Law­suits pur­sue right to pos­sess non­lethal weapons

The Washington Times Daily - - FRONT PAGE - BY AN­DREA NO­BLE

Five states and sev­eral ci­ties out­law pos­ses­sion of stun guns, even for self-de­fense. But such bans could fall by the way­side in the com­ing year as Sec­ond Amend­ment ad­vo­cates ramp up court chal­lenges against ju­ris­dic­tions that deem the weapons il­le­gal.

The D.C. Coun­cil last week ap­proved leg­is­la­tion to roll back a city ban on pos­sess­ing stun guns, as well as a re­quire­ment for res­i­dents to regis­ter pep­per spray with po­lice, af­ter the ban was chal­lenged in court.

Of­fi­cials in New Jer­sey and New Or­leans are work­ing to set­tle sim­i­lar law­suits brought this year claim­ing bans on stun gun own­er­ship vi­o­late res­i­dents’ con­sti­tu­tional right to bear arms. Lawyer Stephen Stam­boulieh, who is rep­re­sent­ing clients in both cases, said agree­ments to set­tle will re­quire judges to strike down the bans or law­mak­ers to re­vise the reg­u­la­tions.

Stun guns are de­signed to im­mo­bi­lize at­tack­ers through high-volt­age elec­tric shocks that are ad­min­is­tered ei­ther through di­rect con­tact with

prongs or by strik­ing a tar­get with dart­like pro­jec­tiles. Peo­ple who have gone to court to seek the right to carry the de­vices say they would pre­fer hav­ing a non­lethal weapon for self-de­fense rather than a firearm but have cited Sec­ond Amend­ment pro­tec­tions in de­fend­ing their right to do so.

What re­sulted in the flurry of law­suits chal­leng­ing bans on stun guns was a Supreme Court rul­ing in March that cast doubt on the le­gal­ity of a Mas­sachusetts ban on own­er­ship of the de­vices. The rul­ing did not over­turn the ban but re­jected ar­gu­ments in­voked by the Supreme Ju­di­cial Court of Mas­sachusetts, in which judges ruled that stun guns were not pro­tected un­der the Sec­ond Amend­ment be­cause they “were not in com­mon use at the time of the Sec­ond Amend­ment’s en­act­ment.” The case was sent back to the lower court, where the charges ul­ti­mately were dropped.

Mr. Stam­boulieh and other Sec­ond Amend­ment ad­vo­cates say the de­ci­sion laid the ground­work for chal­lenges to other bans of non­lethal items for self-de­fense.

In the na­tion’s cap­i­tal, three res­i­dents chal­lenged the city’s ban on stun gun pos­ses­sion over the sum­mer and were al­lowed to keep Tasers in their homes while the law­mak­ers de­bated re­peal leg­is­la­tion.

On Dec. 20, the D.C. Coun­cil unan­i­mously ap­proved leg­is­la­tion that will al­low peo­ple 18 and older to pur­chase and carry stun guns through­out the city — ex­cept in­side cer­tain fa­cil­i­ties such as govern­ment build­ings and schools.

Mr. Stam­boulieh also has filed law­suits on be­half of res­i­dents in New York, New Jer­sey and New Or­leans. He ex­pects to file le­gal chal­lenges in two states that out­law stun guns: Hawaii and Rhode Is­land.

“We are go­ing to make them jus­tify their rea­sons to the court if they want to keep [the bans],” Mr. Stam­boulieh said. “When you talk about Sec­ond Amend­ment rights, you have to fight tooth and nail.”

Ac­knowl­edg­ing the Supreme Court de­ci­sion, New Jer­sey At­tor­ney Gen­eral Christo­pher S. Por­rino wrote in court fil­ings last month that of­fi­cials “rec­og­nize that an out­right ban on the pos­ses­sion of stun guns within a state, re­gard­less of the con­tex­tual cir­cum­stances sur­round­ing any such pos­ses­sion, would likely not pass con­sti­tu­tional muster.”

But the state is con­cerned about hav­ing time “to is­sue rea­son­able reg­u­la­tions re­lated to the pos­ses­sion, use and sale of stun guns” be­fore agree­ing to a set­tle­ment that would re­peal the ban, Mr. Por­rino wrote.

Head­ing into a Jan. 24 con­fer­ence in the case, Mr. Stam­boulieh, who is work­ing with the New Jer­sey Sec­ond Amend­ment So­ci­ety, has raised con­cern about the state’s con­tin­ued en­force­ment of the ban. In a let­ter this month to the fed­eral mag­is­trate judge over­see­ing the case, at­tor­neys in­cluded charg­ing doc­u­ments from Wayne Town­ship Mu­nic­i­pal Court that show a woman was charged with il­le­gal pos­ses­sion of a stun gun there on Dec. 6.

“With­out a rul­ing from this Court that the statute is un­con­sti­tu­tional, cit­i­zens are con­tin­u­ally sub­jected to pros­e­cu­tion for dis­obey­ing a con­ceit­edly un­con­sti­tu­tional law,” at­tor­ney Ryan Watson wrote.

Sim­i­lar ne­go­ti­a­tions be­gan in New Or­leans af­ter res­i­dent John Ford chal­lenged the con­sti­tu­tion­al­ity of the city­wide ban on the sale, pur­chase and pos­ses­sion of stun guns.

Un­der a deal reached this month that holds off an in­junc­tion of the ban un­til at least March 15, Mr. Ford is al­lowed to pur­chase and carry a stun gun any­where in the city where a firearm may be legally car­ried. The stip­u­lated agree­ment notes that the city “may at­tempt to re­solve this lit­i­ga­tion by re­vis­ing the rel­e­vant pro­vi­sions of City Code to ad­dress the stun-gun pro­vi­sion that plain­tiff al­leges to be un­con­sti­tu­tional.”

The New Or­leans mayor’s of­fice did not re­spond by dead­line to a re­quest for com­ment on the city’s plans to ad­dress the ban.

With the help of Mr. Stam­boulieh, the Firearms Pol­icy Coali­tion is chal­leng­ing a ban in New York.

“The Sec­ond Amend­ment ab­so­lutely pro­tects the right of law-abid­ing peo­ple to buy and pos­sess all arms in com­mon use for self-de­fense, like Tasers,” said coali­tion Pres­i­dent Bran­don Combs. “We are more than happy to re­mind New York that the right to keep and bear arms pre­vails over pa­ter­nal­is­tic and un­con­sti­tu­tional statutes like theirs.”

The New York at­tor­ney gen­eral’s of­fice de­clined to com­ment on the case.

If the law­suits suc­ceed in over­turn­ing the stun gun bans, Mr. Stam­boulieh said, his work doesn’t stop there. He in­tends to chal­lenge bans on other items com­monly used for self-de­fense, in­clud­ing mar­tial arts weapons such as nunchucks and ba­tons.

“We are go­ing to ex­pand out as far as we can to en­com­pass ev­ery arm that should not be banned,” he said.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.