Flanagan Giffords Brief

Case: 18-55717, 11/27/2018, ID: 11100603, DktEntry: 37, Page 1 of 32
No. 18-55717
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
______________________
MICHELLE FLANAGAN, et al.,
Plaintiffs-Appellants,
v.
XAVIER BECERRA, et al.,

Defendants-Appellees.
______________________
On Appeal from the United States District Court
for the Central District of California, No. 2:16-cv-6164 (Kronstadt, J.)
______________________
BRIEF OF AMICUS CURIAE

GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE
IN SUPPORT OF APPELLEES AND AFFIRMANCE
______________________
HANNAH SHEARER SIMON J. FRANKEL

GIFFORDS LAW CENTER TO MATTHEW Q. VERDIN
PREVENT GUN VIOLENCE COVINGTON & BURLING LLP
268 Bush St. # 555 One Front Street, 35th Floor
San Francisco, CA 94104 San Francisco, CA 94111
(415) 433-2062 (415) 591-6000
J. ADAM SKAGGS Attorneys for Amicus Curiae

GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE
223 West 38th St. # 90
New York, NY 10018
(917) 680-3473
CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c)(1),
Giffords Law Center to Prevent Gun Violence states that it has no parent
corporations. It has no stock, and therefore no publicly held company owns 10%
or more of its stock.

TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE........................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 2
ARGUMENT ............................................................................................................ 4
I. The Court Should Apply Intermediate Scrutiny to Review California’s
Public-Carry Laws. ......................................................................................... 4
II. California’s Public-Carry Laws Survive Intermediate Scrutiny

Because They Reasonably Further California’s Critical Public Safety
Objectives. ...................................................................................................... 7
A. California’s Laws Reduce Overall Gun Violence................................ 9

B. California’s Laws Reduce Potentially Deadly Confusion Over
Well-Intentioned Gun Carriers. .......................................................... 15
III. California’s Public-Carry Laws, In the Alternative, Are Historically

Longstanding and Do Not Implicate a “Core” Second Amendment
Right.............................................................................................................. 20
CONCLUSION ....................................................................................................... 22
i
TABLE OF AUTHORITIES
CASES Page
Bauer v. Becerra,
858 F.3d 1216 (9th Cir. 2017) .............................................................................. 1
Bonidy v. U.S. Postal Serv.,

790 F.3d 1121 (10th Cir. 2015) ............................................................................ 6
District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................................................................1, 21
Fla. Bar v. Went For It, Inc.,

515 U.S. 618 (1995) ..........................................................................................8, 9
Fyock v. Sunnyvale,
779 F.3d 991 (9th Cir. 2015) ..................................................................4, 7, 8, 12
Gould v. Morgan,
907 F.3d 659 (1st Cir. 2018) .......................................................................6, 8, 13
Jackson v. City & Cty. of San Francisco,
746 F.3d 953 (9th Cir. 2014) .......................................................................passim
Mahoney v. Sessions,
871 F.3d 873 (9th Cir. 2017) ..............................................................................13
McDonald v. City of Chicago,
561 U.S. 742 (2010) ..........................................................................................1, 9
Peruta v. Cty. of San Diego,
824 F.3d 919 (9th Cir. 2016) (en banc) ..........................................................1, 21
Teixeira v. Cty. of Alameda,

873 F.3d 670 (9th Cir. 2017) (en banc) ................................................................ 1
Young v. Hawaii,
896 F.3d 1044 (9th Cir. 2018), petition for en banc reh’g filed, No.
12-17808 (9th Cir. Sept. 14, 2018) ...........................................................7, 14, 20
ii
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. II ........................................................................................passim
STATUTES
Cal. Penal Code § 17030 ..........................................................................2, 3, 5, 9, 15
Cal. Penal Code § 22610 ............................................................................................6
Cal. Penal Code § 22810 ............................................................................................6
Cal. Penal Code § 25655 ....................................................................................2, 3, 5

Cal. Penal Code § 25850 ..................................................................................2, 9, 15
Cal. Penal Code § 25850(a) ...................................................................................3, 5
Cal. Penal Code § 26045(a) ...................................................................................3, 5

Cal. Penal Code § 26045(b) .......................................................................................5
Cal. Penal Code § 26150(a)(2)...........................................................................2, 3, 5
Cal. Penal Code § 26405(c) .......................................................................................6

Cal. Penal Code § 26405(d) .......................................................................................5
OTHER AUTHORITIES
Bill Laitner, Open-carry activist speaks out after school lockdown
scare, Detroit Free Press (March 12, 2015),
https://www.freep.com/story/news/local/michigan/2015/03/12/gun-
rights-open-carry-michigan-school-property/70249066/ ...................................19
Charles C. Branas et al., Investigating the Link Between Gun

Possession and Gun Assault, 99 Am. J. Pub. Health 2034, 2037
(Nov. 2009),
https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2008.1430
99.........................................................................................................................11
iii
CNN Wire, Man Suspected of Shooting Former USC Running Back

Joe McKnight Released from Custody, KTLA 5 NEWS (Dec. 2,
2016), http://ktla.com/2016/12/02/man-suspected-of-shooting-
former-usc-running-back-joe-mcknight-released-from-custody/. ........................ 9
Daniel W. Webster et al., Firearms on College Campuses: Research

Evidence and Policy Implications 10 (Oct. 15, 2016),
https://www.jhsph.edu/research/centers-and-institutes/johns-
hopkins-center-for-gun-policy-and-
research/_pdfs/GunsOnCampus.pdf ...................................................................12
David Hemenway & Sara J. Solnick, The Epidemiology of Self-

