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STATE OF MISSISSIPPI v ROBERT SHULER SMITH, DISTRICT ATTORNEY FOR HINDS COUNTY, MISSISSIPPI, et al
PETITIONER CAUSE NO. 2013-M-01220
RESPONSE IN OPPOSITION TO THE STATE OF MISSISSIPPI’S COMBINED PETITION TO VACATE A PERMANENT INJUNCTION AND EMERGENCY PETITION FOR INTERLOCUTORY APPEAL COME NOW the Respondents-Plaintiffs, Robert Shuler Smith, et a l, and file this their response in opposition to the State of Mississippi’s 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 State’s, Governor Phil Bryant’s 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 of 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”).
Statement of the Issues
Whether the phrase “called not be called into question” means the Mississippi Legislature cannot place reasonable restrictions, consistent with public safety and Article 3, § 12, on the right to keep and bear arms in public? Whether House Bill 2 is unconstitutionally vague on its face as a matter of law? . 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).
The drafters of Mississippi’s 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. Af7fh//eA-5T4'U:SrS70r595-6-00r(2008)-.------------------------------ In Heller, 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 Heller Court 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. The Heller Supreme 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 [militiarelated] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. 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 Heller Court resolved in the affirmative the long debated question of whether an individual has
District o f Columbia
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 individual’s 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 in Heller. Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). Nevertheless, the Seventh Circuit Court of Appeals, read Heller for 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"bear a r m s open carry -
is not sacrosanct. 702 F.3d at 933. In Moore, the Seventh Circuit Court oTAppeals 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. While Heller and Moore 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. In Heller, 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
followed adoption of the Second Amendment. 554 U.S. at 600-601. The Heller Court pointed out that Mississippi was one of nine states that adopted Second Amendment analogoues between 1789 and 1820. Like the justices in Heller, 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 in Moot e, Uudge^Kidd“didmot“speculaterbutTeft-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, citing A.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
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 of 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 VISIBLE’ARE 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. D ep’t 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. Hood v. 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. Hood’s Interview with WAPT). (See, Exhibit A, Attorney General Jim
If the State’s top law enforcement officer publicly
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 espeeiallylaw 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 if 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.
For example, is this 9” x 7.5” pink bag a children’s purse sold by Mississippi State, or a gun case?
It is a gun case.1 Similarly, is this rolling briefcase case a gun case or a heavy-duty litigation bag?
C lick to en la rg a
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 See http://www.pelican-case.com/pelguncaspis.html (website last accessed July 4, 2013).
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 she’s 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_ andTaw” enforcement-officials-atTisk
of unknowingly violating the law because they lack a proper understanding of what the law requires. The Application o f House 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 of any 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 of 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
prohibits convicted felons from possessing firearms. It is elementary that if 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 of 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 "
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. In Moore, 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, held Heller 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. In Hightower v. City o f Boston, 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 of 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 Mississippi’s Constitution and statutes. The State’s attempt to cloak
open carry with Title 18 U.S.C. § 922 (g) confesses the State’s uneasiness with House Bill 2.
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 it’s true cannot restrict the open carry. co'ffitealeh_carry:Mhey-donATaveTo7rightf’ '"(TS! ee7*ExhibiPBrP“J ^ " ^ 2 - -2-5): They can restrict -
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.
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 court’s valid exercise of a power granted exclusively to the judicial branch: to say what the law is. In the seminal 1803 case of Marbury v. Madison , 5 U.S. 137 (1803), Chief Justice
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 State’s system of government. In addition to the United States Supreme Court’s 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.
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. Magyar v. 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 Mississippi’s legislative branch of government may not, through procedural legislation, control the function of the judiciary.” Id. “Stated another way, this Court cannot—consistent with the Mississippi Constitution—relinquish to the Legislature the duties and powers constitutionally imposed upon the Supreme Court. ” Id. at 810-11. After Magyar'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 r a n c h Appropriations, 27 So. 3d 394, 395 (Miss. 2010).
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 branch’s 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-F1 T2(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 court’s order did not infringe upon the Legislature’s constitutional authority, and it must be upheld as a valid exercise of the judicial branch’s 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 Court’s 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 Kidd’s decision and deny the State’s Motion to Vacate the Permanent Injunction.
RESPECTFULLY SUBMITTED, this the 5^ day of August, 2013. Respectfully Submitted,
Lisa Mishune Ross, MSB #9755
Law Offices of Lisa M. Ross 514 E. Woodrow Wilson Avenue Bldg. E Jackson, MS 39216 Telephone (601) 981-7900 firstname.lastname@example.org______________
CERTIFICATE OF SERVICE 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: Harold E. Pizzetta, III Office of the Attorney General Post Office Box 220 Jackson, Mississippi 39205 SO CERTIFIED, this the 5fy day of August, 2013.
Lisa Mishune Ross
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