Download - Schuler Smith Response
-
8/22/2019 Schuler Smith Response
1/15
IN THE SUPREME COURT OF MISSISSIPPI
STATE OF MISSISSIPPI PETITIONER
v CAUSE NO. 2013-M-01220
ROBERT SHULER SMITH, DISTRICT ATTORNEYFOR HINDS COUNTY, MISSISSIPPI, et al RESPONDED 1S
RESPONSE IN OPPOSITION TO THE STATE OF MISSISSIPPIS
COMBINED PETITION TO VACATE A PERMANENT INJUNCTION AND EMERGENCY PETITION FOR INTERLOCUTORY APPEAL
COME NOW the Respondents-Plaintiffs, Robert Shuler Smith, et al, and file this their
response in opposition to the State of Mississippis Combined Petition to Vacate a Permanent
Injunction and Emergency Petition fo r Interlocutory Appeal, and in support thereof would show
the following:
I. Factual and Procedural Background
The State of Mississippi adequately provides the factual and procedural posture of this
action. Consequently, Respondents will not restate it here. The Respondents, however,
quarrels with the States, Governor Phil Bryants and 80 Legislators contention that the right to
keep and bear arms unconcealed in public is sacrosanct and that the Legislature lacks authority to
restrict open carry. The question of whether Article 3, 12 of the Mississippi Constitution o f
1890 guarantees a right to open carry that may not be restricted is a contested question of law
which properly was submitted to and resolved by Hinds County Circuit Court Judge Winston
Kidd (hereinafter Judge Kidd).
-
8/22/2019 Schuler Smith Response
2/15
II. Statement of the Issues
A. Whether the phrase called not be called into question means theMississippi Legislature cannot place reasonable restrictions, consistent
with public safety and Article 3, 12, on the right to keep and bear arms
in public?
B. Whether House Bill 2 is unconstitutionally vague on its face as a matter
of law? .
C. Whether Judge Kidd violated the Separation of Powers Doctrine?
III. Argument
------------------------- THEtEGISIrATOREMAYPIrAeEIHKASONABtE------------------------
RESTRICTIONS ON THE RIGHT TO OPEN CARRY
In House Bill 2, the legislature codified open carry, a right it contends is found in Article
3, 12 of the Mississippi Constitution of 1890. The State, the Governor and 80 Legislators
argue the Mississippi Legislature cannot restrict open carry. This result, they say, is compelled
by Article 3, 12 of the Mississippi Constitution of 1890. It provides [T] he right of every
citizen to keep and bear arms in defense of his home, person, or property, or in the aid of the
civil power when thereto legally summoned, shall not be called into question, but the
legislature may regulate or forbid carrying concealed weapons.
Assuming arguendo there is a right to open carry in Article 3, 12, it does not deprive
the legislature of the authority to restrict open carry. Article 3, 12 does not say that the
Mississippi Legislature may not place reasonable limitations consistent with public safety and
Article 3, 12, on the right to keep and bear arms. Rather it provides that the right to keep and
bear arms shall not be called into question. This Court has never addressed the question of
what shall not be called into question means. District o f Columbia v.Heller, 554 U.S. 570, 595
128 S.Ct. 2783,171 L.Ed.2d 637 (2008).
2
-
8/22/2019 Schuler Smith Response
3/15
The drafters of Mississippis Constitution in 1890 used the phrase shall not be called
into question in Article 3, 12, while the drafters of the Second Amendment employed the
phrase shall not be infringed in guaranteeing the right to keep and bear arms. The Second
Amendment provides that A well regulated Militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be infringed. Unlike this Court, the
United States Supreme Court has determined what the phrase means by the right to keep and
bear arms shall not be abridged found in the Second Amendment means. District o f Columbia
Af7fh//eA-5T4'U:SrS70r595-6-00r(2008)-.------------------------------ -
InHeller, the court held the operative clause of the Second Amendment meant whether
there was a response to deny Congress power to Abridge the ancient right of individuals to
keep and bear arms, so that the ideal of a citizen militia would be preserved. Id. at 595-600. The
HellerCourt said its interpretation is confirmed by analogous arms-bearing rights in state
constitutions that preceded and immediately followed the Second Amendment. Id. at 600-60o.
