# Petition for Writ of Certiorari — Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (No. 14-10078)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0592%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2016

## Text

i
IN THE . | 4 dhs 4
SUPREME COURT OF THE UNITED STATES .. 2. i ths

PARNER
ae . i ee

xo. 141 0078

eek ell
COMMONWEALTH OF MASSACHUSETTS,
Respondent JUN 0 1 2015
V OFFICE OF THE CLERK |
JAIME CAETANO,
Petitioner

ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

1ON

IN I

The petitioner in the above-entitled case moves pursuant to Rule

39 of the rules of this Court that she be permitted to proceed in forma

pauperis. The petitioner has previously been granted leave to proceed

in forma pauperis by the Massachusetts District Court and the

Massachusetts Supreme Judicial Court. Undersigned counsel was

assigned below to represent the petitioner pursuant to Mass. Gen.

Laws c.211D, §5, and Rule 3:10 of the rules of the Supreme Judicial

Court.

Dated: June 1, 2015.

JAIME CAETANO
By her attorney,

y (Creer

Benjamin H. Keehn

COMMITTEE FOR PUBLIC COUNSEL SERVICES
Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

bkeehn@publiccounsel.net

Counsel of Record for the Petitioner

nee Ae

. r ,
‘

N
41410078
IN THE
SUPREME COURT OF THE UNITED STATES
OT
COMMONWEALTH OF MASSACHUSETTS,
Respondent JUN 0 1 2015
_OFFIOE OF THE CLERK
V.
JAIME CAETANO,
Petitioner

ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

TIO WRIT OF CERTI I

BENJAMIN H. KEEHN

COMMITTEE FOR PUBLIC COUNSEL SERVICES
Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

bkeehn@publiccounsel.net

Counsel of Record for the Petitioner

QUESTIONS PRESENTED

A "stun gun" is a non-lethal electronic weapon invented in 1972
for individual self-defense in case of confrontation. Massachusetts is
among those states that have made it a crime for a private citizen to
possess a stun gun under any circumstances. The petitioner was
convicted of violating Massachusetts' statute after being found in
possession of an operable stun gun, which — it was undisputed below
~~ she carried for purposes of self-defense in case of further confronta-
tion with her abusive former partner. On appeal, the Supreme Judicial
Court of Massachusetts affirmed the petitioner's conviction, rejecting
on the merits her claims (1) that a stun gun is an "arm" protected by
the Second Amendment, and (2) that Massachusetts' outlawing of stun
guns violates the petitioner's Second Amendment rights under District
of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of
Chicago, 561 U.S. 742 (2010). The questions presented are:

1. Is astun gun an “arm" within the meaning of the Second
Amendment?

2. Does Massachusetts’ blanket prohibition on the possession of
stun guns infringe the right of the people to keep and bear arms in
violation of the Second and Fourteenth Amendments?

LIST OF

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

INDEX OF APPENDICES. ..........-::ccccsseesccoesecsreseseseessrsenssersnsensearens il
TABLE OF AUTHORITIES CITED. ........0...........cccccecceeeseeeneneseeees iii
CHIIORED BIEL. ....c00cccvesesecccsessevcesscsssccssscsveseseseessssesssssssessossorens 1
FETC TI once ccccccccsccecescessccsscscccsessosescsssveveseorevesesssossosceseresoes l
CONSTITUTIONAL PROVISIONS AND STATUTE

Be PI i ccccccerccescccccesssecereccessecccnssecssscoesssocsssososocesrssocnovessoesees 1
STATEMENT OF THE CASE ............::ccceeseessseessseesenrenseennenenneneesens 2

REASONS FOR GRANTING THE PETITION

|. STUN GUNS AND TASERS ARE NON-LETHAL,
PORTABLE ELECTRONIC WEAPONS DESIGNE
AND COMMONLY USED BY LAW ENFORCEMENT,
THE MILITARY, AND LAW-ABIDING CITIZENS
FOR SELF-DEFENSE IN CASE OF CONFRONTA-
TION. HELLER STATES THAT THE SECOND
AMENDMENT EXTENDS, "PRIMA FACIE," TO ALL
SUCH "BEARABLE ARMS," EVEN IF THEY "DID
NOT EXIST AT THE TIME OF THE FO"JNDING."
THE PETITION SHOULD BE GRANTED BECAUSE
THE SJC'S OPINION CONFLICTS WITH HELLER
ON THIS THRESHOLD CONSTITUTIONAL
QUESTION, AND ALSO WITH THE TWO OTHER
APPELLATE COURT DECISIONS TO HAVE
CONSIDERED WHETHER STATE-LAW BANS OF
WEAPONS LESS LETHAL THAN HANDGUNS
ee eescoussenmsouemunnesnanesveseresveces 6

Il. THE PETITION SHOULD BE GRANTED SO THE
COURT CAN MAKE CLEAR THAT THE "CORE" OF
THE SECOND AMENDMENT IS THE INDIVIDUAL
RIGHT TO KEEP AND CARRY BEARABLE ARMS —
SUCH AS A STUN GUN — IN CASE OF CONFRONTA-
TION, AND THAT THIS RIGHT MAY EXIST OUTSIDE

STs cescsasinettngintashoepnasnseamsctssasenevecnsesocecsavscenceeseest iene

-ji-

INDEX OF APPENDICES

Appendix A. Opinion of the Supreme Judicial Court of Massachusetts,
— _ th v. Caetano, 470 Mass. 774, 26 N.E.3d 688
15).

Appendix B. Petitioner's post-argument letter to the Supreme Judicial
Court of Massachusetts.

Appendix C. Unpublished decision of the Massachusetts District Court
on petitioner's pretrial motion to dismiss.

Appendix D. Mass. Gen. Laws ch. 140, §131J.

TABLE OF AUTHORITIES CITED
Cases
v. Caetano,

470 Mass. 774, 26 N.E. 3d 688 EES SSSR vr ee passim
Commonwealth v. Davis,

369 Mass. 886, 343 N.E.2d 847 (1976) REE RC I ne 5
Commonwealth v. )

367 Mass. 432, 326 N.E.2d 716 (1975).............cccccccccceceeeeececeeeeeens 4
District of Colombia v. Heller,

a euicinnniingl passim
Hightower v. Boston,

i aeiiaiebeaieeneiaameebel 10

Kyllo v. United States,

a peninbeametnidideemabeaimmiiiaiuins 7
McDonald v. City of Chicago,

SN een eee ee 3, 10, 13
Moore v. Madigan,

re aes shueuunnectamennnbecasbatabinied 13
People v. Yanna,

297 Mich. App. Ct. 137,

824 N.W.2d 241 (Mich. Ct. App. 2012)...............ccccccceceeeeeeereeeeeeene 3, 8, 11
Powell v. Tompkins,

ER RR OT ne EBS EE EN I 10
Reno v. American Civil Liberties Union,

I a ceesimnunion 7
State v. DeCiccio,

315 Conn. 79, 105 A.3d 165 I i a data 8-10
State v. Delgado,

296 Ore. 396, 692 P.2d 610 (Or. 1984)..............ccccccccccecececessersceeees ]
State v. Kessler,

289 Ore. 350, 614 P.2d 94 (Or. 1980)..................ccseccsescscsscseecceenees 11

-jv-

Constitutional Proviai
United States Constituti

IIT a arlemementlenelladeptngacenanephabdpdenetmendsice passim

EE EEE i TATE Me Oe RE PEST TRE 3

Statutes
n,n ORG I oo seeclntnieniniiibbied 14
OS EA a ena ere 14
I I a re 2, 3,5
EIR a ES Se DE ELK ee Lee 1
Other Authoriti

Executive Office of Public Safety and Security,
Annual Electronic Weapons Use Analysis: A Summary of
Electronic Weapons Use in Massachusetts (July 2010)............... 1]

National Institute of Justice, Police Use of Force,
Tasers and Other Less-Lethal Weapons

a ienou elailanminsiasiuuabcaisiiaal 3, 11
Paul H. Robinson,

A Right to Bear Firearms but Not to Use Them?

