O'Neil et al v. Neronha et al

2022 | Cited 0 times | D. Rhode Island | March 15, 2022


Plaintiffs, ) v. ) C.A. No. 19-612 WES PETER F. NERONHA., in his ) capacity as Attorney General; ) JAMES M. MANNI, in his capacity ) as Superintendent of the ) Rhode Island State Police, )

Defendants. ) ___________________________________)

MEMORANDUM AND ORDER WILLIAM E. SMITH, District Judge. Before the Court are Cross-Motions for Summary Judgment, ECF Nos. and Defendants, Peter Neronha, in his capacity as Attorney General, and James Manni, in his capacity as Superintendent of the Rhode Island State Police. The parties ask the Court to resolve a Second Amendment constitutional challenge to the prohibition against stun guns set forth in R.I. Gen. Laws § 11-47-42(a)(1). For the reasons stated herein, the Court finds that the statute violates the Second Amendment to the United States Constitution. Therefore, Plain- -Motion for Summary Judgment, ECF No. 35, is DE- NIED.


residents who wish to purchase, own, possess, and carry stun guns for self-defense. 10, ECF No. 31. These weapons are currently

prohibited by Rhode Island by General Law § 11-47-42(a)(1), which provides:

No person shall carry or possess or attempt to use against another any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, metal knuckles, slap glove, bludgeon, stun-gun -

R.I. Gen. Laws § 11-47-42(a) (emphasis added). On November 22, 2019, Plaintiffs filed a Complaint seeking a declaratory judgment and injunctive relief for violation of 42 U.S.C. § 1983. See Compl. ¶¶ 82-90, ECF No. 1. Plaintiffs allege that they are

tices and policies generally banning the acquisition, possession, carrying and use of Tasers and other electronic arms violates the Second Amendment to the United States constitution, facially and Id. ¶ 83. The parties filed cross-motions for summary judgment address- ing the constitutionality of the stun gun ban set forth in § 11- 47-42(a)(1). See generally . J. - , ECF No. 35-1. In

the motions, the parties dispute: (1) the scope of the statute; (2) whether the arms regulated by § 11-47-42(a) are protected by the Second Amendment; (3) the appropriate level of scrutiny; and (4) the application of such scrutiny to the challenged statute. The Court takes each issue in turn.


sitions, answers to interrogatories, and admissions on file, to- gether with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to ju Lima v. City of East Providence, 17 F.4th 202, 206 (1st Cir. 2021) (quoting Audette v. Town of Plym- outh, 858 F.3d 13, 19 (1st Cir. 2017)). -motions for summary judgment do not alter the summary judgment standard, but instead

parties deserves judgment as a matter of law on the facts that are Wells Real Est. Inv. Tr. II v. Chardon/Hato Rey Pship, S.E., 615 F.3d 45, 51 (1st Cir. 2010) (quoting A Group, Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001)). Where the parties have filed cross-motions simultane- ously, or nearly so, the district court ordinarily should consider

Id. (quoting P.R. Am. Ins. Co. v. Rivera-Vásquez, 603 F.3d 125, 133 (1st Cir. 2010)).


A. Statutory Interpretation Before turning to the constitutional analysis, the Court must briefly address dispute concerning the scope of the prohibition in § 11-47-42(a). In the Complaint, Plaintiffs allege that § 11-47-42(a) bans both Tasers and stun guns because a Taser can be used as a stun gun. Compl. ¶ 58. Plaintiffs also refer to the term and specifically request a dec- laration that the Court finds -47-42. Id. at 13, 14, 15.

Defendants contend that such a ruling would extend beyond the language of § 11-47-42(a) because the statute prohibits only stun guns, not Tasers According to Defendants, this interpretation of the statute is supported by its plain language, as well as the cannon of con- expression unius est exclusion alterius

thing Id. at 7. They argue that it would be improper to extend the reach of the provision to an object not named in the statute but which can be deployed in the same manner. Id. at 7 8. De- under § 11- 47-2(6) to demonstrate that the prohibition of stun guns in § 11- 47-42(a) was not meant to extend to Tasers, which, they contend, the General Assembly intended to regulate as firearms. 1

Id. at 8. Each party argues that an alternative interpretation of the statute leads to absurd results. - No. 39-1.

