LA Times Editorial On McDavid Case Reichel, Plesser want a hearing!

February 22nd, 2015

The LA Times Editorial today about the McDavid case should be the final straw for Sacramento federal criminal judge MC England to hold an Order T Show Cause Hearing about what exactly happened in the case where federal criminal defense attorney Mark Reichel was denied the evidence in a trial in 2007.  It should be.

Editorial found here.


The case against cheating prosecutors

  • cheating prosecutors should be reported to their superiors and to the state bar, and weighed for prosecution

It should go without saying that cheating criminal prosecutors who lie or hide evidence to bolster their cases, and cowardly state judges who cover for them, should be identified and punished. It should go without saying — but we say it in light of last month’s extraordinary remarks from a panel of U.S. 9th Circuit Court of Appeals judges at a hearing for convicted murderer Johnny Baca. A lower court had determined that a Riverside County prosecutor lied on the witness stand to back up the lies of a jailhouse informant, but the conviction was repeatedly upheld anyway until it got to the federal appeals panel on a habeas corpus petition.

Judges Alex Kozinski, Kim Wardlaw and William Fletcher lit into the state deputy attorney general who was in front of them to defend the convictions, and a video of the exchange went viral. It sparked news stories and spirited exchanges on legal blogs about what Kozinski had previously called an “epidemic” of prosecutorial misconduct and assertions that too many California state trial judges are unwilling to do anything about it.

But lives are also at stake in the criminal courtroom. A sentence of 10 years or 20 years or even more — or of death — should not be rendered without absolute assurance that the trials were fair and that the prosecutors were honest. An argument could be made that prosecutorial misconduct is far more egregious and unforgivable than a police officer’s deadly error, because police officers must react in an instant to a potentially deadly threat to themselves or the public. A prosecutor’s misdeed comes with ample time to reflect.

Keep in mind that criminal prosecutors have duties that defense lawyers don’t. The prosecutor’s goal is not, or rather should not be, merely to win, but to ensure that proceedings are fair and verdicts are just. Prosecutors must disclose any evidence that could tend to undermine their own cases. They may not — again, it should go without saying — lie, encourage others to lie, or present witnesses they know or suspect to be lying.

California trial judges and appellate justices who encounter such misconduct have to determine whether it was so egregious — and so material to the conviction — that the verdict must be reversed. But then what?

In the hearing on Baca’s case, Kozinski complained that state prosecutors will keep committing misconduct “because they have state judges who are willing to look the other way.” Wardlaw noted that California state judges “are elected judges. They are not going to be reversing these things.”

The legal community has latched on to those comments and is involved in a debate over whether the essential enabling factor of prosecutorial misconduct is the fact that, unlike their federal counterparts, who are appointed for life, California judges must face the electorate. The argument goes that no judge wants to overturn a conviction or nail a prosecutor for fear of being branded soft on crime at election time.

But before becoming comfortable with the assertion that the problem is state judges and elections, let’s recall that Kozinski’s remark about an “epidemic” of misconduct or error came not in the Baca case but in a 2013 dissent — in a federal case.

If violations of the prosector’s duty to turn over potentially exculpatory evidence, as required under the 1963 case of Brady vs. Maryland, are indeed “epidemic,” it appears to be a disease that can spring up in any courtroom in which prosecutors believe they will be rewarded for convictions and judges, whether elected or with lifetime appointments, believe there is little point in reporting cheaters.

The 9th Circuit panel’s outrage at the Riverside County prosecutors serves as a reminder of this serious problem. It is incumbent upon state and federal judges and prosecutors, the state bar and others involved in the justice system to acknowledge it, and to present a solution.

Sacramento Defense Attorneys Reichel Plesser Doing Good Work Here

February 22nd, 2015

Hopefully, the new DNA evidence in this criminal case will help release this young man.

My interview explaining it is here.



New DNA Evidence Could Completely Change Leila Fowler Case

POSTED 7:06 PM, FEBRUARY 19, 2015, BY , UPDATED AT 07:02PM, FEBRUARY 19, 2015


It’s been almost two years since a terrible murder scene played-out in Valley Springs, and 8-year-old Leila Fowler lost her life.

