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No. 12-16258 IN THE United States Court of Appeals for the Ninth Circuit CHRISTOPHER BAKER, Plaintiff-Appellant, v. LOUIS KEALOHA, et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Hawaii, No. 1:11-CV-00528-ACK-KSC Senior District Judge Alan C. Kay BRADY CENTER TO PREVENT GUN VIOLENCE’S MOTION FOR LEAVE TO FILE IN SUPPORT OF APPELLEES’ PETITION FOR REHEARING EN BANC BRADY CENTER TO PREVENT GUN VIOLENCE - LEGAL ACTION PROJECT Jonathan E. Lowy Alla Lefkowitz Robert B. Wilcox, Jr. 840 First Street, N.E. STE 400 Washington, D.C. 20002 (202) 370-8104 jlowy@bradymail.org DAMON KEY LEONG KUPCHAK HASTERT Mark M. Murakami 1003 Bishop Street, STE 1600 Honolulu, HI 96813 (808) 531-8031 mmm@hawaiilawyer.com April 28, 2014 HOGAN LOVELLS US LLP Neil R. O’Hanlon, SBN 67018 1999 Avenue of the Stars, STE 1400 Los Angeles, CA 90067 (310) 785-4600 neil.ohanlon@hoganlovells.com Jonathan L. Diesenhaus Adam K. Levin James W. Clayton Kathryn L. Marshall Nathan G. Foell Anna M. Kelly 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 adam.levin@hoganlovells.com Counsel for Amicus Curiae

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BRADY CENTER TO PREVENT GUN VIOLENCE’S MOTION FOR LEAVE TO FILE IN SUPPORT OF APPELLEES’ PETITION FOR REHEARING EN BANC The Brady Center to Prevent Gun Violence respectfully requests this Court grant leave to file an amicus curiae brief in support of the Defendants-Appellees petition for rehearing en banc in this matter.1 Defendants-Appellees have consented to the filing of this brief, but the Plaintiff has not consented yet, despite being asked to twice. The Brady Center was granted leave to participate as amicus in this matter below with the District Court finding that the Brady Center’s brief was “particularly valuable in light of the significant public interest in Second Amendment litigation across the nation …”2 Indeed, the District Court’s decision referenced the Brady Center’s amicus brief twice. This panel also granted leave for Brady Center to file a brief in support of Defendants-Appellees’ position on the merits.3 As such and as set forth below, this Court has broad discretion to grant amicus status to the Brady Center to Prevent Gun Violence and it is urged to grant this motion.

1 2

The Brady Center’s proposed brief is attached as Appendix “A”. See Order Granting The Brady Center to Prevent Gun Violence’s Motion for Leave to File an Amicus Curiae Brief in Support of Defendants, filed Feb. 23, 2012, attached hereto as Appendix “B”, at 3. 3 See Ninth Circuit Order, filed Sept. 4, 2012, attached hereto as Appendix “C”, at 1.

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I.

IDENTITY OF AMICUS CURIAE Amicus Brady Center to Prevent Gun Violence is a national, non-partisan,

non-profit organization dedicated to reducing gun violence through education, research, and legal advocacy. Through its Legal Action Project, it has filed numerous amicus curiae briefs in cases involving firearms regulations, including McDonald v. City of Chicago, 130 S. Ct. 3020, 3095 n.13, 3105 n.30, 3107 n.34 (2010) (Stevens, J., dissenting) (citing Brady Center brief), United States v. Hayes, 555 U.S. 415, 427 (2009) (citing Brady Center brief), and District of Columbia v. Heller, 554 U.S. 570 (2008). Amicus brings a broad and deep perspective to the issues raised here and has a compelling interest in ensuring that the Second Amendment does not impede reasonable governmental action to prevent gun violence. II. SUMMARY OF PROPOSED AMICUS BRIEF The proposed brief, Appendix “A”, explains the exceptional importance of the question decided on appeal in a Ninth Circuit panel’s recent Second Amendment decisions. Specifically, the Brady Center’s brief provides an overview of the immediate and life-threatening consequences that flow from these decisions. In addition to the instant case, Baker v. Kealoha, No. 12-16258, 2014 WL 1087765 (9th Cir. Mar. 20, 2014), the same panel has recognized a constitutional right to carry concealed firearms outside the home in two other cases 2

