Seegars v Gonzales: Details on the Denial...

Earlier, I wrote about the decision to deny rehearing to the Seegars case at the DC Court of Appeals.  I've now obtained more details on that ruling, including the full text of each statement accompanying the denial.  The most interesting part of the additional information is Williams' statement; it suggests that had he not felt bound by precedent, he would have voted our way on the three-judge panel (as my guest-witness thought might happen).

I'm retyping portions of the opinions below; typos and errors should be presumed to be mine. 

Although the Ginsburg opinion is labeled as a concurring opinion, he is the only judge to write an opinion favoring the denial. 

Ginsburg, concurring:
The court properly denies the appellants' petition for rehearing because this case does not present a circumstances in which a plaintiff is "required to await and undergo a criminal prosecution as the sole means of seeking relief".  Babbit v United Farm Workers Nat'l Union, 442 US 289, 298 (1979).  The plaintiffs challenging the pistol regulation, as both the panel and the district court observed, see F.3d 1248, 1256, (D.C. Cir. 2005); 297 F. Supp.2d 201, 216-17 (D.D.C 2004), could have applied to register a pistol and then challenged the subsequent denial of that application on the basis of the Second Amendment in the courts of the District of Columbia, see generally D.C CODE 2-510(a), 7-2502.10(b), 7-2507.09; Fesjian v Jefferson, 399 A.2d 861, 863 (D.C. 1979) (entertaining challenges under the Equal Protection Clause and the Takings Clause to D.C. gun statute upon appeal from denial of registration), and thereafter, if necessary in the Supreme Court of the United States, see 28 U.S.C 1257.  Because the appellants have, as the Government argues, a ready means of presenting their constitutional challenge, it cannot fairly be said that a criminal prosecution is their "sole means of seeking relief".

Although the plaintiff challenging the trigger lock regulation apparantly had no administrative remedy by way of which she could secure judicial review, her claim to standing is based only upon her averment that but for the regulation "she would remove the trigger lock when she deems it necessary to defend herself in her home".  Seegars, 306 F.3d at 1256.  That she would ever find it necessary to remove the trigger lock in order to defend herself in her home, and that she would then be prosecuted for that action, are highly speculative propositions, and therefore insufficient to give her standing to sue.  See Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) ("Allegations of possible future injury do not satisfy the requirements of Art. III.  A threatened injury must be certainly impending to constitute injury in fact.").
Williams, who wrote the unfavorable opinion in the 3-judge panel, writes here to explain why he called for rehearing the case despite his panel ruling.  Astute readers will recall that I speculated as to Williams' statement, wondering if it had been written to explain an abstention from the vote.  It looks like I was right.  Williams appears to have abstained from the vote despite calling for rehearing the case by the full circuit.  I suspect that he felt it appropriate to abstain from the vote since he wrote the decision in question, even if he would have voted to rehear -- certainly not the usual direction of bias for the author of a decision being considered.

His statement makes his opinion clear, and explains somewhat more clearly the adverse ruling he wrote earlier for the three-judge panel.  Specifically, sitting as a member of that panel, Williams felt constrained by precedent that he considered to be binding.  Thus, even though he thought the Seegars plaintiffs deserved standing, he could not rule in their favor due to adverse precedent... even though he disagreed with the precedent! 

The constraint of precedent upon lower courts is both why the liberal judges have been so successful in advancing their agenda in the court system as well as why we will have a great deal of difficulty turning back the clock.  Every time we wish to overturn a bad decision, even an activist one, we will be faced with the unenviable task of convincing judges who believe in judicial restraint to overturn precedent.  In order to do that properly we need to make a good case in court -- and not only in one court but in successive courts until our appeal has reached a court equal to or higher than the court that set the precedent.  In many cases, that will be the Supreme Court. 

That legacy of liberal precedent is why the Senate Democrats are desperately trying to block the judicial confirmation process.  They want middle-of-the-road judges who may lean conservative but who will be reluctant (and to some degree, rightly so) to reverse prior decisions.  It will not be easy to change the balance of power in the courts.  And it will be even less easy to attack the foundational precedents of the liberal agenda when our own judges are bound by their own sense of the law rather than the result.

That doesn't mean we should become results-oriented.  It just means that we have to work that much harder to overcome the obstacles placed in our way.

