INTEREST OF AMICUS CURIAE
The New York County Lawyers Association (“NYCLA”) is a not-for-profit membership organization founded in 1908 and was one of the first major bar associations in the country to admit members without regard to race, ethnicity, religion, or gender. NYCLA’s 7,000 members practice law throughout the New York City metropolitan area. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy. NYCLA has a particular interest in governmental actions and the constitutional rights of individuals in New York County. NYCLA has been an active proponent of reasonable gun legislation, including legislation designed to address mass shootings and regulatory measures to address the proliferation of untraceable “ghost guns.”
Petitioners’ arguments, if accepted by this Court, would jeopardize longstanding prohibitions of firearms in sensitive areas, including courthouses, as observed by Respondents. Gun violence at courthouses is, sadly, an increasing problem, and the targets of that violence are frequently judges and lawyers. NYCLA’s members, who work and practice in and around the courts, are extremely concerned about this rising trend. As an organization of lawyers, NYCLA has a direct and vital interest in the issues before this Court.
Indeed, as part of their ethical and professional responsibilities, lawyers and jurists interact with angry and unhappy people in trying circumstances on a daily basis. Proximity to people at their most vulnerable and emotional moments is hard enough under normal circumstances, but it can create a tinderbox when people in trying circumstances are armed with handguns or concealable weapons.
Moreover, NYCLA is based in Manhattan, one of the most densely populated areas of the country. For well over a century, New York City has been a place where only law enforcement and those who can demonstrate proper cause have been able to carry firearms outside the home. This rule is rational and understandable, given the realities of city life. It also comports with years of jurisprudence permitting local regulations regarding the carrying of firearms in dense, urban, populated areas. In fact, to people who live, work, and practice law in Manhattan, eliminating those regulations would be unimaginable.
SUMMARY OF ARGUMENT
The core right of people to protect themselves identified in Heller is implicated only marginally, if at all, by a law that rationally limits the circumstances under which guns can be carried outside one’s home or business, such as on subways, buses, crowded city streets, and public parks and buildings, including in the vicinity of courthouses and government buildings, by requiring a showing of proper cause.
As New Yorkers, we urge a recognition of the special problems associated with the carrying of concealed weapons in densely populated urban areas. As an organization whose membership includes lawyers and judges, we ask this Court to imagine a New York where anyone could carry a gun in or near the courthouse, or in close proximity to a government building or to an attorney’s office or home.
Imagine a New York City where concealed weapons are ubiquitous. Imagine a hot, muggy afternoon in Times Square where armed strangers collide with one another, even inadvertently, while rushing to a crowded office building, restaurant, or theater. It is not hard to imagine a wayward glance, or an exchange of words, escalating into a firefight.
Imagine a crowded, Manhattan tavern where armed patrons disagree about politics, a sporting event, or a romantic interest, or even about who was saving a vacant barstool for someone. It is not hard to imagine a devastatingly unhappy result.
Imagine riding on a crowded subway train when many or most of those around you carry concealed handguns. Would an inadvertent push or a quizzical look at the wrong person, at the wrong time, cost you your life or the life of an innocent bystander unwittingly sitting in the bullet’s path? It is not hard to believe that it might.
Now imagine the steps of a Manhattan courthouse, where armed individuals conceal themselves in a crowd and lie in wait for an opposing party, for an adverse witness, for a judge whom they perceive as biased, or for a lawyer whom they believe caused an unjust outcome. Would it not be easy to take revenge with a gunshot and disappear into the crowd? Can we imagine this happening? Should lawyers, litigants, witnesses, and judges live every day in fear that it might? And how would that impact on our judicial system? If New York’s regulatory scheme is repealed, it could have devastating consequences.
