of border].
Recently, the Supreme Court
affirmed this principle when it held a
dog sniff at the door of a house where
police suspected marijuana was being
grown was a search. See Florida v.
Jardines, 133 S. Ct. 1409 (2013).
Justice Scalia authored the 5-4
opinion of the Court, in which, Justices
Thomas, Ginsburg, Sotomayor, and
Kagan joined. Justice Kagan filed a
concurring opinion, joined by Justices
Ginsburg and Sotomayor. Justice Alito
penned the dissent, joined by Justices
Kennedy, Breyer and the Chief Justice.
As in U.S. v. Jones, 132 S. Ct.
945 (2012), the majority is divided as to
the reasoning that should be employed to
answer the question posed. Justice
Scalia answers the question of “whether
using a drug-sniffing dog on a
homeowner’s porch to investigate the
contents of the home is a ‘search’ within
the meaning of the Fourth Amendment,”
by noting that the Fourth Amendment
establishes a simple baseline, that
“[w]hen ‘the Government obtains
information by physically intruding’ on
persons, houses, papers, or effects, ‘a
search within the original meaning of the
Fourth Amendment’ has ‘undoubtedly
occurred.” Jardines, 133 S. Ct. at 1414
(quoting U.S. v. Jones, 132 S. Ct. 945,
950 n. 3 (2012)).
Justice Kagan notes in her
dissent that the Court decided the case
under the property rubric, and, in her
judgment, the Court, “could just as
happily have decided it by looking to
Jardines’ privacy interests.” Id. at 1418
19
(Kagan, J., concurring). Justice Kagan
notes that police officers approached the
door of Jardines with a “super-sensitive
instrument” which they used to detect
things inside that otherwise would have
remained undetected. Id. (Kagan, J.,
concurring). “Was this activity a
trespass? Yes, as the Court holds today.
Was it also an invasion of privacy? Yes,
that as well.” Id. (Kagan, J.,
concurring).
Justice Alito begins his dissent in
Jardines, much like his dissent in Jones,
by describing the reasoning employed by
the Court’s majority as deciding an
important Fourth Amendment issue by
using “a putative rule of trespass law.”
Id. at 1420 (Alito, J., dissenting). Justice
Alito notes that the custom of allowing
members of the public to approach a
front door extends to friends, relatives,
and delivery persons, as well as
solicitors and peddlers who would likely
be unwelcomed. Id. (Alito, J.,
dissenting). As to the issue of privacy
noted by the concurrence, Justice Alito
explains that “[a] reasonable person
understands that odors emanating from a
house may be detected from locations
that are open to the public, and a
reasonable person will not count on the
strength of those odors remaining within
the range that, while detectible by a dog,
cannot be smelled by a human. Id. at
1421 (Alito, J., dissenting).
Nonetheless, the holding remains, “[t]he
government’s use of trained police dogs
to investigate the home and its
immediate surroundings is a ‘search’
within the meaning of the Fourth
Amendment.” Id. at 1417–18.
D. ELECTRONIC TRACKING
DEVICES ("BEEPERS")
1. United States v. Jones, 132 S. Ct. 945
(2012).
In applying the Fourth
Amendment to cases involving the use
of electronic tracking devices or
"beepers" by law enforcement agents
engaged in covert surveillance Courts
have distinguished the beeper's
installation from its monitoring. Thus,
although the majority of published
decisions address both installation and
monitoring, the case law, which has
emerged, does not resolve both issues
identically.
Recently the Supreme Court in
United States v. Jones, 132 S. Ct.
945 (2012), which reviewed the
constitutionality of warrantless
GPS tracking, may be one of the
most important Fourth
Amendment opinions since Katz.
In an opinion authored by Scalia,
the Court held that the
installation of a GPS tracking
device on Jones' vehicle, without
a warrant, constituted an
unlawful search under the Fourth
Amendment. The Court rejected
the government's argument that
there is no reasonable
expectation of privacy in a
person's movement on public
thoroughfares and emphasized
that the Fourth Amendment
provided some protection for
trespass onto personal property.
Justice Sonia Sotomayor wrote a
concurring opinion, agreeing that the
government had obtained information by
usurping Jones’ property and by
invading his privacy. However, she
further reasoned that the Fourth
Amendment was not only concerned
with trespasses onto property. She stated
that a Fourth Amendment search occurs
whenever the government violates a
20
subjective expectation of privacy that
society recognizes as reasonable, which
is particularly important in an era where
physical intrusion is unnecessary to
many forms of surveillance.
Justice Samuel Alito concurred
in the judgment but criticized the
framing of the question in terms of
trespass to property. He believed that
such a construction of the problem
strained the language of the Fourth
Amendment and that it would be better
to analyze the case by determining
whether the Government violated Jones'
reasonable expectations of privacy.
The Court stopped after ruling
that GPS tracking was a Fourth
Amendment search. It said nothing about
what conditions would make such a
search constitutional under the Fourth
Amendment nor did it set forth a
presumptive warrant requirement for
such GPS searches. Thus, substantial
uncertainty continues to exist as to the
conditions under which GPS searches
are constitutional.
In March of 2013, the First
Circuit examined a case in which FBI
agents attached a GPS tracking device to
the vehicle of a bank robbing suspect.
U.S. v. Sparks, 711 F.3d 58 (1st Cir.
2013). Although the ruling in Jones
controls the case, the First Circuit
concluded that the good-faith exception
“applied in cases like this one (or Davis
itself), where new developments in the
law have upended the settled rules on
which the police relied.” Id. at 68. The
court noted that the officer’s actions had
been guided by binding precedent in that
circuit. Id. at 67.
In March 2015, the Supreme
Court decided Grady v. North Carolina,
135 S. Ct. 1368 (2015) (per curiam).
The Court, in a per curiam opinion, held
attaching a tracking device to an
individual is a “search” within the
meaning of the Fourth Amendment.
Grady is discussed in more detail infra.
2. United States v. Riley- CELL
PHONES “GET A WARRANT”
In Riley v. California, the Supreme
Court unanimously held in order to
search a cell phone seized post-arrest,
law enforcement must get a warrant.
Riley v. California, 134 S. Ct 2473
(2014) (holding a warrant is generally
needed to search a cell phone incident to
arrest). The Fourth Amendment is now
firmly in the digital age.
A police officer initiated a traffic
stop on David Riley where it was
learned that his license was suspended.
Id. Due to department policy, the
vehicle was impounded and inventory
search was conducted by another officer.
Id. Subsequently, after finding loaded
firearms under the hood, Riley was
arrested. Id.
Upon a search incident to arrest, the
police officer obtained a cell phone
(“smart phone”) seized from Riley’s
pocket. Id. The officer searched the
phone at the scene followed by a
detective “at the police station about two
hours after the arrest.” Id. The search
turned up videos and photos with a
connection to the “Bloods.” Id at 2481.
Riley was tried and convicted of
multiple felonies where the evidence
obtained from the warrantless search of
the cell phone was admitted into
evidence. Id. The California Court of
Appeals affirmed the conviction and the
California Supreme Court denied Riley’s
petition for discretionary review. Id.
In an opinion written by Chief
Justice Roberts, focused on qualitative
and quantitative differences between
21
data’s physical counterparts. Id at 2489.
Quantitatively, cell phones, which is a
“misleading shorthand”, can hold
“millions of pages of text, thousands of
pictures, or hundreds of videos.” Id.
Further, cellphones are essentially a
container with “many distinct types of
information” in a single location. Id.
Chief Justice Roberts notes “there is an
element of pervasiveness that
characterizes cell phones but not
physical records.” Id at 2490.
Also, these “minicomputers” are
qualitatively different. Id. The Chief
Justice looks to a 1926 opinion from
Learned Hand, quoted in Chimel,
observing “it is ‘totally different thing to
search a man’s pockets and use against
him what they contain, from ransacking
his house for everything which may
incriminate him. Id at 2490–91 (quoting
United States v. Kirschenblatt, 16 F.2d
202, 203 (CA2)). If the individual has a
cell phone on his person, this
observation no longer applies.
Indeed, a cell phone search would
typically expose to the government far
more than the most exhaustive search of
a house: A phone not only contains in
digital forma many sensitive records
previously found in the home; it also
contains a broad array of private
information never found in a home in
any form– unless the phone is. Id at
2491.
Thus, on the question of whether law
enforcement can conduct a warrantless
search on a cell phone incident to arrest,
the Court responded, “Our answer to the
question of what police must do before
searching a cell phone seized incident to
arrest is accordingly simple – get a
warrant.” Id at 2495.
3. Grady v. North Carolina, 135 S. Ct.
1368 (2015) (per curiam)
In Grady, Grady was convicted of
two sexual offenses. When he was
released a second time, a trial court
required Grady to take part in the state’s
satellite-based monitoring program for
the rest of his life. The program
required the participants to wear a GPS
monitoring device to make sure they are
compliant with schedule and location
requirements. In a per curiam opinion,
the Court held that participation in the
state program amounted to a search
under the Fourth Amendment because
requiring someone to wear the device
constitutes what the Jones decision
termed a “physical occup[ation of]
private property for the purpose of
obtaining information.” The Court
remanded the case back to the trial court
to determine whether or not the search
was reasonable.
VI. “GOOD FAITH”
EXCEPTION DOES NOT
APPLY TO STATUTORY
SUPPRESSION
REMEDIES
The "good faith" exception to the
Fourth Amendment's exclusionary rule
does not apply to Rule 41(e)'s statutory
suppression remedy for pre-indictment
return and suppression of illegally seized
items.
In re Motion for Return of
Property Pursuant to Fed. R.
Crim. P. 41(e), 681 F. Supp. 677
(D. Haw.) [while the judicially
created post-indictment
exclusionary rule contained in
FED. R. CRIM. P. Rule 12(b)(3)
is subject to judicially created
22
exceptions such as Leon's "good
faith" exception, the
Congressionally created "explicit
textual remedy" created
statutorily by FED. R. CRIM. P.
Rule 41(e) is not subject to
Leon's Court created "good faith"
exception].
Neither does the “good faith” exception
apply to the suppression provision under
wiretap law. 18 U.S.C. §2511.
However, a police officer's
reasonable mistake as to whether a
particular vehicle is covered by a
statutory scheme authorizing warrantless
stops and inspections of commercial
vehicles undermines the constitutionality
of the stop and requires suppression of
evidence discovered during it. Unlike
stops based on individualized suspicion
of criminal activity, stops based on the
Fourth Amendment's administrative
search doctrine cannot be justified on the
basis of an officer's objectively
reasonable mistake of fact, the court
stressed. It also ruled that the good-faith
exception to the exclusionary rule does
not apply in these circumstances. See
United States v. Herrera, 444 F.3d. 1238
(10th Cir. 2006)
A. “GOOD FAITH” MUST BE
OBJECTIVE
The standard for applying the "good
faith" exception to the exclusionary rule
is an "objective," not subjective one.
"We emphasize that the standard
of reasonableness we adopt is an
objective one. Many objections
to a good-faith exception assume
that the exception will turn on the
subjective good faith of
individual officers. 'Grounding
 the modification in objective
reasonableness, however, retains
the value of the exclusionary rule
as an incentive for the law
enforcement profession as a
whole to conduct themselves in
accord with the Fourth
Amendment.' The objective
standard we adopt, moreover,
requires officers to have a
reasonable knowledge of what
the law prohibits. U.S. v. Peltier,
422 U.S. 531, 542 (1975)
[quoting Illinois v. Gates].
As Professor Jerold Israel has
observed: “The key to the [exclusionary]
rule's effectiveness as a deterrent lies, I
believe, in the impetus it has provided to
police training programs that make
officers aware of the limits imposed by
the Fourth Amendment and emphasize
the need to operate within those limits.
[An objective good-faith exception] ...is
not likely to result in the elimination of
such programs, which are now viewed as
an important aspect of police
professionalism. Neither is it likely to
alter the tenor of those programs; the
possibility that illegally obtained
evidence may be admitted in borderline
cases is unlikely to encourage police
instructors to pay less attention to Fourth
Amendment limitations. Finally, [it]
...should not encourage officers to pay
less attention to what they are taught, as
the requirement that the officer act in
'good faith' is inconsistent with closing
one's mind to the possibility of
illegality."
In sum, the officer’s good faith
reliance on a warrant must be objectively
reasonable. And whether the officer
acted in good faith is a question of law
which receives an independent review in
the courts of appeal. For example, the
Supreme Court found that a mistake in
23
the execution of a warrant might, under
the circumstances of the case, warrant
application of the “good faith”
exception. However, the exception will
not apply if officers are negligent in
execution of a warrant and their mistake
is unreasonable. Thus, the Court found
the objective good faith standard was
met where officers made a mistake
conducting a search where the warrant
did not authorize. The officers obtained
a warrant for an apartment on the third
floor of a building, but mistakenly
thought the apartment named in the
warrant covered the entire floor. The
court held that the officers made a "good
faith" mistake in searching the wrong
apartment. Maryland v. Garrison, 480
U.S. 79, 107 1013, 94 L.Ed.2d 72
(1987). But see U.S. v. Palacios, 666 F.
Supp. 113 (S.D. Tex. 1987) [stating
evidence is not admissible under good
faith exception when arrest warrant is
negligently executed thereby arresting
wrong person; mistake was not
reasonable].
While the Supreme Court has voiced
concern over the "substantial social costs
exacted by the exclusionary rule for the
vindication of Fourth Amendment
rights" it leaves no question as to the
rule's continued viability. U.S. v. Leon,
468 U.S. 897, 907 (1984).
"The substantial social costs
exacted by the exclusionary rule
for the vindication of Fourth
Amendment rights have long
been a source of concern....
"...Nevertheless, the balancing
approach that has evolved in
various contexts - including
criminal trials - forcefully
suggest[s] that the exclusionary
rule be more generally modified
to permit the introduction of
 evidence obtained in the
reasonable good-faith belief that
a search or seizure was in accord
with the Fourth Amendment."
U.S. v. Leon, 468 U.S. 897, 907
(1984).
Despite the Court’s concern, a study
regarding the practical effect of the
“good faith” exception on warrants
indicates no increase in their quality and
quantity. Rather, some studies suggest
that the effect of the Leon decision has
been to encourage prosecuting
authorities to seek warrants in situations
where previously they would not. Police
Executive Research Forum, The Effects
of United States v. Leon on Police
Search Warrant Policies and Practice
(1988).
Texas' Statutory equivalent to the
Federal Exclusionary Rule also provides
for a good faith exception. TEX. CODE
CRIM. P. Art. 38.23(b) (Vernon 1989).
[where a defective warrant has been
issued by a magistrate and the warrant
was based on probable cause, if the
executing officer believes in good faith
the warrant is valid, the evidence is
nevertheless admissible].
B. “UNREASONABLE
DELAY” BEFORE
PRESENTMENT AS
GROUNDS FOR
SUPPRESSION OF
CONFESSION
1. Corley v. United States, 556 U.S. 303
(2009)
A divided Court held in Corley v.
United States, 556 U.S. 303 (2009), that
18 U.S.C. § 3501 did not overrule the
Court’s line of cases following McNabb
24
v. United States, 318 U.S. 332 (1943),
and Mallory v. United States, 354 U.S.
449 (1957). In his opinion for the
Court, Justice Stevens considered
rationale of McNabb-Mallory and the
legislative history of § 3501 to conclude
that Congress only intended to limit
McNabb-Mallory and not to eliminate it.
Corley, at 306. Stevens went on to state
that “Justice Frankfurter’s point in
McNabb is a fresh as ever: ‘The history
of liberty has largely been the history of
observance of procedural safeguards.’”
Id. at 321 (citing McNabb). The result
of Corley, however, is not that a
confession obtained prior to presentment
is automatically suppressed, but rather
that:
"… a district court with a suppression
claim must find whether the defendant
confessed within six hours of arrest
(unless a longer delay was ‘reasonable
considering the means of transportation
and the distance to be traveled to the
nearest available [magistrate] ‘). If the
confession came within that period, it is
admissible, subject to other Rules of
Evidence, so long as it was “made
voluntarily and … the weight to be given
to [it] is left to the jury. “ If the
confession occurred before presentment
and beyond six hours, however, the court
must decide whether delaying that long
was unreasonable or unnecessary under
the McNabb-Mallory cases, and it was,
the confession it so be suppressed.
Corley at 322.
 C. STATES ARE FREE TO
PROVIDE GREATER
PROTECTIONS FOR THEIR
CITIZENRY UNDER STATE
CONSTITUTION AND
STATUTES
1. LEGO v. TWOMEY, 404 U.S. 477
(1972).
But since the Supreme Court sets a
floor below which our constitutional
rights cannot fall and the states set the
ceiling, states are free to provide greater
protections than afforded citizens under
the federal system. Lego v. Twomey, 404
U.S. 477, 92 619, 30 L.Ed.2d 618
(1972); Oregon v. Hass, 420 U.S. 714,
95 1215, 43 L.Ed.2d 570 (1975); Texas
v. White, 423 U.S. 67, 72, 96 304, 46
L.Ed.2d 209 (1975); Michigan v.
Mosley, 423 U.S. 96, 96 321, 46 L.Ed.2d
313 (1975).
"[I]t is appropriate to observe
that no state is precluded from
adhering to higher standards
under state law. Each state has
the power to impose higher
standards governing police
practices under the state law than
is required by the federal
constitution." Mosley, 423 U.S.
at 120.
For example, Pennsylvania has rejected
the Leon good faith exception to the
exclusionary rule. See Commonwealth v.
Edmunds, 586 A.2d 887 (Pa. 1991)
[finding that the exclusionary rule also
protects the individual's right to privacy
the Court rejected the Leon good faith
exception]; State v. Santiago, 492 P.2d
657 (Haw. 1971) [rejecting Harris v.
New York, 401 U.S. 222 (1971)]; State v.
Johnson, 346 A.2d 66 (N.J. 1975)
[rejecting waiver of constitutional right
25
approach of Schneckloth v. Bustamonte,
412 U.S. 218 (1975)]; Blue v. State,
558 P.2d 636 (Alaska 1977) [rejecting
Kirby v. Illinois, 406 U.S. 682 (1972)
[interpretation of right to counsel at pre-
indictment lineups)]; State v. Kaluna,
520 P.2d 51 (Haw. 1974) [rejecting
Supreme Court's interpretation of right
to search incident to an arrest in U.S. v.
Robinson, 414 U.S. 218 (1973) and
Gustafson v. Florida, 414 U.S. 260
(1973)]; State v. Jackson, 688 P.2d 136
(Wash. 1984) [rejecting the Gates
"totality" test]; State v. Sidebotham, 474
A.2d 1377 (N.H. 1984) [Jones-type
automatic standing held still available in
New Hampshire]; State v. Bolt, 689 P.2d
519 (Ariz. 1984) [refusing to allow
securing premises for purposes of
obtaining warrant as per Segura];
Sanchez v. State, 707 S.W.2d 575 (Tex.
Crim. App. 1986) [noting Independent
State Constitution restricts use of even
uncounseled silence]; State v. Jewitt, 500
A.2d 233 (Vt. 1985); State v. Young, 867
P.2d 593 (Wash. 1994).
"Since 1970 there have been over
250 cases in which state
appellate courts have viewed the
scope of rights under state
constitutions as broader than
those secured by the federal
Constitution as interpreted by the
U.S. Supreme Court.... 'A lawyer
today representing someone who
claims some constitutional
protection and who does not
argue that the state constitution
provides that protection is
skating on the edge of
malpractice'. ...
One longs to hear once again of
legal concepts, their meaning,
and their origin. All too often
legal argument consists of litany
 of federal buzz words memorized
like baseball cards....
To paraphrase Jefferson, we
might as well require a man to
wear still the coat which fitted
him as a boy as to educate a law
student in this time of post-
Warren counter-revolution as if
there had been no resurrection of
federalism and state judicial
independence. It is small wonder
that lawyers are confused or
baffled when they decide to
engage in independent
interpretation of the Vermont
Constitution.
This generation of
Vermont lawyers has an
unparalleled opportunity to aid in
the formulation of a state
constitutional jurisprudence that
will protect the rights and
liberties of our people, however
the philosophy of the U.S.
Supreme Court may ebb and
flow. The development of state
constitutional jurisprudence will
call for the exercise of great
judicial responsibility as well as
diligence from the trial bar. It
would be a serious mistake for
this court to use its state
constitution chiefly to evade the
impact of the decisions of the
U.S. Supreme Court. Our
decisions must be principled, not
result oriented." State v. Jewitt,
500 A.2d 233 (Vt. 1985).
The Supreme Court dismissed as
improvidently granted a writ of certiorari
on the ground that the court below had
rested its suppression decision "on
independent and adequate state
grounds". This was in spite of the fact
26
that the Court had decided the same
issue on the same day differently in a
Federal case where the decision below
rested solely on Federal Constitution
standards, reaffirming that States are free
to prescribe greater protections for their
citizenry. Florida v. Casal, 462 U.S.
637 (1983).
Even in Gates, the Supreme Court
recognized that a different rule would
attach if it were considering "actions of
state officials under state Statutes”.
"Due regard for the appropriate
relationship of this Court to state
courts, McGoldrick v.
Compagnie General, 309 U.S.
430, 435-36 (1940); demands
that these courts be given an
opportunity to consider the
constitutionality of the actions of
state officials ...we permit a state
court, even if it agrees with the
state as a matter of federal law, to
rest its decision on an adequate
and independent state ground."
Gates, 462 U.S. at 221.
In California v. Ramos, the Supreme
Court, speaking through Justice
O’Connor, reiterated that:
"It is elementary that States are
free to provide greater
protections in their criminal
justice system than the Federal
Constitution requires." California
v. Ramos, 463 U.S. 992 (1983).
However, note that the Texas Court
of Criminal Appeals, in an en banc
opinion held that the Texas Constitution
contains no requirement that a seizure or
search must be authorized by a warrant,
and any seizure or search that is
otherwise reasonable will not be found
to be in violation of Texas Constitution
because it was not authorized by a
warrant and that the Texas Constitution
does not offer greater protection than the
Fourth Amendment and may offer less
protection. Hulit v. State, 982 S.W.2d
431 (Tex. Crim. App. 1998).
Additionally, the court added that it
had “expressly conclude[d] that this
court, when analyzing and interpreting
Art. I, § 9, Tex. Const., will not be
bound by Supreme Court decisions
addressing the comparable Fourth
Amendment issue,” quoting Heitman v.
State, 815 S.W.2d 681, 690 (Tex. Crim.
App. 1991). See also Polk v. State, 704
S.W.2d 929, 934 (Tex.Cr.App. 5-Dist.
1986); Oliver v. State, 711 S.W.2d 442,
445 (Tex.App.-Ft. Worth, 1986) [the
independent source and inevitable
discovery exceptions to the judicially
created exclusionary rule do not apply to
article 38.23 and will not, short of an
amendment]; Commonwealth v. Upton,
476 N.E.2d 548 (1985) [two-pronged
Aguilar-Spinelli test retained for state
law purposes instead of the Gates
totality of the circumstances standard.
Court cited that the Aguilar standard had
been working well for twenty years,
encouraged careful police work and
tended to reduce the number of
unreasonable searches]; State v. Jackson,
688 P.2d 136 (Wash. 1984).
It should be noted, however, that
even if a state provides protections
greater than those required by the
Constitution, it does not necessarily
trigger constitutional protections. See:
Virginia v. Moore, 128 1598 (2009)
[Fourth Amendment did not require
exclusion of evidence obtained as a
result of a search based on an arrest
permission under federal constitutional
protections but illegal under state law].
27
D. SEVERAL STATES HAVE
REJECTED ANY LEON
"GOOD FAITH" EXCEPTION
A number of state courts have
rejected the Leon "good faith" exception
to the exclusionary rule on state
constitutional grounds: State v. Oakes,
598 A.2d 119 (Vt. 1991).
"By treating the federal
exclusionary rule as a judicially
created remedy rather than a
constitutional right, the Supreme
Court's decision focuses, not on
interpretation of the federal
constitution, but on an attempted
empirical assessment of the costs
and benefits of creating a good
faith exception to the federal
exclusionary rule. This empirical
assessment can inform this
Court's decision on the good faith
exception only to the extent that
it is persuasive. If the
assessment is flawed, this Court
cannot simply accept the
conclusion the Supreme Court
draws from it. To do so would
be contrary to our obligation to
ensure that our state exclusionary
rule effectuates [our State
Constitutional provisions], and
would deserve those rights.
"When the [United States
Supreme] Court's analysis is
examined carefully, however, it
is clear that we have not been
treated to an honest assessment
of the merits of the exclusionary
rule, but have instead been drawn
into a curious world where the
`costs' of excluding illegally
obtained evidence loom to
exaggerated heights and where
the `benefits' of such exclusion
are made to disappear with a
 mere wave of the hand.
"The exclusionary rule's deterrent
effect, however, does not rest
primarily on `penalizing' an
individual officer into future
conformity with the Constitution.
Rather, it rests on `its tendency to
promote institutional compliance
with Fourth Amendment
requirements on the part of law
enforcement agencies
generally.'...It creates an
incentive for the police as an
institution to train its officers to
conform with the Constitution.
Consequently, the important
question is not whether it is of
any benefit to `penalize' the
objectively reasonable conduct of
an individual officer, but rather
whether failure to do so will
lower the incentive for
institutional compliance." State v.
Oakes, 598 A.2d 119 (Vt. 1991).
See also Commonwealth v. Edmunds,
586 A.2d 887, 899 (Pa. 1991).
“Indeed, we disagree with that
Court's suggestion in Leon that
we in Pennsylvania have been
employing the exclusionary rule
all these years to deter police
corruption. We flatly reject this
notion. We have no reason to
believe that police officers or
district justices in the
Commonwealth of Pennsylvania
do not engage in ‘good faith’ in
carrying out their duties. What is
significant, however, is that our
Constitution has historically been
interpreted to incorporate a
strong right of privacy, and an
equally strong adherence to the
requirement of probable cause
28
under Article 1, Section 8.
Citizens in this Commonwealth
possess such rights, even where a
police officer in ‘good faith’
carrying out his or her duties
inadvertently invades the privacy
or circumvents the strictures of
probable cause. To adopt a
‘good faith’ exception to the
exclusionary rule, we believe,
would virtually emasculate those
clear safeguards which have been
carefully developed under the
Pennsylvania Constitution over
the past 200 years.”
Commonwealth v. Edmunds, 586
A.2d at 899.
See State v. Carter, 370 S.E.2d 553 (N.
C. 1988); State v. Marsala, 579 A.2d 58
(1990), remanded, 620 A.2d 1293
(Conn. 1993).
“Initially, we note that the
exclusionary rule, although
primarily directed at police
misconduct, is also appropriately
directed at the warrant issuing
process, and that it is somewhat
odd to suppose that the
exclusionary rule was not
designed to deter the issuance of
invalid warrants. ... If we were to
adopt the good faith exception,
our practice of declining to
address doubtful constitutional
issues unless they are essential to
the disposition of a case would
preclude our consideration of
probable cause beyond reviewing
whether an officer had an
‘objectively reasonable’ belief in
its existence. Absent a
meaningful necessity to review
probable cause determinations,
we conclude that close cases will
become ‘both the hardest to
 decide and the easiest to dispose
of under the good faith
exception; in such cases the
officer's objective good faith is
clearest’...In short, we are simply
unable to sanction a practice in
which the validity of search
warrants might be determined
under a standard of ‘close
enough is good enough instead of
under the ‘probable cause’
standard mandated by article 1
section 7, of our state
constitution.” State v. Marsala,
579 A.2d 58 (1990), remanded,
620 A.2d 1293 (Conn. 1993).
See also State v. Guzman, 842 P.2d 660,
672, 677 (Idaho 1992).
“In sum, the United States
Supreme Court has abandoned
the original purposes of the
exclusionary rule as announced
in Weeks and adopted by this
Court in Arregui, in that the
federal system has clearly
repudiated any purpose behind
