Yesterday, I noted that the Parker attorneys had filed their motion
with a suggested disposition for the case. Today, the attorneys
for the District of Columbia have filed their motion. It is pretty much what I expected; they want the case dismissed on standing grounds and claim that Seegars is both controlling precedent and indistinguishable. They are frantically backpedalling from the statements pointed out in the Parker motion, hoping to reduce the impact of their threatened prosecution to a non-specific, general intent to enforce the law.
Whether it works is going to depend on what the judges think of the case, I suspect.
There's no dispute that Seegars is a very similar case. The question is whether the Seegars case can be distinguished from Parker based on the difference in the evidenciary record and the stance of the District's attorneys.
Here's how the District of Columbia attorneys characterized the issue in their Seegars brief:
Whether plaintiffs have standing when the complaint alleges
they intend to acquire pistols sometime in the future, no plaintiff has
been threatened with prosecution, and the likelihood of prosecution of
misdemeanors is remote.
The question, of course, is whether
the likelihood of prosecution actually is remote. There's a clear
difference in the legal stance taken by the District. In the
lower court in Parker, there
was absolutely no question that the plaintiffs would be prosecuted if
they violated the law and were discovered violating the law. In Seegars, likelihood of prosecution is described as remote.
There are two ways to interpert this, and it's possible for both to be accurate.
First, we could simply assume that the District's attorneys were napping in the Parker
case, and the inclusion of Ashcroft's Department of Justice team woke
them up to the standing question and. more importantly, to the fact
that these cases constitute a non-trivial challenge with a real
possibility of success. With that change, the District may have
decided to fight on the standing issue "just in case" failure to do so
resulted in a loss on the merits.
The alternative is to assume that the statements can be reconciled
somehow. I think they can be. I think the District believes
that it can, should, and does prosecute every violation of their gun
ban that it becomes aware of, but nonetheless believes that prosecution
of any specific individual (and especially plaintiffs in this case) is
remote. The chance of prosecution is remote because plaintiffs
are requesting the right to keep firearms in their homes and are not of criminal character.
Thus, the only way the plaintiffs
could be prosecuted under the handgun ban would be if they shot an
intruder or became implicated in a crime sufficient to allow a search
of their residence.
That's how the chances of prosecution can be both certain and remote at
the same time: the District can only enforce the ban on those
individuals who are caught through some other means. Once caught,
the ban is universally enforced. But law abiding citizens are
protected by the Fourth Amendment from warrantless enforcement searches.
The problem with this argument is that it allows the government to hide
an unconstitutional law behind another constitutional restriction on
their powers. They are not saying that they are exercising
prosecutorial discretion to only prosecute those who commit some
additional act; they are prosecuting everyone who they learn violates
the law. Consider the case of Carl Rowan,
an anti-gun journalist who shot a burglar in the District of Columbia
with an illegal handgun and was tried for it (and nearly convicted; the
jury saved him).
It is nonsense to say that a ban on handguns is Constitutional because
the 4th Amendment prevents the government from actually enforcing the
But the question that needs to be answered, per Seegars,
is whether the threat of prosecution is specific to them or merely a
generalized assertion that the law will be enforced. The first
blow struck by the District's attorneys is an attempt to exclude the
Washington Times newspaper article from consideration. They make
three points towards that end:
The newspaper article is hearsay.
The article was not a part of the record on appeal.
The spokesman for the Mayor is not a police officer or prosecutor.
These are, unfortunately, fairly good points, especially the first
two. Courts generally do not consider newspaper articles evidence
of the events which they report, and they generally try to avoid
introducing new evidence into an appeal. (The Mayor's spokesman
can probably be assumed to be speaking with the Mayor's authority over
the police and prosecutors for the District).
Perhaps the DC lawyer and gunblogger at Countertop Chronicles can comment on what would be needed to overcome those two points. I know it can be done, but rarely is.
Luckily, there's also the oral argument in the lower court. That is not hearsay, and it is part of the evidentiary record.
The District tries to back away from what they said before the lower
court, characterizing it as nothing more than a general statement that
the laws would be enforced. They are doing this because the precedential chain here (United Farm Workers, Navegar, Seegars) makes it plain that a specific, credible threat
of prosecution is sufficient to sustain standing for a pre-enforcement
challenge even if the intended conduct is hypothetical. In light
of their prior statements, the only recourse for the District is to
argue that the threat of prosecution is not specific to the plaintiffs.
I don't buy that. On its face,
the statement seems to be an unambiguous declaration that laws would be
enforced upon these specific plaintiffs
if they chose to violate the law. They won't get a free ride, and
they won't be the beneficiary of prosecutorial discretion based on the
facts of their case. In that respect, the in-court statement is
much more valuable than the Washington Times article; whereas the
Mayor's spokesmen speaking to the press can be understood as a general
announcement intended for broad distribution, it is hard to construe an
attorney arguing a specific case as such a general statement.
Finally, the District's attorneys argue that the lower court erred in reaching the merits of the case, and that Seegars
demonstrates that error. That's not a surprise at all, except in
that it signals the change of stance from arguing the merits to arguing
Overall, I suspect that the District will win its point on the
Washington Times article, but that may not matter; the article has been
brought to the attention of the panel and they cannot "unsee" it in the
same manner that they could exclude it from a jury deliberation.
Whether the statements during oral argument will be sufficient to
distinguish the case from Seegars is uncertain, and likely to depend more upon politics than the law.
As such, it is significant that Judge Sentelle is serving on the Parker panel. That same judge also served on the Seegars panel, and dissented from that decision on the issue of standing.
Parker thus can be assumed to
have at least one vote in favor of standing. Whether the
plaintiffs can pick up one more vote from the remaining two judges is
the next question.
UPDATE: A little bird tells me that both sides will have the chance to
file an additional response before the judges can gavel this
issue. So we can expect two more documents in the near future
(due March 10th and March 17th) before the judges tell us what happens next.
This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger
and last updated 2005-09-24 10:43:35.0.