46 Memorandum Merged

Case 1:19-cv-00612-WES-PAS Document 46 Filed 03/15/22 Page 1 of 33 PageID #: 570
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
MICHAEL P. O’NEIL; )
NICOLA GRASSO, )
)
Plaintiffs, )
)
v. ) C.A. No. 19-612 WES
)
PETER F. NERONHA., in his )
capacity as Attorney General; )
JAMES M. MANNI, in his capacity )
as Superintendent of the )
Rhode Island State Police, )
)
Defendants. )
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
Before the Court are Cross-Motions for Summary Judgment, ECF
Nos. 30, 35, filed by Plaintiffs, Michael O’Neil and Nicola Grasso,
and Defendants, Peter Neronha, in his capacity as Attorney General,
and James Manni, in his capacity as Superintendent of the Rhode
Island State Police. The parties ask the Court to resolve a Second
Amendment constitutional challenge to the prohibition against stun
guns set forth in R.I. Gen. Laws § 11-47-42(a)(1). For the reasons
stated herein, the Court finds that the statute violates the Second
Amendment to the United States Constitution. Therefore, Plain-
tiffs’ Motion for Summary Judgment, ECF No. 30, is GRANTED, and
Defendants’ Cross-Motion for Summary Judgment, ECF No. 35, is DE-
NIED.
I. BACKGROUND
Plaintiffs Michael O’Neil and Nicola Grasso are Rhode Island
residents who wish to purchase, own, possess, and carry stun guns
for self-defense. Pls.’ Statement of Undisputed Facts (“Pls.’
SUF”) ¶¶ 1, 5, 6, 10, ECF No. 31. These weapons are currently
prohibited by Rhode Island by General Law § 11-47-42(a)(1), which
provides:
No person shall carry or possess or attempt to use

against another any instrument or weapon of the kind
commonly known as a blackjack, slingshot, billy,
sandclub, sandbag, metal knuckles, slap glove, bludgeon,
stun-gun, or the so called “Kung-Fu” weapons.
R.I. Gen. Laws § 11-47-42(a) (emphasis added). On November 22,
2019, Plaintiffs filed a Complaint seeking a declaratory judgment
and injunctive relief for violation of 42 U.S.C. § 1983. See
Compl. ¶¶ 82-90, ECF No. 1. Plaintiffs allege that they are
entitled to such relief because “Defendants’ laws, customs, prac-
tices and policies generally banning the acquisition, possession,
carrying and use of Tasers and other electronic arms violates the
Second Amendment to the United States constitution, facially and
as applied against the Plaintiffs.” Id. ¶ 83.
The parties filed cross-motions for summary judgment address-
ing the constitutionality of the stun gun ban set forth in § 11-
2
47-42(a)(1). See generally Pls.’ Mem. in Supp. Mot. Summ. J.
(“Pls.’ Mem.”), ECF No. 30-1; Defs.’ Mem. in Supp. Mot. Summ. J.
and Obj. to Pls.’ Mot. Summ. J. (“Defs.’ Mem.”), ECF No. 35-1. In
the motions, the parties dispute: (1) the scope of the statute;
(2) whether the arms regulated by § 11-47-42(a) are protected by
the Second Amendment; (3) the appropriate level of scrutiny; and
(4) the application of such scrutiny to the challenged statute.
The Court takes each issue in turn.
II. LEGAL STANDARD
“Summary judgment is appropriate where the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, to-
gether with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Lima v. City of East Providence, 17
F.4th 202, 206 (1st Cir. 2021) (quoting Audette v. Town of Plym-
outh, 858 F.3d 13, 19 (1st Cir. 2017)). “Cross-motions for summary
judgment do not alter the summary judgment standard, but instead
simply ‘require [the Court] to determine whether either of the
parties deserves judgment as a matter of law on the facts that are
not disputed.’” Wells Real Est. Inv. Tr. II v. Chardon/Hato Rey
P’ship, S.E., 615 F.3d 45, 51 (1st Cir. 2010) (quoting Adria Int’l
Group, Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir.
3
2001)). Where the parties have filed cross-motions “‘simultane-
ously, or nearly so, the district court ordinarily should consider
the two motions at the same time,’ applying the same standard.”
Id. (quoting P.R. Am. Ins. Co. v. Rivera-Vásquez, 603 F.3d 125,
133 (1st Cir. 2010)).
III. ANALYSIS
A. Statutory Interpretation
Before turning to the constitutional analysis, the Court must
briefly address the parties’ dispute concerning the scope of the
prohibition in § 11-47-42(a). In the Complaint, Plaintiffs allege
that § 11-47-42(a) bans both Tasers and stun guns because a Taser
can be used as a stun gun. Compl. ¶ 58. Plaintiffs also refer to
the term “other electronic arms” and specifically request a dec-
laration that the Court finds unconstitutional the “ban on electric
arms” in § 11-47-42. Id. at 13, 14, 15.
Defendants contend that such a ruling would extend beyond the
language of § 11-47-42(a) because the statute prohibits only “stun
guns,” not Tasers or other types of electric arms. Defs.’ Mem. 9.
According to Defendants, this interpretation of the statute is
supported by its plain language, as well as the cannon of con-
struction “expression unius est exclusion alterius” or, in other
words, “the expression of one thing is the exclusion of other
things.” Id. at 7. They argue that it would be improper to extend
4
the reach of the provision to an object not named in the statute
but which can be deployed in the same manner. Id. at 7–8. De-
fendants also point to the definition of “firearms” under § 11-
47-2(6) to demonstrate that the prohibition of stun guns in § 11-
47-42(a) was not meant to extend to Tasers, which, they contend,
the General Assembly intended to regulate as firearms.1 Id. at 8.
Each party argues that an alternative interpretation of the statute
leads to absurd results. Defs.’ Mem. 7; Pls.’ Mem. in Supp. Reply
and Obj. to Defs.’ Cross-Mot. for Summ. J. (“Pls.’ Reply”) 2, ECF
No. 39-1.
When interpreting a statute, the court “give[s] the words of
the statute their plain and ordinary meanings.” Epic Enters. v.
Bard Grp., LLC, 186 A.3d 587, 590 (R.I. 2018) (quoting Alessi v.
Bowen Ct. Condo., 44 A.3d 736, 740 (R.I. 2012)). The “ultimate
goal is to give effect to the purpose of the act as intended by
1 Pursuant to § 11-47-2(6), a “[f]irearm” includes:
[A]ny machine gun, pistol, rifle, air rifle, air pistol,

“blank gun,” “BB gun,” or other instrument from which
steel or metal projectiles are propelled, or that may
readily be converted to expel a projectile, except
crossbows, recurve, compound, or longbows, and except
instruments propelling projectiles that are designed or
normally used for a primary purpose other than as a
weapon. The frame or receiver of the weapon shall be
construed as a firearm under the provisions of this sec-
tion.
R.I. Gen. Laws § 11-47-2(6).
5
the Legislature.” Id. at 589-90 (quoting Webster v. Perrotta, 774
A.2d 68, 75 (R.I. 2001)). To accomplish this task, the Court
“looks to the statutory scheme as a whole, and examines the statute
in context.” Jerome v. Prob. Ct. of Barrington, 922 A.2d 119, 123
(R.I. 2007). “‘Literal’ interpretations which lead to absurd re-
sults are to be avoided.” Summit Inv. & Dev. Corp. v. Leroux, 69
F.3d 608, 610 (1st Cir. 1995).
Beginning with the language of the statute, Section 11-47-
42(a) expressly bans possession of “stun guns” in addition to
certain other enumerated weapons not at issue here. See § 11-47-
42(a). The statute does not further define the term “stun gun” and
also does not refer to other types of electric arms.2 See id.
The parties agree that a Taser is more than a stun gun. See
2 Defendants suggest that stun guns and Tasers are part of a

“broader class of electric weapons that includes everything from
cattle prods to high-energy lasers,” citing an article produced by
the Navy Surface Warfare Center. See Defs.’ Statement of Undis-
puted Facts (“Defs.’ SUF”) ¶ 7, ECF No. 38; see also Defs.’ Mem.
in Supp. Mot. For Summ. J. and Obj. to Pls.’ Mot. Summ. J.(“Defs.’
Mem.”) Ex. B, at 50, ECF No. 35-2. Plaintiffs dispute this fact
and argue that there is a distinction between electric arms avail-
able to civilians — stun guns and Tasers — and electric arms
available only to the military. Pls.’ Mem. in Supp. Reply and
Obj. to Defs.’ Cross-Mot. for Summ. J. (“Pls.’ Reply”) 6 n.7, ECF
No. 39-1; Pls.’ Statement of Disputed Facts ¶ 7, ECF No. 40. The
Court considers Plaintiffs’ argument regarding the scope of the
statute to be limited to stun guns and Tasers, but to the extent
that Plaintiffs request a ruling that the prohibition set forth in
§ 11-47-42(a) extends beyond such arms, such an interpretation
6
Defs.’ Statement of Undisputed Facts (“Defs.’ SUF”) ¶¶ 1, 2, ECF
No. 38. A stun gun is a hand-held device, which “produce[s] an
arc (spark) from one electrode to another to produce pain when
contact is made with a person’s flesh.”3 Id. ¶ 1. A Taser, on
the other hand, is a “multi-function conducted-energy weapon[]”
which is capable of propelling steel projectiles up to a certain
distance, but which also has a secondary feature, known as “drive
stun” mode, which allows the weapon to operate as a stun gun.
Pls.’ SUF ¶ 16; Defs.’ SUF ¶¶ 2, 6.
Tasers are not included in the enumerated list set forth in
§ 11-47-42(a), nor are they specifically referenced in any other
Rhode Island statute, including those relating to firearms. So
while this weapon may fit the definition of firearm under § 11-
47-2(6) because it functions as "an instrument from which steel or
metal projections are propelled,"4 see § 11-47-2(6), there can be
would not be supported by the plain language of the statute read

