TriggerFinger


Statement of Facts


The statement of facts is an attempt to lay out the objective truth about what happened to result in the lawsuit.  During an appeal, generally the court attempts to treat the facts as settled by the trial sort undisturbed; the appeal is for issues related to the law, and how it relates to the facts, rather than for the facts themselves.  This is obviously not a hard and fast rule, as there can be quite a bit of nuance involved as to what constitutes a matter of fact and what constitutes a matter of law.  For our purposes, however, there are few contested facts in this case.
At the time this litigation commenced, Plaintiff Shelly Parker resided in a high-crime Northeast Washington, D.C. neighborhood. Her anti-drug civic activism attracted threats to Parker from drug dealers interested in preserving the status quo. Parker is thus highly motivated to keep a handgun at home in the event the criminals plaguing her former neighborhood make good on their threats. JA 20-21.1
Motivation can be an important component of standing.  The idea is that someone with a strong motivation to challenge a law would be more likely to engage in the prohibited conduct should the law be struck down.  The idea is to prevent people from engaging in lawsuits that don't have an immediate effect on their lives; "Maybe someday I might want to own a gun" isn't a very compelling reason to strike down a law.  Needing to own a gun for an urgent matter of self-defense is much more pressing.  Generally courts seek to decide real cases not hypotheticals. 
Defendants are comfortable entrusting Plaintiff Dick Heller with a handgun, but only while he is on duty as a District of Columbia Special Police Officer.  Heller is allowed to carry a loaded handgun in defense of the federal judiciary at the Thurgood Marshall Federal Judicial Center on Capitol Hill, but when he returns to his Southeast Washington home, Defendants insist he be disarmed.  Heller lawfully owns various firearms located outside the city, including handguns, which he wishes to keep at home in a functional condition. JA 22-23.  Heller attempted to register a handgun for home possession, but was refused in accordance with Defendants' total prohibition on private handgun possession. JA 32.
Here we have several important components to the case.  Plaintiff Heller already owns firearms; for him, once the law is overturned, simply moving those firearms into his city residence would be sufficient.  Heller has also attempted to register a handgun and was refused.  These two facts puts his challenge a notch or two less hypothetical than Parker's.  

The fact that Heller is trusted to carry a firearm within the city for his employer is also a significant point.  It makes it very difficult for the city to argue that the plaintiffs are unsuitable for handgun ownership, or that he was denied permission to register a handgun for his home due to some personal failing.  He was denied because all applications are denied. 

Finally, the application is itself a hedged bet: dicta in some of the Seegars decisions has suggested that, to be certain of standing, plaintiffs should attempt to register a handgun and appeal the denial.  While this is probably unnecessary, it's not a bad idea to have at least once plaintiff who has tried to jump through the hoop.
A gay man, Plaintiff Tom Palmer has used a handgun to successfully defend himself against a hate crime. JA 24. Like Heller, Palmer and Plaintiff George Lyon are experienced with firearms, and each own a variety of long guns and handguns that they intend to keep inside their District of Columbia homes in a functional state. JA 24-25, 30-31. Plaintiff Tracey Ambeau intends to obtain a handgun for home defense, as a long gun would be too cumbersome for her to operate. JA 28-29.
With these plaintiffs we are hedging different bets.  Ambeau is attacking the distinction made between handguns and long guns; if she is unable to effectively operate a long gun then the court cannot reasonably rule that the ban on handguns is valid because long guns are available.  Palmer is someone who, like Parker, has a reasonable expectation of danger (in Palmer's case due to his sexual orientation), and that danger is if anything more likely to strike outside his home. 

We are not likely to get any sort of legal carry from this lawsuit directly, since the District would undoubtedly respond to a loss by enacting the strictest law they felt would survive court challenge, but it won't hurt to try.

Lyon is probably present for his long guns.  Remember, it's legal to own a (registered, strictly limited) long gun in DC; it's just not legal to have it in functional condition. 