the exclusionary rule other than
that of a deterrent to illegal
police behavior. Thus, the
change in federal law has
provided an impetus for a return
by this Court to exclusive state
analysis...The exclusionary rule
unencumbered by the good faith
exception provides incentives for
the police department and the
judiciary to take care that each
warrant applied for and issued is
in fact supported by probable
cause. In addition to
encouraging compliance with the
constitutional requirement that
no warrant shall issue but upon
probable cause, it also lessens the
chances that innocent citizens
29
will have their homes broken into
and ransacked by the police
because of warrants issued upon
incomplete or inaccurate
information. We believe these
are laudable effects of the
exclusionary rule which appear
to have gone unrecognized by the
Leon majority.” State v. Guzman,
842 P.2d at 672, 677.
“The Leon good faith exception
contemplates that appellate
courts defer to trial courts and
trail courts defer to the police. It
fosters a careless attitude toward
details by the police and issuing
judicial officers and it even
encourages them to attempt to
get away with conduct which
was heretofore viewed as
unconstitutional...The decision in
Leon represents a serious
curtailment of the Fourth
Amendment rights of the
individual. But under the
broader protection guaranteed the
individual under our State
Constitution, the State is not
permitted to introduce evidence
in its case in chief which has
been seized without probable
cause.” State v. Novembrino, 491
A.2d 37, 45-46 (N.J. 1985).
“Whether or not the police acted
in good faith here, however, the
Leon rule does not help the
People's position. That is so
because if the People are
permitted to use the seized
evidence, the exclusionary rule's
purpose is completely frustrated,
a premium is placed on the
illegal police action and a
positive incentive is provided to
others to engage in similar
 lawless acts in the future. We
therefore decline, on State
constitutional grounds, to apply
the good-faith exception the
Supreme Court stated in United
States v. Leon.” People v.
Bigelow, 488 N.E.2d 451 (N.Y.
1985).
Other state courts have come to the same
conclusion on statutory grounds. See
Commonwealth v. Upton, 476 N.E.2d
548 (Mass. 1985); Gary v. State, 422
S.E.2d 426 (Ga. 1992), aff’d, State v.
Gary, 432 S.E.2d 123 (Ga. 1993). But
see State v. Wills, 524 N.W.2d 507
(Minn. App. 1994); Gordon v. State, 801
S.W.2d 899 (Tex. Cr. App. 1990).
Texas has a statutory exclusionary
rule, TEX. R. CRIM. P. Art. 38.23(a)
which provides that:
"No evidence obtained by an
officer or other person in
violation of any provisions of the
Constitution or laws of the State
of Texas, or of the Constitution
or laws of the United States of
America, shall be admitted in
evidence against the accused on
the trial of any criminal case."
TEX. R. CRIM. P. Art. 38.23(a).
In 1987, the Texas legislature amended
that statute, TEX. R. CRIM. P. Art.
38.23(b) to include a "good faith"
exception:
"It is an exception to the
provisions of Subsection (a) of
this Article that the evidence was
obtained by a law enforcement
officer acting in objective good
faith reliance upon a warrant
issued by a neutral magistrate
based upon probable cause."
30
TEX. R. CRIM. P. Art. 38.23(b).
However, rather than creating a state
statutory "good faith" exception, the
Texas Court of Criminal Appeals has
interpreted the language of this
particular statute to constitute an express
legislative rejection of any Leon "good
faith" exception.
"We also note the appeals court
was incorrect in finding the
statute a codification of United
States v. Leon,...because Art.
38.23(b) requires a finding of
probable cause, while the
exception enunciated in Leon
appears more flexible in allowing
a good faith exception if the
officer’s belief in probable cause
is reasonable. Thus, we must
direct our attention to the validity
of the warrant and affidavit
without recourse to any ‘good
faith' exception to the warrant
requirement." Gordon v. State,
801 S.W.2d 899, 912–13 (Tex.
Crim. App. 1990).
Still others have rejected the good faith
exception on the basis of judicial
opinion.
State v. Grawien, 367 N.W.2d
816 (Wisc.), rev. denied, 371
N.W.2d 375 (1985); State v.
Joyce, 639 A.2d 1007 (1994).
E. WHAT QUANTUM OF
PROOF IS NECESSARY TO
DEMONSTRATE PROBABLE
CAUSE?
On appeal of a Suppression Order,
the Fourth Circuit held that facts
contained in Presentence Report and
Sentencing proceeding may be
considered in determining “probable
cause” on appeal. Even though appeal
was from a “conditional plea.” US v.
Gray, 491 F.3d 138 (4th Cir. 2007).
F. SUBJECTIVE INTENT OF
OFFICERS
The Supreme Court has repeatedly
held that the “motivations of individual
officers,” their “subjective intentions
play no role in ordinary probable cause
Forth Amendment analysis.” Whren v.
U.S. 517 U.S. 806 (1996). Supreme
Court reiterates that it will “not entertain
Fourth Amendment challenges based on
the actual motivations of individual
officers.” “A traffic-violation arrest will
not be rendered invalid by the fact that it
was ‘a mere pretext for a narcotics
search.” Arkansas v. Sullivan 532 U.S.
769 (2001). Furthermore, in a
unanimous opinion the Supreme Court
held that Officers may enter a residence
without a warrant, where there exists an
emergency, regardless of the officers
“subjective intent,” “[i]t therefore does
not matter here…whether the officers
entered the kitchen to arrest respondents
and gather evidence against them or to
assist the injured and prevent further
violence.” Brigham City Utah v. Stuart,
547 U.S. 398 (2006). The distinction
between an “inventory” and a “search” is
“based on the principle that an inventory
search must not be a ruse for a general
rummaging in order to discover
incriminating evidence of crime.”
Florida vs. Wells, 495 U.S. 1 (1990). In
City of Indianapolis v. Edmond “[t]he
primary purpose of the Indianapolis
narcotics checkpoints is in the end to
advance the general interest in crime
control…. We decline to suspend the
usual requirement of individualized
31
suspicion where the police seek to
employ a checkpoint primarily for the
ordinary enterprise of investigating
crimes.” 531 U.S. 32 (2000). The Court
held that it “cannot sanction stops
justified only by the generalized and
ever-present possibility that
interrogation and inspection may reveal
that any given motorist has committed
some crime.”
However, in practice, Courts, of
necessity, regularity look to an officers,
purpose” or “subjective intent” when
making such determinations. According
to Bond v. U.S., an officers purpose in
squeezing a bag in a closed compartment
was “exploratory.” 529 U.S. 334 (2000).
But the Fifth Circuit in 2006 in U.S.
v. Pope did not ever get too “subjective
intent.” San Antonio Police officer
Michael Baird made an undercover
purchase of prescription drugs and then
78 days later officer Baird received a
“tip” that Pope was “cooking
methamphetamine at his residence.”
That night officer Baird obtained a
search warrant for Pope’s residence
specifically for prescription drugs. There
was no mention of methamphetamine.
Under a Franks vs. Delaware analysis
Judge Weiner wrote that the failure to
disclose to the issuing magistrate “the
true purpose for which the officer
wanted to search Pope’s house: solely to
look for and seize evidence of a meth
lab,” rather than the “stale prescription
drug buy,” rendered the search
unconstitutional. “We know from
Baird’s own lips that he lied to the
magistrate.”
In U.S. v. Green, officers could not
search the passenger compartment of a
vehicle (pursuant to N.Y. v. Belton),
where Defendant was arrested some 6 to
10 feet away from his vehicle. “The
principle behind Belton and Chimel is to
protect police officers and citizens who
may be standing nearby from the actions
of an arrestee who might gain access to a
weapon or destructible
evidence…Although he tried to flee, by
the time the search occurred he was
handcuffed and lying face down on the
ground at least six feet from the car and
surrounded by four police
officers…Because none of the concerns
articulated in Chimel and Belton
regarding law enforcement safety and
destruction of evidence are present in
this case, the Government cannot justify
the search of Green’s vehicle under
Belton or Chimel.” Driver’s license
roadblocks used to enforce general
criminal investigations are prohibited, in
Texas. “While the statute purports to
give peace officers the right to stop and
detain motorists for the limited purpose
of checking their driver’s or operator’s
licenses, it does not authorize fishing
expeditions.” Meeks vs. State, 692
S.W.2d 504 (1985).
VII. OTHER EXIGENT
CIRCUMSTANCES
A. PROTECTIVE SWEEPS
Police officers who arrest a group of
drug smugglers outside a gated fence
surrounding an auto repair yard may not
conduct a “protective sweep” of the yard
without reasonable belief that shop
harbored someone posing a danger to
them. However, the Fifth Circuit found
that such a reasonable belief based only
on fact that arrest involved large sums of
money and police could assume same
would be guarded. U.S. v. Mata, 517
F.3d 279 (5th Cir. 2008). Also, Police
officers’ initial warrantless entry of
32
home to conduct a “protective sweep”
did not taint the homeowner’s
subsequent consent to search the
premises, because homeowner was not
the target of police inquiry, the purpose
of the exclusionary rule would not be
served (Hudson). U.S. v. Delancy, 502
F.3d 1297 (11th Cir. 2007).
B. SEARCH INCIDENT TO
ARREST
Police may conduct a N.Y. v. Belton
protective sweep of passenger
compartment of vehicle, prior to the
arrest of individuals urinating in the
street nearby. U.S. v. Powell, 483 F.3d
836 (D.C. Cir. 2007).
1. DNA EVIDENCE TAKEN UPON
ARREST
Maryland v. King, 133 S. Ct. 1958
(2012).
In 2009, Alonzo King was
arrested for assault. King, 133 S. Ct. at
1965. As part of the booking procedure
for serious crimes used in Wilcomico
County, Maryland, King’s DNA sample
was taken by applying a buccal swab to
the inside of his cheeks. Id. The DNA
was found to match that from a rape
case, six years prior. Id.
The Court of Appeals of
Maryland later “ruled that the DNA
taken when King was booked for the
2009 charge was an unlawful seizure
because obtaining and using the cheek
swab was an unreasonable search of the
person” and set aside his conviction. Id.
In an opinion authored by Justice
Kennedy, the Supreme Court reversed
the judgment of the Maryland court. Id.
Justice Kennedy noted that
“[a]lthough the DNA swab procedure
used here presents a question the Court
has not yet addressed, the framework for
deciding the issue is well established.”
Id. at 1968. The Justice went on to note
that “[a] buccal swab is a far more gentle
process than a venipuncture to draw
blood. It involves but a light touch on
the inside of the cheek; and although it
can be deemed a search within the body
of the arrestee, it requires no ‘surgical
intrusions beneath the skin.’” Id. at
1969 (citing Winston v. Lee, 470 U.S.
753, 760 (1985)).
The relevant case history under
which to address the facts of the case,
was determined to be:
In some circumstances,
such as “[w]hen faced with
special law enforcement needs,
diminished expectations of
privacy, minimal intrusions, or
the like, the Court has found that
certain general, or individual,
circumstances may render a
warrantless search or seizure
reasonable.” Illinois v. McArthur,
531 U.S. 326, 330, 121 946, 148
L.Ed.2d 838 (2001). Those
circumstances diminish the need
for a warrant, either because “the
public interest is such that neither
a warrant nor probable cause is
required,” Maryland v. Buie, 494
U.S. 325, 331, 110 1093, 108
L.Ed.2d 276 (1990), or because
an individual is already on
notice, for instance because of
his employment, see Skinner,
supra, or the conditions of his
release from government
custody, see Samson v.
California, 547 U.S. 843, 126
2193, 165 L.Ed.2d 250 (2006),
that some reasonable police
intrusion on his privacy is to be
expected. The need for a warrant
is perhaps least when the search
involves no discretion that could
33
properly be limited by the
“interpo[lation of] a neutral
magistrate between the citizen
and the law enforcement officer.”
Treasury Employees v. Von
Raab, 489 U.S. 656, 667, 109
1384, 103 L.Ed.2d 685 (1989).
King, 133 S. Ct. 1958, 1969–70.
Under this background, Justice
Kennedy went on to note that the
Maryland DNA Collection Act, which
allowed the collection of King’s DNA,
calls for arrestees “charged with serious
crimes [to] provide furnish the sample
on a buccal swab applied, as noted, to
the inside of the cheeks.” Id. at 1970.
In this scenario, the arrestee is “already
in valid police custody for a serious
offense supported by probable cause.”
Id.
Justice Kennedy also described
how he determined the sample taking to
be reasonable when compared to the
interest served. “The legitimate
government interest served by the
Maryland DNA Collection Act is one
that is well established: the need for law
enforcement officers in a safe and
accurate way to process and identify the
persons and possessions they must take
into custody.” Id. Further, “[a]
suspect’s criminal history is a critical
part of his identity that officers should
know when processing him for
detention.” Id. at 1971.
In conclusion, Justice Kennedy
offered:
In light of the context of a
valid arrest supported by
probable cause respondent's
expectations of privacy were not
offended by the minor intrusion
of a brief swab of his cheeks. By
contrast, that same context of
arrest gives rise to significant
state interests in identifying
respondent not only so that the
 proper name can be attached to
his charges but also so that the
criminal justice system can make
informed decisions concerning
pretrial custody. Upon these
considerations the Court
concludes that DNA
identification of arrestees is a
reasonable search that can be
considered part of a routine
booking procedure. When
officers make an arrest supported
by probable cause to hold for a
serious offense and they bring
the suspect to the station to be
detained in custody, taking and
analyzing a cheek swab of the
arrestee's DNA is, like
fingerprinting and
photographing, a legitimate
police booking procedure that is
reasonable under the Fourth
Amendment.
King, 133 S. Ct. at 1980.
In offering his dissent, in which
he was joined by Justice Ginsburg,
Sotomayor, and Kagan, Justice Scalia
used the wit for which he is known in
offering:
Today's judgment will, to be
sure, have the beneficial effect of
solving more crimes; then again,
so would the taking of DNA
samples from anyone who flies
on an airplane (surely the
Transportation Security
Administration needs to know
the “identity” of the flying
public), applies for a driver's
license, or attends a public
school. Perhaps the construction
of such a genetic panopticon is
wise. But I doubt that the proud
men who wrote the charter of our
liberties would have been so
34
eager to open their mouths for
royal inspection.
King, 133 S. Ct. 1958, 1989 (Scalia, J.,
dissenting).
C. ARREST IN ONE’S HOME
“[T]he Fourth Amendment has
drawn a firm line at the entrance to the
house. Absent exigent circumstances,
that threshold may not reasonably be
crossed without a warrant.” Payton v.
N.Y. 445 U.S. 573 (1980). Police must
obtain an arrest warrant to arrest
someone in their home, even where the
suspect voluntarily opens the door and
exposes himself to public view in
response to police knocks, Kyllo v. U.S.,
533 U.S. 27 (2001). Payton establishes a
bright-line rule that “any physical
invasion of the structure of the home,
‘by even a fraction of an inch,’ is too
much.” McClish v. Nugent, 483 F.3d
1231 (11th Cir. 2007).
1. SPOUSAL CONSENT
In Georgia v. Randolph, 547
U.S. 103 (2006), the Court held that law
enforcement officers' warrantless search
of a shared home pursuant to the consent
of one resident violated the Fourth
Amendment rights of another resident
who is present and expressly objects to
the search. The Court reasoned that the
Fourth Amendment's prohibition of
unreasonable searches and seizures
forbade law enforcement officers to
conduct a warrantless search of a home
pursuant to the consent of the wife when
the husband was present on the scene
and objected to the search. The court's
ruling goes against the prevailing
approach taken in the lower federal and
state courts.
2. Physical presence of non-consenting
spouse now required.
Fernandez v. California, 134 S. Ct.
1126 (2014).
In Fernandez, Justice Alito,
writing for the majority noted, “[t]he
Court’s opinion [in Randolph] went to
great lengths to make clear that its
holding was limited to situations in
which the objecting occupant is present.”
Id. at 1128. The Court held “that an
occupant who is absent due to a lawful
detention or arrest stands in the same
shoes as an occupant who is absent for
any other reason.” Id. at 1134.
Justices Scalia and Thomas
concurred in the judgment, yet wrote
separately to state that they would “find
this a more difficult case if it were
established that property law did not
give petitioner’s cotenant the right to
admit visitors over petitioner’s
objection.” Id. at 1138 (Scalia, J.,
concurring). This rationale is consistent
with Justice Scalia’s reasoning employed
previously in U.S. v. Jones, 132 S. Ct.
945 (2012) and Florida v. Jardines, 133
S. Ct. 1409 (2013), where he has used
property law to decide Fourth
Amendment issues.
In the dissent, Justices Ginsburg,
Sotomayor, and Kagan state that the case
should have been easily resolved
adhering to the warrant requirement.
“Instead of adhering to the warrant
requirement, today’s decision tells the
police they may dodge it, never mind
ample time to secure the approval of a
neutral magistrate.” Fernandez, No. 12-
7822, slip op. (February 25, 2014).
D. EXIGENT
CIRCUMSTANCES
35
1. Kentucky v. King, 131 S. Ct. 1849
(2011). (8-1) Ginsburg dissenting
Although warrantless searches
are presumptively unreasonable under
the Fourth Amendment, the Court has
carved out exceptions to that general rule
for (among other things) exigent
circumstances, such as the imminent
destruction of evidence. The lower
courts had held that the exigent
circumstances rule did not apply when
the exigency was created by police
conduct, but there was no consensus on
how to determine when police
impermissibly create such exigencies. In
Kentucky v. King, the Court – in an
opinion by Justice Alito – held that the
exigent circumstances rule applies as
long as the police do not use an actual or
threatened violation of the Fourth
Amendment to gain entry to a premises.
The case arose from efforts by
police to follow a suspected drug dealer
into an apartment building. Although
the officers were unsure which
apartment the suspect had entered, they
smelled marijuana wafting from one
apartment: they then knocked on that
door and identified themselves as
police. When they heard shuffling
noises inside the apartment after the
knock, the police believed evidence was
being destroyed and entered the
apartment without a warrant; inside, they
found respondent Hollis Deshaun King,
along with drugs and drug paraphernalia.
In reaching its holding, the Court
rejected several other tests adopted by
lower courts generally and the Kentucky
Supreme Court in this case (in his post
yesterday, Orin Kerr discusses the
Court’s decision-making process in more
detail): it reasoned, for example, that a
“bad faith” requirement would be
inappropriate because only objective
reasonableness is relevant; that a
“reasonable foreseeability” test would be
too unpredictable and difficult to
quantify; that requiring police to get a
warrant as soon as they have probable
cause would “unjustifiably interfere[]
with legitimate law enforcement
strategies” and is inefficient; that a test
that inquires into whether police used
standard or good investigative tactics
would “fail[] to provide clear guidance
for law enforcement officers”; and that a
test that examines whether the police
action “would cause a reasonable person
to believe that entry is imminent and
inevitable” turns on too many
“subtleties.”
The Court explained that its test
will still provide “ample protection for
the privacy rights that the Amendment
protects.” Occupants may still decline to
open the door or speak with police, and
if they choose to open the door they can
refuse to answer questions or allow the
police to come inside. “Occupants who .
. . elect to attempt to destroy evidence
have only themselves to blame for the
warrantless exigent-circumstances
search that may ensue,” the Court warns.
In her dissent, Justice Ginsburg
contends that the Court’s decision “arms
police with a way routinely to dishonor
the Fourth Amendment’s warrant
requirement in drug cases”; in a largely
rhetorical question, she also asks
whether our homes will actually remain
secure “if police, armed with no warrant,
can pound on doors at will and, on
hearing sounds indicative of things
moving, forcibly enter and search for
evidence of unlawful activity[.]” To
maintain the protections of the Fourth
Amendment, she argues, the exigent
circumstances must exist “when the
police come on the scene, not
subsequent to their arrival, prompted by
their own conduct.”
Justice Ginsburg notes that if the
36
police had not knocked, no evidence
would have been destroyed; she
emphasizes that even the Court’s
opinion concedes that “[p]ersons in
possession of valuable drugs are unlikely
to destroy them unless they fear
discovery by the police,” and here the
suspects would not have anticipated
police discovery but for the knock. The
police could have posted officers outside
the apartment while obtaining a warrant
for entry because there was “very little
risk” that the evidence would have been
destroyed while awaiting a warrant.
In its opinion, the Kentucky
Supreme Court had assumed without
deciding that exigent circumstances were
present in this case, and the Court’s
opinion did not resolve that question,
instead leaving that factual question
open for the Kentucky Supreme Court to
decide on remand.
2. Missouri v. McNeely, 133 S. Ct. 1552
(2013).
In Missouri v. McNeely, the
Court, in an 8-1 decision held that
the:
natural metabolization of alcohol
in the bloodstream does not
present a per se exigency that
justifies an exception to the
Fourth Amendment's search
warrant requirement for
nonconsensual blood testing in
all drunk-driving cases, and
instead, exigency in this context
must be determined case by case
based on the totality of the
circumstances, abrogating State
v. Shriner, 751 N.W.2d 538,
State v. Bohling, 173 Wis.2d 529,
494 N.W.2d 399, and State v.
Woolery, 116 Idaho 368, 775
P.2d 1210.
McNeely, 133 S. Ct. 1552 (2013).
 Shortly after 2am, a Missouri
police officer stopped McNeely’s truck
after observing him speed and cross the
centerline repeatedly. Id. at 1556. After
failing field-sobriety tests and declining
to take a portable breath analysis test,
McNeely was arrested. Id. at 1556–57.
While in transport to the station house,
McNeely indicated that he would refuse
to take a breath test at that location. Id.
Without attempting to secure a warrant,
the officer took McNeely to the hospital.
Id. There, he advised McNeely that
refusal to submit voluntarily to a blood
draw to test for alcohol would result in
an automatic suspension of his license.
Id. McNeely nonetheless refused. Id.
“The officer then directed a hospital lab
technician to take a blood sample, and
the sample was secured at approximately
2:35 a.m. Subsequent laboratory testing
measured McNeely's BAC at 0.154
percent, which was well above the legal
limit of 0.08 percent.” Id.
The Court noted that precedent
holds that a warrantless search of a
person is reasonable only if it falls
within a recognized exception. Id. at
1558 (citing United States v. Robinson,
414 U.S. 218, 224 (1973)).
That principle applies to the type
of search at issue in this case,
which involved a compelled
physical intrusion beneath
McNeely's skin and into his veins
to obtain a sample of his blood
for use as evidence in a criminal
investigation. Such an invasion
of bodily integrity implicates an
individual's “most personal and
deep-rooted expectations of
privacy.” Winston v. Lee, 470
U.S. 753, 760, 105 1611, 84
L.Ed.2d 662 (1985); see also
Skinner v. Railway Labor
Executives' Assn., 489 U.S. 602,
616, 109 1402, 103 L.Ed.2d 639
37
(1989).
McNeely, 133 S. Ct. at 1558.
The Court noted that there are
exigencies which are so compelling that
law enforcement may engage in a
warrantless search which is, at that time,
objectively reasonable. Id. These
include:
law enforcement's need to
provide emergency assistance to
an occupant of a home,
Michigan v. Fisher, 558 U.S. 45,
47–48, 130 546, 175 L.Ed.2d 410
(2009) (per curiam), engage in
“hot pursuit” of a fleeing
suspect, United States v.
Santana, 427 U.S. 38, 42–43, 96
2406, 49 L.Ed.2d 300 (1976), or
enter a burning building to put
out a fire and investigate its
cause, Michigan v. Tyler, 436
U.S. 499, 509–510, 98 1942, 56
L.Ed.2d 486 (1978). As is
relevant here, we have also
recognized that in some
circumstances law enforcement
officers may conduct a search
without a warrant to prevent the
imminent destruction of
evidence. See Cupp v. Murphy,
412 U.S. 291, 296, 93 2000, 36
L.Ed.2d 900 (1973); Ker v.
California, 374 U.S. 23, 40–41,
83 1623, 10 L.Ed.2d 726 (1963)
(plurality opinion). While these
contexts do not necessarily
involve equivalent dangers, in
each a warrantless search is
potentially reasonable because
“there is compelling need for
official action and no time to
secure a warrant.” Tyler, 436
U.S., at 509, 98 1942.
McNeely, 133 S. Ct. at 1558–59
(emphasis added).
The Court went on to note that
“[w]hether a warrantless blood test of a
drunk-driving suspect is reasonable must
be determined case by case based on the
totality of the circumstances.” Id. at
1563. “While the desire for a bright-line
rule is understandable, the Fourth
Amendment will not tolerate adoption of
an overly broad categorical approach
that would dilute the warrant
requirement in a context where
significant privacy interests are at stake.”
Id. at 1564. Further, “the general
importance of the government's interest
in this area does not justify departing
from the warrant requirement without
showing exigent circumstances that
make securing a warrant impractical in a
particular case.” Id. at 1565.
In a characteristically short
dissent, Justice Thomas wrote:
Because the body's natural
metabolization of alcohol
inevitably destroys evidence of
the crime, it constitutes an
exigent circumstance. As a result,
I would hold that a warrantless
blood draw does not violate the
Fourth Amendment.
McNeely, 133 S. Ct. at 1578 (Thomas, J.,
dissenting).
3. DEADLY FORCE AND THE
FOURTH AMENDMENT –
Mullenix v. Luna, 136 S.Ct. 305 (2015)
(per curiam).
In Mullenix, a police officer
approached Israel Leija, Jr., at a drive-in
restaurant with an arrest warrant. 136
S.Ct. 305, 306 (2015). The suspect next
took police on a high-speed chase for
nearly 20 minutes at speeds between 85
and 100 miles per hour. Id. Leija called
police dispatch twice during the chase,
claiming he had a gun and threatening to
shoot at the police if they did not
terminate their pursuit. Id. Trooper
38
Chadrin Mullenix and other officers
continued to pursue Leija. Officer
Mullenix drove to a nearby location to
set up spikes to stop the suspect, but
after learning that other spikes had been
set up at different locations, he began to
consider shooting at Leija’s car to
disable it instead. Id.
When Leija’s car approached,
Mullenix fired six shots, the car struck
the spike strips, hit the median and rolled
several times. Id. at 307. It was later
determined that Leija died as a result of
being shot my Mullenix. Id.
Respondents sued Mullenix, alleging he
violated the Fourth Amendment by using
excessive force against Leija. Id.
Mullenix moved for summary judgment,
arguing he was entitled to qualified
immunity, but the District Court denied
his motion. Id. The District Court found
that there were genuine questions of fact
regarding whether, under the
circumstances, Mullenix acted as a
reasonable officer would have. Id.
Mullenix appealed, but the Fifth Circuit
affirmed and subsequently denied his
petition for a hearing. In a per curiam
opinion, the Court held that there was no
clearly established law saying the use of
deadly force on a fleeing suspect that
posed a danger to others violates the
Fourth Amendment. The Court held that
the proper question in such scenarios is
whether, under the specific context of
the case, the Fourth Amendment
prohibited the officer’s conduct. Id. at
308. The Court concluded that because
it was not clearly established that Officer
Mullenix’s actions were inappropriate
under the specific circumstances, the
appellate court and district court erred in
holding that he was not entitled to
qualified immunity. Id. at 312.
In a concurring opinion, the late
Justice Scalia articulated that it was
conceded in the case that Mullenix did
not shoot to kill or wound Leija, but only
to cause the car to stop by destroying the
engine. Id. at 313. Scalia wrote that the
Fourth Amendment requires us to ask
whether it was reasonable to shoot at the
engine in light of the risk Leija. Id.
Justice Sotomayor dissented,
arguing that it was clear under Fourth
Amendment precedent that an officer in
Mullenix’s position should not have
acted as he did unless there was a
significant interest that outweighed the
intrusion into Leija’s Fourth Amendment
rights. Id. She asserts that under the
circumstances, Mullenix had no
plausible reason to choose to shoot at the
suspect rather than wait for the results of
the spike strips. Id. at 315. She
concludes that because of this, she
would hold that Mullenix violated
Leija’s “clearly established right to be
free of intrusion absent some
governmental interest. Id. Sotomayor
also asserts that the majority focused on
the wrong legal question by dwelling on
the imminence of the threat posed by the
suspect. Id. at 316.