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this year, each time upending state and local concealed-carry regimes. Richards v. Prieto, 11-16255, 2014 WL 843532 (9th Cir. Mar. 5, 2014); Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1116 (9th Cir. 2014). In the wake of these the first two decisions, counties across California experienced a surge in applications for concealed-carry permits. A similar influx is expected in Hawaii. As the brief explains, this result is troublesome because of the unique and lethal risks associated with wanton carrying concealed firearms in public. In part because of these risks, a majority of circuits have expressly declined to recognize a right to carry guns in public. Their restraint only highlights the exceptional importance of the question on appeal. III. ARGUMENT A. Court has Broad Discretion to Authorize Amicus Parties

This Court has the discretion to grant this motion and allow the Brady Center to file its brief. Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) (abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). The classic role of amici curiae is three-fold: (1) assist in a case of general public interest; (2) to supplement the efforts of counsel; and (3) to draw the court’s attention to law that escaped consideration. Miller-Wohl Co., Inc. v. Comm’r of Labor and Industry, 694 F.2d 203, 204 (9th Cir. 1982). The Court may also exercise its discretion to grant amicus status in order to avail itself of the benefit of thorough and erudite 3

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legal arguments. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 n.3 (9th Cir. 1987). The Brady Center’s brief fulfills the role of amici curiae. It explains the exceptional importance of the question decided in this appeal, including the unique risks posed to the general public by an expansive Second Amendment right to carry concealed firearms in public. Briefing on this issue will also supplement the Defendants’ arguments, which focus instead on the implications of the procedural posture of this case and the conflicts between the panel’s recent decisions and the Second Amendment jurisprudence of the Supreme Court, Ninth Circuit, and other United States courts of appeal. B. Brady Center’s Brief Will Assist the Court

The Brady Center to Prevent Gun Violence has participated in Second Amendment litigation throughout the nation, including the seminal cases of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) and District of Columbia v. Heller, 554 U.S. 570 (2008). Its brief can help inform the Court of the immediate effects the panel’s decisions are having on concealed-carry regimes across the Ninth Circuit and the intense public concern that accompanies those effects. The district court allowed the Brady Center to participate as amicus curiae below, finding that its brief was “particularly valuable in light of the likely significant public interest in this case.” See Appendix “B” at 3; see also Appendix “C” at 1. 4

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The court also noted that the Brady Center’s brief helped with substantive issues, while the other parties may be litigating procedural issues. Appendix “B” at 3. Brady Center’s broader and more public-policy-oriented perspective would be similarly useful to the full Court at this stage of the litigation. IV. CONCLUSION For the reasons explained above, this Court has wide discretion to allow amicus status. The parties have been consulted and, with the exception of the Plaintiff-Appellant who did not respond, have consented to the Brady Center filing an amicus curiae brief in support of Appellees’ petition for rehearing en banc. The Brady Center, therefore, respectfully requests this Court grant this motion and grant leave to file the proposed brief. Date: April 28, 2014 Respectfully submitted,

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/s/ Neil R. O’Hanlon Neil R. O’Hanlon HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 785-4600 neil.ohanlon@hoganlovells.com Jonathan L. Diesenhaus Adam K. Levin James W. Clayton Kathryn L. Marshall Nathan G. Foell Anna M. Kelly HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 adam.levin@hoganlovells.com Jonathan E. Lowy Robert B. Wilcox, Jr. Alla Lefkowitz BRADY CENTER TO PREVENT GUN VIOLENCE - LEGAL ACTION PROJECT 840 First Street, N.E. Suite 400 Washington, D.C. 20002 (202) 370-8104 jlowy@bradymail.org Mark M. Murakami DAMON KEY LEONG KUPCHAK HASTERT 1003 Bishop Street, STE 1600 Honolulu, HI 96813 (808) 531-8031 mmm@hawaiilawyer.com Counsel for Amicus Curiae 6

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CERTIFICATE OF SERVICE I certify that the foregoing Petition was filed with the Clerk using the appellate CM/ECF system on April 28, 2014. All counsel of record are registered CM/ECF users, and service will be accomplished by the CM/ECF system.