in context.
3 Plaintiffs do not challenge Defendants’ proffered defini-
tions of stun gun or Taser. Rather, Plaintiffs take issue with
Defendants’ assertion that the projectiles of a Taser are expelled
by means of an explosive. See Pls.’ Statement of Disputed Facts
1.
4 The parties each point to advisory rulings or letters
issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) addressing whether Tasers are firearms under federal law.
See Defs.’ Mem. 8-9, ECF No. 35-1; Defs.’ Mem. Exs. D, E, ECF No.
35-2; Pls.’ Reply 3-4; Pls.’ Reply Ex. 1, ECF No. 39-2. These
7
little dispute that a Taser is effectively and operationally a
stun gun while in "drive stun" mode. See Defs.’ SUF ¶¶ 2, 6; Pls.’
SUF ¶ 16. As such, Plaintiffs convincingly argue that it would
make no logical sense for the General Assembly to ban stun guns,
but allow for a firearm to have an integrated stun gun feature
which would allow it to avoid the statutory ban. Pls.’ Reply 4;
see O’Connell v. Walmsley, 156 A.3d 422, 428 (R.I. 2017) (“[I]f a
mechanical application of a statutory definition produces an ab-
surd result or defeats legislative intent, th[e] [c]ourt will look
beyond mere semantics and give effect to the purpose of the act.”).
Therefore, the Court interprets the prohibition on possession and
carriage set forth in § 11-47-42(a) to include both stun guns and
Tasers.5
B. Second Amendment Analysis
The Second Amendment provides: “[a] well regulated Militia,
exhibits demonstrate that this classification has perhaps changed

with different models of Tasers. See Defs.’ Mem. Exs. D, E; Pls.’
Reply Ex. 1. In any event, the Court does not find that such
evidence demonstrates the General Assembly’s intent not to pro-
hibit Tasers under § 11-47-42(a).
5 This holding should not be interpreted to suggest that a
Taser would not be subject to regulation as a firearm based on its
projectile functionality. See § 11-47-2(6). The Court takes no
position on that issue. Rather, the Court merely holds that the
integrated “stun gun” feature found in all Tasers causes it to be
subject to the stun gun prohibition in § 11-47-42(a).
8
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. In District of Columbia v. Heller, 554 U.S. 570, 592,
628-29 (2008), the Supreme Court rejected as unconstitutional a
prohibition against handguns in the home, holding that the Second
Amendment right to keep and bear arms applies to an individual
unconnected to militia service6; and, the Court held, “the inherent
right of self-defense has been central to the Second Amendment
right.” Heller, 554 U.S. at 628.7
6 The Court made clear that the Second Amendment applies to

the states through the Fourteenth Amendment in McDonald v. City of
Chicago, 561 U.S. 742, 750 (2010).
This holding is the law of the land and binding on this

7
Court. But as the historian Joseph Ellis describes in the book

American Dialogue: The Founders and Us, this conclusion is not
historically accurate, nor defensible as an example of Constitu-
tional “originalism.” Joseph Ellis, American Dialogue: The Found-
ers and Us 160-70, 2018. Rather, Justice Scalia’s majority opinion
is a much better example of judicial activism or “living consti-
tutionalism” in as much as it reflected public sentiment dressed
up in “law-office history.” Id. at 163-68. As Ellis writes:
This collision between Scalia’s originalist convictions

and his political agenda helps explain why his opinion
in Heller is so difficult to follow, indeed seems almost
designed to create a maze of labyrinthian pathways that
crisscross, then double back on one another like a road
map through Alice in Wonderland. For Scalia was com-
mitted to providing an originalist reading of a histor-
ical document whose words and historical context defied
the conclusion he was predisposed to reach. If Heller
9
The Court in Heller did not examine “the full scope of the
Second Amendment” but emphasized that the right “is not unlim-
ited.”8 554 U.S. at 626. More specifically, it instructed that
“nothing in our opinion should be taken to cast doubt on longstand-
ing prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sen-
sitive places such as schools and government buildings, or laws
reads like a prolonged exercise in legalistic legerde-

main, or perhaps a tortured display of verbal ingenuity
by an overly assiduous Scrabble player, that is because
Scalia’s preordained outcome forced him to perform three
challenging tasks: to show that the words of the Second
Amendment do not mean what they say; to ignore the his-
torical conditions his originalist doctrine purportedly
required him to emphasize; and to obscure the radical
implications of rejecting completely the accumulated
wisdom of his predecessors on the court.
Id. at 165.
8 Eight years after District of Columbia v. Heller, 554 U.S.
570 (2008), the Supreme Court vacated a judgment of the Supreme
Judicial Court of Massachusetts upholding a ban against the pos-
session of stun guns. Caetano v. Massachusetts, 577 U.S. 411, 412
(2016). The majority opinion in Caetano was narrow and did not
address the constitutionality of such a prohibition. Id. Instead,
it held that “the explanation the Massachusetts court offered for
upholding the law contradicts [Supreme Court] precedent.” Id.
More specifically, the Court rejected as inconsistent with Heller
the Supreme Judicial Court’s findings that stun guns are not pro-
tected by the Second Amendment because they (1) were not in
existence when the Second Amendment was ratified; (2) are unusual
because they are a modern invention; and (3) are not useful for
military purposes. Id.
10
imposing conditions and qualifications on the commercial sale of
arms.” Id. at 626–27.
Post-Heller, the First Circuit has “mapped out a two-step
approach for analyzing Second Amendment challenges.” Worman v.
Healy, 922 F.3d 26, 33 (1st Cir. 2019). First, the Court must
“ask whether the challenged law burdens conduct that is protected
by the Second Amendment.” Id. If it does, then the Court “must
determine what level of scrutiny is appropriate and must proceed
to decide whether the challenged law survives that level of scru-
tiny.” Id. at 33 (quoting Gould v. Morgan, 907 F.3d 659, 669 (1st
Cir. 2018)).
1. Scope of the Second Amendment Right
The Court’s first inquiry “is ‘backward-looking’ and ‘seeks
to determine whether the regulated conduct was understood to be
within the scope of the right at the time of ratification.’”
Worman, 922 F.3d at 33 (quoting Gould, 907 F.3d at 669). However,
“[t]hat the proscribed weapons were not in existence, let alone in
common use, at the time of ratification, does not end the matter.”
Id. at 34. Therefore, to answer this first prong, the Court
analyzes “whether the proscribed weapons are in common use for
lawful purposes like self-defense.” Id. at 35.
11
a. Presumption
The parties dispute who should bear the burden of demonstrat-
ing that stun guns are (or are not) within the scope of Second
Amendment protection. Plaintiffs argue that stun guns fall within
the definition of “arms” contemplated in Heller, which creates a
rebuttable presumption in favor of Second Amendment protection.
Pls.’ Mem. 4-5 (citing N.Y. State Rifle & Pistol Ass’n v. Cuomo,
804 F.3d 242, 257 (2d Cir. 2015) (“NYSRPA”)). Therefore, Plain-
tiffs argue, it is the Defendants’ burden to prove that stun guns
do not receive constitutional protection. Pls.’ Reply at 5. De-
fendants counter that Heller did not “creat[e] a presumption that
all duly enacted arms regulation is constitutionally infirm.”
Defs.’ Reply Mem. Supp. Mot. for Summ. J. & Obj. to Pls.’ Mot.
(“Defs.’ Reply”) 6, ECF No. 42. Rather, citing to Hollis v. Lynch,
827 F.3d 436, 447 (5th Cir. 2016), Defendants say that the pre-
sumption to which Plaintiffs refer “never kicks in because stun
guns are not in common use and not commonly used for lawful pur-
poses.” Id. at 6-7. Defendants argue that the only presumption
that matters in this case is that a duly enacted statute is pre-
sumed to be constitutional. Id. at 7.
To begin, there is little question that stun guns fall within
the definition of “arms” under the Second Amendment. See Heller,
554 U.S. at 581 (quoting the 1771 legal definition of arms found
12
in 1 Timothy Cunningham, A New and Complete Law Dictionary) (de-
fining “arm”, understood at the time of ratification, to be “any
thing that a man wears for his defence, or takes into his hands,
or useth in wrath to cast at or strike another”); Ramirez v.
Commonwealth, 94 N.E.3d 809, 815 (Mass. 2018) (“Having received
guidance from the Supreme Court in Caetano II, we now conclude
that stun guns are ‘arms’ within the protection of the Second
Amendment.”).
As to whether this creates a rebuttable presumption in favor
of Second Amendment protection, the answer is less clear. In
Heller, the Supreme Court rejected the argument that the Second
Amendment extends only to arms in existence in the 18th century,
holding instead 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.” 554 U.S. at
582.
The First Circuit has not specifically addressed this ques-
tion, but several other circuits have held that the government has
the burden to show that an arm falls outside the scope of Second
Amendment protection. NYSRPA, 804 F.3d at 257 n.73 (holding that
Heller “identifies a presumption in favor of Second Amendment pro-
tection, which the State bears the initial burden of rebutting”);
Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011)
13
(emphasis added) (“[I]f the government can establish that a chal-
lenged law regulates activity falling outside the scope of the
Second Amendment right as it was understood at the relevant his-
torical moment — 1791 or 1868 — then the analysis can stop there;
the regulated activity is categorically unprotected, and the law
is not subject to further Second Amendment review.”); Tyler v.
Hillsdale Cnty. Sheriff’s Dept., 837 F.3d 678, 685-86 (6th Cir.
2016) (placing burden on government to demonstrate that the law
regulates conduct outside the scope of the second amendment); Mil-
ler v. Bonta, 542 F. Supp. 3d 1009, 1029 (S.D. Cal. 2021) (“The
correct starting orientation is that no arm may be prohibited. If
a plaintiff challenges the government’s prohibition, it is on the
government first to prove the banned arm is dangerous and unusual,
and if not that it is not commonly possessed, or not commonly
possessed by law-abiding citizens, or not commonly possessed for
lawful purposes or militia readiness.”). But see Hollis, 827 F.3d
at 447 (“There is no prima facie case . . . when the weapon is not
one ‘in common use at the time,’ ‘possessed at home,’ and for
‘lawful purposes like self-defense.’”). Mindful of the holdings
of Heller, and consistent with the decisions cited above, the Court
concludes the presumption of Second Amendment coverage applies;
therefore, in order for the Court’s analysis to end at step one,
the State must show that stun guns are not within the scope of the
14
Second Amendment.
b. Common Use for Lawful Purposes
The relevant question for the Court is “whether the proscribed
weapons are in common use for lawful purposes like self-defense.”
Worman, 922 F.3d at 35. Turning first to common use, “Heller
provides only meager guidance” on this question. Id. (“[A]s to
the middle ground—and particularly, as to how to plot the dividing
line between common and uncommon use—the Court was silent.”); see
Heller, 554 U.S. at 627 (holding that “the sorts of weapons pro-
tected [by the Second Amendment] were those ‘in common use at the
time’”). Generally, the common use inquiry involves a statistical
analysis. NYSRPA, 804 F.3d at 256 (“‘[C]ommon use’ is an objective
and largely statistical inquiry . . . .”). However, “there is
considerable variety across the circuits as to what the relevant
statistic is and what threshold is sufficient for a showing of
common use.” Hollis, 827 F.3d at 449. Indeed, in Hollis, the
Fifth Circuit Court of Appeals lists a “wide variety in methodo-
logical approaches” including “raw number, percentage and propor-
tion, [and] jurisdiction-counting.” Id.; see NYSRPA, 804 F.3d at
255 (holding that large capacity magazines were in common use where
50 million units were available for purchase); Friedman v. City of
Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) (noting that “9%
of the nation’s firearms owners have assault weapons”). A weapon

