Criminal Law Legal Research Blog

CRIMINAL LAW: Warrantless Search of Cell Phones

Posted by Gale Burns on Tue, Aug 12, 2014 @ 12:08 PM

The Lawletter Vol 39 No 6

Doug Plank, Senior Attorney, National Legal Research Group

     In what some commentators have described as the most important criminal law decision of its 2013-2014 Term, the U.S. Supreme Court ruled unanimously in Riley v. California, 134 S. Ct. 2473 (2014), that before police may search the contents of a cell phone seized after an arrest, they must first obtain a search warrant. In reaching this determination, which is a departure from the Court's general rule that a person's belongings may be searched without a warrant incident to an arrest of that person, the Court found that "[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." Id. at 2489. In fact, the Court noted, many cell phones are actually minicomputers that also happen to have the capacity to be used as a telephone, and they could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. The Court found that because cell phones are both a repository of sensitive personal data, with immense storage capacity, and a portal to private records stored on remote servers, they simply could not fairly be said to be analogous to physical containers under the search-incident-to-arrest rule.

     The Court recognized that its decision will have an impact on the ability of law enforcement to combat crime, but it noted that some case-specific exceptions to the warrant requirement would still be applicable to the search of cell phones, such as the presence of exigent circumstances that would require an immediate search to prevent the imminent destruction of evidence or to locate an immediately dangerous instrumentality, such as explosives.

Topics: legal research, cell phone, warrantless search, U.S. Supreme court, Doug Plank, criminal law, not analogous to physical containers, Riley v. California, only case-specific exceptions applicable

CRIMINAL LAW: Driving Under the Influence of a Proscribed Drug or "Its Metabolite"

Posted by Gale Burns on Tue, Jul 22, 2014 @ 10:07 AM

The Lawletter Vol 39 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Arizona is one of seven states that make it unlawful for a driver to be in actual physical control of a motor vehicle while there is a proscribed drug or "its metabolite" in the operator's body. Ariz. Rev. Stat. § 28-1381(A)(3). (The other six zero-tolerance jurisdictions are Delaware, Georgia, Indiana, Minnesota, Pennsylvania, and Utah. Joshua C. Snow, The Unconstitutional Prosecution of Controlled Substance Metabolites Under Utah Code § 41-6a-517, 2013 Utah L. Rev. OnLaw 195, 212 n.14 (2013).) In State ex rel. Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014), the Supreme Court of Arizona was asked to determine whether the phrase "its metabolite" includes Carboxy-Tetrahydrocannabinol ("Carboxy-THC"), a nonimpairing metabolite of marijuana, which is a drug proscribed by statute. The court concluded that it does not.

     In Montgomery, the driver was stopped for speeding and making unsafe lane changes. After admitting to smoking some "weed" the night before, the driver voluntarily submitted to a blood test that revealed Carboxy-THC in his blood. He was charged with driving under the influence of a drug, in violation of section 28-1381(A)(1), and driving while a metabolite of a proscribed drug was in his body, in violation of section 28-1381(A)(3). The justice court dismissed the charge based on the presence of "its metabolite," and the State voluntarily dismissed the driving-under-the-influence charge. The superior court affirmed the justice court, but the court of appeals reversed, finding that the statute included the metabolite Carboxy-THC and that inclusion was not overbroad. State ex rel. Montgomery v. Harris ex rel. County of Maricopa, 301 P.3d 580 (Ariz. Ct. App. 2013). The state supreme court vacated the opinion of the court of appeals and affirmed the dismissal of the "its metabolite" charge, with one justice dissenting.

     The court found "its metabolite" to be ambiguous because it could mean all of a proscribed drug's metabolites, some of its metabolites, or only metabolites that cause impairment. The driver argued that the phrase referred to only Hydroxy-THC, the initial product of the metabolism of THC. The State insisted that the statute referred to all metabolites, including the nonimpairing Carboxy-THC, which was tested for. Significantly, the impairing Hydroxy-THC does not remain in the blood for very long and quickly converts to Carboxy-THC, which is why the State tests for Carboxy-THC but not for Hydroxy-THC. Carboxy-THC, on the other hand, can remain in the body for as many as 28 to 30 days after the ingestion of marijuana.