/s/ Neil R. O’Hanlon

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APPENDIX A

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No. 12-16258 IN THE

United States Court of Appeals for the Ninth Circuit
CHRISTOPHER BAKER, Plaintiff-Appellant, v. LOUIS KEALOHA, et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Hawaii, No. 1:11-CV-00528-ACK-KSC Senior District Judge Alan C. Kay BRIEF FOR AMICUS CURIAE BRADY CENTER TO PREVENT GUN VIOLENCE IN SUPPORT OF APPELLEES’ PETITION FOR REHEARING EN BANC BRADY CENTER TO PREVENT GUN VIOLENCE - LEGAL ACTION PROJECT Jonathan E. Lowy Alla Lefkowitz Robert B. Wilcox, Jr. 840 First Street, N.E. STE 400 Washington, D.C. 20002 (202) 370-8104 jlowy@bradymail.org DAMON KEY LEONG KUPCHAK HASTERT Mark M. Murakami 1003 Bishop Street, STE 1600 Honolulu, HI 96813 (808) 531-8031 mmm@hawaiilawyer.com April 28, 2014 HOGAN LOVELLS US LLP Neil R. O’Hanlon, SBN 67018 1999 Avenue of the Stars, STE 1400 Los Angeles, CA 90067 (310) 785-4600 neil.ohanlon@hoganlovells.com Jonathan L. Diesenhaus Adam K. Levin James W. Clayton Kathryn L. Marshall Nathan G. Foell Anna M. Kelly 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 adam.levin@hoganlovells.com Counsel for Amicus Curiae

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, the Brady Center to Prevent Gun Violence states that it has no parent corporations, nor has it issued shares or debt securities to the public. The organization is not a subsidiary or affiliate of any publicly owned corporation, and no publicly held corporation holds ten percent of its stock.

/s/ Neil R. O’Hanlon Neil R. O’Hanlon

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF INTEREST OF AMICUS CURIAE.............................................1 INTRODUCTION .....................................................................................................2 ARGUMENT .............................................................................................................3 I. THE PANEL’S DECISIONS IMPLICATE AN EXCEPTIONALLY IMPORTANT AND RECURRING QUESTION ...........................................................................................3

CONCLUSION..........................................................................................................9

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TABLE OF AUTHORITIES Page(s) CASES Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super. Ct. 1991)......................................................................7 Commonwealth v. Romero, 673 A.2d 374 (Pa. Super. Ct. 1996)......................................................................7 District of Columbia v. Heller, 554 U.S. 570 (2008)......................................................................................1, 2, 8 Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) .................................................................................8 Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) ...................................................................................8 McDonald v. City of Chicago, 130 S. Ct. 3020......................................................................................................1 Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) ................................................................................9 Peruta, Baker v. Kealoha, No. 12-16258, 2014 WL 1087765 (9th Cir. Mar. 20, 2014) ........................2, 3, 4 Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014) .....................................................................passim Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) ............................................................................8 Richards v. Prieto, 11-16255, 2014 WL 843532 (9th Cir. Mar. 5, 2014) .......................................2, 3 United States v. Hayes, 555 U.S. 415 (2009)..............................................................................................1 United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) ........................................................................3, 7, 8