15
is not “‘in common use’ if it is ‘dangerous and unusual.’”9 Hollis,
827 F.3d at 447.
The First Circuit has not provided definitive guidance for
this inquiry, but has suggested that “measuring ‘common use’ by
the sheer number of weapons lawfully owned is somewhat illogical.”
Worman, 922 F.3d at 35 n.5 (quoting Friedman, 784 F.3d at 409)
(“[I]t would be absurd to say that the reason why a particular
weapon can be banned is that there is a statute banning it so it
isn’t commonly owned.”). Indeed, many courts have discussed the
difficulty in applying this factor of the test. See Avitabile v.
Beach, 368 F. Supp. 3d 404, 411 (N.D.N.Y. 2019) (“[T]rial courts
have expressed frustration about the difficulty of meaningfully
evaluating ‘common use.’”); Maloney v. Singas, 351 F. Supp. 3d
222, 237 n.25 (E.D.N.Y. 2018) (“The virtual impossibility of the
9 How the “dangerous and unusual” test fits within the common
use factor remains unclear. See Kolbe v. Hogan, 849 F.3d 114,
135–36 (4th Cir. 2017) (listing several questions raised in light
of Heller, including “Is not being ‘in common use at the time’ the
same as being ‘dangerous and unusual’?”, but holding that the court
need not answer those questions). Several circuits have held that
weapons like machine guns and sawed-off shotguns are sufficiently
dangerous to fall outside the scope of the Second Amendment. See
United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012) (finding
a machine gun dangerous because it “allow[s] a shooter to kill
dozens of people within a matter of seconds”); United States v.
Marzzarella, 614 F.3d 85, 95 (3d Cir. 2010) (noting dangerousness
of a sawed-off shotgun). Defendants have not argued dangerousness
at the first step of this inquiry.
16
task itself convinces the Court that common use cannot be a rele-
vant, and certainly not the only relevant, criterion under Hel-
ler.”).
For their part, Plaintiffs provide four declarations from
stun gun sellers describing the number of stun gun sales across
the United States for more than a decade. See Pls.’ Mem. Ex. C,
ECF No. 30-4. According to these declarations, approximately 6.5
million stun guns have been sold to consumers between 2008 and
2020.10 See id.; see also Pls.’ SUF ¶ 15.
While Defendants agree that millions of stun guns have been
sold nationwide, they argue that “however defined,” stun guns are
not in common use. Defs.’ Mem. 14. As an example, Defendants
10Defendants suggest that this total number may be misleading

in that it could include other types of electric arms. Defs.’
Mem. 12-13. They point out that only one of the declarations
specifies that the sale amount does not include Tasers. Id.; see
Pls.’ Mem. in Supp. Mot. Summ. J. Ex. C., ECF No. 30-4. Based
on this declaration, Defendants assert in their statement of facts
that “[a]pproximately 1.9 million stun guns have been sold in the
United States to date.” Defs.’ SUF ¶ 9. While Defendants are
correct that only one of the declarations specifically notes the
exclusion of Tasers, there is no indication that each of the other
three declarations, which address sales of “stun guns”, use this
term to mean the broader category of electric arms. In any event,
this dispute does not rise to the level of a genuine issue of
material fact, both because the Court has determined that § 11-
47-42(a) also prohibits Tasers, and its conclusion remains if the
total number of stun gun sales equals approximately 1.9 million.
Defs.’ SUF ¶ 9.
17
point to the dictionary definition of the term “common” and suggest
that televisions or cell phones are in common use, but 6.5 million
stun guns owned by less than one percent of the United States
population, are not. Id. at 13. Primarily, however, Defendants
urge the Court to use handguns as a measuring stick for its sta-
tistical analysis. See Defs.’ Mem. 11-14. Defendants contend
that the ratio of handguns to stun guns is more than 25 to 1 and
assert that “the number of stun guns is dwarfed” by the amount of
firearms owned in this country. Id. at 13.
Concurring in Caetano v. Massachusetts, Justice Alito, joined
by Justice Thomas, rejected a similar line of reasoning. See 577
U.S. 411, 420 (2016) (Alito, J., concurring). Justice Alito wrote
that the statistical gap between the number of stun guns or Tasers
and firearms “may be true, but it is beside the point.” Id. This
is because if it were “[o]therwise, a State would be free to ban
all weapons except handguns, because ‘handguns are the most popular
weapon chosen by Americans for self-defense in the home.’” Id.
(quoting Heller, 554 U.S. at 629). Justice Alito went on to say
that “[t]he more relevant statistic is that ‘[h]undreds of thou-
sands of Tasers and stun guns have been sold to private citizens,’
who it appears my lawfully possess them in 45 states.” Id. (quot-
ing People v. Yanna, 824 N.W.2d 241, 245 (Mich. Ct. App. 2012)).
Furthermore, at least two other courts have found stun guns
18
to be in common use. See Avitabile, 368 F. Supp. 3d at 411-12
(finding that at least 300,000 TASERs and 4,478,330 stun guns
satisfied a finding of common use); Yanna, 824 N.W.2d at 245 (not-
ing that stun guns and TASERs are legal in 43 states and although
less popular than handguns, may not “fairly be labeled as unusual
weapons”). Based on the record and the persuasive caselaw from
other jurisdictions, the Court finds that stun guns are in common
use for purposes of this step of the Second Amendment inquiry.
Second, just as with common use, “there is no defined ana-
lytical standard” for assessing whether an arm is typically pos-
sessed for lawful purposes. Avitabile, 368 F. Supp. 3d at 412
(quoting Maloney, 351 F. Supp. 3d at 234-35). The Second Circuit
has suggested that courts should “look into both broad patterns of
use and the subjective motives of . . . owners.” NYSRPA, 804 F.3d
at 256.
On this point, Plaintiffs argue that only twelve arrests re-
lating to stun gun usage in Rhode Island have occurred from 2005
to present, Pls.’ Mem. 7, while Defendants contend that incident
reports dating back twenty years lack any reference to a stun gun
being used in self-defense, Defs.’ Mem. 14. Without question, the
evidence in the record relating to typical use or possession is
quite limited. But it is Defendants’ burden to demonstrate that
stun guns are not used for lawful purposes such as self-defense,
19
and they failed to do so. Therefore, this factor cuts in favor of
Plaintiffs.
Other courts have reached similar conclusions. In Yanna, the
Michigan Court of Appeals rejected the state’s argument that “stun
guns are not suited for lawful defensive purposes and . . . can
easily be use for torturing someone.” 824 N.W.2d at 244. The
court stated that “[o]ne could easily produce an even lengthier
list of criminal cases involving handguns, but the Supreme Court
has determined that handguns are within the ambit of the Second
Amendment.” Id. at 244-45. The court concluded that the govern-
ment “fail[ed] to put forth evidence that would give the Court
reason to doubt that the vast majority of Tasers and stun guns are
possessed by law-abiding citizens for lawful purposes.” Id. at
245.
Similarly, in Avitabile, the district court found that the
state had not rebutted the presumption that stun guns are typically
used for lawful purposes. 368 F. Supp. 3d at 412. While the court
stated that electric arms “are sometimes used in connection with
criminal activity,” it found that “there is no indication that
[T]asers or stun guns have some sort of ‘special propensity for
unlawful use.’” Id. (quoting Maloney, 351 F. Supp. 3d at 236).
The court also found relevant that “forty-seven states now permit
the use and possession of electric arms with or without some form
20
of attendant regulation.” Id.
In sum, Defendants have failed to demonstrate that stun guns
are not in common use or not typically possessed for lawful pur-
poses like self-defense.
c. Longstanding Prohibition
Finally, Defendants argue that even if stun guns are suffi-
ciently common and typically possessed for lawful purposes, the
Court’s analysis should nevertheless end at step one because the
prohibition of stun guns is “longstanding” and presumed to be
lawful under Heller given that the Rhode Island General Assembly
added “stun gun” to a list of prohibited weapons first enacted in
1896. Defs.’ Mem. 16–17 (citing Young v. Hawaii, 992 F.3d 765,
773 (9th Cir. 2021)); Defs.’ Reply 10.
“[A] regulation ‘does not burden conduct protected by the
Second Amendment if the record contain[s] evidence that [the sub-
jects of the regulations] have been the subject of longstanding,
accepted regulation.’” Young, 992 F.3d at 783 (quoting Fyock v.
Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015)); see Heller, 554
U.S. at 626-27, 627 n.26 (holding that certain “longstanding pro-
hibitions” relating to firearms are “presumptively lawful,” in-
cluding, but not limited to, “possession of firearms by felons and
the mentally ill, . . . laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, . .

