On behalf of several association of private security guards and detectives, and the Buckeye Firearms Foundation, a brief in DC v. Heller supplies the facts of the appalling mismanagement and institutional incompetence of DC's Metropolitan Police Department. Almost everyone who lives or works in the District of Columbia is well aware that the District's government performs very poorly compared to almost all other big-city governments in the United States. Nevertheless, the Buckeye brief is shocking.
The four core empirical subparts of the brief are titled: "The MPD Has A Significant Problem Hiring And Retaining Qualified Police Officers." "The MPD Has A Significant History Of Mismanagement." "The District's '911 System Is A Joke'." and "The MPD Has A Significant History Of Corruption." Every one of these points is proven beyond a reasonable doubt, relying almost entirely on reports in Washington newspapers.
Moreover, although paying for security, through a private security guard firm, is still legal in DC, the MPD controls the licensing of security guards, and works hard to suppress the private security business through licensing abuse, and by prosecuting security guards on specious charges.
The brief then points out that the DC government enjoys civil immunity from persons who are injured because the MPD's non-feasance, even when persons were injured because they relied on false promises from DC 911 operators that help was on the way.
Thus, the decent, law-abiding citizens of the District have no other recourse but to protect themselves (or to hire security guards, if the , and, the brief argues, the Court should recognize the right of the District's citizens to do so themselves.
All Related Posts (on one page) | Some Related Posts:
- Military Brief in DC v. Heller:
- District Attorneys, the ABA, and precedent in DC v. Heller
- Errors Brief in DC v. Heller:...
- Law Enforcement Brief in DC v. Heller:
- The "Failed State" Brief in DC v. Heller:
- Jews for the Preservation of Firearms Ownership brief in DC v. Heller:...
- Claremont Institute Empirical Brief in DC v. Heller:
- NRA brief in DC v. Heller:
- Respondent's Brief in DC v. Heller:
Because that relies on the accuracy of the newspaper articles.
And if there is one thing we know, it's fallibility of newspapers as an information gathering resource. After all, Dave has an entire column dedicated to media criticism.
im pro gun- but this brief strikes me as a a real stretch for relevancy
From the brief:
The District of Columbia Metropolitan Police
Department has failed to provide adequate police
services to the District of Columbia’s citizens.
...
Even in a jurisdiction that is (emphasis mine) effective at providing police services, the police will never be able to provide completely thorough protection from criminal attack; they cannot be everywhere at once. Courts have consistently recognized and endorsed this premise (emphasis mine) in the cases immunizing the police for failing to protect the public. The only way to avoid this framework from having the singularly unconscionable result of the government creating a powerless victim class is for this court to interpret the Second Amendment as guaranteeing the fundamental, individual right to keep and bear firearms.
...
...this holding would empower citizens to defend themselves where the police cannot.
Please explain, Mr. Weiss, how you can honestly opine the irrelevance of the statements above.
Are you really intending to hang your entire opinion on this strawman?
some have different exceptions and limitations..and some require more or less outrageous behavior from the police.
i take it dc is pretty strict on the civil immunity side as opposed to the recovery of the innocent side.
the anti gun (and more direct) response to this is to reform those rules because dc has (admittedly) an incompetent emergency response system.
making the gun law unconstitutional is a roundabout way of solving some emergency situations (ones that need protection)..but reviewing civil immunity laws would help deter dc's incompetence in both police and fire and medical emergencies. such a direct solution would also be more fair to the innocent who are hurt because of the incompetence.
not every citizen can work a gun..but every citizen can hire a plaintiffs lawyer on contingency.
anti gun judges would see this for the roundabout policy argument it is..note the possible political solution, and dismiss it.
is your comment directed at me?