     Looking to the legislative history, which demonstrated an intent to prevent impaired driving, the court concluded that "its metabolite" is limited to metabolites capable of causing impairment. To hold otherwise could lead to the absurd result that a driver could be found guilty regardless of how long the metabolite remained in his or her body or whether it had an impairing effect. Furthermore, given that Arizona legalizes marijuana for medicinal purposes, the State's overinclusive reading could criminalize legitimate use after the impairing effects have worn off. Finally, a broad reading of "its metabolite" could allow the prosecution of an individual who drives after ingesting a legal substance that shares a nonimpairing metabolite with a proscribed substance.

     This decision in Montgomery hardly leaves Arizona without the ability to prosecute those driving under the influence of proscribed drugs. The prosecution may still establish criminal liability by evidence of impairment. Moreover, as the State admitted, it is possible to test for the impairing Hydroxy-THC, and the State may choose to do so. The decision merely serves to ensure that only those who are actually driving while impaired can be convicted.

Topics: legal research, Suzanne Bailey, criminal law, proscribed drug, metabolite, zero tolerance, Arizona Supreme Court, State ex rel. Montgomery v. Harris, "metabolite" definition ambiguous in sta, driving under the influence, narrow reading of statute, The Lawletter Vol 39 No 5

CRIMINAL LAW: Search and Seizure—Warrantless Search of Motor Vehicle

Posted by Gale Burns on Tue, Jun 3, 2014 @ 12:06 PM

The Lawletter Vol 39 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

     A plurality of the Supreme Court of Pennsylvania, with one justice concurring in the result, recently held that where a warrantless search of a motor vehicle is supported by probable cause, article I, section 8 of the Pennsylvania Constitution affords no greater protection than does the Fourth Amendment to the U.S. Constitution. Commonwealth v. Gary, No. 26 EAP 2012, 2014 WL 1686766 (Pa. Apr. 29, 2014). Accordingly, the court adopted the federal automobile exception to the warrant requirement, which allows police officers to search a motor vehicle when there is probable cause to do so and does not require any exigency beyond the inherent mobility of the motor vehicle.

     In so holding, the court examined the history of the U.S. Supreme Court decisions on the issue of warrantless searches of vehicles, as well as its own history of decisions on the issue, which sometimes indicated that exigent circumstances are required in addition to probable cause, thus diverging from U.S. Supreme Court precedent. The court recognized that as its detailed review of its jurisprudence in the area of automobile searches demonstrated, it "has been unable to articulate a consistent, clear, and readily applicable majority expression of the automobile exception to the warrant requirement."  Id. at *19. The court concluded that there was no compelling reason to interpret its constitution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. Therefore, Gary held that in Pennsylvania, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. "The prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required."  Id. at *32

Topics: legal research, search and seizure, warrantless search, motor vehicle, Pa. Supreme Court, Commonwealth v. Gary, federal automobile exception to warrant requiremen, Pa. Const. not more prohibitive than Fourth Amendm, criminal law, Mark Rieber, The Lawletter Vol 39 No 4

CRIMINAL LAW UPDATE: Validity of Warrantless Searches of Cell Phones Incident to Arrest

Posted by Gale Burns on Thu, May 22, 2014 @ 12:05 PM

Mark Rieber, Senior Attorney, National Legal Research Group

     In January 2014, the U.S. Supreme Court granted certiorari in two cases to resolve a split in the lower courts concerning whether the search-incident-to-arrest doctrine that allows law enforcement to seize the cell phone of an arrestee also allows a warrantless search of the seized phone. See United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), cert. granted, 134 S. Ct. 999 (2014); People v. Riley, No. D059840, 2013 WL 475242 (Cal. Ct. App. Feb. 8, 2013) (unpublished), review denied (Cal. May 1, 2013) cert. granted in part, 134 S. Ct. 999 (2014).