In fact, I would not be surprised to learn that between the various plaintiffs, a variety of long guns are present -- some registered, some not, some legal under the city's insane definition of "machine gun", others not.  There needs to be enough variety to answer any sort of objections raised by the city, and in the event we win a victory, there may well be follow-up lawsuits planned to attack the registration requirement and strict design limitations.
Plaintiff Gillian St. Lawrence keeps a lawfully registered shotgun in her Washington, D.C. home. As required by law, the gun is not operable and would not be useful in case of need. St. Lawrence has no objection to a requirement that the gun be stored securely when not in use, but believes her intent to render the gun operable for self-defense in case of need should not make her a criminal. JA 26-27.
Here is another hedged bet.  In case all the other plaintiffs are dropped for one reason or another, St. Lawrence is someone who has jumped through all the hoops to purchase and register a long gun. Her only complaint is the requirement that the firearm remain inoperable.  This plaintiff allows the court to leave the handgun ban intact, while still ruling favorably on the 2nd Amendment and the right to keep and bear arms for self-defense. 

The important thing to remember here is that the object is to produce a favorable ruling on the right to keep and bear arms from the Supreme Court.  The details of how far such a right protects a gun owner can, and probably will, be hashed out in subsequent lawsuits and legislative activity.   Overturning the requirement to maintain legally-owned long arms in a non-functional state based on a 2nd Amendment right would be a step forward, no matter how narrowly crafted the decision, and it's better to offer the court an opportunity for a narrowly-crafted solution than to expect a complete reversal of course all at once.

Having established who the plaintiffs are, and what they would like to do, the next step is to spell out the laws being challenged:
Plaintiffs have good reason to fear arrest, prosecution, incarceration, and fine should they act on their sincere desire to possess functional firearms within their homes. D.C. Code 7-2502.01(a) provides that "no person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm." Although registration certificates are available for certain long guns, D.C. Code 7-2502.02(a) provides in pertinent part, "A registration certificate shall not be issued for a . . . (4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976." "'Pistol' means any firearm originally designed to be fired by use of a single hand." D.C. Code 7-2501.01(12). Defendants thereby maintain a complete ban on the home possession of handguns not registered prior to September 24, 1976.
This is, of course, the handgun ban.  Notice how the law itself is spelled out along with its consequences.
D.C. Code 7-2507.02 provides in pertinent part:
[E]ach registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.

Accordingly, Defendants prohibit the possession and use of lawfully owned firearms for self-defense within the home, even in instances when armed self defense would be lawful by other means under District of Columbia law.
Here, again, we have the same story.  State the law, spell out the consequence and how it interferes with the desired behaviors of your plaintiff.  In this case we are specifically targeting the law's lack of an exception or affirmative defense for cases of self-defense.  The definition allows for "recreational purposes"  or for possession of a functional firearm at a place of business, but does not have any allowance for self-defense use of the firearm at home.

There are other tactics that could be applied here.  Rather than a direct challenge, someone who used a lawfully-owned firearm in self-defense could request that the court carve an exception to the law through case law and precedent rather than a Constitutional challenge.  Or, the courts could rely on  discretion and simply not charge individuals who used legally-owned firearms in self-defense. 

The problem with those strategies, of course, is that they put people in a cloud of uncertainty.  Prosecutors have demonstrated that they don't feel particularly merciful about the everyday citizen who violates the District's gun control laws, by (among other things) threatening the plaintiffs in this case with prosecution.  The gun control laws in question are serious enough that few people not already criminals are willing to risk becoming "criminals" simply for having a self-defense firearm.  Relying on the courts to carve out exceptions just isn't going to work in this case.
Even the movement of a handgun from one location to another on one's property carries a criminal penalty. Former D.C. Code 22-3204 provided that those moving a gun within their dwelling, business, or possessed land were exempt from the licensing requirement for carrying a handgun. However, Defendants now actively enforce D.C. Code 22-4504, which provides that carrying a handgun without a license in one's home, business, or on one's land is unlawful -- even if the handgun is legally registered. "It is common knowledge . . . that with very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for many years and are virtually unobtainable." Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994).
This provides an interesting picture of how the DC legislature backed itself into this ban.  First it was no new registrations; then existing registrants were prohibited from doing anything with their firearms.  There is no single law that provides for a ban.  Instead, the combination of a license requirement, a refusal to issue new licenses, and extreme criminal penalties for "carrying" a firearm even on your own property are used to encourage even those who had legally registered their handguns to somehow dispose of them.
A first violation of the ban on the possession of handguns or other functional firearms within the home is punishable as a misdemeanor by a fine of up to $1,000, imprisonment of up to one year, or both.  D.C. Code 7-2507.06.

