Seegars v Ashcroft: A hearing before the Court of Appeals

Seegars v. Ashcroft was argued this morning before a three judge panel of the United States Court of Appeals for the District of Columbia Circuit. That is the federal appellate court which hears appears from the U.S. District Courts located within the District of Columbia.

The panel consisted of three D.C. Circuit judges, David S. Tatel, a Clinton appointee, David B. Sentelle, a Reagan appointee, and Senior Judge Stephen F. Williams, also a Reagan appointee. I reproduce their bios from the DC Circuit website for background. ..

Judge Sentelle was appointed United States Circuit Judge in October 1987. He is a 1968 graduate of the University of North Carolina Law School. Following law school, he practiced with the firm of Ussell & Dumont until he became an Assistant U.S. Attorney in Charlotte, N.C. in 1970. From 1974 to 1977, he served as a North Carolina State District Judge but left the bench in 1977 to become a partner with the firm of Tucker, Hicks, Sentelle, Moon & Hodge. In 1985, Judge Sentelle joined the U.S. District Court, Western District of North Carolina, in Asheville, where he served until his appointment to the D.C. Circuit. Judge Sentelle is the Presiding Judge of the Special Division for the Purpose of Appointing Independent Counsels (1992-present). Judge Sentelle serves as President of the Edward Bennett Williams Inn of the American Inns of Court.

Judge Tatel was appointed to the United States Court of Appeals in October 1994. He graduated from the University of Michigan in 1963 and the University of Chicago Law School in 1966. Following law school, he taught for a year at the University of Michigan Law School and then went into private practice with the firm of Sidley & Austin in Chicago. From 1969 to 1970, he served as Director of the Chicago Lawyers' Committee for Civil Rights Under Law, then returned to Sidley & Austin until 1972, when he became Director of the National Lawyers' Committee for Civil Rights Under Law in Washington, D.C. From 1974 to 1977, he returned to private practice as associate and partner with Hogan & Hartson, where he headed the firm's Community Services Department. He also served as General Counsel for the newly created Legal Services Corporation from 1975 to 1976. In 1977, Judge Tatel became the Director of the Office for Civil Rights, U.S. Department of Health, Education and Welfare. He returned to Hogan & Hartson in 1979, where he headed the firm's education group until his appointment to the D.C. Circuit.

Judge Williams was appointed to the United States Court of Appeals in June 1986, and took senior status in September 2001. He graduated from Yale College (B.A. 1958) and from Harvard Law School (J.D. 1961). Judge Williams was engaged in private practice from 1962 to 1966 and became an Assistant U.S. Attorney for the Southern District of New York in 1966. From 1969 until his appointment to the bench, Judge Williams taught at the University of Colorado School of Law. During this time, he also served as a Visiting Professor of Law at UCLA, University of Chicago Law School, and Southern Methodist University and was a consultant to the Administrative Conference of the United States and the Federal Trade Commission.

It is, of course, risky to assume from any judge's background how he will resolve any particular issue. One may assume, however, reasonably safely that Judge Tatel is decidedly more liberal than Judge Sentelle. I am told Judge Williams has a libertarian outlook though I have not studied his opinions. It is also risky to assume how a judge will resolve an issue based upon his statements at oral argument. Many judges play devil's advocate in order to look for weaknesses in their view of the case and to look for supporting arguments of counsel on areas which are troubling to them. That being said, at this point we have only the statements at oral argument and the questions asked to guide us on how the DC Circuit may resolve the issues in Seegars.

The substantive issues in Seegar involve a challenge to three provisions of the DC code that: (1) require all handguns to be registered, but prohibit the registration of any handgun not registered before 1976 when the law took effect, effectively prohibiting virtually all DC residents from owning handguns; (2) prohibit the possession of a working gun of any type in the home by reguiring any legally registered firearm to be trigger locked or disassembled at all times except when used for sporting purposes (for which there are none within the District of Columbia); and (3) prohibit the carrying of a handgun without a license by the Chief of Police to do so, even within ones own home, and for which the Chief of Police has declined to issue any such licenses. The effect of these provisions is to ban the use of hand guns for self defense even within ones home.

