Seegars

Of Arms And The Law points to an article on Sandra Seegars entitled Pleading self-defense.  Yes, it's that Seegars.

Reliable sources inform me that the Supreme Court denied the certiorari petition from the Seegars case, even though the docket hasn't been updated yet.  In plain language, they won't be hearing that case.   The usual weasel words: Denial of a certiorari petition should in no way be construed as an opinion on the merits of the case.  But I think we can all read between the lines here: the present court is not ready to hear a 2nd Amendment case.

Alito may change that.  Then again, he may not.  The way I see it, the Court has one more chance to get it right on this one: Parker.  For all I know, they may be waiting for that case with baited breath. 

UPDATE: The decision is in today's order list.

UPDATE: Suitably chastized for not linking to background on my own stuff.  Here's the skinny on Seegars.

UPDATE: SCOTUSBLOG has a little more information.

Among the cases denied review were Seegars v. Gonzales (05-365), an attempt by five Washington, D.C., residents seeking to revive their challenge to D.C.'s strong anti-gun law... Chief Justice Roberts was recused in the D.C. case because he was on the D.C. Circuit when it denied en banc review of the denial of standing to the gun fanciers.

I had forgotten about the Roberts recusal.  Remember, Roberts is on the court replacing Rehnquist, most likely a solid pro-gun vote.  If he had to recuse himself from Seegars, the results could have been a disaster for gun rights.  The vote-counting is down to the wire as it is, without any recusal issues from our side.  Note that Alito will not have recusal issues for Parker, but Roberts may, since both cases were before the DC Circuit around the same time.  I don't recall Roberts voting on anything related to Parker, or serving on any of its panels, but memory is a whatchamacallit. 

(The Seegars plaintiffs requested an en banc hearing to appeal an unfavorable decision by the panel, which put the question of whether or not to hear the case before the whole circuit, including Roberts; the Parker case has not yet done that).

UPDATE: The docket has been updated now.

There are some new events in Seegars v Gonzalez since I was last sufficiently unbusy to check.  The last we heard, the deadline to respond to the Seegars petition for certiorari from the Supreme Court had been set for November 21st, 2005.  Checking the Supreme Court docket today, I discovered that an order to extend the deadline again (this time to December 21st of 2005) had been issued on November 18th.  So, that extended the time we had to wait by about a month.  The holdup appears to have been the Department of Justice's representation, as they filed their response on December 21st and the Mayor of Washington, DC filed a waiver of right to respond. 

Now, the deadline is past and all responses are in.  A conference has been scheduled to hear the petition for certiorari (NOT the case itself, just deciding whether or not to hear the case) on January 20th.  That bit of news was just issed on Jan 4th, so I'm not that far behind on my coverage.

We're not likely to see any more events until that conference, but things will heat up shortly thereafter.

According to the Supreme Court docket, the deadline to respond to the Seegars petition for certiorari has been extended through November 21st, 2005.  Doesn't mean much of anything, I don't think, except that we'll have to wait that much longer.

The Seegars plaintiffs have petitioned the Supreme Court for a hearing.  The Supreme Court has not yet responded, but the response is due October 21st.  Here's the docket.  I'll be keeping a close eye on this.

Roberts may or may not be able to participate in this case.  He was on the DC Appeals Court when it was heard by a panel of judges there, and voted in favor of rehearing the case en banc.  That vote failed, but the fact that Roberts voted in the case might be enough.  He has already recused himself from participating in the DC v Beretta case, which was heard en banc; however, the decision to deny cert to that case came down on his first day with the Court and he might well have decided he was not familiar enough to participate.

If Miers is confirmed in time, she could presumably participate in the case itself.  However, participating in the decision for or against cert is going to depend on the timing of the confirmation process and probably will not be fast enough.

A kind source has provided me with the Petition for Rehearing and Petition for Rehearing En Banc in the Seegars v Ashcroft case, coming this time from Stephen Halbrook's website.  It is worth noting that, because Ashcroft was named in his official capacity, with the change of the Attorney General the common name of the case changes to Seegars v Gonzalez.  This petition asks the entire (active) DC Circuit to hear an appeal of the case following the unfavorable opinion from the three-judge panel. 

In some ways, this petition for rehearing was inevitable.  Seegars v Ashcroft is a case that was intended to strike down the District of Columbia's ban on self-defense firearms.  In filing it at all, the NRA (which is funding the legal work) has committed themselves to creating a potentially-negative precedent.  That precedent, which was inevitable in the lower courts, becomes more binding each time it is upheld on appeal.  So the question is, how much damage is the NRA willing to do to 2nd Amendment jurisprudence in their attempt to invalidate DC's firearms ban?

