Parker v DC: The Government's Motion

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 ban!

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:
  1. The newspaper article is hearsay.
  2. The article was not a part of the record on appeal.
  3. 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 standing.

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. [Tweet]

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