Defense Gun Use: Evidence from the National Crime Victimization
Surveys 2007–2011, 79 Preventive Med. 22, 23 (Oct. 2015). ............................12
David Wright, Road Rage Leads to Shooting, Suicide, ABC News
(June 19, 2018),
https://abcnews.go.com/US/story?id=93070&page=1 .......................................10
Dennis Hoey, Man with assault rifle prompts flurry of police calls in
Portland, Portland Press Herald (December 24, 2012),
http://www.pressherald.com/2012/12/24/man-with-gun-attracts-
attention-on-back-cove-trail/. .............................................................................18
Emily Badger, More Guns, Less Crime? Not Exactly, Wash. Post
(July 29, 2014),
https://www.washingtonpost.com/news/wonk/wp/2014/07/29/more
-guns-less-crime-not-exactly/ .............................................................................14
Freeway Shooter on the Loose in Apparent Case of Road Rage, CBS

LA, May 19, 2018,
https://losangeles.cbslocal.com/2018/05/19/freeway-shooting-
moreno-valley/ ....................................................................................................10
Geoffrey Corn, Open-carry opens up series of constitutional issues for

cops, The Hill (Sept. 23, 2016), https://thehill.com/blogs/pundits-
blog/civil-rights/297480-why-police-interactions-in-open-carry-
states-are-so.........................................................................................................16
iv
Giffords Law Center, California’s Smart Gun Laws: A Blueprint for

the Nation (Nov. 20, 2018),
http://lawcenter.giffords.org/californias-smart-gun-laws-a-
blueprint-for-the-nation ..................................................................................3, 13
Gun rights walk in Portland spurs 911 calls, lockdown, The

Columbian (Jan. 10, 2013),
http://www.columbian.com/news/2013/jan/10/gun-rights-walk-
spurs-911-calls-lockdown/. .................................................................................19
Ian Ayres & John J. Donohue III, Shooting Down the ‘More Guns,
Less Crime’ Hypothesis, 55 Stan. L. Rev. 1193, 1270-71 (2003),
http://digitalcommons.law.yale.edu/fss_papers/1241.........................................14
Jesse Paul, Open carry becomes focus after Colorado Springs

shooting rampage, the Denver Post (Nov. 3, 2015),
http://www.denverpost.com/2015/11/03/open-carry-becomes-
focus-after-colorado-springs-shooting-rampage/. ..............................................17
John J. Donohue et al., Right-to-Carry Laws and Violent Crime: A
Comprehensive Assessment Using Panel Data, the LASSO, and a
State-Level Synthetic Controls Analysis, Nat’l Bureau Econ. Res.
42 (June 2017, revised Nov. 2018),
https://www.nber.org/papers/w23510...........................................................10, 11
John R. Lott, Jr., More Guns Less Crime (1st ed. 1998) .........................................14
Josh Blackman & James C. Phillips, Corpus Linguistics and the
Second Amendment, Harv. L. Rev. Blog (Aug. 7, 2018),
https://blog.harvardlawreview.org/corpus-linguistics-and-the-
second-amendment/ ............................................................................................21
Man with gun causes scare during children's baseball game, WSB-
TV (Apr. 24, 2014), https://www.wsbtv.com/news/local/man-gun-
causes-scare-during-childrens-baseball-gam/137105583...................................19
Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086,
1109–10 (2001),
https://www.kellogg.northwestern.edu/faculty/dranove/htm/dranov
e/coursepages/Mgmt%20469/guns.pdf...............................................................15
v
Michael Siegel, et al., Easiness of Legal Access to Concealed Firearm

Permits and Homicide Rates in the United States, 107 Am. J. Pub.
Health 1923, 1923–24 (Dec. 2017),
https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2017.3040
57.........................................................................................................................11
Molly Hennessy-Fiske, Dallas police chief: Open carry makes things
confusing during mass shootings, Los Angeles Times (July 11,
2016), http://www.latimes.com/nation/la-na-dallas-chief-
20160711-snap-story.html ..............................................................................2, 17
Nat’l Ctr. for Health Stats., Stats of the State of California (2016),
https://www.cdc.gov/nchs/pressroom/states/california/california.ht
m......................................................................................................................3, 13
S. Comm. Pub. Safety, Bill Analysis, A.B. 144 (Portantino), 2011-

2012 Sess. (Cal. 2011) ............................................................................16, 18, 20
Sandy Hausman, Unconcealed Guns Can Unsettle, But They're Often
Legal, NPR (Jan. 30, 2013),
https://www.npr.org/2013/01/30/170652470/unconcealed-guns-
can-unsettle-but-theyre-often-legal.....................................................................19
The Associated Press, Trial Begins Monday for Man Accused of

Killing Ex-NFLer in Louisiana Road-Rage Incident, NBC News
(Dec. 4, 2016), http://www.nbcnews.com/news/us-news/trial-
begins-monday-man-accused-killing-ex-nfler-louisiana-road-
n691701.................................................................................................................9
vi
INTEREST OF AMICUS CURIAE

Amicus curiae Giffords Law Center to Prevent Gun Violence (“Giffords
Law Center”) is a non-profit, national policy organization dedicated to researching,
writing, enacting, and defending laws and programs proven to reduce gun violence
and save lives. Giffords Law Center provides free assistance and expertise to
lawmakers, advocates, legal professionals, law enforcement, and citizens who seek
to make their communities safer from gun violence, and has a strong interest in
supporting laws regulating the public possession and carrying of firearms.
Giffords Law Center has provided informed analysis as an amicus in numerous
important firearm-related cases nationwide, including District of Columbia v.
Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010);
Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc); Teixeira v.
Cty. of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc); and Bauer v. Becerra,
858 F.3d 1216 (9th Cir. 2017).1
1
No counsel for a party authored this brief in whole or in part and no person other
than amicus curiae and its counsel made a monetary contribution to its preparation
or submission. All parties to this action have consented to the filing of this brief.
Fed. R. App. P. 29; Ninth Cir. R. 29-2.
1
INTRODUCTION AND SUMMARY OF ARGUMENT