Defendants concede that these laws are zealously enforced. For example, Plaintiffs filed a motion for summary judgment with thirty-four separate assertions of undisputed material facts, the last of which stated that "Defendants actively enforce D.C. Code 7-2502.01(a), 7-2502.02(a)(4), 7-2507.02, and 22-4504."  JA 19. Defendants did not contest this assertion. JA 33-36. The District Court was thus free to treat this as admitted. D.C. LCvR 7.1(h), 56.1. Likewise, Defendants did not dispute the fact that carry permits are unobtainable. JA 19 (undisputed material fact no. 32).
This is one of the significant differences between the Parker and Seegars cases.  The Seegars case proceded forward rapidly, but lost on grounds of standing -- the courts were not convinced that the issue was sufficiently immediate.  That happened, at least in part, because the government attorneys argued that the plaintiffs might not be prosecuted, and many of the parties being sued in Seegars were not even responsible for enforcing the law.  No one seriously believes that the laws in question would not be enforced as a general rule, but the court cannot simply take that on faith.  It must be established as part of the record.

The Parker attorneys have made significant efforts to establish a record on enforcement of the laws they are challenging.  It's a large part of why their challenge survived to the merits of the case and the Seegars challenge did not.

By listing the active enforcement of the law as an assertion of fact in their summary judgment motion, the Parker attorneys made that assertion part of the case.  The City's attorneys had the opportunity to contest it.  In fact, the purpose of a summary judgment motion is to skip the fact-finding sections of a case and reach an immediate legal decision when facts are not in dispute; it allows the courts to proceed more rapidly when both parties agree on all relevant facts and merely want a decision as to how the law applies to those facts.

One way to defeat a motion for summary judgment is to establish that there is a dispute of asserted facts.  This would not guaranty a win on matters of law (the decision could still go either way), but it shortens the case considerably.  More importantly, though, once those facts are asserted they must be challenged in the response -- or the opportunity to do so is lost.  By not challenging that assertion, the City essentially admitted that they enforce the law vigorously and is now blocked from disputing that at the appellate level.  It may not be impossible to dispute it, but it would certainly be difficult to do so.  Legal arguments almost reflexively deny or dispute such assertions on first impression whenever possible, simply to preserve the opportunity to dispute them later on (and more vigorously) if necessary.

This is a legal argument that is significantly stronger than what might be expected in a non-legal setting.  Not disputing that assertion of fact in a case where standing is an issue represents a significant error on the City's part, one that the Department of Justice attorneys involved in the Seegars case would have undoubtedly prevented had they been involved.  This assertion of fact represents good legal strategy from our side and a bad mistake on the City's part.
Defendants have trumpeted their vigorous enforcement of the challenged laws. For example, Defendant Mayor Williams and Police Chief Charles Ramsey held a "town hall" meeting concerning these laws, attended by Plaintiffs Parker, Heller, and St. Lawrence. Williams called the gun ban a "core law" of the city, part of its "fundamental core culture." In response to a complaint by an Advisory Neighborhood Commissioner that criminals arrested with guns quickly re-appear on the streets with new guns, Mayor Williams stated, in part, "we need tougher enforcement." JA 83, 85, 87.
This is another combination of effective moves by our side and mistakes from the other side.  Politicians, being politicians, like to talk -- and that's usually a bad idea when there are lawsuits pending.  Nevertheless, the mayor and police chief of DC (both of whom are named defendants) chose to hold a town meeting in order to talk about the District's firearms law.  Our side leaped at the chance to attend in person, with the result that the political statements made in that meeting can be entered into the record of the case as evidence of vigorous enforcement by the City.
Police Chief Ramsey called the challenged laws "good solid laws," and warned, "if we relax our gun laws . . . we are opening the floodgates . . . for unintended [bad] consequences." Ramsey added that 2,000 guns were confiscated in each of the past two years, and his department confiscated 1,400 guns in the first half of 2005. JA 84, 86, 88.
It's one thing to say that a law is vigorously enforced, and another to have actual numbers of confiscated firearms over time.  This sort of data could perhaps be obtained through other sources, but getting it for free is nothing to sneeze at!  In my personal opinion, the City must really be kicking itself over that town hall meeting.  But that's not their worst mistake by far.
Defendants have repeatedly confirmed that they would prosecute Plaintiffs for violation of the challenged laws if Plaintiffs were to possess handguns or other functional firearms within their homes. At oral argument, the District Court clearly expressed its understanding that Plaintiffs would be prosecuted for violating the challenged statutes:

MR. GURA: . . . We can resolve this [standing] question very easily if opposing counsel would tell us that the city has no plans to enforce this law, that my clients are free to possess firearms.