21
. [and] laws imposing conditions and qualifications on the com-
mercial sale of arms”). To answer this question, a court looks
for “historical prevalence” or if the law falls within those cat-
egories of laws specifically set forth in Heller. Young, 992 F.3d
at 783. But it is worth noting that “[t]he Supreme Court has not
created a test for determining whether a regulation is longstand-
ing” and “‘few lines from [Heller] have been more controversial or
consequential’ than its passage discussing presumptively lawful
regulations.” Nat’l Rifle Ass’n of Am., Inc. v. Swearingen, 545
F. Supp. 3d 1247, 1261–62 (N.D. Fla. 2021).
Here, the prohibition of stun guns in § 11-47-42(a) does not
fall within the enumerated list of “presumptively lawful” regula-
tions in Heller. See Heller, 554 U.S. at 626-27. Defendants
contend, however, that the stun gun regulation is “consistent with—
and indeed located within—” a regulation that could be considered
presumptively lawful because it bans other small weapons that have
been historically prohibited. Defs.’ Reply 10. In Young, the
Ninth Circuit recently remarked that bans of “small, hand-held
weapons, capable of being concealed, including pistols, revolvers,
dirks, daggers, brass knuckles, and slung shots” were among the
earliest laws predating the constitution. See 992 F.3d at 784–
86, 816 (ultimately holding that Hawaii’s restriction on open car-
rying of firearms is a longstanding prohibition outside the scope
22
of the Second Amendment). Section 11-47-42(a) includes bans
against possession of “slingshot[s],” “metal knuckles,” “dirks,”
and “daggers.”
However, while stun guns may have some similar characteris-
tics to some of the historical weapons enumerated in § 11-47-
42(a), including that a few these weapons are small and some typ-
ically non-lethal, Defendants have not presented any evidence
demonstrating the historical prevalence of prohibiting stun guns.
See United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009)
(finding a longstanding tradition of prohibiting juveniles from
possessing handguns after analyzing contemporary and nineteenth
century laws “imposing similar restrictions”). This Court will
not extend such a Second Amendment limitation solely based on the
addition of the stun gun to a list of arm prohibitions dating back
to 1896. See United States v. Marzzarella, 614 F.3d 85, 94 (3d
Cir. 2010) (“[P]rudence counsels caution when extending these rec-
ognized exceptions to novel regulations unmentioned by Heller.”).
Therefore, the prohibition against the possession of stun guns in
§ 11-47-42(a) is not presumptively lawful.
Accordingly, like the other courts to have addressed this
question, this Court finds that stun guns constitute arms within
the protection of the Second Amendment.
23
2. Level of Scrutiny and Application
At the second step of the analysis, the Court “must determine
what level of scrutiny is appropriate and must proceed to decide
whether the challenged law survives that level of scrutiny.”
Worman, 922 F.3d at 33 (quoting Gould, 907 F.3d at 669). Plain-
tiffs argue that the Court need not apply any tier of scrutiny to
find the ban on stun guns unconstitutional. Pls.’ Mem. 9. In-
stead, they say, the Court should employ a categorical approach
because the prohibition implicates possession of arms in the home.
Id. In the alternative, Plaintiffs argue that strict scrutiny
should apply for a similar reason — because the ban severely bur-
dens the core Second Amendment right to self-defense inside the
home. Id. at 12. Defendants, on the other hand, argue that
intermediate scrutiny applies because the statute prohibits only
one type of electric arm (stun guns) and that Rhode Island law
allows for possession of other weapons more traditionally used to
protect the home. Defs.’ Mem. 19. Defendants also assert that
nearly every other federal appellate court has applied intermedi-
ate scrutiny to the challenged statute. Id. at 19–20.
“[T]he appropriate level of scrutiny must turn on how closely
a particular law or policy approaches the core of the Second
Amendment right and how heavily it burdens that right.” Gould,
907 F.3d at 670-71. “A law or policy that burdens conduct falling
24
within the core of the Second Amendment requires a correspondingly
strict level of scrutiny, whereas a law or policy that burdens
conduct falling outside the core of the Second Amendment logically
requires a less demanding level of scrutiny.” Id. at 671. In
Gould, the First Circuit explicitly held “that the core Second
Amendment right is limited to self-defense in the home.”11 Id. at
671. “[O]ustide the home, firearm rights have always been more
limited, because public safety interests often outweigh individual
interests in self-defense.” Id. at 672 (quoting United States v.
Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011)). In Worman, the
First Circuit clarified that intermediate scrutiny is appropriate
even if the challenged legislation “implicates the core Second
Amendment right to self-defense in the home,” so long as the act
“places only a modest burden on that right.” 922 F.3d at 38.
Plaintiffs’ first argument is dispatched easily. While it is
true that some courts have found bans on the possession of stun
guns to be unconstitutional without applying any form of scrutiny,
see Illinois v. Webb, 131 N.E.3d 93, 98 (Ill. 2019); Ramirez, 94
N.E.3d at 815; Yanna, 824 N.W. 2d at 246, the First Circuit has
made clear that once a finding is made that challenged conduct is
The Court in Gould v. Morgan, 907 F.3d 659, 671 (1st Cir.
11
2018), also noted that “some courts have formulated broader con-
ceptions of the core of the Second Amendment.”
25
protected by the Second Amendment, this Court is “require[d] . .
. to evaluate the [law] under an appropriate level of scrutiny.”
Worman, 922 F.3d at 36 (quoting Gould, 907 F.3d at 670). Further-
more, in Worman, the First Circuit strongly suggested that employ-
ing a categorical approach would not be appropriate in this
context. See id. at 38 n.6 (citing Webb, 131 N.E.3d at 98) (dis-
agreeing with “the Illinois Supreme Court’s conclusion that any
law that restricts a certain type of arms is per se unconstitu-
tional”).
So, the question becomes whether strict or intermediate scru-
tiny should apply. For starters, the blanket ban on possession of
stun guns in § 11-47-42(a) extends into the home and therefore
implicates the core Second Amendment right. See Gould, 907 F.3d
at 671; Worman, 922 F.3d at 36 (assuming that a ban on large
capacity magazines and semi-automatic weapons implicated the core
Second Amendment right where plaintiffs argued it “affect[ed]
their ability to defend themselves in their homes”).
But the more difficult question relates to how heavily § 11-
42-47(a) burdens this core right. Gould, 907 F.3d at 670–71. In
deciding that a restriction on large capacity magazines and certain
semiautomatic assault weapons did not heavily burden the core
right, the First Circuit in Worman highlighted the following crit-
ical factors: (1) the challenged statue “proscribes only a set of
26
specifically enumerated . . . weapons”; (2) the prohibited weapons
“do not share the features that make handguns well-suited to self-
defense in the home”; (3) the lack of record evidence that semi-
automatic assault weapons had been commonly used in the home for
such purposes; and (4) the weapons at issue “implicate[] the safety
of the public at large” because they are capable of “fir[ing]
through walls, risking the lives of those in nearby apartments or
on the street.” 922 F.3d at 37.
Here, the parties’ arguments primarily relate to the scope of
the ban. Plaintiffs argue that § 11-47-42(a) effectively amounts
to a complete ban on electric arm possession, and even if the Court
considers the provision more narrowly to exclude Tasers, “[s]tun
guns constitute the vast majority of electric arms.” Pls.’ Reply
11. They also add that stun guns have many of the characteristics
that would render these weapons preferable for defense of the home.
See Pls.’ Reply 11-12. Defendants, in contrast, argue that, as in
Worman, the law only bans one member of a larger class of electric
arms and there is no record evidence demonstrating that stun guns
are commonly used for self-defense. Defs.’ Mem. 19; Defs.’ Reply
11.
To be sure, some of the important considerations in Worman
are not present here. For example, a stun gun does not “impli-
cate[] the safety of the public at large” in the same way that a
27
semiautomatic weapon does, because a stun gun is only effective at
close range. Worman, 922 F.3d at 37; See Defs.’ SUF ¶ 1 (noting
that the stun gun operates when “contact is made with a person’s
flesh”). Additionally, unlike in Worman, where the Court of Ap-
peals commented that “wielding the proscribed weapons for self-
defense within the home is tantamount to using a sledgehammer to
crack open the shell of a peanut,” stun guns have some features
similar to handguns — i.e. smaller size and ease of use—helpful
for self-defense. 922 F.3d at 37.
Most courts analyzing Second Amendment challenges apply in-
termediate scrutiny. See NYSRPA, 804 F.3d at 260-61; Marzzarella,
614 F.3d at 97; see also Worman, 922 F.3d at 38 (“This holding
aligns us with a number of our sister circuits, which have applied
intermediate scrutiny to laws restricting semiautomatic assault
weapons and LCMs.”). Because the law does not survive even the
less rigorous level of intermediate scrutiny, the Court will assume
without deciding that this is the appropriate level of scrutiny to
be applied.
“To survive intermediate scrutiny, a statute ‘must be sub-
stantially related to an important governmental objective.’”
Worman, 922 F.3d at 38 (quoting Gould, 907 F.3d at 672). “To
achieve this substantial relationship, there must be a ‘reasonable
28
fit’ between the restrictions imposed by the law and the govern-
ment’s valid objectives, ‘such that the law does not burden more
conduct than in reasonably necessary.’” Id. (quoting Gould, 907
F.3d at 674).
Defendants argue that the government has an interest in “pro-
tecting public safety and preventing crime” and that “[t]hese in-
terests would no doubt be achieved less effectively absent Section
11-47-42(a).” Defs.’ Mem. 21. They contend that stun guns are
not harmless and are capable of being disguised or mistaken for
other harmless items by children. Id. at 21-22. Defendants also
argue that the state “is not required to use the least restrictive
means to achieve its compelling state interests.” Defs.’ Reply
13.
Plaintiffs retort that there is no reasonable fit between the
ban and public safety because it bars possession by all citizens,
not just individuals with criminal records or minors, Pls.’ Mem.16;
that it makes no sense to ban electric arms that are non-lethal,
particularly when handguns are allowed under Heller, Pls.’ Reply
13; and that Defendants have not demonstrated that “disguised”
stun guns are a real problem, relying as they do on hypotheticals
to show the statute is narrowly tailored. Id. at 14.
“[F]ew interests are more central to state government than
protecting the safety of and well-being of its citizens.” Worman,
29
922 F.3d at 39 (quoting Gould, 907 F.3d 673). The critical ques-
tion here is “whether the fit between those interests and the
[challenged statute] is reasonable.” Id. When analyzing this
issue, the Court “start[s] with the premise that courts ought to
give ‘substantial deference to the predictive judgments’ of a state
legislature engaged in the enactment of state law.” Gould, 907
F.3d at 673 (quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S.
180, 195 (1997)). “This degree of deference forecloses a court
from substituting its own appraisal of the facts for a reasonable
appraisal made by the legislature.” Id. But deference “should
not be confused with blind allegiance.” Id. at 673-72.
First, the statute at issue here may be distinguished from
the provisions found constitutional under intermediate scrutiny in
Worman and Gould in critical respects. In Worman, the challenged
law “d[id] not ban the sale, transfer, or possession of all semi-
automatic weapons [or] impose any restrictions on magazines that
are designed to hold ten rounds or fewer.” 922 F.3d at 39. In
Gould, the First Circuit found important that the firearm licensing
statute, which allowed officials to issue a license to publicly
carry firearms if certain qualifications were met, did not equate
to a “total ban on the right to public carriage of firearms” and
could be handled on a “case by case” basis. 907 F.3d at 674.
30
Here, § 11-47-42(a), under its plain terms, imposes a complete
stun gun ban.
Second, the record does not indicate that there are “unique
dangers posed by the proscribed weapons,” as there were for semi-
automatic weapons. Worman, 922 F.3d at 39; see Teter v. Connor,
460 F. Supp. 3d 989, 1006 (D. Hawaii 2020) (noting “reliable evi-
dence that butterfly knives are closely associated with crime and
popular with minors and gang members”). Although defendants sug-
gest that the ability to disguise stun guns as other household
items poses a challenge for state regulation or particular danger
to children, the record is devoid of evidence demonstrating the
real-world existence of this problem.12 See Ezell, 651 F.3d at 690
(“[T]he City produced no empirical evidence whatsoever and rested
its entire defense of the range ban on speculation . . . ..”).
Moreover, defendants have provided the Court with no evi-
dence demonstrating that the complete ban of these weapons lessens
the adverse outcomes the State seeks to prevent. See Gould, 907
Certainly, this is not to say that such weapons are not at