VIII. CONCLUSION
The Fourth Amendment provides
the right to be free from “unreasonable
searches and seizures” to all those
protected by the United States
Constitution. This right is both one of
our most cherished protections and one
of our most threatened. It is important to
keep up with the recent case law
regarding this sensitive issue.
Furthermore, it is of paramount
importance that lawyers continue to use
litigation as a tool to compel law
enforcement and our government to
abide by proper cause and warrant
requirements.

39
 National Firearms Law Seminar

Section Two

Beyond Guns and Ammo: Building a Comprehensive Arms Law

Practice

John Frazer

Understanding Texas Gun Laws

Handguns v. Long Guns – Licensed Carry v. Unlicensed Carry

Charles Cotton
Handguns v. Long Guns – Licensed Carry v. Unlicensed Carry
Understanding Texas Gun Laws

The NRA Foundation, Inc.

NATIONAL FIREARMS LAW SEMINAR
May 4, 2018
Dallas, Texas

Charles L. Cotton
Attorney/Mediator
Cotton Farrell, P.C.
PO Box 1625
Friendswood, TX 77549-1625

1
 BIOGRAPHICAL INFORMATION

EDUCATION:

J.D., University of Houston Law Center - 1987

University of Houston Clear Lake – 1980

BS – Accounting

PRACTICE AREAS:

Sport Shooting Ranges

Mediation

FIREARMS RELATED EXERIENCE:

Pro bono legislative counsel for Texas State Rifle Association since 1987
Authored all or part of numerous Texas firearms related bills
Member of the National Rifle Association of America Board of Directors since 2001
Member of the NRA Civil Rights Defense Fund Board of Trustees since 2002
Member – NRA Speakers Bureau
Firearms instructor (NRA and Texas License to Carry a Handgun, advanced handgun)
Competitive shooter (IDPA)
Media spokesman

2
Contents
I. INTRODUCTION ..............................................................................................................................................5
II. Definitions ..........................................................................................................................................................5
III. TEX. PENAL CODE §46.02 – “Unlawful Carrying of Weapons” - The General Prohibition on Carrying
Handguns....................................................................................................................................................................5
IV. TEX. PENAL CODE §46.15(b) – Not Applicable.........................................................................................6
A. TEX. PENAL CODE §46.15(b)(2) – “Traveling” – Whatever the heck that is!! .........................................6
B. TEX. PENAL CODE §46.15(b)(3) – Hunting, Fishing and Other Sporting Activities .................................7
V. TEX. PENAL CODE §46.03– Off-Limits Areas: All Guns, All People, All the Time ......................................7
A. TEX. PENAL CODE §46.03(A)(1): SCHOOLS................................................................................................7
1. Exceptions ..................................................................................................................................................7
2. “Activity Grounds” .....................................................................................................................................7
B. TEX. PENAL CODE §46.03(a)(2) Polling Places on Election Day.................................................................8
C. TEX. PENAL CODE §46.03(a)(2): Government Courts and Court Offices ....................................................8
D. TEX. PENAL CODE §46.03(a)(4): Racetracks................................................................................................9
E. TEX. PENAL CODE §46.03(a)(5): Secured Areas of Airports .......................................................................9
1. Defense to §46.03(a)(5): .............................................................................................................................9
F. TEX. PENAL CODE §46.03(a)(6): Place of Execution ....................................................................................9
G. Various Defenses for Official Personnel ........................................................................................................9
VI. TEX. PENAL CODE §46.035: Unlawful Carrying of a Handgun by a Licensee .............................................9
A. TEX. PENAL CODE §46.035(a)(1): Concealment Requirement ...................................................................10
B. TEX. PENAL CODE §46.035(a-1): No Open-Carry on College Campus ......................................................10
C. Handguns On College Campuses .................................................................................................................10
1. Campus-Carry: A well-accepted misnomer ............................................................................................10
2. Definitions ................................................................................................................................................10
D. General Rule – Licensees Can Carry Handguns Everywhere on Campus ...................................................11
E. TEX. PENAL CODE §46.035(a-2): Private Colleges .....................................................................................11
F. TEX. PENAL CODE §46.035(a-3): Public schools ........................................................................................11
G. TEX. PENAL CODE §46.035(b)(1): 51% Locations ......................................................................................12
H. TEX. PENAL CODE §46.035(b)(2): Certain Sporting and Interscholastic Events ........................................12
I. TEX. PENAL CODE §46.035(b)(3): Correctional Facilities ..........................................................................12
J. TEX. PENAL CODE §46.035(b)(4): Hospitals and Nursing Homes ..............................................................13
K. TEX. PENAL CODE §46.035(b)(5): Amusement Parks .................................................................................13
3
 L. TEX. PENAL CODE §46.035(b)(6): Churches, Synagogues and Other Places of Religious Worship ..........14
M. TEX. PENAL CODE §46.035(c): Meetings of Governmental Entities and Agencies ................................14
N. TEX. PENAL CODE §46.035(d): Licensees Cannot Carry Handguns While Intoxicated .............................14
O. TEX. PENAL CODE §§30.06 & 30.07: Trespass by a Licensee ....................................................................15
P. Tex. Local Gov’t Code §229.001 et seq: Texas Firearms Preemption Statute ............................................15
VII. Federal Law ..................................................................................................................................................15
A. Federal Facilities ..........................................................................................................................................15
B. National Forests, Parks & Wildlife Refuges ................................................................................................15
C. Lakes and Property Maintained or Controlled by the Army Corps of Engineers.........................................16

4

I. INTRODUCTION
Texas gun laws are markedly different for long guns
(rifles and shotguns) than for handguns. Generally,
there are no laws that prohibit the carrying of rifles
and shotguns, loaded or unloaded, concealed or
carried openly, with some exceptions. These
exceptions apply to areas that are off-limits to all
firearms.
The carrying of handguns is more heavily regulated
with markedly different application to people who
have been issued a Texas License to Carry a
Handgun (“LTC”), formerly called a License to
Carry a Concealed Handgun (“CHL”), and those
who have not obtained an LTC. The purpose of this
paper is to provide a framework that makes it
possible for the practitioner to advise their clients
where and when they can and cannot carry firearms.
Texas law is far more liberal as to where a person is
legally allowed to carry firearms, both long guns and
handguns, than is federal law. Therefore, federal
law will be covered under a separate heading that
will include both stand-alone federal statues as well
as those that defer to the law of the state in which the
federal property is located. That said, federal law is
far from clear or well-settled.
Texas laws dealing with handguns can be divided
essentially into three groups. The first group is
comprised of the majority of Texans who do not
have an LTC. The second group are people who
hold a Texas LTC or a license issued by another
state that is recognized by Texas pursuant to the
Texas reciprocity statute. The group of Texas gun
laws that apply to LTCs can be further subdivided
into those that require specific notice of a prohibition
and those that do not.
It has been said that one must use a graduated check
list to determine where a person can or cannot carry
a firearm in Texas. While this is an overstatement, it
does enjoy a margin of truth.
5
II. Definitions
“Handgun” is any weapon designed or adapted to
be fired with one hand. TEX. PENAL CODE
§46.01(5)
Practice Tip: While folding stock rifles and
shotguns and pistol grip shotguns are not
“handguns,” an AR-15 pistol is a handgun subject
to all laws applicable to handguns.
“Premises” means a building or a portion of a
building. The term does not include any public or
private driveway, street, sidewalk or walkway,
parking lot, parking garage, or other parking area.”
TEX. PENAL CODE §46.03(c)(2) adopting
§46.035(f).
The term “open-carry” will refer to carrying a
handgun such that it is fully or partially visible to
other persons. It will not refer to openly carrying a
long gun such as a rifle or shotgun. It also will not
apply to openly carrying a black powder handgun
that qualifies as an antique pursuant to TEX.
PENAL CODE §46.01(3)(A)&(B).
The term “Licensee” or “LTC” will refer to a
person who has a Texas License to Carry a Handgun
pursuant to TEX. GOV’T. CODE Chp. 411,
Subchapter H, or a license issued by another state
that is recognized in Texas.
III. TEX. PENAL CODE §46.02 – “Unlawful
Carrying of Weapons” - The General Prohibition
on Carrying Handguns
The general prohibition on carrying handguns is set
out in TEX. PENAL CODE §46.02, along with
exceptions to the applicability of that section. This
general prohibition makes it unlawful for people
other than Licensees to carry handguns on or about
their person, unless they are:
1. On their own property or property under
their control;
 2. In their own motor vehicle or watercraft,
or one under their control, or directly in route
thereto.
It is lawful for non-Licensees to carry handguns in a
few other locations and those will be discussed in
the section dealing with TEX. PENAL CODE
§46.15(b).
Pursuant to TEX. PENAL CODE §46.02(a-1), it is
still unlawful to carry a handgun on or about one’s
person in a motor vehicle or watercraft if:
1. The handgun is in plain view (see
exception for LTCs);
2. The person is engaged in unlawful
conduct other than Class C traffic or boating
violations;
3. The person is already prohibited
under state or federal law from possessing firearms;
or
4. The person is a member of a
criminal street gang as defined in Chp. 71, TEX.
PENAL CODE.
As will be discussed in the section of this paper
dealing with TEX. PENAL CODE §46.035(a), a
Licensee is not required to conceal their handgun, if
it is carried in a belt or shoulder holster. A Licensee
is not “carrying under the authority of their License”
while in their own motor vehicle or watercraft, or
one under their control. Nevertheless, a Licensee
openly carrying a handgun in their motor vehicle or
watercraft does not violate TEX. PENAL CODE
§46.02(a-1) if their handgun is in such a belt or
shoulder holster.
Penalties. A violation of TEX. PENAL CODE
§46.02 is a Class A Misdemeanor, unless a non-
Licensee carries a handgun in a premises that is
licensed to sell alcoholic beverages.
Practice Tip: Licensees can carry handguns
in a premises that is licensed to sell alcoholic
beverages, but they cannot carry in a 51% location
(i.e. bars). However, this 51% and/or on-premises
6
consumption distinction is not applicable to non-
Licensees.
IV. TEX. PENAL CODE §46.15(b) – Not
Applicable
Section 46.15 sets out various categories of people
for whom TEX. PENAL CODE §§46.02 and 46.03
are not applicable. These include peace officers,
probation officers and numerous other job and/or
certification classifications. This paper will focus
only on TEX. PENAL CODE §46.15(b)(2)(3) & (6).
A. TEX. PENAL CODE §46.15(b)(2) –
“Traveling” – Whatever the heck that is!!
When SB60 passed in 1995 creating the Texas
concealed handgun law, many questioned why the
“traveling” defense was not repealed. The rationale
was based upon the century-long problem with the
lack of a statutory definition of “traveling.” Courts
faced with the traveling defense had requested the
Texas Legislature to define traveling, but those
requests were never honored. What constitutes
“traveling” varies widely throughout the State with
some jurisdictions holding that crossing a county
line is sufficient. Other jurisdictions require that the
person cross multiple county lines and have an
overnight stay away from home. Asserting a
traveling defense is not for the faint of heart.
In 2007, the Texas Legislature passed HB1815, the
so-called Motorist Protection Act, that makes it
lawful for people without an LTC to have a handgun
in their motor vehicles. This was later expanded to
include watercraft. This was accomplished by
changing the elements of the offense set out in
TEX. PENAL CODE §46.02, covered infra.
With the passage of the concealed carry law in 1995,
and the Motorist Protection Act in 2007, Licensees,
as well as non-licensees in their cars and boats, are
no longer concerned with the traveling defense.
However, there are methods of traveling that do not
involve a motor vehicle or watercraft. Examples
include bicycle, horse, or simply hiking. The
traveling defense remains available to non-licensees,
but carrying a handgun while depending upon this
long-troublesome defense puts one in the Lewis &
Clark Expedition class of bravery, or foolhardiness,
depending upon one’s viewpoint.
B. TEX. PENAL CODE §46.15(b)(3) –
Hunting, Fishing and Other Sporting
Activities
Non-Licensees can carry a handgun while engaging
in hunting, fishing and other sporting activities, as
long as certain criteria are met. The handgun must
be of a type commonly used in the sport, the person
must be on the “immediate premises” where the
activity is conducted, or directly en route between
the person’s residence, motor vehicle or watercraft.
One of the most common activities that fall within
the §46.15(b)(3) provision is shooting at a public or
private sport shooting range. This would allow the
carrying of any type of handgun, whereas carrying a
454 Casull or 460 S&W may not work when bird
hunting and fishing.
V. TEX. PENAL CODE §46.03– Off-Limits
Areas: All Guns, All People, All the Time
Remember the narrow definition of “premises”
applies to all off-limits areas in both TEX. PENAL
CODE §§46.03 and 46.035. Thus, only the building
or a portion of a building is off-limits, not all of
Blackacre. (See TEX. PENAL CODE §46.03(c)(2)
adopting §46.035(f).) When considering locations
where it is lawful to carry a handgun without an
LTC (see TEX. PENAL CODE §46.02), the term
“premises” is undefined and it refers to all of
Blackacre.
A. TEX. PENAL CODE §46.03(a)(1):
SCHOOLS
The “premises” of schools are prohibited areas for
the possession of any firearms, as are school busses
and other transportation vehicles. It is also unlawful
to carry firearms on activity grounds, but only if a
school sponsored activity is ongoing. These
prohibited areas apply to primary and secondary
7
schools, as well as public and private colleges and
universities.
Practice Tip: Licensees carrying concealed
handguns are not subject to the §46.03(A)(1)
prohibition on carrying on college and university
campuses. However, carrying handguns on certain
college and university campuses may violate newly
created offenses, as discussed in Section V.
1. Exceptions
All schools have the authority to provide written
authorization to carry firearms, so long as it is not
otherwise unlawful. Example: a school can
authorize anyone to carry rifles and/or shotguns on
the school premises, transportation vehicles and
activity grounds, so long as the person is not
prohibited by state or federal law from possessing
firearms. However, no school has the authority to
allow a non-Licensee to carry a handgun in these
locations. This would violate TEX. PENAL CODE
§46.02.
Another exception applies to Licensees when
carrying handguns on the premises of a public or
private college or university. Unless a public
university has met the requirements of TEX. PENAL
CODE §46.035(a-3) then a Licensee can carry a
concealed handgun anywhere on the campus,
including buildings, transportation vehicles and
activity grounds. Private universities must meet the
requirements of TEX. PENAL CODE §46.035(a-2) in
order to render any portions of their campus off-
limits to Licensees with handguns.
So-called college “campus-carry” will be discussed
in Section V of this paper.
2. “Activity Grounds”
The prohibition applicable to grounds upon which a
school-sponsored activity is ongoing warrants
further discussion. For years, it was correctly
understood that the activity grounds must be located
on school property in order to be a prohibited area
for Licensees carrying handguns. This is based
largely on the provision in TEX. PENAL CODE
§46.03(a)(1) that reads, “unless pursuant to written
regulations or written authorization of the
institution.” A school would not have the legal
authority to authorize anyone to carry any firearm on
property owned and/or controlled by another person
or entity.
In recent months, some have questioned whether the
prohibition would extend to property not owned and
controlled by the school. This contention has
become known as the “McDonald’s Exception.”
This theory would hold that if a Licensee was having
lunch at a McDonald’s restaurant and a high school
band came in for lunch, the restaurant would become
a prohibited area for Licensees with handguns. The
same argument holds for hotels, event centers,
public parks and countless other locations.
The “McDonald’s Exception” is not only unfounded
based upon the clear language of TEX. PENAL CODE
§46.03(a)(1), it is further refuted by a recent
Attorney General Opinion (KP-47) that used the
same logic to limit the area of buildings housing
government courts and court offices that would be
prohibited areas. The operative language is:
Further, when considering the statute as a
whole, under subsection 46.03(a)(3) a court
may issue written regulations or provide
authorization concerning the allowance of
firearms on its premises. See TEX. PENAL
CODE § 46.03(a)(3) establishing an offense
for carrying a prohibited weapon "on the
premises of any government court or offices
utilized by the court, unless pursuant to
written regulations or authorization of the
court"). A court's authority with regard to
such regulations or authorization would not
include areas of the building that are
beyond the operations of the court. This is
some indication that the Legislature
intended the prohibition in subsection
46.03(a)(3) to have a limited reach.
KP-47, Pg. 4 (emphasis added).
If the “McDonald Exception” were to be adopted by
a court, then it would not only ignore the express
8
language of the Code, it would strip private property
owners of the right to control who may and who
may not possess firearms on their property. It would
also work to make criminals of Licensees who had
no idea that, for a temporary period, whether long or
short, the location had become a prohibited area.
The handgun they brought in legally at the
beginning of lunch or their stay in a hotel, suddenly
and without warning subjected them to arrest and
prosecution, simply because a school debate team
came in for lunch or to spend the night in the same
hotel.
B. TEX. PENAL CODE §46.03(a)(2)
Polling Places on Election Day
It is unlawful to possess firearms in a polling place
on election day. The official election day typically
means the first Tuesday in November for federal and
state elections and Saturdays for local elections. The
prohibition is not limited to the “official” election
day, but includes the entire ten day early voting
period.
Some commercial locations such as grocery stores
have provided space in their stores for election
officials to conduct early voting activities. This
does not render the entire building off-limits, but it
does prohibit the carrying of firearms in the area
used for voting.
C. TEX. PENAL CODE §46.03(a)(2):
Government Courts and Court Offices
Courts and court offices are prohibited areas for
firearms. The geographical scope of the prohibited
area is in dispute as of the writing of this paper. The
Texas Attorney General has issued two AG
Opinions (KP-47 & KP-49) opining that only the
courts and court offices essential to the operation of
the court are prohibited areas.
A full discussion of these opinions is beyond the
scope of this paper, but interested parties can
examine the Opinions by following the links above.
The Attorney General has filed suit against the City
of Austin for unlawfully posting TEX. PENAL CODE
§30.06 signs on city hall, in violation of TEX. GOV’T
CODE §411.209. The City contends that the
presence of municipal court offices triggers TEX.
PENAL CODE §46.03(a)(3), thus rendering all of city
hall off-limits and making the posting of the signs
lawful. As of the writing of this paper, the case is
still pending.
D. TEX. PENAL CODE §46.03(a)(4):
Racetracks
Racetracks that are licenses for paramutual betting
are prohibited areas for all firearms. Note, while
§46.03(a)(4) is silent as to the paramutual betting
element, the term “racetrack” is statutorily-defined
in TEX. PENAL CODE §46.01(15) to mean tracks that
are licensed under the Texas Racing Act. Therefore,
the prohibited areas related to racetracks are horse
and dog racing tracks.
E. TEX. PENAL CODE
§46.03(a)(5): Secured Areas of
Airports
The secured areas of airports are prohibited areas for
firearms. The “secured area” is statutorily defined in
TEX. PENAL CODE §46.03(c)(3) to include the
“area of an airport terminal building to which
access is controlled by the inspection of persons and
property under federal law.”
It should be noted that it is lawful to fly with
firearms. To do so, one must declare the firearm at
the ticket counter and meet the requirement of both
the TSA and the airlines.
1. Defense to §46.03(a)(5):
TEX. PENAL CODE §46.03(e-1) & (-2) provides a
defense to a charge of entering a secured area with a
handgun. This defense is available only to
Licensees.
A Licensee who is found to have a handgun at the
screening area cannot be arrested if he/she leaves the
area immediately after completion of the screening
process. The investigating officer must notify the
9
Licensee of this fact and the officer must advise the
Licensee that they have a defense to prosecution, if
they leave immediately.
F. TEX. PENAL CODE §46.03(a)(6):
Place of Execution
It is unlawful to possess firearms within 1,000 feet
of the place of execution on the date of the
execution. While it is sometimes necessary to
include restrictions or limitations in order to pass
legislative bills that are considered to be
controversial, one must chuckle when thinking about
the logic behind this provision. Did the Legislature
truly believe that people outside the prison intended
to speed up the process, or provide a Plan B in case a
stay of execution was granted? Perhaps there was a
fear of a Texas version of the Bastille Day.
All joking aside, this provision is likely to be one for
which there has never been nor will there ever be a
violation.
G. Various Defenses for Official
Personnel
TEX. PENAL CODE §46.03 contains several defenses
for “official” personnel such as peace officers,
military personnel, judges and a number of other
people. Interested parties are invited to examine all
of §46.03 to determine those who fall within various
exceptions.
VI. TEX. PENAL CODE §46.035: Unlawful
Carrying of a Handgun by a Licensee
With the passage of SB60 in 1995, Licensees were
no longer subject to the general prohibition on
carrying handguns found in TEX. PENAL CODE
§46.02. In order to pass SB60, it was necessary to
include certain restrictions and prohibited areas for
the possession of handguns by Licensees. The
prohibited areas are commonly referred to simply as
“off-limits areas.”
 A. TEX. PENAL CODE
§46.035(a)(1): Concealment
Requirement
When a Licensee is carrying under the authority of
their License in a public place with other persons
present, the handgun must remain concealed unless
it is carried in a belt holster or shoulder holster. The
Code is silent as to what constitutes a belt holster. It
is also silent as to whether the holster must be
attached to the Licensee’s body.
This became an issue during town hall meetings held
before the open-carry law (HB910, 2015) became
effective on January 1, 2016. Interested parties often
asked if it would be lawful to lay their pistol on the
front seat of their car or truck, if it was in a belt or
shoulder holster. Presenters were also asked if a
drop-leg holster or Inside-The-Waistband (IWB)
holster met the definition of a belt holster.
The consensus of police chiefs, sheriffs and district
attorneys speaking at these town hall meetings was
that any holster that attached to or was secured by a
belt was “belt holster” as contemplated by the Code.
There were far fewer officials responding to the
question about laying a holstered handgun on the
seat of their vehicle. However, at least one large
county District Attorney opined that, since the Code
did not require that the holster be worn on the body,
it would be legal to lay a holstered handgun on the
seat of one’s car or truck.
TEX. PENAL CODE §46.035(h) provides a defense to
a charge brought under §46.035(a), if the Licensee
would have been justified in using force or deadly
pursuant to Chp. 9 of the Penal Code. This would
include Threats as Force pursuant to TEX. PENAL
CODE §9.04.
B. TEX. PENAL CODE §46.035(a-
1): No Open-Carry on College
Campus
While openly carrying a handgun is legal for
Licensees so long as it is holstered, this is not the
10
case on public or private colleges and university
campuses. Handguns must be concealed everywhere
on campus, including parking lots. Note, this
prohibition applies to the entire campus, not just the
narrowly-defined “premises” found in TEX. PENAL
CODE §46.035(f)(3). TEX. PENAL CODE §46.035(a-
2) & (a-3).
C. Handguns On College
Campuses
1. Campus-Carry: A well-
accepted misnomer
The term “campus-carry” is a misnomer that has
caused confusion. Since 1995, it has been legal for
licensees to carry handguns on the campus of any
public or private primary or secondary school, as
well as public and private colleges and universities.
The only areas that were statutorily off-limits were
buildings or portions of buildings and this is due to
the narrow definition of “premises” discussed infra.
Activity grounds outside of buildings are also off-
limits, but only when a school sponsored event is
ongoing. Therefore, it would be accurate to say that
the “campus-carry“ law that went into effect on
August 1, 2016 for all public and private colleges
and universities made it lawful for a licensee to carry
a handgun into college and university buildings,
subject to restrictions and regulations set out below.
(The new campus-carry law became effective for
junior colleges on August 1, 2017.)
2. Definitions
The definition of “premises” has already been
discussed. “Campus” for purposes of possession of
handguns by licensees was first defined in 2013 with
passage of SB1907 that essentially extended the so-
called “employer parking lot law” to colleges and
universities. The identical definition was added to
TEX. GOV’T CODE §411.2032(b), i.e., “all land and
buildings owned or leased by an institution of higher
education or private or independent institution of
higher education.”
Although included in this expansive definition are
streets, driveways, parking lots and garages,
Licensees cannot be prohibited from storing firearms
and ammunition in their locked personal vehicles in
these areas. (See TEX. GOV’T CODE §2032(b)) The
terms “campus” and “premises” cannot be used
interchangeably, as their scope is markedly different.
In this Section of the paper, public and private
colleges and universities will be referred to as public
and private schools or colleges.
D. General Rule – Licensees
Can Carry Handguns Everywhere
on Campus
TEX. GOV’T CODE §411.2032, along with the
addition of TEX. PENAL CODE §46.035(a)(1)(B),
make it lawful for a Licensee to carry a concealed
handgun anywhere on a public or private college
campus. This includes buildings, transportation
vehicles and activity grounds (with some
exceptions). However, this general rule can and
likely will be greatly limited by public and private
schools. The extent to which public and private
schools can create prohibited areas varies greatly, as
well as the procedural requirements for doing so.
A thorough discussion of the procedures that must
be followed by a college to create off-limits areas is
beyond the scope of this paper. Those interested in
this subject are invited to read the Legislative
Update, presented in Chapter 10 of the 2015 CLE
seminar “FIREARMS LAW - WHAT EVERY TEXAS
LAWYER NEEDS TO KNOW.”
E. TEX. PENAL CODE
§46.035(a-2): Private Colleges
There are two ways colleges (whether public or
private) can prohibit the carrying of handguns in
areas that have been designated as off-limits. The
school can establish rules and policies that apply
only to faculty, staff and students the violation of
which does not constitute a criminal offense. If a
school wants to be able to prosecute a Licensee for
carrying a handgun in prohibited areas, then
11
effective notice must be given in compliance with
TEX. PENAL CODE §30.06.
If a private college has created prohibited areas for
handguns, in essence “opting out,” and if the school
has provided effective notice pursuant to TEX.
PENAL CODE §30.06, then it will be unlawful for a
Licensee to carry a handgun in those locations. (This
notice will virtually always be in the form of a 30.06
sign, although it can be in other official school
documents. Utilizing “other official school
documents” can prove problematic in terms of actual
notice.)
There would actually be two offenses. The Licensee
would violate TEX. PENAL CODE §30.06, Trespass
by a License Holder, as well as TEX. PENAL CODE
§46.035(a-2). The §30.06 violation would be a
Class C Misdemeanor, unless the Licensee refused
to leave when told to do so, at which time the
offense would be a Class A Misdemeanor. The TEX.
PENAL CODE §46.035(a-2) violation would be a
Class A Misdemeanor.
It should be noted that private schools can
effectively render their entire campuses prohibited
areas for handguns, but they cannot prohibit a
Licensee from storing their handgun and
ammunition in their locked personal vehicles in
school parking lots.
F. TEX. PENAL CODE
§46.035(a-3): Public schools
Unlike private schools, public schools cannot render
all of their campuses off-limits. While a full
discussion of the procedural requirements a public
school must complete to create prohibited areas is
beyond the scope of this paper, some of those
requirements involve notice to Licensees. Those
requirements will be covered.
Public colleges can only render buildings off-limits,
with some exceptions for activity grounds. Public
schools also cannot render all buildings off-limits.
When any building or area within a building has
been rendered a prohibited area by the school, notice
must be given in compliance TEX. PENAL CODE
§30.06. (As a practical matter, this will require the
posting of a so-called 30.06 sign, although a sign not
technically required.) Off-limits areas must also be
widely publicized, including the listing of such areas
on the college’s website.
As with private schools, if a Licensee enters a
properly designated prohibited area with a handgun,
they have violated both TEX. PENAL CODE
§46.035(a-3) (Class A Misdemeanor) as well as
TEX. PENAL CODE §30.06. The §30.06 violation
would be a Class C Misdemeanor, unless the
Licensee refused to leave when told to do so, at
which time the offense would be a Class A
Misdemeanor.
Practice Tip: It is not possible to tell a
client where they can and cannot carry a handgun
on any specific public or private college campus.
Schools were granted wide latitude in determining
what areas will be prohibited areas for handguns
and rules promulgated by schools as of the time this
paper was written vary widely. The best advice that
can be given to a client is for them to contact the
school directly to determine where handguns can be
carried. Public schools must make this information
available on their school website.
G. TEX. PENAL CODE
§46.035(b)(1): 51% Locations
While it is generally understood that Licensees
cannot carry handguns in bars, that term requires a
bit of fine-tuning. Not every establishment that has
a liquor license, even one that provides for on-
premises consumption, is off-limits to Licensees
with handguns. Only businesses that meet the
criteria of a 51% location are prohibited areas.
The Texas Alcoholic Beverage Commission is
charged with the responsibility to determine whether
a business with an on-premises liquor license derives
51% or more of their revenue from the sale of
alcohol for on-premises consumption. If so, then it
is a “51% location” and Licensees are prohibited
from carrying handguns in that location.
12
The business is also required to post a specific sign
(called a 51% sign) giving notice to Licensees that
they cannot carry handguns in the establishment.
(Tex. Gov’t Code §411.204) The lack of the
statutorily-required 51% sign is a defense to
prosecution. (TEX. PENAL CODE §46.035(k))
Practice Tip: Some business locations have
bars that are not owned by the business in which
they are located. Bowling alleys are an example.
The business that holds the liquor license obtains
100% of its revenue from the sale of alcohol for on-
premises consumption, thus it is a 51% location.
While the bowling alley does not even sell alcohol,
the entire location may be off-limits to Licensees
with handguns. This will be determined by the type
of liquor license the bar owner possesses. If the
liquor licensee has an all-premises license, meaning
patrons can carry and consume alcohol throughout
the entire building, then the entire bowling alley is a
prohibited area.
H. TEX. PENAL CODE
§46.035(b)(2): Certain Sporting
and Interscholastic Events
High school, collegiate and professional sporting
events are prohibited areas for Licensees with
handguns. The only exception applies to sporting
events where the use of a handgun is part of the
event and the Licensee is participating in the event.
I. TEX. PENAL CODE
§46.035(b)(3): Correctional
Facilities
What!? No guns in prison!? Does the State of
Texas expect me to visit Uncle Guido in Huntsville
unarmed?
All joking aside, if you are visiting Uncle Guido in
the slammer, then leave your handgun in your car.
Be forewarned that most, if not all, Texas prisons
have signs posted at the entrance to the parking lot
advising that no firearms are allowed in the parking
area. This writer had an occasion to interview a
witness who was an inmate in prison. Upon arrival
and seeing the firearms sign, the warden was called
and advised that a handgun was in the car. The
Warden was very accommodating and secured the
handgun in the prison armory until the interview was
over.
The bottom line is this. Licensees are prohibited
from carrying handguns in the prison buildings, but
plan ahead and contact the prison for instructions if
you do plan to visit with a handgun.
J. TEX. PENAL CODE
§46.035(b)(4): Hospitals and
Nursing Homes
The premises of hospitals that are licensed under
Chapter 241, Health and Safety Code and nursing
facilities licensed under Chapter 242, Health and
Safety Code are prohibited areas for handguns, but
only if effective notice is given pursuant to TEX.
PENAL CODE §30.06. (This is virtually always a
30.06 sign.) The notice requirement is found in
TEX. PENAL CODE §46.035(i).
Note the requirement that the hospital or nursing
home be licensed under one of two specific Health
& Safety Code chapters. If the facility is not
licensed, then they are not off-limits to Licensees
with handguns. Excluding specific State mental
hospitals, if the hospital or nursing home is an
unlicensed government facility, then it cannot use
TEX. PENAL CODE §30.06 or §30.07 to render the
buildings off-limits. (See TEX. PENAL CODE
§30.06(e) and §30.07(e))
In 2017, the Texas Legislature passed HB435 that,
inter alia, added Section 552.002 to the Texas
Health & Safety Code. This new section creates a
civil fine for a Licensee who enters the following
state mental hospitals:
A) the Austin State Hospital;
(B) the Big Spring State Hospital;
(C) the El Paso Psychiatric Center;
13
(D) the Kerrville State Hospital;
(E) the North Texas State Hospital;
(F) the Rio Grande State Center;
(G) the Rusk State Hospital;
(H) the San Antonio State Hospital;
(I) the Terrell State Hospital; and
(J) the Waco Center for Youth.
The civil fine is $100 for the first offense and $500
for subsequent offenses. Suit can be brought by the
Attorney General or any appropriate prosecuting
attorney.
K. TEX. PENAL CODE
§46.035(b)(5): Amusement Parks
Large amusement parks in large counties are off-
limits to Licensees with handguns, if 1) effective
notice is given pursuant to TEX. PENAL CODE
§30.06; and 2) if they meet the statutory definition
of an “amusement park.” Since the definition of an
amusement park is quite detailed, it is set out below.
"’Amusement park’ means a permanent
indoor or outdoor facility or park where
amusement rides are available for use by
the public that is located in a county with a
population of more than one million,
encompasses at least 75 acres in surface
area, is enclosed with access only through
controlled entries, is open for operation
more than 120 days in each calendar year,
and has security guards on the premises at
all times. The term does not include any
public or private driveway, street, sidewalk
or walkway, parking lot, parking garage,
or other parking area.”
TEX. PENAL CODE §46.035(f)(1)
Once again, the effective notice requirement is found
in TEX. PENAL CODE §46.035(i).
 L. TEX. PENAL CODE
§46.035(b)(6): Churches,
Synagogues and Other Places of
Religious Worship
Churches, synagogues and other places of religious
worship are off-limits only if effective notice is
given pursuant to TEX. PENAL CODE §30.06 for
concealed-carry and TEX. PENAL CODE §30.07 for
openly carrying a handgun. (The effective notice
requirement is found in TEX. PENAL CODE
§46.035(i)).)
In 2017, the Texas Legislature passed SB2065 that,
inter alia, exempts volunteer church security
personnel from the Private Security Act found in
TEX. OCCUPATIONS CODE §1702.333. This
exemption is significant in several aspects, but its
impact concerning firearms is that the prior
prohibition on carrying firearms by volunteers has
been repealed. This exemption applies only while
on church property, not on any activities taking
place off campus. Volunteers cannot receive any
compensation or remuneration.
Nevertheless, volunteer church security personnel
must not wear a uniform or badge that displays the
word “security” or “otherwise gives the person the
appearance of being a peace officer, personal
protection officer, or security officer.”
M. TEX. PENAL CODE
§46.035(7): Civil Commitment
Facilities
While specific state mental hospitals have already
been covered, civil commitment facilities are also
off-limits for Licensees with handguns.
N. TEX. PENAL CODE
§46.035(c): Meetings of
Governmental Entities and
Agencies
Official meetings of governmental entities and
14
agencies are prohibited areas for handguns (carried
concealed or openly) if:
1. The meeting is subject to the Open
Meetings Act;
2. The governmental entity or agency
has complied with the requirements of the Act; and
3. The governmental entity or agency
has provided effective notice prohibiting the
carrying of concealed handguns pursuant to TEX.
PENAL CODE §30.06, or carrying handguns openly
pursuant to TEX. PENAL CODE §30.07.
Only the actual room in which the meeting is being
conducted is off-limits.
O. TEX. PENAL CODE
§46.035(d): Licensees Cannot
Carry Handguns While Intoxicated
A Licensee cannot carry a handgun if they are
intoxicated. Chapter 46 of the Penal Code dealing
with weapons has not defined “intoxication” that
applies throughout all of Chp. 46. (As noted supra,
TEX. PENAL CODE §46.06(b)(1) defines
“intoxicated,” but it is limited to offenses related to
providing firearms to certain persons.) Therefore, the
definition used by the Texas Dept. of Public Safety
while training LTC instructors is the one found in
TEX. PENAL CODE §49.01(2) which reads:
"’Intoxicated’" means: (A) not having the
normal use of mental or physical faculties
by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous
drug, a combination of two or more of
those substances, or any other substance
into the body; or (B) having an alcohol
concentration of 0.08 or more.”
This definition is somewhat broader than the one
found in TEX. PENAL CODE §46.06(b)(1) which
reads, “Intoxicated’ means substantial
impairment of mental or physical capacity
resulting from introduction of any substance into
the body.” (emphasis added).
Word to the Wise: If alcohol goes into the
mouth, the gun goes into the trunk. Okay, this is
not what Texas law requires, but it is a good
practice anyway. Often there is a wide gulf
between what is legal and what is prudent.
P. TEX. PENAL CODE §§30.06 &
30.07: Trespass by a Licensee
Thus far, this paper has been focused solely on areas
that are statutorily off-limits to all firearms, as well
as those that are off-limits to handguns carried by
Licensees. Private property owners can still prevent
the carrying of concealed handguns by using TEX.
PENAL CODE §30.06. They can prohibit the
carrying of handguns openly by using TEX. PENAL
CODE §30.07.
Owners of private property can welcome or prohibit
the carrying of firearms on their property, regardless
how the property is used.
Q. Tex. Local Gov’t Code
§229.001 et seq: Texas Firearms
Preemption Statute
The Legislature has enacted sweeping preemption
laws to prevent a vague patchwork of varying gun
laws throughout the State. These can be found
primarily in TEX. LOCAL GOV’T CODE §229.001
through §229.004. Since this paper focuses on
where firearms can be carried, preemption will be
covered only to the extent it involves cities and
counties regulating the carrying of firearms.
Pursuant to TEX. LOCAL GOV’T CODE
§229.001(b)(6), cities can regulate the carrying of
firearms 1) in public parks; 2) at a public meeting of
a municipality, county, or other governmental body;
3) in a political rally, parade, or official political
meeting; or 4) in nonfirearms-related school,
college, or professional athletic event. This
authority does not apply to Licensees.
Counties cannot regulate the carrying of firearms.
(See TEX. LOCAL GOV’T CODE CHP. 236)
15
VII. Federal Law
To state that federal is a legal minefield in terms of
where firearms can be carried would be a gross
understatement. Nevertheless, some concrete
information can be provided.
A. Federal Facilities
Per 18 U.S.C. 930(a) & (e) , it is unlawful to possess
a firearm or other dangerous weapon in a federal
facility including a federal court facility. “Federal
facility” is defined much like Texas defines
“premises” as noted below:
The term “Federal facility” means a building
or part thereof owned or leased by the
Federal Government, where Federal
employees are regularly present for the
purpose of performing their official duties.”
While the term “federal facility” is narrowly defined,
most federal agencies have used their rulemaking
authority to extend the prohibition beyond buildings
to include the entire real estate. For example, in 39
C.F.R 232.1(l), the U.S. Post Office prohibits the
possession of firearms anywhere on postal property.
18 U.S.C. 930(h) requires that written notices be
posted on areas where weapons are prohibited by 18
U.S.C. 930(a) & (e). Absent such notice, a person
“shall not be convicted of an offense” unless they
had actual notice of the prohibition.
Practice Tip: To be legal when going to a
federal facility such as a Post Office, park on the
street and leave your firearm locked in your vehicle.
B. National Forests, Parks &
Wildlife Refuges
National Forests have traditionally allowed the
possession of firearms for hunting and casual
shooting. However, some National Forests have
structures that constitute “federal facilities” in which
the possession of firearms would violate federal law.
From 1983 until the passage of H.R. 627 in 2009, it
was essentially unlawful to possess firearms in
National Parks or Wildlife Refuges. H.R. 627 was
primarily a credit card bill that included a provision
prohibiting the banning of firearms in National Parks
and Wildlife Refuges.