Defensive Force Rules and the Effectiveness

of Non-lethal Weapons, 89 B.U.L. Rev. 251 (2009)...................... 3
Eugene Volokh,

ees ee enna, (Aeneas, Ration )

Nonlethal W. and the ts to and

Bear Arms and Defend Life, 62 . L. Rev. 199 (2009)............ 3, 10, 11

2%

OPINIONS BELOW

The opinion of the Supreme Judicial Court of Massachusetts
affirming the petitioner's conviction appears at Appendix A and is
reported at 470 Mass. 774, 26 N.E.3d 688 (2015).

The unpublished decision of the Massachusetts District Court
denying the petitioner's pretrial motion to dismiss appears at
Appendix C.

JURISDICTION

The date of the opinion and judgment of the Supreme Judicial
Court of Massachusetts sought to be reviewed is March 2, 2015. This
petition is filed on June 1, 2015, which is 90 days after the date of the
Supreme Judicial Court's opinion, as computed and extended according
to Rule 30.1 The Supreme Judicial Court of Massachusetts is the
highest court of Massachusetts. The jurisdiction of this Court is
invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS AND STATUTE INVOLVED

The Second Amendment to the United States Constitution
provides:

A well regulated Militia,
necessary tothe security ofa fre State, the
right of the people to keep and bear Arms,
shall not be infringed.

Section one of the Fourteenth Amendment to the United States
Constitution provides:
No State shall. . deprive any person of

life, I liberty, or property, without due process
)

-2-

Chapter 140, §131J, of the Massachusetts General Laws

provides:

No person shall possess a portable
device or w from which an electrical
current, impulse, wave or beam may be

i , which current, impulse, wave or
beam is designed to incapacitate temporarily,
injure or kill. . .

* * * *

Whoever violates this section shall be
punished by a fine of not less than $500 nor
more than $1,000 or by impri ent in the
house of correction for not less than 6 months
nor more than 2 1/2 years, or by both such
fine and imprisonment. A law enforcement
officer may arrest without a warrant any

ae whom he has le cause to
lieve has violated this section.
STATEMENT OF THE CASE

At about 3 p.m. on September 29, 2011, police officers responded
to a call about a possible shoplifting at a supermarket in Ashland,
Massachusetts. The supermarket manager pointed out the petitioner,
who was seated in a motor vehicle in the parking lot outside the store,
and told the officers that she may have been involved. The police
approached the vehicle. Following a conversation with the officers, the
petitioner consented to a search of her purse. Inside her purse, the
petitioner had an operational stun gun. The petitioner told the police
that the stun gun was for self-defense against her violent and abusive
former partner. She was arrested for possession of a stun gun in
violation of Mass. Gen. Laws ch. 140, §131J.

The petitioner challenged the constitutionality of §131J in a
pretrial motion to dismiss. Relying on District of Columbia v. Heller,

.

554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742
(2010), the petitioner asserted that a stun gun is an "arm" within the
meaning of the Second Amendment, that it is primarily a weapon for
individual self-defense and is currently in common use in the United
States for that purpose, and that the petitioner kept and carried her
stun gun for lawful self-defense in case uv. confrontation with her
abuser. As such, she argued that her possession of the stun gun was
protected by the Second and Fourteenth Amendments. The motion
was denied. Appendix C.

At a jury-waived trial, the parties stipulated that the petitioner's
stun gun was the sort of "portable [electronic] device or weapon" the
possession of which is criminalized by §131J.” The petitioner testified
that the stun gun was for self-defense against her abuser, whom she
had previously sought to keep at bay with restraining orders.” The
petitioner further testified that she had displayed the stun gun to fend
off her abuser when confronted by him outside her place of

“Tasers deliver an electric shock through two wire-tethered "barbs," which can be
prepenes ep to San Sete the clothing or skin of the

the kind of device borne by the petitioner) delivers its charge when it is held in direct
Both deliver a powerful electric shock that immediately itates the target by
causing uncontrollable muscle contractions, and are desi rooge pe ure.

Defend Life, 62 Stan. L. Rev. 199, 204-209 (2009); Paul H.
Firearms but Not to Use Them? Defensive
Effectiveness of Non-lethal Weapons, 89 B.U.L. Rev. 251, 254-257 (2009).

Documentary proof of these restraining orders was submitted with the petitioner's
motion to dismiss and admitted in evidence at trial. ”

oe

employment, at a time when she was homeless and living in a “hotel."”

The judge found the petitioner guilty of possession of a stun gun
and placed the conviction "on file," i.e., without imposition of sentence.
The petitioner initially consented to this disposition but later withdrew
her consent and moved for sentencing to preserve her right of appeal
under Massachusetts law. The judge again placed the conviction on
file, over the petitioner's objection. The petitioner appealed. Following
allowance of the petitioner's application for direct appellate review, the
Supreme Judicial Court of Massachusetts (SJC) issued an opinion
affirming her conviction. Appendix A.

As an initial matter, the SJC squarely rejected the
Commonwealth's contention that the Court was without jurisdiction to
hear the petitioner's appeal. Commonwealth v. Caetano, 470 Mass.
774, 776-777, 26 N.E.3d 688, 690 (2015). That contention rested on the
state-law proposition that a conviction placed “on file" ordinarily "is not
a judgment from which an appeal may be taken." /d., citing
Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d. 716, 719

(1975) (no appeal prior to judgment, “which in criminal cases is the

The petitioner testified that she had sought to end the relationship after her abuser
(with whom she had two children) put her “in the hospital," that, “in fear for fher]
life," she accepted the stun from an acquaintance whom she met while homeless,
and that her abuser Gheveniion "showed up at [her] job again" and “was waiting for
[her] outside when [she] got out of work."

“[Hle started screaming — like he usually did — .

‘You're not gonna F'n work at this place’ and ‘You

prongs bey with the 5 said, ‘I'm ae
gonna " . gave me this
and I don't wanna have to do it to you, but if you don't
leave me alone, I'm gonna have to.' And . he ended
up leaving. He, I guess, got scared and left me alone."

The prosecutor did not cross-examine the petitioner, and, indeed, the trial
judge to credit her testim yo Transcript of Massachusetts District Court bench trial,
July 10, 2013, at 31, 35-36, 38, 40.

-5-

sentence"). Here, however, it was clear “that the [petitioner] wanted to
pursue an appeal on the constitutionality of the criminal statute of
which she was adjudged guilty, and that she withdrew her consent and
moved for sentencing for that purpose." 470 Mass. at 777, 26 N.E.3d at
690. Because Massachusetts law recognizes that a criminal defendant
has a right to appeal a conviction placed on file "without her consent,"
the SJC held that the conviction in the petitioner's case was properly
before it for appellate review. bid.

On the merits, the SJC held that Massachusetts’ blanket
prohibition on stun guns "does not violate the Second Amendment
right articulated in Heller," and “affirmed the [petitioner's] conviction
of possession of an electrical weapon in violation of [Mass. Gen. Laws
ch. 140, §131J]." 470 Mass. at 783, 26 N.E.3d at 695. In reaching this
result, the SJC "acknowledgeld) that stun guns may have value for
purposes of self-defense," 470 Mass. at 783, 26 N.E.3d at 695, but
concluded that, "/w/Jithout further guidance from the Supreme Court on
the scope of the Second Amendment, [it would] not extend the
Second Amendment right articulated by Heller to cover stun guns." Id.
at 779, 26 N.E.3d at 692 (emphasis supplied).

“Art. 17 of the Massachusetts Declaration of Rights, which is Massachusetts’ cognate
constitutional provision to the Second Amendment, previously has been held to
encompass a collective, and not an individual, right to bear arms," Commonwealth v.
Caetano, 470 Mass. at 778 n.4, 26 N.E.3d at 691 n.4, ae = Davis,
369 Mass. 886, 888, 343 N.E.2d 847, 848-849 (1976), for reason the petitioner's
appeal to the SJC claimed a violation of her federal constitutional rights only.

-6-

REASONS FOR GRANTING THE PETITION
I.

