Amicus Brief

No. 07-290 ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- DISTRICT OF COLUMBIA, ET AL., Petitioners, v. DICK ANTHONY HELLER, Respondent. --------------------------------- ♦ --------------------------------- On Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit --------------------------------- ♦ --------------------------------- BRIEF OF BUCKEYE FIREARMS FOUNDATION LLC, NATIONAL COUNCIL FOR INVESTIGATION AND SECURITY SERVICES, OHIO ASSOCIATION OF PRIVATE DETECTIVE AGENCIES, INC., DBA OHIO ASSOCIATION OF SECURITY AND INVESTIGATION SERVICES (OASIS), MICHIGAN COUNCIL OF PRIVATE INVESTIGATORS, INDIANA ASSOCIATION OF PROFESSIONAL INVESTIGATORS, AND KENTUCKY PROFESSIONAL INVESTIGATORS ASSOCIATION, AS AMICI CURIAE SUPPORTING RESPONDENT --------------------------------- ♦ --------------------------------- L. KENNETH HANSON III Counsel of Record FIRESTONE, BREHM, HANSON, WOLF AND BURCHINAL LLP 15 West Winter Street Delaware, Ohio 43015 (740) 363-1213 RAMÓN A. SANTINI 55 Rosewood Drive Springboro, Ohio 45066 MICHAEL R. MORAN MICHAEL R. MORAN CO., L.P.A.. 181 Granville Street Post Office Box 307437 Gahanna, Ohio 43230 (614) 476-6453 ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342- ARGUMENT I. THE DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT HAS FAILED TO ADEQUATELY PROTECT THE CITIZENS OF WASHINGTON, D.C. A. Washington, D.C. Has A Significant Crime Problem B. The MPD Has A Significant Problem Hiring And Retaining Qualified Police Officers.................................................. C. The MPD Has A Significant History Of Mismanagement D. The District’s “911 System Is A Joke”... E. The MPD Has A Significant History Of Corruption F. The MPD Has Stifled Private Security And Mismanaged The Industry’s Regulation II. THE CITIZENS OF WASHINGTON, D.C. HAVE NO LEGAL RECOURSE AGAINST THE METROPOLITAN POLICE DEPARTMENT FOR THESE FAILURES INTERESTS OF AMICI CURIAE1 Buckeye Firearms Foundation is a non-profit organization dedicated to defending and advancing human and civil rights secured by law, specifically the rights of Ohio citizens to own and use firearms for all legal activities including, but not limited to, self defense. Buckeye Firearms Foundation acts primarily through education and legal advocacy. Buckeye Firearms Foundation has a substantial interest in ensuring that the Second Amendment of the U.S. Constitution is interpreted to secure and guarantee the human and civil right of freedom from criminal acts and intimidation, without regard to the political whims of any particular government branch or administration. National Council for Investigation and Security Services (NCISS) is the sole nationwide organization in the United States dedicated to advancing and protecting the interests of the contract private security industry and professional private investigators. The business interests of NCISS members encompass the employment of more than 600,000 private security personnel, including security officers, private investigators, “private police” and other private sector protection professionals. NCISS is the voice of the industry in Washington, D.C. Ohio Association of Security and Investigation Services (OASIS) is the sole statewide professional trade organization dedicated to advancing and protecting the interests of the contract private security industry and licensed private investigators in Ohio. It was established in 1947 as the Ohio Association of Private Detective Agencies, a not-for-profit educational organization dedicated to advancing professionalism in an industry employing more than 20,000 Ohioans. Michigan Council of Private Investigators is the largest state professional organization dedicated to advancing and protecting the interests of licensed private investigators in the state of Michigan and sets ethical standards for those in the industry. Indiana Association of Professional Investigators is a state professional organization dedicated to advancing and protecting the interests of licensed private investigators in the state of Indiana. It sets ethical standards and includes government, law enforcement, fire service and special investigators as members. Kentucky Professional Investigators Association is a statewide professional association dedicated to advancing and protecting the interests licensed private investigators in the commonwealth of Kentucky. Private security officers and licensed private investigators are often called upon to provide protection when police services are unavailable or unsatisfactory. Private security personnel have a substantial interest in ensuring that the Second Amendment is interpreted to specifically allow private investigators and licensed, armed security officers, such as Respondent Dick Anthony Heller, broad firearm rights in their capacity as private citizens and