12
all dangerous. See Avitabile v. Beach, 368 F. Supp. 3d 404, 419

(N.D.N.Y. 2019) (noting that “stun guns are not children’s toys,
and might be dangerous in the wrong hands”). “But as Heller and
its progeny make clear, the fact that a class of arms entitled to
Second Amendment protection might be dangerous in the wrong hands
(e.g., handguns) does not necessarily justify their blanket ban in
all settings.” Id.
31
F.3d at 675 (citing studies provided by defendants showing corre-
lation between restrictive firearm licensing schemes and crime or
gun violence). In fact, common sense suggests the opposite may
well be true. See Avitabile, 368 F. Supp. 3d at 420 (suggesting
that a ban on stun gun increases the potential for injury and crime
because it may encourage individuals to buy handguns for protection
instead).
Therefore, while the Court is mindful that it should “cede
some degree of deference” to the General Assembly about “how best
to regulate the possession and use of the proscribed weapons,” see
Worman, 922 F.3d at 41, the deference is not unlimited. See
Maloney, 351 F. Supp. 3d at 239 (holding a ban of nunchaku uncon-
stitutional under intermediate scrutiny where the record lacked
evidence of nunchaku-related crime and the state “offered virtu-
ally no evidence supporting a public safety rational for a total
ban (as opposed to lesser restrictions) on the possession and use”
of the weapon). In the absence of virtually any evidence to
support the State’s claim of its interests, a complete ban on stun
guns cannot survive a Second Amendment challenge. The total ban
of stun guns contained in R.I. Gen. Laws § 11-47-42(a)(1) clearly
lacks the required “substantial” fit between the asserted govern-
mental interest and the means chosen to advance those interests,
and accordingly, violates the Second Amendment.
32
IV. CONCLUSION
For the reasons stated herein, Plaintiffs’ Motion for Summary
Judgment, ECF No. 30, is GRANTED and Defendants’ Motion for Summary
Judgment, ECF No. 35, is DENIED. The prohibition against the
possession and use of stun guns set forth in § 11-47-42(a) is an
unconstitutional restriction of the right to bear arms under the
Second Amendment in light of Heller. Consequently, Judgment shall
enter in favor of Plaintiffs. Defendants are PERMANENTLY ENJOINED
from enforcing § 11-47-42(a) as related to stun guns.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: March 15, 2022
33
Case 1:19-cv-00612 Document 1 Filed 11/22/19 Page 1 of 16 PagelD #: 1
IN THE UNITED STATES DISTRICT COURT

MICHAEL P. O'NEIL and NICOLA )

GRAS SO )
)
)
Plaintiffs, )
) Civil Action No.
v.
PETER F. NERONHA, in his Official )

Capacity Attorney
as General of Rhode )
Island and COLONEL JAMES M. MANNI, )
in his Official
Capacity as the )
Superintendent of the Rhode Island State )
Police
Defendants. )
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
COME NOW the Plaintiffs, Michael P. O'Neil and Nicola Grasso, (`Plaintiffs") by and
through their undersigned counsel, and complain of the Defendants as follows:
I. PARTIES
1. Plaintiff Michael P. O'Neil ('O'Neil") is an adult male resident of the State of Rhode Island
and resides in Warwick County and is a citizen of the of the United States.
2. Plaintiff Nicola Grasso ("Grasso") is an adult male resident of the State of Rhode Island and
resides in Providence County and is a citizen of the United States.
3. Defendant Colonel James. M. Manni is the Superintendent of the Rhode Island State Police.
Defendant Manni is sued in his official capacity and is responsible for the administration and
enforcement of Rhode Island's customs, policies, practices and laws related to the State of
Rhode Island's ban on stun guns and/or electronic arms across Rhode Island. Defendant
1
Colonel James. M. Manni may be served at Rhode Island State Police, 311 Danielson Pike,
North Scituate, RI 02857.
4. Defendant Peter F. Neronha is the Attorney General of the State of Rhode Island and is sued
in his official capacity and is responsible for enforcing the State of Rhode Island's customs,
policies, practices and laws related to the State of Rhode Island's ban on stun guns and/or
electronic arms. Defendant Neronha may be served at the Office of Attorney General located
at 150 South Main Street, Providence, RI 02903.
II. JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343,
2201, 2202 and 42 U.S.C. § 1983 and § 1988.
6. Venue lies in this Court pursuant to 28 U.S.C. § 1391.
III. STATEMENT OF FACTS
a. The Second Amendment
7. The Second Amendment to the United States Constitution provides: "A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and bear Arms
shall not be infringed."
8. The Second Amendment guarantees individuals a fundamental right to keep and carry arms
for self-defense and defense of others in the event of a violent confrontation. District of
Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010);
Caetano v. Massachusetts, 577 U.S. 1027 (2016).
9. Arms are "'weapons of offence, or armor of defense.1 Dictionary of the English Language
107 (4th ed.)" They are anything that a man [or woman] wears for his defense, or takes into
2
his hands, or uses in wrath to cast at or strike another.1 A New and Complete Law Dictionary
(1771)." District of Columbia v. Heller, 554 U.S. at 581.
10. 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 582;
Caetano, slip op. at 1 (per curiam).
11. Under the Second Amendment, the Defendants retains the ability presumptively to regulate the
manner of carrying arms and may prohibit certain arms in narrowly defined sensitive places,
prohibit the carrying of arms that are not within the scope of Second Amendment's protection
such as unusually dangerous arms, and disqualify specific, particularly dangerous individuals
from carrying arms. See Heller, 554 U.S. at 627.
12. Given the decision in Heller, Defendants may not completely ban the keeping and bearing of
arms for self-defense that are not unusually dangerous, deny individuals the right to carry arms
in non-sensitive places, deprive individuals of the right to keep or carry arms in an arbitrary
and capricious manner, or impose regulations on the right to keep and carry arms that are
inconsistent with the Second Amendment. See Caetano v. Massachusetts, 136 S. Ct. 1027
(2016); Heller v. District of Columbia, 801 F.3d 264 (D.C. Cir. 2015); Palmer v. District of
Columbia, 59 F. Supp.3d 173 (2014).
13. The Fifth Circuit has cited approvingly to Caetano for the proposition that stun guns are
protected arms under the Second Amendment:
Inaddressing whether stun guns are in common use, Justice Alito, joined by Justice
Thomas, implied that the number of states that allow or bar a particular weapon is
important:
[T]he number of Tasers and stun guns is dwarfed by the number of firearms.
This observation may be true, but it is beside the point.... The more relevant
statistic is that [200,000] stun guns have been sold to private citizens,
...
who it appears may lawfully possess them in 45 States.... While less popular
3
than handguns, stun guns are widely owned and accepted as a legitimate
means of self-defense across the country.
Caetano, 136 S.Ct. at 1032-33 (citations and quotation marks omitted). These two
justices suggested that the 200,000 absolute number, plus that 45 states have
"accepted [stun guns] as a legitimate means of self-defense," was enough to
determine that the stun gun is in common use.
Hollis v. Lynch, 827 F.3d 436, 449 (5th Cir. 2016).
14. Many other jurisdictions have already found complete bans on the ownership of electric arms
is unconstitutional post-Heller. See People v. Yanna, 824 N.W.2d 241, 243 (Mich. Ct. App.
2012) (striking down a Michigan statute criminalizing possession of electronic
weapons), Second Amendment Society v. Porrino, No. 3:16-cv-04906-DEA (D.N.J. Nov. 16,
2016) Doc. No. 30 (consent decree where the Court found New Jersey's complete ban on
electric arms is unconstitutional), ("Pursuant to the holdings in Heller, McDonald and
Caetano, N.J. Stat. Ann. § 2C:39- 3(h), to the extent this statute outright prohibits, under
criminal penalty, individuals from possessing electronic arms, is declared unconstitutional in
that it violates the Second Amendment to the United States Constitution and shall not be
enforcee); See, Crystal Wright v. District ofColumbia, No. 1:16-cv-01556-JEB (D.D.C. Sept.
26, 2016) Doc. No. 18 (stipulating to a stay of a motion for preliminary injunction pending
new legislation and agreeing not to enforce ban against plaintiffs); Ford v. City of New
Orleans, No. 2:16-cv16433-MVL-KWR (E.D. La. Dec. 14, 2016) Doc. Nos. 17, 19-20
(stipulating that the city will not enforce the ban against plaintiff and consenting to a stay of
litigation pending enactment of legislation that decriminalized possession of stun
guns); Hulbert v. Pantelides, No. 1:16-cv-04121-JFM (D. Md. March 3, 2017) Doc. No. 16
(letter from the City of Annapolis informing the court that the City Council passed an
emergency ordinance eliminating all restrictions on ownership and possession of electronic
4
weapons for personal defense); Ramirez v. Commonwealth No. SJC-12340, 2018 Mass. LEXIS
237 (Apr. 17, 2018) (striking Mass. ban on stun guns).1