STUN GUNS AND TASERS ARE NON-LETHAL, PORTABLE
ELECTRONIC WEAPONS DESIGNED AND COMMONLY USED BY
LAW ENFORCEMENT, THE MILITARY, AND LAW-ABIDING
CITIZENS FOR SELF-DEFENSE IN CASE OF CONFRONTATION.
HELLER STATES THAT THE SECOND AMENDMENT EXTENDS,
"PRIMA FACIE," TO ALL SUCH "BEARABLE ARMS," EVEN IF
THEY "DID NOT EXIST AT THE TIME OF THE FOUNDING." THE
PETITION SHOULD BE GRANTED BECAUSE THE SJC'S OPINION
CONFLICTS WITH HELLER ON THIS THRESHOLD
CONSTITUTIONAL QUESTION, AND ALSO WITH THE TWO
OTHER APPELLATE COURT DECISIONS TO HAVE CONSIDERED
WHETHER STATE-LAW BANS OF WEAPONS LESS LETHAL
THAN HANDGUNS SURVIVE HELLER.

The SJC's refusal — absent "further guidance from" this Court

— to “extend the Second Amendment right articulated by [District of
Columbia v.] Heller [, 554 U.S. 570 (2008),] to cover stun guns,"
Commonwealth v. Caetano, 470 Mass. 774, 779, 26 N.E.3d 688, 692
(2015), is bottomed on its conclusion that a stun gun is not "the type of
weapon contemplated by Congress in 1789 as being protected by the
Second Amendment." Jd. at 777, 26 N.E.3d at 691. See also id. at 781,
26 N.E.3d at 693 ("[T]here can be no doubt that a stun gun was not in
common use at the time of [the Second Amendment's] enactment. ";
the "invention of this weapon [in 1972] clearly postdates the period
relevant to our analysis").

This conception of the Second Amendment — as a sort of
fossilized relic trapped in amber — permeates the SJC's opinion in this
case, and is fundamentally at odds with what Heller teaches with
respect to the threshold question whether the Second Amendment
extends, prima facie, to a given instrument. In a critical passage,

which the SJC does not reference, Heller states that what the Founders

-7-

meant by "Arms" is "no different from the meaning today." Heller, 554
U.S. at 581:

Timothy Cunningham's important 1771 legal
dictionary defined "arms" as "any thing that
a man wears for his defence, or takes into his
hands, or useth in wrath to cast at or strike
another." 1A New and Complete Law
Dictionary; see also N. Webster, American
Dictionary of the English Language (1828)
(reprinted 1989) (hereinafter Webster)
(similar).

The term was applied, then as now, to
weapons that were not specifically designed
for military use and were not employed in a
military capacity. . Some have made the

ent, a on the frivolous, that
only those arms in existence in the 18th
century are protected by the Second
Amendment. We do not interpret
constitutional rights that way. Just as the
First Amendment protects modern forms of
communications, e.g., Reno v. American Civil
Liberties Union, 521 U.S. 844, 849 (1997),
and the Fourth Amendment applies to
modern forms of search, e.g., Kyllo v. United
States, 533 U.S. 27, 35-36 (2001), the Second
Amendment extends, prima facie, to all
instruments that constitute bearable arms,
even those that were not in existence at the
time of the founding.

Heller, 554 U.S. at 581-582 (emphases supplied).

Heller could not be clearer on the point that "Arms" — as that
word appears in the Second Amendment — includes, prima facie,
bearable weapons that came into existence after 1789. And, just like
the modern "handgun" at issue in Heller, a stun gun is an instrument
designed to be borne "for . defence, or to cast at or strike
another." Heller, 554 U.S. at 581. See n.1, ante at3 The SJC,
however, validates the criminalizing of an entire class of "Arms" falling

squarely within the plain language used by the Framers without even

-8-

acknowledging this Court's constitutional definition of what
"instruments. constitute bearable arms" for purposes of Second
Amendment analysis.

Untethered to Hel!r's definitional mooring, the SJC reaches a
result — that the "thoroughly modern" stun gun cannot be counted as
an “arm" within the meaning of the Second Amendment, see 470 Mass.
at 781, 26 N.E.3d at 694 — which conflicts directly with the only other
reported case to have considered this precise question. See People v.
Yanna, 297 Mich. App. 137, 140, 824 N.W.2d 241, 243 (Mich. Ct. App.
2012) (striking down Michigan statute criminalizing possession of
portable electronic weapons: following Heller, the Second Amendment
"protect([s] a citizen's right to possess and carry Tasers or stun guns for
self-defense, and the state may not completely prohibit their use by
private citizens").” The SJC's opinion in this case also cannot be
reconciled with State v. DeCiccio, 315 Conn. 79, 105 A.3d 165 (Conn.
2014), where, in an exceptionally thorough and thoughtful opinion, see
id. at 108-150, 105 A.3d at 185-210, the Supreme Court of Connecticut
recently read Heller to invalidate a Connecticut statute criminalizing
the transport of dirk knives and police batons in a motor vehicle.”

Stun guns obviously “were not in common use at the time of the
Second Amendment's enactment," 470 Mass. at 781, 26 N.E.3d at 693,
because they did not even exist until 1972. Id. The SJC finds this fact

*'The SJC's opinion does not cite Yanna.

“DiCiccio was decided three weeks after oral argument in the petitioner's case, and
was t to the SJC's attention by her post-argument letter (submitted uant
to Rule 16(1) of the Massachusetts rules of appellate procedure). Appendix B. The
SJC's opinion does not cite DiCiccio.

-9-

dispositive. But this Court "doles] not interpret constitutional rights
that way." Heller, 554 U.S. at 582. The petition should be granted
because this case is the perfect vehicle for the Court to address the
merits of how and why the Second Amendment applies, prima facie, to
bearable arms that did not exist at the time of the founding.

II.
THE PETITION SHOULD BE GRANTED SO THE COURT CAN
MAKE CLEAR THAT THE "CORE" OF THE SECOND AMENDMENT
IS THE INDIVIDUAL RIGHT TO KEEP AND CARRY A BEARABLE
INSTRUMENT — SUCH AS A STUN GUN — FOR SELF-DEFENSE
IN CASE OF CONFRONTATION, AND THAT THIS RIGHT MAY
EXIST OUTSIDE THE HOME.

Although stun guns did not exist in 1789, other portable self-
defense weapons much less lethal than firearms, such as knives and
billy clubs, were in common use at the time of the founding. See State
v. DeCiccio, 315 Conn. at 117-118, 105 A.3d at 190-191.” And, like the
modern handgun at issue in Heller, a stun gun may be kept in a
location (such as a purse) "that is readily accessible in an emergency,"
and that may be utilized by "those without the upper-body strength to
lift and aim" a heavier weapon. Heller, 554 U.S. at 629. Stun guns

thus share many of the features — albeit virtually none of the lethality

military defense, the term ‘arms,’ as contemplated b
the constitutional framers, was not limited to firearcns

used for personal defense.. Thus, the term ‘arms’

oven 5 0 partouler weapon is eniinaly to be
weapon. . appropriate inquiry _is
whether a kind of weapon, as modified by its modern
design and function, is of the sort commonly used by
individuals for personal defense during either the
revolutionary and post-revolutionary era *

State v. DeCiccio, 315 Conn. at 117-118, 105 A.3d at 191, quoting State v. Delgado,
298 Ore. 395, 399, 692 P.2d 610, 612 (Or. 1984).

-10-

— that make handguns so popular as weapons of self-defense.

The SJC avoids all this by finding, for one reason or another,
that the "conduct" underlying the petitioner's conviction falls outside
"the 'core' of the Second Amendment." 470 Mass at 778, 26 N.E.3d at
691, quoting from Hightower v. Boston, 693 F.3d 61, 72 (1st Cir. 2012).
In this respect, the SJC joins other post-Heller appellate decisions that
have struggled to discern whether the "core" of the Second Amendment
protects against anything other than the narrowest set of operative
facts which can be gleaned from Heller itself, e.g, “legislation that
works a complete ban on the possession of operable handguns in the
home by law-abiding, responsible citizens for use in immediate
self-defense." Powell v. Tompkins, 783 F.3d 332, __, 2015 U.S. App.
LEXIS 6149, *31 (1st Cir. 2015).