Absent Parker v DC, a very similar case also in appeals, the answer would have been "none".  Seegars v Ashcroft was a case that exists primarily to give a nervous appellate court room to strike down the DC ban without relying on the 2nd Amendment.  If the ban is struck down in that manner, the issue in Parker v DC becomes moot. 

The NRA is justifiably afraid that Parker v DC will reach the Supreme Court and receive a ruling that explicitly denies a modern right for the general public to possess firearms.   Such a ruling would be contrary to all serious scholarship on the Amendment, but perfectly in keeping with a Supreme Court that rules, 5-4, to consider "international law" and foreign opinion as the basis for invalidating the death penalty for juvenile offenders tried as adults.  Parker is a gamble, attempting to force the 2nd Amendment issue before the Supreme Court with the best possible facts and obtain a precedent that can be used to overturn established precedents in lower courts.  The stakes are high for both sides.

If my speculation concerning the NRA's legal strategy is accurate, they will appeal their case as high as they need to in order to prevent Parker v DC from reaching the Supreme Court first.  They want whatever case comes before the Supreme Court to offer ample cover for the Justices to avoid ruling on 2nd Amendment grounds whichever way the ruling goes.  Parker does not offer that cover; Seegars does. 

So that's how the NRA ends up petitioning a case that invokes everything they could come up with, up to and including the kitchen sink, before the DC Circuit.  

With all that said... this petition makes a strong case for granting the Seegars plaintiffs standing to challenge the law.  While I think the inclusion of many of the non-2nd-Amendment claims are messy and spurious, I understand why they are there, and they don't have much influence on the question of standing.  There's no question in my mind that the Seegars plaintiffs deserve standing as a matter of law.  As a matter of politics, of course, it may not turn out that way.  I've called out the main arguments briefly below.

1. Navegar, which is cited as controlling precedent by the appellate panel in Seegars, is clearly out of step with the standards of review for First Amendment cases and imposes a substantial burden upon plaintiffs seeking to demonstrate standing. 
   
2. Requiring a credible threat of prosecution limits the challenges to those citizens who are criminals, or "who recklessly live on the murky edge", precluding exactly the challenges from law-abiding citizens that are most likely to invalidate a law and are also the most important.
   
3. Navegar could have been distinguished from Seegars, because there is no question of vagueness; plaintiffs' desired actions are accepted as being in violation of the law. 
   
4. Navegar conflicts with existing standing precedent for corporations bringing pre-enforcement challenges to import/export regulations.

All of these are persuasive arguments on the merits of the panel ruling.  Unfortunately they do not address, and cannot address, the real reasons for the ruling: no judge wants to rule against the 2nd Amendment openly, yet few judges desire to open the can of worms that is the open unConstitutionality of gun control law.

Unlike the District court, which reached the merits of the case and produced a dramatically unfavorable 2nd-Amendment ruling, the appellate panel has produced a politically neutral ruling that upholds the gun control laws in the District of Columbia on technical grounds.  I suspect that the courts will prefer to leave the matter there if at all possible, and that the en banc appeal will be denied.  Of course, the DC circuit may wish to put its stamp on a prominent case likely headed for Supreme Court review, and Halbrook makes strong arguments, so that result is by no means certain.  If the petition is denied, it will most likely be a political decision rather than a legal one.

The DC Court of Appeals has issued an opinion in the Seegars v Ashcroft case challenging the DC handgun ban. I am providing in this post a link to commentary in the blogosphere concerning the decision. To have your post listed, please email me (matthew@infodancer.org) or simply trackback to this post.

• Clayton Cramer weighs in
• Stop the bleating!
• Freedomsight dittoblogs
• Volokh says a few words
• Says Uncle isn't ready to say uncle
• The Countertop Chronicles can't be topped
• Nicki is in the Liberty Zone

The following is Judge Sentelle's dissent from the ruling in Seegars v Ashcroft:

While I commend the balanced tone and thoroughness of the majority opinion, I find that after examining the authorities discussed therein, I reach a different conclusion. As the court relates, plaintiffs seek to challenge the provisions of the District of Columbia s Criminal Code limiting the possession of pistols, as violative of their Second Amendment rights to keep and bear arms. The District Court held that they had no standing. Today this court has affirmed.