     In Wurie, a divided panel of the First Circuit held that the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee's person, because such search is not necessary to protect arresting officers or preserve destructible evidence. The panel acknowledged that a majority of courts, including California's, have ultimately upheld warrantless cell phone data searches, but it observed that the courts have used a variety of approaches to reach this conclusion.

     In Riley, a California Court of Appeal found People v. Dray, 244 P.3d 501 (Cal. 2011), to be controlling and held that the warrantless search of data on the defendant's cell phone, which was on his person at the time of arrest, was lawful as a valid search incident to arrest. The U.S. Supreme Court stated that the issue to be reviewed in Riley was "[w]hether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights." 134 S. Ct. at 999.

Topics: legal research, criminal law, Mark Rieber, warrantless searches, cell phones, search incident to arrest, preserve data, protection of arresting officers, United States v. Wurie, 1st Cir., People v. Riley, Cal. Supreme Court

CRIMINAL LAW: Limits on Prosecution of Consensual Sexual Relations

Posted by Gale Burns on Mon, Dec 2, 2013 @ 15:12 PM

The Lawletter Vol 38 No 9

Suzanne Bailey, Senior Attorney, National Legal Research Group

     The U.S. Supreme Court's recent denial of the Commonwealth of Virginia's petition for writ of certiorari in MacDonald v. Moose, 710 F.3d 154 (4th Cir.), cert. denied, 82 U.S.L.W. 3029 (U.S. Oct. 7, 2013), reminds us that 10 years after the landmark decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that it is a violation of the Due Process Clause to prohibit two individuals of the same sex from engaging in consensual sexual conduct, courts are still grappling with the nature of what consensual sexual activity is protected from criminal prosecution. While Lawrence specifically addressed consensual homosexual sexual conduct, the Court's adoption of language from Justice Stevens's dissent in Bowers v. Hardwick, 478 U.S. 186 (1986), clarified the sweeping nature of the Court's ruling:

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

Lawrence, 539 U.S. at 577-78 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)).

     The above-quoted excerpt from Lawrence paved the way for decisions invalidating state statutes criminalizing sexual intercourse between unmarried adult heterosexuals. See, e.g., Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) (because Virginia fornication statute was an unconstitutional due process violation of an unmarried individual's liberty interest in engaging in private intimate conduct and maintaining personal relationships without governmental interference, the rule precluding a party consenting to, and participating in, an illegal act from recovering damages from another participant did not apply to bar the plaintiff's claims against the defendant for injuries arising from herpes allegedly contracted as a result of sexual intercourse). Likewise, Lawrence has been relied upon to invalidate statutes prohibiting consensual acts of sodomy between heterosexual adults. See MacDonald, 710 F.3d 154.

     However, the Lawrence decision was not without its limits. The Court observed:  "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution." 539 U.S. at 578. Accordingly, courts have refused to find that Lawrence forbids prosecution for incest, see, e.g., People v. McEvoy, 154 Cal. Rptr. 3d 914 (Ct. App. 2013), even if the alleged victim is a consenting adult, see, e.g., Lowe v. Swanson, 663 F.3d 258 (6th Cir. 2011).  Similarly, courts have not found Lawrence to be a bar to prosecutions for solicitation to commit sexual acts in a public place, see, e.g., Singson v. Commonwealth, 621 S.E.2d 682 (Va. Ct. App. 2005), or for prostitution, see, e.g., State v. Romano, 155 P.3d 1102 (Haw. 2007). Lawrence did not render unconstitutional a Kansas statute making sexual relations between a teacher and a student a crime, even though the
student, who was still in school, was 18 years old at the time and had consented to the sexual conduct. State v. Edwards, 288 P.3d 494 (Kan. Ct. App. 2012); see also State v. Fischer, 199 P.3d 663 (Ariz. Ct. App. 2008) (affirming conviction of defendant for sexual conduct with a minor and conspiracy to commit sexual conduct with a minor and rejecting defense argument that defendant had fundamental right under Lawrence to engage in sexual relations with his "celestial wife" or one of his plural wives).