New York is emblematic of urban and surrounding areas where tens of millions of Americans live, work, and socialize. At the same time, New York’s distinctive personality must be factored into this equation. We New Yorkers are known for our strong personalities. What happens then, when people are carrying concealed firearms during their daily interactions with others, which not infrequently escalate into heated debates? More specifically, as practicing lawyers—especially in family and criminal law matters, where emotions run high—we know that self-control is easily lost. What happens when armed individuals learn they are losing custody of a child? Or that their significant other has filed for divorce? Or that they are being sentenced to prison? The raw emotional instinct to lash out may be overwhelming. And those closest at hand are judges and lawyers, as well as victims and other litigants. These realities have caught the attention of local and national bar associations alike, who have expressed concerns regarding the continued rise in gun violence and have advocated for new policies and regulations in response.
By their very nature, courthouses are venues for conflict that often impact one’s life and future. Court personnel are often the targets of violence by aggrieved litigants acting on their own perceptions of justice. Recent studies reflect a rising trend in threats and violence directed towards those who work in courthouses—a trend NYCLA fears will only worsen if firearms become commonplace on the streets of New York.
Significantly, states with “shall issue” licensing schemes have greater incidents of gun violence, particularly in the courtroom context. And those states do not have such densely populated places as Manhattan, which by its nature breeds strong emotions and conflict. New York’s decision over a century ago to adopt a “proper cause” licensing scheme reflects the State’s well-founded concern regarding the safety of its populace—an interest recognized in Heller. This Court should affirm that, just like Texas is Texas, New York is New York, and its partial, not full, grant of Petitioners’ applications for concealed-carry licenses was based on well- founded local concerns and Petitioners’ showing of a need for self-defense. Allowing New York deference in this regard is consistent with Heller and does not violate the Second Amendment.
The Proliferation of Concealed Weapons
Places the Judiciary, Attorneys, and the
Public at Undue Risk of Harm from Gun
An individual’s right to bear arms outside the home is not unfettered and does not take precedence over a State’s interest in protecting public safety. That public-safety interest is paramount in densely populated places like New York City and in government buildings such as courthouses.
Petitioners heavily rely on a single sentence from this Court’s opinion in District of Columbia v. Heller, 554 U.S. 570, 628 (2008)—that “the inherent right of self-defense has been central to the Second Amendment right.” This right, however, is “not unlimited,” and the Heller majority expressly cautioned that its opinion “should [not] be taken to cast doubt on longstanding prohibitions” such as “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27 (emphasis added). Petitioners, therefore, are wrong to argue that New York’s regulatory framework must be dismantled, simply because they desire to carry concealed firearms in heavily populated areas. Instead, because New York’s “proper cause” standard furthers the State’s legitimate and well- founded interest in maintaining public safety, it is consistent with the Constitution.
Nevertheless, Petitioners and their amici argue for prioritizing their individual interests, without considering the added dangers presented to the public. There is, by now, incontrovertible evidence that the proliferation of firearms in urban areas is associated with an increase in gun violence. This compromises public safety, including the safety of the very courthouses in which our judicial system functions.
A courthouse is a forum for conflict—a venue open to the public to address and resolve disputes, which can frequently become emotionally charged. In these proceedings, lawyers argue, and judges decide, matters that impact life, liberty, and property. To aggrieved parties—with their own personal perceptions of justice (or injustice)—this can trigger violent responses. This is especially true in family and criminal matters. “Violence toward judicial officials does not occur by happenstance or as a political or symbolic statement. Rather, it derives from the judicial process itself.” These concerns are amplified should individuals be generally permitted to carry concealed firearms in the vicinity of crowded, urban court buildings without establishing proper cause.
In fact, even if a person might have some cause to carry a firearm for self-defense, that should not outweigh the State’s interest in regulating the carrying of dangerous weapons in a dense, urban environment. After all, even a trained marksman who fires in self-defense on a crowded, Manhattan street is likely to hit an innocent bystander—if, for instance, a pedestrian suddenly moves into the line of fire at the last second, or if the intended target jumps away, leaving an unlucky bystander in the bullet’s path. For that reason, it is rational for a densely populated state like New York to reserve the right to carry concealed weapons to a limited group of people whose need for a firearm, and whose skill at using it, is well documented.
And then, of course, there is the danger that if concealed carry in a place like New York City becomes the norm, emotionally charged circumstances will escalate into tragedy all too often. Given recent trends, the victims will likely include lawyers and even judges.
