District's opposition to Parker's motion to schedule briefing...
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The Parker attorney's motion to schedule briefing, on a parallel track with the District's motion to remand or dismiss, has now received a response in opposition
from the District. Parker attorneys will get a response to this,
after which the judge will pick which of the two motions to grant -- or
do something else. Like most of the District's motions during
this stage, this response is short and, pardon the pun, dimissive --
almost contemptuous, in this case. Clearly, the District's legal
team think they've won by default following the result of Seegars, at
least with regard to this Court. Interestingly, though, there are some new points that show up in this response. My impression of the arguments is that the District isn't quite getting a complete understanding of what the plaintiffs are arguing, and is spending its time responding to slightly different points. This could also be a deliberate attempt to mischaracterize the plaintiff's arguments by turning them into arguments that are less persuasive, and I'm not sure which one I think it actually is. Either way, the District is allowing for subtle distortions of the actual arguments involved. First, the District states that the Parker plaintiffs make no meaningful distinction between their case and the Seegars case. They choose not to repeat their earlier arguments to that effect. They are ignoring a broad swath of argument within the plaintiff's motion, and I find that rather surprising. Apparantly the District feels that the Parker plaintiffs haven't raised anything new worth responding to in this motion, although there is definitely new material present. I would take that as a sign of confidence from the District. I hope it's a sign of over-confidence, but I wouldn't want to stake my reputation on it. The shadow of Seegars looms large... but if the District loses this motion there are likely to be some red faces on their legal team. Second, the District notes: "To the extent that plaintiffs' motion appears to argue that standing is not at issue in this appeal because the trial court reached the merits, jurisdiction is always before a reviewing court." While I suspect the District is right in this statement, the Parker motion does not argue to the contrary. That the decision reached the merits in the lower court is mentioned only once, in the introduction rather than the argument itself, and not in a manner that suggests that decision is binding upon the appellate panel. It is informative to note that the lower court reached the merits, because that highlights the differences between Seegars and Parker, even if it does not actually control the outcome in any way. Finally, the District characterizes the majority of the Parker brief as arguing that Seegars was wrongly decided. This, too, is a mischaracterization. While the District is presumably correct that the appellate panel cannot overrule the panel in Seegars (overruling would require an en banc hearing of the entire court), and the Parker attorneys do in fact cover the flaws in the Seegars decision at length, they do not ask the court to overturn Seegars. Instead, they ask the court to differentiate based on the "repeated specific and personal threats of prosecution". There is, in fact, substantial material in the Parker brief concerning certain aspects of the Seegars ruling -- in particular the question of administrative remedies. However, that material is best understood as supplemental to the Seegars standing rules. If the judge agrees that Parker plaintiffs deserve standing under the Seegars requirements, it would still be possible to issue a ruling denying standing under one of the other issues -- including, for example, a requirement that plaintiffs exhaust administrative remedies. It is best to put the arguments for that contingency before the judge and not need them, than to neglect to do so and lose the case. Here are the relevant quotes from the Seegars decision: We agree with the district court, however, that the pistolplaintiffs have not shown a threat of prosecution reaching thelevel of imminence required by Navegar. See 103 F.3d at1001. Plaintiffs note that the District?s gun laws are enforced,see Reply Brief for Appellants/Cross-Appellees at 4, andindeed cite the District?s position in prior litigation, declaringthat it enforces its gun laws, prosecuting ?all violators of thestatute under normal prosecutorial standards.? Austin v.United States, 847 A.2d 391, 393-94 (D.C. 2004) (discussingregulation of concealed weapons). But plaintiffs allege no prior threats against them or any characteristics indicating an especially high probability of enforcement against them. As was true for the claims found non-justiciable in Navegar, ?nothing . . . indicates any special priority placed uponpreventing these parties from engaging in specified conduct.? 103 F.3d at 1001 (emphasis added); see also Lion Mfg. Corp. v. Kennedy, 330 F.2d 833, 839 (D.C. Cir. 1964).We know that the judge who wrote this decision thinks Navegar was wrongly decided, but when sitting as part of a panel, lacked the authority to overturn the precedent. What he wrote here suggests that a plaintiff who has been personally threatened with prosecution, or whose prosecution has any special priority for the government, would presumably have standing. The Seegars plaintiff Jordan did NOT meet that standard, but Parker plaintiffs have been personally threatened with prosecution, and their case is sufficiently important to the District that the Mayor's spokesman has been giving interviews to make those threats. That's enough of a difference in the record of Parker to support distinguishing the case from Seegars, at least on the similar claim. But the standard in Navegar (upon which Seegars was based) is very tough, and the present court is not empowered to overturn either. That's why we're hair-splitting. But remember: even in Navegar, the specific brands named in the Assault Weapons Ban did receive standing. It IS possible to meet that standard with a sufficiently specific and imminent threat of prosecution. The Seegars plaintiffs lack the necessary specificity, but the Parker plaintiffs have a clear record on that matter. The Parker team will have the opportunity to respond to this opposition brief, and we have already seen the District's motion, opposition, and response showing how they want things to go. Once we've seen the Parker response to this opposition, we'll be waiting on the judge. |
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