When the statute their pl Epic Enters. v. Bard Grp., LLC, 186 A.3d 587, 590 (R.I. 2018) (quoting Alessi v. Bowen Ct. Condo. goal is to give effect to the purpose of the act as intended by

1 Pursuant to § 11-47-2(6), : [A]ny machine gun, pistol, rifle, air rifle, air pistol, , , steel or metal projectiles are propelled, or that may readily be converted to expel a projectile, except crossbows, recurve, compound, or longbows, and except instruments propelling projectiles that are designed or normally used for a primary purpose other than as a weapon. The frame or receiver of the weapon shall be construed as a firearm under the provisions of this sec- tion. R.I. Gen. Laws § 11-47-2(6). Id. at 589-90 (quoting Webster v. Perrotta, 774 A.2d 68, 75 (R.I. 2001)). To accomplish this task, the Court Jerome v. Prob. Ct. of Barrington, 922 A.2d 119, 123

(R.I. 2007). Literal interpretations which lead to absurd re- Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608, 610 (1st Cir. 1995).

Beginning with the language of the statute, Section 11-47- 42(a) expressly bans possession of in addition to certain other enumerated weapons not at issue here. See § 11-47- 42(a). The statute does not further define the term and also does not refer to other types of electric arms. 2

See id. The parties agree that a Taser is more than a stun gun. See

2 Defendants suggest that stun guns and Tasers are part of a er class of electric weapons that includes everything from cattle prods to high- the Navy Surface Warfare Center. See Statement of Undis- SUF ¶ 7, ECF No. 38; see also Mem. Mem. Ex. B, at 50, ECF No. 35-2. Plaintiffs dispute this fact and argue that there is a distinction between electric arms avail- able to civilians stun guns and Tasers and electric arms available only to the military. -Mot. for Summ. J. 6 n.7, ECF No. 39-1; The argument regarding the scope of the statute to be limited to stun guns and Tasers, but to the extent that Plaintiffs request a ruling that the prohibition set forth in § 11-47-42(a) extends beyond such arms, such an interpretation SUF ¶¶ 1, 2, ECF No. 38. A stun gun is a hand- arc (spark) from one electrode to another to produce pain when

3 Id. ¶ 1. A Taser, on the other hand, -function conducted- which is capable of propelling steel projectiles up to a certain distance, but which also has a secondary feature, known as allows the weapon to operate as a stun gun. ¶ 2, 6.

Tasers are not included in the enumerated list set forth in § 11-47-42(a), nor are they specifically referenced in any other Rhode Island statute, including those relating to firearms. So while this weapon may fit the definition of firearm under § 11- 47-2(6) because it functions as "an instrument from which steel or metal projections are propelled," 4

see § 11-47-2(6), there can be

would not be supported by the plain language of the statute read in context.

3 Plaintiffs do not challenge tions of stun gun or Taser. Rather, Plaintiffs take issue with Defendants Taser are expelled by means of an explosive. See 1.

4 The parties each point to advisory rulings or letters issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives are firearms under federal law. See -9, ECF No. 35-1; Exs. D, E, ECF No. 35-2 - Ex. 1, ECF No. 39-2. These little dispute that a Taser is effectively and operationally a stun gun while in "drive stun" mode. See ¶¶ 2, 6 SUF ¶ 16. As such, Plaintiffs convincingly argue that it would

make no logical sense for the General Assembly to ban stun guns, but allow for a firearm to have an integrated stun gun feature which would allow it to avoid the statutory ban ; see v. Walmsley, 156 A.3d 422, 428 mechanical application of a statutory definition produces an ab- surd result or defeats legislative intent, th[e] [c]ourt will look

Therefore, the Court interprets the prohibition on possession and carriage set forth in § 11-47-42(a) to include both stun guns and Tasers. 5

B. Second Amendment Analysis exhibits demonstrate that this classification has perhaps changed

with different models of Tasers. See Reply Ex. 1. In any event, the Court does not find that such hibit Tasers under § 11-47-42(a).