Contrary to popular belief, H.R. 627 did not “make it

legal to have guns National Parks.” Rather, the Bill
deferred to the law of the state in which the Park or
Wildlife Refuge is located. If state law allows the
carrying of handguns only with a license to carry,
then this is the law in National Parks and Wildlife
Refuges in that state. If a state does not allow the
carrying of firearms in parks, then this is the law in
National Parks and Wildlife Refuges.

In Texas, Licensees can carry handguns openly or

concealed if they have an LTC. This applies to
National Parks and Wildlife Refuges as well.

CAVEAT!!! Federal “facilities” located in

National Parks and Wildlife Refuges will remain
prohibited areas for firearms. Do not carry in those
locations. Such locations must post the notice
required by 18 U.S.C. 930(h).

C. Lakes and Property

Maintained or Controlled by the
Army Corps of Engineers

This property does not come within the scope of

H.R. 627 and the Corps. has almost universally
prohibited the carrying of firearms on property it
maintains or controls. Clients should be warned of
this distinction and they should be encouraged to
determine if their plans will take them to Corps
property where firearms are prohibited.

16
 National Firearms Law Seminar

Section Three

Hot Firearms Topics from Across the Country

Sarah Gervase

Restoring a Constitutional Right: Second Amendment Right

Restoration as a Civil Rights Issue

Patrick J. McLain
Hot Firearms Topics from Across the Country
21st Annual National Firearms Law Seminar
Dallas, Texas
May 4, 2018

Sarah Gervase
Assistant General Counsel
Office of the General Counsel
National Rifle Association of America
Telephone: (703) 267-1256
Email: sgervase@nrahq.org

1
Table of Contents

Gun Violations at Airports ........................................................................................................................... 3

A. Potential Criminal Charges................................................................................................................ 4
B. TSA Civil Penalties ............................................................................................................................. 5
Marijuana and Firearms Prohibitions .......................................................................................................... 8
A. A Brief History of Marijuana Regulation and Current Laws .............................................................. 8
B. Firearms Laws as They Relate to Marijuana Use .............................................................................. 9
C. Major Cases Dealing With Firearms and Marijuana ....................................................................... 11
D. Enforcement ................................................................................................................................... 13
1. Federal Level ............................................................................................................................... 13
2. State Level ................................................................................................................................... 15
E. What is the Long-Term Solution? ................................................................................................... 17
3D Printing of Firearms .............................................................................................................................. 18
A. 3D Printing Technology ................................................................................................................... 18
B. Case Law.......................................................................................................................................... 19
C. Further Legal Regulation ................................................................................................................. 21
Recent Significant Changes and Proposed Changes to Federal Law and Regulations ............................. 21
APPENDIX – Sample TSA Notice of Violation ............................................................................................ 22

2
Gun Violations at Airports

Individuals are allowed to fly with their firearms and ammunition provided they declare
them in at the airline counter. Unloaded firearms and ammunition must be placed in locked,
hard containers and will go through as checked luggage. Individual airlines may have slightly
different requirements, but that is federal law.
This presentation is about those who inadvertently have firearms on them when going
through TSA checkpoints - those who forget they have a handgun on their person or in their
carry-ons when they go through a TSA security checkpoint to board a plane. This happens more
and more often every year as more people across the country carry concealed. People forget
and it happens enough that is worth discussing. In fact, some attorneys across the country
advertise help in these cases as a special area of practice.
Last year, TSA discovered 3,957 firearms in carry-on bags at U.S. airport checkpoints, or
76.1 firearms per week, or 10.8 firearms per day. 1 That was up 16.7% from 3,391 firearms
discovered in 2016 and only 660 in 2005. While this is still a small percentage of the some
771.5 million passengers who flew last year, it is almost 4,000 people who got caught up in the
potential criminal and civil process that followed.
Of the almost 4,000 firearms discovered last year, 3,324 (84%) were loaded. 1,378
(34.8%) had a round in the chamber.
The record for the most firearms discovered in a single month? That goes to Atlanta
Airport for 31 guns in August 2017.
The Top 10 Airports for Firearm Discoveries in 2017:
1. Hartsfield-Jackson Atlanta Intl. Airport (ATL) – 245 (222 loaded)
2. Dallas/Fort Worth Intl. (DFW) – 211 (165 loaded)
3. George Bush Intercontinental Airport – Houston (IAH) – 142 (124 loaded)
4. Denver Intl. (DEN) – 118 (102 loaded)
5. Phoenix Sky Harbor Intl. (PHX) – 115 (109 loaded)
6. Tampa Intl. (TPA) – 97 (90 loaded)
7. Orlando Intl. Airport (MCO) – 94 (82 loaded)
8. Dallas Love Field (DAL) – 93 (81 loaded)
9. Nashville Intl. (BNA) – 89 (71 loaded)
10. Seattle-Tacoma Intl. Airport (SEA) – 75 (60 loaded)

1
All statistics in this section are from “TSA Year in Review: Record Amount of Firearms Discovered in
2017,” published online on January 29, 2018 and available at
https://www.tsa.gov/blog/2018/01/29/tsa-year-review-record-amount-firearms-discovered-2017.

3
 There are only about a dozen incidents a year at La Guardia, JFK, and Newark Airports
combined. These airports serve passengers originating from some states/jurisdictions where
permits are difficult to get.

A. Potential Criminal Charges

Individuals are subject to prosecution under both state and federal law when going
through airport security. In practice, any criminal prosecution for firearms discovered at TSA
checkpoints will be local, not federal. (Non-secure areas of the airport are considered to be in
the “municipal” section of the airport. Once past the security checkpoint and inside the secure
area of an airport or on a plane, however, that is federal jurisdiction, not local. Individuals
caught with a firearm within a secure area of an airport, or on an airplane of course, will
certainly be arrested and will face a felony charge punishable by up to 10 years in prison.)
Whether an individual will be prosecuted and have his firearm confiscated is largely
dependent upon state and local laws, as well as local ordinances and local practices. And
charges vary as well. In some areas of the country, those with carry permits aren’t charged at
all, or are charged only about half the time. Law enforcement officers on the scene have great
discretion on whether to arrest, and local prosecutors frequently decline to prosecute. In those
same areas, however, those without carry permits are almost always charged. It is common in
Georgia, Florida, and some other good gun states for local law enforcement to simply tell the
person to go back and leave his gun in the car so he doesn’t even miss his flight. That won’t be
the case if an individual intentionally tries to pass through security with a firearm.
Texas has a law that went into effect on September 1, 2015 that even bars arrest under
certain circumstances:
“(e-1) it is a defense to prosecution under Subsection (a)(5) (that is, the intentional,
knowing, or reckless possession of a firearm or prohibited weapon in a secured area of an
airport) that the actor:
(1) Possessed, at the screening checkpoint for the secured area, a concealed handgun
that the actor was licensed to carry under Subchapter H, Chapter 411, Government
Code; and
(2) Exited the screening checkpoint for the secured area immediately upon completion
of the required screening processes and notification that the actor possessed the
handgun.
(e-2) A peace officer investigating conduct that may constitute an offense under
Subsection (a)(5) and that consists only of an actor’s possession of a concealed handgun
that the actor is licensed to carry under (same Subchapter as above), may not arrest the
actor for the offense unless:

4
 (1) The officer advises the actor of the defense available under Subsection (e-1)
and gives the actor an opportunity to exit the screening checkpoint for the
secured area; and
(2) The actor does not immediately exit the checkpoint upon completion of the
required screening processes.” Texas Penal Code § 46.03 Places Weapons
Prohibited
Otherwise, the charge in Texas could be a third-degree felony charge. And note that the Texas
law applies not only to Texas CHL permits, but to travelers who have permits from other states
that are recognized in Texas.
If arrested, individuals may have to post bond of several thousand dollars, and the
charges may be a felony or misdemeanor depending upon state law. After that, it may be
possible to get the charges dismissed by working with the local prosecutor’s office. As stated
earlier, in some jurisdictions it is helpful if a person has a license to carry. In those cases, it is
typical for charges to be dismissed. In cases where a person does not have a permit, in some
good gun jurisdictions it is possible to get the person off with only a minor fine. And if a firearm
is confiscated, it may be possible in some jurisdictions to later get a court order to get a
person’s gun back.
Even in NYC airports, some individuals with local permits may not be arrested. In 2014,
a 94-year-old Brooklyn man was caught at a security checkpoint but was not arrested. He
didn’t even miss his flight when he agreed to surrender the gun. It is a different story with
those caught in NYC-area airports with permits that are valid in their own states but not in New
York. Those folks land in jail.
Another thing to keep in mind is whether an individual can carry a firearm in the
unsecure area of the airport, the area outside of the TSA checkpoint. That varies by state law –
five states currently prohibit the carry of firearms in all the unsecure areas of the airport. And
local law, as well as airport policy can vary as well. A handful of states allow local governments
to set the policies for the airports within their jurisdictions.
Travelers and lawyers who handle these kinds of cases must research their own state
laws and any airport specific regulations. Still, the overall trend among the states is to allow
greater carry in unsecure areas of airports.

B. TSA Civil Penalties

The Transportation and Security Administration (TSA) is responsible for enforcing the
Transportation Security Regulations (TSRs), which include the prohibition of loaded and
unloaded firearms in carry-on luggage. If an individual is caught with a firearm or ammunition
at an airport security checkpoint, they will most likely – but not always – receive a Notice of
Violation for a civil penalty from the TSA within 30-60 days. This civil penalty is separate and

5
independent from any criminal charges the person may face at the local level (the TSA has no
say in that), and Notices of Violation are issued for both intentional and unwitting possession of
the firearm/ammunition. The regulations are civil and not criminal, so there is no knowledge
requirement.2
A redacted version of a Notice of Violation is in the Appendix of these materials. There
is a range of fines that the TSA can exact. For loaded firearms or unloaded firearms with
accessible ammunition, the range is $3,920 - $9,800. For unloaded firearms, the range is
$1,960 - $3,920. However, the most common proposed fine for first time offenses is $3,000.00.
Repeated violations lead to higher penalties.3
An individual who receives a Notice of Violation has 30 days to respond and is given 5
options:
1. Pay the Proposed Civil Penalty

This is the first option for an individual receiving a notice. The person can
choose to pay the $3,000 fine to TSA by check, money order, or credit card. If the
person pays within 30 days, there is a 50% discount. The TSA will accept $1,500 “in an
effort to resolve this matter fairly and quickly,” and the TSA will then close the file.

2. Submit Evidence for Consideration

If a person chooses this option, they have to submit some evidence that the
alleged TSA violation did not occur or that the civil fine is not warranted given all the
circumstances. Having evidence that someone did not have a firearm going through a
security checkpoint might be tough – people get caught redhanded and the TSA will
have photos and other evidence. And if the person is going to argue that the civil
penalty is not warranted under the facts, a Request for an Informal Conference might be
the better way to go. See that option below.

3. Submit Information for Consideration in Support of a Reduction of the Civil Penalty

This is a written request for a reduction of the $3,000 penalty because of

inability to pay or if paying the fine would prevent the person from continuing in
business. These requests can be successful in cases of genuine financial hardship.
Individuals should submit whatever written backup they have for their claims and can

2
See 49 C.F.R. § 1540.111(a).
3
There are various fine levels for other types of prohibited items, including knives, BB guns, suppressors,
and self-defense spray. For the penalty range for these and other items, see
https://www.tsa.gov/travel/civil-enforcement.

6
 include most any kind of documentation including tax filings, evidence of student loan
debt, bills, or anything else that shows that they don’t have the money to pay the fine
and likely won’t have it any time soon.

4. Request an Informal Conference

This is a good way to go to and where lawyers can be especially helpful. Here,
there will be a teleconference between an agent for the TSA (generally, 1 of the 2 TSA
lawyers given this duty) and the individual (and legal counsel if the individual is
represented). These teleconferences usually last about ½ hour. You will talk about the
facts of what happened, including any mitigating factors (my client is a good guy, he
travels a lot and was in a rush or he is an inexperienced flyer as the case may be, this is
the first time he has done this and will take steps so that this doesn’t happen again, that
kind of thing). Many times you can get the fine reduced to $500 or all together if you
present the case well. These TSA agents are decent and reasonable and aren’t out to
nail people.

5. Request a Formal Hearing

A formal hearing will be before an Administrative Law Judge and a TSA Agent
filing a complaint. Both sides have the opportunity to present witnesses, though it is the
TSA that has the burden of proof that the civil fine is warranted. If they are unhappy
with the ALJ’s decision, individuals can then appeal to the TSA and then to the U.S. Court
of Appeals.
There probably are not many cases that go through this process. The author of
these written materials does not know of any. The TSA is not responsible for any
criminal charges, any civil penalty paid or avoided will not influence any criminal charges
the individual may be facing, and there are easier and faster ways (see the above
options) of getting the fine greatly reduced or eliminated. And if someone has the
financial resources to pay for an attorney to represent them at this level, he or she
probably had the money to simply pay the entire $3,000 (or $1,500 fine if paid within 30
days). What’s the point?

What Happens if Someone Doesn’t Respond to the Notice of Violation?

If someone receives a Notice of Violation and does not respond within 30 days, the TSA
will issue a Final Notice of Violation. If the person doesn’t respond to that Final Notice within
15 days, the TSA will assess the full amount of the penalty listed in the Notice of Violation
($3,000 or whatever amount was listed in that initial notice) and could refer the case to the

7
Department of the Treasury or to the DOJ for collection of what the TSA considers a “debt” to
the U.S. Government.
Additional Note about TSA Pre-Check
Those caught with a firearm or other prohibited item will be disqualified for the TSA Pre-
Check program for a certain amount of time. How long will depend upon how serious the
offense was and if the person has committed multiple violations. The usual, though, is 3 years,
and that is an automatic suspension.

Marijuana and Firearms Prohibitions

Last year the Honolulu Police Department sent letters to medical marijuana cardholders
saying they had 30 days to transfer ownership or to “voluntarily surrender” their firearms. The
letter cited Hawaiian law that disqualifies those using medical marijuana from firearms
ownership or possession. Two people turned in their firearms. A 75-year old resident of Illinois
who had a medical marijuana card was denied a purchase when his FOID card was run through
the federal background check. The man had no criminal background and already had a gun
collection at home. Several people in western states with medical marijuana cards were denied
purchases through FFLs when they presented their cards as the required government-issued
IDs.
What’s going on?4

A. A Brief History of Marijuana Regulation and Current Laws

In the early 20th century, state efforts to regulate marijuana went after recreational
marijuana use. All 22 states that had prohibited marijuana by the 1930s had exceptions for
medical purposes. And by 1965, although possession of marijuana was a crime in all states, all
states had created limited exceptions for authorized medical use.
In the late 70s and early 80s, a handful of states began considering expanding the
medical use of marijuana. Those efforts grew in the late 1990s. Now, as of mid-March 2018,
nine states and the District of Columbia have legalized the recreational use of marijuana. 22

4
Please note that the author of this article is not an expert on marijuana law or the history of marijuana
regulation. If you want the best and most current information in those areas, the websites for
marijuana advocacy organizations are good places to start. Some resources include NORML’s site at
http://norml.org, https://www.mpp.org for the Marijuana Policy Project, and
http://www.safeaccessnow.org for Americans for Safe Access.

8
states and D.C. have decriminalized the possession of small amounts, making such possession
either a civil or local infraction or a low-level misdemeanor with no possibility of jail time. In
addition, 29 states, plus D.C., Guam, and Puerto Rico have some type of legalized medical
marijuana. Every other state has bills introduced that would legalize adult recreational use of
marijuana, create medical marijuana cards, or create a study commission to consider proposals.
And several states have passed or are considering laws allowing for the expungement of certain
marijuana convictions. Overall, there is a clear trend among the states to eliminate or back off
the criminal enforcement of marijuana use.