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Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) ............................................................................2, 8 CONSTITUTIONAL AMENDMENTS Second Amendment ..........................................................................................passim RULES Fed. R. App. P. 32......................................................................................................1 Fed. R. App. P. 32(a)(5).............................................................................................1 Fed. R. App. P. 32(a)(6).............................................................................................1 Fed. R. App. P. 29......................................................................................................1 9th Circuit Rule 29-2.................................................................................................... 9th Circuit Rule 32....................................................................................................... 9th Circuit Rule 35.....................................................................................................1 OTHER AUTHORITIES Charles C. Branas, et al., Investigating the Link Between Gun Possession and Gun Assault, 99 AM. J. PUB. HEALTH 2034 (2009)........................................6 Cheryl K. Chumley, California Sheriffs See Surge in Concealed Carry Permits, THE WASHINGTON TIMES (March 18, 2014)...........................................3 Philip Cook et al., Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective, 56 UCLA L. REV. 1041, 1081 (2009) .....................6 John Donohue, The Impact of Concealed-Carry Laws, EVALUATING GUN POLICY: EFFECTS ON CRIME AND VIOLENCE 289 (Jens Ludwig & Phillip Cook eds. 2003) ....................................................................................................6 Mark Duggan, More Guns, More Crime, 109 POL’Y. ECON. 1086 (2001)................5 Chris Eger, Hawaii firearms permits at record levels in 2013; up over 500 percent since 2000, GUNS.COM (April 4, 2014)....................................................4

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Lisa M. Hepburn & David Hemenway, Firearm Availability and Homicide: A Review of the Literature, 9 AGGRESSION & VIOLENT BEHAV. 417 (2004)....................................................................................................................5 David McDowall, et al., Easing Concealed Firearms Laws, 86 CRIM. L. & CRIMINOLOGY 193 (1995) .....................................................................................6 Joshua Rhett Miller, Surge in Concealed Weapon Permits Follows California Court Second Amendment Decision, FOX NEWS (Feb. 27, 2014) .....................................................................................................................4 Matthew Miller et al., Firearm Availability and Unintentional Firearm Deaths, 33 ACCIDENT ANALYSIS & PREVENTION 477 (Jul. 2000).........................5 Matthew Miller et al., Rates of Household Firearm Ownership and Homicide Across US Regions and States, 1988–1997, 92 AM. J. PUB. HEALTH 1988 (Dec. 2002) ...........................................................................................................5 Adam Nagourney, In California, a Fevered Rush for Gun Permits, N.Y. TIMES (April 26, 2014)......................................................................................3, 4 Kirk Siegler, Calif. Fight Over Concealed Weapons Could Head to High Court, NATIONAL PUBLIC RADIO (March 18, 2014) .............................................4 Violence Policy Center, Concealed Carry Killers, available at http://vpc.org/ccwkillers.htm (last visited April 24, 2014) ..................................5

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CONSENT TO FILE Pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, amicus Brady Center to Prevent Gun Violence sought consent from the parties prior to filing this brief. Defendants-Appellees consented to this filing, but the Plaintiff did not respond, despite being asked to consent twice. Accordingly, pursuant to Rule 29(b), Counsel for Respondents has filed a separate motion for leave to file. No party or party’s counsel authored this brief in whole or in part. No party, party’s counsel, or person other than amicus, its members, or its counsel contributed money intended to fund preparation and submission of this brief. STATEMENT OF INTEREST OF AMICUS CURIAE Amicus is a national, non-partisan, non-profit organization dedicated to reducing gun violence through education, research, and legal advocacy. Through its Legal Action Project, it has filed numerous amicus curiae briefs in cases involving firearms regulations, including McDonald v. City of Chicago, 130 S. Ct. 3020, 3095 n.13, 3105 n.30, 3107 n.34 (2010) (Stevens, J., dissenting) (citing Brady Center brief), United States v. Hayes, 555 U.S. 415, 427 (2009) (citing Brady Center brief), and District of Columbia v. Heller, 554 U.S. 570 (2008). Amicus brings a broad and deep perspective to the issues raised here and has a compelling interest in ensuring that the Second Amendment does not impede reasonable governmental action to prevent gun violence.