15. Judge David N. Hurd, of the Northern District of New York, recently held that New York's
ban on electric arms "... is an unconstitutional restriction on the right to bear armsll" and that
"New York's sweeping prohibition on the possession and use of tasers and stun guns by all
citizens for all purposes, even for self-defense in one's own home, must be declared
unconstitutional in light of [Heller]." Avitabile v. Beach, 368 F. Supp. 3d 404, 421 (N.D.N.Y.
2019).2
16. Additionally, the Supreme Court of Illinois found a statute banning the carry of Tasers and
stun guns unconstitutional because Illinoisprovision on carriage of weapons sets forth a
comprehensive ban that categorically prohibits possession and carriage "... of stun guns and
tasers in public." People v. Webb,2019 IL 122951,1120. And, because it is a categorical ban,
...
that provision necessarily cannot stand." Id. at ¶ 21. The Illinois Supreme Court held that
the portion of the statute prohibiting "... the carriage or possession of stun guns and tasers is
facially unconstitutional under the second amendment." Id.
17. Plaintiffs are bringing an as-applied and facial challenge to the applicable Rhode Island laws
which prevent them from owning and carrying electric arms.
18. They seek an injunction preventing enforcement of the applicable Rhode Island laws against
them and declaratory relief.
Since Caetano, electronic arms bans in Philadelphia, Pennsylvania; Tacoma, Washington and Westminster,
Maryland were also rescinded. See https://www.phillymag.com/news/2017/10/24/stun-guns-legal-nhiladelphia/;
http://www.carrollcountytimes. com/news/westminster/ph-cc-westminster-stun-gun-ban-discussion-20170523-
story.html; http://www.thenewstribune.com/news/pol itics-government/article158619749.html.
2
The State of New York did not appeal Judge Hurd's ruling.
5
19. Additionally, they seek an injunction preventing enforcement of the applicable Rhode Island
laws as to all other law-abiding citizens.
b. Stun Guns
20. Stun guns are arms in common use for self-defense by civilians as well as by law enforcement.
21. Tasers are a type of stun gun manufactured and sold by Axon (formerly known as Taser
International).
22. A Taser is an electronic control device (ECD") that uses replaceable cartridges containing
inert, compressed nitrogen to fire two small probes that are attached to insulated conductive
wires. In the models generally marketed to non-law enforcement persons, the conductive wires
are 15 feet (4.5 meter) in length.
23. Taser models generally marketed to law enforcement agencies use conductive wires with
lengths up to 25 feet in length.
24. The probes are designed to penetrate the clothing of an attacker and imbed in the attacker's
skin. Electrical energy is sent over the wires into the probes. The charge is transmitted between
the two probes and is designed to disrupt the sensory and motor functions to inhibit muscular
control of an attacker.
25. With a Taser exposure, the attacker is momentarily incapacitated to allow the person attacked
to escape and call for law enforcement assistance, or in the case of a law enforcement officer,
to allow for the apprehension of the suspect without further risk of injury to the officer or the
suspect.
26. The Taser's electronic charge lasts from five to thirty seconds depending on whether the
civilian or the law enforcement model is employed.
6
27. The most commonly employed civilian Taser is a one-shot device with a 30 second charge.
Once fired the device can still be used as a direct contact stun device in the event of a missed
shot or in the event of multiple assailants.
28. Axon also manufactures Taser devices having the capacity for multiple shots. These multiple
shot devices are commonly used by law enforcement personnel in the performance of their
duties.
29. Tasers have several advantages over other non-lethal means of self-defence, such as self-
defence sprays or contact weapons.
30. First, self-defence sprays must be administered generally within several feet of an assailant
while a civilian model Taser can be deployed within 15 feet. The closer distance the assailant
must be to a potential victim for the victim to employ a self-defence spray increases the danger
to the potential victim. For example, it is generally recognized by law enforcement that an
assailant wielding a contact weapon such as a knife or a club can be a lethal threat at distances
of 21 feet or closer. See Dennis Tueller, How Close is Too Close, Police Policies Study
Council, available at http://www.theppsc.org/Staff Views/Tueller/How.Close.htm (originally
published in the March 1983 Edition of SWAT Magazine).

31. Second, pepper sprays can often be ineffectual against highly intoxicated or highly agitated
assailants. See generally Steven M. Edwards, et al., Evaluation of Pepper Spray, National
Institute of Justice, U.S. Dept. of Justice, Office of Justice Programs, Research in Brief
(February 1997), available at https://www.ncjrs.gov/txtfiles/162358.txt. Tasers, on the other
hand, when effectively employed will likely stop an attack from an intoxicated or mentally
disturbed attacker.
7
32. Third, for optimum effect, self-defence sprays should be deployed at the face of the attacker,
which is a small target. The Taser is most effective when deployed at other larger parts of the
body of the attacker.
33. Fourth, self-defence sprays can end up being blown back at the victim if used in a windy
environment, resulting in incapacitating the victim rather than the attacker. This is not an issue
with an electric arm.
34. Likewise, Tasers have advantages over the variety of contact weapons as well such as police
type batons or knives. Allowing an attacker too close to contact distance creates a high degree
of danger to a potential victim.
35. Contact weapons can also be more difficult for persons of lesser strength to deploy, compared
to a Taser.
36. Moreover, use of any contact weapon, such as a knife or club, carries a high degree of risk of
death or serious bodily harm to the assailant, whereas risk of death or serious bodily harm from
a Taser or stun gun is minimal.
37. On a related note, given that use of a knife or club could qualify as the use of deadly force, an
individual using a knife or club to defend against a criminal attack, has a high legal standard
to meet to sustain a claim self-defence.
38. Tasers have been widely used by law enforcement agencies throughout the United States and
the world. More than 18,000 law enforcement agencies use the devices.
39. Studies have shown Tasers to reduce injuries to both law enforcement officers and to suspects.
The United States Department of Justice found that Tasers result in fewer injuries to suspects
and officers than all other means of subduing suspects.
8
40. In the event of deployment of a civilian Taser, the device releases some 24 small confetti like
tags called AFIDs which are packed into the firing mechanism. When the Taser cartridge is
engaged, the AFIDs fly out of the Taser and scatter around the area where the device was
utilized.
41. The term AFID stands for Anti Felon Identification. Taser utilizes AFIDs to deter criminal
misuse of its product. Taser can trace the purchaser of the device from data contained on an
AFID.
42. Tasers and other electronic weapons are in common use for self-defence. The Michigan Court
of Appeals found that "Hundreds of thousands of Tasers and stun guns have been sold to
private citizens," People v. Yanna, 297 Mich. App. 137, 144, 824 N.W. 2d 241, 245 (2012).
Concurring in the per curiam reversal of the Massachusetts Supreme Judicial Courts
upholding of a ban on stun guns, Justice Alito stated, "While less popular than handguns, stun
guns are widely owned and accepted as a legitimate means of self-defence across the country."
Caetano v. Massachusetts, 136 S. Ct. 1027 (March 21, 2016) (Alito, J., concurring).
43. Other forms of stun guns that do not deploy probes are also used for self-defense.
44. These stun guns range from contact weapons which require the user to come in close vicinity
to ranged weapons like the Taser.
45. Depending on the situation there are benefits to deploying a Taser in drive stun mode or a
deploying a stun gun over deploying the Taser probes.

46. The most notable one is if a person is surprised and attacked at extreme close range, i.e. in a
grappling situation, a contact stun gun or a Taser in drive stun mode may be more effective
than deploying the Taser probes because it is easier to deploy at this distance.
47. At this range, contact stun guns also have an advantage over other arms.
9
48. A baton requires space to swing which may be unavailable at close range.
49. A knife will only subdue an attacker if it scores a hit on a vital spot whereas the electric shock
of a stun gun can subdue an attacker with a strike on any part of the body. Additionally, usage
of knives can cause severe bodily injury and even death.
50. A stun gun does not require strength to use where as both knives and batons require a
significant amount of upper body strength to use effectively

51. At extremely close range, defensive sprays are hard to deploy and can irnpact both the attacker
and the person deploying the spray.
52. There are more than 5 million stun guns legally in use by civilians in the United States.
53. Electric arrns are designed for use during self-defense against a hurnan attacker.
54. Electric armsprimary function and purpose is to be used as a nonlethal form of self-defense
against a human attacker.

55. Only two states currently ban electric arms: Hawaii and Rhode Island.
c. State of Rhode Island Law.
56. R.I. Gen. Laws § 11-47-42(a)(1) provides that: "[n]o person shall carry or possess or attempt
to use against another any instrument or weapon of the kind commonly known as a blackjack,
slingshot, billy, sandclub, sandbag, metal knuckles, slap glove, bludgeon, stun-gun, or the so
called "Kung-Fu" weapons."
57. This provision provides that "[a]ny person violating the provisions of these subsections shall
be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for
not more than one year, or both, and the weapon so found shall be confiscated." Id.
58. This prohibition also applies to Tasers as a form of electric arms because a Taser can be used
as a stun gun without deploying its probes.
10
59. Thus, it is unlawful under Rhode Island law to possess in one's home or to be armed with a
stun gun or Taser. As such, Rhode Island's law is a complete ban on a class of aims.
d. Plaintiff Michael P. O'Neil
60. Plaintiff O'Neil desires to purchase an electric arm for self-defense and other lawful purposes
in his home, outside his home, whilst traveling between these locations and in all other
locations.
61. Plaintiff O'Neil is an aircraft mechanic and the Vice-President of Rhode Island 2" Amendment
Coalition.
62. Plaintiff O'Neil currently wishes to purchase a stun gun or Taser for lawful self-defense and
does not solely due to Rhode Island law.
63. Plaintiff O'Neil has never been convicted of a crime that would disqualify him from firearms
ownership under either Rhode Island or federal law.
64. Plaintiff O'Neil has never been diagnosed with a mental disorder that would disqualify him
from firearms ownership under Rhode Island or federal law.