It’s been almost two years since her older brother Isaiah Fowler was charged with that murder and arrested.

He’s just 14-years-old. So, much of his 12th year, and all of his 13th, were spent either in custody or, when he’s in court, in shackles.

His defense attorneys are confident that will end tomorrow.

“He is not the murderer. He’s a 12-year-old boy who, when law enforcement got there, was almost completely clean of any evidence of a crime scene, which is beyond impossible. A 12-year-old can’t clean up a crime scene,” defense attorney Mark Reichel said.

And this crime scene was particularly gory. Leila was stabbed more than 20 times with a knife that punctured both her heart and lungs.

But it’s not just the absence of blood on Isaiah that demonstrates his innocence according to his attorneys. They say it’s the presence of the bodily fluids of another person – a man.

It’s DNA found during testing, ordered by the defense this January, on a strand of Leila’s own hair, retrieved from under her clothes, from the cleft of her buttocks.

“Now you have scientific evidence that shows sometime, recently, prior to her demise, there was a male adult very close to her – close enough to deposit significant DNA,” Reichel said.

There was no evidence of sexual assault on Leila’s body when she was killed.

I asked Reichel what Isaiah’s reaction might be Friday if he’s released on bail.

“Words probably would fall far short of describing his emotions and what he’s thinking,” he said.

We contacted the Calaveras County District Attorney’s Office about this story. They told us they would not comment, because it is a case involving a minor.

As of now, the 2nd degree murder trial of Isaiah Fowler is still on the court calendar for mid-May.

If not Isiah,  then who?

“Everybody wants an answer. I wish I could give everyone an answer. But we can’t give an answer, other than to say it’s not the boy you’re holding in custody,” Reichel ssaid.

For nearly two weeks after the brutal murder of Leila Fowler, the Calaveras County Sheriff lead a manhunt looking for her killer. It would end with arrest of her then 12-year-old brother, the boy who was babysitting Leila at the time of her death. The boy who provided a description of the killer.

Now his defense attorneys are saying the key to their case was not hiding in the rolling hills of Calaveras County, but with a single strand of Leila’s hair and the DNA they found on it.

“It’s a complete profile of a male, and it doesn’t match anybody associated with the Fowler family, or those that had visited recently or been in the neighborhood,” Reichel said.

Reichel says the Calaveras County Prosecutor now is running that DNA sample through law enforcement data bases, looking for a match.

The science says there is some possibility that the male it describes is a relative of Leila and Isiah’s father, Barney Fowler.

Reichel says there is a killer still out there, and just as it was in days right after Leila was killed, it’s the job of law enforcement to find him.

“I know they were beating the bush and you were there when they were doing it,” he told FOX40. “But if in your heart and your mind, you’re certain you’re not going to find anything, then you’re not doing the job right, and you can overlook things.”


Sacramento Federal Criminal Defense Attorney Mark Reichel on NEWS10 About illegal Police Spying

February 12th, 2015

Sacramento criminal defense attorneys Mark Reichel and Steve Plesser are committed to enforcing our clients rights when charged with a crime.  ABC News interviewed Mark about police spying.  Here is the link and the story.


Mark Reichel interviewed by clicking here. 

Federal Indictment Based On ATF “Sting” Operation Dismissed In Los Angeles Central District For ATF Misconduct

May 14th, 2014

Central District Judge Manuel  Real dismissed all charges in a case involving ATF Officers setting up defendants to rip off non-existent “stash” houses.   The case is 13-CR-751 United States v. Flores et al.  Read all about it by checking the pacer docket   here:

There are a few of these cases in the Eastern District right now.