5 This holding should not be interpreted to suggest that a Taser would not be subject to regulation as a firearm based on its projectile functionality. See § 11-47-2(6). The Court takes no position on that issue. Rather, the Court merely holds that the integrated causes it to be subject to the stun gun prohibition in § 11-47-42(a). being necessary to the security of a free State, the right of the

amend. II. In District of Columbia v. Heller, 554 U.S. 570, 592, 628-29 (2008), the Supreme Court rejected as unconstitutional a prohibition against handguns in the home, holding that the Second Amendment right to keep and bear arms applies to an individual unconnected to militia service 6

; and, the Court held, right of self-defense has been central to the Second Amendment

right. Heller, 554 U.S. at 628. 7

6 The Court made clear that the Second Amendment applies to the states through the Fourteenth Amendment in McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).

7 This holding is the law of the land and binding on this Court. But as the historian Joseph Ellis describes in the book American Dialogue: The Founders and Us, this conclusion is not historically accurate, nor defensible as an example of Constitu- Joseph Ellis, American Dialogue: The Found- ers and Us 160-70, 2018. much as it reflected public sentiment dressed - Id. at 163-68. As Ellis writes:

and his political agenda helps explain why his opinion in Heller is so difficult to follow, indeed seems almost designed to create a maze of labyrinthian pathways that crisscross, then double back on one another like a road map through Alice in Wonderland. For Scalia was com- mitted to providing an originalist reading of a histor- ical document whose words and historical context defied the conclusion he was predisposed to reach. If Heller The Court in Heller but emphasized that

ited. 8

554 U.S. at 626. More specifically, it instructed that longstand- ing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sen- sitive places such as schools and government buildings, or laws

reads like a prolonged exercise in legalistic legerde- main, or perhaps a tortured display of verbal ingenuity by an overly assiduous Scrabble player, that is because d him to perform three challenging tasks: to show that the words of the Second Amendment do not mean what they say; to ignore the his- torical conditions his originalist doctrine purportedly required him to emphasize; and to obscure the radical implications of rejecting completely the accumulated wisdom of his predecessors on the court. Id. at 165.

8 Eight years after District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court vacated a judgment of the Supreme Judicial Court of Massachusetts upholding a ban against the pos- session of stun guns. Caetano v. Massachusetts, 577 U.S. 411, 412 (2016). The majority opinion in Caetano was narrow and did not address the constitutionality of such a prohibition. Id. Instead, i for Id. More specifically, the Court rejected as inconsistent with Heller the findings that stun guns are not pro- tected by the Second Amendment because they (1) were not in existence when the Second Amendment was ratified; (2) are unusual because they are a modern invention; and (3) are not useful for military purposes. Id. imposing conditions and qualifications on the commercial sale of Id. at 626 27. Post-Heller -step Worman v. Healy, 922 F.3d 26, 33 (1st Cir. 2019). First, the Court must

Id. If it does, then the C determine what level of scrutiny is appropriate and must proceed

to decide whether the challenged law survives that level of scru- Id. at 33 (quoting Gould v. Morgan, 907 F.3d 659, 669 (1st Cir. 2018)).