Individuals who carry guns in public may harbor good intentions, but can
nonetheless create unacceptable risks to the public generally and law enforcement
in particular. In July 2016, Americans witnessed the devastating truth of that
statement when a gunman opened fire on police during a protest in Dallas.2 Up to
thirty civilians in attendance were lawfully carrying openly displayed rifles. The
Dallas Police Chief described the deadly confusion that ensued: “We don’t know
who the good guy is versus the bad guy when everyone starts shooting.” In the
time it took to identify the gunman, twelve officers were shot, five of them fatally.
To no surprise, studies confirm what the Dallas shooting suggests: more guns in
public mean more deaths in public.
Through reasonable restrictions on carrying firearms in public, California
sought to curb gun violence and the deadly confusion engendered by introducing
deadly weapons into populated areas. It did so by adopting strong concealed-carry
permitting standards and generally prohibiting open carry in incorporated areas,
like Los Angeles, where the risk of gun violence is greatest, as well as in those
portions of unincorporated areas where it is already unlawful to discharge a
weapon. Cal. Penal Code §§ 25850, 17030 (open carry); id. §§ 25655, 26150(a)(2)
2
Molly Hennessy-Fiske, Dallas police chief: Open carry makes things confusing
during mass shootings, Los Angeles Times (July 11, 2016),
http://www.latimes.com/nation/la-na-dallas-chief-20160711-snap-story.html.
2
(concealed carry). By all accounts, the state’s efforts have been successful:
Between 1993 and 2016, California’s gun death rate fell by 55% and remains well
below the national average today—7.9 deaths per 100,000, compared to the
national average of 11.8.3
At the same time, California was careful not to place a substantial burden on
the Second Amendment right to self-defense in public, such that its laws are
appropriately reviewed under the intermediate scrutiny standard. See Jackson v.
City & Cty. of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014). Indeed,
California’s restrictions on public carry do not prevent citizens from carrying
firearms when and where they are most likely to need them. Ordinary, law-abiding
citizens may openly carry firearms whenever they are faced with an immediate,
grave danger. Cal. Penal Code § 26045(a). And those same citizens may carry a
firearm openly in more remote, unincorporated areas, where access to police
services are limited, or carry a concealed firearm in less remote areas (after making
a showing of good cause). See id. §§ 25850(a), 17030 (unincorporated areas); id.
§§ 25655, 26150(a)(2) (concealed carry).
3
Giffords Law Center, California’s Smart Gun Laws: A Blueprint for the Nation
(Nov. 20, 2018), http://lawcenter.giffords.org/californias-smart-gun-laws-a-
blueprint-for-the-nation; Nat’l Ctr. for Health Stats., Stats of the State of California
(2016), https://www.cdc.gov/nchs/pressroom/states/california/california.htm.
3
California’s public-carry laws withstand intermediate scrutiny because
substantial evidence demonstrates that its laws reasonably fit the undisputedly
critical objective of promoting public safety. See Fyock v. Sunnyvale, 779 F.3d
991, 1000 (9th Cir. 2015). Studies confirm the common-sense conclusion that
permissive public-carry laws place all parties involved at increased risk of gun
violence. Moreover, in the absence of reasonable open-carry restrictions like those
California has adopted, even well-intentioned gun carriers can throw the public and
the police charged with protecting them into a state of potentially deadly
confusion.
Taken together, substantial evidence shows that California’s objective to
promote public safety by mitigating gun violence and reducing deadly confusion
“would be achieved less effectively absent the regulation[s]” on public carry,
demonstrating the reasonable fit required. Id. This Court should affirm the
decision below.
ARGUMENT
I. The Court Should Apply Intermediate Scrutiny to Review California’s