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INTRODUCTION Two months ago in Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1116 (9th Cir. 2014), a divided panel of this Court became the first circuit to strike down a concealed-carry permitting regime. The majority’s underlying holding–that the Second Amendment protects a right to bear arms outside the home–went far beyond the Supreme Court’s 2008 decision in Heller and this Circuit’s own precedent. In fact, when a Maryland district court reached a similar result last year, the Fourth Circuit characterized it as “trailblazing” before reversing. Woollard v. Gallagher, 712 F.3d 865, 868 (4th Cir. 2013). The same panel of this Court has now twice compounded this result, first in Richards v. Prieto, 11-16255, 2014 WL 843532 (9th Cir. Mar. 5, 2014), and now in this case, by undermining Hawaii’s concealed-carry permitting policy on the same basis as Peruta, Baker v. Kealoha, No. 12-16258, 2014 WL 1087765 (9th Cir. Mar. 20, 2014). The panel’s reading of Heller raises issues of exceptional and recurring importance. For one, the majority’s insistence that Heller confers a right to bear concealed arms outside the home contradicts dozens of courts that have either refused to expand Heller beyond the home absent more explicit guidance from the Supreme Court, or upheld concealed-carry restrictions under appropriate scrutiny. Other courts’ caution is well-advised because “[t]his is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem

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because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.” United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011). Major shifts in Second Amendment jurisprudence, like those wrought by the panel’s decisions in Peruta, Prieto, and now in Baker, warrant the full Court’s consideration; indeed, human lives depend upon it. En banc review should be granted. ARGUMENT I. THE PANEL’S DECISIONS IMPLICATE AN EXCEPTIONALLY IMPORTANT AND RECURRING QUESTION 1. The panel’s decisions authorize individuals without good cause to

carry concealed firearms in public places, equipped with no more than an expressed interest in self-defense. This expansion of the Second Amendment creates unique risks and threatens to condemn concealed-carry restrictions throughout the Western United States. California, for example, has been deluged by a wave of applications for concealed-carry permits since the panel’s decision in Peruta.1 Even though the Peruta mandate has been stayed, Sheriff Sandra

1

Cheryl K. Chumley, California Sheriffs See Surge in Concealed Carry Permits, THE WASHINGTON TIMES (March 18, 2014), available at http://www.washingtontimes.com/news/2014/mar/18/california-sheriffs-see-surgeconcealed-carry-perm/ (“Sheriffs in California say they’ve been swamped with requests for concealed carry permits since last month’s court ruling that residents only have to show a desire for self-defense – and little else – in order to take advantage of the right.”); see also Adam Nagourney, In California, a Fevered Rush for Gun Permits, N.Y. TIMES (April 26, 2014) (“The surge [in applications for
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Hutchens of Orange County told the New York Times that she has spent $1.6 million to hire fourteen “additional part-time workers, many working through the weekend, in response to the crush of [concealed-carry permit] applications,”– nearly 4,000 in two months. Adam Nagourney, In California, a Fevered Rush for Gun Permits, N.Y. TIMES (April 26, 2014); 2 see also Kirk Siegler, Calif. Fight Over Concealed Weapons Could Head to High Court, NATIONAL PUBLIC RADIO (March 18, 2014).3 Baker is expected to produce a similar result in Hawaii, prompting a potentially “huge reversal” in the traditionally low number of concealed-carry permits in the state. Chris Eger, Hawaii firearms permits at record levels in 2013; up over 500 percent since 2000, GUNS.COM (April 4, 2014).4 That influx is unsurprising because the panel’s decisions were “bombshell ruling[s]”; now “citizens need not justify their requests [for a concealed-carry permit].” Joshua Rhett Miller, Surge in Concealed Weapon Permits Follows California Court Second Amendment Decision, FOX NEWS (Feb. 27, 2014).5

concealed-carry permits] in Orange County and, to a lesser extent, a handful of other [California] counties stunned law enforcement officials.”). 2 Available at http://www.nytimes.com/2014/04/27/us/politics/in-california-afevered-rush-for-gun-permits.html?_r=0. 3 Available at http://www.npr.org/2014/03/18/290252895/calif-fight-overconcealed-weapons-could-head-to-high-court. 4 Available at http://www.guns.com/2014/04/04/hawaii-firearms-permitsrecord-levels-2013-500-percent-since-2000/. 5 Available at http://www.foxnews.com/us/2014/02/27/surge-in-concealedweapon-permits-follows-california-court-second-amendment/.
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Simply put, Peruta and its progeny are currently upending concealed-carry regimes across the Ninth Circuit, and forcing the issuance of thousands of concealed-carry permits to persons without allowing law enforcement the discretion to determine whether they have good cause to carry concealed firearms in public spaces. 2. This result is particularly troublesome because of the unique and