1. Scope of the Second Amendment Right

- to determine whether the regulated conduct was understood to be

within the scope of the right at the time of ratification. Worman, 922 F.3d at 33 (quoting Gould, 907 F.3d at 669). However,

common use, at the time of ratification, does not end the matter. Id. at 34. Therefore, to answer this first prong, the Court analyzes lawful purposes like self- Id. at 35.

a. Presumption

The parties dispute who should bear the burden of demonstrat- ing that stun guns are (or are not) within the scope of Second Amendment protection. Plaintiffs argue that stun guns fall within Heller, which creates a rebuttable presumption in favor of Second Amendment protection. 4-5 (citing N.Y. , . Therefore, Plain- tiffs argue, it is the Defendants to prove that stun guns do not receive constitutional protection. De- fendants counter that Heller for

6, ECF No. 42. Rather, citing to Hollis v. Lynch, 827 F.3d 436, 447 (5th Cir. 2016), Defendants say that the pre- guns are not in common use and not commonly used for lawful pur-

Id. at 6-7. Defendants argue that the only presumption that matters in this case is that a duly enacted statute is pre- sumed to be constitutional. Id. at 7. To begin, there is little question that stun guns fall within s See Heller, 554 U.S. at 581 (quoting the 1771 legal definition of arms found in 1 Timothy Cunningham, A New and Complete Law Dictionary) (de- , thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another Ramirez v. Commonwealth guidance from the Supreme Court in Caetano II, we now conclude

. As to whether this creates a rebuttable presumption in favor of Second Amendment protection, the answer is less clear. In Heller, the Supreme Court rejected the argument that the Second Amendment extends only to arms in existence in the 18th century, to all instruments that constitute bearable arms, even those that

554 U.S. at 582. The First Circuit has not specifically addressed this ques- tion, but several other circuits have held that the government has the burden to show that an arm falls outside the scope of Second Amendment protection. NYSRPA, 804 F.3d at 257 n.73 (holding that Heller

Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011) government can establish that a chal- lenged law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant his- torical moment 1791 or 1868 then the analysis can stop there; the regulated activity is categorically unprotected, and the law ; Tyler v. Hillsdale Cnty. Sheriff , 837 F.3d 678, 685-86 (6th Cir. 2016) (placing burden on government to demonstrate that the law regulates conduct outside the scope of the second amendment); Mil- ler v. Bonta, 542 F. Supp. 3d 1009, 1029 correct starting orientation is that no arm may be prohibited. If

government first to prove the banned arm is dangerous and unusual, and if not that it is not commonly possessed, or not commonly possessed by law-abiding citizens, or not commonly possessed for . But see Hollis, 827 F.3d prima facie case . . . when the weapon is not - ). Mindful of the holdings

of Heller, and consistent with the decisions cited above, the Court concludes the presumption of Second Amendment coverage applies; therefore, in order for the analysis to end at step one, the State must show that stun guns are not within the scope of the Second Amendment.

b. Common Use for Lawful Purposes

The relevant question for the Court is weapons are in common use for lawful purposes like self- Worman, 922 F.3d at 35. Heller Id. the middle ground and particularly, as to how to plot the dividing line between common and uncommon use ; see Heller

. Generally, the common use inquiry involves a statistical analysis. NYSRPA, 804 F.3d at [C]ommon use is an objective and largely statistical inquiry . . . . considerable variety across the circuits as to what the relevant statistic is and what threshold is sufficient for a showing of Hollis, 827 F.3d at 449. Indeed, in Hollis, the Fifth Circuit Court of Appeals lists a propor- tion, [and] jurisdiction- Id.; see NYSRPA, 804 F.3d at 255 (holding that large capacity magazines were in common use where 50 million units were available for purchase); Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) . A weapon in common use

9 Hollis, 827 F.3d at 447. The First Circuit has not provided definitive guidance for this inquiry, but has suggested

Worman, 922 F.3d at 35 n.5 (quoting Friedman, 784 F.3d at 409) weapon can be banned is that there is a statute banning it so it

. Indeed, many courts have discussed the difficulty in applying this factor of the test. See Avitabile v. Beach, 368 F. Supp. 3d 404, 411 (N.D.N.Y. 2019) [T]rial courts have expressed frustration about the difficulty of meaningfully Maloney v. Singas, 351 F. Supp. 3d 222, 237 n.25 (E.D.N.Y. 2018)