In the spirit of full disclosure, you should be aware that I am a plaintiff in the related Parker lawsuit, which also seeks to overturn these provisions. Parker is on hold at the DC Circuit at the moment until Seegars is decided.

In the District Court, from which Seegars is on appeal, the Court held that the Seegars plaintiffs lacked standing to contest the DC provisions, except as to one plaintiff with respect to the triggerlock provision. That plaintiff, who owns a registered shotgun, alleged that her Second Amendment rights were violated by the triggerlock provision. The District Court held that while she had standing to contest that provision, her Second Amendment rights were not violated because she does not have an individual right to keep and bear firearms apart from service within a militia.

The bulk of the discussion dealt with the issue of standing. Standing is a concept that requires that the plaintiff have a real stake in the outcome of a lawsuit. Its derivation lies in the wording of Article III of the Constitution which extends the judicial power of the United States to "cases or controversies." The concept of standing arose to ensure that real controversies exist among litigants who have a real stake in the outcome. The concept requires that a litigant suffer injury from the act complained of and that the relief requested of the court will remedy that injury. The federal courts do not give advisory opinions, but they will render a declaratory judgment, assuming that the standing requirement is met.

Plaintiffs argued they had standing to contest each of these three provisions. The government, both the United States and the District of Columbia, asserted that the plaintiffs all lack standing, including the plaintiff with the registered shotgun.

The key issue is whether the plaintiffs must violate the law in order to test it or whether the existence of the law itself is sufficiently injurious to grant them standing to challenge the law in federal court before any prosecution is commenced. In order to beat the standing objection, plaintiffs have to deal with the case of Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997).

In that case, Judge Tatel, then Chief Judge Wald and current Chief Judge Ginsburg, held that all but two plaintiffs lacked standing to contest the Federal so-called assault weapons ban on commerce clause (i.e., that the commerce clause does not grant Congress the power to pass such legislation), bill of attainder, and vagueness grounds. The distinction the court makes is that of whether the act outlawed weapons by name or by characteristics. As to the outlawing of weapons by name, the Court held that the manufacturers had standing to contest the law. The Court's reasoning is reprinted below:

"Even when the criminal statute that a litigant challenges has not yet been enforced against her, the challenger's claim may be justiciable if the challenger can demonstrate that she faces a threat of prosecution under the statute which is credible and immediate, and not merely abstract or speculative. In the proper circumstances, such threats of enforcement can simultaneously ripen a preenforcement challenge and give the threatened party standing.

"A credible threat of imminent prosecution can injure the threatened party by putting her between a rock and a hard place-absent the availability of preenforcement review, she must either forego possibly lawful activity because of her well- founded fear of prosecution, or willfully violate the statute, thereby subjecting herself to criminal prosecution and punishment. See Babbitt, 442 U.S. at 298-99. In such situations the threat of prosecution provides the foundation for justiciability as a constitutional and prudential matter, and the Declaratory Judgment Act, 28 U.S.C. section 2201 (1994), provides the mechanism for seeking preenforcement review in federal court.

"Federal courts most frequently find preenforcement challenges justiciable when the challenged statutes allegedly 'chill' conduct protected by the First Amendment, but preenforcement challenges have been heard outside of the First Amendment context as well. See, e.g., Regional Rail Reorg. Act Cases, 419 U.S. 102, 122-25 (1974) (finding hardship sufficient to ripen the controversy and to create a present injury where the challenged statute threatened a taking for which the plaintiffs would never be compensated); Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 506-08 (1972) (finding sufficient injury and ripeness where boat owners were effectively required, by a soon to be implemented state law, to install new sewage pumping facilities on their boats); Abbott Laboratories, 387 U.S. at 152-53 (finding sufficient hardship where the alternative to risking criminal and civil penalties was far-ranging and expensive relabeling of drug products).