Public-Carry Laws.
Intermediate scrutiny applies to California’s public-carry laws because they
do not place a substantial burden on the Second Amendment right. See Jackson,
746 F.3d at 961. In determining the appropriate level of scrutiny, this Court
considers the burden a state’s laws place on the right. Id. When the state’s laws
4
“leave open alternative channels for self-defense,” the attendant burden placed on
the right is “not substantial” and intermediate scrutiny is appropriate. Id. Because
California’s public-carry regime, and in particular its open-carry laws, leave open
ample, alternative channels for self-defense, intermediate scrutiny is appropriate.
Id.
Far from a wholesale ban on public carry, California’s laws preserve the
right to self-defense in public when the need is the greatest. For example, in the
face of “immediate, grave danger” to any person or property, ordinary, law-abiding
citizens may carry a visible, loaded firearm if they reasonably believe it is
necessary to do so. Cal. Penal Code § 26045(a). When the danger is less
immediate, but still grave, a restraining order may effectively serve as a license to
do the same. Id. §§ 26045(b), 26405(d).
Not only is the right to self-defense in public preserved when it is most
needed, but it is preserved in the public places where that need is most likely to
arise. In more remote, unincorporated areas, where access to police services is
limited, open carry remains unrestricted in any public place or street where it is not
already unlawful to discharge a weapon. Id. §§ 25850(a), 17030. Even in heavily
policed, incorporated areas, ordinary, law-abiding citizens may still carry a firearm
in public, albeit concealed, after making a showing of good cause. Id. §§ 25655,
26150(a)(2). What is more, law-abiding citizens may carry encased firearms in
5
public when venturing between any private businesses or residences that permit
open carry. Id. §§ 26405(c). And if that were not enough, those same citizens may
exercise self-defense by obtaining and carrying less lethal weapons, such as stun
guns and pepper spray, almost everywhere in public. See Cal. Penal Code §§
22610, 22810.
Given these alternatives, the burden on any right to self-defense in public is
“not substantial,” and intermediate scrutiny therefore applies. Jackson, 746 F.3d at
961. Indeed, intermediate scrutiny makes particular sense for laws regulating guns
in public. Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015).
While other fundamental rights reviewed under a strict scrutiny test, like the right
to marry, “can be exercised without creating a direct risk to others,” the Second
Amendment right cannot. Id. Any right to armed self-defense in public carries
with it inherent, unavoidable risks to others because “[f]irearms may create or
exacerbate accidents or deadly encounters.” Id. The intermediate scrutiny test
gives legislatures such as California’s the appropriate degree of flexibility to craft
reasonable restrictions to regulate the dangers firearms pose to the public—
including restrictions that would be suspect if applied within the home. See, e.g.,
Gould v. Morgan, 907 F.3d 659, 672 (1st Cir. 2018) (“Many constitutional rights
are virtually unfettered inside the home but become subject to reasonable
regulation outside the home.”).
6
Intermediate scrutiny remains the correct test despite the divided panel
decision in Young v. Hawaii, 896 F.3d 1044, 1071 (9th Cir. 2018), petition for en
banc reh’g filed, No. 12-17808 (9th Cir. Sept. 14, 2018). The Young panel
declined to apply intermediate scrutiny to a Hawaii state law it construed as
limiting open carry to citizens engaged in certain professions because it concluded
the law entirely foreclosed ordinary citizens from exercising their Second
Amendment right. Id. at 1070–71. Far from foreclosing that right, California
allows any ordinary, law-abiding citizen to carry a visible firearm in remote areas
or exigent circumstances and to carry a concealed firearm after a showing of good
cause. Cf. Young, 896 F.3d at 1071-72 (rejecting application of intermediate
scrutiny to public-carry law that the panel determined was more restrictive than,
and did not function like, a good-cause law); see also id. at 1071 n.21.
In sum, intermediate scrutiny applies because California’s public-carry laws
do not place a substantial burden on the Second Amendment right, but instead
provide tailored exceptions that leave adequate alternatives for self-defense in
public. Jackson, 746 F.3d at 961.
II. California’s Public-Carry Laws Survive Intermediate Scrutiny Because

They Reasonably Further California’s Critical Public Safety Objectives.
California’s public-carry laws survive intermediate scrutiny because
substantial evidence demonstrates a “reasonable” fit between its restrictions and
the undisputedly critical objective of promoting public safety. See Fyock, 779 F.3d
7
at 1000. A reasonable fit does not require the state to show that the law is “the
least restrictive means of achieving its interest.” Id. Instead, it requires the state to
show that the law’s objective “would be achieved less effectively absent the
regulation,” based on reasonable inferences drawn from evidence “reasonably
believed to be relevant” to the problem addressed. Id; see also, e.g., Gould, 907
F.3d at 673 (court may not “substitut[e] its own appraisal of the facts for a
reasonable appraisal made by the legislature”).
In the absence of California’s restrictions on public carry, the public and the
police charged with protecting them would be put at increased risk of gun violence
and flung into a state of potentially deadly confusion. Substantial evidence
confirms the wisdom of that conclusion—taking the form, as it may, of studies,
anecdotes, and even common sense. Fla. Bar v. Went For It, Inc., 515 U.S. 618,
628 (1995). Because California’s objective to promote public safety by reducing
those risks would be achieved less effectively in the absence of its public carry
laws, California has demonstrated the reasonable fit necessary to survive
intermediate scrutiny. 4
4
The tailored exceptions and alternatives available under California’s public-carry
laws confirm that the laws bear not only a reasonable fit, but a close fit to
California’s public safety goals. For this reason and the others presented in the
State’s brief, Giffords Law Center joins the State’s argument that California’s laws
survive strict scrutiny. (State Appellee Br. at 54-57.)
8
A. California’s Laws Reduce Overall Gun Violence.