9 use factor remains unclear. See Kolbe v. Hogan, 849 F.3d 114, 135 36 (4th Cir. 2017) (listing several questions raised in light of Heller need not answer those questions). Several circuits have held that weapons like machine guns and sawed-off shotguns are sufficiently dangerous to fall outside the scope of the Second Amendment. See United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012) (finding United States v. Marzzarella, 614 F.3d 85, 95 (3d Cir. 2010) (noting dangerousness of a sawed-off shotgun). Defendants have not argued dangerousness at the first step of this inquiry. task itself convinces the Court that common use cannot be a rele- vant, and certainly not the only relevant, criterion under Hel- ler . For their part, Plaintiffs provide four declarations from stun gun sellers describing the number of stun gun sales across the United States for more than a decade. See Ex. C, ECF No. 30-4. According to these declarations, approximately 6.5 million stun guns have been sold to consumers between 2008 and 2020. 10

See id.; see also . While Defendants agree that millions of stun guns have been sold As an example, Defendants

10 Defendants suggest that this total number may be misleading Mem. 12-13. They point out that only one of the declarations specifies that the sale amount does not include Tasers. Id.; see in Supp. Mot. Summ. J. Ex. C., ECF No. 30-4. Based on this declaration, Defendants assert in their statement of facts While Defendants are correct that only one of the declarations specifically notes the exclusion of Tasers, there is no indication that each of the other three declarations term to mean the broader category of electric arms. In any event, this dispute does not rise to the level of a genuine issue of material fact, both because the Court has determined that § 11- 47-42(a) also prohibits Tasers, and its conclusion remains if the total number of stun gun sales equals approximately 1.9 million. SUF ¶ 9. point to the dictionary that televisions or cell phones are in common use, but 6.5 million stun guns owned by less than one percent of the United States population, are not. Id. at 13. Primarily, however, Defendants urge the Court to use handguns as a measuring stick for its sta- tistical analysis. See -14. Defendants contend that the ratio of handguns to stun guns is more than 25 to 1 and assert that firearms owned in this country. Id. at 13. Concurring in Caetano v. Massachusetts, Justice Alito, joined by Justice Thomas, rejected a similar line of reasoning. See 577 U.S. 411, 420 (2016) (Alito, J., concurring). Justice Alito wrote that the statistical gap between the number of stun guns or Tasers Id. This is because if it were all weapons except weapon chosen by Americans for self- Id. (quoting Heller, 554 U.S. at 629). Justice Alito went on to say

sands of Taser who it appears my lawfully possess Id. (quot- ing People v. Yanna, 824 N.W.2d 241, 245 (Mich. Ct. App. 2012)). Furthermore, at least two other courts have found stun guns to be in common use. See Avitabile, 368 F. Supp. 3d at 411-12 (finding that at least 300,000 TASERs and 4,478,330 stun guns satisfied a finding of common use); Yanna, 824 N.W.2d at 245 (not- ing that stun guns and TASERs are legal in 43 states and although

Based on the record and the persuasive caselaw from other jurisdictions, the Court finds that stun guns are in common use for purposes of this step of the Second Amendment inquiry. Second, just as with common use for assessing whether an arm is typically pos- sessed for lawful purposes. Avitabile, 368 F. Supp. 3d at 412 (quoting Maloney, 351 F. Supp. 3d at 234-35). The Second Circuit look into both broad patterns of use and the subjective motives of NYSRPA, 804 F.3d at 256. On this point, Plaintiffs argue that only twelve arrests re- lating to stun gun usage in Rhode Island have occurred from 2005 to present, , while Defendants contend that incident reports dating back twenty years lack any reference to a stun gun being used in self-defense, Without question, the evidence in the record relating to typical use or possession is quite limited. But it is Defendants burden to demonstrate that stun guns are not used for lawful purposes such as self-defense, and they failed to do so. Therefore, this factor cuts in favor of Plaintiffs. Other courts have reached similar conclusions. In Yanna, the guns are not suited for lawful defensive purposes and . . . can