"The question of whether a threat of prosecution adequate to satisfy the requirements of justiciability is present in any particular preenforcement challenge is a factual and case-specific one. Federal courts look to a variety of factors to determine whether the plaintiff's decision to forego certain activity is truly motivated by a well-founded fear that engaging in the activity will lead to prosecution under the challenged statute.

"The most important circumstance that the district judge overlooked is that the Act in effect singles out the appellants as its intended targets, by prohibiting weapons that only the appellants make. This fact sets this case apart from most others in which preenforcement challenges to the Act have been held nonjusticiable.

"It also makes the applicability of the statute to appellants' business indisputable: if these provisions of the statute are enforced at all, they will be enforced against these appellants for continuing to manufacture and sell the specified weapons (the only possible exception being the prosecution of people making 'copies or duplicates' of the outlawed weapons, as provided in 18 U.S.C. section 921(a)(30)(A)). "Because it is clear to whom these provisions of the Act would be applied were they to be applied at all, the imminent threat of such prosecutions can be deemed speculative only if it is likely that the government may simply decline to enforce these provisions at all. This argument has generally been found compelling only when litigants seek preenforcement review of antiquated laws of purely 'historical curiosity,' claiming that the threat of prosecution under these laws has 'chilled' their conduct. See, e.g., Doe v. Duling, 782 F.2d 1202 (4th Cir. 1986) (dismissing preenforcement challenges to Virginia laws against fornication and cohabitation which had not been enforced against the conduct in which the plaintiffs desired to engage since the 19th century).

"To conclude that the appellants face no credible threat of prosecution under these portions of the Act, we would have to believe that the government would enact a widely publicized law targeting products that only the appellants make, send its agents to the appellants' facilities on the day of enactment to inform them of the law's prohibitions and to begin quarantining 'grandfathered' units, and soon thereafter remind appellants of the provisions of the Act by letter, but then sit idly by while the appellants continued to manufacture the outlawed weapons. To imagine that the government would conduct itself in so chimerical a fashion would be to declare in effect that federal courts may never, in the absence of an explicit verbal 'threat,' decide preenforcement challenges to criminal statutes. This has never been the law. To require litigants seeking resolution of a dispute that is appropriate for adjudication in federal court to violate the law and subject themselves to criminal prosecution before their challenges may be heard would create incentives that are perverse from the perspective of law enforcement, unfair to the litigants, and totally unrelated to the constitutional or prudential concerns underlying the doctrine of justiciability."

However, as to that part of the act which outlawed the manufacture of so-called assault weapons by their characteristics, the Court found there was a much more attenuated threat of prosecution.

"In seeking to show that they have been threatened with the enforcement of these provisions of the Act, appellants can point to some of the same circumstances that we found relevant to the justiciability of their challenges to the portions of the Act that name individual weapons, including the high-profile nature of their business and the publicity accorded to the Act, the visits by the ATF agents, and the letter from the ATF. But they cannot invoke the one factor that we found most significant in our analysis of the other challenges-the statute's own identification of particular products manufactured only by the appellants. In the absence of this factor, the threat of prosecution becomes far less imminent, and these parties' claims to standing concomitantly much weaker. These generic portions of the Act could be enforced against a great number of weapon manufacturers or distributors, and although the government has demonstrated its interest in enforcing the Act generally, nothing in these portions indicates any special priority placed upon preventing these parties from engaging in specified conduct. In such circumstances we cannot say that a genuine threat of enforcement has given rise to the requisite 'injury in fact' and thus given these parties standing. "Further, because the general nature of the language in these portions of the Act makes it impossible to foretell precisely how these provisions may be applied, the issues presented in these challenges are less fit for adjudication, suggesting additional concerns as to their ripeness. We can hold a statute to be impermissibly vague on its face only if we conclude that it is capable of no valid application, see Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495 (1982), [footnote 2] and in the absence of an enforcement action either commenced or specifically threatened, we have no actual or imminent concrete application of the statute in which to anchor our inquiry into whether any valid application is possible. For these reasons, we hold that the appellants' challenges to the portions of the Act which describe the outlawed items in general categorical terms are not justiciable at this time."