     As the prosecution learned in MacDonald, however, the mere fact that the alleged victim is a minor does not take the act out of the protective sphere of Lawrence if the offense charged is not based on the victim's age. In that case, which came before the Fourth Circuit Court of Appeals on appeal of the denial of a petition for writ of habeas corpus, the petitioner was convicted after a bench trial of the misdemeanor of contributing to the delinquency of a minor and of felony criminal solicitation. The criminal solicitation conviction was treated as a felony by virtue of the commission of a predicate felony, in this case, sodomy, resulting in the petitioner's obligation to register as a sex offender. Although the Virginia Code creates sexual offenses based on the age of the victim, in this case, the "anti-sodomy [predicate offense] provision [did] not mention the word 'minor,' nor [did] it remotely suggest that the regulation of sexual relations between adults and children had anything to do with its enactment." 710 F.3d at 165.  "[A]lthough the Virginia General Assembly might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so." Id. It was not for the trial court to revise the statute to limit its applications in cases in which the victim was a minor.  Because the statute was facially unconstitutional under Lawrence, the Fourth Circuit reversed and remanded for an award of habeas corpus relief.

     Lawrence makes it clear that the State cannot criminalize private consensual sexual relations between adults. While it may be appropriate for a state legislature to protect a certain class of victim, even in the case of consensual acts, MacDonald demonstrates that the legislature must do so explicitly in order for the prosecution to fall outside of the rule in Lawrence. At a time when states are increasing the offenses requiring sex offender registration and some states are making it more difficult, if not impossible, to be removed from the sex offender registry, it is well worth considering whether Lawrence applies to bar prosecution or reduce the charges.

Topics: legal research, Suzanne Bailey, The Lawletter Vol 38 No 9, criminal, consensual sexual relations, violation of Due Process Clause to prohibit indivi, state must protect certain class explicitly for pr, Lawrence bars prosecution or reduction of charges

CRIMINAL LAW: Retroactivity of Supreme Court Decision in Padilla v. Kentucky

Posted by Gale Burns on Wed, Nov 6, 2013 @ 13:11 PM

The Lawletter Vol 38 No 8

Mark Rieber, Senior Attorney, National Legal Research Group

     In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea.  In Chaidez v. United States, 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla announced a "new" rule under Teague v. Lane, 489 U.S. 288 (1989), and thus does not apply retroactively to collateral challenges under federal law.  Despite Chaidez, the Supreme Judicial Court of Massachusetts held that under Massachusetts law, the Sixth Amendment right enunciated in Padilla was not a "new" rule and, consequently, that defendants may attack their convictions collaterally on Padilla grounds.  Commonwealth v. Sylvain, 466 Mass. 422, ___ N.E.2d ___ (2013).

     Sylvain decided that under Massachusetts law, the court may give broader retroactive effect to Padilla as a matter of state law than Padilla would otherwise enjoy under federal law. The Massachusetts court explained that although in an earlier decision it had adopted the Teague retroactivity framework, including Teague's original construction of what constitutes a "new" rule, the Supreme Court's post-Teague expansion of what qualifies as a "new" rule has become so broad that decisions defining a constitutional safeguard rarely merit application of collateral review.  Sylvain concluded that it would continue to adhere to the Supreme Court's original construction that a case announces a "new" rule only when the result is "not dictated by precedent."  Under this narrower interpretation, Sylvain determined that Padilla did not announce a "new" rule, because "it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation."  Id. at 435, ___ N.E.2d at ___.  Accordingly, Sylvain held that the defendant in the case before it, whose conviction was final at the time Padilla was decided, was entitled to seek relief under the Sixth Amendment right recognized in Padilla.