EH-
a stawman is when you put words in the mouth of those you disagree with that they would not say and that damage their position. im suggesting a possible good argument that can be made by anti gun people who are reading this brief.
true this brief is a policy argument not a substantive legal argument. but the people filing this brief know that since the substantive arguments can go either way..and since legal realists recognize that in reality...judges are often swayed by policy arguments even when the substance is clear.
im just syaing that as long as you have to bring in policy..make it more to the point than civil immunity laws for police...with this case woulnt change either way.
D.C. deserves this punch in the mouth because in their brief they claimed, essentially, that they had a responsibility to protect their citizens that could only be met by rendering their citizens defenseless.
As Heller's brief points out, D.C. has several times successfully defended itself against suits claiming that the city had failed in its duty to protect citizens in known danger.
Being that they cited Federal Supreme Court cases which found police not to be immune for failure to protect torts isn't the above statement wrong? Or more specifically, nowhere in the US are the police liable for failure to protect.
Furthermore, how does one "use the democratic process" to reverse those findings? An amendment to the constitution? Surely nothing less can trump the Supreme Court.
If the MPD is as incompetent as the brief claims, it would hardly be the first time an American government has been incompetent or even corrupt, Nor the last. No significance at all.
It's not the job of the judiciary to guarantee Americans good government. That's the job of the electorate.
Question is...if allowing a constitutionally-protected right to citizens on the basis that their state has failed them is decisive, then do we have to prove everywhere the 2d is litigated that the local governing entity is failed?
There are other failed states. Pakistan is getting there, some places in subSaharan Africa come to mind, and in the Horn.
What else is allowable when a state has failed?
And I don't think you can prove something to be a joke beyond a reasonable doubt.
"Also, as somebody has already pointed out, it's not even a *Constitutional* non sequitur, it's a policy argument, the same sort that conservatives are supposed to despise."
If you think policy arguments are something new in Supreme Court briefs, you haven't been paying attention. The original Brandeis brief was filed over 100 years ago. There's been no dearth of copycats in the intervening century. And how conservatives (or libertarians, or others) feel about policy arguments isn't the question. If the Court likes policy arguments, it's a foolish lawyer who refuses to make them.
"I hope they've got something stronger than that to bring before the Court."
Depends who you mean by "they." You may note that the Buckeye Firearms Foundation is just one of many amici. Between Heller's brief and those of the amici supporting him (not all of which have been filed yet, presumably, since the deadline is tomorrow), there will plenty for the Court to consider on the pro-individual right side.
Of course, you could claim that he's just a sloppy writer that includes irrelevant details in his briefs, but I'm not sure that's really a plausible argument.
Meanwhile, in the words of James Otis, taxation without representation is tyranny.
the constitution does not mandate sovereign immunity... it allows it..the supreme court was interpreting the common law doctrine and any waivers there might be.
any exceptions to sovereign immunity are at the complete control of the political branches.
it is true that police are not libaile for failure to protect in almost any juristiction..but thats not becuase the conittuion requires it.
perhaps however...dc could give a limited exception to the sovereign immunity law for the outrageous situations as do occur in dc...
Don't go there or us smokers will have to remind you of our nimbers.
Is there a need for SCOTUS to even decide that second issue though? It could just articulate the appropriate individual-right standard and remand for consideration of the issue under the new standard, with full presentation of relevant evidence and counter-evidence.
Why remand when ample evidence and argument is before the court? You have statistics and public policy arguments and facts as to how the law operates. If the argument is that there is a right that mandates evaluating the D.C. ban at a particular level of scrutiny, this information is relevant to scrutinizing the constitutionality of the D.C. ban. Remand is a waste of time and resources.
True, it is more of a policy argument. And I would say a counter to some of the other briefs. With that in mind, it may be focused at some of the more liberal judges, or as others have put it, use what ever arms (pun intended) are at your disposal.
I have seen this mentioned before and now I have to ask how this plays out if this is the case. Assuming we get no ruling on individual or not due to it being a state right, does that incorporate it right there even though incorporation is not part of the case?