Marijuana was not regulated under federal law until the Marihuana Tax Act of 1937
(passed under Congress’ power to levy taxes). The law, opposed by the American Medical
Association, imposed an occupational excise tax upon retail pharmacists selling cannabis,
physicians prescribing it, and cultivators. However, federal law did not prohibit marijuana until
the Controlled Substances Act of 1970 (the “CSA”). 5 The CSA placed marijuana on Schedule 1,
making all uses, including medical use, unlawful under federal law. Because it is Schedule 1,
physicians may not legally prescribe it for any reason. 6

Marijuana is classified as a Schedule I controlled substance under the CSA because it is

deemed to have “no currently accepted medical use in treatment … there is a lack of accepted
safety for use of the … substance under medical supervision.” 7 In fact, in 2016 the FDA
reviewed studies and recommended that marijuana remain as a Schedule I drug because of
those reasons and its purported high potential for abuse. 8

So who wins – federal or state law? Federal law does because of the U.S. Constitution’s
Supremacy Clause – “This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; …, shall be the supreme Law of the Land.” States can legalize the
recreational or medical use of marijuana all they want, but under federal law, marijuana use for
any reason is still unlawful.

B. Firearms Laws as They Relate to Marijuana Use

The two relevant federal statutes are:

5
21 U.S.C. § 812.
6
The Supreme Court has upheld Congress’ authority to criminalize the purely intrastate possession,
manufacture, and distribution of marijuana under Congress’ Commerce Clause authority. Gonzalez v.
Raich, 545 U.S 1 (2005), U.S v. Oakland Cannabis Buyers Cooperative, 532 US. 483 (2001).
7
21 U.S.C. § 812(b)(1)(A)-(C).
8
One step down are Schedule II drugs. These include Vicodin, cocaine, methamphetamine, OxyContin,
and fentanyl. https://www.dea.gov/druginfo/ds.shtml.

9
18 U.S.C. § 922(g) – It is unlawful for any person
(3) “who is an unlawful user of or addicted to any controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802))”
(9) …”to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.”
18 U.S.C. § 922(d) – It is unlawful for “any person to sell or otherwise dispose of any firearm or
ammunition to any person knowing or having reasonable cause to believe that such person-
(3) is an unlawful user of or addicted to any controlled substance as defined in section
102 of the Controlled Substances Act (21 U.S.C. 802))”
The definition of an “unlawful user of or addicted to any controlled substance” in 27 C.F.R. §
478.11 is worth quoting in full:
A person who uses a controlled substance and has lost the power of self-control
with reference to the use of controlled substance; and any person who is a
current user of a controlled substance in a manner other than as prescribed by a
licensed physician. Such use is not limited to the use of drugs on a particular day,
or within a matter of days or weeks before, but rather that the unlawful use has
occurred recently enough to indicate that the individual is actively engaged in
such conduct. A person may be an unlawful current user of a controlled
substance even though the substance is not being used at the precise time
the person seeks to acquire a firearm or receives or possesses a firearm. An
inference of current use may be drawn from evidence of a recent use or
possession of a controlled substance or a pattern of use or possession
that reasonably covers the present time, e.g., a conviction for use or possession
of a controlled substance within the past year; multiple arrests for such offenses
within the past 5 years if the most recent arrest occurred within the past year;
or persons found through a drug test to use a controlled substance unlawfully,
provided that the test was administered within the past year. For a current or
former member of the Armed Forces, an inference of current use may be drawn
from recent disciplinary or other administrative action based on confirmed drug
use, e.g., court-martial conviction, nonjudicial punishment, or an administrative
discharge based on drug use or drug rehabilitation failure.
ATF made it clear that medical marijuana users were prohibited persons it its Open Letter to All
Federal Firearms Licensees published on September 21, 2011.9 ATF began its Open Letter by
recognizing that, although a number of states had passed medicinal marijuana laws, there is no

9
The entire Open Letter is available at https://www.atf.gov/file/60211/download.

10
exception in federal law for marijuana used for medical purposes under the Controlled
Substances Act, even if the use is allowed by state law. After citing 27 C.F.R. § 478.11, ATF
concluded:
Therefore, any person who uses or is addicted to marijuana, regardless of
whether his or her State has passed legislation authorizing marijuana use for
medical purposes, is an unlawful user of or addicted to a controlled substance,
and is prohibited by Federal law from possessing firearms or ammunition. Such
persons should answer “yes” to question 11.e. on ATF Form 4473 (August 2008),
Firearms Transaction Record, and you may not transfer firearms or ammunition
to them. Further, if you are aware that the potential transferee is in possession
of a card authorizing the possession and use of marijuana under State law, then
you have “reasonable cause to believe” that the person is an unlawful user of a
controlled substance. As such, you may not transfer firearms or ammunition to
the person, even if the person answered “no” to question 11.e. on ATF Form
4473. (underline added)

In 2016, ATF changed the Form 4473 (change effective since mid-January 2017)
to clarify that users of marijuana, even if legal in their states, are still unlawful users
pursuant to federal law and therefore prohibited from purchasing firearms. In Section
11(e), right underneath the Yes/No question of “Are you an unlawful user of, or
addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other
controlled substance,” there is now wording in bold font:
“Warning: The use or possession of marijuana remains unlawful under Federal
law regardless of whether it has been legalized or decriminalized for medicinal
or recreational purposes in the state where you reside.”

C. Major Cases Dealing With Firearms and Marijuana

There are two cases in this area to know. Both are out of the 9th Circuit. They are
important not only for their holdings, but for their reasoning, as other courts across the
country would likely take similar positions.
1. U.S. v. Dugan, 657 F.3d 998 (9th Cir. 2011)
Dugan illegally grew and sold marijuana and was a regular user. Police responded to
a report of domestic violence at his home and discovered his grow operation. Because
Dugan also had an FFL and sold firearms, a jury convicted him of, among other things,

11
 shipping and receiving firearms through interstate commerce while using a controlled
substance in violation of § 922(g)(3).
Dugan challenged his conviction on Second Amendment grounds. The 9th Circuit
noted the language in Heller that courts have relied on when upholding the
constitutionality of firearms restrictions (“… nothing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.”)
Here was the Court’s reasoning:
Like our sister circuits, we see the same amount of danger in allowing
habitual drug users to traffic in firearms as we do see in allowing felons and
mentally ill people to do so. Habitual drug users, like career criminals and
the mentally ill, more likely will have difficulty exercising self-control,
particularly when they are under the influence of controlled substances.
Moreover, unlike people who have been convicted of a felony or committed
to a mental institution and so face a lifetime ban, an unlawful drug user may
regain his right to possess a firearm simply by ending his drug abuse. The
restriction in § 922(g)(3) is far less onerous than those affecting felons and
the mentally ill. Yancey, 621 F.3d at 686-87. Because Congress may
constitutionally deprive felons and mentally ill people of the right to possess
and carry weapons, we conclude that Congress may also prohibit illegal drug
users from possessing firearms.
The entire decision is only four paragraphs long, and the Court did not go
through any analysis of what standard of review it was using and why. It reads like a
rational basis analysis, though, even though Heller rejected rational basis as the
applicable standard of review and federal appeals courts have used a higher
standard when reviewing Second Amendment cases.
That raises the question – would a similar challenge turn out differently in a
different circuit under an elevated standard of review? The short answer is –
probably not for the reasons that Professor O’Shea discussed earlier in today’s
program.
2. Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016)
S. Rowan Wilson had a Nevada medical marijuana registry card. At the time
Wilson went to buy a firearm, the FFL knew that she had the card and so refused to
sell the gun to her.

12
 Wilson argued that, although she had the card, she did not use medical
marijuana and got the card in order to express her support for marijuana legalization
in the country. Wilson filed suit against the government for the sale’s denial,
asserting facial challenges: 1. Violation of the Second Amendment, 2. Violation of
the Equal Protection Clause of the Fifth Amendment, 3. Violation of the procedural
Due Process Clause of the Fifth Amendment, 4. Violation of the substantive Due
Process Clause of the Fifth Amendment, and 5. Violation of the First Amendment.
The District Court dismissed her Complaint in its entirety.
Using intermediate scrutiny, the 9th Circuit Court of Appeals said that the
burden on Wilson’s core Second amendment right was not severe, as she could have
purchased and collected firearms before she got the card. § 922(d)(3), 27 C.F.R. §
478.11, and the Open Letter bar only the sale of firearms and ammunition to her,
not her possession of them. In addition, Wilson could surrender her medical
marijuana card at any time so that an FFL would have no reasonable cause to believe
that she was an unlawful user. She could then legally purchase a firearm.
The Government pointed to studies suggesting a link between drug use,
including marijuana use, and violence. The Court credited that argument in its
“reasonable fit” analysis –“It is beyond dispute that illegal drug users, including
marijuana users, are likely as a consequence of that use to experience altered or
impaired mental states that affect their judgment and that can lead to irrational or
unpredictable behavior. [Citation omitted] They are also more likely to have
negative interactions with law enforcement officers because they engage in criminal
activity. Finally, they frequently make their purchases through black market sources
who themselves frequently resort to violence.”
And though Wilson stated that she did not use marijuana even though she held
the card, “[w]ith respect to marijuana registry cards, there may be some small
population of individuals who – although obtaining a marijuana registry card for
medicinal purposes – instead hold marijuana registry cards only for expressive
purposes. But it is eminently reasonable for federal regulators to assume that a
registry cardholder is much more likely to be a marijuana user than an individual
who does not hold a registry card.”

D. Enforcement

1. Federal Level
The author does not know of any federal cases in which a medical marijuana card holder
was prosecuted solely for owning a firearm. Still, people are concerned and should be. As of
late February 2018, an estimated 2.25 million people across the country have medical

13
marijuana cards.10 California leads the pack with an estimated 1.3 million. Coming in second is
Michigan with almost 220,000. Third place goes to Arizona with about 153,000 cardholders.
Pennsylvania, where medical marijuana went into effect only recently, already has more than
20,000 cardholders.
Federally, there is new emphasis on enforcing marijuana crimes in general. The 2009
Ogden Memorandum (Ogden was then Asst. Attorney General) stated that the DOJ was
committed to the “efficient and rational” use of its resources. As a result, U.S. attorneys should
not prosecute individuals who legally use marijuana for medical purposes. In 2013, the Cole
Memorandum focused federal attorneys on pursuing cases involving interstate trafficking,
criminal gangs, the sale of marijuana to minors, and using federal property to grow marijuana.
The enforcement of marijuana laws against other individuals was left to state and local officials.
In early January 2018, however, Attorney General Sessions instructed U.S. attorneys to ignore
that earlier guidance limiting the use of those federal government resources.
And on March 12, 2018, the DOJ released its “New Actions to Improve School Safety and
Better Enforce Existing Gun Laws.” 11 These actions include directing federal prosecutors to
swiftly and aggressively prosecutor “appropriate cases” against those who lie on the federal
background check. 12 Those “appropriate cases” have been rare and involve “aggravated
circumstances” that might not be present in a run-of-the-mill case of a marijuana user checking
“no” on the 4473. How AUSAs want to spent their resources will be a question, and there could
also be evidentiary problems prosecuting users who do not have medical marijuana cards.
There is another thing to watch about enforcement. The federal government’s assets
on the ground are limited. And the Anti-Commandeering Doctrine limits the power of the federal
government to force state and local law enforcement agencies to enforce federal laws. Congress can
subject the states to regulation by “generally applicable laws” but may not command state
executives and legislatures “to enact or enforce a federal policy or program.” Printz v U.S., 521
U.S 898, 917 (1997), accord New York v. U.S., 505 U.S. 144, 188 (1992).
Enforcing federal firearms laws as they relate to the drug use prohibition will therefore
continue to fall mainly upon the federal government. And it is possible that a federal
prosecutor could have trouble with a jury in a state where marijuana is legal. With limited

10
These are estimates from the Marijuana Policy Project. See https://www.mpp.org/issues/medical-
marijuana/state-by-state-medical-marijuana-laws/medical-marijuana-patient-numbers/.
11
Available at https://www.justice.gov/opa/pr/attorney-general-sessions-announces-new-actions-
improve-school-safety-and-better-enforce.
12
In the past, the DOJ had “most often prosecuted NICS denial cases when aggravated circumstances”
existed in addition to the false “no” answer on the Form 4473. Only 254 false statement cases were
even considered for prosecution between 2008 and 2015, amounting to a 0.04% prosecution rate.
“Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background
Check System,” Office of the Inspector General, U.S. Department of Justice, Audit Division 16-32
September 2016, available at https://oig.justice/gov/reports/2016/a1632.pdf#page=1.

14
resources, and even with a renewed push to enforce federal firearms laws, how far the federal
government will go to enforce the marijuana prohibition will likely be minimal. Politically, it will
be much easier to go after violent felons and other prohibited persons who many believe pose
a greater danger.
Fix NICS, passed as part of the “Omnibus Spending Bill” signed into law in March 2018,
requires, in part, that every federal department and agency (including the military branches and
federal court) certify that they have submitted the names of prohibited persons to the NICS
database. The number of those federal department/agency prohibitions submitted to NICS
that are marijuana use prohibitions is unknown.13
For states, Fix NICS prioritizes grant funding through the NICS Act Record Improvement
Program to states that submit felony conviction and domestic violence records, not records for
other prohibitions including illegal drug use. Perhaps more significant for medical marijuana
cardholders, though, is the Improving Information Sharing with the States section. That gives
preference in discretionary grant applications through the Bureau of Justice Assistance program
to states that create plans for submitting all their prohibited persons records to NICS and that
follow through on those plans.
Still, it remains to be seen how many states will report medical marijuana card users to
NICS in order to receive preference in this Bureau of Justice Assistance grant funding. State
reporting to NICS remains voluntary. The author’s sense now is that we will not see a great
amount of reporting of medical marijuana prohibitions to the NICS system for a variety and
combination of reasons, including political blowback, state privacy laws that protect this
information, and the difficulty of gathering such information in states where cards are issued
only locally.
2. State Level
States and localities that have notified medical marijuana users that they can no longer
possess firearms have backpedalled because of the political uproar. See the cases of Honolulu,
Pennsylvania, and Illinois below. The author thinks it will be difficult for other states and
localities to be aggressive as well. It is just too tough politically to ask users to “voluntarily
surrender” their firearms, let alone to start arrests and confiscations. Still, what states and

13
There is concern that those applying for or holding federal security clearances who fail their
drug tests could be reported to the NICS systems. We’ll see, and there may be privacy laws in
place that would limit that reporting. However, remember the definition of an “unlawful user”
under 27 C.F.R. § 478.11 for current or former members of the military – “an inference of
current use may be drawn from recent disciplinary or other administrative action based on
confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative
discharge based on drug use or drug rehabilitation failure.”

15
localities can do is deny permits to purchase and to carry in those jurisdictions where such
permits are required.
Many local D.A.s, including some in both Pennsylvania and Ohio, have announced that
prosecutions based on state prohibitions will be on a “case-by-case approach.” What that
means is unclear, but like any other prosecution, it will likely be based on whether local
prosecutors think the person is indeed a bad actor and likely to misuse the firearm.
Honolulu, Hawaii
The letters sent from the Honolulu PD are, to the author’s knowledge, the first time law
enforcement has sought out those with medical marijuana cards and ordered them to give up
their guns. And Hawaii is unique in that it is the only state that requires both the registration of
all firearms and has an electronic database of medical marijuana patients. The Honolulu Police
Department was therefore easily able to cross-check the lists to create the list of individuals
with both medical marijuana cards and in the state’s firearms registry. Other states don’t
require those with medical marijuana cards to be in a database or don’t have a firearms
registry.
Only a few days after the stories of the letters made the rounds nationally, the HPD
stopped sending the letters and said it would reevaluate its policies. The HPD Chief denied that
she had approved the letters even though her signature appeared at the bottom. The Daily
Caller learned that the HPD would return the firearms to those two medical marijuana patients
who had surrendered their firearms in response to receiving the letters. As of March 2018, the
HPD is still reevaluating its policy. The author’s sense is that the HPD will quietly drop it.
Still, the HPD has said that the city has rejected the gun permit applications of medical
marijuana card holders for several years, some 67 between 2013 and 2016. The HPD has also
said that it will continue to reject those permit applications.
Pennsylvania
After Pennsylvania’s medical marijuana law went into effect, the President of the
Pennsylvania District Attorney’s Association went on record to say: “They’re going to have to
make a choice. They can have their guns or their marijuana, but not both.” However,
Pennsylvania state law does not prohibit firearms possession to those who use marijuana. The
Governor of Pennsylvania responded to concerns by saying outright that the state would not
start confiscating firearms. And in January 2018, the state of Pennsylvania announced that its
registry of medical card holders will not be available, as previously planned, through the state
law enforcement computer network. That makes it much less likely that Pennsylvania medical
marijuana card holders will be flagged during a gun sale background check.

16
 The Pennsylvania State Police has a special section on its website entitled “Information
for Medical Marijuana Cardholders.” 14 It cites Pennsylvania law that makes it legal for holders
of a state medical marijuana card to possess medically-approved forms of marijuana. It then
goes on to discuss federal law’s prohibition on firearms acquisition and possession, but it says
nothing about the Commonwealth of Pennsylvania enforcing federal law or any confiscation of
firearms from medical marijuana cardholders. Only in the final paragraph does it mention that
medical marijuana holders in Pennsylvania may not apply for, possess, or renew a state license
to carry because, under Pennsylvania’s state law, such permits are denied those who are
“prohibited from possessing of acquiring a firearm under the statutes of the United States.”
Illinois
In late 2015, at least four Illinois medical marijuana users received letters that their FOID
cards had been immediately revoked because of their medical marijuana cards. Officials in the
state later called those letters a mistake and have not sent any further letters or taken any
further action against those who have both medical marijuana and FOID cards.

E. What is the Long-Term Solution?

No one knows how many regular users of marijuana there are in this country. One
estimate has it at 40 million. Even if the actual number is much lower, the number of marijuana
users still likely dwarfs the numbers of those prohibited from firearms possession for other
reasons.
One solution would be to amend 18 U.S.C. §§ 922 (g) and (d) to remove the unlawful
user prohibitions. The author believes that is just not politically possible now.
However, national polls show trending support for federal marijuana legalization. A
Gallup poll released in October 2017 indicated that 64% of respondents supported legalization,
up 4% since the same time in 2016 and up from 48% in 2012. 51% of Republicans supported
legalization, up 9% since 2017. Millennials supported it 70%, Generation X 66%, and Boomers
56%. Compare this to a 1969 poll showing only 12% of respondents, Republicans and
Democrats of all ages, supporting legalization. Decriminalizing marijuana will be difficult as well
in the near future, but it is likely the easier path.
There have been several bills at the federal level to deschedule marijuana.
One is the Regulate Marijuana Like Alcohol Act (H.R. 1841), introduced again most
recently in March 2017. This would remove marijuana from the CSA entirely and allow states to

14
http://www.psp.pa.gov/firearms-information/Pages/Firearms-Information.aspx.

17
set their own marijuana policies without federal interference. It would also move oversight of
marijuana from the DEA to the BATFE and would regulate marijuana similarly to how alcohol is
now.
The latest and most radical bill to be introduced is the Marijuana Justice Act. Introduced
in August 2017, the MJA would remove marijuana from Schedule I, remove the ban on
marijuana import and export, prohibit some federal funding to states that criminalize
marijuana, order federal courts to expunge prior convictions for federal crimes related to the
use and possession of marijuana, allow those currently serving time in federal prison for
marijuana-related crimes to petition a court for re-sentencing, and allow individuals in states
with a racially-disproportionate arrest or incarceration rate for marijuana crimes to bring a civil
action in federal courts. In this author’s opinion, the MJA is not going anywhere. It would have
to be pared down and kept simple in order to get broader support.

Another Thing to Keep in Mind

26 states have enacted state prohibitions on the possession of firearms by habitual
illegal drug users. So even if the CSA were changed tomorrow to declassify marijuana, there
would still be some state level restrictions in those states where marijuana use would still be
illegal. Amending the Controlled Substances Act would not create a federal Constitutional right
to use marijuana, either medically or recreationally. Nor would it create a federal
Constitutional right to both possess firearms and to use marijuana. Some state laws on
firearms possession and marijuana use would have to change as well.

3D Printing of Firearms

3D printed firearms have been getting attention the last few years. These aren’t the
80% lower receivers and pistol frames that have existed and have been widely available for
years, but those firearms manufactured solely via relatively new 3D (3 dimensional) printing
technology currently being used to manufacture everything from car and aerospace parts to
medical devices. This section will give a very brief rundown of the emerging legal and
technological questions surrounding 3D printed firearms. In the coming years, it may be
necessary to devote more time and attention to the topic.

A. 3D Printing Technology

The technology to create high-quality 3D printed firearms isn’t quite there yet. The
technology is still young even though hobbyist-built 3D printed firearms are increasingly

18
common. This will change as the designs and technology improve, particularly as metal 3D
printing becomes more advanced. It will also become more commercially available, affordable
to those outside of industry, and easier to use for those without extensive technical skills.
Material Extrusion Machines (also called Fused Deposition Modeling or FDM machines)
are currently the least expensive and most basic type of 3D printers that are widely available.
These machines are the main method used to make the few working 3D printed guns out there.
These generally go for $500-$1,000 and can be used for simple firearms parts and accessories
made of simple plastic and that have no moving parts. A digital file (a 3D model) is sliced into
dozens or hundreds of .1 mm thick layers. The 3D printer than replicates each of these
individual slices of liquefied thermoplastics onto the printing platform, one layer on top of the
next, resulting in a physical copy of the digital file. It is a slow process that can take several
hours, and it can create only one component at a time. It cannot create complex pieces, and
certainly not a complete gun in a single printing.
And most thermoplastics available now are not strong enough to survive more than a
few shots, as the explosive force quickly cracks and breaks from the explosive force of the
gunpowder in the round.
Some companies have already come out with all metal 3D printed firearms. One model
produced by a company called Solid Concepts Inc. was a near identical copy of the Colt
Government Model 1911. The company claims that over 4,500 rounds have been fired through
their models without needing any parts replacements. These models sold to the public for
$11,900 each. To make these, Solid Concepts used an industrial-grade direct metal laser
sintering (DMLS) machine, and the gun still needed extensive finishing work done by hand.
That kind of technology is incredibly expensive and complex. Metal 3D printers start at tens of
thousands of dollars and run into the hundreds of thousands.

B. Case Law

Because the technology is so new, there is not much case law on the subject. One case
that has gotten attention, though, is Defense Distributed v. U.S. Dep’t of State. The case will
have some impact on how 3D designs are distributed in the future.
Defense Distributed is an Austin-based company that published numerous firearms CAD
files on its website. One of the files Defense Distributed published was for “The Liberator,” an
entirely 3D-printable handgun (except for the metal firing pin). The file was downloaded
approximately 100,000 times in only two days. On May 8, 2013, Defense Distributed received a
letter from the State Department alleging that, under the Arms Export Control Act (AECA) and
the International Traffic in Arms Regulations (ITAR), Defense Distributed could not “export”
abroad – via online publication - its CAD files without receiving prior permission from the
government.

19
 When Defense Distributed waited but received no approval from the government to
post more files, it filed suit in the U.S. District Court for the Western District of Texas in May
2015. The claim was that the State Department’s interpretation of the AECA was an
unconstitutional prior restraint on speech in violation of the First Amendment. Defense
Distributed asked for a preliminary injunction against the State Department’s enforcing any
prepublication approval requirements.
In August 2015 the District Court denied the motion for the preliminary injunction,
giving special weight to the government’s interest in national security and judging that Defense
Distributed had no substantial likelihood of success on the merits. 15 The Fifth Circuit affirmed
the denial in September 2016,16 concluding that the District Court had not abused its discretion
in holding that the national security interest outweighed Defense Distributed’s interest in
asserting its rights under the First Amendment.
Judge Edith Jones dissented, citing a decision out of the 2nd Circuit for the proposition
that “computer-related files and other technical data are speech protected by the First
Amendment.” That case and other similar cases support the idea that all code is speech,
although some have argued that those cases are limited to encryption and decryption code, the
only technologies at issue in those cases. Judge Jones emphasized that the CAD files were not
classified or otherwise restricted, and that the State Department had never restricted the
online publication of other information about other potentially dangerous devices. Judge Jones
would have found the government’s preapproval regulations an unconstitutional prior restraint
on speech and content-based regulation. And she pointed out that sharing the same files at a
live conference or via domestic publication only would be protected speech if no foreigners
could access the files.
The Fifth Circuit denied en banc review. Defense Distributed then filed for cert before
the U.S. Supreme Court. SCOTUS denied cert in January 2018. The case is now back in the
Western District of Texas to be heard on its merits.

Important Note
Regardless of what happens now in the Defense Distributed case, files for making 3D
printed guns are available on the Internet. In fact, the District Court noted in its decision that
Defense Distributed’s files are still widely available on third-party platforms that reposted
copies. 17 And Defense Distributed is far from alone in developing these files and designs.
15
Def. Distributed v. U.S. Dep’t of State, 121 F. Supp. 2d 680 (W.D. Tex. 2015).
16
Def. Distributed v. U.S. Dep’t of State, 838 F.3d 451 (5th Cir. 2016).
17
The District Court was referring only to Defense Distributed’s designs being available on the clear
web, not those designs created by others and available on the deep or dark webs. See “3D-Printed Gun
Designs Are Selling for $12 on the Dark Web,” Defense One, Patrick Tucker, published July 20, 2017 and
available at http://www.defenseone.com/technology/2017/07/3d-printed-gun-file-dark-web-averages-

20
Professionals and hobbyists across the world are creating their own files and sharing them
online.

C. Further Legal Regulation

California passed a law in July 2016 that requires those who assemble or make a
homemade firearm to apply for a serial number or other mark of identification from California’s
Department of Justice. As of today, California is the only state to have done so, and there are
no U.S. federal laws on the books. 18 Australia and some other nations have passed legislation
criminalizing the possession of 3D printed firearms or even their plans, despite a 3D printed
firearm never having been used in a violent crime there or elsewhere. 19
Right now in the U.S., the people who are creating these 3D printed firearms are not
those out committing crimes or engaging in terrorism, and there is little reason to go through
the process of creating a 3D printed firearm if traditionally-manufactured firearms or all their
untraceable components are available through legal and illegal means.

Recent Significant Changes and Proposed Changes to Federal Law and

Regulations

Please refer to the handout given at the desk when you checked in this morning.
Speakers at this Seminar had to submit their written materials for the Seminar textbook/thumb
drive by mid-March 2018. However, the author wanted to give you an update on the most
recent federal laws/regulations that are in play as of May 4, 2018, so the handout was the best
way to do that.

12/139580/, and “Behind the curtain: The illicit trade of firearms, explosives, and ammunition on the
dark web,” G. Paoli, J. Aldridge, N. Ryan, and R. Warnes, RAND Corporation, 2017, available at
https://www.rand.org/pubs/research_reports/RR2091.html.
18
The Undetectable Firearms Act of 1988 makes it illegal, in part, to manufacture, transfer, or possess
any firearm with less than 3.7 oz (105 g) of steel that is not detectable by a walk-through metal detector,
or any firearm that is not in the traditional shape of a firearm and that does not therefore give an
accurate image of a gun in airport imaging technology. (18 U.S.C. § 922(p)) No guns fit that definition in
1988. Proposals to update the law have been introduced but not passed.
19
However, the author did find some news stories about criminal organizations in Australia being caught
with 3D printed guns.