Man Throws Away 3 Small Fish And Ends Up In The US Supreme Court

May 14th, 2014

Recent cert petition granted.  Guy had 72 red grouper fish when Florida officers boarded his boat off shore. Alleged to be too small to keep.  Was told to bring the fish and boat to port.  He did.  Officers counted only 69 fish, and alleged that he had thrown 3 overboard.  Few years later, charged in federal court with a federal felony, basically Obstruction of Justice.  To be clear, a violation of the Oxley-Sarbanes Act at 18 USC 1519.   Here is a summary:


Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.


Case will be heard next october.  Briefs and information can be found here:


Website I Had To Share: Auditing And Documenting The Dead In Mexico from Drug Violence

May 14th, 2014

Amazing story of a woman who began an organization to document and audit the names of the innocent killed in the drug wars in Mexico, so that she could help to possibly stop it, and so that those who died would not be forgotten. Just an amazing story.

You must check out her website and organization, it can be translated into English for you.

Nuestra Aparente Rendición (NAR)

Volunteers put a human face on Mexico’s drug violence

PRI’s The World

April 28, 2014 · 3:15 PM EDT

Credit: Courtesy of Lolita Bosch
Lolita Bosch is behind the website Nuestra Aparente Rendición (NAR), which puts a face to the victims of cartel-related violence in Mexico. Bosch, from Spain, has lived in Mexico for the past 20 years.

In August 2010, 72 people were found dead in northeastern Mexico, near the Texas border. They were migrant workers, but not from Mexico. They were Central Americans heading to the United States.

  • A drug cartel kidnapped the migrants, robbed them, and called relatives in the US to demand money. The migrants were murdered in the end, except for one man who survived by pretending to be dead.

Lolita Bosch, an author from Spain who has lived in Mexico for years, could not shake what happened. She took a break from writing novels to investigate the casualties associated with Mexico’s drug cartel violence. She found there was little documented about the victims, so she created the website Nuestra Aparente Rendición (NAR), which loosely translates as, “It seems we have surrendered.”

Nuestra Aparente Rendición is a website started by author Lolita Bosch. The main goal for the site is to track the casualties of the drug wars in Mexico.

Nuestra Aparente Rendición is a website started by author Lolita Bosch. The main goal for the site is to track the casualties of the drug wars in Mexico.

It’s a site dedicated to investigating the victims of drug cartel violence.

To cover the victims of the August 2010 killings, Bosch chose 72 writers and assigned each writer a migrant. “We would adopt a person [and] find out why he was leaving and where he was heading and why,” Bosch says. The site also brings together voices — and questions — from victims, journalists, artists and academics, to openly discuss violence and its aftermath.

“For example,” Bosch says, “a young kid from Monterrey writes us to say, ‘How can I live without hating the people who killed 52 people next to my house?’ And I said, ‘I don’t know, but I’m going to ask a philosopher.’ So I call a philosopher and he gives him an answer. So we try to make people talk.”

Bosch got the idea for the project after reading about the death of Amando Carrillo Fuentes, a famous drug dealer who ran the Juárez Cartel and died during a plastic surgery procedure.

“I started investigating just out of curiosity, and then I started reading and reading and reading. And for the past eight years, I’ve been investigating the history of drug dealing in Mexico, which is so related with politicians and church and money,” she says.

A part of the website, called Menos Dias Aqui, or “Fewer days here,” tallies those killed from drug-related violence in Mexico. But the numbers are not official and Bosch says that’s intentional. She says she wanted to look into the names that are usually seen in a newspaper for just a day and gone the next. “I thought we should keep their names and explain who they were,” she says.

Volunteers help Bosch count the number of people dead in Mexico. It’s not easy. Bosch says it’s not unusual to receive calls from volunteers, distraught after helping tally the latest death toll.

Bosch knows her work can put her in a dangerous spotlight. “I feel being in Mexico, it’s a risk for all of us, especially if you were against the war. The government feels like we’re daring them, because we are saying out loud they’re not doing their job. But they are not doing their job, so somebody has to say it.”

The NAR site has also proven to be a resource for Mexicans tangled in the drug war violence. She remembers receiving a call from a woman in Monterrey. Her husband had been found in a mass grave, a likely victim of cartel violence. The grave was in Sonora, far from Monterrey.