The law seems constitutional to me, even if it's not sensible. The law-abiding residents of DC should be able to arm themselves for protection if they so choose. If the people of DC decide that removing guns from the city (not that this law will actually accomplish that) is the better course, then they should be allowed to follow it. The individual right to own a gun guaranteed by the constitution has no meaning outside someone's participation in the militia, which hasn't existed since before the Civil War.
On another line, the discussion about the DC police reminds me of a recurring item in News of the Weird called "The District of Calamity". It details the countless acts of corruption and incompetence that the DC government visits on its citizens every year. But, in a democracy, you get the government you vote for and deserve.
So there's a lot more in the way of law enforcement prowling the streets than one might imagine simply reading this court filing. All of them, I believe, have the authority to make arrests for any local violations. So it's MPD to the tenth power, IMHO.
You mean if one likes "legislating from the bench?" I thought conservatives hated that.
Yet, an awful lot of the arguments on this issue, not just this brief, seem to be based on policy preferences. What else is new?
In the District of Columbia (and all American jurisdictions to my knowledge) police are immune from civil liability if there is a failure to protect citizens. The courts have ruled - correctly - that a police force is not a guarantor of citizen safety. As is often repeated - correctly - the police cannot be all places at all times.
Therefore, it is highly ironic that the District government argues in its brief that citizens' safety is to be protected by the police to the exclusion of citizens' ability to do so via gun ownership.
To say that the legislature can undo this police department immunity is silly for several reasons.
First, the police department should be immune from civil suit - they cannot, even if they were managed perfectly, guarantee citizens' safety.
Second, Congress would have to pass such a law (repealing police department immunity in DC) and a President would have to sign it. That's simply not going to happen, no matter how much you think it should.
Third, and most important, giving a citizen the right to sue the police department for failing to protect the citizen is a hollow victory at best.
If a person breaks into your home at night, and you call 911, and while you're waiting for the police to arrive, the intruder rapes and kills your wife, will your ability to sue the police "make you whole"?
There is a long-standing right of self defense that has been a part of Anglo-American law for centuries. Indeed, even the UN recognizes the right of a person to protect themselves. For the citizens of the District to want to protect themselves is a desire for the most fundamental of human rights.
To suggest that suing the police is a remedy that's as good as killing an intruder before he kills and/or rapes you or your family is sophistry of the worse type. It's placing the importance of words above the importance of human life.
Thank you for noting the obvious.
By the way, the city is run by Democrats. Proof positive that modern liberals shouldn't be anywhere near power.
In a case like this where everyone is trying to squeeze obscure legalisms out of every text they can, a reality check is refreshing: "the prospect of imminent death focuses the mind wonderfully."
DC's brief pleads that disarming citizens is vital to protecting them; whatever else their appeal entails, that is the very essence of their claim. This "Failed State" brief gives lie to that claim, demonstrating that DC not only is fighting for the power to disarm citizens but also has repeatedly fought for the right to NOT protect them, and while the brief may be largely anecdotal, SCOTUS judges reside &work in DC and are aware of the truths thereof.
Yes, it is light on legalese. It also shows the real-world effects, which are very far from the original intent of the Constitution. DC's crime rate is the natural consequence of the "collective rights" theory - practically proving such an interpretation is not what the Founding Fathers had in mind.
When I called the bank to report it, they let me know that the man was a bank member and they had 1) his driver's license, 2) a surveillance video of him walking in and depositing the check, and 3) his bank information. Further, they expressed fully their intent to cooperate with the DC police and gave me information so that the detective could contact them.
Despite all of this, despite the fact that the detective's beat was Tenleytown (probably the safest area of DC) and despite my numerous calls and e-mails to the detective, the "investigation" never had a pulse.
Thanks Detective Vernon Jones and MPD!
Yes, when my car was stolen, on Cap Hill no less, I remember the detective assigned to the case telling me "if you find any leads, call me."
Nice.
