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Media Alerts - Mahoney v. City of Seattle
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November 10, 2017
  Mahoney v. City of Seattle
Headline: The City of Seattle's "Use of Force Policy" does not violate the Seattle Police Department's police officers' Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense."

Areas of Law: Constitutional Law; Civil Rights

Issues Presented: Whether the Seattle Police Department's police officers' Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense" is violated by the City of Seattle's "Use of Force Policy."

Brief Summary: The Ninth Circuit panel affirmed the district court's holding that the City of Seattle's "Use of Force Policy" does not violate the Seattle Police Department's police officers' Second Amendment Right to use department-issued firearms for the "core lawful purpose self-defense." Approximately one hundred and twenty-five police officers from Seattle's Police Department filed suit against the City of Seattle alleging their Second Amendment right was violated by the City of Seattle's "Use of Force Policy." The Ninth Circuit panel applied a two-step inquiry and found the "Use of Force Policy" did not impose a substantial burden on the Second Amendment right to use a firearm for the core lawful purpose of self-defense. Because the "Use of Force Policy" did not impose a substantial burden, the panel applied the intermediate scrutiny test and concluded that the City of Seattle has a substantial interest in ensuring the safety of the public and its police officers. The "Use of Force Policy" permits the de-escalation of unnecessary force and prevents police officers from engaging in practices which would violate constitutional rights of citizens. Further, there is a reasonable fit between the City of Seattle's interest and ensuring the safety of the public and police officers. Therefore, the "Use of Force Policy" is constitutional.

Significance: Seattle Police Department's police officers' Second Amendment right to use department-issued firearms for the "core lawful purpose of self defense" is not violated by the City of Seattle's "Use of Force Policy." The scope of the Second Amendment right to be ar arms has been a controversial issue. This case sheds light on the constitutional right of police officers to assert their Second Amendment right to use firearms in self-defense and the interest of their employer in placing restrictions on that right.

Extended Summary: In 2012, the United States filed a civil suit against the City of Seattle alleging that Seattle Police Department's police officers were "engaged in a pattern or practice of excessive force." The parties settled, agreeing to a "Use of Force Policy" ("the Policy") which was approved by United States District Judge James L. Robart on December 17, 2013. The Policy recites, in part, "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situations, when necessary, to achieve a law-enforcement objective." The Policy provides a set of factors that officers must consider in deciding whether a proposed use of force is objectively reasonable, but also provides that officers must consider those factors only "[w]hen safe under the totality of circumstances and time and circumstances permit." Further, the Policy requires officers to reduce the need for force only "[w]hen safe and feasible under the totality of the circumstances."

Approximately one hundred and twenty-five (125) police officers from the Seattle Police Department filed suit against the City of Seattle, including the Seattle Police Department (SPD) and other entities, pursuant to 42 U.S.C. ยง 1983, alleging that the Policy was unconstitutional. The police officers brought additional claims under the Second, Fourth, Fifth, and Fourteen Amendments, alleging that the Policy "unreasonably restricts their right to use department-issued firearms for self-defense." The City of Seattle filed a motion to dismiss which was granted by the district court that concluded that the Policy did not infringe upon the police officers' Second Amendment rights. The officers appealed this decision to the Ninth Circuit that applied the de novo standard of review.

In District of Columbia v. Heller, the Supreme Court recognized "that the inherent right of self-defense has been central to the Second Amendment right." 554 U.S. 570, 628 (2008). Post Heller, the Court adopted the following two-step inquiry "to determine whether a challenged law or regulation violates the Second Amendment": (1) whether "the challenged law [or regulation] burdens conduct protected by the Second Amendment?" and (2) if so, what appropriate level of scrutiny applies? United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013).

Applying the first step of the inquiry, the panel considered whether the Policy was "one of the 'presumptively lawful regulatory measures' identified in Heller, or [if] the record include[d] persuasive historical evidence establishing that the regulation at issue impose[d] prohibitions that fall outside the historical scope of the Second Amendment." Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (quoting Heller, 554 U.S. at 627 n.26)." Here, the panel concluded that the Policy - an employer policy that regulates the use of firearms issued by the SPD to its police officers while on duty - did not resemble any of the "presumptively lawful regulations" identified in Heller. Further, the panel concluded that there was no historical evidence to suggest that regulating police officers' use of department-issued firearms falls outside the historical scope of the Second Amendment. The panel therefore "'assume[d], without deciding, that the [UF Policy] burdens conduct falling within the scope of the Second Amendment.'" (citing Bauer v. Becerra, 858 F.3d 1216, 1221 (9th Cir. 2017).)