“She had no money to go there and leave a flower on the mass grave where her husband was found,” says Bosch. “And she asked if we could send someone and leave a flower there and send her a picture. So, we did. We sent a friend and we took a picture of the flower and we sent that to the woman. And that’s the only thing that woman has left.”

Bosch says her work documenting the violence and working with victims has only strengthened her connection to Mexico.

“That’s my home. I lost friends. I lost family in that war. Somebody has to stand up, so we did. I remember I used to live in the States in 1988, and I learned that sentence that I never forgot, that maybe here you listen to it a lot, but it really changed my life: ‘A man gotta do what a man gotta do.’ That’s what I’m doing.”

This story is part of our partnership with Radio Ambulante, where you’ll find an interview with Bosch in Spanish.

Shefali S. Kulkarni

Shefali S. Kulkarni is a digital producer for Global Nation where she helps to make stories about diverse immigrant communities more ‘clickable’.

PoliceOne: Jury acquits Minn. man who videotaped police, ambulance crew

March 7th, 2014

By Richard Chin
Pioneer Press

RAMSEY COUNTY, Minn. — Andrew Henderson said he will continue shooting videos of police after a Ramsey County jury found him not guilty Thursday of criminal charges filed against him after he turned his camera on Ramsey County sheriff’s deputies and an ambulance crew in 2012.

But Henderson said that from now on, the videos he shoots will be immediately streamed and saved in “the cloud,” meaning there will always be a copy that can’t be erased.

A sheriff’s deputy took away Henderson’s camera when Henderson would not identify himself and refused to stop taping an Oct. 30, 2012, incident outside Henderson’s apartment building in Little Canada in which an ambulance crew and police were taking away a drunken man.

The deputy told Henderson, “If I end up on YouTube, I’m gonna be upset.”

Henderson, 29, was charged with misdemeanor crimes of disorderly conduct and interfering with an ambulance crew.

He thought he would be exonerated by the video he shot, but when he got his camera back from police weeks after the incident, the recording was gone, Henderson said.

A six-person jury found Henderson not guilty Thursday after less than 90 minutes of deliberation at the end of a two-day trial that drew attention of civil liberties advocates. The Minneapolis-based Fredrikson & Byron law firm provided free legal representation to Henderson in association with the American Civil Liberties Union of Minnesota.

ACLU legal director Teresa Nelson called the verdict a First Amendment victory.

“The notion that we’re going to criminalize conduct that is First Amendment activity is troubling, and I think it was troubling to the jury,” Nelson said.

Kevin Beck, the prosecutor for Little Canada, said that he was disappointed by the verdict but that the case was worth prosecuting.

Beck said that Henderson got within three feet of a paramedic trying to do a medical assessment of the drunken man and that Henderson continued recording after the paramedic asked him to stop.

Beck said the paramedic had to ask a sheriff’s deputy to talk to Henderson, which delayed the ambulance crew in getting the drunken man to a hospital.

“The crime was committed when the paramedic had to stop providing medical care” to try to get Henderson to stop taping, Beck said.

But Henderson testified that the paramedic didn’t tell him to stop recording, and his lawyer argued that Henderson didn’t interfere with the drunken man’s care.

Henderson was 35 feet away “quietly” taping while the drunken man was being questioned by the ambulance crew and frisked by police, defense attorney Kevin Riach said.

Henderson, a welder, is a “meek, mild-mannered guy” whose hobby is videotaping police to keep them accountable, Riach said.

Henderson said he doesn’t have animus toward police and he’s never suffered from police abuse. But he said he got interested in videotaping police activities after an August 2012 incident in which a YouTube video showed a St. Paul police officer kicking a man named Eric Hightower during an arrest.

When Henderson taped the ambulance crew and Ramsey County sheriff’s deputies in Little Canada, he was doing what half the TV news crews in the metro area do every day, Riach said in closing arguments.

But Riach said when a sheriff’s deputy, Jacqueline Muellner, asked Henderson what he was doing and he refused to give her his name, that angered her and she snatched his camera.