THE COURT: I can probably answer that question for the city. JA 64.

But the District Court did not have to answer the question for the city -- its counsel did:

THE COURT: . . . The city is not going to essentially grant immunity to these people. If they go out and take steps to possess firearms, they'll be prosecuted, I assume. They're not going to get a free ride because they're a plaintiff in this case, are they?

MS. MULLEN: No, and I think that Your Honor is correct, but I don't think the fact that if, in fact, they break the law and we would enforce the law that they're breaking, that that necessarily confers automatic standing on them in this case. . . JA 66-67 (emphasis added).

Plaintiffs Heller, St. Lawrence, and Lyon were present in the courtroom to hear the city's attorney confirm that they would be prosecuted were they to act on their present intention to exercise their constitutional rights.
Again with the direct threats of prosecution to the plaintiffs in person, in court, on the record, from the official legal representative for the city!  The standing question really has been a comedy of errors for the defense here.

The city has already backed away from the position expressed by their counsel here; several briefs have debated the meaning of this passage as the city tried to climb out of the hole it had already dug.  However, it seems pretty clear to me what it means.
Apparently believing, erroneously, that standing could be defeated so long as Plaintiffs had not yet broken the law, Defendants confirmed to this Court that "if they [Plaintiffs] break a law, the District would normally enforce it." (Def.-App. Opp. & Mot., 2/23/05, p. 3 (emphasis original).)

The Washington Times's front page carried an article about this lawsuit two days after it was filed, quoting the Mayor's official spokesperson and the District's Deputy Mayor for Public Safety and Justice. The pair reiterated Defendants' zealous commitment to enforcing the District's gun bans and expressed their belief that Plaintiffs would pose a danger to themselves and to others, including children, "which is not what we want." Jon Ward, "Residents Challenge District's Gun Ban," Washington Times, February 12, 2003, p. A1.
Readers may recall that these newspaper articles were a minor issue in the briefs at the lower court, when the City wanted those articles struck from the record as hearsay.  They failed and those articles are still available for use in the appeal.

The side issue of the City claiming that plaintiffs be dangerous to themselves and to others, including children, is just another example of how silly the arguments against gun ownership are.  There is no evidence that gun control laws make anyone safer.  Including children.
Taken together, the Defendants' in-court threats (both verbal and written), that they would prosecute Plaintiffs for violating the laws; their summary judgment admissions regarding their zealous enforcement of the challenged laws; and the various proclamations to same effect communicated to Plaintiffs and others by the District's Mayor, Deputy Mayor, Police Chief, and Spokesperson, strongly validate and reinforce Plaintiffs' "actual and well founded fear that the law would be enforced against them" should they choose to exercise what they believe are their constitutional rights. Virginia v. Am. Booksellers' Ass'n, 484 U.S. 383, 393 (1988)
... and those, ladies and gentlemen of the audience, are the facts of the case.  We'll see what the other side chooses to dispute, if anything.

The case cited, Virginia v. Am. Booksellers' Ass'n, 484 U.S. 383, 393 (1988) (sorry, I couldn't find a link quickly), is a widely-cited First-Amendment case, usually used for the principle that the harm resulting from a regulation may occur in the form of self-censorship rather than actual prosecution.  It is probably intended to reinforce the point that actual prosecution is not necessary in order to establish standing to challenge a law.  The difficulty comes from the fact that the 1st Amendment is often treated with more deference than the 2nd in the courts, so this citation is not necessarily dispositive.  The defense will undoubtedly cite some 2nd Amendment cases in response.

This entry was published Sun Jul 02 15:39:04 CDT 2006 by TriggerFinger and last updated 2006-07-02 15:39:04.0. [Tweet]

comments powered by Disqus

Subscribe to Atom Feed

I am not a lawyer, and nothing on this site should be taken as legal advice.

This site is run on custom blog software and is being actively developed. Please be forgiving of errors.


This website is an Amazon affiliate and will receive financial compensation for products purchased from Amazon through links on this site.