WASHINGTON — The Supreme Court is turning to gun rights for the first time in nearly a decade, even though those who brought the case, New York City gun owners, already have won changes to the regulation they challenged.
The justices’ persistence in hearing arguments Monday despite the city’s action has made gun control advocates fearful that the court’s conservative majority could use the case to call into question gun restrictions across the country.
Gun rights groups are hoping the high court is on the verge of extending its landmark rulings from 2008 and 2010 that enshrined the right to have a gun for self-defense at home.
For years, the National Rifle Association and its allies had tried to get the court to say more about gun rights, even as mass shootings may have caused the justices to shy away from taking on new disputes over gun limits. Justice Clarence Thomas has been among members of the court who have complained that lower courts are treating the Second Amendment’s right to “keep and bear arms” as a second-class right.
The lawsuit in New York began as a challenge to the city’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits, either to a shooting range or a second home.
Lower courts upheld the regulation, but the Supreme Court’s decision in January to step into the case signaled a revived interest in gun rights from a court with two new justices, Neil Gorsuch and Brett Kavanaugh, both appointees of President Donald Trump.
Officials at both the city and state level scrambled to find a way to remove the case from the justices’ grasp. Not only did the city change its regulation to allow licensed gun owners to transport their weapons to locations outside New York’s five boroughs, but the state enacted a law barring cities from imposing the challenged restrictions.
“There is no case or controversy because New York City has repealed the ordinance and the New York state Legislature has acted to make sure it remains repealed,” said Jonathan Lowy, chief counsel and vice president of the gun control group Brady’s legal action project.
But those moves failed to get the court to dismiss the case, although the justices are likely to ask at arguments about whether there’s anything left for them to decide.
Paul Clement, who represents three New York residents and New York’s National Rifle Association affiliate challenging the transportation ban, said in an email that among the reasons the case remains alive legally is that the court frowns on tactical moves of the sort employed by the city and state that are meant to frustrate the justices’ review of an issue.
In addition, he wrote, that “the City still views firearm ownership as a privilege and not a fundamental right and is still in the business of limiting transport and denying licenses for a host of discretionary reasons.”
In the event the court reaches the substance of the law, the city does contend that what it calls its “former rule” did not violate the Constitution. But that would seem to be a tough sell given the court’s makeup, with Gorsuch and, in particular, Kavanaugh on the court.
Kavanaugh voted in dissent when his federal appeals court upheld the District of Columbia’s ban on semi-automatic rifles.
“Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right,” Kavanaugh wrote in 2011.
Gun control advocates worry that the court could adopt Kavanaugh’s legal rationale, potentially putting at risk regulations about who can carry guns in public, limits on large-capacity ammunition magazines and perhaps even restrictions on gun ownership by convicted criminals, including people convicted of domestic violence.
“This approach to the Second Amendment would treat gun rights as an absolute right, frozen in history, and not subject to any restrictions as public safety demands,” said Hannah Shearer, litigation director at the Giffords Law Center to Prevent Gun Violence.
Reflecting the possible high stakes, more than three dozen supporting legal briefs have been filed. The Trump administration, 25 mainly Republican states and 120 members of the House of Representatives are on the side of the gun owners.
A dozen Democratic-led states and 139 House lawmakers back the city. In addition, Sen. Sheldon Whitehouse, D-R.I., a vocal court critic, filed a brief joined by four Senate Democratic colleagues that asked the justices to dismiss the case and resist being drawn into what he called a political project.
Whitehouse also included a warning to the justices. “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics,’” he wrote, quoting a public opinion poll showing support for such changes.
All 53 Republican senators responded with a letter urging the court not to be cowed by the Democrats’ threats.
A decision is expected by late June.
Utah County is one of only two counties in the state with an office dedicated to providing legal defense to low-income offenders who would otherwise be unable to afford legal representation.
Every year, the County Attorney’s Office assigns thousands of felony, misdemeanor and juvenile cases to the Utah County Public Defenders Association, an entity established in 1994 that has less than two dozen attorneys on staff who represent indigent Utahns.
“I think that you would not find very many undeserving people appointed to our office,” said Director Tom Means.
With Utah Valley’s population growing rapidly, so too have grown the number of cases assigned to and handled by the Public Defenders Association. And without the staffing increases necessary to divvy up these cases, the county’s public defenders have seen their caseloads rise.
And while these defense attorneys are “passionate, caring (and) diligent,” as Utah County public defender Margaret Lindsay described her colleagues, more cases means less time allotted to each case.