Having determined that the Policy is subject to Second Amendment protection, the panel proceeded to the second step to determine the appropriate level of scrutiny by considering "(1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on that right." Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016) A regulation "that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny." In contrast, a regulation which "does not implicate a core second Amendment right, or does not place a substantial burden on the Second Amendment right" warrants intermediate scrutiny. In Heller, the Court held that citizens have a right under the Second Amendment to use firearms "for the core lawful purpose of self-defense." However, the Court has also held that, when analyzing the Second Amendment in regard to a governmental employee, courts must "balance the rights of the employee 'against the realities of the employment context.'" Engquist v. Or. Dep't of Agr., 553 U.S. 591, 600 (2008).

Here, in considering how close the Policy comes to the core of the Second Amendment right, the Ninth Circuit panel found that the Policy was adopted by the City of Seattle, acting as employer, to regulate use by its employees of department-issued firearms while on duty. Therefore, the City of Seattle has a significant interest in the Policy, and thus intermediate scrutiny applies placing the burden on the city of Seattle "to justify placing restrictions on any Second Amendment right of its employees, while also giving the city the flexibility to act as an employer." The panel then considered the severity of the Policy's burden on the Second Amendment core right of self-defense in determining the appropriate level of scrutiny. The burden must not be so severe that it destroys the right of police officers to use department-issued firearms for the "core lawful purpose of self-defense." Heller, 554 U.S. at 630. The panel reasoned the Policy did not rise to a level of severity that destroyed the Second Amendment as it permitted police officers to "draw or exhibit a firearm in the line of duty when the officer has reasonable cause to believe it may be necessary for his or her own safety or for the safety of others[.]" The Policy also states, in part: "[d]eadly force may only be used in circumstances where threat of death or serious physical injury to the officer or others imminent . . . sometimes the use-of-force is unavoidable." The panel thus concluded that the Policy did not destroy the officers' rights under the Second Amendment because they were permitted to use their department-issued firearms for the "core lawful purpose of self defense."

The panel then turned to the application of the intermediate scrutiny test which requires "(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and asserted objective." Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015) (quoting Chovan, 735 F.3d at 1139).

Here, the panel found that the City of Seattle's interest was both significant and substantial because the purpose of the Policy was to ensure the safety of the public and its police officers, citing United States v. Salerno, 481 U.S. 739, 748 (1987) ("[T]he Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest."). Further, the Policy ensures that police officers do not engage in unlawful practices that violate citizens' constitutional rights, thus ensuring public safety.

Secondly, in determining in the degree of fit between the Policy and its objective, the City was not required to show that the Policy was the least restrictive means of achieving its interest. To survive intermediate scrutiny, the Policy need only "promote[s] a substantial government interest that would be achieved less effectively absent the regulation." In ruling that there is a reasonable fit between the Policy and the significant government interest in ensuring the safety of the public and the City's police officers, the panel noted that the Policy "expressly contemplates that de-escalation techniques will not be feasible in every situation, and even states that 'sometimes, the use of force is unavoidable.'" Holding that the Policy survives intermediate scrutiny and is, therefore, constitutional, the Ninth Circuit panel affirmed the district court's decision, concluding the Policy did not violate Appellants Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense." (Appellants claims under the Fourth, Fifth, and Fourteenth amendments were dismissed for failure to state a cognizable claim.)

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/09/19/14-35970.pdf

Panel: Carlos T. Bea and N. Randy Smith, Circuit Judges, and William Q. Hayes, District Judge.

Argument Date: May 8, 2017

Date of Issued Opinion: September 19, 2017

Docket Number: 14-35970

Decided: Affirms the district court's ruling that the City of Seattle's "Use of Force Policy" does not violate the Seattle Police Department's police officers Second Amendment right to use department-issued firearms for the "core lawful purpose of self-defense."

Case Alert Author: Georgia Kefallinos

Counsel:

Athan E. Tramountanas (argued), Short Cressman & Burgess PLLC, Seattle, Washington; Lisa Ann Battalia, Law Office of Lisa Ann Battalia, Bethesda, Maryland; for Plaintiffs- Appellants.
Gregory Colin Narver (argued), Assistant City Attorney; Peter S. Holmes, City Attorney; City Attorney's Office, Seattle, Washington; for Defendants-Appellees.
Author of Opinion: District Judge William Q. Hayes

Circuit: Ninth

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/10/2017 05:18 PM     9th Circuit  

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