That led to “the mystery of the disappearing video,” Riach said.

Riach said testimony from Muellner showed that the camera was temporarily left in Muellner’s squad car and in her office mailbox, and was not adequately secured by police.

“That camera should’ve been put into evidence right away,” he said. “We’ll never know exactly what happened to it.”

Riach also said prosecutors failed to prove the charge that Henderson intended to obstruct the ambulance crew, and he never physically got in the way of the emergency responders.

“He was sitting peacefully off to the side, videotaping,” Riach said.

But Beck said that when the paramedic asked Henderson to stop taping, he knew his behavior was offensive and obstructive.

Beck said Henderson didn’t have to physically get in the way of the ambulance crew to be guilty of the misdemeanor. If his actions had the effect of obstructing the ambulance crew, he committed a crime, Beck said.

Joshua Norgaard, the Allina Health Emergency Medical Services paramedic who was on the ambulance call that night, testified that he asked Henderson to stop taping to protect the privacy of the drunken man.

Henderson said he could have resolved the case by accepting a prosecution offer to plead guilty to a petty misdemeanor and pay a $50 fine.

But Henderson insisted on a trial.

“It’s the principle of it,” Henderson said. “It’s our First Amendment right to film law enforcement personnel.”

Henderson said he would have represented himself at trial if he hadn’t received free legal help.

“Andrew is a unique guy in which he was willing to stand up and fight on this,” Nelson said. “I think we should admire him.”

Copyright 2014 the Pioneer Press

McClatchy-Tribune News Service 

HuffPo: Obama’s Marijuana Banking Rules Don’t Change Anything, Bankers Say

February 22nd, 2014

Matt Ferner

Last week, the Obama administration announced new guidelines that it portrayed as a drastic change to the way marijuana businesses interact with banking services. Supporters touted the news as a “green light” for pot shops to gain access to traditional financial services, but banking officials say that the guidance, essentially, changes nothing.

“After a series of red lights, we expected this guidance to be a yellow one,” Don Childears, president and CEO of the Colorado Bankers Association, said in a statement. “This isn’t close to that. At best, this amounts to ‘serve these customers at your own risk’ and it emphasizes all of the risks. This light is red.”

Steven Brudner, managing director of Merchant Services Consulting Group, told The Wall Street Journal that debit and credit card services will probably not be available to marijuana businesses either, since major credit card-processing banks do not want to expose themselves to the risks that still exist under the new guidance.

Due to the banks’ fears of being implicated as money launderers, marijuana-related businesses are often forced into cash-only transactions, putting the retailers’ safety at risk and creating issues involving taxes and employee payroll.

Colorado’s legal marijuana businesses are already exceeding revenue estimates by the state, and as a result, they’re in desperate need of access to banking services. Gov. John Hickenlooper announced this week that the state’s total pot sales for the next fiscal year were estimated to reach about $610 million — that’s up more than $200 million from the cannabis industry’s earlier estimates of approximately $400 million, annually.

Guidelines announced by the Treasury Department and a memo from a top Justice Department official were intended to ease concerns that the federal government would target banks working with marijuana-related businesses that are legal and regulated on the state level. Expanded banking access would enable them to function like traditional businesses, and implementing a reporting structure would allow the federal government to take a close look at how they operate.

However, the DOJ memo falls short of expressly protecting banks that work with state-legal, state-licensed marijuana businesses from prosecution.

Treasury officials said that they anticipated that the guidelines could encourage smaller and medium-sized banks to deal with marijuana businesses.

But the CBA strongly disagrees, with Childears saying in his statement that “no bank can comply” with these regulations.

“Bankers had expected the guidance to relieve them of the threat of prosecution should the open accounts for marijuana businesses, but the guidance does not do that,” Childears said. “Instead, it reiterates reasons for prosecution and is simply a modified reporting system for banks to use. It imposes a heavy burden on them to know and control their customers’ activities, and those of their customers.”