21
APPENDIX – Sample TSA Notice of Violation

22
 National Firearms Law Seminar

Section Four

Federal Firearms Licensee Issues: Dealing with Common Problems and

Complying with Federal Rulings and Regulations

James Vann, J.D.

Working with FFLs: Hot Button Issues for Manufacturers, Importers,

and Dealers

Stephen P. Halbrook, Ph.D.

 www.atf.gov

Annual National Firearms Law

Seminar
May 4, 2018
Dallas, Texas

U.S. Department of Justice

Bureau of Alcohol, Tobacco, Firearms and Explosives
 ATF
• ATF at your Licensed Premises
• Auctioneers
• Dealing at Out-of-State Gun Shows
• Private Party Transactions
• Bumpstocks

2
ATF Investigators and Agents at
Your Licensed Premises

3
 Why is ATF at my door?
• Inspection of your inventory and required
records to ensure compliance
• Criminal investigation
• Execution of a search warrant

4
 Inspections

18 USC 923(g)(1)
(B) The Attorney General may inspect or
examine the inventory and records of a licensed
importer, licensed manufacturer, or licensed
dealer without such reasonable cause or
warrant—
(ii) for ensuring compliance with the record
keeping requirements of this chapter—
(I) not more than once during any 12-month
period; ….
5
 Inspections
• Conducted by Industry Operations Investigators
(IOI)
• Conducted during normal business hours or as
otherwise arranged
• Will inspect the inventory and required records

6
 What the Inspector is looking at/for

A&D books
Forms 4473
Multiple sales reports
Theft loss reports
NFA forms
NFA inventory
GCA inventory

7
 ATF Agents for Criminal Investigation
18 USC 923(g)(1)

(B) The Attorney General may inspect or

examine the inventory and records of a
licensed importer, licensed manufacturer, or
licensed dealer without such reasonable cause
or warrant—
(i) in the course of a reasonable inquiry
during the course of a criminal investigation of a
person or persons other than the licensee;

8
(ii) for ensuring compliance with the record
keeping requirements of this chapter—

(II) at any time with respect to records

relating to a firearm involved in a criminal
investigation that is traced to the licensee; or

(iii) when such inspection or examination

may be required for determining the disposition
of one or more particular firearms in the course
of a bona fide criminal investigation.
9
 Search Warrants
• Issued by a Court with appropriate jurisdiction
• Rule 41 Compliant

10
 Auctioneers
Do I need a License?

11
 Auctioneers
Does an auctioneer who is involved in
firearms sales need a dealer’s license?

Generally speaking, there are two types of

auctions: estate–type auctions and
consignment auctions.

12
 Estate-Type Auctions
In estate–type auctions, the articles to be
auctioned (including firearms) are being sold by
the executor of the estate of an individual. The
firearms belong to and are possessed by the
executor. The firearms are controlled by the estate,
and the sales of firearms are being made by the
estate. The auctioneer is acting as an agent of the
executor and assisting the executor in finding
buyers for the firearms.

13
 Estate-Type Auctions

In these cases, the auctioneer does not meet

the definition of engaging in business as a
dealer in firearms and would not need a
license. An auctioneer who does have a
license may perform this function away from
his or her licensed premises.

14
 Consignment-Type Auctions
In consignment–type auctions, an auctioneer
often takes possession of firearms in advance of
the auction. These firearms are generally
inventoried, evaluated, and tagged for
identification. The firearms belong to individuals
who have entered into a consignment agreement
with the auctioneer giving that auctioneer
authority to sell the firearms. The auctioneer
therefore has possession and control of the
firearms.
15
 Consignment-Type Auctions

Under these circumstances, an

auctioneer would generally need a
license. If you are not sure if a license is
needed in a particular consignment
auction situation, contact your local
ATF office.
[ATF Ruling 96–2]

16
 Dealing at Out of State Gun
Shows

What may a licensee do at an out–of–State

gun show?

17
A licensee may only display and take orders for
firearms at an out–of–State gun show. In filling
any orders for firearms, the licensee must
return the firearms to his or her licensed
premises and deliver them from that location.
Any firearm ordered by a nonlicensee must be
delivered or shipped from the licensee’s
premises to a licensee in the purchaser’s State
of residence, and the purchaser must obtain the
firearm from the licensee located in the
purchaser’s State.
18
A licensee is prohibited from transferring
firearms to another licensee at an out–of–
State gun show, except where the firearm
being transferred is a curio or relic.
[18 U.S.C. 922(a)(1), (b)(3), 923(a) and (j);
27 CFR 478.100]

19
 FFL Assistance with Private
Party Transactions

20
Private Party Transactions –
ATF Procedure 2013-1
• Immediate Proceed/Firearm Transferred
• Document like normal transaction- firearm entered into
Acquisition & Disposition record (A&D), ATF Form 4473
completed and retained
• Delayed w/Firearm Transferred
• FFL did not take possession of firearm- no A&D record
entry until firearm is transferred, and Seller must return
with the firearm to FFL premises to transfer firearm to
Buyer
• FFL took possession of firearm- entered into A&D, and
Seller need not return to FFL premises to complete
transaction
• Denied/Cancelled
• FFL did not take possession of firearm- retain ATF Form
4473, firearm not entered in A&D
• FFL took possession of firearm- firearm entered into A&D,
retain Buyer’s ATF Form 4473, private party Seller must
complete ATF Form 4473 & NICS check to get firearm back
21
Private Party Transactions- continued
Secure Gun Storage/Safety Devices
• Required when handgun is transferred to a non-
licensee (buyer or seller).
• Not required when seller does not relinquish control of
the firearm.
Report of Multiple Sales of Handguns
• ATF Form 3310.4 is still required when 2 or more
handguns are transferred within a 5 day period to the
same individual.
• Not required when the handguns are returned to the
same person from whom it was received.
NFA Transactions
• Transfer of NFA firearms may be accomplished only
pursuant to 27 CFR 479 Subpart F
State and Local Laws
• Must comply with all State and Local laws and
ordinances

22
 Bumpstocks
Latest update

23
 Questions?

James P. Vann
Assistant Chief Counsel - Firearms
ATF

24
 WORKING WITH FFLs:

HOT BUTTON ISSUES FOR

MANUFACTURERS,
IMPORTERS, AND DEALERS

STEPHEN P. HALBROOK, Ph.D.

Attorney at Law

21st Annual National Firearms Law Seminar

May 4, 2018

Dallas, Texas
 STEPHEN P. HALBROOK, PH.D.
ATTORNEY AT LAW
SUITE 403
3925 CHAIN BRIDGE ROAD
FAIRFAX, VIRGINIA 22030

TELEPHONE (703) 352-7276 protell@aol.com

FAX (703) 359-0938 www.stephenhalbrook.com

Civil litigation & criminal defense since 1978. Focus on firearms law and constitutional
issues involving Federalism and Bill of Rights guarantees. Represent firearm associations,
manufacturers, importers, and owners in administrative, civil, & criminal proceedings under
federal, state, & local law. ATF classifications, compliance, and FFL revocations.

Member of Virginia State Bar, D.C. Bar, U.S. Supreme Court, U.S. Courts of Appeals –
all circuits. Testified in U.S. Senate & House Judiciary Committees – SHARE Act, Fix NICS,
Bump Stocks. Georgetown University Law Center, J.D. (1978); Florida State University, Ph.D.
Philosophy (1972). Assistant Professor of Philosophy 1972-81, George Mason, Howard,
Tuskegee Universities. Senior Fellow, The Independent Institute.

Supreme Court practice: represented majority of members of Congress as amici curiae in

Heller v. D.C. (2008). Co-counsel for NRA in McDonald v. Chicago (2010). Argued and won:
Castillo v. U.S. (2000) (right to jury trial in GCA issue in Waco case); Printz v. U.S. (1997)
(Brady mandates to States); U.S. v. T/C Arms (NFA). Co-counsel in Small v. U.S. (2005)
(foreign convictions in GCA). Numerous federal & state appeals argued.

Books

NEW Gun Control in Nazi-Occupied France: Tyranny and Resistance (2018).

Updated Firearms Law Deskbook: Federal and State Criminal Practice (Thomson/West 2017).
Gun Control in the Third Reich: Disarming the Jews and “Enemies of the State” (2013).
Also in German, French, Portuguese.
The Founders’ Second Amendment (2008). Cited in McDonald.
Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (1998). New Edition:
Securing Civil Rights (2010). Cited in Heller and McDonald.
That Every Man Be Armed (1984, 2013). Cited in Printz.
A Right to Bear Arms: State & Federal Bills of Rights (1989).
The Swiss and the Nazis (2006). Also in German, French, Polish.
Target Switzerland (1998, 2003). Also in German, French, Italian, Polish.

Articles (selected). See www.stephenhalbrook.com.

“Firearm Sound Moderators,” 46:1 Cumberland L. Rev. 33 (2016).
“Reality Check: The ‘Assault Weapon’ Fantasy,” 14 G’twn J. L. & Pub. Pol. 47 (2016).
“New York’s Not So ‘SAFE’ Act,” 78 Albany L. Rev. 789 (2014/15).
“Why Can’t We Be Like France?” 34 Fordham Urban Law J., No. 5, 1637 ( 2012).
 TABLE OF CONTENTS

I. NEGOTIATING AND LITIGATING LICENSE REVOCATIONS.. . . . . . . . . . . . . . . . . . . . 1

The Dreaded “R” Word: “R” is for Revocation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Revocation Requires a Willful Violation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Making Offers of Settlement in the Revocation Context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Make an offer they can’t refuse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Revocation procedural highlights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Failure to perform NICS check. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indicted licensee may stay in business until a conviction is final. . . . . . . . . . . . . . . . . . . . . . . . . 5
Convicted licensee may stay in business until final
action denying petition for relief from disabilities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. ATF FIREARM CLASSIFICATIONS:

MAKING YOUR CASE BEFORE ATF AND IN COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Divine Right of Deference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

No Deference Is Due If the Statute Is Clear or If the Statute Is Criminal. . . . . . . . . . . . . . . . . . . 7
Enter the Chevron Dragon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Thompson/Center Contender Carbine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The “Once-a-Machinegun” Original Sin Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A Tale of Two Muzzle Brakes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ATF Classifications sans litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. STATE BANS ON MODERN SPORTING RIFLES:

CALIFORNIA AND MASSACHUSETTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

California: Is It an “Assault Weapon”?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Removal of the pistol grip or other feature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Disabling the semiautomatic function. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fixed magazine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Massachusetts: Complaint Today, Non-Compliant Tomorrow. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Attorney General Maura Healey’s Enforcement Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A Rifle With a Fixed Magazine is not an “Assault Weapon”. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX: ATF CLASSIFICATION LETTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

 I. NEGOTIATING AND LITIGATING LICENSE REVOCATIONS

The Dreaded “R” Word

“R” is for Revocation

Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou
art with me; thy rod and thy staff they comfort me. – Psalm 23:4

Revocation Requires a Willful Violation

A license may be revoked only if the licensee “willfully violated any provision of this
chapter or any rule or regulation prescribed by the Attorney General under this chapter . . . .” 18
U.S.C. § 923(e). ATF must “prove that the petitioner knew of his legal obligation and
purposefully disregarded or was plainly indifferent to the recordkeeping requirements.” Stein’s,
Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir. 1980). This test was reaffirmed in Article II Gun
Shop, Inc. v. Gonzales, 441 F.3d 492, 497 (7th Cir. 2006).

However, “plain indifference” does “not mean a mere mistake or negligence,” and instead
means “reckless disregard,” or “[c]onscious indifference to the consequences of an act.” General
Store, Inc. v. Van Loan, 551 F.3d 1093, 1096 (9th Cir. 2008) (citation omitted). “[A] violation of
the Gun Control Act requires a willful violation that is ‘a deliberate, knowing, or reckless
violation of its requirements.’” Id., citing, inter alia, Stein’s, 649 F.2d at 467. “The standard of
willfulness . . . does not demand perfection from licensees – it leaves room for the occasional
incident of human error.” American Arms International v. Herbert, 573 F.3d 78, 87 (4th Cir.
2009) (upholding revocation where the latest “inspection revealed a level of violations that
dwarfed those found in previous inspections”).1

Revocation would not be proper for “error, inadvertence,” or “careless disregard,” and
instead: “Congress was concerned with purposeful, intentional conduct to be punished by
revocation of licenses rather than mere negligence on the part of the licensee.” Rich v. United

1
These principles have been applied in a variety of contexts. E.g., Al's Jewelry & Loan,
Inc. v. U.S. Dept. of Treasury, 103 F.3d 128, 1996 WL 683528, *4 (6th Cir. 1996) (unreported)
(“it is undisputed that Appellant willfully violated” the law and “fail[ed] to institute satisfactory
corrective measures to prevent such violations”); Lewin v. Blumenthal, 590 F.2d 268, 269 (8th
Cir.1979) (“large number of violations,” including sales to “persons who admitted their status as
felons”); Cisewski v. Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms, 773
F. Supp. 148, 151-52 (E.D. Wis. 1991) (“the false entries into records and altered documents
were willful violations. . . . Cisewski’s earlier violations were more than mistakes, but rather
intentional efforts to circumvent rules”); Fin & Feather Sport Shop, Inc. v. U. S. Treasury Dept.,
481 F. Supp. 800, 807 (D. Neb. 1979) (“extremely serious violations of recordkeeping
requirements occurred”; “there can be no serious dispute as to the willfulness of these
violations.”).

1
States, 383 F. Supp. 797, 800 (S.D. Ohio 1974). See Groh v. Ramirez, 540 U.S. 551, 568 (2004)
(Kennedy, J., dissenting) (“Every lawyer and every judge can recite examples of documents that
they wrote, checked, and double-checked, but that still contained glaring errors.”).

Making Offers of Settlement in the Revocation Context

“During a [revocation] hearing, the licensee has the opportunity to challenge the
violations, establish that the violations were not willful, and address new business practices
instituted and intended to ensure future compliance.” ATF, “Federal Firearms License
Revocation Process” (March 2012) (emphasis added).2

The Attorney General proposed an amendment to 27 C.F.R. § 478.74 adding the

following: “The [revocation] hearing shall be informal and the licensee will have the opportunity
to submit facts, arguments, offers of settlement, or proposals of adjustment for review and
consideration.” Federal Firearms License Proceedings – Hearings, 77 F.R. 5460, 5463 (Feb. 3,
2012) (emphasis added). This is intended as a clarification of existing ATF procedures. Id. at
5461.

However, as finally adopted, the regulation purports to prohibit offers of settlement at the
revocation hearing: “During the hearing the licensee will have the opportunity to submit facts and
arguments for review and consideration; offers of settlement will not be entertained at the
hearing but may be made before or after the hearing.” 27 C.F.R. § 478.74.

Make an offer they can’t refuse

Licensees should have standard operating procedures (SOPs) in place in order to keep
meticulous records and to keep track of inventory. Unfortunately, gun dealers are normally not
accountants, and manufacturers and importers may not have had the benefits of comprehensive
compliance inspections by ATF Industry Operations Investigators (IOIs). Suddenly the dreaded
Notice of Revocation is served. While the Notice itself may contain errors – IOIs can make
mistakes too – it is likely to include allegations that may warrant revocation of the license.

A licensee in this situation should consider adoption of a compliance plan and submitting
it to the Director of Industry Operations (DIO) and to ATF counsel who is handling the
revocation. This should occur as quickly as possible and well before the revocation hearing is
held. It should be submitted to ATF without any precondition or agreement by ATF. The
purpose is to get into total compliance and to keep ATF informed of the licensee’s progress.
Measures to consider:

2
http://www.atf.gov/publications/factsheets/factsheet-ffl-revocation-process.html.

2
 1. Licensee agrees to conduct, on a permanent basis, audits of the acquisition and
disposition (A&D) books twice weekly. The reports of these audits will be subject to inspection
by ATF.

2. Licensee agrees to conduct full serial number based inventories quarterly.

3. Licensee agrees to waive the limitation precluding ATF from performing compliance
inspections more frequently than once every 12 months, and consents to compliance inspections
every six months for a period of three years.

4. Licensee agrees to report any firearms missing to ATF within 48 hours after
determining to a reasonable degree of certainty that the firearms are stolen or lost. The search
will be deemed conclusive once all available records and physical locations have been exhausted.
Under no circumstances shall firearms be reported missing later than 30 days from the date at
which the firearms are first unaccounted for.

5. Licensee shall endeavor to respond to a trace request immediately or within 4 hours of

receipt thereof. In no event shall the response be later than 24 hours after the receipt of the
request.

6. Licensee agrees to maintain for a period of 10 years from the date of this agreement an
internal Corporate Compliance Department to ensure compliance with all federal, state and local
firearms laws.

7. Licensee will retain an independent expert for a period of three years to support
training and audit compliance process integrity. It currently retains [name] on an as needed basis
for this purpose.

8. Licensee agrees to close and not transfer firearms for a given period. For instance, a
dealer could agree to close its doors to business with the public for two weeks during a dead part
of the year and use that as an opportunity to do an inventory or renovate the building.

9. Licensee agrees to pay a sum as a monetary settlement in lieu of a forfeiture of

firearms. Note: while ATF has no authority to impose a fine (other than in a NICS context),
firearms are subject to forfeiture if used or involved in, or so intended, violations of the Gun
Control Act. 18 U.S.C. § 924(d). A monetary amount can be paid in lieu of the forfeiture. 19
U.S.C. § 1613(c). This legal fiction could be used, for instance, where incomplete records reflect
that firearms may have been manufactured or imported, but may not have been.
agreed sum of money in lieu of directly forfeitable property.

Revocation procedural highlights

18 U.S.C. § 923

3
(e) The Attorney General may, after notice and opportunity for hearing, revoke any license issued
under this section if the holder of such license has willfully violated any provision of this
chapter or any rule or regulation prescribed by the Attorney General under this chapter
[Does not include NFA violations!]

(f)(1) Any person whose application for a license is denied and any holder of a license which is
revoked shall receive a written notice from the Attorney General stating specifically the
grounds upon which the application was denied or upon which the license was revoked.
“The notice provisions of § 923(f)(1)3 are not mere formalisms designed to restrict the
government in its proofs. Their purpose is to provide the license holder with notice of the charges
that he may prepare a defense.” Rich v. United States, 383 F. Supp. 797, 801 (S.D. Ohio 1974).4

(2) If the Attorney General denies an application for, or revokes, a license, he shall, upon request
by the aggrieved party, promptly hold a hearing to review his denial or revocation. In the case of
a revocation of a license, the Attorney General shall upon the request of the holder of the
license stay the effective date of the revocation.

(3) If after a hearing held under paragraph (2) the Attorney General decides not to reverse his
decision to deny an application or revoke a license, the Attorney General shall give notice of his
decision to the aggrieved party. The aggrieved party may at any time within sixty days after
the date notice was given under this paragraph file a petition with the United States district
court for the district in which he resides or has his principal place of business for a de novo
judicial review of such denial or revocation. In a proceeding conducted under this
subsection, the court may consider any evidence submitted by the parties to the proceeding
whether or not such evidence was considered at the hearing held under paragraph (2).

27 C.F.R. § 478.78 Operations by licensee after notice.

If a licensee is dissatisfied with a posthearing decision revoking or suspending the license or

denying the application or imposing a civil fine, as the case may be, he may, pursuant to 18
U.S.C. 923(f)(3), within 60 days after receipt of the final notice denying the application or
revoking or suspending the license or imposing a civil fine, file a petition for judicial review of
such action. Such petition should be filed with the U.S. district court for the district in which the
applicant or licensee resides or has his principal place of business. In such case, when the
Director finds that justice so requires, he may postpone the effective date of suspension or
revocation of a license or authorize continued operations under the expired license, as
applicable, pending judicial review.

3
Currently § 923(e)
4
The Notice of Revocation in Rich “gave no warning that the hearing was to be held on
matters concerning” certain facts “despite the clear language of § 923(f) requiring that written
notice of the Secretary's grounds for revocation be given prior to its effective date.” Id.

4
[If the Director fails to do so, the licensee should seek a stay of the revocation from the district
court pending the case.]

18 U.S.C. § 923(f)(4) If criminal proceedings are instituted against a licensee alleging any
violation of this chapter or of rules or regulations prescribed under this chapter, and the
licensee is acquitted of such charges, or such proceedings are terminated, other than upon
motion of the Government before trial upon such charges, the Attorney General shall be
absolutely barred from denying or revoking any license granted under this chapter where
such denial or revocation is based in whole or in part on the facts which form the basis of
such criminal charges. No proceedings for the revocation of a license shall be instituted by the
Attorney General more than one year after the filing of the indictment or information.

Failure to perform NICS check

18 U.S.C. § 922(t)(5) If the licensee knowingly transfers a firearm to such other person and
knowingly fails to comply with paragraph (1) of this subsection with respect to the transfer and,
at the time such other person most recently proposed the transfer, the national instant criminal
background check system was operating and information was available to the system
demonstrating that receipt of a firearm by such other person would violate subsection (g) or (n)
of this section or State law, the Attorney General may, after notice and opportunity for a hearing,
suspend for not more than 6 months or revoke any license issued to the licensee under section
923, and may impose on the licensee a civil fine of not more than $5,000.

Indicted licensee may stay in business until a conviction is final

18 U.S.C. § 925(b) A licensed importer, licensed manufacturer, licensed dealer, or licensed

collector who is indicted for a crime punishable by imprisonment for a term exceeding one year,
may, notwithstanding any other provision of this chapter, continue operation pursuant to his
existing license (if prior to the expiration of the term of the existing license timely application is
made for a new license) during the term of such indictment and until any conviction
pursuant to the indictment becomes final.
[A conviction would not be final until the Supreme Court denies a petition for writ of
certiorari.]

Convicted licensee may stay in business until final

action denying petition for relief from disabilities

18 U.S.C. § 925(c) A licensed importer, licensed manufacturer, licensed dealer, or licensed

collector conducting operations under this chapter, who makes application for relief from the
disabilities incurred under this chapter, shall not be barred by such disability from further
operations under his license pending final action on an application for relief filed pursuant to
this section.

5
 Under the appropriations rider, ATF may not even process an application. United States
v. Bean, 537 U.S. 71 (2002). Thus, ATF may not take “final action on an application,” and the
licensee may remain in business indefinitely.

6
 II. ATF FIREARM CLASSIFICATIONS:
MAKING YOUR CASE BEFORE ATF AND IN COURT

The Divine Right of Deference

There’s an elephant in the room with us today. We have studiously attempted to work our
way around it and even left it unremarked. But the fact is Chevron and Brand X5 permit executive
bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate
federal power in a way that seems more than a little difficult to square with the Constitution of
the framers' design. Maybe the time has come to face the behemoth.

– Circuit Judge Neal Gorsuch, concurring

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016)

No Deference Is Due If the Statute Is

Clear or If the Statute Is Criminal

“[W]e have never held that the Government’s reading of a criminal statute is entitled to
any deference.” United States v. Apel, 134 S. Ct. 1144, 1151 (2014)6 (also noting that executive
branch “views may reflect overly cautious legal advice . . . . Or they may reflect legal error.”).
See Gonzales v. Oregon, 546 U.S. 243, 264 (2006) (Attorney General not entitled to Chevron
deference in interpretation of criminal law).

The non-deference rule was set forth in Abramski v. United States, 134 S. Ct. 2259, 2274
(2014), in rejecting ATF’s interpretation of a GCA provision:

The critical point is that criminal laws are for courts, not for the Government, to
construe. . . . We think ATF's old position no more relevant than its current one –
which is to say, not relevant at all. Whether the Government interprets a criminal
statute too broadly (as it sometimes does) or too narrowly. . . , a court has an
obligation to correct its error.

Deference to agency opinion is inapplicable in a civil case involving a criminal statute, as

“we must interpret the statute consistently, whether we encounter its application in a criminal or
noncriminal context . . . .” Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). “A single statute with
civil and criminal applications receives a single interpretation.” Carter v. Welles-Bowen Realty,

5
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Nat'l Cable &
Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
6
This oft-cited statement of the rule originated in Crandon v. United States, 494 U.S. 152,
177 (1990) (Scalia, J., concurring) (“[W]e have never thought that the interpretation of those
charged with prosecuting criminal statutes is entitled to deference.”).

7
Inc., 736 F.3d 722, 727 (6th Cir. 2013). See United States v. Santos, 553 U.S. 507, 523 (2008)
(“Our obligation to maintain the consistent meaning of words in statutory text”).7

Enter the Chevron Dragon

“First, always, is the question whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed intent of Congress.”
Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).

Under Chevron, “if the statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is based on a permissible construction
of the statute.” Chevron, 467 U.S. at 842.

ATF classifications are not entitled to Chevron deference under Christensen v. Harris
County, 529 U.S. 576, 580-81 (2000), which held about an agency opinion on the law it
administers as applied to certain facts as follows:

Here . . . we confront an interpretation contained in an opinion letter, not one

arrived at after, for example, a formal adjudication or notice-and-comment
rulemaking. Interpretations such as those in opinion letters – like interpretations
contained in policy statements, agency manuals, and enforcement guidelines, all
of which lack the force of law – do not warrant Chevron-style deference.

Id. at 587.

Even where a statute authorizes “classification rulings,” that does not entitle them to
deference. United States v. Mead Corp., 533 U.S. 218, 230 (2001) (“a tariff classification has no
claim to judicial deference under Chevron”). “On the face of the statute, . . . the terms of the
congressional delegation give no indication that Congress meant to delegate authority to Customs
to issue classification rulings with the force of law.” Id. at 231-32. Unlike the statute in Mead,
here Congress delegated no authority to ATF even to issue classification rulings.

The Thompson/Center Contender Carbine

United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992), a civil case holding
that certain dual use parts did not constitute a rifle, defined in part as a weapon “intended to be
fired from the shoulder,” having a barrel less than 16 inches in length. 26 U.S.C. §5845(a)(3),
(c). The Court held that a gun manufacturer that markets parts intended only to be assembled as
a pistol or as a long-barreled rifle, does not make a short-barreled rifle even though the parts “can

7
And see Clark v. Martinez, 543 U.S. 371, 382 (2005) (a statute is not “a chameleon, its
meaning subject to change” from case to case).

8
readily be assembled” as such. Id. at 507, 509-10.8 Tellingly, the Court rejected the argument
that the items constituted a “firearm” based on “the mere possibility of their use to assemble a
regulated firearm” where no intent to do so existed.9 Id. at 513.

Thompson/Center did not involve “a set of parts that could be used to make nothing but a
short-barreled rifle . . . .” Id. at 510-11. “[W]e are not dealing with an aggregation of parts that
can serve no useful purpose except the assembly of a firearm, or with an aggregation having no
ostensible utility except to convert a gun into such a weapon.” Id. at 513-14. Instead, the case
involved an unregulated pistol that “can be converted not only into a short-barreled rifle, which is
a regulated firearm, but also into a long-barreled rifle, which is not.” Id. at 514.

In Thompson/Center, the consumer already had the parts necessary to make a restricted
rifle, and would only need to go through the legal process to assemble the parts as such.

Thompson/Center held that the definition of a restricted firearm must be read exactly the
same in a civil case as in a criminal case. Although being “construe[d] now in a civil setting, the
NFA has criminal applications . . . . It is proper, therefore, to apply the rule of lenity and resolve
the ambiguity in Thompson/Center’s favor.”10 Id. at 517-18. Thus, “the Contender pistol and
carbine kit when packaged together by Thompson/Center have not been ‘made’ into a short-
barreled rifle . . . .” Id.11 Based on that holding, the manufacturer was free to market the firearm
without special restrictions.

