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Everytown's Brief in Support of Defendants' Motion

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Everytown's Brief in Support of Defendants' Motion Case 2:17-cv-00903-WBS-KJN Document 97 Filed 01/28/19 Page 1 of 25 1 Neal A. Potischman (SBN 254862) DAVIS POLK & WARDWELL LLP 2 1600 El Camino Real Menlo Park, California 94025 3 Phone: (650) 752-2000 Fax: (650) 752-2156 4 [email protected] 5 Attorneys for Amicus Curiae Everytown for Gun Safety 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM WIESE, et al., No. 2:17-cv-00903-WBS-KJN 12 Plaintiffs, 13 - v. - BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY 14 XAVIER BECERRA, et al., IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS 15 Defendants. PLAINTIFFS’ THIRD AMENDED COMPLAINT 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN SUPPORT OF DEFENDANTS NO. 2:17-CV-00903-WBS-KJN Case 2:17-cv-00903-WBS-KJN Document 97 Filed 01/28/19 Page 2 of 25 1 CORPORATE DISCLOSURE STATEMENT 2 Everytown for Gun Safety has no parent corporations. It has no stock and hence no 3 publicly held company owns 10% or more of its stock. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN SUPPORT OF DEFENDANTS NO. 2:17-CV-00903-WBS-KJN Case 2:17-cv-00903-WBS-KJN Document 97 Filed 01/28/19 Page 3 of 25 1 TABLE OF CONTENTS 2 PAGE 3 TABLE OF AUTHORITIES .......................................................................................................... ii 4 INTEREST OF AMICUS CURIAE ................................................................................................1 5 INTRODUCTION ...........................................................................................................................2 6 7 ARGUMENT ...................................................................................................................................4 8 I. California’s Prohibition of Large-Capacity Magazines Is Part of a Longstanding History of Analogous Prohibitions ...............................................................4 9 A. There Is a Longstanding Tradition of Prohibiting Firearms Capable 10 of Quickly Firing Multiple Rounds Without Reloading .............................................5 B. Proposition 63 Is Consistent with Centuries of Laws Prohibiting 11 Weapons Deemed to Be Especially Dangerous ..........................................................7 12 II. The “Common Use” Test Proposed by Plaintiffs Is Illogical and Should Not Be Followed. .................................................................................................................8 13 III. The Use of Large-Capacity Magazines Makes Mass Shootings and Other Gun Violence Incidents Deadlier .......................................................................................11 14 A. Everytown’s Analysis of Mass Shootings Shows That the Use of 15 LCMs Results in More Deaths and More Injuries ....................................................12 B. Social Science Research Shows that Large-Capacity Magazines Pose 16 a Serious Risk to Public Safety .................................................................................14 17 CONCLUSION ..............................................................................................................................17 18 19 20 21 22 23 24 25 26 27 28 BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN SUPPORT OF DEFENDANTS NO. 2:17-CV-00903-WBS-KJN Case 2:17-cv-00903-WBS-KJN Document 97 Filed 01/28/19 Page 4 of 25 1 TABLE OF AUTHORITIES 2 CASES PAGE(S) 3 Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 4 910 F.3d 106 (3d Cir. 2018) ............................................................................................... 2 5 Aymette v. State, 21 Tenn. 154 (1840) ............................................................................................................. 7-8 6 City of Renton v. Playtime Theatres, 7 475 U.S. 41 (1986) ................................................................................................................. 11 8 Cockrum v. State, 24 Tex. 394 (1859) ................................................................................................................ 7-8 9 District of Columbia v. Heller, 10 554 U.S. 570 (2008) ....................................................................................................... passim Drake v. Filko, 11 724 F.3d 426 (3d Cir. 2013) ..................................................................................................... 7 12 Duncan v. Becerra, 742 F. App’x 218 (9th Cir. 2018) ............................................................................................. 2 13 Friedman v. City of Highland Park, 14 784 F.3d 406 (7th Cir. 2015), cert. denied, 136 S. Ct. 447 (2015) ................................ passim 15 Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) ................................................................................................ 2, 4 16 Gallinger v. Becerra, 17 898 F.3d 1012 (9th Cir. 2018) ................................................................................................ 12 18 Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) .................................................................................... 2, 11, 16 19 Jackson v. City & County of San Francisco 746 F.3d 953 (9th Cir. 2014) .................................................................................................. 11 20 Kolbe v. Hogan, 21 849 F.3d 114 (4th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 469 (2017) ................. passim 22 Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185 (5th Cir. 2012) .................................................................................................... 4 23 N.Y. State Rifle & Pistol Association, Inc. v. Cuomo, 24 804 F.3d 242 (2d Cir. 2015), cert. denied sub nom. Shew v. Malloy, 136 S. Ct. 2486 (2016) ................................................................................... 2 25 Teixeira v. Cty. of Alameda, 26 873 F.3d 670, 673 (9th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 1988 (2018) ................. 5 27 28 ii BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN SUPPORT OF DEFENDANTS NO. 2:17-CV-00903-WBS-KJN Case 2:17-cv-00903-WBS-KJN Document 97 Filed 01/28/19 Page 5 of 25 1 United States v. Chester, 628 F.3d 673 (4th Cir. 2010) .................................................................................................... 4 2 United States v. Marzzarella, 3 614 F.3d 85 (3d Cir. 2010) ....................................................................................................... 4 4 United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc) .................................................................................... 4 5 Worman v. Healey, 293 F. Supp. 3d 251 (D. Mass. 2018) ........................................................................................9 6 7 STATUTES & RULES 8 1837 Ala. Acts 7, § 1 .......................................................................................................................8 1907 Ala. Acts 80, § 1 .....................................................................................................................8 9 1881 Ark. Laws § 1909 ....................................................................................................................8 10 1933 Cal. Acts 1170, § 3 ..................................................................................................................6 1917 Cal. Stat. 221, ch. 145, § 1 ......................................................................................................8 11 1927 Cal. Stat. 938, ch. 552, §§ 1-2 ............................................................................................... 6 12 1837 Ga. Acts 90 ..............................................................................................................................8 33 Hen. 8, ch. 6, § 1 (1541) .............................................................................................................7 13 1931 Ill. Laws 452, § 1 ....................................................................................................................7 14 1913 Iowa Acts 307, ch. 297, § 2 ....................................................................................................8 15 1932 La. Acts 336, § 1 .....................................................................................................................7 1926 Mass. Acts 256, ch. 261 ..........................................................................................................8 16 1909 Me. Laws 141 ........................................................................................................................ 8 17 1927 Mich. Pub. Acts 887, No. 372, § 3 ......................................................................................5, 8 1927 Mich. Pub. Acts 887-89, No. 372, § 3 ....................................................................................8 18 1913 Minn. Laws 55 ...................................................................................................................... 8 19 1917 Minn. Laws 614, ch. 243, § 1 .................................................................................................8 20 1933 Minn. Laws 231, § 1 ...............................................................................................................6 1763-1775 N.J. Laws 346 ................................................................................................................7
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