lethal risks associated with wanton carrying concealed firearms in public. Numerous studies have shown that the presence of firearms in the public sphere augments the risks associated with gun violence in at least three ways. First, carrying firearms outside the home threatens the safety of a much broader range of individuals than firearm possession in the home. 6 Since 2007, fourteen law enforcement officers, in addition to more than 600 private citizens, have been killed by concealed handgun permit holders. See Violence Policy Center,
6

And even within the home, gun possession has been linked to increased violence. Lisa M. Hepburn & David Hemenway, Firearm Availability and Homicide: A Review of the Literature, 9 AGGRESSION & VIOLENT BEHAV. 417 (2004) (“[H]ouseholds with firearms are at higher risk for homicide, and there is no net beneficial effect of firearm ownership.”); Matthew Miller et al., Rates of Household Firearm Ownership and Homicide Across US Regions and States, 1988–1997, 92 AM. J. PUB. HEALTH 1988 (Dec. 2002) (“[I]n areas where household firearm ownership rates were higher, a disproportionately large number of people died from homicide.”); Mark Duggan, More Guns, More Crime, 109 J. POL’Y. ECON. 1086 (2001); Matthew Miller et al., Firearm Availability and Unintentional Firearm Deaths, 33 ACCIDENT ANALYSIS & PREVENTION 477 (Jul. 2000) (“A statistically significant and robust association exists between gun availability and unintentional firearm deaths.”).
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Concealed Carry Killers, available at http://vpc.org/ccwkillers.htm (last visited April 24, 2014). Second, public carrying increases violent crime. Studies analyzing the connection between increased gun prevalence and crime indicate that most states that broadly allow concealed firearms in public appear to “experience increases in violent crime, murder, and robbery when [those] laws are adopted.” John Donohue, The Impact of Concealed-Carry Laws, EVALUATING GUN POLICY: EFFECTS ON CRIME AND VIOLENCE 289, 320 (Jens Ludwig & Phillip Cook eds. 2003). Importantly, “guns did not seem to protect [even] those who possessed them from being shot in an assault.” Charles C. Branas, et al., Investigating the Link Between Gun Possession and Gun Assault, 99 AM. J. PUB. HEALTH 2034 (2009). In fact, another study indicated that: Two-thirds of prisoners incarcerated for gun offenses reported that the chance of running into an armed victim was very or somewhat important in their own choice to use a gun. Currently, criminals use guns in only about 25 percent of noncommercial robberies and 5 percent of assaults. If increased gun carrying among potential victims causes criminals to carry guns more often themselves, or become quicker to use guns to avert armed self-defense, the end result could be that street crime becomes more lethal. Philip Cook et al., Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective, 56 UCLA L. REV. 1041, 1081 (2009). Conversely, “policies to discourage firearms in public may help prevent violence.” David McDowall, et

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al., Easing Concealed Firearms Laws, 86 CRIM. L. & CRIMINOLOGY 193, 203 (1995). Third, law enforcement’s ability to protect themselves and the public could be greatly restricted if officers were required to presume that a person carrying a firearm in public was doing so lawfully. When the carrying of guns in public is restricted, “possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.” Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa. Super. Ct. 1991); accord Commonwealth v. Romero, 673 A.2d 374, 377 (Pa. Super. Ct. 1996). By contrast, under an expansive Second Amendment regime, an officer might not be deemed to have cause to arrest, search, or stop a person seen carrying a loaded gun, even though far less risky behavior could justify police intervention. Law enforcement should not have to wait for a gun to be fired before protecting the public from the potential danger posed by increased guns in public. 3. Cognizant of the increased danger of violence that comes with

allowing concealed weapons in public spaces, other circuits have tread with particular caution when addressing this recurring question. See, e.g., Masciandaro,

