TriggerFinger


Parker v DC advances


Following the decision in Seegars v Ashcroft, the Parker v DC case becomes active again. Both sides in the case will file motions arguing their view of where the case should go following the Seegars decision. The plaintiff's motion is now available.

Unsurprisingly, their motion argues that their plaintiffs have standing and that the case should proceed to trial on the merits.  Accordingly, they move that a scheduling order for briefing and oral arguments should be issued.  They have what looks to me like a surprisingly strong case in comparison to the Seegars plaintiffs, at least on the standing issue, so they just might win this motion.  However, the government lawyers haven't filed their side yet.

The basic argument is straightforward: the Parker appellants, unlike the Seegars
appellants, have been personally threatened with prosecution. This was established through testimony in the District Court, and according to the rationale of Seegars, it is exactly what is required to have standing on the issue.  As you may recall, the test in the Seegars decision rested on Navegar.  That case determined that, in order for standing to exist, plaintiffs filing a pre-enforcement action must show a particularized threat of prosecution.  A general threat from enforcement of the law is insufficient. 

Plaintiffs in Navegar were found to have standing in the matter of those firearms (manufactured by a subsidiary) specifically named in the Assault Weapons Ban, but they did not have standing to challenge the general prohibitions of the Assault Weapons Ban.  The Seegars case resembles the latter; plaintiffs in that case had not attempted to register a handgun or been threatened with prosecution for having a firearm in usable condition (without a trigger lock).  Thus, plaintiffs in Seegars had no standing.

Plaintiffs in Parker v DC, on the other hand, were able to establish at trial that they were threatened with prosecution.  Here's how they put it:

The evidentiary record in this case differs significantly from that in Seegars. For purposes of this motion, the key difference is that unlike in Seegars, plaintiff-appellants in the instant matter ( Parker appellants ) have been repeatedly subjected to specific threats of prosecution. Defendants-appellees made it very clear, in response to direct questioning by the District Court, that the Parker appellants, specifically, would be prosecuted if they acted on their sincere and unquestioned desire to possess pistols and/or functional long guns in the District of Columbia. Moreover, defendants-appellees gave a newspaper interview where, in discussing the Parker appellants, they labeled the Parker appellants an undesirable public hazard and vowed that the challenged laws would be enforced.


This is a substantial improvement over the Seegars case, where the plaintiffs
had only the generalized threat of prosecution to go on.  By my reading, it meets the Navegar test.  However, it's not a given, because the plaintiffs in Parker have still not actually violated the law.  We are still in the realm of a hypothetical (albeit, specific and threatened) prosecution for a hypothetical action.

Of course, the plaintiffs in Navegar had not violated the Assault Weapons Ban for the portion of their case where they won standing, either.  They had a specific, credible fear of prosecution because (at least one of) their firearm designs was specifically named in the bill, and they had been visited more than once by BATFE agents to make sure they "were informed of the law" and stopped making that model. 

The other, relatively minor argument being made is that the lower court in Parker rejected the defendent's standing arguments and reached the merits of the case.  The appeals court is not bound by that ruling, especially if the ruling in Seegars is found to conflict.   But it is nonetheless a good reminder to offer, because the lower court ruling supports the plaintiff's case on the standing issue even if not on the final outcome. 

One of the interesting aspects of this case is the way that the  press attention given to this case is playing in our favor -- at least at this stage.  If you've ever wondered why lawyers often instruct their clients not to talk to the press -- this is why.  What you say can come back to bite you
later on, often with an issue that might not even have been on your radar screen at the time.

In this case, it's the defendent's comments in a Washington Times article about the case, shortly after it was filed.  (I haven't been able to find a link to the specific article).  Here's how the issue is characterized in the motion:

The first threat to prosecute the Parker appellants for violation of the District of Columbia's gun bans appeared on the front page of the
Washington Times two days after the filing of this lawsuit. Defendants-appellees, communicating both through official spokesperson Tony Bullock and Deputy Mayor for Public Safety and Justice Margret Nedelkoff Kellems, reiterated the defendants-appellees zealous commitment to enforcing the  laws, as well as a belief that the Parker plaintiffs would pose a danger to themselves and to others, including children,  "which is not what we want."


It plays well to the press, but it makes your legal arguments weaker.  You can bet the lawyers on the other side are kicking themselves over this one.  

They will also be kicking themselves over not reading the motion for summary judgment closely, because it contains an assertion of material fact: "Defendents actively enforce [the handgun ban]".  The government lawyers neglected to challenge that assertion, which means the judge can assume that it is accurate in the same manner as if the defendents had admitted they do, in fact, enforce the laws. Of course, an argument that the handgun ban is not aggressively enforced in DC probably won't fly, at least not unless the judge is napping.  The police may not be doing house-to-house searches, but they are definitely enforcing the law. 

Moreover, while the defendants-appellees never even raised the issue of standing at any point in the proceeding below (the District Court raised the issue sua sponte during the summary judgment hearing), they confirmed, in response to a direct question by the District Court, that these
specific plaintiffs-appellants would, in fact, be fully prosecuted were they to follow through on their undisputed desire to  acquire prohibited firearms.

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: Why is it abstract? 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. . .


In open court, the lawyers for DC are admitting they would prosecute.  That's about as good as it gets short of actually violating the law and having a real prosecution.  The idea behind standing as a legal concept is to allow a certain amount of discretion on the part of the prosecution.  If a law might violate a
Constitutional right if applied to its fullest extent, but can be applied to many cases in a Constitutional manner, then in order to overturn it, you need to find a prosecution which actually uses  the full extent of the law sufficient to violate the right. 

That whole line of reasoning is unnecessary now, since the District of Columbia has admitted they would prosecute this case.  (Interestingly, in Seegars the city attorneys were much less aggressive about whether they would prosecute, precisely to buttress the  standing issue.  In Parker, it is probably too late for that.)

Another interesting point of argument is that the defendents in the lower court did not raise standing as an issue.  The issue was raised sua sponte (which means, basically, without prompting) by the judge in the case during oral argument.   That resulted in the exchange captured above.  No one was trying to raise standing as an issue in Parker because there was clear intent to prosecute, and that is sufficient to confer standing. 

Overall, this is a very strong motion on the standing issue. Because of the statements by defendents to the press and to the lower court, it is unlikely that the present court will decide that the plaintiffs lack standing.  It is still possible, but unlikely in my opinion.  Unfortunately, winning standing does not mean winning the case; after all, the lower court allowed standing and
proceded to rule against us on the merits. 

We should be seeing a motion from the District of Columbia with their proposed
next steps soon.  We will know more about the strategy they intend to take once we see that motion.  If I had to guess, I suspect they will either ask for the case to be dismissed as lacking standing following Seegars), or ask for the opportunity to explicitly argue standing rather than rely on the prior record. 

I think they'll ask for those things because it doesn't hurt them to ask, but I don't think they can win.  A lot depends on how much deference the judge in this case gives to the outcome in Seegars, though.  And it is a weakness, albeit a minor one, that the threat of prosecution occurred as a reaction to the lawsuit rather than prior to it; a judge eager to rule against us could use that as an excuse. 

UPDATE: FreedomSight spotted it first, and Volokh has a brief comment from the lead attorney.

This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2014-05-31 01:38:24.0. [Tweet]

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