“I think there’s no question our caseloads are too high,” Lindsay said.
“No question,” echoed Means.
Since 2000, when Means began keeping track, the number of felony cases assigned to public defenders has more than doubled. There were 1,007 felony cases assigned to the public defender association at the beginning of the century. There were 2,287 assigned in 2018, a 227% increase over 18 years.
And the need for indigent defense in the county has increased as well. In 2000, 72% of cases filed by the Utah County Attorney’s Office required public defense, compared to over 85% of cases last year, according to Means’ data.
In addition to newly filed adult felony cases, public defenders in the county handle all juvenile cases, as mandated by state law, and orders to show cause, where defendants are ordered to re-appear in court after, for example, violating the terms of their probation.
Though significantly less burdensome than felony cases, the number of orders to show cause dealt with by public defenders in the county has skyrocketed from 174 in 2000 to 2,795 in 2018.
What’s causing these increases? Means remembers something his criminal law professor told him while he was in law school at Brigham Young University: the biggest indicator of an increase in crime is an increase in population.
“And I think that’s been proven here in our county,” said Means.
“I think the reality is that the county’s experiencing growing pains,” Lindsay said. “It affects every county department. And it certainly affects us.”
In 1973, the National Advisory Commission on Criminal Justice Standards and Goals recommended to the American Bar Association that full-time public defenders be limited to handling 150 felony cases, 400 misdemeanor cases, 200 juvenile cases or 25 appeals per year. The bar association adopted these numbers as maximums that “should in no event be exceeded” in order to ensure defendants receive adequate care.
Divided among the 19 full-time, salaried attorneys in Utah County’s public defender office, the 2,287 new felony cases assigned in 2018 averages out to about 120 cases per attorney. This number doesn’t include cases assigned in previous years that are ongoing.
Combining felonies and orders to show cause, Means said these 19 public defenders have taken on an average of 367 cases per attorney this year.
Applying this same metric, public defenders in Salt Lake County handle between 140 and 160 caseloads annually, according to Lindsay, who serves on the board of the state’s Indigent Defense Commission, IDC.
While Means said he didn’t know the breakdown of serious and time-consuming cases, such as homicides or sexual offenses, versus drug and non-violent cases, he said the number of violent cases has increased over two decades.
“We have had a lot more violent cases,” said Means, “a lot more assaults (and) a lot more domestic violence cases than we used to 20 years ago.”
When asked if public defenders in Utah County are overwhelmed with their caseloads, Means said the word has come up before.
“But I don’t think as a rule we are overwhelmed,” he said. “We just work hard.”
This year, the public defender association received over $4.9 million in funding from Utah County, nearly five times the funding given in 2000, which was just over $1 million.
Even with these funding increases, ranging from between 1% and 19% over the nearly 2-decade period, the association’s budget has been in the red for 10 of the last 19 years.
Means said that although annual funding has increased, the county has not put forward money to hire new attorneys in nearly a dozen years.
“We have not had a specific line-item approval to hire new people since 2008,” Means said.
This year, the Utah IDC gave the public defender association about $1.5 million, which was used to hire nine attorneys: seven to oversee adult cases and two to oversee juvenile cases.
Despite this state funding, Means said more money is needed for the county’s defense attorneys to keep up with what is demanded of them.
Means said he has requested that the Utah County Commission approve the hiring of five new attorneys for adult cases, one for juvenile cases and one to handle appeals. Additionally, Means asked that two administrative staff members be hired, as well as two social workers to help defendants struggling drug addiction and mental health issues.
“Right now … the individual attorneys are attempting to (also be) social workers,” Means said. “That’s a very expensive way to do it. Attorneys are much more expensive than social workers.”
In an interview, Commissioner Tanner Ainge said he understood the commission’s “constitutional obligation to fund the right to counsel” but that he wants to see more detailed budget breakdowns and caseload numbers “so we can arrive on the amount of funding that is needed.”
“What we’re mindful of is the level of cases being prosecuted which require public defense and their current staffing levels and the caseload per attorney,” Ainge said. “And as they demonstrate to us that there is more caseload burden being placed on them, and they’re doing everything they can to manage their operation effectively and efficiently, then I think we are going to need to provide increased funding to them.”
As the commissioners outline the county’s 2020 budget, Ainge said he and other commissioners are focused on “outcome-based budgeting” and developing “quality metrics” that justify the funding levels of all county departments.
