Threats of Prosecution

B. Defendants Have Specifically And Personally Threatened Plaintiffs With Prosecution Should They Act On Their Sincere Intent To Engage In Proscribed Conduct; Accordingly, Plaintiffs Have Standing To Pursue Their Second Amendment Claims.

When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

Seegars, 396 F.3d at 1251 (quoting Babbitt v. United Farm Workers Nat?l Union, 442 U.S. 289, 298 (1979)) (other citations omitted).

In Seegars, this Court accepted that ?the conduct that plaintiffs would engage in is at least arguably affected with a constitutional interest,? Seegars, 396 F.3d at 1254, and accepted the ?assurance of [plaintiffs?] conditional intent to commit acts that would violate the law,? Seegars, 396 F.3d at 1255, but nonetheless found plaintiffs lacked standing because they ?allege[d] no prior threats against them or any characteristics indicating an especially high probability of enforcement against them.? Id.

Seegars acknowledged that assessing the credibility of a prosecutorial threat is no simple matter. In requiring plaintiffs to show more than ?a conventional background expectation that the government will enforce the law,? Seegars, 396 F.3d at 1253, this Court also made clear that actual threats against specific plaintiffs are not the minimum threshold for standing ? they are the polar extreme by which standing is obviously present.
Ironically, here the Seegars case, which lost on the standing issue, is clarifying the question of standing in a manner favorable to this case.  The decision almost begs to be distinguished in favor of the record that Parker established, since that record does include actual, specific threats of prosecution.  I'm almost tempted to suspect that the judges had Parker in mind when writing their opinion, but that's pure speculation.  It should make this particular hurdle a bit easier. 

That's still not a sure thing.
[T]he severity of the required threat is independent of the doctrinal hook.  Unfortunately the adjective ?credible? says little or nothing about the requisite level of probability of enforcement, and clarity prevails only at the poles. If the threat is imagined or wholly speculative, the dispute does not present a justiciable case or controversy. Evidence that the challenged law is rarely if ever enforced, for example, may be enough to defeat an assertion that a credible threat exists. By contrast, actual threats of arrest made against a specific plaintiff are generally enough to support standing as long as circumstances haven?t dramatically changed.

Seegars, 396 F.3d at 1252 (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974)) (other citations omitted).

The unambiguous statements in this case, in open court and to the media, concerning what Defendants would ? not might, but would ? do to these specific Plaintiffs were they to violate the challenged laws, go far beyond anything contained in the Seegars record. Defendants? threats against Plaintiffs are ?actual? and ?specific,? Seegars, 396 F.3d at 1252. One can hardly imagine a more specific threat of prosecution than the threat conveyed in a front page newspaper article quoting Defendant Mayor?s spokesperson and the Deputy Mayor ? except, perhaps, for opposing counsel?s admission, in response to the District Court?s specific query, that Plaintiffs could expect ?no? immunity from prosecution, and it is a ?fact that if, in fact, they break the law . . . we would enforce the law that they?re breaking.? JA 66-67. This threat was repeated, albeit with the mild qualifier ?normally,? on page five of Defendants? February 23, 2005 submission to this Court.

It is for future cases to clarify where, in the space Seegars left between a generalized grievance and an actual, specific threat of prosecution, standing in pre-enforcement challenges begins taking form. In this case, ?clarity prevails . . . at the pole[].? Seegars, 396 F.3d at 1252. Having been advised by Defendants of their intent to prosecute Plaintiffs, the District Court correctly concluded it had no choice but to reach the merits of the case.
That's about the story on standing.  The only real weakness in the case is the scarcity of favorable case law that directly addresses the 2nd Amendment, and Seegars partially addresses that.

All things considered, we're likely to win on the standing issue.  Seegars was a close call but the flaws that caused trouble for them aren't present in Parker.  That brings us to the merits of the case...

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This entry was published Wed Jul 12 01:25:43 CDT 2006 by TriggerFinger and last updated 2006-07-12 01:25:43.0. [Tweet]

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