California’s public-carry laws promote public safety by reducing overall gun
violence, whether caused by an individual with good intentions or perpetrated by
one with more sinister motivations. In crafting its laws, California was careful to
reserve its strongest restrictions for incorporated areas, where high population
density increases the potential for a gunman to inflict casualties and regular
policing by law enforcement maintains the public peace. See McDonald v. City of
Chicago, 561 U.S. 742, 902 (2010); Cal. Penal Code §§ 25850, 17030. In the
absence of those and other restrictions on public carry, there is little doubt that the
public, police, and gun carriers themselves would be put at increased risk of gun
violence.
Simple common sense tells us that more guns in public mean more gun
violence. See Went For It, Inc., 515 U.S. at 628 (common sense can justify
regulations). Too many stories start with everyday disputes and end in fatal
confrontations when someone pulls out a gun. Take the road rage killings of two
former NFL players in Louisiana.5 One of these incidents started with a minor car
5
The Associated Press, Trial Begins Monday for Man Accused of Killing Ex-
NFLer in Louisiana Road-Rage Incident, NBC News (Dec. 4, 2016),
http://www.nbcnews.com/news/us-news/trial-begins-monday-man-accused-killing-
ex-nfler-louisiana-road-n691701; CNN Wire, Man Suspected of Shooting Former
USC Running Back Joe McKnight Released from Custody, KTLA 5 NEWS (Dec.
9
collision, and the other started when one driver possibly cut off the other in traffic;
both ended with a fatal shooting.6
Studies readily confirm the common-sense conclusion that lax public-carry
laws, like those in Louisiana, fuel violent crime and homicide. In a 2017 study
revised this month, Stanford Professor John Donohue (and colleagues) identified
persistent increases in rates of assault and other violent crimes after a state’s
adoption of more lenient “shall-issue” concealed-carry permitting laws. When
compared to what would have been expected without shall-issue policies, the laws
led to an approximately fourteen percent increase in violent crime within ten
years. 7 Indeed, during the nationwide decline in violent crime over the nearly
forty-year period analyzed, states that never adopted shall-issue laws, like
California, experienced a decline in violent crime that was approximately four
times greater than states that did adopt such laws. 8 The study attributed the higher
2, 2016), http://ktla.com/2016/12/02/man-suspected-of-shooting-former-usc-
running-back-joe-mcknight-released-from-custody/.
6
See, e.g., David Wright, Road Rage Leads to Shooting, Suicide, ABC News (June
19, 2018), https://abcnews.go.com/US/story?id=93070&page=1; Freeway Shooter
on the Loose in Apparent Case of Road Rage, CBS LA, May 19, 2018,
https://losangeles.cbslocal.com/2018/05/19/freeway-shooting-moreno-valley/.
7
John J. Donohue et al., Right-to-Carry Laws and Violent Crime: A
Comprehensive Assessment Using Panel Data, the LASSO, and a State-Level
Synthetic Controls Analysis, Nat’l Bureau Econ. Res. 42 (June 2017, revised Nov.
2018), https://www.nber.org/papers/w23510.
8
Id. at 16.
10
violent crime rates in shall-issue states to both otherwise law-abiding citizens with
permits, who may end up committing crimes that they otherwise would not have,
and criminals, who feel a greater need to carry a gun and have greater access to one
in a state with more armed citizens. 9
Not only does violent crime increase in general in states with lower
standards for granting public-carry permits, but homicide increases in particular.
In another recent study, researchers at Boston University and Duke University
linked shall-issue laws to higher homicide rates. Between 1991 and 2015, shall-
issue laws were significantly associated with 6.5% higher total homicide rates,
8.5% higher firearm homicide rates, and 10.6% higher handgun homicide rates.10
Just as lax gun regulations harm the public by increasing violent crime and
homicide, so too do they harm the gun carriers themselves. One study of more
than 600 shootings in Philadelphia led by researchers at Columbia University and
the University of Pennsylvania, for example, concluded that carrying a firearm
may increase a victim’s risk of injury by more than four times. 11 Indeed, that
9
Id. at 5–16.
10
See Michael Siegel, et al., Easiness of Legal Access to Concealed Firearm
Permits and Homicide Rates in the United States, 107 Am. J. Pub. Health 1923,
1923–24 (Dec. 2017),
https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2017.304057.
11
See Charles C. Branas et al., Investigating the Link Between Gun Possession and
Gun Assault, 99 Am. J. Pub. Health 2034, 2037 (Nov. 2009),
https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2008.143099.
11
number jumps to five times when the gun-carrying victim has some chance at
resistance. And that makes sense. Few possess the skills required to defend
oneself with a gun in public. “Shooting accurately and making appropriate
judgments about when and how to shoot in chaotic, high-stress situations requires a
high level of familiarity with tactics and the ability to manage stress under intense
pressure.”12 Unsurprisingly, victims of violent crimes use firearms in less than one
percent of all criminal incidents,13 and data from the National Crime Victimization
Surveys provide little evidence that defensive gun use is beneficial in reducing the
likelihood of injury or property loss.14
Taken together, the Stanford, Boston-Duke, and Columbia-Pennsylvania
public-carry studies demonstrate a reasonable fit between California’s laws and its
important interest in reducing gun violence. See Fyock, 779 F.3d at 1000. The
Stanford and Boston-Duke studies’ conclusion that restrictions on publicly carried
guns are associated with decreased crime supports California’s reasonable
12
Daniel W. Webster et al., Firearms on College Campuses: Research Evidence
and Policy Implications 10 (Oct. 15, 2016),
https://www.jhsph.edu/research/centers-and-institutes/johns-hopkins-center-for-
gun-policy-and-research/_pdfs/GunsOnCampus.pdf (explaining how inadequately
trained gun carriers may end up “wounding or killing innocent victims” when
attempting self-defense).
13
David Hemenway & Sara J. Solnick, The Epidemiology of Self-Defense Gun
Use: Evidence from the National Crime Victimization Surveys 2007–2011, 79
Preventive Med. 22, 23 (Oct. 2015).
14
See id. at 23–24.
12
inference that its regulations would decrease overall gun violence. And the
Columbia-Pennsylvania study’s conclusion that carrying a firearm decreases a gun
carrier’s safety supports California’s reasonable inference that its restrictions
protect the public and gun carriers alike. See Mahoney v. Sessions, 871 F.3d 873,
883 (9th Cir. 2017) (crediting city’s “reasonable inferences” that challenged policy
would aid public safety).
California’s success in limiting firearm deaths under its public-carry laws
eliminates any doubt as to whether its inferences are reasonable. Between 1993
and 2016, California’s firearm death rate fell by 55% and remains well below the
national average today—7.9 deaths per 100,000, compared to the national average
of 11.8.15 Viewed alongside compelling research on the specific dangers of lenient
public carry policies, the sustained improvements in California’s gun death rate
confirm that the state’s public-carry laws represent an informed, reasonable, and
constitutional policy choice. See, e.g., Gould, 907 F.3d at 674–75 (“Massachusetts
consistently has one of the lowest rates of gun-related deaths in the nation,”
bearing out state’s evidence that its public carry law substantially furthers public
15
Giffords Law Center, California’s Smart Gun Laws: A Blueprint for the Nation
(Nov. 20, 2018), http://lawcenter.giffords.org/californias-smart-gun-laws-a-
blueprint-for-the-nation; Nat’l Ctr. for Health Stats., Stats of the State of California
(2016), https://www.cdc.gov/nchs/pressroom/states/california/california.htm.
13
safety); see also Young, 896 F.3d at 1082 (Clifton, J., dissenting) (“Hawaii has a
very low firearm death rate as compared to other states”).
California’s inferences are even more reasonable given the comparative
dearth of reliable social science evidence in favor of deregulating public carry.
The flawed hypothesis that crime rates are lower in states with lax public-carry
laws can be traced back to a book published by John Lott in 1998. 16 But Lott’s
conclusion that lax laws are associated with lower crime rates has since been
widely refuted, including by Professor John Donohue. 17 Lott’s research is tainted
by two fundamental methodological errors. First, Lott aggregated the impact of
gun law passage for all the states studied. When researchers disaggregated the
effects for each state, it became clear that crime increased more often after the
passage of concealed-carry laws than it decreased.18 Second, Lott used crime data
at the county level and did not account for changing laws at the state level. When
16
John R. Lott, Jr., More Guns Less Crime (1st ed. 1998).
17
See, e.g., Emily Badger, More Guns, Less Crime? Not Exactly, Wash. Post (July
29, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/07/29/more-
guns-less-crime-not-exactly/ (“Numerous studies have critiqued [Lott’s]
methodology.”).
18
Ian Ayres & John J. Donohue III, Shooting Down the ‘More Guns, Less Crime’
Hypothesis, 55 Stan. L. Rev. 1193, 1270-71 (2003),
http://digitalcommons.law.yale.edu/fss_papers/1241.
14
researchers adjusted his analysis to account for this oversight, the results became
statistically insignificant.19
While this Court need not arbitrate the accuracy of Lott’s research compared
to the State’s evidence, the fact that Lott’s research has been repeatedly discredited
bolsters the reasonableness of California’s choice to disregard his and other
methodologically flawed research. (E.g., State Appellee Br. at 53 & n.7.)
B. California’s Laws Reduce Potentially Deadly Confusion Over

