Second Amendment Challenge to Use of Force Rule Misfires

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By Bernie Pazanowski

Seattle police officers misfired with their Second Amendment challenge to the city’s use of force policy, the U.S. Court of Appeals for the Ninth Circuit ruled Sept. 19 ( Mahoney v. Sessions, 9th Cir., No. 14-35970, 9/19/17 ).

The policy, which restricts the use of police service weapons on duty, is reasonably related to the city’s important interest in public safety, the court said in an opinion by Judge William Q. Hayes, sitting by designation.

The policy says that officers “shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective.”

The officers claimed that the policy unreasonably restricts their right to use department-issued firearms for self-defense.

The appeals court assumed that the policy burdens conduct that falls within the Second Amendment. But because the policy doesn’t impose a substantial burden on that right, it looked to see whether it is reasonably related to an important city interest.

The city has an important interest in ensuring public safety and the safety of its police officers by mandating de-escalation techniques and reducing the likelihood firearms will only be drawn where it is objectively reasonable to do so, the court said. There is also a reasonable fit between the policy and achievement of this interest, it said.

Judges Carlos T. Bea and N. Randy Smith joined the opinion.

Short Cressman & Burgess PLLC represented the officers. The Seattle City Attorney’s Office represented the city.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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