The District has issued their final response in the Parker v DC case.
The question of where that case goes from here is now fully briefed and
ready for a ruling from the court, and so the next step that we can
expect is the judge's ruling. As I understand the situation that
ruling could be almost anything; it could set a date for argument on
the merits, it could rule on the outstanding motion for summary
judgement from our side, or dismiss the case as the government has
requested in order to follow Seegars. We'll have to wait and see on that. Here is the sequence of documents on this issue:
Plaintiff's motion to issue schedule (report, PDF)
Government's motion to dismiss following Seegars (report, PDF)
There's not a lot of substance to the government's final response in
this sequence. It's only four pages, and two of those are the
certificate of service showing the document has been delivered properly
to opposing counsel. The actual content doesn't have much that's
new in it. The government reasserts their basic arguments that
plaintiffs in Parker don't meet the Seegars test.
Here's the new bit:
The District's motion argued that nothing in the record made it more
likely that the Parker plaintiffs faced a more imminent threat of
prosecution than the Seegars
plaintiffs. Appellees' opposition warrants only a brief
rejoinder. Appellants correctly point out that the District's
motion ommitted two words ("the fact") when it quoted the government's
trial counsel. The lapse was inadvertant and we apologize for not
catching it. Restoring the two words does not change the meaning
of what she said. Nothing in the colloquy between trial counsel
and the trial judge can reasonably be construed as a specific threat of
imminent prosecution of one or more of the Parker plaintiffs. At most, they were general statements that District laws would be enforced. See Navegar, 103F.3d at 1001; see also, Lion Mfg Corp v Kennedy,
330 F.2d 833, 839 (DC Cir. 1964) ("mere generalized declarations of
purpose by a law enforcement officer that he will do his duty do not
serve to provide a judicial forum to one who purports to fear the
possible impact of that duty upon himself"). Here, as the
District's motion noted, trial counsel is not a criminal prosecutor and
her words are insufficient to create "an especially high probability of
[criminal] enforcement against [these plaintiffs]." Seegars, slip op. at 12.
They close with a repeated assertion that the situation is identical to Seegars and should accordingly be dismissed on the same grounds.
So what's noteworthy about this response? First, the District
attorneys admit they left out two words from their quoted material,
claim it was inadvertant, and apologize. Fair enough, but even
so, it's egg on their face that they don't need. Arguing that the
ommitted two words doesn't change the meaning of the quote is trickier,
when those two quoted words were specifically emphasized by Parker attorneys. Clearly, the Parker
attorneys believed those two words changed the meaning of the quote
sufficiently to be emphasized. Reading a transcript doesn't
really give us enough information to understand what was intended;
those two words could have been meaningless filler.
Regardless,
they are there in the transcript and they add weight to the argument
that the District would prosecute the plaintiffs specifically if they
chose to violate the law.
The District also repeats the argument that their trial
counsel in the lower court is not a criminal prosecutor. This is
presumably true, but doesn't allow the District to escape
responsibility for her words while in court representing them.
By implication the District refers briefly to their earlier arguments
seeking to exclude the Washington Times article from the record.
They indicate that their earlier motion argued that "nothing in the record
made it more likely that [plaintiffs would be prosecuted]". And
they studiously ignore the newspaper article with the mayor's threats
of prosecution, because they have argued that it is not a part of the
record.
The ultimate question remains the same: must a law be broken before
it can be challenged on Constitutional grounds? Obviously, if the
law has not been violated, you can't have an actual prosecution and
it's difficult to have a threatened prosecution from a government
prosecutor. Prosecutors don't sit around their offices making
threats in order to provide standing to plaintiffs.
Navegar confirmed that violating the law before challenging it was not a requirement, and Seegars suggested that the missing element was intent to
prosecute under the specific circumstances of the case.
That means the bar must be lower than a specific prosecutor sharpening
his rhetoric with the plaintiff in mind.
Defendents in Seegars were so
eager to obtain a ruling that denied standing to plaintiffs that they
repeatedly suggested plaintiffs would not be prosecuted.
Defendents in Parker neglected to do so, and in fact suggested (both in court by their counsel, and to the public via the media) that Parker plaintiffs would be prosecuted if they violated the law.
That's about as specific as it gets without plaintiff's actually
violating the law. The District would rather disclaim those
statements, exclude the mayor's grandstanding from the record, and
pretend that plaintiffs in this case might not actually be prosecuted.
That doesn't fly in reality, and we'll just have to wait and see if it flies in the District Circuit Appeals Court.
This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger
and last updated 2005-09-24 10:43:35.0.
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