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638 F.3d at 476 (the risks associated with gun carrying could “rise exponentially as one moved the right [announced in Heller] from the home to the public square”). A majority of circuits have expressly declined to recognize a right to carry guns in public, refusing to “push Heller beyond its undisputed core holding.” Id. at 475; Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (declining to “declare that the individual right to bear arms for the purpose of self-defense extends beyond the home”); Woollard, 712 F.3d at 872 (reversing district court’s holding that the Second Amendment right “extends beyond the home,” noting that such a ruling “br[oke] ground that our superiors have not tread”) (internal quotations marks and citations omitted) (alteration in original). The panel’s decision in Peruta casts this Court as the only circuit to strike down a concealed-carry permitting regime post-Heller. Compare Peruta, 742 F.3d at 1179, with Drake, 724 F.3d at 433 (upholding New Jersey’s permitting scheme, which requires a showing of “justifiable need” to carry); Wollard, 712 F.3d at 882 (same); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 83-84 (2d Cir. 2012); Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013) (“In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a

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concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections.”).7 The panel’s decisions are “needless, sweeping judicial blow[s] to the public safety discretion invested in local law enforcement officers and to California’s [and Hawaii’s] carefully constructed firearm regulatory scheme.” Peruta, 742 F.3d at 1199 (Thomas, J., dissenting). The Court should rehear this case en banc. CONCLUSION The Court should grant rehearing.

April 28, 2014

Respectfully submitted,

/s/ Neil R. O’Hanlon Neil R. O’Hanlon Hogan Lovells US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 785-4600 neil.ohanlon@hoganlovells.com

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As Honolulu points out in its petition for rehearing en banc, the one circuit court of appeals to embrace a broader right to carry firearms in public struck down a ban on total carrying, and it did not address a permitting scheme that simply requires a showing of “good cause” prior to obtaining a concealed-carry permit. See Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012).
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Jonathan L. Diesenhaus Adam K. Levin James W. Clayton Kathryn L. Marshall Nathan G. Foell Anna M. Kelly HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 adam.levin@hoganlovells.com Jonathan E. Lowy Robert B. Wilcox, Jr. Alla Lefkowitz BRADY CENTER TO PREVENT GUN VIOLENCE - LEGAL ACTION PROJECT 840 First Street, N.E. Suite 400 Washington, D.C. 20002 (202) 370-8104 jlowy@bradymail.org Mark M. Murakami DAMON KEY LEONG KUPCHAK HASTERT 1003 Bishop Street, STE 1600 Honolulu, HI 96813 (808) 531-8031 mmm@hawaiilawyer.com Counsel for Amicus Curiae

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CERTIFICATE OF COMPLIANCE I certify that, pursuant to 9th Circuit Rules 29-2, 32 and 35, this brief does not exceed 15 pages, excluding material not counted under Fed. R. App. P. 32. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using MS-Word in 14point Times New Roman font.

/s/ Neil R. O’Hanlon

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CERTIFICATE OF SERVICE

I certify that the foregoing Petition was filed with the Clerk using the appellate CM/ECF system on April 28, 2014. All counsel of record are registered CM/ECF users, and service will be accomplished by the CM/ECF system.

/s/ Neil R. O’Hanlon

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APPENDIX B

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CHRISTOPHER BAKER, Plaintiff, vs. LOUIS KEALOHA, as an individual and in his official capacity as Honolulu Chief of Police; STATE OF HAWAII; CITY AND COUNTY OF HONOLULU; HONOLULU POLICE DEPARTMENT; NEIL ABERCROMBIE, in his official capacity as Hawaii Governor, Defendants.

Civ. No. 11-00528 ACK-KSC

ORDER GRANTING THE BRADY CENTER TO PREVENT GUN VIOLENCE’S MOTION FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS

This matter comes before the Court on the Brady Center to Prevent Gun Violence’s Motion for Leave to File an Amicus Curiae Brief in support of the Defendants in the above-captioned case. After reviewing the motion, against which no opposing

memoranda have been filed, the Court hereby GRANTS the Motion for Leave to File an Amicus Curiae Brief.