Mississippi was one of nine states that adopted analogues to the Second Amendment of the
United States Constitution between 1789 and 1820. Heller, 554 U.S. at 595.
TheHellerSupreme Court pointed out it:
....found only one early-19th century commentator who clearly conditioned
the right to keep and bear arms upon service in the militia - and he recognized
that the prevailing view was to the contrary. 'The provision of the constitution,
declaring the right of the people to keep and bear arms, &c. was probably
intended to apply to the right of the people to bear arms for such [militia-
related] purposes only, and not to prevent congress or the legislatures of the
different states from enacting laws to prevent the citizens from always goingarmed. A different construction however has been given to it.
Id- at 601, quoting B. Oliver, The Rights of an American Citizen 177 (1832).
The debate about individuals rights to keep and bear arms continues today. In 2008, the
HellerCourt resolved in the affirmative the long debated question of whether an individual has
3
-
8/22/2019 Schuler Smith Response
4/15
the right to keep and bear arms in his home under the Second Amendment. Heller, 554 U.S. at
595. In putting that issue to rest, the Supreme Court, stated the Second Amendment does not
protect an individuals right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. 554 U.S. at 626. (boldness added). The Supreme
Court did not resolve the right to open carry inHeller. Moore v.Madigan, 702 F.3d 933, 942
(7th Cir. 2012). Nevertheless, the Seventh Circuit Court of Appeals, readHellerfor the
proposition that an individual has a right to open carry outside of the home. IcL
-----------The*SFventh'Circuit7however,'Teco_gnized'the"right1;o^keepmid"beara rm s open carry -
is not sacrosanct. 702 F.3d at 933. InMoore, the Seventh Circuit Court oT Appeals
acknowledged Illinois could impose reasonable limitations, consistent with public safety and the
Second Amendment, on the right to open carry. Id. The Court overturned two federal district
courts orders that rejected constitutional challenges to Illinois flat ban on carrying ready-to-use
guns outside of the home. Id. at 934. At issue was Illinois ban on open carry of unloaded guns
in public, other than to police and other excepted persons, unless the gun was carried openly
outside a vehicle in an unincorporated area and ammunition for the gun was not immediately
accessible. Id. The Court held that the limits Illinois placed on open carry, went too far, but it
gave the legislature 180 days to fashion reasonable limitations, consistent with public safety and
the Second Amendment, on the right to open carry.
WhileHellerandMoore dealt with the Second Amendment, they nonetheless are
instructive, inasmuch as they teach that the right to keep and bear arms was never meant to be
untouchable. InHeller, the Court stated that its determination that the right to keep and bear
arms shall not be abridged was a response to prohibit Congress from banning the right was
confirmed by analogous arms-bearing rights in constitutions that preceded and immediately
4
-
8/22/2019 Schuler Smith Response
5/15
followed adoption of the Second Amendment. 554 U.S. at 600-601. TheHeller Court pointed
out that Mississippi was one o f nine states that adopted Second Amendment analogoues between
1789 and 1820. Like the justices inHeller, Judge Kidd recognized, that shall not be called into
question does not mean the Legislature may not impose reasonable restrictions on the right to
open carry if the right to open carry exists in Mississippi. If the right to open carry is found in
the Constitution of 1890, Shall not be called into question, means the Legislature may not ban
the right to keep and bear arms for self-defense in Mississippi. Similar to the judges inMoot e,
Uudge^KidddidmotspeculaterbutTeft-it-to-the'MississipprLegislaturefo-determine-the
reasonable limitations, consistent with public safety and Article 3, 12, it may constitutionally
impose on the carrying of weapons in public.
HOUSE BILL 2 IS UNCONSTITUTIONALLY VAGUE
The contours of the void for vagueness doctrine are reasonable familiar. Meeks v.
Tallahatchie County, 513 So.2d 563, 566 (Miss. 1987) citing Connolly v. General Construction
Co., 269 U.S. 385,46 S. Ct. 126, 70 L.Ed. 322 (1925). In Connolly, the United States Supreme
Court stated that [A] statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process. 269 U.S. at 391. An unconstitutionally
vague statute or regulation is unenforceable. Meeks, 513 So.2d at 566, citingA.B. Small Co. v.