I would find standing based on the authority of cases cited by the majority. The record offers essentially undisputed evidence of the appellants intent to engage in gun-related conduct prohibited by the challenged Code provisions, but for the existence of those provisions. Appellants adequately allege and argue that this conduct is protected by the Second Amendment to the United States Constitution.

The Supreme Court has said, as the majority quotes:

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.

Babbitt v. United Farm Workers Nat l Union, 442 U.S. 289, 298 (1979) (citing Doe v. Bolton, 410 U.S. 179, 188 (1973)) (internal quotation marks omitted). The majority s further analysis of United Farm Workers is directly on point:

In United Farm Workers, a union challenged provisions of a state statute that made it an unfair labor practice, punishable with criminal penalties, to encourage consumer boycotts of agricultural products by the use of dishonest, untruthful and deceptive publicity. 442 U.S.at 301. The state argued that the criminal penalty provision had not yet been applied and might never be applied to unfair labor practices. Id. at 302. The Court found standing, saying that the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices, id., and that the union s fear of prosecution was not imaginary or wholly speculative, id. Thus United Farm Workers appeared to find a threat of prosecution credible on the basis that plaintiffs intended behavior is covered by the statute and the law is generally enforced.

Maj. Op. at 7. As appellants allege a similarly realistic fear of prosecution, I would hold United Farm Workers controlling, and conclude that appellants have standing to bring the Second Amendment challenge.

As the majority notes, a long line of cases upholds preenforcement review of First Amendment challenges to criminal statutes by plaintiffs with bases for standing no different than that asserted by appellants herein for their Second Amendment challenge. For example, in Virginia v. American Booksellers Ass n, 484 U.S. 383 (1988), plaintiffs brought a suit challenging the constitutionality of a newly enacted Virginia statute criminalizing the display for commercial purposes of visual or written material that depicts sexually explicit nudity, sexual conduct, or pseudo-masochistic abuse which is harmful to juveniles. Va. Code ? 18.2-391(a) (Supp. 1987). The Commonwealth of Virginia argued that plaintiffs lacked standing, because they had not yet been prosecuted under the Act. The Supreme Court, in discussing the standing question, declared itself not troubled by the pre-enforcement nature of this suit. American Booksellers, 484 U.S. at 393. Because the state ha[d] not suggested that the . . . law will not be enforced, and the Court saw no reason to assume that it would not be, theCourt found standing, conclud[ing] that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them. Id. I see no distinction between that case and this.

As the Supreme Court further noted in American Booksellers, the danger of the statute before it could be realized even without an actual prosecution. Id. Needless to say, the harm lay in self-censorship that is, the curtailing of an otherwise constitutional activity because of an allegedly unconstitutional criminal statute. The only difference between that harm and the harm alleged in this case is that there it was to First Amendment interests, here to Second. I know of no hierarchy of Bill of Rights protections that dictates different standing analysis.

I acknowledge, as the majority notes, that a case from this circuit, Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), is in tension with cases upholding pre-enforcement review of First Amendment challenges to criminal statutes. Maj. Op. at 10. In Navegar, plaintiff-appellants sought declaratory judgment striking down as unconstitutional provisions of the Violent Crime Control and Law Enforcement Act of 1994, which outlawed firearm products manufactured by appellants, some by name, and others by description. While we found standing to challenge the regulation of the named products, we held there was no standing as to the products outlawed only by description. See Navegar, 103 F.3d at 1001. The Navegar court found the threat of prosecution under the provisions outlawing products by description insufficiently imminent to support standing on the record before it. Those latter provisions outlawed firearms in language so general that the court found it impossible to foretell precisely how these provisions may be applied. Id. Further, the Navegar court found insufficient evidence of the government's intent to enforce the generic portions of the Act against the specific parties before it. Id.

While I acknowledge that the majority is correct that Navegar can be read as controlling the case before us and barring standing, I think it is distinguishable. The allegedly constitutionally protected conduct in the record before us is clearly defined and clearly unlawful under a statute that the District apparently enforces regularly, and under which there is certainly no doubt that plaintiffs reasonably apprehend enforcement. I would therefore find the line of cases represented by American Booksellers, rather than Navegar, controlling.

For the reasons set forth above, I respectfully dissent.

The DC Court of Appeals has issued an opinion in the controversial 2nd Amendment case Seegars v Ashcroft. As I had expected, the ruling went against us on procedural grounds; the court refused to strike down the laws in question because the plaintiffs had not been prosecuted under those laws -- they had filed suit prior to any enforcement action on the basis of their declared intent.