The “Once-a-Machinegun” Original Sin Theory

8
“[T]he definition of ‘rifle’ requires that it be ‘intended to be fired from the shoulder,’ §
5845(c), and the only combination of parts so intended, as far as [the manufacturer] is concerned
(and the record contains no indication of anyone else’s intent), is the combination that forms a
rifle with a 21-inch barrel.” Id. at 523 (Scalia, J., concurring).
9
The district court declined to opine on the application of Thompson/Center to this case.
Add. 14 n.9.
10
“The rule of lenity . . . is a rule of statutory construction whose purpose is to help give
authoritative meaning to statutory language. It is not a rule of administration calling for courts to
refrain in criminal cases from applying statutory language that would have been held to apply if
challenged in civil litigation.” Id. at 519 n.10. See Crandon, 494 U.S. at 168 (if ambiguity
arises, “we are construing a criminal statute and are therefore bound to consider application of
the rule of lenity.”).
11
That would have been the same result if no need existed to apply the rule of lenity. An
unambiguous criminal statute would have the same meaning in a civil case.

9
 F. J. Vollmer Co., Inc. v. Higgins, 23 F.3d 448, 451-53 (D.C. Cir. 1994), agreed with a
firearm manufacturer that its product was a semiautomatic rifle and rejected ATF’s contention
that it was a machinegun. “The administrative record does not contain the reasoning behind the
Bureau’s interpretation,” and ATF “made no findings of fact and offered no reasoned explanation
on the subject,” which would warrant setting its decision aside and remanding the matter. Id. at
451. However, violation of the statute was a crime and sufficient facts were known, and thus the
manufacturer “is entitled to a decision on these questions now.” Id.

Analyzing the statutory definitions and relying on an ATF order on how an item “can be
removed from the firearm classification,” the court found ATF’s position that the rifle was a
machinegun to be “incredible,” adding that even uncertainty existed, “we must resolve the
ambiguity in [the manufacturer’s] favor . . . .” Id. at 452.12

A Tale of Two Muzzle Brakes

ATF’s classification of a purported muzzle brake as a silencer was held to be arbitrary

and capricious and set aside in Innovator Enterprises, Inc. v. Jones, 28 F. Supp.3d 14 (D. D.C.
2014). The Firearms Technology Branch (FTB) found that the device had an expansion
chamber, a ported inner tube, and an end cap, which are on its list of characteristics of known
firearm silencers; also on the list, but not on the device, are baffles or washers which create
separate expansion chambers, sound-dampening material such as foam, steel wool, and other
materials, and encapsulators. Id. at 19.

The court found that ATF failed to articulate a satisfactory explanation for its decision, as
it relied “solely on the physical characteristics of the device.” Id. at 25. That method was
underinclusive, in that it would not apply to a novel silencer design that had none of the features
on the list, and it was overinclusive, in that having just three of the features did not mean that the
device was capable of, or designed for, “diminishing the report of a portable firearm.” Id. As
the court humorously wrote: “A mouse is not an ‘elephant’ solely because it has three
characteristics that are common to known elephants: a tail, gray skin, and four legs.” Id.

Innovator Enterprises also found that ATF failed to examine the relevant data, in that it
relied solely on the physical characteristics of the device, and failed to test it with its
“state-of-the-art sound metering equipment” to determine if it is really capable of “diminishing
the report” of a gunshot.13 “ATF argues that knowing whether the device actually diminishes the
report of a portable firearm is irrelevant to determining whether the device is ‘for diminishing the

12
See later proceedings, F. J. Vollmer Co., Inc. v. Magaw, 102 F.3d 591, 593 (D.C. Cir.
1996) (“the agency’s position was not substantially justified because it was wholly unsupported
by the text, legislative history, and underlying policy of the governing statute.”).
13
Innovator Enterprises, Inc. v. Jones, 2014 WL 1045975, *7 (D. D.C. 2014).

10
report of a portable firearm,’” the very definition of a silencer in § 921(a)(24). Id. at 27. Again,
the court humorously wrote:

If, as ATF asserts, the only relevant question to classifying a silencer is its
purpose, then a pink silk ribbon tied in a bow around the barrel of a rifle could be
a “firearm silencer” – as long as the ribbon's (delusional) inventor designed the
ribbon with the hopes that it could be used “for diminishing the report” of a
gunshot. This illustrates the dangers of a regulatory definition that turns on the
subjective purpose of the inventor. In most cases, including this one, a much more
useful data point is the device's actual capabilities.

Id. at 28.

Finally, Innovator Enterprises rejected ATF’s argument that the device was a silencer
because it redirected sound away from the shooter and increased it in the direction of the shot.
The issue was whether the device diminished the report of the firearm, not whether it changed the
direction of the sound. An analogy made the point: “A bullhorn might redirect noise away from
a speaker's mouth, but nobody would say it was for ‘diminishing’ the sound produced by the
speaker – just the opposite.” Id. at 29. With that, the court remanded the matter back to ATF for
further testing and fact-finding.

By contrast, Sig Sauer v. Brandon, 826 F.3d 598 (2016), held that a rifle that would have
been sold with a long muzzle brake that made the barrel sixteen inches, and that was capable of
the dual use as a silencer with the addition of an outside cover and end cap, was “intended only
for use” in assembly of a silencer. ATF characterized the muzzle brake as a “monolithic baffle
core” that, when encased with an outer tube, would reduce sound. Id. at 602. While “ATF did
not dispute that the part also reduced the gun’s recoil and rise, as a muzzle brake also does,” the
court deferred to ATF’s conclusions. Id. at 603.

Because it concluded that it was untimely raised, the court refused to consider the
manufacturer’s intent that the reason the device was longer than typical muzzle brakes was to
lengthen the barrel to sixteen inches to avoid classification as a short-barreled rifle.14 Id. at 605.
That issue thus remains open. Finally, the decision is silent on why, if the company intended that
the device was “intended only for use” in assembly of a silencer, it would have sold it just as a
rifle with a muzzle brake, leaving it to the consumer to decide whether to use it as such or to go
through the NFA process and obtain the other parts required to assemble a silencer, rather than
just selling it as a complete silencer.

In holding that the reduction of muzzle rise and recoil did not suffice to show an intent
that the device not be used only for a silencer, id. at 603, the court departed from its previous

14
The court disregarded that the intent to extend the barrel to sixteen inches was made in
Sig Sauer’s very first request to ATF for a classification and was consistently repeated thereafter.

11
precedent United States v. Crooker, 608 F.3d 94, 95-96 (1st Cir. 2010), which involved “a device
designed to muffle the sound of an airgun,” which is not a “firearm,” but which ATF attached to
an actual firearm by threading an “adapter” that it supplied to the barrel and the silencer.
Crooker observed that “the statute by its terms requires something more than a potential for
adaptation and knowledge of it. The statute does not refer either to capability or adaptation; it
speaks of a device ‘for’ silencing or muffling. The ordinary connotation of the word is one of
purpose.” Id. at 97.

Intent to use, not objective capability of use or knowledge of such capability, Crooker
continued, was critical, for otherwise the definition “could also extend to a soda bottle or even a
potato. The peculiar problem of silencers is that many objects, including relatively innocent ones,
have some capacity to muffle the sound of a shot.” Id. at 97.

ATF Classifications sans litigation

1. Suppressor for muzzleloading rifle

2. Smooth-bore firearm

3. Arm brace

See ATF letters at end of this document.

12
 III. STATE BANS ON MODERN SPORTING RIFLES:
CALIFORNIA AND MASSACHUSETTS

California: Is It an “Assault Weapon”?

According to California regulations, a rifle is not an “assault weapon” if (a) its pistol grip
or other listed feature has been removed, (b) it will not fire semiautomatically in its present
condition, such as by removal of the firing pin, or (c) it has a fixed magazine. Licensed dealers
may rely on the Department of Justice regulations for purposes of what may be sold.
Manufacturers should consider how to conduct warranty repairs without taking possession of
what may be considered “assault weapons.” Counsel should study the regulations carefully to
advise licensees and for purposes of criminal defense.

“Assault weapon” was redefined, effective January 1, 2017, in part as:

A semiautomatic, centerfire rifle that does not have a fixed magazine but has any
one of the following:
(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.
(B) A thumbhole stock.
(C) A folding or telescoping stock.
(D) A grenade launcher or flare launcher.
(E) A flash suppressor.
(F) A forward pistol grip. (Emphasis added.)

Ca. Penal Code § 30515(a)(1).

Removal of the pistol grip or other feature

A semiautomatic, centerfire rifle that does not have a fixed magazine, and instead has a
detachable magazine, is not an “assault weapon” if it has none of the above listed features. The
pre-2017 California-compliant AR rifles had a bullet-button rather than a detachable magazine,
and thus could have “a pistol grip that protrudes conspicuously beneath the action of the
weapon.” Detaching the pistol grip from the rifle (and any other listed feature, if it has any)
would remove it from the new “assault weapon” definition effective in 2017. The customer
could do this before sending it to the manufacturer, who would repair and return it in the same
configuration.

The new California complaint ARs do not have a forbidden pistol grip. DoJ regulations
provide: “‘Pistol grip that protrudes conspicuously beneath the action of the weapon’ means a
grip that allows for a pistol style grasp in which the web of the trigger hand (between the thumb
and index finger) can be placed beneath or below the top of the exposed portion of the trigger
while firing.” 11 CCR § 5471(z). The new stock does not allow “a pistol style grasp” and
instead has a vertical, flat plane to the rear of the grip that shields the thumb from grasping the

13
grip and instead forces it upward against the flat plane. The web of the hand cannot be placed
below the top of the exposed portion of the trigger.

Disabling the semiautomatic function

The Department of Justice has adopted regulations effective on July 31, 2017, setting
forth its interpretation of the meaning of “assault weapon.” Reflecting long-held DoJ
interpretations, the regulations discuss the following ways to remove the status of a rifle as an
“assault weapon”:

“Semiautomatic” means a firearm functionally able to fire a single cartridge, eject

the empty case, and reload the chamber each time the trigger is pulled and
released. Further, certain necessary mechanical parts that will allow a firearm to
function in a semiautomatic nature must be present for a weapon to be deemed
semiautomatic. A weapon clearly designed to be semiautomatic but lacking a
firing pin, bolt carrier, gas tube, or some other crucial part of the firearm is not
semiautomatic for purposes of Penal Code sections 30515 [definition of “assault
weapon], 30600 [ban on manufacture, transport, sale] and 30605(a) [ban on
possession] and 30900 [duty to register].

11 C.C.R. § 5471(hh).

In other words, if a rifle lacks a firing pin, bolt carrier, gas tube, or some other crucial
part, it is not “semiautomatic” and is thus not an “assault weapon.” It may be sent to the
manufacturer for repair and returned to the customer without being subject to the assault-weapon
restrictions.

The new regulations go on to state: “With regards to an AR-15 style firearm, if a

complete upper receiver and a complete lower receiver are completely detached from one
another, but still in the possession or under the custody or control of the same person, the firearm
is not a semiautomatic firearm.” § 5471(hh)(3). Not being “semiautomatic,” such disassembled
rifle is not an assault weapon.

Under the above, if a customer detaches the upper receiver from the lower receiver and
ships them in two separate boxes, and/or if the manufacturer repairs and then returns the rifle in
the same manner, it would not be considered an assault weapon.

Finally, the regulations provide: “A stripped AR-15 lower receiver, when sold at a
California gun store, is not a semiautomatic firearm. (The action type, among other things, is
undetermined.)” § 5471(hh)(4). This is uncontroversial since a lower receiver is not a rifle and
has none of the definitional characteristics of an assault weapon.

14
 Accordingly, if a customer sends in just the lower receiver (which need not be stripped),
it can be repaired and returned like an ordinary firearm (which is defined to include the frame or
receiver).

Fixed magazine

A semiautomatic rifle is not an “assault weapon” if it has a fixed magazine. §

30515(a)(1). “For purposes of this section, ‘fixed magazine’ means an ammunition feeding
device contained in, or permanently attached to, a firearm in such a manner that the device
cannot be removed without disassembly of the firearm action.” § 30515(b) (emphasis added).
“‘Contained in’ means that the magazine cannot be released from the firearm while the action is
assembled. For AR-15 style firearms this means the magazine cannot be released from the
firearm while the upper receiver and lower receiver are joined together.” 11 C.C.R. § 5471(k).
Further:

“Disassembly of the firearm action” means the fire control assembly is detached
from the action in such a way that the action has been interrupted and will not
function. For example, disassembling the action on a two part receiver, like that
on an AR-15 style firearm, would require the rear take down pin to be removed,
the upper receiver lifted upwards and away from the lower receiver using the front
pivot pin as the fulcrum, before the magazine may be removed.

§ 5471(n).

Thus, as long as an AR-type rifle has a device installed that requires it to be

“disassembled” per the above to remove the magazine, it can have any of the listed features that
would be banned if it has a detachable magazine. Devices are on the market such as the Patriot
Mag Release that prevent the magazine from being detachable until the upper and lower receivers
are open, which renders AR-type rifles into fixed-magazine types.15

Based on the above, if what would otherwise be an “assault weapon” is shipped to and/or
returned from the manufacturer (a) without any listed features such as the pistol grip, (b) without
a firing pin, bolt carrier, or other crucial part for firing semiautomatically, or with the upper and
lower receivers detached, or just as a lower receiver, or (c) with a fixed magazine, it would not be
considered an assault weapon, thus minimizing risk to the owner and the manufacturer.

Massachusetts: Complaint Today, Non-Compliant Tomorrow

M.G.L. 140 § 121, which was passed in 1998 and amended in 2014, provides in part:

15
http://www.vocativ.com/336968/this-company-already-knows-how-to-skirt-new-assault
-weapons-laws/; http://www.bulletbutton.com/.

15
 “Assault weapon”, shall have the same meaning as a semiautomatic assault
weapon as defined in the federal Public Safety and Recreational Firearms Use
Protection Act, 18 U.S.C. section 921(a)(30) as appearing in such section on
September 13, 1994, and shall include, but not be limited to, any of the weapons,
or copies or duplicates of the weapons, of any caliber, known as: . . . (iv) Colt
AR-15 . . . . (Emphasis added.)

The expired federal law, 18 U.S.C. § 921(a)(30)(B), also defined the term as “a
semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of” the
following:

(i) a folding or telescoping stock;

(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a flash
suppressor; and
(v) a grenade launcher . . . .

During the legislative debates in Congress, and as administered by ATF when the law
was effective, a rifle that was not named in the definition, but that had similarities to one that was
named, was considered a “copy or dupliate” if it had at least two of the above generic features. If
it had only one of the above features, such as a protruding pistol grip, it was not considered a
copy or duplicate and thus not an “assault weapon.”

Massachusetts followed ATF’s lead in applying the one-feature/two feature tests.

Massachusetts-compliant rifles could have one listed feature, but not two. That would change
overnight.

Attorney General Maura Healey’s Enforcement Notice

Until 2016, the law has been administered such that a rifle is not an “assault weapon” if it
does not meet the federal two-part features test. Under that test, a semiautomatic rifle with a
detachable magazine may have a protruding pistol grip as long as it does not have any other of
the listed features.

The Attorney General’s Enforcement Notice issued on July 20, 2016, purports to add the
following gloss to the terms “copies or duplicates”:

1. Similarity Test: A weapon is a Copy or Duplicate if its internal

functional components are substantially similar in construction and configuration
to those of an Enumerated Weapon. Under this test, a weapon is a Copy or
Duplicate, for example, if the operating system and firing mechanism of the

16
 weapon are based on or otherwise substantially similar to one of the Enumerated
Weapons.

2. Interchangeability Test: A weapon is a Copy or Duplicate if it has a

receiver that is the same as or interchangeable with the receiver of an Enumerated
Weapon. A receiver will be treated as the same as or interchangeable with the
receiver on an Enumerated Weapon if it includes or accepts two or more operating
components that are the same as or interchangeable with those of an Enumerated
Weapon. Such operating components may include, but are not limited to: 1) the
trigger assembly; 2) the bolt carrier or bolt carrier group; 3) the charging handle;
4) the extractor or extractor assembly; or 5) the magazine port.16

It is unclear what the words “substantially similar” add to “copy or duplicate,” except to
dilute the latter terms. Consider the commonplace use of “copy or duplicate” as applied to a
copier or duplicating machine – it makes exact images, not just similar ones. It is unclear what
level of specificity is included in “the operating system and firing mechanism” of a firearm.
Moreover, “the operating system and firing mechanism” of a firearm could be “substantially
similar” to that of another, yet the two could be radically different in configuration and otherwise.

The “interchangeability test” provides more guidance to the extent two receivers can
accept the same parts. However, applying that test to just two interchangeable parts, including
such an insignificant part as a charging handle, goes far beyond the statutory definition of one
entire firearm being a copy or duplicate of another, under which all of the significant parts would
be interchangeable.

The Enforcement Notice goes further and states that if the firearm “as manufactured or
originally assembled” is a copy or duplicate, it remains a copy or duplicate “even if it is altered
by the seller,” such as “by pinning the folding or telescoping stock in a fixed position, by
removing the pistol grip, by removing a bayonet mount or flash suppressor, or by preventing the
weapon from accepting a detachable magazine.” One would think that at some point changes
would render a firearm no longer a copy or duplicate of another. Note that this refers to
alterations by the seller of a firearm as manufactured – it does not say that a rifle as manufactured
that never had the features that would make it a copy, even though it has some similar features,
would nonetheless be a copy.

The Notice adds that “[p]urely cosmetic similarities to an Enumerated Weapon, such as
finish, appearance, or shape of the stock, or appearance or shape of the rail, will not be treated as
relevant . . . .” This is significant, in that the appearance and shape of modern sporting rifles,
such as the one-piece shoulder stock with pistol grip, does not make them copies or duplicates of
named rifles.

16
Office of the Attorney General, “Enforcement Notice: Prohibited Assault Weapons”
(July 20, 2016), http://www.mass.gov/ago/public-safety/assault-weapons-guidance.pdf.

17
 The Enforcement Notice states that it is not retroactive: “The Guidance will not be
applied to future possession, ownership or transfer of Assault weapons by dealers, provided that
the dealer has written evidence that the weapons were transferred to the dealer in the
Commonwealth prior to July 20, 2016, and provided further that a transfer made after July 20,
2016, if any, is made to persons or businesses in states where such weapons are legal.” Nor does
it apply to individual gun owners in possession of firearms obtained before that date. No
reference is made to manufacturers.

It is noteworthy that the statute in question is a criminal law passed by the legislature that
cannot be expanded or disregarded based on a policy decision by the executive branch. The
Attorney General refers to the document as an Enforcement Notice. To the extent the Attorney
General enforces the criminal law, it provides notice of how its discretion will be exercised, but it
cannot be considered a binding statement of the law.

The Enforcement Notice is being challenged in Pullman Arms v. Healey, Civil No.
4:16-cv-40136-TJH (D. Mass.) and in Worman v. Baker, Civil No. 17-10107-WGY (D. Mass.).

A Rifle With a Fixed Magazine is not an “Assault Weapon”

Regardless of how the Enforcement Notice is applied, it is still possible to make a

compliant rifle. The statute explicitly states that “the term assault weapon shall not include: . . .
(vi) any semiautomatic rifle that cannot accept a detachable magazine that holds more than five
rounds of ammunition . . . .” § 121. A rifle with a fixed magazine cannot hold a detachable
magazine of any kind, regardless of whether it holds five rounds or any other number. Further,
since the rifle would be excluded from the definition of assault weapon, it may have any of the
features that would be prohibited on a semiautomatic rifle with a detachable magazine. The issue
then becomes what design would be a fixed magazine rather than a detachable magazine. See
discussion above on California’s requirement of a fixed magazine.

18
 APPENDIX: ATF CLASSIFICATION LETTERS

1. Suppressor for muzzleloading rifle

2. Smooth-bore firearm

3. Arm brace

19
 U.S. Department of Justice

Bureau of Alcohol, Tobacco,

Firearms and Explosives

Martitubllrg. WI' 15405

www.nt[gov

907010:EEE
33111303393

Mr. Stephen P. Halbrook

3925 Chain Bridge Road
Suite 403
Fairfax, VA 22030

Dear Mr. Halbrook:

This is in response to your letter to the Firearms Technology Industry Services Branch (FTISB),
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), with an accompanying sample of a
Traditions, VORTEK Strikefire model, in-line muzzle loading, antique firearm, manufactured in
.50 caliber designed to use #209 shotshell primers with a sound moderating component attached.
On behalf of your client SilencerCo, you request FTISB to determine if the submitted item is
classified as a "firearm" per the provisions of the National Firearms Act of 1934 (NFA) or the
amended Gun Control Act of 1968 (GCA).

As you know the Gun Control Act of 1968 (GCA), 18 U.S.C. § 92 I(a)(3), defines "firearm" as:
(A) allY weapoll (inclUding a starter glln) which will or is designed to or may readily be
cOllverted to expel a projectile by the actioll ojan explosive; (B) the frame or receiver ojany
such weapon; (C) any firearm mlifjler orfirearm silencer; 01' (D) any destructive device. Such
term does not include an antique firearm.

Also, the National Firearms Act (NFA), 26 U.S.C. § 5845(a) defines "firearm", as: (l) a
shotglln having a barrel 01' barrels ojless than 18 inches in length; (2) a weapon made from a
shotglln ifsllch weapon as modified has an overall length oj less than 26 inches or a barrel or
barrels oJless than 18 inches in length; (3) a rifle having a barrel 01' barrels oJless thall16
inches in length; (4) a weapon madefrom a rifle ifsuch weapon as modified has all overall
length oJless than 26 inches or a barrel 01' barrels oJless than 16 inches ill length; (5) allY other
weapon. as defilled in sllbsection (e); (6) a machinegun; (7) any silencer (as defined ill section
921 oJtitle 18. United States Code); alld (8) a destructive device. The term Jirearm' shall not
include an alllique firearm or allY device (other thall a machinegun or destnlctive device) which.
althollgh designed as a weapon. the SecrelOlY finds by reason oJthe date oJits mamifacture.
vallie. desigll. alld other characteristics is primarily a collector's item alld is Ilot likely to be used
as a weapon.

Additionally, the GCA, 18 U.S.C. § 921 (a)(24) defines the terms "firearm silencer" and
"firearm muffler" as: any deviceJor silencing. nllifjling, or diminishing the report oja portable
Mr. Stephen P. Halbrook Page 2

firearm. illellldilig any combillation ofparis. designed or redesiglled. alld illtellded for lise ill
assemblillg or fabricatillg a firearm silellcer orfirearm mlifller. alld allY part illtellded ollly for
lise ill sllch assembly orfabricatioll.

Also, the GCA § 92I(a)(16) defines the tenn "antique firearm" as: (A) allY firearm (illeludillg
allY firearm with a matchlock.flilltlock. percussioll cap. or simi/ar type ofigllitioll system)
mamifactured ill or before J898; or (B) any replica ofallY firearm described ill subparagraph
(A) ifS/lell replica-(i) is 1I0t desiglled or redesiglled for /lsillg rimfire or cOllvellliollal cellte/fire
fixed ammllllitioll. or (ii) IIses rillifire or cOllvelltiollal cellle/fire fixed ammllllitioll which is 110
10llger malllifactured ill the Vllited States alld which is lIot readily available III the ordillOlY
challlleis ofcommercial trade; or (C) allY mllzzle loadillg rifle. muzzle loadillg shotgull. or
mllzzle loadillg pistol. which is desiglled to lise black powder. or a black powder substitllte. alld
which call1lot IIsefixed ammullitioll. For pmposes ofthis subparagraph. the term "alltiqlle
firearm"shallllot illclude allY weapoll which illcO/porates afirearmji-ame or receiver. allY
firearm which is cOllverted illto a muzzle loadillg weapoll. or allY mllzzle loadillg weapoll which
call be readily cOllverted to fire fIXed ammllllitioll by replacillg the barrel. bolt. breech block. or
allY combillatioll thereof

Our Branch examined the submitted antique fireann and sound moderating device, which is
identified below and pictured in the enclosure. FTISB found it to incorporate the following
characteristics and approximate measurements:

Traditions, VORTEK Strlkefire model RS61140NS, black powder, muzzle loading rifle, In
.50 caliber designed for use with #209 shots hell primers, manufactured in Spain by
ARDESA

Overall Length: 45-114 inches

Height: 6-112 inches
Frame Construction: Non-ferrous mctal
Weight: 6.9Ibs .
Caliber: .50 caliber, 1128", black powder or pyrodex only
Safety Features: Positive manually operated safety
Barrel: Steel, 20 inch length, remanufactured with pennanentIy attached sound
moderating device

Sound Moderator Component

Length: 9-5/8 inches

Rear End Cap: Stainless Steel, pennanently welded to the barrel by 360 degrees of fusion
welding and uncommonly threaded
Spacers & Baffles: Welded to the rear end cap and welded to each other
Forward End Cap: Non-ferrous metal
Tube: . Non-ferrous metal, outer tube, 2.48 inch diameter
Clear Tube: Plastic, used for loading
Mr. Stephen P. Halbrook Page 3

During the examination of the submitted sample and background information, FTISB found that
the sound moderator incorporates the following manufacturing operations and design features
which have been made as indicated by SilencerCo in the accompanying attachments:

1. The rear end cap and barrel are threaded, pinned, attached utilizing Rocksett brand high
temperature thread locking adhesive and welded by a 360 degree circumferential fusion
weld.

2. Starting with a spacer, followed by alternating baffles and spacers, each spacer and baffle
is permanently attached to the outer tube and to each other individually, via fusion
welding.

3. The outer tube and forward end cap are attached utilizing proprietary threading and
bonded together with Rocksett high temperature thread locking adhesive. The forward
end cap is not welded to the outer tube of the sound moderator. The accompanying
attachment describes this use of adhesive is due to material incompatibility and therefore
the outer tube and forward end-cap are not capable of being fusion welded.

4. Baffles and spacers proprietarily designed and not used in any firearm silencer or firearm
muffler made by, or known to SilencerCo, and not intended for use in a firearm silencer
or firearm muffler.
After examination ofthe submitted sample, our Branch has determined that the subject sound
moderator attached to the host antique firearm would not meet the definition of a "firearm"
presented in the NFA or the GCA because it is not a device for reducing the report of a portable
firearm. However, if any of the uniquely sized parts intended only for use in this sound
moderator, were used for any other device, it may change this classification and be subject to
review.

Additionally, the removal of the permanently affixed sound moderating device or any of its
components, from the host antique firearm may result in the "making" of a firearm silencer under
the GCA and NFA, and consequently must be registered with the National Firearms Act Branch.
Also, if 8 sound moderator unit were to be fabricated separately it may be the making of a
firearm silencer.

As previously stated, the removal of the sound moderator, or parts of the sound moderator, may
result in the making of a silencer or a combination of parts designed and intended for use in
assembling or fabricating a firearm silencer; and thus a "firearm" as defined in 26 U.S.C. §
5845(a)(7). FTISB personnel also noted the adhesive used to attach the forward end cap is not
an approved method of permanent attachment. Please be aware, prior to such removal, an
unlicensed individual would be required to obtain an approved ATF Form 1 (Application to
make and register a firearm) and pay the $200 making tax prior to any such redesign ofthe
subject sound moderator.

You should also be aware that this determination is based on the sample as submitted. If the
design, unique dimensions, configuration, method of construction, or materials used were to be
changed, this classification would be subject to review.
Mr. Stephen P. Halbrook Page 4

Please provide our Branch with a FedEx account number or a UPS shipping label addressed to
yourselfso that we may return your samples. We caution that FTISB does not ship via the U.S.
Postal Service.

