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.
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
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.
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
This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger
and last updated 2005-09-24 10:43:35.0.