Well-Intentioned Gun Carriers.
California’s public-carry laws—and its restrictions on open carry in
particular—also promote public safety by reducing potentially deadly confusion
over well-intentioned gun carriers, especially in more populated areas where they
are more likely to be spotted. See Cal. Penal Code §§ 25850, 17030. When
unrestricted, open carry creates potentially deadly confusion because the intentions
of gun carriers, even if they are innocent, are unknown to the public and law
enforcement.
To the hapless citizens who happen upon individuals carrying visible guns in
public or the police officers called to investigate, such confusion may be fatal. In
19
See Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086, 1109–10
(2001),
https://www.kellogg.northwestern.edu/faculty/dranove/htm/dranove/coursepages/
Mgmt%20469/guns.pdf.
15
most circumstances, deciphering the intentions of armed citizens falls on the
shoulders of law enforcement. In fact, in adopting restrictions on the open carry of
unloaded handguns, California was responding to the proliferation of “open-carry
calls” to police made by citizens alarmed by public displays of firearms. S. Comm.
Pub. Safety, Bill Analysis, A.B. 144 (Portantino), 2011-2012 Sess., at N (Cal.
2011) [hereinafter A.B. 144 Bill Analysis].
Former Covina Chief of Police Kim Raney warned against the inherent risks
and confusion in responding to open-carry calls:
[O]fficers typically are responding to a situation about which they have