We thank you for your inquiry and trust the foregoing has been responsive to your evaluation
request.

Sincerely,

~~04
Michael R. Curtis
Chief, Firearms Technology Industry Services Branch
 U.S. Department of Justice
Bureau of Alcohol, Tobacco,
Fireanns and Explosives

Martinsburg, WV 25405

www.atf.gov

907010: DAS~&
SEP 1 3 201 6 3311 /305186 •

O.F. Mossberg & Sons, Inc.

7 Grasso Ave
P.O.Box497
North Haven, CT 06473-3237

This refers to your letter to the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF), Firearms Technology Industry Services Branch (FTISB). Specifically, you
requested confirmation that a particular firearm is not subject to National Firearms Act
(NFA) provisions.

As background, the amended Gun Control Act of 1968, 18 U.S.C. § 921 (a)(3), defines
the term "firearm" to include ... any weapon (including a starter gun) which will or is
designed to or may be readily converted to expel a projectile by the action of an
explosive ...[and} ... the frame or receiver of any such weapon ....

Further, the NF A defines "firearm" to include ... a shotgun having a barrel or barrels of
less than 18 inches in length .. .{andJ ... any other weapon. as defined in subsection {e) ....
(See 26 U.S.C. §§ 5845(a)(l) and (5).)

Finally, the NFA, 26 U.S.C. § 5845(e), defines "any other weapon" as follows :

...any weapon or device capable of being concealed on the person from which a shot can
be discharged through the energy of an explosive. a pistol or revolver having a smooth
bore designed or redesigned to fire a fixed shotgun shell. weapons with combination
shotgun and rifle barrels 12 inches or more. less than 18 inches in length. from which
only a single discharge can be made from either barrel without manual reloading. and
shall include any such weapon which may be readily restored to fire. Such term shall not
include a pistol or revolver having a rifled bore. or rifled bores. or weapons designed.
 Page 2

made. or intended to be fired from the shoulder and not capable of firing fIXed
ammunition.

In your letter, you asked about the classification of a fireann that (l) has never been
assembled as, or has been made from a shotgun, (2) has an overall length exceeding 26
inches, and (3) has a barrel length of 14 inches.

Certain fireanns, having attributes similar to that which you inquire about, have been
previously classified by our Branch, such as the weapon described below:
• Utilizes a shotgun-type receiver that has never had a shoulder stock attached.
• Fitted with a "bird's head" grip in lieu of a shoulder stock.
• Pump action.
• 12 gauge, 14-inch smooth-bore barrel.
• Overall length of 26.5 inches.

This weapon, as described and depicted above, is a "firearm" subject to GCA provisions;
however, it is not a "firearm" as defined by the NF A. Please note that if the subject
firearm is concealed on a person, the classification with regard to the NF A may change.

However, we cannot provide a formal determination on the weapon described in your

correspondence without examining a physical sample.

We trust that the foregoing has been responsive to your request. If we can be of any
further assistance, please contact us.

Jincerely yours,

~1f~iSc;!
Chief, Firearms Technology Industry Services Branch
 U.S. Department of Justice

Bureau of Alcohol, Tobacco,

Fireanns and Explosives

Assistant Director

Washington, DC 20226
www.atf.gov

HAR Z1 2017
90000:GM
5000

Mark Barnes, Esq.

Outside Counsel to SB Tactical, LLC
1350 Eye St. NW, Suite 260
Washington, D.C. 20005

Re: Reversal of ATF Open Letter on the Redesign of "Stabilizing Braces"

Dear Mr. Barnes:

I am writing in response to your letter dated January 5,2017, to Thomas Brandon, the Acting
Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) on behalf of your
client SB Tactical, LLC. Your letter requests that ATF reconsider its position articulated in
ATF's "Open Letter on the Redesign of 'Stabilizing Braces'" issued on January 16,2015
(hereafter, the "Open Letter"). The Open Letter made it clear that stabilizing braces are perfectly
legal accessories for large handguns or pistols. However, when employed as a shoulder stock
with a firearm with a barrel less than 18 inches in length, the result would be making an
unregistered NFA firearm. Your letter challenges the legal correctness of this latter conclusion
and asks that ATF disavow it. Since receiving your letter we have re-examined the conclusions
contained in the Open Letter. Although we stand by those conclusions, we agree that the Open
Letter may have generated some confusion concerning the analytical framework by which those
conclusions were reached. Thank you for the opportunity to clarify our analysis.

Background

As you are aware, the NFA, 26 USC § 5845, defines "firearm," in relevant part, as "a shotgun
having a barrel or barrels of less than 18 inches in length" and "a rifle having a barrel or barrels
of less than 16 inches in length." That section defines both "rifle" and "shotgun" as "a weapon
designed or redesigned, made or remade, and intended to be fired from the shoulder .... "
Pursuant to the plain language of the statute, A TF and its predecessor agency have long held that
a pistol with a barrel less than 16 inches in length and an attached shoulder stock is an NF A
"firearm."
 -2-

Mark Barnes, Esq.

In 2012, ATF detennined that a specific ann-stabilizing brace-marketed as "a shooter's aid" to
assist in shooting large buffer tube equipped pistols-was not a shoulder stock and therefore
could be attached to a fireann without that act constituting the making of an NFA frreann.
Following this detennination, the fireanns industry and members of the public sought
clarification on whether the stabilizing brace may lawfully be used as a shoulder stock. To
respond to these inquiries, ATF published the January 2015 Open Letter. In that letter ATF
confinned its previous detennination that the use of stabilizing braces, as designed, would not
create a short-barreled rifle when attached to a fireann. ATF also advised, however, that because
the stabilizing brace was not designed as a shoulqer stock, ''use'' of the device as a shoulder stock
would constitute a "redesign" of the frreann to which it was attached, resulting in the
classification of that fireann as a short-barreled rifle.

Your letter asserts that ATF' s analysis of "use" is untenable because the mere use of an
otherwise lawfully possessed item for a purpose for which it was not designed does not
constitute "redesign" as defined in the NFA. You support this argument with analogies
involving items that are not frreanns (i.e., misuse of a screwdriver or hammer), and by
distinguishing a prior ATF ruling, ATF Ruling 95-2, on which the Open Letter relies in its
analysis of use. The unstated, but logical, result of your argument is that stabilizing braces,
although designed, intended and marketed for use only to shoot from the ann, could be attached
to a frreann and used as a shoulder stock without falling within the purview of the NF A. Under
certain circumstances, such an absolute result is simply not consistent with the letter and intent of
the NFA, as we illustrate in the next paragraph.

An accessory that can be attached to a fireann in anyone of several configurations must be

evaluated to detennine whether attaching it in each of those configurations constitutes "making"
an NFA fireann under both objective and subjective analyses. With respect to stabilizing braces,
ATF has concluded that attaching the brace to a handgun as a foreann brace does not "make" a
short-barreled rifle because in the configuration as submitted to and approved by FATD, it is not
intended to be and cannot comfortably be fired from the shoulder. If, however, the
shooter/possessor takes affinnative steps to configure the device for use as a shoulder-stock-
for example, configuring the brace so as to pennanently affix it to the end of a buffer tube,
(thereby creating a length that has no other purpose than to facilitate its use as a stock), removing
the ann-strap, or otherwise undennining its ability to be used as a brace - and then in fact shoots
the fireann from the shoulder using the accessory as a shoulder stock, that person has
objectively "redesigned" the fireann for purposes of the NFA. This conclusion is not based upon
the mere fact that the fire ann was fired from the shoulder at some point. Therefore, an NF A
fireann has not necessarily been made when the device is not re-configured for use as a shoulder
stock - even if the attached fireann happens to be frred from the shoulder.
 -3-

Mark Barnes, Esq.

To the extent the January 2015 Open Letter implied or has been construed to hold that incidental,
sporadic, or situational "use" of an arm-brace (in its original approved configuration) equipped
firearm from a firing position at or near the shoulder was sufficient to constitute "redesign," such
interpretations are incorrect and not consistent with ATF's interpretation of the statute or the
manner in which it has historically been enforced.

In that regard, we also note that the "making" of an NF A firearm pursuant to 26 U.S.C. § 5821
includes the altering of an existing firearm such that, after the alteration, the firearm meets one
of the enumerated descriptions in 26 U.S.C. § 5845(a), whether or not that alteration is
permanent. So, for example, one "makes" a short-barreled shotgun subject to the NFA by
replacing a 20 inch barrel with a 16 inch barrel, even though that configuration may not be
permanent. Nothing in the NFA requires that the "making" be irreversible. Similarly, an item
that functions as a stock if attached to a handgun in a manner that serves the objective purpose of
allowing the firearm to be fired from the shoulder may result in "making" a short-barreled rifle,
even if the attachment is not permanent. See, Revenue Ruling 61-45. The fact that the item may
allow, or even be intended by its manufacturer for other lawful purposes, does not affect the
NF A analysis.

Again, to the extent the Open Letter was confusing, we appreciate the opportunity to clarify our
position. Thank you for your inquiry regarding this matter.

Sincerely,

Marvin G. Richardson
Assistant Director
Enforcement Programs and Services
 National Firearms Law Seminar

Section Five

Legal Ethics and Social Media: Or How I Learned to Stop Worrying and
Embrace At Least Facebook

Hon. David Newell

 Legal Ethics and Social Media: Or how I learned to stop worrying
and embrace at least Facebook
By
Hon. David Newell

I hate social media. I know, I know, how can I hate it and still write a
paper about the legal ethics surrounding the use of social media? Well, the
reason I hate it is probably the same reason many in the legal profession do.
There's a vague feeling that I am one errant click away from an appearance
before a disciplinary board. And if, like me, you think "it's funny" should be
an absolute defense for such things, these thoughts can keep you up at
night. So hopefully some exploration of the ethical pitfalls of participating in
social media can alleviate some of those concerns. As G.I. Joe famously
said, "Knowing is half the battle." Admittedly, it would be the height of
hubris to suggest that this one paper could cover all the ethical pitfalls
exhaustively, but hopefully this will give a decent overview of the various
issues while pointing readers towards additional resources.
Terms and Conditions (What this paper does and doesn't cover)
When most people think of "social media," they think of Twitter,
Facebook, Instagram, Pinterest, LinkedIn, YouTube, and Snapchat. But with
239.58 million Internet users in the United States, as of last year, it is better
to focus less on the "media" aspect of social media. 1 Consequently, this
paper focuses upon the issues attendant to how social media is used rather
than the mechanics of a particular social media service. For purposes of this
paper, "any Internet-based site where an individual determines the content
and makes the content available to others can be considered social media." 2
To the extent that the functionality of a particular platform raises unique
issues, I will try to address those in context.
Additionally, even quick research into this topic reveals that the ethics
rules have developed in reaction to the rise of technology and social media
rather than in anticipation of it. As some commentators have noted, the
American Bar Association ("ABA") Model Rules of Professional Conduct are
silent on the ethical implications of social media use and published decisions

1
See Central Intelligence Agency, The World Fact Book: United States (Jan 31, 2017).
2
Gallivan, Dusty, "Why should elected officials use social media?", The Texas Prosecutor,
March-April 2017, Vol. 47, Issue 1, available at https://www.tdcaa.com/journal/why-should-
elected-officials-use-social-media.

1
are few and far between. 3 And ultimately, each jurisdiction is different, even
though most have adopted some version of the ABA Model Rules. With this
in mind, I will rely primarily upon the ABA Model Rules as well as select
opinions from various states. If you are curious about how your jurisdiction
treats the use of social media under your jurisdiction's ethics rules, hopefully
this paper will provide you with a starting point for further research.
Attorneys should consult the rules and opinions applicable to their respective
jurisdictions.
Finally, there are obviously ethical implications to advertising on social
media. 4 Similarly, using social media to procure information also raises
ethical concerns. However, both topics are broad enough to merit their own
separate discussions. Further, these topics are admittedly a little beyond my
expertise. As such, I do not intend to discuss them in this paper in great
depth, though I will highlight some of the ethical concerns attendant to
these areas as necessary for context. Practitioners are advised to do their
own research on these topics.
Install Updates Now? (Competent Representation)
It is important to note that even though ethics rules regarding a
lawyer's duty of competent representation generally do not necessarily refer
to the use of social media, they are likely to apply to use of social media
within that representation. For example, Rule 1.1 of the Model Rules sets
out that competent representation "requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
5
representation." Comment 8 to this rule goes on to caution attorneys to
"keep abreast of changes in the law and its practice, including the benefits
and risks associated with relevant technology." 6 The D.C. Bar has stopped
short of advising that social media is necessary in every legal representation,
but it has noted that keeping abreast of such changes may be necessary to
exercise "informed professional judgment reasonably necessary to carry out

3
See Jessica Weltge and Myra McKenzie-Harris, "Ethics & Professional Responsibility
Committee Midwinter Meeting" American Bar Association Section of Labor and Employment
Law (March 24, 2017) available online at
https://www.americanbar.org/content/dam/aba/events/labor_law/2017/03/ethics/papers/m
yra_paper.authcheckdam.pdf citing Ethan J. Wall, Navigating the Uncharted Waters of Social
Media Marketing and Ethics, A.B.A. LAW PRACTICE TODAY (June 2012).
4
See e.g. California Ethics Opinion 2012-186 available online at
http://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL%202012-
186%20%2812-21-12%29.pdf. (noting that lawyer advertising rules in California apply to
social media posts).
5
MODEL RULES OF PROF'L CONDUCT R. 1.1.
6
MODEL RULES OF PROF'L CONDUCT R. 1.1, Comment 8.

2
the representation." 7 As one commentator noted for the Dallas County Bar
Association, "as 'digital digging' becomes the norm, it becomes more difficult
for an attorney to say she's met the standard of competence when she's
ignored social media avenues." 8
Practitioners should take away at least two things from this
observation. First, practitioners in some jurisdictions may be expected to
know more about social media than they actually know if it might assist in
the representation of a client. In other words, lawyers may have a duty to
learn how to use social media effectively despite any misgivings they might
have about the uncertainty regarding applications of ethics rules. Second,
it's a good idea to view how you use social media through the lens of a
possible ethics complaint. Just as you stare into the abyss, the abyss stares
into you. If you are expected to engage in "digital digging" then you can
expect someone might also engage in digital digging against your client or
you.
Save to the Cloud? (Unauthorized Practice Violations)
Another downside to the lack of centralized ethics rules regarding the
use of social media is the potential to do something in your jurisdiction that
may run afoul of an ethics rule in another. 9 After all, most people who use
social media tend to have a majority of connections or communications in
their home jurisdiction. It is easy to forget that your communication reaches
beyond the territorial borders you are familiar with.
Most states, and the Model Rules, contain a prohibition against the
practice of law in jurisdictions where they are not admitted to practice. 10 As
you might expect, a lawyer who engages in unauthorized practice in
violation of ethics rules can be disciplined in a jurisdiction where he or she is
admitted to practice or in the jurisdiction where the violation occurs. 11
Realistically, it seems unlikely that a lawyer might be hauled over to another
state for disciplinary purposes for minor infractions, so obvious mistakes
may receive less scrutiny. But practitioners should always be mindful of the

7
D.C. Bar Ethics Advisory Opinion 371 available online at https://www.dcbar.org/bar-
resources/legal-ethics/opinions/Ethics-Opinion-371.cfm.
8
John Browning, Legal Ethics and Social Media: It's Complicated, Dallas Bar Headnotes
(December 2013) available online at http://www.dallasbar.org/book-page/legal-ethics-and-
social-media-it%E2%80%99s-complicated.
9
Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath, "10 Tips for Avoiding Ethical
Lapses When Using Social Media" Business Law Today (2014) available online at
https://www.americanbar.org/publications/blt/2014/01/03_harvey.html.
10
See e.g. MODEL RULES OF PROF'L CONDUCT R. 5.5.
11
See e.g. MODEL RULES OF PROF'L CONDUCT R. 8.5.

3
potential problems and avoid online activities that could be construed as the
unauthorized practice of law.
Similarly, some social media platforms, think Martindale-Hubbell,
SuperLawyers, LinkedIn and Avvo, have functionality that allows attorneys
to use testimonials, endorsements, and ratings. But just because the
functionality is there doesn't mean that it's kosher in every state as the
designers are more concerned with whether the site works not what you do
with the information. Be mindful that some jurisdictions place ethical
restrictions upon testimonials and endorsements. Others require additional
disclaimers if you want to rely upon this type of advertising. For example,
the South Carolina Bar issued an Ethics Advisory opinion that explained that,
consistent with South Carolina ethics rules, lawyers are responsible for all
communications they place or disseminate, or ask to be placed or
disseminated for them, regarding their law practice. 12 So, if a lawyer wants
to "claim" the ratings, endorsements, and testimonials from a particular
social media site, some jurisdictions may deem that act as the lawyer taking
responsibility for that content and must comply with local ethics rules. 13
Certainly something to think about.
Legal Catfishing (Using Dishonesty, Fraud, or Deception)
There are many ethical rules that prohibit a lawyer from making false
or misleading statements. For example, Model Rule 4.1 prohibits making
false statements of material fact to a third person in the course of
representing a client and failing to disclose a material fact when disclosure is
necessary to avoid a criminal or fraudulent act by a client. 14 When dealing
with unrepresented clients, lawyers are not supposed to hide that they are
representing an opposing party and they must make clear to unrepresented
people what the lawyer's role is. 15 And the lawyer is not supposed to give
legal advice to an unrepresented person beyond advising the unrepresented
person to secure counsel. 16 In that vein, lawyers are supposed to respect
the rights of a third person by refraining from using methods that might

12
South Carolina Ethics Advisory Opinion 09-10 (citing to Rule 7.1 of the South Carolina
Rules of Professional Conduct) available online at
https://www.scbar.org/media/filer_public/71/a8/71a8a070-1b91-49da-be08-
6173bba607fa/09-10.pdf.
13
Id. (noting that a lawyer who assumes responsibility for the content of a listing on a social
networking site must ensure that the information complies with Rules 7.1 and 7.2 of the
South Carolina Rules of Professional Conduct).
14
MODEL RULES PROF'L CONDUCT R. 4.1.
15
MODEL RULES PROF'L CONDUCT R. 4.3.
16
Id.

4
violate that person's legal rights. 17 Lawyers should not make false or
misleading statements about the lawyer or the lawyer's services. 18 Lawyers
must refrain from suggesting expertise in a particular area of law, but if the
lawyer wants to hold him or herself out as an expert, he or she often has to
comply with certain disclosure requirements. 19 And, of course, a lawyer
must maintain the integrity of the profession by not engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation. 20
These ethical rules seem on a collision course with the very thing that
draws many people to use social media, the ability to either communicate
anonymously or at the very least pretend to be something you aren't.
Creating a profile might suggest or imply expertise where the lawyer may
not have intended. For example, according to the New York State Bar
Association, listing practice areas under a heading "specialties" may run
afoul of legal specialization requirements. 21
Similarly, posting comments or blogging about particular issues may
cross the line into unwittingly giving legal advice. One distinction,
recognized by the D.C. Bar, may be a helpful touchstone to keep in mind. In
the context of lawyer participation in a chat room, the D.C. Bar recognized
that providing legal information may be permissible, but providing legal
advice would not. 22 According to the D.C. Bar, legal information involves
discussion of legal principles, trends, and considerations, while legal advice
offers recommendations tailored to the unique facts of a particular person's
circumstances. 23 Lawyers would also be advised to look for disclaimers on
such sites that clarify to third persons that the discussion is for informational
purposes rather than to provide legal advice. If no such disclaimer appears,
the lawyer can always provide their own by beginning or ending any
comments or statements with his or her own disclaimer. Doing so may go a
long way to ensuring the lawyer does not inadvertently create an attorney-
client relationship where none was intended.
Conversely, lawyers should also avoid communicating with a person
who is already represented by a lawyer regarding the subject of the

17
MODEL RULES PROF'L CONDUCT R. 4.4.
18
MODEL RULES PROF'L CONDUCT R. 7.1.
19
MODEL RULES OF PROF'L CONDUCT R. 7.4.
20
MODEL RULES OF PROF'L CONDUCT R. 8.4.
21
NEW YORK STATE BAR ETHICS OPINION 972 available online at
http://www.nysba.org/CustomTemplates/Content.aspx?id=28101.
22
D.C. Bar Ethics Advisory Opinion 316 available online at https://www.dcbar.org/bar-
resources/legal-ethics/opinions/opinion316.cfm.
23
Id.

5
representation. 24 This rule also applies to agents of the lawyer such as staff
members or investigators. 25 The fact that the communication occurs over
the Internet on social media does not alter the nature of the communication.
And this ethical restriction may also include simply sending a "friend
request." For example, the San Diego County Bar Association has issued an
ethics opinion interpreting the California Rules of Professional Conduct as
prohibiting such requests by a lawyer seeking a social media connection to
gain access to private information of an entity already represented by
counsel. 26 However, simply viewing publicly accessible social media content
without engaging in any "communication" does not seem to violate this type
of ethical restriction. 27
Privacy Settings (Confidentiality)
While it seems almost too obvious to point out, use of social media
carries a risk of revealing confidential information. Lawyers owe a duty of
confidentiality to past, present, and even future clients. 28 Consequently,
lawyers must obtain informed consent from a client before posting
information about a client online. 29 Such disclosure is not impliedly
authorized because disclosure is being made to promote the lawyer or the
firm rather than to represent the client. 30
One way that lawyers might run afoul of this could be in response to
negative reviews on a consumer website. In South Carolina, for example,
the South Carolina Supreme Court sanctioned a lawyer for ethical violations
including the disclosure of information about a client to vindicate his prior
representation. 31 If you find yourself compelled to post "the other side of

24
MODEL RULES OF PROF'L CONDUCT R. 4.2.
25
MODEL RULES OF PROF'L CONDUCT R. 8.4(a).
26
San Diego County Bar Association Legal Ethics Opinion 2011-2 available online at
https://www.sdcba.org/index.cfm?pg=LEC2011-2.
27
See e.g. Oregon State Bar Ethics Opinion 2013-189 available online at
http://www.osbar.org/_docs/ethics/2013-189.pdf.
28
MODEL RULES OF PROF'L CONDUCT R. 1.6 (current clients); MODEL RULES OF PROF'L CONDUCT R.
1.9 (former clients); MODEL RULES OF PROF'L CONDUCT R. 1.18 (prospective clients).
29
See American Bar Association Formal Opinion 10-457 (noting that specific information that
identifies current or formal clients or the scope of their matters may be disclosed as long as
the clients or former clients give informed consent) available online at
https://www.americanbar.org/content/dam/aba/migrated/2011_build/professional_responsi
bility/ethics_opinion_10_457.authcheckdam.pdf.
30
Id.
31
Matter of Lord, 807 S.E.2d 696, 698-99 (S.C. 2017).

6
the story" as this lawyer in South Carolina did, consider stepping away from
the keyboard. 32
However, the Virginia Supreme Court has noted that a lawyer may
have some protection from ethics violations in the First Amendment. There,
the Virginia State bar sought to sanction a lawyer who had blogged about
concluded public judicial proceedings. 33 But notably, the attorney in that
case had only disclosed "truthful information made in a public judicial
proceeding." 34 In that regard, he was only repeating information that other,
non-lawyers would have been permitted to repeat based upon access to
public court records for proceedings that had already concluded. Arguably,
this is not really a disclosure of confidential information at all, so this type of
precedent could provide only a very limited exception.
"Friending" a Judge
Most ethical rules include some prohibition against ex parte
communications with a judge. 35 Such communication restrictions are
obviously designed to specifically target communication during a particular
proceeding or influence a particular outcome in a proceeding. 36 Practically
speaking, most attorneys interact with judges on a social basis without
running afoul of ethical rules. But lawyers should be mindful how social
media connections can quickly create an appearance of ex parte influence
even if none was ever intended.
The ABA has concluded that judges may participate in online social
networking so long as the judge doesn't also run afoul of judicial cannons or
otherwise compromise the independence, integrity, and impartiality of the
judge or undermine public confidence in the judiciary. 37 Some states have
adopted this view that judges can do it, but they must be very cautious.38

32
Id. at 698 (the attorney began his responsive post on AVVO with "Here's the other side of
the story".).
33
Hunter v. Virginia State Bar ex rel. Third Dist. Committee, 744 S.E.2d 611, 620 (Va.
2013).
34
Id. at 620.
35
MODEL RULES OF PROF'L CONDUCT R. 3.5(b).
36
Id.
37
American Bar Association Formal Opinion 462 available online at
https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/f
ormal_opinion_462.authcheckdam.pdf.
38
See e.g. Connecticut Committee on Judicial Ethics Informal Opinion 2103-16 available online
at http://www.jud.ct.gov/Committees/ethics/sum/2013-06.htm; New York State Unified
Court System Advisory Committee on Judicial Ethics Opinion 13-29 (noting that the status
of being a "Facebook friend" without more is an insufficient basis to require recusal)
available online at http://www.nycourts.gov/ip/judicialethics/opinions/13-39.htm; Maryland

7
At least one court of appeals in Texas has determined that simply showing
that the trial judge is a friend of a victim's father on Facebook was
insufficient to show bias as a basis for recusal. 39 But other states, such as
Florida, have concluded that judges cannot friend lawyers on Facebook if
that lawyer might appear before the judge. 40 Practitioners (and judges) are
well-advised to know where their jurisdiction of practice falls on the issue
before sending or accepting such a request.
Freedom of Speech (Just Watch What You Say)
As alluded to above, even if there is some concern that communication
on social media runs afoul of ethical rules, there may be some room for
protection under the First Amendment. Where a lawyer is posting generally
about already public information, there does not seem to be an ethical
concern. To the extent that there is, at least one court has held that the
speech was protected by the First Amendment. 41
But the United States Supreme Court has upheld ethical prohibitions
against public comment by lawyers regarding pending cases. According to
the Supreme Court, as officers of the court, lawyers voluntarily accept a
"fiduciary responsibility" to the justice system and have a "duty to protect its
integrity." 42 Consequently, the Court held that an ethics rule prohibiting
public communication that carried a substantial likelihood of material
prejudice could prevail over a First Amendment challenge. 43 So lawyers
seeking to use social media to influence the outcome of a proceeding do not
seem likely to be able to hide behind the First Amendment.
Logging Off (Conclusion)
The Texas Bar Journal recently published an article by attorney John
Browning and the Twitter Laureate of Texas, Justice Don Willett. 44 The

Judicial Ethics Committee Opinion 2012-07 (noting that there is no rule prohibiting judges
from having Facebook "friends") available online at
https://www.courts.state.md.us/sites/default/files/import/ethics/pdfs/2012-07.pdf.
39
Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.—Dallas 2013, pet. ref'd.)
40
See e.g. Florida Supreme Court Judicial Ethics Advisory Committee Ethics Opinon 2009-20
available online at
http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/2009-
20.html;
41
Hunter, 744 S.E.2d at 620.
42
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074, 1076 (1991).
43
Id.
44
John G. Browning and Don Willett, "Rules of Engagement: Exploring Judicial Use of Social
Media" Texas Bar Journal 100-102, February 2016 available online at

8
conclusion provides advice that seems borne out by the discussion in this
paper. They advise that judges should never discuss pending cases and
before posting or communicating on social media, they should consider
whether the statement could be seen as inappropriate or conveying bias. 45 I
would submit, this is good advice for both lawyers and judges. As discussed
above, general comments about public information may allow you to enjoy
your social media experience without fear of ethical pitfalls. And it may even
result in a lot of "likes" as well.

https://www.texasbar.com/AM/Template.cfm?Section=Table_of_contents&Template=/CM/C
ontentDisplay.cfm&ContentID=32483.
45
Id. at 102.

9
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