Navegar thus seems to turn on the likelihood of prosecution. There is, however, no suggestion in the record of Seegars that the District of Columbia does not vigorously prosecute gun possession cases.

As Judge Williams acknowledged at oral argument this morning, Navegar presents a serious issue for the plaintiffs. Judge Sentelle, however, seemed to have less of a problem with standing, at least if an enumerated Constitutional right is involved. Counsel for the plaintiffs, Stephen Halbrook sought to emphasize that the plaintiffs were located in high crime area to support the standing argument. Judge Sentelle challenged him whether the plaintiffs would lack standing if they were in low crime neighborhoods. Halbrook said he thought the plaintiffs would still have standing, but perhaps with a less strong case. Judge Sentelle pounced on him suggesting then that whether the plaintiffs were in high or low crime areas was not determinative, and ultimately seeming a bit frustrated suggested that a constitutional right was at stake here but not in Navegar.

Judge Sentelle pressed his point with the government. He asked counsel for the government whether a person would have standing to contest a District of Columbia law which made possession of the Koran a criminal offense. Navegar did not raise a Second Amendment claim. Rather it denied standing to claims based on vagueness and power under the commerce clause. Counsel for the government sought to make a distinction between a first amendment challenge -- such as a law outlawing the Koran -- and other alleged Constitutional rights. Judge Sentelle, however, called him on this, asking if the Supreme Court has ever made such a distiction. Counsel for the government ould only only point to cases giving parties standing in certain circumstances to assert the First Amendment rights of third parties. Sentelle dismissed this argument since third party rights are not at stake in this case.

Counsel for the District of Columbia posited a more difficult argument however: that plaintiffs have an administrative remedy at least as to the pistol possession prohibition that avoids placing plaintiffs between a rock and a hard place. That argument is that plaintiffs can seek to register a pistol and appeal the certain denial of registration to the DC courts thereby asserting their second amendment rights. That argument may have some appeal to the court since it avoids the inherent unfairness of forcing someone to violate the law in order to assert a claimed constitutional right. Practically, that would be a disaster to plaintiffs because the District of Columbia Court of Appeals, the highest city court, has already rejected a Second Amendment challenge to the pistol possession prohibition, and the United States Supreme Court is highly unlikely to take such a case from the DC Court of Appeals.

Even Judge Tatel, however, seemed to agree that the triggerlock provision lacked any administrative remedy. Moreover, Judge Sentelle asked the government a slightly different hypothetical: what if the District outlawed possession of the Koran, but provided an administrative remedy, to contest it. Again the government was left suggesting that there is a distinction between First Amendment claims and others. That does not appear to be a winning argument, at least with Judge Sentelle.

On the substantive issues, the judge's comments were encouraging. Judge Sentelle recited that the Supreme Court has said that "The People" means the same in the First, Fourth, Ninth and Tenth Amendments as it does in the Second Amendment. That is a key argument the plaintiffs are making in this case to support the argument that the Second Amendment grants an individual right.

Judge Williams asked the government to explain that if the Second Amendment does not protect an individual right, why the Supreme Court in the 1939 Miller decision did not just say so, rather than discussing whether possession of the sawed-off shotgun at issue in that case was encompassed by the Second Amendment. The government's answer can best be decribed as a series of non-answers.

This post can only touch the surface of the approximate one hour of argument. If I had to call the case at this point, I think it looks good for a reversal both on standing and on the merits, though likely on a 2-1 basis. Assuming this happens the issue becomes exactly what the court will do, an issue Judge Sentelle raised. In other words, will the court decide the Second Amendment issue and invalidate the DC provisions, or will it vacate the District Court decision and remand for further proceedings, for example, whether a pistol is an ordinary militia type weapon.