few details . . . . The officers may have no idea about the armed
person’s motives, intent, mental condition, or emotional
stability. . . . Should the armed person fail to comply with an officer’s
instructions or move in a way that could be construed as threatening,
the results could be deadly.
E.R. 2122 (Expert Witness Report); see also A.B. 144 Bill Analysis, at M-N.
Further complicating the encounter is a Catch-22: temporarily seizing the citizen
for questioning is contingent on some indication of wrongdoing, but the lawful
authority to carry openly means that displaying visible firearms falls short of that
requirement.20
20
Geoffrey Corn, Open-carry opens up series of constitutional issues for cops, The
Hill (Sept. 23, 2016), https://thehill.com/blogs/pundits-blog/civil-rights/297480-
why-police-interactions-in-open-carry-states-are-so.
16
Potentially deadly confusion may arise not only in direct response to open-
carry calls, but in response to any incident where open carriers are present. In
responding to an active shooter in July 2016, the Dallas Police Chief explained it
best: “We don’t know who the good guy is versus the bad guy when everyone
starts shooting.” 21 Up to thirty civilians were carrying rifles in the area, but only
one of them was the perpetrator. In the time it took to separate the “good guys
with guns” from the bad, twelve officers were shot, five of them fatally.
In another deadly incident illustrating the dangers of open carry, a woman in
Colorado Springs called 911 on a Saturday morning after spotting her neighbor
openly carrying a rifle on the street. 22 Instead of promptly sending police to
investigate, the dispatcher explained that such conduct was perfectly legal under
Colorado’s permissive open-carry laws. Only when the neighbor began shooting
did his conduct become unlawful, and by then it was too late: before police
ultimately did arrive, the neighbor killed a bicyclist and father of two, as well as
two others.
21
Molly Hennessy-Fiske, Dallas police chief: Open carry makes things confusing
during mass shootings, Los Angeles Times (July 11, 2016),
http://www.latimes.com/nation/la-na-dallas-chief-20160711-snap-story.html.
22
Jesse Paul, Open carry becomes focus after Colorado Springs shooting rampage,
the Denver Post (Nov. 3, 2015), http://www.denverpost.com/2015/11/03/open-
carry-becomes-focus-after-colorado-springs-shooting-rampage/.
17
Even when open-carry incidents do not end in shoot-outs, the confusion they
cause poses a grave threat to public safety because open-carry calls siphon off
limited law enforcement resources. If not for the calls, law enforcement could
expend its finite resources protecting the public from other deadly hazards.
Instead, in the words of a California legislator, open-carry calls “tax[] departments
dealing with under-staffing and cut backs . . . preventing them from protecting the
public in other ways.” A.B. 144 Bill Analysis, at N.
Stories abound of law enforcement wasting resources to respond to public
reports of lawful carrying citizens in more populated areas. For example, ten days
after the 2012 mass shooting at an elementary school in Newtown, Connecticut,
more than 65 residents called to report a man with a rifle walking around Portland,
Maine.23 Open carry is permitted in Maine, so the officers responding to the call
could not inspect the man’s weapon or even require him to identify himself.
Instead, the officers wasted resources keeping him under surveillance for nearly
four hours until he left the public area.
A few weeks later, a remarkably similar incident occurred in Oregon,
another permissive open-carry state. With rifles flung over their shoulders, two
23
Dennis Hoey, Man with assault rifle prompts flurry of police calls in Portland,
Portland Press Herald (December 24, 2012),
http://www.pressherald.com/2012/12/24/man-with-gun-attracts-attention-on-back-
cove-trail/.
18
men strolled through a Portland neighborhood on a Wednesday afternoon,
prompting a flurry of 911 calls and forcing a school to go into lockdown. 24
Incidents like this, a Portland police sergeant remarked, “take[] resources away
from potentially more serious incidents.” That risk is all the more grave because
“[a]nyone walking around with a visible firearm is going to generate calls from
concerned citizens that we have to respond to.”
These, unfortunately, are not isolated incidents. Across the country, in states
with laws more permissive than California’s, individuals carrying openly visible
guns have led alarmed grocery shoppers to flee stores and call 911,25 sown panic at
little league games, 26 and traumatized children by repeatedly forcing schools to go
into lockdown,27 among other incidents.
24
Gun rights walk in Portland spurs 911 calls, lockdown, The Columbian (Jan. 10,
2013), http://www.columbian.com/news/2013/jan/10/gun-rights-walk-spurs-911-
calls-lockdown/.
25
Sandy Hausman, Unconcealed Guns Can Unsettle, But They're Often Legal,
NPR (Jan. 30, 2013), https://www.npr.org/2013/01/30/170652470/unconcealed-
guns-can-unsettle-but-theyre-often-legal.
26
Man with gun causes scare during children's baseball game, WSB-TV (Apr. 24,
2014), https://www.wsbtv.com/news/local/man-gun-causes-scare-during-childrens-
baseball-gam/137105583.
27
Bill Laitner, Open-carry activist speaks out after school lockdown scare, Detroit
Free Press (Mar. 12, 2015),
https://www.freep.com/story/news/local/michigan/2015/03/12/gun-rights-open-
carry-michigan-school-property/70249066/.
19
For all the deadly confusion caused by open carry, it should come as no
surprise that California’s open-carry laws have been “actively supported by law
enforcement groups” from the beginning. Vernon L. Sturgeon and Jack B.
Lindsey, A.B. 1591, Bill Memorandum to Governor Reagan, at 1 (July 28, 1967).
More than forty years after California’s first law restricting the carry of loaded,
visible firearms, law enforcement continues to register their support for further
restrictions on open carry. A.B. 144 Bill Analysis, at A (noting support from
California Police Chiefs Association and Peace Officer Research Association of
California).
III. California’s Public-Carry Laws, In the Alternative, Are Historically

Longstanding and Do Not Implicate a “Core” Second Amendment
Right
Should this Court grant rehearing en banc in Young, this panel may revisit
the Young panel’s holding that “the right to carry a firearm openly for self-defense
falls within the core of the Second Amendment.” 896 F.3d at 1070. Contrary to
Young’s holding, carrying guns—whether visible or concealed—does not lie at the
heart of the right because public-carry restrictions fit comfortably within a
longstanding American tradition. Far from abridging a core Second Amendment
right, California’s public-carry laws are “presumptively lawful regulatory
measures” falling outside the Second Amendment’s historical scope. Jackson, 746
F.3d at 960.
20
Seven centuries of Anglo-American history provide “persuasive historical
evidence” of longstanding public carry regulations. See id. at 960. This Court has
already recognized as much, finding that some of the earliest firearm regulations in
America prohibited the public carry of arms entirely, whether concealed or open.
See Peruta v. Cty. of San Diego, 824 F.3d 919, 931 (9th Cir. 2016) (en banc). New
research since then has only confirmed the limited scope of the right to “bear
arms.” Analyzing over 100,000 founding-era sources, researchers found that the
“overwhelming majority of instances” in which the phrase “bear arms” was used
involved a military context, not civilians carrying guns for self-defense in public.28
California’s laws are consistent with the longstanding tradition of Anglo-
American public carry regulation. Indeed, California’s public-carry restrictions are
even more modest than other, more stringent restrictions that could pass
constitutional muster, because California residents may openly carry firearms in
emergencies and in remote areas and may obtain concealed-carry permits with
good cause. See Heller, 554 U.S. at 626 (“the majority of the 19th-century courts
to consider the question held that prohibitions on carrying concealed weapons were
lawful under the Second Amendment or state analogues”).
28
Josh Blackman & James C. Phillips, Corpus Linguistics and the Second
Amendment, Harv. L. Rev. Blog (Aug. 7, 2018),
https://blog.harvardlawreview.org/corpus-linguistics-and-the-second-amendment/.
21
CONCLUSION
Through its public-carry laws and restrictions on open carry, California has
sought to promote public safety by reducing gun violence and potentially deadly
confusion over well-intentioned gun carriers. Substantial evidence demonstrates
that this objective would be achieved less effectively in the laws’ absence, and
California has therefore demonstrated the reasonable fit required to survive
intermediate scrutiny. For these reasons, California’s laws are constitutional and
should be upheld.
Dated: November 27, 2018 Respectfully submitted,
s/ Simon Frankel
SIMON J. FRANKEL
MATTHEW Q. VERDIN
COVINGTON & BURLING LLP
One Front Street, 35th Floor
San Francisco, CA 94111
(415) 591-6000
HANNAH SHEARER
268 Bush St. # 555
San Francisco, CA 94104
(415) 433-2062
J. ADAM SKAGGS
223 West 38th St. # 90
New York, NY 10018
(917) 680-3473
Attorneys for Amicus Curiae