Here, the SJC says the petitioner's conviction falls outside the
"core" of the Second Amendment:

(1) because stun guns would be deemed "dangerous per se" at
common law, and therefore may be banned conformably with Heller
pursuant to "the historical tradition of prohibiting carrying of
‘dangerous and unusual’ weapons," id. at 778-779, 26 N.E.3d at 691-
692 (quoting Heller, 554 U.S. at 627),

“The SJC does not in why a stun gun — a weapon designed not i
and is "almost never fatal," Volokh, supra, Nonlethal Self. Defense. 62 Stan. L

204 — could be banned in accord with Heller as an "instrumentali yor
constructed to produce death or great bodily harm," 470 Mass. at 779, 26 N.E.3d at

»" McDonald v. City of ponoanes py US. at 924

Amendment . Heller, 554 U.S. at 629. See also NIJ Report, supra at 2 ("A
study by Wake Forest ott people who

injuries or minor injuries only"); v. DeCiccio, 315 Conn. at 121, 105 A.3d at 193

("As to whether dirk knives are 'dangerous and unusual w FS therefore
(FOOTNOTE CONTINUED ON NEM PAGE)

-11-

(2) because stun guns were not “in common use" in 1789, 770
Mass. at 779, 26 N.E.3d at 692,”

(4) because the "number of Tasers and stun guns is dwarfed by
the number of firearms" currently in circulation, id. at 781, 26 N.E.3d
at 694 (quoting petitioner's pretrial motion to dismiss),

(5) because "there is nothing in the record to suggest that [stun
guns] _. are readily adaptable to use in the military," id. at 781, 26
N.E.3d at 694,” and, finally,

(6) because, the petitioner, when she was arrested, was not
“using the stun gun to defend herself in her home... ." Jd. at 779, 26
N.E.3d at 692.

lethality relative to other weapons that, under r, fall squarely within the
andinen <> auvelien chvene eunpert
or the conclusion that dirk knives also are entitled to protected status").

"See Argument I, ante, at 6-9. Moreover, like his knife or his club, the 18th-century

eet tw, \ So tee gun 0 Re cuattes Ciipo had eno t

bring), as increasing Papatestty among enforcement
ay 1 also

a. 160 05 be NE Sd 603 n5 (eugges i ne on cannot

a
count as an “arm" unless it was in common use in 1789 for self-defense in home
< y ; on by militiamen") (citing State v. Kessler, 289 Ore. 359, 368, 614

permitted to make a self-defense weapon relatively scarce by declaring it to be
Scivcband an fiom yap tha ctatecbeated candy to tahel te instrument “unusual’

enforcement and military agencies use" Tasers and other ble electric self defense

sixty-one i
to use conducted energy devices) (available at http://www.mass gov/
sb/firearms/ ane visted May 29,

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In the petitioner's view, the SJC's analysis of the first five
factors, supra, which it says remove stun guns from the "core" of the
Second Amendment is confused by its failure to address as a threshold
matter whether stun guns are "instruments that constitute bearable
arms," notwithstanding the fact that they “were not in existence at the
time of the founding." Heller, 554 U.S. at 582. As to the sixth factor,
however, the SJC is quite correct that Heller interprets the Second
Amendment as “elevat[ing] above all other interests the right of
law-abiding, responsible citizens to use arms in defense of hearth and
home,” Heller, 554 U.S. at 635, “'where the need for defense of self,
family, and property is most acute.'" 470 Mass. at 778, 26 N.E.3d at
691 (quoting Heller, 554 U.S. at 628) (emphasis added by the SJC).
The SJC also correctly observes that the petitioner was not "using her
stun gun to defend herself in her home" at the moment she was
arrested for violating Massachusetts’ prohibition on the possession of
stun guns by otherwise law-abiding citizens.

This, however, is precisely where the SJC's reading of Heller
goes most seriously awry. The petitioner was a homeless victim of
domestic violence. When restraining orders did not work, she carried a
stun gun — a non-lethal instrument designed for individual self-
defense, and typically possessed by law-abiding citizens in states other
than Massachusetts for that purpose. She had displayed the stun gun
to successfully fend off her abuser when he confronted her outside her
job. The SJC's approach would render all of these undisputed facts
irrelevant for Second Amendment purposes on the rationale that the
petitioner happened to be arrested in the parking lot of a supermarket

-13-

rather than in a "home" she did not have.

The Second Amendment "guarantee[s) the individual right to
possess and carry weapons in case of confrontation." Heller, 554 U.S.
at 592 (emphasis added). "Individual self-defense is ‘the central
component’ of the Second Amendment" itself. McDonald, 561 U.S. at
767, quoting Heller, 554 U.S. at 599 (emphasis in Heller). Although the
"need" for self-defense may be "most acute” inside the home, Heller,
554 U.S. at 628, it cannot be that the right itself simply evaporates at
the threshold. Confrontations are not limited to the home. Judge
Posner illustrated the point in terms that apply, almost word for word,
to this case:

A woman who is a Se pt abe

Hi
H
ai

Moore v. Madigan, 702 F.3d 933, 937 (7th Cir. 2012).”

This case presents the question whether the Second and
Fourteenth Amendments permit a state to outlaw the mere possession
of a stun gun, not whether stun gun ownership may be reasonably
regulated. Because the statute in question “prohibit[s] a class of
weapons entirely," 470 Mass. at 779, 26 N.E.3d at 692, the approach

pe tw che ee ened

. ‘ i was unconstitutional,
because Heller's i echaepens, eey ape apap i be restricted to
the home, and because was no “more than is" for believing

that such a ban would increase public safety. 702 F at 939-942

-14-

taken by the SJC would afford the petitioner no Second Amendment
protection even if she had been arrested for possessing a stun gun
while in the act of fending off her abuser inside whatever place she
called "home." For this reason, the statute in question cannot survive
anything more than “rational-basis scrutiny," Heller, 554 U.S. at 628
n.27, and the SJC's proffered reasons why legislators might reasonably
decide to ban stun guns, 470 Mass. at 781-782, 26 N.E.3d at 694, are
entirely beside the point.

+ * *

In a parting shot, the SJC says its affirmance of the petitioner's
conviction will not "affect{] fher] right to bear arms” because, "(b]arring
any cause for disqualification,” she "could have applied for a licence to
carry a firearm," or carried mace or pepper spray instead. 470 Mass. at
783, 26 N.E.3d at 695 (citing Mass. Gen. Laws c.140, §§122D and
129B). Cold comfort. The statutes cited deem the petitioner to now be
a "prohibited person" who is disqualified as a result of the conviction
affirmed below from ever obtaining a firearm license, or from
purchasing or possessing self-defense spray.” The petition should be
granted because, by reaching a result that violates the petitioner's
Second Amendment right to bear arms in case of confrontation, the
SJC renders its own suggested state-law self-defense alternatives

infeasible.

1¥Section SEED puis the insusnee of o Gocanm Heanee to any peseen whe “hes
ee then Z ef pee cn
more years ;a
ion, ownership, transfer, purchase, sa ntal ‘ F

wanapaptation SP eaaemiliete Ulta tekaetiemies be
ma
imposed." Section states that "(n)o person shall pur p omnmenget » Soll

-15-

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108
(617) 482-6212
bkeehn@publiccounsel.net

Counsel of Record for the Petitioner

Dated: June 1, 2015.

APPENDIX A

Commonwealth vy. Caetano
Supreme Judicial Court of Massachusetts
December 2, 2014, Argued; March 2, 2015, Decided
SJIC-11718

Reporter
470 Mass. 774; 26 N.E.3d 688; 2015 Mass. LEXIS 103

ComMonweatri vs. Jaime Caetano.

Prior History: (***1] Middlesex.. Compcaint received and sworn to in the Framingham Division of
the District Court Department on September 30, 2011.