American Sugar Refining Co., 267 U.S. 233, 242, 45 S.Ct. 295, 298, 69 L. Ed. 589, 594-95
(1924).
In addition, the United States Supreme Court has held that:
The void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement. . . . Where the legislature fails to provide such
5
-
8/22/2019 Schuler Smith Response
6/15
m i n i m a l guidelines, a criminal statute may permit a standard-less sweep that
allows policemen, prosecutors, and juries to pursue their personal predilections.
Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). Moreover, House Bill 2 requires men of
common intelligence [to] necessarily guess at its meaning and differ as to its application.
Zwickler v. Koota, 389 U.S. 241, 249 (1967) (citing Connally v. General Construction Co., 269
U.S. 385, 391 (1926)). These decisions make clear that any statute that causes men o f common
intelligence to guess at it meaning and differ as to its application is an unconstitutionally vague
statute. _______________________
HIDDEN OR OBSCURED FROM COMMON OBSERVATION
AND REFERENCES TO WHOLLY OR PARTIALLY VISIBLEARE UNCONSTITUTIONALLY VAGUE
House Bill 2 defines concealed as hidden or obscured from common observation.
This definition does not provide adequate guidance to the public or law enforcement officials,
like the Plaintiff Sheriff and Constable in this case, on how to properly abide by and apply and
enforce the law. A statute must embody only as much exactness as the subject matter permits.
Vance v. Lincoln Cnty. Dept o f Pub. Welfare by Weathers, 582 So. 2d 414, 419 (Miss. 1991)
(citations omitted). The exactness, though, should be adequate enough to ensure that [v]ague
laws [do not] trap the innocent by not providing fair warning. Grayned v. City o f Rockford, 408
U.S. 104,108 (1972).
The question is whether House Bill 2 is so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application. State ex rel. Hoodv. Louisville
Tire Ctr., Inc., 55 So. 3d 1068, 1071-72 (Miss. 2011) (citation omitted). Respondents submit
that General Hood is a man of common intelligence and he recognizes that House Bill 2 has
created quite a bit of confusion in the community. (See, Exhibit A, Attorney General Jim
Hoods Interview with WAPT). If the States top law enforcement officer publicly
6
-
8/22/2019 Schuler Smith Response
7/15
acknowledges House Bill 2 is confusing, there is no question that other men of common
intelligence may espouse the same view, while other men necessarily may differ.
House Bill 2' is unclear as to whether hidden or obscured from common observation is
referring to the weapon or any part of the holster or case, that the weapon is contained in. While
the common sense definition of concealed is not contested, the application of the definition to
different objects - the weapon, holster or case - is unconstitutionally vague.
In House Bill 2, the legislature set forth several examples of what is not a concealed
--weapon"Th-ese-example'shall-short-ofproviding-any~guidancehohhexommompersonr espeeially-
law enforcement officials charged with applying and enforcing thelaw. For example, House
Bill 2 references a pistol carried upon the person in a sheath, belt holster or shoulder holster
that is wholly or partially visible. House Bill 2 does not make clear whether the sheath, holster,
case or the weapon, itself, need not be concealed.
As for wholly or partially visible, the question again is raised: what object - the
sheath, belt holster, shoulder holster or weapon - must be wholly or partially visible. As it is
now written, it is not clear whether the weapon needs to be wholly or partially visible or i f the
sheath, belt holster, shoulder holster or case must be wholly or partially visible. If it is only
the carrying apparatus that must be wholly or partially visible, then the question turns to
whether common observation requires the ability to ascertain the contents of the carrying
apparatus.
The answer matters, because seeing someone carrying a case gives no indication that the
person is carrying a deadly weapon. At risk of stating the obvious, gun cases need not resemble
the guns they contain.
-
8/22/2019 Schuler Smith Response
8/15
For example, is this 9 x 7.5 pink bag a childrens purse sold by Mississippi State, or a
gun case?
It is a gun case.1Similarly, is this rolling briefcase case a gun case or a heavy-duty litigation
bag?