“An act of Congress is the only way to solve this problem,” Childears added.

Rep. Ed Perlmutter (D-Colo.) has sponsored a bill that would do just that. TheMarijuana Access to Banking Act would create the protections for depository institutions needed so they can effectively provide financial services to marijuana-related businesses.

Perlmutter said that although the new guidance is an “important step,” much more is needed.

“We need Congress to promptly consider and pass my legislation to provide certainty for financial institutions and the licensed marijuana related businesses to operate just like any other business,” Perlmutter said.

Currently, 20 states and the District of Columbia have legalized some form of marijuana, be it medical or recreational. One study suggests that the U.S. marijuana industry could be valued at over $10 billion by 2019.

LA Times: The feds give a green light to the marijuana business

February 15th, 2014


Will that be cash or charge? A customer assesses the wares in a Denver marijuana emporium; new federal rules make pot a bankable business.


February 14, 2014, 5:26 p.m.

If you’re keeping track of what so far has been the creeping acceptance and legalization of marijuana in the U.S., on Friday things took a huge leap forward.

The U.S. Treasury issued guidelines stating, in effect, that it’s legal for banks to provide financial services to marijuana-related businesses. That removes a huge impediment to the growth of the businesses, for up to now federal banking restrictions have forced them to operate in cash.

The Obama administration plainly recognizes that with the sale or use of marijuana now legal in some form in 20 states and the District of Columbia, the old restrictions are anachronistic. Worse, they foster crime: The essence of anti-money-laundering enforcement is to move business activity out of cash and into auditable, trackable transactions, such as bank and credit card accounts.

What we’re seeing is a fascinating example of how a long-standing social and legal norm starts to change. Think same-sex relationships and gay marriage. The impetus for change originates in a few states; they demonstrate that presumed consequences don’t follow, and the old norm yields to the new norm, first slowly and then at greater speed; and at some interim point the federal government — whether through legislation, executive order or judicial directive — adjusts to the new world and forces the last holdouts to join in.

Allowing marijuana businesses to get straight with the banking system is a key step along that continuum, though it represents less than total surrender. As my colleague Timothy M. Phelps reports, Friday’s guidance from the Treasury’s Financial Crimes Enforcement Network, or FinCEN, takes the liberalization of pot laws and regulations about as far as the administration thinks it can go. It’s not overturning federal drug law, which still defines marijuana as a controlled substance illegal to sell or distribute. It’s not endorsing the state initiatives.

But the Treasury is building on liberalized criminal guidelines issued last August by the Department of Justice. The DOJ similarly bowed to reality by relegating the pursuit of routine pot users and sellers to a very low priority. Instead, the DOJ listed its chief enforcement concerns as (among a few other things) preventing the sale of marijuana to minors, diverting revenue that goes to criminal enterprises or gangs and keeping pot trading from being used as a cover for the trafficking of harder drugs.

Pressure on the feds to lighten up has come particularly from the state governments of Colorado and Washington, which have gone further than any other states in legalizing marijuana. But the new guidelines still are freighted with the loopiness of America’s drug laws, which consistently have been applied more harshly in minority and poor communities than white and middle- or upper-class precincts.

Since marijuana isn’t being made legal in the eyes of federal law, it’s unclear whether banks, or which banks, will accept deposits or offer loans to marijuana-sellers, or whether you’ll be able to use Visa or MasterCard at your local dealerhip. For example, since pot is still technically illegal, banks will still be required to file “suspicious activity reports,” which identify transactions they think may be related to criminal activities, on any dealings with marijuana businesses.

They will be permitted to file “marijuana limited” suspicious activity reports, which state in effect that, yes, we know this is illegal, but it’s only marijuana. But they’ll also be expected to keep a lookout for red flags — businesses that seem to be making a lot more money from marijuana than would be expected in their state, say, or a lot more than their competitors. In a way, marijuana businesses may end up with a lot more scrutiny from their bankers than they expected.

Yet as acceptance and legalization of marijuana spreads, today may be looked back on as a landmark moment: the birth of Ganja Inc.