A motion to dismiss was heard by Robert V. Greco, J.; the case was heard by Martine G. Carroll, J.,

and a motion for sentencing was considered by her.

The Supreme Judicial Court granted an application for direct appellate review.

Counsel: Benjamin H. Keehn, Committee for Public Counsel Services, for the defendant.
Michael A. Kaneb, Assistant District Attorney, for the Commonwealth.

Keith G. Langer, for Commonwealth Second Amendment, amicus curiae, submitted a brief.

(*775] Eugene Volokh, of California, Michael E. Rosman & Michelle A. Scott, of the District of
Columbia, & Lisa J. Steele, for Arming Women Against Rape & Endangerment, amicus curiae,

submitted a brief.

Judges: Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Opmion sy: SPINA

Opinion

[**689] Spina, J. The defendant, Jaime Caetano, asks us to interpret the holdings of the United States
Supreme Court in McDonald v. Chicago, 561 U.S. 742, 791, 130 S. Ct. 3020, 177 L. Ed. 2d 894
(2010), and District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637
(2008), to afford her a right under the Second Amendment to the United States Constitution to possess
a stun gun in public for the [***2] purpose of self-defense. The defendant was arrested for possession
of a stun gun in a supermarket parking lot, claiming it was necessary to protect herself against an
abusive former boy friend. She now challenges the constitutionality of G. L. c. 140, § 131J, which bans
entirely the possession of an electrical weapon with some exceptions not applicable here. We hold that

Page 2 of 7
470 Mass. 774, *776; 26 N.E.3d 688, **690; 2015 Mass. LEXIS 103, ***5

a stun gun is not the type of weapon that is eligible for Second Amendment protection, see Heller,
supra at 622, and we affirm the defendant's conviction. '

1. Background. At approximately 3 p.m. on September 29, 2011, Ashland police officers responded to
a call about a possible shoplifting at a supermarket. The manager of the supermarket had detained
someone in the store, and he informed police that the defendant and a man with whom she left the store
also may have been involved. The manager pointed to a man standing next to a motor vehicle in the
parking lot outside the supermarket. The defendant was seated in the vehicle. Officers approached it.
Following a conversation [***3] with officers, the defendant consented to a search of her purse. Inside
the purse, the defendant had an operational stun gun.” The defendant told police that the stun gun was
for self-defense against a former boy friend. Police charged her with possession of a stun gun in

violation of G. L. c. 140, § 131.’

{**690] The defendant challenged the constitutionality of § 131J in a [*776] pretrial motion to
dismiss. She argued that the stun gun is an “arm” for purposes of the Second Amendment, that it is a
weapon primarily for self-defense and in common use in the United States for that purpose, and that
she kept her stun gun for purposes of self-defense. As such, she argued that her possession of the stun
gun was protected by the Second Amendment. The motion was denied.

At a jury-waived trial, the parties stipulated that the device in question was a stun gun regulated by G.
L. c. 140, § 131J. The defendant testified that the stun gun was for self-defense against a former boy
friend. She further testified that her former boy friend was violent, and that previously she had
displayed the stun gun during a confrontation with him. She said that she had been homeless and living
in a hotel. The judge found the defendant guilty of possession of the stun gun and placed the case on
file. The defendant consented to having the case placed on file. Approximately two and one-half
months later the defendant filed a written [***5] objection to the case being placed on file, and she

moved for sentencing.

A hearing was held on the motion. The Commonwealth recommended the imposition of the minimum
fine. The defendant proposed a fine less than the minimum. Both the Commonwealth and the judge
recognized that the purpose of the hearing was to preserve the defendant's right of appeal. After
discussion, the judge again placed the case on file over the defendant's objection in the belief that this
action would preserve the defendant's right of appeal.

The defendant filed a timely notice of appeal. We granted her application for direct appellate review.

' We acknowledge the amicus briefs submitted by Commonwealth Second Amendment and Arming Women Against Rape &
Endangerment in support of the defendant.

2 The stun gun was a black electronic device with two metal prongs and a switch. Once the switch was thrown, an electrical current
appeared between the prongs. Stun guns are designed to stun a person with an electrical current after the prongs are placed in direct
contact with the person and the switch is thrown.

General Laws c. 140, § 131J, forbids the private possession of a “portable device or weapon from which an electrical current, impulse.
wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill” except by
specified public officers or suppliers of such devices, if possession is “necessary to the supply or sale of the device or weapon” to
agencies utilizing it. Violation of this section is punishable “by a fine of not less than $500 nor more than $1,000 or by imprisonment
in the house of correction for not less [***4] than [six] months nor more than [two and one-half] years, or by both such fine and

imprisonment.” /d.

Page 3 of 7
470 Mass. 774, *776; 26 N.E.3d 688, **690; 2015 Mass. LEXIS 103, ***5

2. Appellate jurisdiction. As an initial matter, the Commonwealth argues that this appeal is not properly
before the court. The basis of this argument is that no judgment resulted from the defendant's
conviction because a conviction placed on file is not a judgment from which an appeal may be taken.
Generally, a judgment in a criminal case is the sentence, and a defendant has no right of appeal until
after the sentence is imposed. See Com- [*777] monwealth v. Ford, 424 Mass. 709, 713 n.2, 677
N.E.2d 1149 (1997) (conviction placed on filed suspends defendant's right to appeal alleged error in
proceeding); [***6] Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975) (no
appeal until after judgment “which in criminal cases is the sentence”). See also Mass. R. Crim. P. 28
(e), 453 Mass. 1501 (2009) (court may file case after guilty verdict without imposing sentence).

We have recognized that a defendant has a right to appeal a conviction on file without her consent.
Delgado, supra. \t was clear to all involved that the defendant wanted to pursue an appeal on the
constitutionality of the criminal statute of which she was adjudged guilty, and that she withdrew her
consent and moved for sentencing for that purpose. We conclude that the defendant may proceed with
her appeal. See id.

3. Discussion. Where we must determine whether the Massachusetts ban on [**691] stun guns violates
the Second Amendment, we are bound by decisions of the United States Supreme Court on the matter.
The Supreme Court recently interpreted the Second Amendment in a historical context that focused on
the meaning of various words and phrases in the amendment as they probably were understood and
used by Congress at the time of the Second Amendment's enactment. In accord with that analysis we
must determine whether a stun gun is the type of [***7] weapon contemplated by Congress in 1789
as being protected by the Second Amendment.

In Heller, 554 U.S. at 635, the United States Supreme Court held that “[a] ban on handgun possession
in the home violates the Second Amendment, as does its prohibition against rendering any lawful
firearm in the home operable for the purpose of immediate self-defense.” The Court in Heller was
confronted with a total ban on handgun possession in the home, and a further requirement that any
lawful firearm kept in the home be rendered inoperable. /d. at 628. The Court reasoned that

“the inherent right of self-defense has been central to the Second Amendment right. The handgun
ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by
American society for that lawful purpose. The prohibition extends, moreover,.to the home, where
the need for defense of self, family, and property is most acute. Under any of the standards of
scrutiny that we have applied to enumerated constitutional rights, banning from the home [*778]
‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and
family,’ ... would fail constitutional muster.” (Footnote omitted; emphasis [***8] added.)