Click to enlarga
It apparently can be either, but Pelican sells it in the Gun Cases - Pistol, Rifle, Shotgun &
Handgun section of its website.
Widespread confusion will result if House Bill 2 treats any partially visible case as an
openly-carried weapon, because it will not be clear to a reasonable observer that a weapon is
1 This is the "Bulldog Pink Molded Pistol Case/' available for $17.99 at www.cabelas.com (last
accessed July 4, 2013).
2 Seehttp://www.pelican-case.com/pelguncaspis.html (website last accessed July 4, 2013).
http://www.cabelas.com/http://www.pelican-case.com/pelguncaspis.htmlhttp://www.pelican-case.com/pelguncaspis.htmlhttp://www.cabelas.com/ -
8/22/2019 Schuler Smith Response
9/15
being carried next to them. That puts law enforcement in a bind because they will not know
whether the weapon in that circumstance is carried openly or is concealed under Mississippi
law. If the carrier of the pink gun case lacks a conceal carry permit, should she be arrested or
fined for that lack of permit, since no one around her knows shes carrying a weapon, or not
arrested because her case is wholly or partially visible?
Therefore, without more accurate language by the legislature, citizens and law
enforcement do not know what part of the carrying apparatus containing a weapon must be
_pMiMyTrwEbll5^ikible^Thls^mbiguity_places"citizens_andTawenforcement-officials-atTisk
of unknowingly violating the law because they lack a proper understanding of what the law
requires.
The Application ofHouse Bill 2 In Relation to Other Statutes Is Unconstitutionally Vague
The altering of the definition of concealed by House Bill 2 also is unconstitutional
because it is unclear how House Bill 2 interacts or intersects with preexisting statutes. House
Bill 2 suggests, but is not clear, that any person ofany age, any residency status, any mental
health disability, and any controlled substance abuser may openly carry a firearm in plain view
into a church, prison, bar, and university, among other places. One of the critical legal questions
presented by this case is whether the amendment contained in paragraph 14 of Mississippi Code
45-9-101 completely nullifies the comprehensive statutory regime for all persons openly
carrying a firearm or whether the amendments retain the requirements o f paragraph 14 but allow
persons unqualified to conceal carry to open carry.
In its brief, the State acknowledges that House Bill 2 does not clearly set forth who is
allowed to open carry. The state contends other state and federal statutes address who may
open carry. The State points to Miss. Code Ann. 97-37-5 as an example. That statute
-
8/22/2019 Schuler Smith Response
10/15
prohibits convicted felons from possessing firearms. It is elementary that i f a felon is prohibited
from possessing a weapon, a felon cannot open carry under Mississippi law.
The State argues 18 U.S.C. 922 (g) governs who may open carry in Mississippi. The
State says 18 U.S.C. 922 (g) prohibits the possession of firearms by felons, drug-addicts,
persons adjudicated as mentally defective and persons convicted o f domestic violence. Title 18
U.S.C. 922 (g) prohibits certain individuals under federal law from shipping or transporting in
interstate or foreign commerce, or possessing in or affecting commerce, any firearm or
ammunition; or r e c e i v i n g " any~firearm"ormmnumitionwyhich-'has--been-shipped-or--transported-in-
interstate or foreign commerce.
Title 18 U.S.C. 922 (g), however, has nothing to do with open carry. The federal right
to open carry, if there is such a right, would emanate from the Second Amendment to the United
States Constitution.
InMoore, the Seventh Circuit recognized the Supreme Court has not yet addressed the
question of whether the Second Amendment creates a right of self-defense outside the home.
702 F.3d at 935. The Moore Court, however, heldHeller and its progeny, permit open carry but
acknowledged that the Illinois legislature could ...impose reasonable limitations, consistent
with public safety and the Second Amendment as interpreted in this opinion, on the carrying of
guns in public. Id. at 942. InHightowerv. City ofBoston, 693 F.3d 61, 72 n. 8, 1st Cir. 2012)
the First Circuit Court of Appeals declined to make a determination of whether the right to carry
firearms outside o f the home is permitted by the Second Amendment.