I call to mind Prof. Kopel's observation in his post about the Lund brief, holding that brief up as one that did not commit this error:
While he doesn't say so much regarding the "Failed State" amici, I think this might well exemplify what he was talking about. The Lund brief was powerful precisely because it avoided the kind of bombast that this brief apparently embraces.
I certainly would not commend this brief for study to any moot court team I was coaching.
The main purpose of BFF's brief, as has already been ably pointed out, is to undermine the credibility of a part of D.C.'s brief. D.C. has taken the position that it should be able to ban guns in order to maximize law enforcement ability. BFF points out that D.C. has utterly failed to prove that the gun ban has resulted in reasonable, or even minimal, law enforcement. Thus, D.C.'s argument on that point is blown. It's not a legal argument. Just pure credibility.
BTW the government incompetence seems to have leaked into other sectors such as medicine. I know someone who had a double hernia, yet three DC surgeons, one of them chief of surgery at a major teaching hospital, failed to find the second. So did two doctors of internal medicine along with one ER doctor. That’s six. He went to NYC and saw three doctors (one a surgeon), and they all found the second hernia in a few seconds. He also discovered that his records at the DC teaching hospitals contained serious errors and omissions. They couldn’t even take his patient history accurately.
DC may plead in the alternative that A) the 2nd A isn't an individual right, and B) even if it is, the DC law passes "strict" or "intermediate" scrutiny because it's so important to government. This brief attacks the second part of the DC argument: it isn't a critical government interest if it demonstrably isn't working.
I don't know much about the 2nd amendment but would like to catch up on the Heller debate. Everything I've seen so far has seemed pretty one-sided (although I haven't looked around much). If someone can point me to a neutral analysis of the original history and (groan) "evolution" of the 2nd amendment, I'd be appreciative. Thanks.
Quite correct. The necessity of legal handgun ownership is often questioned on the grounds that "we have police for that sort of thing." Obviously in D.C., we don't.
Yes, none of this directly bears on the question of original meaning. That doesn't mean it's totally irrelevant to the case, and it's addressing arguments that the other side has made and will continue to make.
And proof positive that (most) modern conservatives are hypocrites. Conservatives, with all their concern for judicial activism and legislating and whatnot, should find this brief completely unpersuasive, since it attempts to convince judges to rule on a constitutional argument based on a policy preference- rather than what the original meaning of the Constitution is. Remarkably however, we find a number of conservatives, like yourself, abandoning this principle to leap to the briefs defense.
Except that when the evidence of history, legal theory, and social policy all support the "conservative" case, charity dictates that we be forgiven for acting like we've just won the Trifecta.
I think you might find it difficult to find something neutral on the subject because the Supreme Court has mostly sat on the sidelines of the second amendment debate. Any neutral discussion of the "evolution" of a constitutional history must to a large extent deal with how the Supreme Court has handled it, which, with the second amendment is almost nonexistent.
I am certainly not a second amendment scholar, but the article that I have found most useful is "The Second Amendment in Context: The Case of the Vanishing Predicate" by H. Richard Uviller and William G. Merkel. You can find it in the Chicago-Kent Law Review.
I believe that the article was also expanded into a book by the authors, or--given the length of the article--was merely published as a book too.
Let's suppose, for argument's sake, that some justices are swayed by petitioners' argument that intermediate scrutiny is the proper standard; and that some kind of licensing scheme would pass muster. I think that this brief would help counter that kind of argument, by reminding the justices that the District has a long history of corruption and incompetence, that calls into question the District's ability to run such a licensing scheme.
I would also think that it's helpful how this brief reminds the justices that the petitioners contradict their own claims; here, the District argues it has a duty to disarm its residents in order to protect them, but in other contexts, the District has successfully argued that it has no duty to protect its citizens.
No, I actually want them to rule on what the constitution (and federalist papers) actually says on the matter.
Pretty pathetic attempt at changing the topic and arm waving.
And again, Democrats have ruled DC for over 40 years.