Id. at 628-629, quoting Parker v. District of Columbia, 478 F.3d 370, 400, 375 U.S. App. D.C. 140
(D.C. Cir. 2007). The Supreme Court extended this interpretation of the Second Amendment to the
States in McDonald, 561 U.S. at 791. The defendant now urges that the outright prohibition on the
private possession of stun guns in Massachusetts violates the right articulated in Heller.“

* At issue here is only the applicability of the Second Amendment to the statute. The cognate Massachusetts constitutional provision,
art. 17 of the Massachusetts Declaration of Rights, previously has been held to encompass a collective, and not an individual, right to
bear arms. See Commonwealth v. Davis, 469 Mass. 886, 888, 343 N._E.2d 847 (1976). The Heller Cour. before reaching its conclusion,

Page 4 of 7
470 Mass. 774, *778; 26 N.E.3d 688, **691; 2015 Mass. LEXIS 103, ***8

“Since Heller, ‘[clourts have consistently recognized that Heller established that the possession of
operative [(***9] firearms for use in defense of the home constitutes the ‘core’ of the Second
Amendment.’” Commonwealth v. McGowan, 464 Mass. 232, 235, 982 N.E.2d 495 (2013), quoting
Hightower v. Boston, 693 F.3d 61, 72 (1st Cir. 2012). Moreover, the Supreme Court said in Heller that
the Second Amendment individual right to keep and bear arms is “not unlimited.” 554 U.S. at 595. The
Court identified certain examples of lawful prohibitions and limitations on the Second Amendment
right including, but not limited to, “prohibitions on the possession of firearms by felons and the
mentally ill.” Jd. at 626. In addition to the lawfulness of prohibitions against possession of arms by
certain persons, the Court recognized the existence of

(**692] “another important limitation on the right to keep and carry arms. [ United States v.| Miller

said, as we have explained, that the sorts of weapons protected were those ‘in common use at the
time.” ... We think that limitation is fairly supported by the historical tradition of prohibiting
carrying of ‘dangerous and unusual weapons.’”

Heller, supra at 627, quoting United States v. Miller, 307 U.S. 174, 179, 59 S. Ct. 816, 83 L. Ed. 1206,
1939-1 C.B. 373 (1939).

[*779] The conduct at issue in this case falls outside the “core” of the Second Amendment,

[***10] insofar as the defendant was not using the stun gun to defend herself in her home, see
Hightower, 693 F.3d at 72 & n.8, quoting Heller, 554 U.S. at 627, and involves a “dangerous and
unusual weapon” that was not “in common use at the time” of enactment. “From Blackstone through
the 19th-century cases, commentators and courts routinely explained that the [Second Amendment]
right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” Heller, supra at 626. Without further guidance from the Supreme Court on the
scope of the Second Amendment, we do not extend the Second Amendment right articulated by Heller
to cover stun guns.

Here, we are concerned not with ensuring that designated classes of people do not gain access to
firearms or weapons generally, but rather with prohibiting a class of weapons entirely. The traditional
prohibition against carrying dangerous and unusual weapons is not in dispute. See Heller, 554 U.S. at
627, citing 4 Blackstone 148-149 (1769).

The question of the dangerousness of a weapon is well fixed in the common law through the distinction
drawn between weapons that are dangerous per se and those that are dangerous [***11] as used. See
Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N.E.2d 1051 (1980) (setting out common-law
definitions of dangerous weapons). See also Commonwealth v. Wynton W., 459 Mass. 745, 748-755,
947 N.E.2d 561 (2011) (analyzing term “dangerous weapon” in context of G. L. c. 269, § 10 [j], barring
possession of dangerous weapons on school grounds). At common law, a weapon is dangerous per se
if it is an “instrumentality designed and constructed to produce death or great bodily harm” and “for
the purpose of bodily assault or defense.” Appleby, supra at 303. Weapons of this type include
“firearms, daggers, stilettos and brass knuckles” but not “pocket knives, razors, hammers, wrenches
and cutting tools.” /d. The weapons not so classified all share the same characteristic: they were
first conducted a survey of Second Amendment jurisprudence. District of Columbia v. Heller, 554 U.S. 570, 576-628, 128 S. Ct. 2783.

171 L. Ed. 2d 637 (2008). In so doing, the Court concluded that the Second Amendment secured an individual right to bear arms for
defensive purposes. /d. at 602. We therefore view the defendant's claim only through the lens of the Second Amendment.

Page 5 of 7
470 Mass. 774, *779, 26 N.E.3d 688, **692; 2015 Mass. LEXIS 103, ***1}

designed primarily as tools and only secondarily utilized as weapons. The Court in Heller confirms this
method of analysis in discussing Miller, 307 U.S. at 178. See Heller, 554 U.S. at 622 (Miller decision
concerned with design or “type of weapon at issue” and not use [emphasis omitted]).

The statute at issue here explicitly prohibits “a portable device or weapon from which an electrical
current, impulse, [***12] wave or [*780] beam may be directed, which current, impulse, wave or
beam is designed to incapacitate temporarily, injure, or kill.” G. L. c. 140, § 131J. From this statutory
definition, we easily conclude that any weapon regulated by § 131J would be classified as dangerous
per se at common law. The parties have stipulated that the stun gun at issue here falls within the
purview of § 131J and is a weapon. Accordingly, we consider the stun gun a per se dangerous weapon
at common law. The record demonstrates no evidence or argument that its purpose is for anything other
than “bodily (**693] assault or defense.” Appleby, 380 Mass. at 303.

We turn next to the question whether a weapon is unusual. Historically, when considering challenges
to the ban of dangerous and unusual weapons under the Second Amendment or equivalent State
Statutes, courts have asked whether the weapon in question is unusual by ascertaining if it is a weapon
of warfare to be used by the militia. See Hill v. State, 53 Ga. 472, 474-477 (1874); Aymette v. State,
21 Tenn. 154, 158-160 (1840); English v. State, 35 Tex. 473, 476-477 (1871); State v. Workman, 35
W. Va. 367, 372-374, 14 S.E. 9 (1891). The Supreme Court utilized this approach in Miller, 307 U.S.
at 178, [***13] and approved its use in Heller. The Court said,

““In the colonial and revolutionary war era, [small-arms] weapons used by militia men and
weapons used in defense of person and home were one and the same.’ State v. Kessler, 289 Ore.
359, 368, 614 P2d 94 ... (1980) (citing G. Neumann, Swords and Blades of the American
Revolution 6-15, 252-254 [1973]). Indeed, that is precisely the way in which the Second
Amendment’s operative clause furthers the purpose announced in its preface. We therefore read
Miller to say only that the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

Heller, 554 U.S. at 624-625. Thus, the questions whether a weapon is “unusual” and whether the
weapon was “in common use at the time” of enactment are interrelated. Jd. at 627-628.

The ban on the private possession of stun guns will not burden conduct that [{***14] falls within the
scope of the Second Amendment if [*781] a stun gun is a weapon not “in common use at the time”
of enactment of the Second Amendment and ‘would be dangerous per se at common law without
another, primary use, i.e., as a tool. See Heller, 554 U.S. at 624-625, 627, quoting Miller, 307 U.S. at
179. For reasons that follow, there can be no doubt that a stun gun was not in common use at the time
of enactment, and it is not the type of weapon that is eligible for Second Amendment protection. See
Heller, supra at 622.

The record is silent as to the development of the stun gun. The record indicates only that stun guns have
been available commercially for private purchase since the early 1990s. We note that the first patent
for stun gun was filed in 1972. See Weapon for Immobilization and Capture, U.S. Patent No. 3,803,463

* In State v. Kessler, 289 Ove. 359, 368, 614 P.2d 94 (1980), the Oregon Supreme Court described the type of weapons typically used
by militiamen in defense of home and for purposes of the militia as being a musket or rifle, a hatchet, sword and knife or pike (a long
shaft with a spear head).

Page 6 of 7
470 Mass. 774, *781, 26 N.E.3d 688, **693; 2015 Mass. LEXIS 103, ***14

(filed July 10, 1972). The recent invention of this weapon clearly postdates the period relevant to our
analysis. We therefore conclude that stun guns were not in common use at the time of the Second
Amendment’s enactment. A stun gun also is an unusual weapon. In her motion to dismiss the complaint
against her, the defendant acknowledged that the “number of Tasers [***15] and stun guns is dwarfed
by the number of firearms.” Moreover, although modern handguns were not in common use at the time
of enactment of the Second Amendment, their basic function has not changed: many are readily
adaptable to military use in the same way that their predecessors were used prior to the enactment. A
stun gun, by contrast, is a thoroughly modern [**694] invention. Even were we to view stun guns
through a contemporary lens for purposes of our analysis, there is nothing in the record to suggest that
they are readily adaptable to use in the military. Indeed, the record indicates “they are ineffective for
... hunting or target shooting.” Because the stun gun that the defendant possessed is both dangerous
per se at common law and unusual, but was not in common use at the time of the enactment of the
Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment.
See Heller, 554 U.S. at 622, 627.