easily be use for torturing 824 N.W.2d at 244. The r list of criminal cases involving handguns, but the Supreme Court has determined that handguns are within the ambit of the Second Id. at 244-45. The court concluded that the govern- ment reason to doubt that the vast majority of Tasers and stun guns are possessed by law- Id. at 245. Similarly, in Avitabile, the district court found that the state had not rebutted the presumption that stun guns are typically used for lawful purposes. 368 F. Supp. 3d at 412. While the court stated that electric arms found e is no indication that [T]aser Id. (quoting Maloney, 351 F. Supp. 3d at 236). The court also found -seven states now permit the use and possession of electric arms with or without some form Id. In sum, Defendants have failed to demonstrate that stun guns are not in common use or not typically possessed for lawful pur- poses like self-defense.

c. Longstanding Prohibition

Finally, Defendants argue that even if stun guns are suffi- ciently common and typically possessed for lawful purposes, the nevertheless end at step one because the prohibition of and presumed to be lawful under Heller given that the Rhode Island General Assembly

1896 Mem. 16 17 (citing Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021)); Second Amendment if the record contain[s] evidence that [the sub-

jects of the regulations] have been the subject of longstanding, acc Young, 992 F.3d at 783 (quoting Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015)); see Heller, 554 U.S. at 626-

the mentally ill, . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, . . . [and] laws imposing conditions and qualifications on the com- To answer this question, a court looks for egories of laws specifically set forth in Heller. Young, 992 F.3d at 783. created a test for determining whether a regulation is longstand- few lines from [Heller] have been more controversial or

reg Natl Rifle Assn of Am., Inc. v. Swearingen, 545 F. Supp. 3d 1247, 1261 62 (N.D. Fla. 2021). Here, the prohibition of stun guns in § 11-47-42(a) does not

tions in Heller. See Heller, 554 U.S. at 626-27. Defendants contend, however, that and indeed located within could be considered

presumptively lawful because it bans other small weapons that have been historically prohibited Reply 10. In Young, the Ninth Circuit recently remarked -held weapons, capable of being concealed, including pistols, revolvers, dirks, daggers, brass knuckles, and slu earliest laws predating the constitution. See 992 F.3d at 784 86, 816

rying of firearms is a longstanding prohibition outside the scope of the Second Amendment). Section 11-47-42(a) includes bans against possession of

However, while stun guns may have some similar characteris- tics to some of the historical weapons enumerated in § 11-47- 42(a), including that a few these weapons are small and some typ- ically non-lethal, Defendants have not presented any evidence demonstrating the historical prevalence of prohibiting stun guns. See United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (finding a longstanding tradition of prohibiting juveniles from possessing handguns after analyzing contemporary and nineteenth . This Court will not extend such a Second Amendment limitation solely based on the addition of the stun gun to a list of arm prohibitions dating back to 1896. See United States v. Marzzarella, 614 F.3d 85, 94 (3d Cir. 2010) ognized exceptions to novel regulations unmentioned by Heller . Therefore, the prohibition against the possession of stun guns in § 11-47-42(a) is not presumptively lawful. Accordingly, like the other courts to have addressed this question, this Court finds that stun guns constitute arms within the protection of the Second Amendment.

2. Level of Scrutiny and Application At the second step of the analysis, what level of scrutiny is appropriate and must proceed to decide Worman, 922 F.3d at 33 (quoting Gould, 907 F.3d at 669). Plain-

tiffs argue that the Court need not apply any tier of scrutiny to

stead, they say, the Court should employ a categorical approach because the prohibition implicates possession of arms in the home. Id. In the alternative, Plaintiffs argue that strict scrutiny should apply for a similar reason because the ban severely bur- dens the core Second Amendment right to self-defense inside the home. Id. at 12. Defendants, on the other hand, argue that intermediate scrutiny applies because the statute prohibits only one type of electric arm (stun guns) and that Rhode Island law allows for possession of other weapons more traditionally used to protect the home. assert that nearly every other federal appellate court has applied intermedi- ate scrutiny to the challenged statute. Id. at 19 20.

