Standing Precedents

Now we begin to get to the meat of the issue, discussing the useful precedents to this case, including (not surprisingly) Seegars and its cited prcedents.
After the proceedings before the district judge, we decided Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005). We held that plaintiffs bringing a pre-enforcement challenge to the District's gun laws had not yet suffered an injury-in-fact and, therefore, they lacked constitutional standing. Although plaintiffs expressed an intention to violate the District's gun control laws, prosecution was not imminent. We thought ourselves bound by our prior decision in Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), to conclude that the District's general threat to prosecute violations of its gun laws did not constitute an Article III injury. Navegar involved a preenforcement challenge by a gun manufacturer to certain provisions of the Violent Crime Control and Law Enforcement Act of 1994, which prohibited the manufacture (and possession) of semiautomatic assault weapons. We held then that the manufacturers whose products the statute listed eo nomine had standing to challenge the law in question because the effect of the statute was to single out individual firearms purveyors for prosecution. Id. at 999. However, manufacturers whose products were described solely by their characteristics had no pre-enforcement standing because the threat of prosecution was shared among the (presumably) many gun manufacturers whose products fit the statutory description, and, moreover, it was not clear how these descriptive portions of the statute would be enforced. Id. at 1001.
This is a very clear description of a case that was remarkably less clear in its actual ruling.  Silberman manages this by leaving out most of the confusing details.  It's clear that someone specifically named by a criminal law has standing to sue for a violation of his constitutional rights; it's less obvious how Navegar could hold that manufacturers who were visited and threatened with prosecution by the FBI following the passage of the assault weapons ban would not have standing.

I get the impression (and I could be wrong) that Silberman doesn't particularly like Navegar as a decision and would like to overturn it, but he won't be able to do that unless the matter comes before the DC Court of Appeals sitting en banc.
In Navegar, then, the "factor . . . most significant in our analysis" was "the statute's own identification of particular products manufactured only by appellants" because that indicated a "special priority" for preventing specified parties from engaging in a particular type of conduct. Id. Extending Navegar's logic to Seegars, we said the Seegars plaintiffs were required to show that the District had singled them out for prosecution, as had been the case with at least one of the manufacturer plaintiffs in Navegar. Since the Seegars plaintiffs could show nothing more than a general threat of prosecution by the District, we held their feared injury insufficiently imminent to support Article III standing. 396 F.3d at 1255-56.
Remember, the Seegars plaintiffs hadn't applied for a license or otherwise done anything.  They just wanted to, hypothetically. 
We recognized in Seegars that our analysis in Navegar was in tension with the Supreme Court's treatment of a preenforcement challenge to a criminal statute that allegedly threatened constitutional rights. See id. (citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979)). In United Farm Workers, the Supreme Court addressed the subject of preenforcement challenges in general terms:

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."

442 U.S. at 298 (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). The unqualified language of United Farm Workers would seem to encompass the claims raised by the Seegars plaintiffs, as well as the appellants here. Appellants' assertions of Article III standing also find support in the Supreme Court's decision in Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988), which allowed a pre-enforcement challenge to a Virginia statute criminalizing the display of certain types of sexually explicit material for commercial purposes. In that case, the Court held it sufficient for plaintiffs to allege "an actual and well-founded fear that the law will be enforced against them," id. at 393, without any additional requirement that the challenged statute single out particular plaintiffs by name. (Footnote 1) In both United Farm Workers and American Booksellers, the Supreme Court took a far more relaxed stance on preenforcement challenges than Navegar and Seegars permit.  Nevertheless, unless and until this court en banc overrules these recent precedents, we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar.
Or, in other words, he doesn't like the decision in Navegar, and may not like the decision in Seegars, but when deciding Parker at this level he is bound to follow both.  That's why it's so important to distinguish the Parker case from Seegars, especially when the case goes before the DC Court of Appeals en banc... since that same court decided Seegars recently, and won't be eager to overturn it.

This entry was published Sun Mar 11 10:57:42 CDT 2007 by TriggerFinger and last updated 2007-03-11 10:57:42.0. [Tweet]

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