That aside, Title 18 U.S.C. 922 (g) is a federal law, which does not and cannot
prescribe conduct under Mississippis Constitution and statutes. The States attempt to cloak
open carry with Title 18 U.S.C. 922 (g) confesses the States uneasiness with House Bill 2.
10
-
8/22/2019 Schuler Smith Response
11/15
More importantly, it concedes a point that the State, Governor Phil Bryant and 80 legislators
have vigorously opposed - the right to open carry in Mississippi may be restricted.
At the hearing before Judge Kidd, the State argued, [tjhey cannot, the legislature cannot
and the statute does not regulate the carrying of weapons in an open manner because the
legislature cannot. The legislature cannot restrict that. (See, Exhibit B, Transcript of June 31,
2013 hearing before Judge Kidd, p. 11,1. 24-25, p. 12,1. 1-3). The State also contended ... [as
the general matter, the legislature its true cannot restrict the open carry. They can restrict
co'ffitealeh_carry:Mhey-donATaveTo7rightf'"(TS!ee7*ExhibiPBrPJ ^ " ^ 2 - -2-5): -
Instead of hiding behind federal law, the State should point this Court to Mississippi
statutes parallel to Title 18 U.S.C. 922(g) that prohibit drug-addicts, persons adjudicated as
mentally defective and persons convicted of domestic violence from possessing weapons.
There are no such statutes. The only statute in Mississippi that prohibits drug-addicts,
alcoholics, and persons adjudicated as mentally defective from carrying weapons is the
concealed carry statute. See, Miss. Code Ann. 45-9-101(2)(e)(f)(h)(i).
House Bill 2 is unclear as to the precise locations where open carry is allowed. The
State argues that other statutes govern where an individual can openly carry a weapon in a
holster. Those statutes, however, are not mentioned in House Bill 2.
In addition, House Bill 2 does not state the purpose for which a person may open carry.
Likewise, House Bill 2 does not identify what weapons a person may open carry.
For the reasons outlined above, this Court should find that Judge Kidd did not err when
he found that House Bill 2 on its face is unconstitutionally vague.
11
-
8/22/2019 Schuler Smith Response
12/15
Judge Kidd Did Not Violate Separation-of-Powers Principles
The Attorney General maintains that the circuit court violated the separation of powers
by usurping the authority of the legislature to determine what is and is not a crime under
Mississippi law. Ironically, it is the Attorney General who is asking the Court to violate
separation-of-powers principles by vacating the trial courts valid exercise of a power granted
exclusively to the judicial branch: to say what the law is.
In the seminal 1803 case ofMarbury v. Madison, 5 U.S. 137 (1803), Chief Justice
MarshalT'explrcitlTvieclai-edAhat^^rjt-is-emphaticaliy-the-provinee-and-'duty-of-theUw^hzA/-
department to say what the law is.Marbury, 5 U.S. 137 (emphasis added).
The separation of powers between three distinct, separate authorities is a foundation of
the United States and this States system of government. In addition to the United States
Supreme Courts Marbury language, the very first lines of the Mississippi Constitution are
devoted to the separation of powers between the three branches of government. The Mississippi
Constitution bars each branch from interfering with powers granted to the others, as follows.
The powers of the government of the state of Mississippi shall be divided into
three distinct departments, and each of them confided to a separate magistracy,
to-wit: those which are legislative to one, those which are judicial to another, and
those which are executive to another. '
Miss. Const, art. 1, 1. Under the section entitled encroachment of power, these three distinct
departments are barred from any intrusion upon the others powers: No person or collection of
persons, being one or belonging to one of these departments, shall exercise any power properly
belonging to either of the others. Miss. Const, art. 1, 2. The Constitution makes clear that
[t]he judicial power of the State shall be vested in a Supreme Court and such other courts as are
provided for in this Constitution. Miss. Const, art. 6, 144.
