Gun violence prevention through legal action
The United States has the most guns (393 million) of any comparable nation. Americans are 26 times more likely to be killed in a gun homicide than people in other high-income countries.* At the time of this publication, there had been nearly twice as many mass shootings in the United States as there were days passed in 2023. As gun violence continues to rise, Davis Polk is joining forces with organizations working to end preventable loss of life through legal action.
NY State Rifle & Pistol Association, Inc. v. Bruen amicus brief
Following the constitutional challenge to New York State’s 1911 Sullivan Act, which required individuals seeking a concealed carry license to show “proper cause” or a special need in their application, a team of Davis Polk lawyers, led by Civil Litigation partner Tony Perez-Marques, filed an amicus brief to the U.S. Supreme Court on behalf of Prosecutors Against Gun Violence (PAGV) supporting the respondent in NY State Rifle & Pistol Association, Inc. v. Bruen.
Our brief’s central argument was that from the perspective of law enforcement and, more specifically, prosecutors, it is critically important that states and localities be able to determine gun licensing requirements that reflect their unique needs and public safety challenges, which vary widely nationwide based on geography, population, culture and tradition. The brief argued that taking this discretion away disregards the will of the people who elect decision makers they trust with their own safety.
In consultation with subject matter experts and through deep research, Davis Polk and PAGV expanded on this argument by outlining the impact that eliminating discretion in carry licensing would cause to New York’s public safety; the likely outcomes included an increase in violent encounters between civilians and law enforcement officials, partly due to the greater likelihood that both parties are armed. Research has shown that these encounters disproportionately harm communities of color – Black Americans are killed in police encounters more than twice as often as White Americans.[1]
Despite these efforts and an outpouring of opposition from organizations like PAGV, the U.S. Supreme Court, in a 6-3 decision, ruled in favor of the petitioners in the 2022 landmark decision that an individual’s ability to carry a handgun in public is a constitutional right under the Second Amendment.
With this decision, the Court also changed the standard by which lower courts interpret the Second Amendment and evaluate gun safety laws – it eliminated consideration of the government’s interest in public safety and the effectiveness of challenged laws, and instead placed sole focus on the history and “American tradition” of gun regulations.
[1] Police Shootings Database, Washington Post 2. Homicide Firearm Report, Chicago Police Department 3. Michael Siegel, The Impact of State-Level Firearms Laws on Homicide Rates by Race/Ethnicity 4. U.S. Dept. of Justice, Office of Justice Programs
Colorado restrictions on assault weapons and large capacity magazines
On the heels of the Bruen decision, efforts to stop gun violence across the country are facing a wave of new challenges from gun rights advocate groups. One such case has been brought by Rocky Mountain Gun Owners, the National Association for Gun Rights and several individual plaintiffs against four local governments in Colorado that implemented their own gun violence prevention ordinances. Colorado’s local governments have been enacting gun regulations more restrictive than the state’s since 2021, when a law preventing ordinances of this nature was repealed in immediate response to a Boulder supermarket shooting that killed 10 people.
Everytown for Gun Safety, the Free + Fair Litigation Group (founded by Davis Polk alum Carey Dunne) and Davis Polk have teamed up to fight this suit, representing the town of Superior, the city of Louisville, the city of Boulder and Boulder County, which all passed restrictions on the ownership and sale of “assault weapons” and “large capacity magazines.” The “assault weapons” provisions restrict certain features and accessories of semi-automatic weapons, such as flash suppressors, barrel shrouds, folding stocks, and grips. The “large capacity magazines” provisions restrict magazines with a capacity to hold more than 10 rounds. Plaintiffs allege that these ordinances infringe on their Second Amendment rights.
For this case, Davis Polk and co-counsel have submitted a significant number of supporting reports from experts who are prepared to testify should a trial occur. The reports cover a range of relevant topics, including the history of firearm regulations in the United States, the history and evolution of mass shooting events throughout the country, and medical evidence regarding the uniquely destructive nature of assault weapons and large capacity magazines.
As states and municipalities nationwide continue their fight to enact and uphold life-saving gun reform post-Bruen, this suit is one of many similar conflicts playing out right now.
Amicus brief on violent police misconduct
On behalf of the Giffords Law Center, Davis Polk submitted an amicus brief to the Second Circuit Court of Appeals in support of James Cerisier, the plaintiff in Cerisier v. City of New York, in a Section 1983 claim. This suit follows an incident in 2019 when Cerisier, a Black man who lives and works in New York City, was driving to work on the Brooklyn-Queens Expressway (BQE) when he was waved down by a New York Police Department officer for a minor infraction while switching lanes. Cerisier alleges that while he navigated dense morning rush hour traffic to pull over his car, the officer drew his loaded gun and pointed it directly at him in the middle of the crowded expressway. Even after Cerisier opened his hands on the steering wheel to show that he was unarmed, the officer continued to point his gun for several minutes while shouting at Cerisier to “move it!” Once on the shoulder of the road, Cerisier alleges that the officer noticed his Department of Education parking permit on the dashboard and only then lowered his gun. The officer never clarified why he had pulled his gun out other than to say, “you see what you see on TV,” and quickly drove away without an apology and without issuing Cerisier a ticket, summons or verbal warning.
Cerisier’s initial suit in 2019 was denied by the Eastern District Court, which granted the police officer qualified immunity. In order for Cerisier’s claim to proceed, he must demonstrate that what he experienced was an unconstitutional level of excessive force which any reasonable officer should have recognized as a violation. In response to the lower court’s assessment that brandishing a firearm alone is not “serious” enough to trigger constitutional scrutiny, our amicus brief highlights the unique perspective that Giffords can offer through their specialized research regarding just how seriously violent police misconduct harms the communities where it occurs, particularly in communities of color. As we stated in the brief, “the research is clear: localities that experience higher rates of police misconduct, and significantly higher rates of unjustified police violence toward civilians, suffer from higher rates of gun violence.”
Our hope is that as this matter proceeds in the Second Circuit, Giffords’ ground-breaking research in this area will provide useful context as to the true unseen harm incidents such as this inflict.