The 2005 shooting of Judge Rowland Barnes in Georgia is a grim example of the dangers judges face when presiding over highly emotional matters. The assailant, Brian Nichols, was in custody for rape charges. While being escorted to the court for trial, Nichols disarmed a sheriff’s deputy of her firearm, and proceeded to fire a fatal shot at the judge. Nichols was later apprehended, charged, and convicted for the deaths of Judge Barnes and his court reporter. While, as noted, Nichols did not obtain the gun by lawful means, this incident illustrates the dangers that judges face when presiding over trials in which a person’s life, liberty, or fortune hangs in the balance.
In 2006, Nevada family court Judge Chuck Weller survived an assassination attempt by Darren Mack, who fired shots into the judge’s chambers from a courthouse parking lot. Judge Weller was presiding over a contentious divorce proceeding involving Mack and his estranged wife, whom Mack had murdered earlier that day.
In 2011, a county courthouse in Minnesota came under gunfire after the shooter, Daniel Schlienz—who was in custody after being convicted of criminal sexual conduct—was permitted to leave the courthouse unsupervised. After leaving the courthouse, Schlienz grabbed a handgun from his truck, re-entered the courtroom, and opened fire at the prosecutor, a witness from his trial, and the courtroom bailiff.
To be sure, Heller and its progeny have reinforced longstanding jurisprudence permitting prohibitions on guns in government buildings. But this does not obviate NYCLA’s concerns about the security of judges, lawyers, and the buildings in which they work. As demonstrated by the examples above, guns and bullets can still make their way into courthouses. Moreover, gun violence frequently occurs outside the courthouse, when judges, court officials, litigants, and others are entering or leaving the building.
For instance, in 2003, a California attorney was shot several times as he was leaving a Los Angeles courthouse. The attorney was managing a trust that his assailant “felt was denying him money.”
In February 2013, a woman was critically shot as she was leaving a courthouse in South Carolina. The woman had come to the courthouse for a child support hearing. But instead of attending the hearing, the father of her child waited for her in the courthouse parking lot and opened fire.
Similarly, in 2017, an Ohio state court judge was ambushed and shot while entering the courthouse. More recently, in March 2020, a Mississippi chancery judge was shot while getting out of his vehicle in the courthouse parking lot. Six of the seven incidents described above occurred in states with “shall issue” licensing regimes. Beyond that, courthouses have also been at the center of gang- related violence and mass-shootings.
Recent studies on gun violence occurring at courthouses further support NYCLA’s concern that adopting a more lenient licensing regime would lead to increased gun violence at or near courthouses in dense, urban areas.
According to a study prepared by the National Center for State Courts (the “Center”) violent Incidents directed towards the judiciary have increased every year since 1970:
The number of threats and violent incidents targeting the judiciary has increased dramatically in recent years. At the federal level, the U.S. Marshals Service’s Center for Judicial Security reports the number of judicial threat investigations has increased from 592 cases in fiscal year 2003 to 1,258 cases by the end of fiscal year 2011. At the state and local levels, the most informative data about state courts comes from studies conducted by the Center for Judicial and Executive Security (CJES). Their data show that the numbers of violent incidents in state courthouses has gone up every decade since 1970.
Between 1970 and 2009, the study reported 199 “violent incidents in state courthouses.” The study also reported that many of these incidents were “case related,” meaning “the person committing or plotting [the] violent act was involved in a past or present matter before the court.” More recently, between 2000 and 2011, 102 violent incidents occurred in state courts. This, the Center concluded, “clearly” indicates that violent incidents “are on the rise.” A separate study, focused exclusively on gun violence in courthouses, further reflects the upward trend in violence. More than 60% of reported courthouse shooting incidents between 1907 and 2007 have occurred in the last twenty years.