12
-
8/22/2019 Schuler Smith Response
13/15
For the past century, the Courts have strictly upheld these Constitutional provisions, and
in just the last two years, the Court has delivered ringing endorsements of the importance of the
separation of powers doctrine. In 2009, the Court considered the constitutionality of a state
statute setting out a detailed procedure for a trial judge in a sex crimes case. Magyarv. State, 18
So. 3d 807, 810 (Miss. 2009). The statute required the trial judge to provide a defendant charged
with a sex crime with a written notification concerning sex offender registration,- and included
further procedural requirements that the trial court obtain written acknowledgement of the receipt
T)flhe_writtenmotifrcation7Md:
The Court focused its analysis on the legislative intrusion to the powers of the judiciary.
Justice Dickinson, in an en banc opinion with no dissent, declared that [a] basic tenet of
American government is judicial independence, and every state has a judicial branch of
government separate from its legislative branch.Id. at 810. Citing the constitutional provisions
set forth above, the Court stated that it would hold firm to the principle that Mississippis
legislative branch of government may not, through procedural legislation, control the function of
the judiciary.Id. Stated another way, this Court cannotconsistent with the Mississippi
Constitutionrelinquish to the Legislature the duties and powers constitutionally imposed upon
the Supreme Court. Id. at 810-11.
AfterMagyar's landmark underscoring of separation of powers, an en banc and
unanimous Supreme Court issued an opinion strongly emphasizing the paramount importance of
Article 1, Section 2. The Court examined recent budgetary issues in the State, and noted that
[a]s part of the separation of powers among, and checks and balances on, these three co-equal
branches of government, our Legislature has the duty to fund the judicial branch of government.
In re Fiscal Year 2010 Judicial B ran chAppropriations, 27 So. 3d 394, 395 (Miss. 2010).
13
-
8/22/2019 Schuler Smith Response
14/15
Pursuant to statute, the State Fiscal Office had begun to limit budgets throughout the
State, but the Court warned that such authority could not be exerted over the judiciary: To the
extent the State Fiscal Officer interprets [state law] to authorize reductions in the judicial
branchs budget, we hold that such interpretation is inconsistent with the Constitution of the
State of Mississippi.Id. at 395. Relying wholly on the Constitution of 1890, the Court ruled
that any funds duly appropriated for the judicial branch of government are not subject to
reduction pursuant to state law. Id.
----------ThereTsmnexonim-onTheme-to-bo1h-Mflg7flr-andT:-Re-F1T2(9-i-0f--the-Gourt-refesed-t0
allow the Legislature to intrude upon the inner workings of the judicial branch. Today, the
Attorney General asks the Court to depart from this established practice of upholding the
fundamental separation-of-powers principles upon which our government was founded, and
overturn an order that was squarely within the power of the judiciary to say what the law is.
The trial courts order did not infringe upon the Legislatures constitutional authority, and it must
be upheld as a valid exercise of the judicial branchs constitutional duty to say what the law is.
Conclusion
The trial court found, [HJouse Bill 2 does more than define concealed. It creates
confusion and chaos with respect to the enforcement of gun laws here in this state. First, House
Bill 2 does not clearly set forth who is allowed to openly carry a weapon in a holster.. .Next,
House Bill 2 does not state where an individual can openly carry a weapon m a
holster... .Many other factors lead to this Courts finding House Bill 2 to be vague and, therefore,
unconstitutional.. . .A reasonable person reading the bill can not discern what the law allows and
what it prohibits. For these reasons and the reasons outlined above, this Court should affirm
Judge Kidds decision and deny the States Motion to Vacate the Permanent Injunction.
14
-
8/22/2019 Schuler Smith Response
15/15
RESPECTFULLY SUBMITTED, this the 5^ day of August, 2013.
Law Offices of Lisa M. Ross
514 E. Woodrow Wilson Avenue Bldg. E
Jackson, MS 39216
Telephone (601) 981-7900
[email protected]______________
I, Lisa Mishune Ross, one of the attorneys of record for Plaintiffs, do hereby certify that I
have delivered by email and U.S. Mail a copy of the foregoing response to:
SO CERTIFIED, this the 5fy day of August, 2013.
Respectfully Submitted,
Lisa Mishune Ross, MSB #9755
CERTIFICATE OF SERVICE
Harold E. Pizzetta, III
Office of the Attorney General
Post Office Box 220
Jackson, Mississippi 39205
Lisa Mishune Ross
15
mailto:[email protected]:[email protected]