It's going swell.
I'll go slow, since, well, you're obviously slow.
1. The brief responds to claims made by the District government.
2. I didn't set up, condone, encourage, or approve of the Supreme Court becoming a political body that makes rulings based on preferred policy outcomes. People like you did. Now that it's thrown back in your face, you're stamping your feet.
3. The brief is only supplementary to the central issue, which is the 2nd Amendment clearly confers and individual right which the District of Columbia goverment, Democrats all, are happily violating.
4. Remember clown, you leftists are "civil libertarians" for "privacy" except, well, when you're clearly not.
Thank for participating.
The Deshaney case cited stands for the proposition that governments can't take away your ability to take care of yourself. Kozinski made a similar point dissenting in US v. Lopez, stating that the government could not fairly deprive a felon-government witness of protection, then prosecute him for arming himself with a shotgun.
Classes on Constitutional and legal principals were taught not by a lawyer but by a police officer who had not been in a courtroom in a decade.26
Just wondering now when the last time any of the VC law professors were in a courtroom.
Isn't that (raw # of arrests) somewhat beside the point? If 1/2 of all crimes result in arrests, 1/2 of all arrests result in prosecution, and 1/2 of all prosecutions result in convictions, that would be a pretty big indictment of DC's law enforcement institutions regardless of what the number of arrests is.
I agree: the Court should make decisions based on the law. But don't tell me that there's something improper about countering DC's claim that the Loftin study showed that the law saved lives.
I look forward to the day when the Court says that they are deciding questions of law, and that all this other stuff is irrelevant to their decision. In the meantime, those of you who have relied on Brandeis briefs for much of a century to get the Court to act as superlegislature should stop whining that we are using your tools in defense.
Your library probably has For the Defense of Themselves and the State (Praeger Press, 1994) by yours truly. While there has been some new material found since I wrote it, you will find that most of the legislative history that appears in these briefs is in my book.
Do I detect a slight hint of derisive understatement?
BTW, sir, I see the amicus brief from Academics for the Second Amendment is up on Scotusblog, and that you provided "historical assistance". Thank you very much for your defense of our liberty.
VC regular Randy Barnett was a co-counsel.
Please see Clayton Cramer's response. He beat me to it.
There's also some stuff that's somewhat tangential to gun ownership. For example, free blacks not only could and did vote in the 17th century in Virginia, South Carolina, and Maryland--but a black man was elected to the Maryland legislature in the 1640s.
My point is simply that there is operational law enforcement in DC. There may be problems, but calling DC a "failed state" is ludicrous.
Looking at the brief, it seems the newspaper cites are all from the mid-1990s and (oddly) the early 80s. My experience is post-2000. At best, this brief is making an accurate claim about conditions 10 or more years ago. At worst, it's grossly exaggerated no matter what time period we're talking about.
To be fair, all desks are not created equal...I have to think that your desk is more like an 'assault' desk with respect to historical information!
Psst...don't let Dilan know that I'm praising you...he get's jealous.
Cramer- "I am amused at the number of liberals now whining that the Court should just make decisions based on the law (and especially, stare decisis) who seem to have forgotten how social science arguments--a policy question argument if there ever was one--were central to Brown v. Board of Education striking down 'separate but equal' as intrinsically unequal."
You've got to be kidding me. Proving that separate but equal wasn't equal was NOT a policy question argument. The law called for equality (not separate but equality)- perhaps you should read the 14th amendment. Case law (Plessy) claimed separate but equal was Constitutional because it was indeed equal. The question of whether seperate but equal amounts to equality under the 14th amendment is a legal question- and the "social science arguments" helped prove that seperate but equal was not equal.
Also, you should know that I believe that the second amendment is an individual right &that DC should not be able to create a flat prohibition of firearms - although to say that is clear from the text or history is an overstatement.
I imagine quite a few folks are glad Jeanne Assam brought her gun to church.