Victory for Gun Rights Today!

February 13th, 2014

More on the reasoning of the Ninth Circuit’s right-to-carry-a-gun opinion
February 13 at 2:36 pm
As I noted earlier, today’s Ninth Circuit decision in Peruta v. County of San Diego (9th Cir. Feb. 13, 2014), concludes that California’s broad limits on both open and concealed carry of loaded guns “impermissibly infringe[] on the Second Amendment right to bear arms in lawful self-defense.” I’ve now finished reading the opinions, and had a few general thoughts.
1. California law essentially leaves most law-abiding adults without the ability to carry guns in public for effective self-defense, period. People are barred from carrying guns either openly or concealed. It is this broad policy that the majority holds unconstitutional.
In D.C. v. Heller, the Supreme Court strongly suggested that (1) the right to “bear” arms means the right to carry them, but that (2) bans on concealed carry are constitutional:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Thus, if California law had banned concealed carry but allowed open carry (which some states have historically done), that wouldn’t have violated the Second Amendment. And if California law had banned open carry but allowed concealed carry (perhaps requiring a license that pretty much all law-abiding adults could get), that too might well have been constitutional, on the theory that it still left people free to carry guns, but just regulated the “manner” of carrying.
But, as the Ninth Circuit majority points out, a general prohibition on all carrying of guns in public is more than just a way of regulating the manner of carrying:
A flat-out ban on concealed carry in a jurisdiction permitting open carry may or may not infringe the Second Amendment right — the passage from Heller clearly bears on that issue, which we need not decide. But whether a state restriction on both concealed and open carry overreaches is a different matter. To that question, Heller itself furnishes no explicit answer. But the three authorities it cites for its statement on concealed-carry laws do.
Indeed, the Ninth Circuit majority argues, pretty much all the 19th-century cases that accepted the view that the Second Amendment secures an individual right to keep and bear arms in self-defense also took the view that the right includes a right to carry in some manner. (Those 19th-century cases that rejected any right to carry, the majority argues, took the view that the right is collective, or the view that it doesn’t include self-defense purposes — views that the Supreme Court rejected in Heller.)
I think the Ninth Circuit majority’s analysis is correct on this, and the dissent’s is mistaken. The dissent keeps stressing that the case should be about whether the California ban on concealed carry is constitutional, and that Heller says that the concealed carry ban is indeed constitutional. But the California ban on concealed carry is part of a general scheme that bans the great bulk of all carrying in public for self-defense (unless one has a permit that the police may choose not to grant). It is this general scheme that violates the Second Amendment, even if a ban on concealed carry that left people free to carry openly would not do so.
2. So the Second Amendment secures a right to carry — but may even a broad ban on such carrying still be constitutional on the grounds that it passes “intermediate scrutiny,” in the sense of being substantially related to an important government interest? Some courts have upheld such broad bans on this theory. But the Ninth Circuit says no, and I think correctly so:
[I]f self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego’s policy. See Heller, 554 U.S. at 634 (“The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.”)….
A law effecting a “destruction of the right” rather than merely burdening it is, after all, an infringement under any light….
It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. We quote the relevant paragraph in full, telling case citations included:
Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).
3. The court also dismissed the argument that the California scheme is saved by the fact that people might get concealed carry licenses if they show “good cause” to the satisfaction of the police department, or by the fact that there are some other exceptions:
[T]he California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of
his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”
That too strikes me as right. If there is no individual right to carry guns in self-defense, then a ban on such carrying is just fine. But if there is such a right, it is an individual right, and a ban on most people’s exercise of this right can’t be justified on the grounds that some people are allowed to exercise it.
4. Finally, note that nothing in the opinion means that narrower regulations of gun carrying are unconstitutional. “Shall-issue” schemes that require a license to carry, but let pretty much all law-abiding adults get such a license, would likely be upheld. The same is true for restrictions on carrying in particular places, such as schools or government buildings. But a broad ban on all gun carrying in public, the court held, violates the Second Amendment.