Topics: legal research, The Lawletter Vol 38 No 8, criminal law, Mark Rieber, retroactivity of Padilla, Chaidez v. United States, Commonwealth v. Sylvain, “new” rule not dictated by precedent, Amendment VI right to effective counsel

CRIMINAL LAW: Search and Seizure: Taking of DNA Samples from Criminal Suspects

Posted by Gale Burns on Tue, Sep 10, 2013 @ 10:09 AM

The Lawletter Vol 38 No 6

Doug Plank, Senior Attorney, National Legal Research Group

In a significant decision handed down near the end of its 2012-2013 Term, the U.S. Supreme Court ruled for the first time that a State's practice of taking and collecting, without consent, DNA evidence from the body of a criminal suspect charged with a serious crime is not an unreasonable search for purposes of the Fourth Amendment.  In reversing the contrary decision of the Court of Appeals of Maryland, the Supreme Court held in Maryland v. King, 133 S. Ct. 1958 (June 3, 2013), that the use of a swab to collect samples from the inner tissues of a person's cheek is indeed a search under the Fourth Amendment but that the intrusion is a relatively minor one.  According to the Court, when weighed against the legitimate government interest in the identification of arrestees, particularly in light of the unmatched potential of DNA identification to serve that interest, the practice of taking DNA samples must be viewed as a reasonable intrusion on the privacy interest of the suspect. 

Justice Scalia dissented in an opinion joined by three other Justices, pointing out that whenever the Court has previously allowed a suspicionless search under the Fourth Amendment, it has insisted upon a justifying motive apart from the investigation of crime.  He then pointed out that the stated rationale of the DNA swabbing—the identification of the suspect—was obviously a false one, for it was clear that the State was using the DNA for investigative purposes:  "The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous."  Id. at 1980 (Scalia, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting) (emphasis in original).

Topics: legal research, The Lawletter Vol 38 No 6, Fourth Amendment, search and seizure, DNA identification of suspects, Maryland v. King, state’s taking and collection is reasonable intrus, U.S. Supreme court, Doug Plank, criminal law

CRIMINAL LAW: False Confessions—Admissibility of Expert Testimony

Posted by Gale Burns on Mon, Aug 12, 2013 @ 11:08 AM

The Lawletter Vol 38 No 5

Mark Rieber, Senior Attorney, National Legal Research Group

A growing number of state courts have ruled that expert testimony concerning the phenomenon of false confessions may be admissible in a criminal trial.  The Supreme Court of Michigan recently addressed this matter and held that while such expert testimony is potentially admissible, the expert testimony at issue before the court was based on unreliable research and literature on the phenomenon of false confessions and was thus inadmissible, as had been ruled by the trial court.  People v. Kowalski, 821 N.W.2d 14 (Mich. 2012).

The court held that because the claim of a false confession is beyond the common knowledge of the ordinary person, expert testimony about the phenomenon is admissible when it meets all the other requirements of the Michigan Rule of Evidence pertaining to expert testimony, namely, that the testimony be based on sufficient facts and that it be the product of reliable
methods that have been reliably applied to the facts of the case so as to "assist the trier of fact to understand the evidence or to determine a fact in issue."  Id. at 27-28.  However, like many other courts, Kowalski held that the proposed expert testimony in the case before it was based on unreliable research and literature about the phenomenon of false confessions and was thus inadmissible.  Kowalski cited Vent v. State, 67 P.3d 661 (Alaska Ct. App. 2003), in support of its decision.  Vent had also upheld the exclusion of the testimony given by the same expert witness as in Kowalski and that was similar to the testimony he would offer in KowalskiVent explained that while some courts have allowed such testimony, many have held that it is not an abuse of discretion to exclude it when there is no way to quantify or test it.

With respect to a different aspect of the proposed expert testimony, Kowalski remanded the matter to the trial court to further consider whether a second expert's testimony regarding the defendant's psychological profile, which he had constructed from psychological tests and
clinical interviews of the defendant, was admissible on the claim of false confession.  The opinion indicated that such testimony might assist the trier of fact and would be admissible if it met the other requirements of the Rule of Evidence pertaining to expert testimony.  