65. Plaintiff O'Neil does not abuse alcohol or use illegal drugs.
66. Plaintiff is aware of the potential legal, economic and psychological ramifications of even the
justified use of deadly force to defend himself or his home against a violent criminal attack.
67. Plaintiff would prefer to minimize the likelihood that he would have to resort to deadly force
in the event he was forced to defend himself or his home from a violent criminal attack.
68. Plaintiff would desire to possess a Taser and stun gun to have readily accessible within the
home for self-defense and protection of his family.
69. Plaintiff O'Neil desires to purchase a Taser Pulse or a stun gun. However, Plaintiff fears
prosecution for possessing and carrying a Taser. See Exhibit "1."
11
70. But for Rhode Island law, O'Neil would acquire, possess, carry and where appropriate use a
Taser and/or stun gun to protect himself, his home, and his family.
e. Plaintiff Nicola Grasso
71. Plaintiff Grasso desires to purchase an electric arm for self-defense and other lawful purposes
in his home, business, whilst traveling between these locations and in all other locations.
72. Plaintiff Grasso is the former President of the Rhode Island Federated Sportsman's
Association.
73. Plaintiff Grasso currently wishes to purchase a stun gun or Taser for lawful self-defense and
does not solely due to Rhode Island law.
74. Plaintiff Grasso has never been convicted of a crime that would disqualify him from firearms
ownership under either Rhode Island or federal law.
75. Plaintiff Grasso has never been diagnosed with a mental disorder that would disqualify him
from firearms ownership under Rhode Island or federal law.
76. Plaintiff Grasso does not abuse alcohol or use illegal drugs.
77. Plaintiff is aware of the potential legal, economic and psychological ramifications of even the
justified use of deadly force to defend himself or his home against a violent criminal attack.
78. Plaintiff would prefer to minimize the likelihood that he would have to resort to deadly force
in the event he was forced to defend himself or his home from a violent criminal attack.
79. Plaintiff would desire to possess a Taser and stun gun to have readily accessible within the
home for self-defense and protection of his family.
80. Plaintiff Grasso desires to purchase a Taser Pulse or a stun gun. However, Plaintiff fears
prosecution for possessing and carrying one. See Exhibit "2."
12
81. But for Rhode Island law, Grasso would acquire, possess, carry and where appropriate use a
Taser and/or stun gun to protect himself, his home, and his family.
COUNT I
U.S. CONST., AMEND. II
82. The Defendants prohibit Plaintiffs from acquiring, possessing, carrying and using a defensive
arm in common use, i.e., an electric arm. As such it violates PlaintiffsSecond Amendment
rights.
83. Defendants' laws, customs, practices and policies generally banning the acquisition,
possession, carrying and use of Tasers and other electronic arms violates the Second
Amendment to the United States Constitution, facially and as applied against the Plaintiffs in
this action, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled
to preliminary and permanent injunctive relief against such laws, customs, policies, and
practices.
COUNT II
(DECLARATORY JUDGMENT)
84. Plaintiffs repeat and reallege the allegations of the preceding paragraphs as if set forth herein.
85. The Declaratory Judgment Act provides: "In a case of actual controversy within its jurisdiction,
any court of the United States may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C.
2201(a).
86. Absent a declaratory judgment, there is a substantial likelihood that Plaintiffs will suffer
irreparable injury in the future.
13
87. There is an actual controversy between the parties of sufficient immediacy and reality to
warrant issuance of a declaratory judgment.
88. This Court possesses an independent basis for jurisdiction over the parties to declare the
partiesrights with respect to the Second Amendment.
89. A judgment declaring that the State of Rhode Island's ban on the ownership and carry of
electric arms violates the Second Amendment will serve a useful purpose in clarifying and
settling the legal relations at issue and will terminate and afford relief from the uncertainty,
insecurity, and controversy giving rise to the proceeding.
90. Defendants' laws, customs, practices and policies generally banning the acquisition,
possession, carrying and use of Tasers and other electronic arms violates the Second
Amendment to the United States Constitution, facially and as applied against the Plaintiffs in
this action, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled
to a declaration declaring such laws, customs, policies, and practices unconstitutional.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request that judgment be entered in their favor and against
Defendants as follows:
1. An order preliminarily and permanently enjoining Defendants, their officers, agents, servants,
employees, and all persons in active concert or participation with them who receive actual
notice of the injunction, from enforcing R.I. Gen. Laws §11-47-42 ban the
on acquisition,
possession, carrying or use of Tasers and other electronic arms as-applied to Plaintiffs and
additionally against other similarly situated law abiding persons;
14
2. An order declaring that R.I. Gen. Laws §11-47-42 with regard to the ban on electric arms, is
unconstitutional and violates the Second Amendment to the United States Constitution as-
applied to Plaintiffs and facially;
3. An order declaring R.I. Gen. Laws §11-47-42 unenforceable as-applied to Plaintiffs and
facially;
4. Costs of suit, including attorney fees and costs pursuant to 42 U.S.C. §1988;
5.. Such other Declaratory relief consistent with the injunction as appropriate; and
6. Such other further relief as the Court deems just and appropriate.
Dated: November "20, 2019.
Respectfully submitted,
MICHAEL P. O'NEIL AND NICOLA GRASSO
By and through their legal counsel,
1--7
CT2eet-0/
Frannt Saccoc io
A
Alleietec-Ze"Gt
Esq. #5949
Comerford & Saccoccio
928 Atwood Avenue
Johnston, Rhode Island 02919
(401) 944-1600 * 942-8921 Fax
Frank.CSLawOffice@gmaiI.com
Co-Counsel / Cooperating Attorney for Plaintiff

Alan Alexander Beck
Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com
(Pro Hac Vice Paperwork Forthcoming)
15
Co-Counsel / Cooperating Attorney for Plaintiff

Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
Mississippi Bar No. 102784
(Pro Hac Vice Paperwork Forthcoming)
16
Case 1:19-cv-00612 Document 1-1 Filed 11/22/19 Page 1 of 2 PagelD #: 17

MICHAEL P. O'NEIL and NICOLA

GRASSO
Plaintiffs, )
) Civil Action No.
v.

Capacity as Attorney General of Rhode )
Capacity as the
in his Official )
Police )
Defendants. )
DECLARATION OF MICHAEL P. O'NEIL
COMES NOW, Michael P. O'Neil, and states as follows:
1. I am an adult male resident of the State of Rhode Island and reside in Warwick County.
2. I am an aircraft mechanic and the Vice-President of Rhode Island 2"d Amendment Coalition.
3. I have never been convicted of a crime that would disqualify me from owning firearms under
Rhode Island or federal law.
4. I have never been diagnosed with a mental disorder that would disqualify me from firearms
ownership under Rhode Island or federal law.

5. I do not abuse alcohol or use illegal drugs.
6. I wish to purchase a stun gun or Taser Pulse for self-defense, but have not because Rhode
Island bans electric arms and I fear prosecution for possessing and carrying one.
7. If stun guns or Tasers were legal in Rhode Island, I would acquire, possess, carry and where
appropriate use a Taser or stun gun to protect myself, my home and rny family.
FURTHER, DECLARANT SAYETH NAUGHT.
I certify under penalty of perjury that the foregoing is true and correct.
Executed on November 21, 2019.

/ 7
MICHAEL
7
P. ()NEIL
/ (/), <(.7 fl -
State of Rhode Island
County of Providence
On this the 21st day of November, 2019 personally appeared Michael P. O'Neil, known to
me to be the person executing this document, and he acknowledged the same being his free act
and
deed.; r.------2
-,------ igr
R- Sa:,, _ -
- -
......cr; -----
41*.j>..,..... ........
;:f-occ,',„.
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Hon. ran R. Sac occio Esq. #5949
‘"\-"\ .%
NOTARY ...'1.43 Notary Public # 43447
I:.
Seal My Comm. Expires 07/03/2022
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Notary -: ---
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.Z. .H.0-0. .........

'4,4„,. ...........

MICHAEL P. O'NEIL and NICOLA )

GRASSO )
)
)
Plaintiffs, )
) Civil Action No.
v.

Capacity as Attorney General of Rhode )
in his Official
Capacity as the )
Police
Defendants. )
DECLARATION OF NICOLA GRASSO
COMES NOW, Nicola Grasso, and states as follows:
1. I am an adult male resident of the State of Rhode Island and reside in Providence County.
2. I the former President of the Rhode Island Federated Sportsman's Association.
3. I have never been convicted of a crime that would disqualify me from owning firearms under
Rhode Island or federal law.
4. I have never been diagnosed with a mental disorder that would disqualify me from firearms
ownership under Rhode Island or federal law.
5. I do not abuse alcohol or use illegal drugs.

6. I wish to purchase a stun gun or Taser Pulse for self-defense, but have not because Rhode
Island bans electric arms and I fear prosecution for possessing and carrying one.
7. If stun guns or Tasers were legal in Rhode Island, I would acquire, possess, carry and where
appropriate use a Taser or stun gun to protect myself, my home and rny family.
FURTHER, DECLARANT SAYETH NAUGHT.
I certify under penalty of perjury that the foregoing is true and correct.
Executed on November 21, 2019.
`fd(/e.'
NI LA G RASSO
State of Rhode Island
County of Providence
On this the 21st day of November, 2019 personally appeared Nicola Grasso, known to me
to be the person executing this document, and he acknowledged the same being his free act and
deed.
A
,. . .,. ••'(<0.. . ..........
..... co -:,„,
Allr ‘-‘•?!:;,Fe:e''_-e-e‘e
Hon. rank R. Sa coccio Esq. #5949
gz- I t\I ()TAR}, %IV= Notary Public # 43447
Notary Seal ,,, cc) .. •
My Comm. Expires 07/03/2022

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JS 44 (Rev. 08/18) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States M September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)
I. (a) PLAINTIFFS DEFENDANTS

Michael P. O'Neil and Nicola Grasso Department of the Attorney General, Peter F.
Nerona, in his capacity as Attorney General, Rhode Island State
Police, Colonel James M. Manni, in his capacity as Colonel
(b) County of Residence of First Listed Plaintiff Kent County of Residence of First Listed Defendant Providence
(EXCEPT IN US. PLAIArfIFF CASES) (7N US. PIAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE ME LOCATION OF
THE TRACT OF LAND INVOLVED.
Name, Address, and Thlephone Attorneys at. Known)

Fr Vk Attorneys (Finn
R. Saccocao
*
-
Number)
Comerford & Saccocao 928 Atwood Ave, Johnston Attorney General for the State of Rhode Island
RI (401) 944-1600 942-8921 Fax Alan A. Beck and Stephen D.
-
Stamboulieh, of counsel
II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
O 1 U.S. Government K3 Federal Question PTF DEF PTF DEF
Plaintiff (US Government Not a Party) Citizen of This State 0 1 0 1 Incotporated or Principal Place CI 4 0 4
of Business In This State
O 2 U.S. Government 0 4 Diversity Citizen of Another State CI 2 CI 2 Incmporated andPrincipal Place 0 5 II 5

Defendant (Indicate Citizenship ofParties in Item ///) I of Business In Another State
Citizen or Subject of a 0 3 CI 3 Foreign Nation 0 6 0 6
ly NATURE'. CIF STITT "Y" nm. Rm. 11PIM Click here for Nature of Suit Code Descriptions.
-
I CONTRACT TORTS FORFEITUREPPENALTY BANKRUPTCY OTHER STATUTES 1