Since the Utah County Public Defender Association is not an official county department and instead contracts with the county, Ainge said a funding decision does not need to be reached by the time the commission finalizes the 2020 budget.
“While we need to make sure that we have the appropriate level of funding available in our 2020 budget,” he said, “their contract can be renewed and modified and updated at any time.”
The commissioner added that he understands the significance of having an adequately funded public defender association.
“(I) have an appreciation for the work that our public defenders do in our county,” said Ainge. “It’s a critical and important service.”
On Sept. 10, the commission authorized the Utah County Attorney’s Office to hire 15 full-time prosecutors and two full-time legal assistants. Means said, in his eyes, this indicates the necessity of hiring more public defenders.
“If you’ve now recognized the need to increase the staff of the prosecutor’s office to address the caseloads that we’re both working on,” said Means, “it stands to reason that we need to increase our staff.”
The first major snowfall of the season in Utah Valley didn’t stop roughly 200 people from heading out to see the Salem City’s annual Pond Town Christmas celebration.
However, without the resourceful work of city employees and those who started the free-to-the-public event, the celebration might not have been able to stay afloat for the past 17 years.
“We’ve had other cities call us and ask us how we do it,” said Steve Cox, Salem city building official inspector. For many of Cox’s 22 years working for the city, he held the parks and cemetery superintendent position, which largely oversees production of Pond Town Christmas. “Usually when they find out the hours that are involved, they tend to back off.”
Pond Town Christmas began many years ago as an idea of Salem native Brent Hanks during a trip to Phoenix, Arizona.
“There was a little pond and they had a Christmas tree on it, and I noticed that it reflected on the water,” said Hanks. Having grown up right along the shore of Salem Pond, he thought the idea could be nicely replicated on the city’s pond, and so he approached Randy Brailsford, who was Salem’s mayor at the time, with the idea.
“He told me no,” said Hanks with a chuckle. However, after some time had passed and Hanks had more discussions with Brailsford, the mayor finally agreed they would try his idea.
“So, we built a few trees,” said Hanks. The first trees were handmade from sewer pipes to create a raft, and rebar in the shape of a tree to hold the string lights, according to Hanks.
“It’s not fancy,” said Hanks, “You look at it in the daylight and you think that’s not very cool.”
Some others also had a skeptical opinion, at first. “I remember we got them out on there and there were some guys in town that thought we were crazy,” said Hanks.
However, at night, things were a totally different story.
“At night, you get all that reflection, and if the water’s still, it is gorgeous,” said Hanks. “For every foot of light up the tree, you get two and a half feet of reflection in the water.”
To fund the handmade efforts, Hanks went door-to-door to local businesses to raise money. “I went around and I told guys that if they donate $500, they would have a sponsorship for three years.” said Hanks. “It just went from that.”
Hanks was later elected to Salem’s City Council, and oversaw the event to make it better each year. Eventually, Salem city took over the event itself.
“It has evolved over the years,” said Steve Cox, Salem city building official inspector. “We’ve learned quite a bit on the process as far as the easiest way to get it on the water, how to secure them, and how to make them safe.”
Over the years, the city has slowly phased out the original pontoons used in the first Pond Town Christmases for new and improved displays.
“We got a company, Process Service Group, that was willing to build us some pontoons and kind of take our design and build them out of aluminum so that that they’re a little more durable,” said Cox.
However, most everything is still done by hand in order to keep the event cost effective and free to the public.
Besides the lights themselves, everything — from the floating pontoons and tree structures, to the lighted figures near the community center, to the Nativity scene at the south end of the pond — is built by hand primarily by approximately eight city employees headed by the parks department. Putting the event together begins at the start of October, and is done incrementally until the lights illuminate Salem Pond starting on Black Friday.
During the lights-on celebration, Salem’s Youth Council hands out hot chocolate and doughnuts, Salem Hills High School’s choir sings carols, and Santa Claus himself arrives by firetruck to flip on the pond’s lights. Cox explained that weather can play a factor in how many people come out for the event, but said that there’s consistently at least a few hundred people to bring in the holiday season.
“Some of the residents that have backyards that lead to the pond put trees up and stuff and it’s kind of a little community effort – everybody’s pitched in at some point or another,” said Cox. “Not too many people have this opportunity to do lights in a setting like this. It’s a great event to bring everyone together.”
Salem’s Pond Town Christmas is on display every evening from from 5:30 to 11 p.m. through New Year’s Day.