22
CERTIFICATE OF COMPLIANCE
I hereby certify that:
1. This brief complies with the type-volume limitation of Federal Rules of
Appellate Procedure 29(a)(5) and 32(a)(7)(B) and Ninth Circuit Rule 32-1 because
this brief contains 4,662 words, excluding the portions exempted by Federal Rule
of Appellate Procedure 32(f).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Word in 14-point Times New
Roman font.
Dated: November 27, 2018 COVINGTON & BURLING LLP
s/ Simon Frankel
SIMON J. FRANKEL

CERTIFICATE OF SERVICE
I certify that on November 27, 2018, I electronically filed the foregoing
document with the Clerk of the Court of the United States Court of Appeals for the
Ninth Circuit using the appellate CM/ECF system. I certify that all participants in
this case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.
Dated: November 27, 2018 COVINGTON & BURLING LLP
s/ Simon Frankel
SIMON J. FRANKEL

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Case: 18-55717, 11/27/2018, ID: 11100603, DktEntry: 37, Page 1 of 32

IN THE UNITED STATES COURT OF APPEALS

XAVIER BECERRA, et al.,

BRIEF OF AMICUS CURIAE

HANNAH SHEARER SIMON J. FRANKEL

J. ADAM SKAGGS Attorneys for Amicus Curiae

CORPORATE DISCLOSURE STATEMENT

or more of its stock.

INTEREST OF AMICUS CURIAE........................................................................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 2

II. California’s Public-Carry Laws Survive Intermediate Scrutiny

A. California’s Laws Reduce Overall Gun Violence................................ 9

III. California’s Public-Carry Laws, In the Alternative, Are Historically

Bonidy v. U.S. Postal Serv.,

District of Columbia v. Heller,

Fla. Bar v. Went For It, Inc.,

Teixeira v. Cty. of Alameda,

Cal. Penal Code § 22610 ............................................................................................6

Cal. Penal Code § 22810 ............................................................................................6

Cal. Penal Code § 25655 ....................................................................................2, 3, 5

Cal. Penal Code § 26045(a) ...................................................................................3, 5

Cal. Penal Code § 26405(c) .......................................................................................6

Charles C. Branas et al., Investigating the Link Between Gun

CNN Wire, Man Suspected of Shooting Former USC Running Back

Daniel W. Webster et al., Firearms on College Campuses: Research

David Hemenway & Sara J. Solnick, The Epidemiology of Self-

Freeway Shooter on the Loose in Apparent Case of Road Rage, CBS

Geoffrey Corn, Open-carry opens up series of constitutional issues for

Giffords Law Center, California’s Smart Gun Laws: A Blueprint for

Gun rights walk in Portland spurs 911 calls, lockdown, The

Jesse Paul, Open carry becomes focus after Colorado Springs

Michael Siegel, et al., Easiness of Legal Access to Concealed Firearm

S. Comm. Pub. Safety, Bill Analysis, A.B. 144 (Portantino), 2011-

The Associated Press, Trial Begins Monday for Man Accused of

INTEREST OF AMICUS CURIAE

Law Center”) is a non-profit, national policy organization dedicated to researching,

supporting laws regulating the public possession and carrying of firearms.

Giffords Law Center has provided informed analysis as an amicus in numerous

important firearm-related cases nationwide, including District of Columbia v.

858 F.3d 1216 (9th Cir. 2017).1

INTRODUCTION AND SUMMARY OF ARGUMENT

in particular. In July 2016, Americans witnessed the devastating truth of that

statement when a gunman opened fire on police during a protest in Dallas.2 Up to

public mean more deaths in public.

Through reasonable restrictions on carrying firearms in public, California

deadly weapons into populated areas. It did so by adopting strong concealed-carry

permitting standards and generally prohibiting open carry in incorporated areas,

portions of unincorporated areas where it is already unlawful to discharge a

national average of 11.8.3

appropriately reviewed under the intermediate scrutiny standard. See Jackson v.

California’s restrictions on public carry do not prevent citizens from carrying

firearm openly in more remote, unincorporated areas, where access to police

§§ 25655, 26150(a)(2) (concealed carry).

California’s public-carry laws withstand intermediate scrutiny because

violence. Moreover, in the absence of reasonable open-carry restrictions like those

Taken together, substantial evidence shows that California’s objective to

“would be achieved less effectively absent the regulation[s]” on public carry,

I. The Court Should Apply Intermediate Scrutiny to Review California’s

ample, alternative channels for self-defense, intermediate scrutiny is appropriate.