Seegars v Ashcroft: The Brief of the United States

I can't post this version of the document, but I can read it, and analyze it. The appeal brief covers 15 pages, and details the arguments of the District of Columbia relating to the appeal. The United States brief covers the argument over standing (in several different forms).

Almost half of this brief is taken up with a table of citations and a statement of facts for the appellate court. Most of the is relatively uninteresting stuff, but there's a section which details the administrative procedure for applying to register a handgun in the District of Columbia. That's interesting enough to discuss here, since we haven't done it before. The process has three steps:

1. Apply for a registration certificate from the Chief of Police prior to purchasing a firearm, or "immediately" after a firearm is brought into the District.
2. If the application is denied, go through the "reconsideration" process within the Police Department.
3. If the "reconsideration" process also results in a denial, remedy is available through the Administrative Procedure Act, culminating in judicial review.

It's that last step that includes the possibility for Constitutional review. From the sound of it, I think the Administrative Procedure Act is probably a generic law allowing for judicial review of administrative decisions, rather than one specifically applicable to handgun licenses. If so, that slightly weakens the standing argument; if applicants know that they will be denied by the police, and do not know of the Act which allows for judicial review, and do find out about the Act because they are researching firearms law, a judge might reasonably allow for leeway.

Since the NRA seems to be seeking delaying tactics, I'm surprised they haven't tried applying for a registration certificate to cure their case's standing problem and then requesting that the court stay proceedings until the denials have occurred. It might work. But then, since they failed to consolidate with Parker, they would probably prefer to lose the case on standing grounds at this point and come back later (under a more favorable Supreme Court).

An amusing thought presents itself here; since the District's laws allow you to apply for registration immediately upon bringing the handgun into the District, and then provide for you to wait while the registration is processed, and then wait more while the reconsideration is processed, and then provide 7 days for the firearm to be disposed of outside the district. Someone who really didn't care whether they were convicted could presumably bring in a handgun, go through the process, get denied after a wait, and then at the end of the grace period dispose of the first handgun and bring a new one in for the same process. I don't suggest trying it, but if the stakes were lower and handguns less expensive it would probably a good way to piss off the police. Must be one of those loopholes.

The brief also notes that the surviving plaintiff's claims, relating to the trigger lock requirement on a registered shotgun, do not have a procedure for administrative review. That's one of the reasons the claim survived; the law regulates actions solely by the registrant, rather than an administrative procedure.

It is also noteworthy that this brief is always careful to state that the plaintiffs lacked standing to bring a preenforcement challenge to the law. I perceive this as the Department of Justice being very careful not to suggest the defendents have no standing at all, and encouraging a ruling on the technicality of whether you have to try to register first. A broad ruling that the plaintiffs have no standing because they are not protected by the 2nd Amendment would potentially imperil future suits under similar grounds; the DoJ seems to be making an effort to leave that door open for later suits.

The administrative review procedure comes up again, and it is noted that the review process culminates at the Court of Appeals. There may be an implication here that following that procedure would have allowed the suit to proceed without the District Court's involvement. While the Court of Appeals for the District of Columbia is not considered favorable to firearms claims, it is probably a more favorable venue for such a claim than the District Court.

The discussion of the Hailes claim regarding her trigger lock is even more interesting. The United States alleges a lack of standing on Hailes' part for several reasons:

1. The necessity of removing the trigger lock to use the shotgun in lawful self-defense has not arisen and may not ever arise.
2. A prosecutor might choose not to prosecute the trigger lock requirement.
3. Self-defense might well be an absolute defense against criminal charges in such a case

The first claim is fairly standard for a standing issue. Hailey hasn't been charged with anything and the law generally frowns on preemptive lawsuits.

The second claim is more interesting. Prosecutorial discretion is a principle that a prosecutor does not need to and should not attempt to charge every single crime he is aware of. Prosecutorial time and resources should be used to charge the most serious offenses. Others are handled differently, sometimes with a few show-off cases to encourage voluntary compliance, or piling on more charges to a someone already charged with serious crimes.

I'm not a fan of prosecutorial discretion. As it stands, it allows the prosecutor too much power. Perfectly legitimate laws can be brought to bear in a discriminatory fashion, such as laws in the South regulating concealed carry of firearms that in theory applied to everyone but in practice were only charged when the person carrying was black.

And it allows prosecutors to duck challenges like this one, resulting in a case where it's OK to take off the trigger lock and use your firearm in self-defense... if the prosecutor likes you. Citizens should not have to live in fear of violating a bad law, hoping that if they are forced to violate it, they will be saved by the exercise of prosecutorial discretion. And the law should be both simple and vigorously enforced, so that the abuses of bad law are quickly exposed and corrected.

And, of course, prosecutorial discretion was not sufficient to save Carl Rowan.

The self-defense argument has similar flaws. Citizens should not be put in jeopardy and forced to rely upon a prosecutor or judge to spare them, and the Rowan case suggests that such reliance is unwise. However, whether Rowan's actions constituted self-defense is probably a reasonable matter for a jury.

The United States attorneys cite several cases for the argument that self-defense is an absolute defense to the charge of homicide, and thus presumably to gun charges relating to the same case. One of the cited cases has this quotation: "The exigencies of the occasion justified Wilson in obtaining a weapon and using it in his self-defense, so the fact that he had a pistol in his hand as he fired at his pursuers should not have been the basis of an instruction or a conviction under [the DC code]."

That reinforces the idea that the District of Columbia embraces a double-standard for gun control; a standard that amounts to "just don't get caught". I cannot approve of such a policy even if I appreciate the dilution of the absolutist gun-prohibition within the District. It breeds open disrespect for the law.

The arguments in this brief are not surprising, since they won in the lower court and are merely being reasserted here. It remains a fairly technical point, since no one is contending that plaintiffs could actually license a handgun, but I have already noted the general fondness for technical points when the 2nd Amendment elephant is in the room.