Topics: legal research, Michigan, The Lawletter Vol 38 No 5, criminal, Mark Rieber, false confessions, admissibility, expert testimony, People v. Kowalski, inadmissible if insufficient facts, unreliable methods

CRIMINAL LAW: Search Warrant Requirement—Drunk Driving—No Per Se Exigency for Exception to Warrant Requirement

Posted by Gale Burns on Mon, Jul 15, 2013 @ 16:07 PM

The Lawletter Vol 38 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the U.S. Supreme Court 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 warrant requirement for nonconsensual blood testing in all drunk-driving cases.  Rather, in this context, such exigency must be determined case by case based on the totality of the circumstances.  In McNeely, after the defendant had been arrested for driving while intoxicated and had refused a Breathalyzer test, the highway patrol officer took him to a hospital for blood testing.  The defendant refused to consent to a blood test, but the officer directed a laboratory technician to take a sample.  The officer did not attempt to secure a search warrant before the sample was taken, because he believed it was not legally necessary to obtain a warrant. 

The Supreme Court's decision resolved a split of authority on the question.  Id. at 1558 n.2 (citing cases).  While recognizing that exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process, the Court observed that adopting the State's per se approach would improperly ignore the current and future technological developments in warrant procedures and might well diminish the incentives for jurisdictions to pursue progressive approaches to warrant acquisition that preserve the protection afforded by the warrant while meeting the legitimate interests of law enforcement.

Because the case before the Court was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and record did not provide the Court with an analytical framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant.  "It suffices to say," according to the Court,

that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.  No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed.

Id. at 1568.  The Court stated, however, that the inquiry "ought not to be pursued here where the question is not properly before this Court."  Id.

Topics: legal research, warrant requirement, nonconsensual blood testing, breathalyzer refusal, blood test refusal, Missouri v. McNeely, drunk driving no per se exigency for warrantless b, The Lawletter Vol 38 No 4, U.S. Supreme court, criminal, Mark Rieber

CRIMINAL LAW: Gun Restrictions

Posted by Gale Burns on Tue, May 28, 2013 @ 16:05 PM

The Lawletter Vol 38 No 3

Doug Plank, Senior Attorney, National Legal Research Group

After the U.S. Supreme Court ruled in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment provides citizens with an individual right to possess firearms, striking down a District of Columbia law that prohibited keeping guns in homes for self‑defense, a number of states enacted new measures to restrict the carrying of guns in public.  In New York, for example, the legislature enacted a law requiring an applicant to show that he or she had a "proper cause"—a special need for self-protection—to obtain a license to carry a concealed handgun in public.  N.Y. Penal Law § 400.00(2)(f).  This law was upheld by the Second Circuit against attacks based on the Second Amendment by plaintiffs who had unsuccessfully sought a license to carry a concealed handgun, as the court found that the law was substantially related to the State's interest in public safety and crime prevention.  Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012).

Similar measures enacted in other jurisdictions have met with mixed reactions.  For example, Illinois enacted statutes that generally prohibited the carrying of guns in public, but the Seventh Circuit found that those laws violated the Second Amendment right to bear arms for self‑defense outside the home.  Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).  However, the Fourth Circuit recently upheld a newly enacted Maryland statute that required applicants to demonstrate "a good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger."  Woollard v. Gallagher, 712 F.3d 865, 2013 WL 1150575, at *3 (4th Cir. 2013).

Despite these conflicting opinions in the courts of appeals, the Supreme Court recently declined to accept for review a petition for certiorari filed by the unsuccessful plaintiffs in the Kachalsky case, thus leaving it for the time being to the lower courts to define the precise scope of the right recognized for the first time in Heller.

Topics: legal research, gun restrictions, mixed opinions from Circuits on scope of "pro, The Lawletter Vol 38 No 3, Doug Plank, criminal law

Seven ways outsourcing your legal research can empower your practice