With no further ado, Williams' statement:
I write briefly to explain my call for rehearing en banc on the panel decision, which I wrote.  As a panel we were constrained by recent circuit authority, Navegar, Inc v United States, 103 F.3d 994 (D.C. Cir. 1997), even though, as my opinion for the court made clear, it appeared to be in conflict with an earlier Supreme Court decision, Babbitt v United Farm Workers Nat'l Union, 442 U.S. 289 (1979).  The essential issue was whether plaintiffs' injury -- their inability, on pain of criminal sanction, to possess and use guns that they believed critical for their self-defense -- was sufficiently imminent to qualify for Article III standing.  See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).  The imminent of the threat to their security matched the imminence of the threat of prosecution; the greater the probability of enforcement, the greater the pressure to forgo what they saw as lawful and needed security precautions.  And the defendant governments in no way suggested any reluctance to enforce the laws to the hilt.  Although the threat of prosecution appeared as imminent as in United Farm Workers, Navegar demanded a higher level of imminence, indeed one rarely attainable in practice. 

When we asked the defendant governments to respond to the petition for rehearing en banc, they argued that all plaintiffs other than Hailes could seek permits to carry pistols under the statutes forbidding their desired conduct.  The governments did not suggest that there was the remotest chance that the permits would be granted.  The statutes plainly, unequivocally, bar issuance of such permits.  See D.C. Code 7-2502.01, 7-2502-02(a); Seegars v Gonzales, 196 F.3d 1248, 1250 (D.C. Cir. 2005).  That being so, it is mysterious to me how plodding through the charade of seeking permits would render the threat of prosecution (and thus the need to forego measures for their security) one iota more imminent.  The probability of the laws enforcement will be exactly the same after the administrative exercise as now.  The availability of a null administrative remedy seems irrelevant to the standing issue.

Moreover, to frame the issue more closely in the terms of United Farm Workers, it is an illusion to suppose that pursuit of the administrative "remedies" identified by the defendent governments could alleviate the burden on plaintiffs of "await[ing] and undergo[ing] a criminal prosecution as the sole means of seeking relief."  United Farm Workers, 442 U.S. at 298.  At the conclusion of that vain exercise they will face exactly the dilemma they do today--the choice between facing criminal prosecution and forgoing security measures they believe necessary and lawful.

As for Hailes, she lawfully possesses the weapon in question, and is forbidden from maintaining it loaded and assembled or free of a trigger lock.  There being not even a useless administrative remedy available for Hailes, the governments argue that the risk of prosecution is too low, as her preferred course of conduct is entirely private and contingent on her feeling threatened in the future.  This is true in every sense except the sense that counts.  It is presumably true that, as a practical matter, she can maintain her weapon in her own home any way she likes, so long as she is discreet about it and so long as the occasion against which she wants to have it at the ready--intrusion by a burglar or other marauder--never arises.  But if such an intrusion occurs, and she is able to defend herself by virtue of having violated the law, the ensuing police investigation will bring out the evidence of her crime (unless she were to successfully commit another crime by lying about how she kept the gun).  Nothing the governments say suggests that the risk of prosecution will be low then.  The risk of prosecution in the event of the contingency she fears is high, and thus the resulting deterrent to her freeing the trigger lock is effectively as great as if she proposed to violate the law down at the police station. 

Moreover, the governments offer an apparantly baseless suggestion that in the event of use against an intruder, Hailes could successfully invoke self-defense.  First, the law contains no such exception, and it is sheer speculation to suppose that courts would find it.  Second, Hailes whole problem is that her belief as to what is prudent for her safety and allowed by the Constitution differs from the District's view.  The possibility of an undefined and possibly non-existent defense is no answer.

I do not think our law of standing requires that citizens who want to obey the law, but also to follow their judgement as to self-preservation, be told that they cannot get a reading on the validity of the law except by pursuing concededly useless administrative avenues or by engaging in forbidden behavior that is sure to be exposed if the risk they fear arises.
Sentelle, dissenting:
With one distinct but significant exception, I concur in the ideas and reasoning expressed in the separate opinion of Senior Circuit Judge Williams.  For the reasons expressed in my dissent in the panel opinion in this cause, Seegars v Gonzales, 396 F.3d 1248, 1256 (D.C. Cir. 2005), I do not accept the proposition that Navegar, Inc v. United States, 103 F.3d 994 (D.C. Cir. 1997), is controlling on the question of standing.  With that one reservation, I join in the observations of Senior Circuit Judge Williams concerning the standing of appellants to bring this action and dissent from the denial of en banc.

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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