The question remains whether the total ban on stun guns has a rational basis. Those who challenge the
constitutionality of a statute that burdens neither a suspect group nor a fundamental constitutional right
bear a heavy burden in overcoming the presumption [***16] of constitutionality in favor of the
statute’s validity. See English v. New England Med. Ctr, Inc., 40S Mass. 423, 427, 541 N.E.2d 329,
cert. denied, 493 U.S. 1056, 110 S. Ct. 866, 107 L. Ed. 2d 949 (1989). Such is the case before us. For
due process claims, the test under “the Federal Constitution is [*782] ‘whether the statute bears a
reasonable relation to a permissible legislative objective’ ... and, under the ... State Constitution [is]
whether the statute “bears real and substantial relation to public health, safety, morals, or some other
phase of the general welfare’” (citations omitted). /d. at 430. For equal protection claims, the test is
the same under both Constitutions, namely, whether the statute is “rationally related to the furtherance
of a legitimate State interest” (citations omitted). /d. at 428. Under the State Constitution the test also
“includes a requirement that an impartial lawmaker could logically believe that the classification
would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged
class.” /d. at 429, quoting Cleburne v. Cleburne Living Ctr, Inc., 473 U.S. 432, 452, 105 S. Ct. 3249,
87 L. Ed. 2d 313 (1985) (Stevens, J., concurring). The defendant does not challenge the statute on the
basis of any [***17] group classification. We therefore focus on the challenge under principles of due

process.

The defendant does not articulate any basis for challenging the statute under the rational basis test.
Nevertheless, we note that stun guns deliver a charge of up to 50,000 volts. They are designed to
‘ncapacitate a target by causing disabling pain, uncontrolled muscular contractions, and general
disruption of the central nervous system. See Amnesty International, Less than Lethal? Use of Stun
Weapons in U.S. Law Enforcement, 1-2, 6-7 & nn.17, 18 (2008), available at https://www.amnesty.org
/download/Documents/52000/amr510102008en.pdf [https://perma.cc/JK53-XMR3] (last visited
February 26, 2015). It is difficult to detect clear signs of use and misuse of stun guns, unlike handguns.
Stun guns can deliver repeated or prolonged shocks without leaving marks. Id. at 1-2. The Legislature
rationally could ban their use in the interest of public health, safety, or welfare. Removing from public
access devices that can incapacitate, injure, or kill a person by disrupting the central nervous system
with minimal detection is a classic legislative basis supporting rationality. It is immaterial that the
Legislature [***18] has not banned weapons that are more lethal. Mathematical precision by the

Page 7 of 7
470 Mass. 774, *782; 26 N.E.3d 688, **694; 2015 Mass. LEXIS 103, ***18

Legislature is not constitutionally required. See Commonwealth v. McQuoid, 369 Mass. 925, 927-928,
344 N.E.2d 179 (1976). The statute easily passes the rational basis test under both the Federal and State
Constitutions.

[**695] Self-defense when homeless. Although we already have concluded that the defendant's
possession of a stun gun was in violation of a statute regulating a weapon not protected by the Second
Amendment, we touch briefly on her claim that her (*783] homelessness at the time of her arrest
should not deprive her of her right to defend herself. As noted above, the Supreme Court’s holding in
Heller stressed the particular importance of the right to defend hearth and home as the core of the
Second Amendment. See Hightower, 693 F.3d at 72 & n.8 (noting emphasis in Heller on “hearth and
home” and subsequent interpretations). A homeless person may indeed have a home for constitutional
purposes, and this question must be determined on a case-by-case basis. For example, constitutional
protections against unreasonable search and seizure can be extended to a variety of living situations.
See Commonwealth v. Porter P., 456 Mass. 254, 260-261, 923 N.E.2d 36 (2010) [(***19] (holding
reasonable expectation of privacy exists in transitional living space); Commonwealth v. Paszko, 391
Mass. 164, 184-185, 461 N.E.2d 222 (1984) (hotel room during rental period). However, where a stun
gun itself is not a type of weapon the possession of which is protected under the Second Amendment,
we need not decide whether a hotel room may be treated as a home under the Second Amendment.
Moreover, the stun gun was found not in the defendant's hotel room but on her person in a motor
vehicle, outside the “core” of the Second Amendment.

Finally, neither the legislative ban on stun guns nor our decision affects the defendant's right to bear
arms under the Second Amendment. Barring any cause for disqualification the defendant could have
applied for a license to carry a firearm. See G. L. c. 140, §§ 129B, 131 (c). In addition, again barring
any disqualification, possession of mace or pepper spray for self-defense no longer requires a license.
See G. L. c. 140, § 122D, inserted by St. 2014, c. 284, § 22. We hold only that the defendant’s weapon
of choice, the stun gun, is not protected by the Second Amendment. We acknowledge that stun guns
may have value for purposes of self-defense, but because [***20] they are not protected by the Second
Amendment and because a rational basis exists for their prohibition, the lawfulness of their possession
and use is a matter for the Legislature.

Conclusion. For the reasons stated above, we hold that G. L. c. 140, § 131J, does not violate the Second
Amendment right articulated in Heller. We affirm the defendant's conviction of possession of an
electrical weapon in violation of G. L. c. 140, § 131).

So ordered.

APPENDIX B
The Commonwealth of Massachusetts
Committee for Public Counsel Services
Public Defender Division
44 Bromfield Street, Boston, MA 02108-4909

SS

ANTHONY J. BENEDETT! TEL (617) 482-6212
CHIEF COUNSEL FAX (617) 988-8485

December 17, 2014

Francis V Kenneally

Clerk, Supreme Judicial! Court
John Adams Courthouse

One Pemberton Square, Suite 2500
Boston, MA 02108

RE: Commonwealth v. Jaime Caetano
No. SJC-11718

Dear Clerk Kenneally:

The above-captioned case was argued on December 2, 2014, and is under
advisement.

Pursuant to Mass. R. A. P. 16 (1), as amended, 386 Mass. 1247 (1982), I
write to bring the Court's attention to State v. DeCiccio, 315 Conn. 113 (2014)
(unofficially released December 16, 2014) (available at http://jud.ct.gov/external/
supapp/Cases/AROcr/CR315/315CR113.pdf) (copy attached at Add. 2-Add. 48).

In DeCiccio, the Connecticut Supreme Court held that police batons and
dirk knives are “Arms" within the ambit of the Second Amendment, see Add. 18-
29 & nn. 23-39 at Add. 41-45, and that a Connecticut statute which criminalizes
the transporting of such weapons between homes infringes the Second
Amendment right of law-abiding persons, such as the defendant DeCiccio, to keep
and bear arms. See Add. 29-37 & nn.40-48 at Add. 45-48.

DeCiccio is “pertinent and significant authorit{y]," Mass. R. A. P. 16 (0), for
Jaime Caetano's arguments that "Stun guns are ‘Arms’ within the ambit of the
Second Amendment" (Defendant's brief at 9-13), and that G.L. c.140, §131d is

Francis V. Kenneally
Clerk, Supreme Judicial Court
December 17, 2014

Page Two

"invalid under any standard of heightened constitutional scrutiny because it bans
‘an entire class of “arms” whose possession is protected by the Second
Amendment" (Defendant's brief at 13-19).

Respectfully submitted,

eek decd

Renjamin H. Keehn
Attorney for Jaime Caetano

Certificate of Servi

I certify that I have this date caused to be mailed, first-class and postage pre-paid, a copy of
the foregoing letter, with addendum, to ADA Michael A. Kaneb, Office of the District Attorney,
Middlesex County, 15 Commonwealth Avenue, Woburn, MA 01801.