This upward trend in courthouse shootings has caught the attention of judges, lawyers, and bar associations—all of whom stress the need to consider alternative measures, in addition to enhanced security, to address this spike in gun violence. For instance, Judge Weller, who survived an assassination attempt in 2006, observed that weapon-detection technology and advanced security systems “have proven to be insufficient”—pointing to the fact that “incidences of violence continue to increase” and “[c]ourthouse shootings, bombings, and arson attacks have doubled over the last two decades.”
The American Bar Association too has studied the rise in gun violence and its impact, noting that “[i]ncreasingly there have been occurrences where violence has erupted and firearms are used inside and outside of the courtroom.” This, the ABA observed, directly impacts the public’s entrustment in the judicial system: “When litigants and the court personnel believe their courthouses and court facilities are not safe, integrity of the entire judicial process is compromised and undermined.” As a result, the ABA has lobbied for a number of policies and procedures that advocate for tightened security practices and the prohibition of concealed firearms at or near courthouses. Id.
NYCLA is especially troubled by this upward trend, given the dozens of state and federal courthouses and government buildings in New York City. Every year, hundreds of thousands of new cases are filed in these courts. In 2020, just at the state level, there were 6,430 criminal and 65,603 family court filings in New York City. With so many new matters filed each year—especially in the family and criminal areas—and with so many people entering the courthouses each day, the concern is well-founded.
III. Violence Against Legal Professionals Continues to Rise
Violence against legal professionals has steadily increased in recent years. According to a 27-state survey of almost 12,000 lawyers, 42% of lawyers reported having experienced at least one in-person confrontation that fell short of assault. A subsequent study of 28 states and more than 28,000 responding lawyers similarly reflects a growing rate of violence aimed at lawyers—depending on the state, 32.5% to 52.9% of lawyers reported experiencing some form of violence. “The results of these state surveys show that violence and threats of violence against members of the legal profession are much more prevalent than reported by the media or commonly perceived by practitioners.”
Legal professionals practicing in criminal and family law matters are especially exposed. This is largely attributable to the fact that these professionals handle highly sensitive and emotional matters and often personally “interact with individuals whose history and presentation indicate a likelihood of potential violence.” For instance, in March 2017, Sara Quirt Sann, a family-law attorney in Wisconsin, was shot and killed at her law office after previously representing the shooter’s ex-wife in divorce proceedings against him. A similar incident occurred in June 2018, when a Georgia divorce lawyer was shot and killed by his client’s estranged husband. Both attacks occurred in “shall issue” states.
As gun violence continues to grow nationwide— especially in states with licensing regimes that lack proper cause requirements—so too does the concern for the safety of legal professionals, who continue to face increasing incidents of violence. These safety concerns are magnified in locations, like New York City, where population density creates a breeding ground for conflict, and where crowds allow shooters to lie patiently in wait, fire their shots, and then melt away into a mass of people.
Over a century ago the California Supreme Court made an obvious observation: “It is a well-recognized fact that the unrestricted habit of carrying concealed weapons is the source of much crime, and frequently leads to causeless homicides, as well as to breaches of the peace, that would not otherwise occur.” Human nature has not changed since then.
State and local governments cannot be powerless to take appropriate measures, consistent with Heller, to protect the millions who live and work in urban environments and who are particularly vulnerable to gun violence simply in going about their daily lives. Indeed, it is imperative to limit the proliferation of dangerous weapons in the crowded streets, sidewalks, public buildings, and subways of cities such as New York.
By fostering public security, the present regulatory scheme has helped make New York a world-class city for business, tourism, and the practice of law. A heavily armed Manhattan would create a tinderbox that could ignite at the mildest provocation, exacerbated by the tensions of city life. Simply put, New York’s regulatory scheme recognizes the fragile balance of life, public safety, and individual rights in the Empire State. This Court should decline petitioners’ invitation to upset that balance. The Constitution does not compel transforming Broadway, Times Square, or Foley Square into the O.K. Corral.
September 21, 2021
Benjamin G. Shatz
Counsel of Record
& Phillips, LLP
2049 Century Park E
Los Angeles, CA 90067
Jacqueline C. Wolff
Matthew F. Bruno
& Phillips, LLP
7 Times Square
New York, NY 10036