a particular law or policy approaches the core of the Second Gould, 907 F.3d at 670- within the core of the Second Amendment requires a correspondingly strict level of scrutiny, whereas a law or policy that burdens conduct falling outside the core of the Second Amendment logically Id. at 671. In Gould Amendment right is limited to self-

11 Id. at

limited, because public safety interests often outweigh individual interests in self- Id. at 672 (quoting United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011)). In Worman, the First Circuit clarified that intermediate scrutiny is appropriate ore Second Amendment right to self-

is dispatched easily. While it is true that some courts have found bans on the possession of stun guns to be unconstitutional without applying any form of scrutiny, see Illinois v. Webb, 131 N.E.3d 93, 98 (Ill. 2019); Ramirez, 94 N.E.3d at 815; Yanna, 824 N.W. 2d at 246, the First Circuit has made clear that once a finding is made that challenged conduct is

11 The Court in Gould v. Morgan, 907 F.3d 659, 671 (1st Cir. 2018), protected by the Second Amendment, this . to evaluate the [law]

Worman, 922 F.3d at 36 (quoting Gould, 907 F.3d at 670). Further- more, in Worman, the First Circuit strongly suggested that employ- ing a categorical approach would not be appropriate in this context. See id. at 38 n.6 (citing Webb, 131 N.E.3d at 98) (dis-

law that restricts a certain type of arms is per se unconstitu-

So, the question becomes whether strict or intermediate scru- tiny should apply. For starters, the blanket ban on possession of stun guns in § 11-47-42(a) extends into the home and therefore implicates the core Second Amendment right. See Gould, 907 F.3d at 671; Worman, 922 F.3d at 36 (assuming that a ban on large capacity magazines and semi-automatic weapons implicated the core their ability to defend themselves in their homes ).

But the more difficult question relates to how heavily § 11- 42-47(a) burdens this core right. Gould, 907 F.3d at 670 71. In deciding that a restriction on large capacity magazines and certain semiautomatic assault weapons did not heavily burden the core right, the First Circuit in Worman highlighted the following crit- ical factors: (1) a set of the prohibited weapons the features that make handguns well-suited to self- the lack of record evidence that semi- automatic assault weapons had been commonly used in the home for such purposes;

through walls, risking the lives of those in nearby apartments or F.3d at 37.

Here, the the ban. Plaintiffs argue that § 11-47-42(a) effectively amounts to a complete ban on electric arm possession, and even if the Court considers the provision more narrowly to exclude Taser guns constitute the vast majority of electric arms

11. They also add that stun guns have many of the characteristics that would render these weapons preferable for defense of the home. See -12. Defendants, in contrast, argue that, as in Worman, the law only bans one member of a larger class of electric arms and there is no record evidence demonstrating that stun guns are commonly used for self- Reply 11. To be sure, some of the important considerations in Worman are not present here. For example, cate[] same way that a semiautomatic weapon does, because a stun gun is only effective at close range. Worman, 922 F.3d at 37; See Additionally, unlike in Worman, where the Court of Ap-

peals - defense within the home is tantamount to using a sledgehammer to stun guns have some features similar to handguns i.e. smaller size and ease of use helpful for self-defense. 922 F.3d at 37. Most courts analyzing Second Amendment challenges apply in- termediate scrutiny. See NYSRPA, 804 F.3d at 260-61; Marzzarella, 614 F.3d at 97; see also Worman, 922 F.3d at 38 aligns us with a number of our sister circuits, which have applied intermediate scrutiny to laws restricting semiautomatic assault Because the law does not survive even the less rigorous level of intermediate scrutiny, the Court will assume without deciding that this is the appropriate level of scrutiny to be applied.

Worman, 922 F.3d at 38 (quoting Gould, 907 F.3d at 672). conduct than in reasonably necessary Id. (quoting Gould, 907 F.3d at 674).

terests would no doubt be achieved less effectively absent Section 11-47- not harmless and are capable of being disguised or mistaken for

other harmless items by children. Id. at 21-22. Defendants also t restrictive 13.