private employees. Private security personnel are often plaintiffs in gun rights cases, or defendants in criminal prosecutions, as they clash with the patchwork of local gun control laws that invariably result in the government gaining a de facto monopoly over providing armed security and investigation services to often defenseless and helpless citizens. SUMMARY OF ARGUMENT I. The District of Columbia Metropolitan Police Department2 has failed to provide adequate police services to the District of Columbia’s3 citizens. The District is consistently a national leader in various crime categories while simultaneously demonstrating inability to adapt or change under the crippling bureaucracy endemic to the District. Compounding this deadly combination of high crime and inflexibility are constant examples of corruption, incompetence and outright misfeasance in the operation of the department.4 To compound the problem, the MPD is statutorily responsible for regulating their private sector competition, the private security industry, a duty executed poorly enough so as to embarrass an industry focused on constantly improving its professionalism. Unfortunately, this is not a mere phase or temporary problem for the District. Since the 30-plus year old implementation of what amounts to a complete ban on owning, carrying or using firearms for self defense, 5 the MPD has cycled through new chiefs and precinct commanders with depressing frequency. The only constant within the department has been the incompetence, corruption, cronyism and failure to perform the most basic duty of a police department—to protect and serve. The jaded citizens of the District have essentially given up on the police and the administration, resigning themselves to living as victims—or as outlaws, for those who choose to defend themselves despite the D.C. Gun Ban. The unavoidable result of the D.C. Gun Ban is that it is the victims, not the criminals, who are disarmed and rendered helpless. Not only are the police failing to protect district residents but the District government is burdening proven private sector solutions. II. Compounding the impact of the failures of the MPD are the numerous court cases which have exonerated and granted immunity to the police for their collective failure to adequately protect the public they disarmed. Rather than holding the police responsible for their failures, the courts have empowered the police department’s incompetence, nonfeasance and misfeasance. No matter the degree, police incompetence typically is not actionable; thus, there is no legal incentive to rectify the incompetence. The MPD has been sued several times over this incompetence. The fact patterns in these cases leave people of ordinary sensibilities outraged; outrage magnified by the failure of the courts to impose any liability for the misfeasance. These court decisions serve to empower the incompetence rather than remediate the department’s shortcomings. The essence of the court decisions is that the police must assume a special relationship or duty to a citizen, or a police officer must cross over the line into overt misconduct towards a citizen, prior to liability existing. Under this legal environment, the MPD’s incentive is to remain negligent and incompetent, thus evading liability for even gross negligence, rather than venture forth with a sense of mission and responsibility for their failures with the attendant liability for failing to protect the citizenry. III. As examined in Argument I, the MPD has failed to protect the citizens of the District. At the same time, as examined in Argument II, courts have exonerated and immunized the MPD for its incompetence and misfeasance. Within the context of a police department failing in the most basic duty owed to the citizens, to protect and serve, and courts declining to hold police departments accountable for even the most egregious of these failures, the Second Amendment must be interpreted as an individual right to keep and bear firearms for defense of self and others. To hold otherwise would be to hold that well-meaning but misguided governments and courts across America may render citizens defenseless victims without citizens having any meaningful recourse or alternatives. Even in a jurisdiction that is 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 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. For those citizens who choose to be self-reliant and self-sufficient, this holding would empower citizens to defend themselves where the police cannot. For those citizens who choose not to be victimized by the failures of the police but who are still not comfortable with arming themselves, this holding would empower competent private armed protection personnel to function as an alternative to the government provided police force.