The best way to understand this is to think of the judges splitting legal hairs in an attempt to avoid actually ruling on the 2nd Amendment issue that is the core of the case. Rather than rule on the merits, the judges ruled that none of the plaintiffs have "standing" to bring suit. This is sort of like saying that you can't sue someone for threatening to hit anyone who bothers him; you can only sue them if they actually hit you, or maybe if they wave their fist in your face specifically. It makes sense for individuals... but it makes challenging a criminal statute risky when the person threatening you is the government.

This decision is a mixed blessing for gun owners. It does not support a 2nd Amendment right, but it also does not deny one, and it explicitly reverses the lower court's decision for the one plaintiff in Seegars who could claim standing. As such, the lower court's decision on the merits of the 2nd Amendment (a very unfavorable decision) is expunged, and we're back to asking how, exactly, a challenge to the law can be brought. Most gun owners aren't willing to deliberately put themselves at risk of a felony conviction to challenge this law; and that appears to be exactly what the Appellate Court here is saying we need to do.

Disappointingly, the panel appears to be applying a different standard to the 2nd Amendment than it does to the 1st:

For preenforcement challenges to a criminal statute not burdening expressive rights and not in the form of appeal from an agency decision, our circuit s single post-United Farm Workers case appears to demand more than a credible statement by the plaintiff of intent to commit violative acts and a conventional background expectation that the government will enforce the law.

As you can see, things would be somehow different if the burden was being placed on expressive rights rather than gun ownership rights. This may be reflective of the state of 2nd Amendment case law more than the individual judges in this case, because the 1st Amendment standards are well-established while the 2nd Amendment enjoys virtually no protection from the courts at present. While the decision does seem to follow precedent (particularly Navegar), that does not make it correct. It is in my opinion clearly erroneous on this point.

In fact, the decision makes comments about Navegar that I read as hinting at the same view. Navegar is binding precedent for this court, and so the court cannot simply ignore it; the decision notes the "tension" between the standard in Navegar and the standard applied in other situations. Or, in other words, they don't like it either, but they feel they must follow the Navegar precedent.

There is a dissent by Judge Sentelle which makes many of these points. I will reproduce it in another post.

UPDATE: I am tracking the blogosphere response to the ruling.

A while ago, I made an effort to obtain the court documents in Seegars v Ashcroft, most of which were not generally available. In particular, these four documents had to be purchased:

• The Justice Department brief
• The District of Columbia brief
• The Amicus Brief of the Brady Campaign
• The Amicus Brief from the States

The total bill came to $398.81. The tip jar on the right collected $30. While I greatly appreciate those who chipped in at the time, there's a big difference in those numbers. So, if you liked that series and want to see more of that sort of reporting, hit the tip jar. My time is free; access to the documents isn't. It would be nice if I could tip the person who got them for me, and who was kind enough to provide this first-person account of the court hearing too.

If you've ever wondered why lawyers (disclaimer -- I am not a lawyer) charge insane fees, this is one reason.

A few months ago I posted commentary on the petition for rehearing in Seegars v Gonzalez.  That petition followed the decision by the DC Court of Appeals.  If you're having trouble keeping track, well, so am I... at any rate, the way we left the case, the ruling from the three-judge panel was unfavorable, but still left us better off than the ruling pre-appeal.  (It's better to lose on a technicality that lets the court dodge the issue than to lose on the merits and set even more unfavorable precedent for the 2nd Amendment).  The petition requests a hearing en banc (that is, before all the judges on the appellate court), and of course the government has the opportunity to respond and argue against such a hearing; that response is what I will be commenting on.

The government's arguments are, in brief:

1. A pre-enforcement challenge to a criminal statute can only have standing for "freedom of expression" cases, unless failure to grant an injunction would result in irrepairable damages.
2. An administrative procedure for review is available; plaintiffs did not follow the established procedure; therefore, plaintiffs should not have standing.
3. "There's no reason to think that removing a trigger lock in the course of self defense in one's home would be a violation of law".
4. This case is too messy to make good precedent.

Well, sort of.  Concern for the neatness of precedent should not stand in the way of justice, but a judge doesn't have to explain himself or his reasons for denying or voting against an appeal.  Furthermore, there are a lot of cases where minor errors might arguably have been made, but where those errors did not unjustly alter the