0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 il 375 False Claims Act
O 120 Marine 11 310 Airplane CI 365 Personal Injury -
of Property 21 USC 881 0 423 Withdrawal 0 376 Qui Tam (31 USC
O 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 3729(a))
O 140 Negotiable Instniment Liability II 367 Health Care/ 0 400 State Reapportionment
O 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 0 410 Antitrust
& Enforcement ofJudgment Slander Personal Injury 0 820 Copyrights 0 430 Banks and Banking
O 151 Medicare Act CI 330 Federal EtnployersProduct Liability 11 830 Patent il 450 Commerce
O 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 835 Patent Abbreviated
- il 460 Deportation
Student Loans 0 340 Marine Injury Product New Drug Application 0 470 Racketeer Influenced and
(Excludes Veterans) 11 345 Marine Product Liability 0 840 Tradeinark Corrupt Organizations
O 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 0 480 Consumer Credit
of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud CI 710 Fair Labor Standards 0 861 HIA (1395ff) CI 485 Telephone Consumer
O 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending Act II 862 Black Lung (923) Protection Act
O 190 Other Contract Product Liability 0 380 Other Personal 0 720 Labor/Management 0 863 D1WC/DIWW (405(g)) 0 490 Cable/Sat TV
0 195 Contract Product Liability C7 360 Other Personal Property Damage Relations CI 864 SSID Title XVI 0 850 Securities/Commodities/
CI 196 Franchise Injury 0 385 Property Damage 0 740 Railway Labor Act II 865 RSI (405(g)) Exchange
il 362 Personal Injury -
Product Liability 0 751 Family and Medical CI 890 Other Statutory Actions
Medical Malprzeice Leave Act 0 891 Agricultural Acts
t REAL PROPERTY CIVIL RIGHTS, PRISONER PETITIONS 0 790 Other Labor Litigation FEDERAL TAX SUITS 0 893 Environmental Matters
0 210 Land Condenmation -in 440 Other Civil Rights Habeas Corpus: 0 791 Employee Retirement 0 870 Taxes
(U.S. Plaintiff 0 895 Freedom of Information
0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee Income Security Act or Defendant) Act
il 230 Rent Lease & Ejectment CI 442 Employment 0 510 Motions to Vacate 0 871 1RS—Tliird Party 0 896 Arbitration
CI 240 Torts to Land 0 443 Housing/ Sentence 26 USC 7609 0 899 Administrative Procedure
0 245 Tort Product Liability Accommodations 0 530 General Act/Review or Appeal of
CI 290 All Other Real Property 0 445 Amer. w/Disabilities 0 535 Death Penalty
-
IMMIGRATION Agency Decision
Employment Other: 0 462 Naturalization Application x 950 Constitutionality of
0 446 Amer. w/Disabilities -
0 540 Mandamus & Other CI 465 Other Immigration State Statutes
Other 0 550 Civil Rights Actions
il 448 Education 0 555 Prison Condition
0 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an "X" in One Box Only)

X1 Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or II 5 Transferred from CP 6 Multidistrict CI 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation -
Litigation -
(sPeci.6) Transfer Direct File

Cite the U.S. Civil Statute under which you are filing (Do not eitejmildictionalsnaides unless diversity):
42 USC 1983 and 28 USC 2201(a)
VI. CAUSE OF ACTION Brief
description of cause:
Challenge to the Constitutionality of RIGL 11-47-42 ban on Stun-Guns and Tasers
VII. REQUESTED IN El CHECK IF MIS IS A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: 0 Yes 0 No
VIII. RELATED CASE(S)

IF ANY (See instructions):
JUDGE DOCKET
NUMEJER
DATE SIGNATURE OF ATTORNEY OF RECORD .41
.--- ,_.
11/21/2019 r .e4:'
RECEIPT 11 AMOUNT APPLYING IFP JUDGE MAG. JUDGE

AO 440 (Rev. 06/12) Summons in a Civil Action

for the
District of Rhode Island
Michael P. O'Neil and Nicola Grasso
Plaintiff(s)
V. Civil Action No.
Peter F. Neronha, in his Official Capacity as Attorney

General of Rhode Island and Colonel James M.
Manni, in his Official Capacity as the Superintendant
of the Rhode Island State Police
Defendant(s)
SUMMONS IN A CIVIL ACTION
To: (Defendant's name and address) Peter F. Neron ha, as Attorney General, 150 South Main Street, Providence, RI 02903
A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you—
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
—
the Federal Rules of Civil Procedure. The answer or motion rnust be served on the plaintiff or plaintiff s attorney,
whose name and address are: Attorney Frank R. Saccoccio, c/o Comerford & Saccoccio, 928 Atwood Avenue in
*
Johnston RI 02919 (401) 944-1600 942-8921 Fax
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
CI I personally served the summons on the individual at (place)

on (date); or
01 I left the summons at the individual's residence or usual place of abode with
(name),
a person of suitable age and discretion who resides there,
On (date), and mailed a copy to the individual's last known address; or
171 I served the summons on (name of individual), who is
designated by law to accept service of process on behalf of (name of organization)
on (date); or
01 I returned the summons unexecuted because; or
10 Other (specifr):
My fees are $ for travel and $ for services, for a total of $ 0.00
I declare under penalty of perjury that this information is true.
Date
Server's signature
Printed name and title
Server's address
Additional information regarding atternpted service, etc:

AO 440 (Rev. 06/12) Summons in a Civil Action

for the
District of Rhode Island
Michael P. O'Neil and Nicola Grasso
Plaintiff(s)
v. Civil Action No.
Peter F. Neronha, in his Official Capacity as Attorney

General of Rhode Island and Colonel James M.
Manni, in his Official Capacity as the Superintendant
of the Rhode Island State Police
Defendant(s)
SUMMONS IN A CIVIL ACTION
To: (Defendant's name and address) Colonel James M. Manni, in his capacity as the Superintendent of the Rhode Island
State Police, 311 Danielson Pike, North Scituate, RI 02857
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
—
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
—
tbe Federal Rules of Civil Procedure. The answer or motion rnust be served on the plaintiff or plaintiff s attorney,
whose name and address are: Attorney Frank R. Saccoccio, c/o Comerford & Saccoccio, 928 Atwood Avenue in
*
Johnston RI 02919 (401) 944-1600 942-8921 Fax
If you fail to respond, judgrnent by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1))
This summons for (name of individual and title, if any)
was received by me on (date)
11 I personally served the summons on the individual at (place)
on (date); or
O I left the summons at the individual's residence or usual place of abode with
(name),
a person of suitable age and discretion who resides there,
on (date), and mailed a copy to the individual's last known address; or
O I served the summons on (name of individual), who is
designated by law to accept service of process on behalf of (name of organization)
on (date); Or
O I returned the summons unexecuted because; or
O Other (specij):
My fees are $ for travel and $ for services, for a total of $ 0.00
I declare under penalty of perjury that this information is true.
Date
Server's signature
Printed name and title
Server's address
Additional information regarding attempted service, etc:

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Case 1:19-cv-00612-WES-PAS Document 46 Filed 03/15/22 Page 1 of 33 PageID #: 570

UNITED STATES DISTRICT COURT

MEMORANDUM AND ORDER

WILLIAM E. SMITH, District Judge.

Before the Court are Cross-Motions for Summary Judgment, ECF

and Defendants, Peter Neronha, in his capacity as Attorney General,

and James Manni, in his capacity as Superintendent of the Rhode

Amendment constitutional challenge to the prohibition against stun

Amendment to the United States Constitution. Therefore, Plain-

Defendants’ Cross-Motion for Summary Judgment, ECF No. 35, is DE-

Plaintiffs Michael O’Neil and Nicola Grasso are Rhode Island

for self-defense. Pls.’ Statement of Undisputed Facts (“Pls.’

SUF”) ¶¶ 1, 5, 6, 10, ECF No. 31. These weapons are currently

prohibited by Rhode Island by General Law § 11-47-42(a)(1), which

No person shall carry or possess or attempt to use

R.I. Gen. Laws § 11-47-42(a) (emphasis added). On November 22,

2019, Plaintiffs filed a Complaint seeking a declaratory judgment

and injunctive relief for violation of 42 U.S.C. § 1983. See

Compl. ¶¶ 82-90, ECF No. 1. Plaintiffs allege that they are

entitled to such relief because “Defendants’ laws, customs, prac-

tices and policies generally banning the acquisition, possession,

Second Amendment to the United States constitution, facially and

as applied against the Plaintiffs.” Id. ¶ 83.

The parties filed cross-motions for summary judgment address-

47-42(a)(1). See generally Pls.’ Mem. in Supp. Mot. Summ. J.

(2) whether the arms regulated by § 11-47-42(a) are protected by

the Second Amendment; (3) the appropriate level of scrutiny; and

(4) the application of such scrutiny to the challenged statute.

The Court takes each issue in turn.

II. LEGAL STANDARD

“Summary judgment is appropriate where the pleadings, depo-

sitions, answers to interrogatories, and admissions on file, to-

gether with affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Lima v. City of East Providence, 17

judgment do not alter the summary judgment standard, but instead

simply ‘require [the Court] to determine whether either of the

parties deserves judgment as a matter of law on the facts that are

not disputed.’” Wells Real Est. Inv. Tr. II v. Chardon/Hato Rey

2001)). Where the parties have filed cross-motions “‘simultane-

ously, or nearly so, the district court ordinarily should consider

133 (1st Cir. 2010)).

Before turning to the constitutional analysis, the Court must

briefly address the parties’ dispute concerning the scope of the

prohibition in § 11-47-42(a). In the Complaint, Plaintiffs allege

can be used as a stun gun. Compl. ¶ 58. Plaintiffs also refer to

the term “other electronic arms” and specifically request a dec-

laration that the Court finds unconstitutional the “ban on electric

arms” in § 11-47-42. Id. at 13, 14, 15.

Defendants contend that such a ruling would extend beyond the

language of § 11-47-42(a) because the statute prohibits only “stun

guns,” not Tasers or other types of electric arms. Defs.’ Mem. 9.

According to Defendants, this interpretation of the statute is

supported by its plain language, as well as the cannon of con-

struction “expression unius est exclusion alterius” or, in other

words, “the expression of one thing is the exclusion of other

things.” Id. at 7. They argue that it would be improper to extend

the reach of the provision to an object not named in the statute

fendants also point to the definition of “firearms” under § 11-