Plaintiffs retort that there is no reasonable fit between the ban and public safety because it bars possession by all citizens, not just individuals with criminal records or minors, 16; that it makes no sense to ban electric arms that are non-lethal, particularly when handguns are allowed under Heller, 13; and that stun guns are a real problem, relying as they do on hypotheticals

to show the statute is narrowly tailored. Id. at 14.

protecting the safety of and well- Worman, 922 F.3d at 39 (quoting Gould, 907 F.3d 673). The critical ques-

Id. When analyzing this issue, the e that courts ought to legislature engaged in the enactment of state law. Gould, 907

F.3d at 673 (quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)) rence forecloses a court from substituting its own appraisal of the facts for a reasonable Id. But deference Id. at 673-72.

First, the statute at issue here may be distinguished from the provisions found constitutional under intermediate scrutiny in Worman and Gould in critical respects. In Worman, the challenged all semi- automatic weapons [or] impose any restrictions on magazines that 922 F.3d at 39. In Gould, the First Circuit found important that the firearm licensing statute, which allowed officials to issue a license to publicly carry firearms if certain qualifications were met, did not equate

could be 907 F.3d at 674. Here, § 11-47-42(a), under its plain terms, imposes a complete stun gun ban.

Second, as there were for semi- automatic weapons. Worman, 922 F.3d at 39; see Teter v. Connor, 460 F. Supp. 3d 989, 1006 (D. Hawaii 2020) dence that butterfly knives are closely associated with crime and . Although defendants sug- gest that the ability to disguise stun guns as other household items poses a challenge for state regulation or particular danger to children, the record is devoid of evidence demonstrating the real-world existence of this problem. 12

See Ezell, 651 F.3d at 690

its entire defense of the range ban on speculation . . . .

Moreover, defendants have provided the Court with no evi- dence demonstrating that the complete ban of these weapons lessens the adverse outcomes the State seeks to prevent. See Gould, 907

12 Certainly, this is not to say that such weapons are not at all dangerous. See Avitabile v. Beach, 368 F. Supp. 3d 404, 419 (N.D.N.Y. 2019) Heller and its progeny make clear, the fact that a class of arms entitled to Second Amendment protection might be dangerous in the wrong hands (e.g., handguns) does not necessarily justify their blanket ban in Id. F.3d at 675 (citing studies provided by defendants showing corre- lation between restrictive firearm licensing schemes and crime or gun violence). In fact, common sense suggests the opposite may well be true. See Avitabile, 368 F. Supp. 3d at 420 (suggesting that a ban on stun gun increases the potential for injury and crime because it may encourage individuals to buy handguns for protection instead).

Therefore, while the Court is

see Worman, 922 F.3d at 41, the deference is not unlimited. See Maloney, 351 F. Supp. 3d at 239 (holding a ban of nunchaku uncon- stitutional under intermediate scrutiny where the record lacked evidence of nunchaku- ally no evidence supporting a public safety rational for a total ban (as opposed to lesser restri of the weapon). In the absence of virtually any evidence to guns cannot survive a Second Amendment challenge. The total ban

of stun guns contained in R.I. Gen. Laws § 11-47-42(a)(1) clearly lacks the required asserted govern- mental interest and the means chosen to advance those interests, and accordingly, violates the Second Amendment.


For the reasons stated Judgment, ECF No. 30, is GRANTED Judgment, ECF No. 35, is DENIED. The prohibition against the possession and use of stun guns set forth in § 11-47-42(a) is an unconstitutional restriction of the right to bear arms under the Second Amendment in light of Heller. Consequently, Judgment shall enter in favor of Plaintiffs. Defendants are PERMANENTLY ENJOINED from enforcing § 11-47-42(a) as related to stun guns. IT IS SO ORDERED.

William E. Smith District Judge Date: March 15, 2022

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