Law Enforcement should get advice from local prosecutor before considering criminally charging someone with possession of an electronic control weapon.
(NOTE: The Detailed Summary in this article comes from the detailed Concurrence Opinion of Justice Alito and joined by Justice Thomas)
If ever an electronic control device proved its worth for a person who was not in law enforcement, this was the case. The United States Supreme Court provided the background that led to a criminal charge being brought against Jaime Caetano for possession of a stun gun:
After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and “in fear for [her] life.” She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against [her] former boy friend,” Caetano accepted the weapon. It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend “waiting for [her] outside.” He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left [her] alone.”
The events leading to Caetano’s prosecution occurred sometime after the confrontation between her and her ex-boyfriend. In September 2011, police officers responded to a reported shoplifting at an Ashland, Massachusetts’s supermarket. The store’s manager had detained a suspect, but he identified Caetano and another person in the parking lot as potential accomplices. Police approached the two and obtained Caetano’s consent to search her purse. They found no evidence of shoplifting, but saw Caetano’s stun gun. Caetano explained to the officers that she had acquired the weapon to defend herself against a violent ex-boyfriend. The officers believed Caetano, but they arrested her for violating Mass. Gen. Laws, ch. 140, §131J, “which bans entirely the possession of an electrical weapon,” When Caetano moved to dismiss the charge on Second Amendment grounds, the trial court denied the motion.
The prosecutor did not dispute the fact that Caetano had the stun gun for protection against her ex-boyfriend and actually asked the court to believe Caetano’s purpose. Nevertheless, Caetano was convicted under the Massachusetts statute:
The Court’s summary of the statute:
Specifically, the statute prohibits the possession of any “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.” Mass. Gen. Laws, ch. 140, §131J (2014). The statute includes exceptions for law enforcement officers and weapon suppliers, who may possess electrical weapons “designed to incapacitate temporarily.” Violations are punishable by a fine of $500 to $1,000, imprisonment of 6 months to 2½ years, or both.
In writing a concurring opinion with the Court’s judgment Justice Alito asserted:
It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). That right vindicates the “basic right” of “individual self-defense.” Id., at 767; see Heller, supra, at 599, 628. Caetano’s encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children.
Justice Alito noted that the Supreme Judicial Court had relied on an analysis that stun guns were not commonly used when the Second Amendment was written and therefore was not covered by the Second Amendment’s protection. Justice Alito noted that the U.S. Supreme Court had specifically rejected this analysis in its prior cases writing: “Instead, we held that ‘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.’” Justice Alito noted that semi-automatic firearms and even revolvers were not around at the time the Second Amendment was written.
Justice Alito also noted in his concurring opinion that the Supreme Judicial Court’s conclusion that stun guns were “unusual” and “dangerous weapons” and therefore could be banned was clearly wrong. Justice Alito wrote:
As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court’s conclusion that stun guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” But make no mistake—the decision below gravely erred on both grounds.
Justice Alito noted that the prosecutor’s own witness described the stun-gun as non-lethal and further noted that since the Second Amendment prohibited a complete ban on firearms, which are the most lethal, then stun-guns clearly could not be prohibited on the basis of dangerousness since they are not as dangerous as a firearm.
Justice Alito also rejected the argument that stun-guns were an unusual weapon writing: “The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States.
It is noted that the per curiam decision of the Court in a two-page decision rejected the decision of the Massachusetts Supreme Judicial Court because:
- The SJC held that stun guns were not protected because they were not commonly used at the time the Second Amendment was passed. The U.S. Supreme Court had previously rejected this type of analysis and once again did so here.
- The SJC held that stun-guns were unusual since they are a modern invention that was not in existence at the time the Second Amendment was written, an analysis that is contrary to U.S. Supreme Court precedent.
- The Court also rejected the SJC analysis that since stun-guns were not readily adaptable to military use, the Second Amendment did not apply.
Author’s Notes: The following states, cities, and counties should immediately consider the impact of this decision on local law that makes it illegal to possess or own a stun gun, TASER™, electronic control weapon, etc.
- Illinois – LEGAL but has restrictions
- Michigan – Stun Guns are prohibited. Only devices that contain an identification and tracking system that dispenses coded material when the device is used are allowed. TASER™ devices are the only ones currently legal.
- New Jersey
- New York
- Rhode Island
- District of Columbia
The following CITIES are ILLEGAL to own or possess a stun gun:
- Annapolis, MD
- Baltimore, MD
- Chicago, IL
- Philadelphia, PA
The following COUNTIES are ILLEGAL to own or possess a stun gun:
- Baltimore County, MD
- Crawford County, IA
Any officer who considers bringing a criminal charge based on mere possession of an electronic control weapon should consult with their local prosecutor.
An additional note for Attorneys: Justice Alito’s concurring opinion appears to question the dangerousness of stun-guns which includes TASER™. This suggestion appears contrary to recent decisions by lower courts that have heightened the degree of dangerousness of the TASER™.
*Prosecutors and law enforcement should not be surprised if criminal defense attorneys use this case as a springboard to challenge any state statute that prohibits certain types of weapons.*
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Caetano v. Massachusetts, 577 U.S. ___, slip opinion 14-10078 (per curiam) (March 21, 2016).