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On February 13, 2012, counsel for the Brady Center to Prevent Gun Violence (the “Brady Center”) filed a Motion for Leave to File an Amicus Curiae Brief in support of Defendants. In the Brady Center’s motion, counsel asserted, among other things, that its proposed brief would provide the Court with “an overview of recent and longstanding Supreme Court Second Amendment jurisprudence and the policy implications of extending the Second Amendment right beyond the home,” as well as a discussion of an emerging trend towards using a two-pronged approach to Second Amendment litigation, as discussed in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010). District courts frequently welcome amicus curiae briefs from non-parties concerning legal issues that have potential ramifications beyond the parties directly involved or when the amicus has “unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” NGV Gaming, Ltd v. Upstream Point Molate, LLC, 355

F. Supp. 2d 1061, 1068 (N.D. Cal. 2005) (quoting Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003) (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997))). Furthermore, courts in this Circuit have broad discretion to appoint amici curiae. See Hoptowit v. Ray, 682

F.2d 1237, 1260 (9th Cir. 1982) (superceded by statute on other

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grounds). fold:

Clasically, amici curiae serve a role that is three-

“(1) assist in a case of general public interest; (2) to

supplement the efforts of counsel; and (3) to draw the court’s attention to law that escaped consideration.” Ocean Mammal Inst.

v. Gates, Civ. No. 07-00254 DAE-LEK, Order Granting the Honolulu Council of the Navy League of the United States’ Motion to File an Amicus Curiae Brief in Support of Federal Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction (filed Nov. 1, 2007) (quoting Miller-Wohl Co., Inc. v. Com’r of Labor and Industry, 694 F.2d 203, 204 (9th Cir. 1982)). The Brady Center’s proposed amicus curiae brief accomplishes these aims, and is particularly valuable in light of the likely significant public interest in this case. As a

participant in Second Amendment litigation across the nation, the Brady Center will provide the Court with information regarding national trends, and will also contribute substantive legal arguments to a discussion that may focus on procedural issues. Accordingly, while the Brady Center is not a party in this action, the Court deems it appropriate to consider its position. In keeping with the Court’s broad discretion to appoint amici curiae, the Court concludes that the Brady Center’s participation will be valuable to the just disposition of this case, and is in the best interests of the Court, the parties, and the public.

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CONCLUSION For the reasons stated above, the Court GRANTS the Brady Center to Prevent Gun Violence’s Motion For Leave to File an Amicus Curiae Brief.

IT IS SO ORDERED. DATED: Honolulu, Hawai#i, February 23, 2012.

________________________________ Alan C. Kay Sr. United States District Judge

Baker v. Kealoha, Civ. No. 11-00528 ACK-KSC: Order Granting The Brady Center To Prevent Gun Violence’s Motion For Leave To File An Amicus Curiae Brief In Support Of Defendants.

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APPENDIX C

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FILED
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SEP 04 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

CHRISTOPHER BAKER, Plaintiff - Appellant, v. LOUIS KEALOHA, as an individual and in his official capacity as Honolulu Chief of Police; et al., Defendants - Appellees.

No. 12-16258 D.C. No. 1:11-cv-00528-ACKKSC District of Hawaii, Honolulu

ORDER

The court denies appellant’s motion to stay appellate proceedings in this preliminary injunction appeal pending issuance of the decision in Richards, et al. v. Prieto, et al., No. 11-16255. The Clerk shall calendar this appeal, No. 12-16258, before the panel that will be assigned to decide appeal No. 11-16255. Briefing is completed. The amicus brief submitted by the Brady Center to Prevent Gun Violence is filed. Within 7 days of the filing of this order, the filer is ordered to file 7 copies of the brief in paper format, with a green cover, accompanied by certification,

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attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. FOR THE COURT: MOLLY C. DWYER CLERK OF COURT

By: Holly Baldwin Deputy Clerk

hmb/MOATT

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