Pet. Mee

Benjamin H. Keehn
BBO #542006

APPENDIX C

Commonwealth of Massachusettss

Middlesex,se. Framingham District Court
No. 1149-CR-2522

Commonwealth
v.
Jaime Caetano

Ruling on Motion to Digmi

The defendant was charged with possession of an electric stun gun, and has
moved to dismiss this charge on the grounds that prohibiting such possession
violates the defendant’s Second Amendment right to bear arms as well as Article
TY of the Massachusetts Declaration of Rights. At the outset it is recognized that
the Second Amendment applies to the states (see McDonald v City of Chicago,
130 Supreme Court, 3020, (2010).

With some exceptions that do not apply. here, G.L. c. 140, s 131] provides
that “{nJo person shall possess a portable device or weapon from which an
electronic current, impulse, wave or beam may be directed, which current,
impulse, wave or beam is designed to incapacitate temporarily, injure or kill”. On
the other hand, under G. 1. c. 140, s 121, a firearm is defined as “a pistol, revolver
or other weapon of any description, loaded or unloaded, from which a shot or
bullet can be dis harged,” but does not “include any weapon thatis...
constructed in a shape that does not resemble a handgun, short-barreled rifle or
short-barreled shotgun including, but not limited to covert weapons that resemble
key-chains, pens, cigarette-lighters or cigarette packages, .. . or not detectable as a
weapon or potential weapon by X-ray machines commonly used at airports or

walk-though metal detectors.”

The defendant relies heavily on Michigan’s interpretation of the right to
keep and bear arms’ as covering weapons other than guns, noting that the
Michigan law “does not include ordinary guns, swords, revolvers, or other
weapons usually relied upon by good citizens for defense and pleasure.”
(Emphasis in original.) People v. Brown, 253 Michigan, 537, 542 (1931). By
contrast, it would appear that Massachusetts characterizes items, such as stileitos,
daggers, ballistic knives and blowguns as dangerous weapons possession of which
is prohibited under G.I. c 269, s 10(b), as opposed to “arms” protected by the
Second Amendment.

Often items possessed by law-abiding citizens for self defense are protected
by the Second Amendment. However, that there may be a substantial number of
stun guns “out there” does not compel a conclusion that stun guns are typically
possessed by law abiding citizens. Moreover, there may well be another question
of fact at a trial as to whether the particular device at issue here even fits the
definition of a stun gun.’ More importantly, in this case the defendant was not at
home when she was arrested, but was passenger in a car outside a supermarket.
Thus, we need not address whether a stun gun may be possessed within one’s
home.

‘Compare Commonwealth v. Sampson, 383 Mass.750, 754-755, fn. 6. (1981), involving
different items, where the SJC noted that “[ijn contrast to signalflare devices, tear gas guns are
weapons by design, in that their purpose is to subdue or incapacitate temporarily. In cases
involving convictions under firearms statutes for unlawfully carrying or using tear gas guns, the
issue has been not whether the instrument was a weapon, but whether it was a weapon
sufficiently capable of discharging explosives or bullets so as to come within the applicable
statutory or common law definition of firearm.

Based upon the above, the motion to dismiss is denied.

April 29, 2013

Appendix D

yy General Laws
ter 140, Section 131J,
tel doom te 2004, ch. 170, §1

No person shall possess a portable device or
weapon from which an electrical current, impulse,
wave or beam may be directed, which current,
impulse, wave or is designed toi itate
temporarily, injure or kill, except: (1) a federal,
state or municipal law enforcement officer, or
member of a special reaction team in a state prison
or designated special operations or tactical team in
a county correctional facility, in the
discharge of his — duties who completed a

the secretary of public
me ny pty: mary ise or weapon

d to incapacitate cusmnennaiio: or (2) a
supplier of such devices or weapons — to
incapacitate temporarily, if possession of the device
or weapon is necessary to the supply or sale of the
device or weapon within the scope of such sale or
supply enterprise. No person > shall sell or offer for

such device or weapon, except to federal, state
or municipal law re ies. A device or
—_ sold under this secti include a

ism for tracking the ouather of times the

davies or waunen hue Ueen Geet. The secretary of
public safety shall regulations governing who
may sell or offer to such devices or weapons in
the commonwealth and ene | law enforcement
training on the appropriate use of portable
electrical weapons.

Whoever violates this section shal] be
punished by a fine of not less than $500 nor more

Sram $1,008 or bey ianouicemapent in tho house of
correction for not less than 6 months nor more than
2 1/2 years, or by both such fine and imprisonment.
A law enforcement officer may arrest without a
warrant any person whom he has probable cause to
believe has Violated this section.

as amend

a a ~ ee,
; S.

IN THE
SUPREME COURT OF THE UNITED STATES

HS pe
NO. os —
JUN 0 1 2015
COMMONWEALTH OF MASSACHUSETTS, OFFICE OF THE CLERK |
Respondent
Vv
JAIME CAETANO,
Petitioner

ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

ARATION OF MEMBER OF SUPREME COURT BA:
REGARDING DETAILS OF MAILING UNDER RULE 28

I, Benjamin H. Keehn, state as follows:
1. I am a member of the Bar of the Court.

2. On June 1, 2015, I mailed a copy of the petition for writ of
certiorari in the above-entitled case to Scott S. Harris, Clerk, United
States Supreme Court, Supreme Court Building, One First Street N_E.,
Washington, D.C. 20543. The mailing was first-class postage pre-
paid, and was effectuated by deposit of said petition in the United
States Post Office at the Fort Point Station, 25 Dorchester Avenue,
Boston, Massachusetts 02205-9761.

3. The aforementioned mailing took place on Monday, June 1,
2015, which, when computed and extended pursuant to Rule 30.1, is

90 days from March 2, 2015, the date on which the Supreme Judicial
Court of Massachusetts released its opinion affirming the conviction of
the petitioner sought to be reviewed, and the filing of the petition was
therefore within the time permitted by Rule 13.1.

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on June 1, 2015.

Benjamin H. Keehn

CO E FOR PUBLIC COUNSEL SERVIC
Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

bkeehn@publiccounsel.net

Counsel of Record for the Petitioner

CERTIFICATE OF SERVICE

I, Benjamin H. Keehn, counsel for the petitioner in this case, hereby
certify that on this lst day of June, 2015, in compliance with Rule 29.3 of
this Court, I served a copy of the foregoing “Declaration of Member of
Supreme Court Bar Regarding Details of Mailing Under Rule 29.2" upon
all parties required to be served, by mailing the same, with first-class
postage prepaid, and by transmitting by electronic mail the same, to the
offices of the following:

Randall E. Ravitz

Assistant Attorney General

Chief, Criminal Appellate Division
One Ashburton Place

Boston, MA 02108
randall.ravitz@state.ma.us

Ref) bux

Benjamin H. Keehn

COMMITTEE FOR PUBLIC COUNSEL SERVICES
Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

bkeehn@publiccounsel.net

Counsel of Record for the Petitioner

IN THE
SUPREME COURT OF THE UNITED STATES

A a be 6 Goat t.
NO ; 24 ; ' “4

COMMONWEALTH OF MASSACHUSETTS,

Respondent
Vv a he
JAIME CAETANO, JUN 0 1 2015
Petitioner
LOFFICE OF THE CLERK |

ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

CERTIFICATE OF SERVICE

I declare that on this date, June 1, 2015, as required by Supreme
Court Rule 29, I have served the enclosed Motion for Leave to Proceed
in Forma Pauperis and Petition for Writ of Certiorari on counsel for
each party to the above proceeding, and on every other person required
to be served, by depositing an envelope containing the above
documents in the United States mail properly addressed to each of
them, with first-class postage prepaid, and by electronic mail.

The names and addresses of those served are as follows:

Randall E. Ravitz

Assistant Attorney General
Chief, Criminal Appeals Division
One Ashburton Place

Boston, MA 02108
randall.ravitz@state.ma.us

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on June 1, 2015.

Gal ber

COMMITTEE POR FOR PUBLIC COUNSEL SERVICES
Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

bkeehn@publiccounsel.net

Counsel of Record for the Petitioner

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0592%3A2. Public record. Not legal advice.