Sunday, December 14, 2014

Alan Gura's reply to Palmer v. D.C. Contempt Defense

On Thursday, 11 December, Alan Gura replied to the D.C. government arguments that they should not be held in contempt in the case of Palmer v. D.C.   The reply is 24 pages of double spaced legal argument.  It is well organized and clearly argued.  As GTOGUNNER noted on the
In reality, win or lose this case, surely from my POV, it won't be do to
a sucky Attorney.
To give you the flavor of Alan Gura's reply, I have quoted a small selection of his points.  Here is a link to Gura's entire reply in a pdf file .

Below, Gura explains why the D.C. government cannot simply make minor, technical changes in the law, and continue doing essentially the same thing it has for decades:

Section 22-4504(a) has not materially changed from what the Court enjoined. The Court enjoined the provision not because the city cannot maintain a licensing system—as the Complaint acknowledged, it can. The Court enjoined the provision because no adequate licensing system was in place. The City cannot respond by enacting a licensing system that does not treat the carrying of handguns as a right, that facially and specifically precludes the general community from applying, and thereupon claim total compliance. Why not a licensing system limited to vegans, or ambidextrous people, or requiring the payment of a billion dollar fee? All of these would be different in the sense that some people could apply and obtain licenses. But the Court must necessarily have the ability to determine whether the “new” system is materially different in satisfying the condition previously found wanting. As the Supreme Court long ago explained,
It does not lie in their mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to the program of experimentation with disobedience of the law which we [previously] condemned . . . . The instant case is an excellent illustration of how it could operate to prevent accountability for persistent contumacy. Civil contempt is avoided today by showing that the specific plan adopted by respondents was not enjoined. Hence a new decree is entered enjoining that particular plan. Thereafter the defendants work out a plan that was not specifically enjoined. Immunity is once more obtained because the new plan was not specifically enjoined. And so a whole series of wrongs is perpetrated and a decree of enforcement goes for naught.
McComb v. Jacksonville Paper Co., 336 U.S. 187, 192-93 (1949) (citation omitted).
Here is Gura's argument that exercise of a right cannot itself be grounds for deprivation of the right:

Finally, Defendants’ argument regarding the constitutionality of their “new” old licensing regime proves too much. This claim is nothing more than an assertion that carrying a handgun for self-defense, which this Court recognized as a constitutional right, is harmful to society, and therefore, the Defendants have an interest in limiting its exercise per se. No constitutional right could survive this sort of claim. The Fourth Amendment, without question, imposes severe restrictions upon the police’s ability to detect and prevent crime. Does that mean that only a select few, as opposed to the community at large, might have “good reason” to be secured against unreasonable searches and seizures? Were Defendants correct in their views regarding the public safety implications of handgun carrying, that would prove, at most, that the Framers made a terrible decision in ratifying the Second Amendment. What Defendants fail to do is show how their laws target the misuse of guns in a way that respects the fundamental right at issue. A law that deliberately targets the right’s exercise cannot be constitutional, under intermediate or any other form of scrutiny, because the government cannot have an interest in eliminating a fundamental right, and targeting a right cannot be proper tailoring.
Gura shows that the D.C. licensing scheme is illusory, and not adequate for the exercise of a constitutional right:

This Court, like Plaintiffs, was likely aware of Defendants’ past conduct with respect to illusory licensing schemes. See Complaint, ¶ 19; Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994). This Court’s language requiring an adequate licensing system was not accidental. Plaintiffs requested that form of relief because they are not completely naive. As the Court’s opinion describes, the right can and has been destroyed by improper licensing schemes. This city maintained a completely illusory licensing scheme for decades. Defendants’ response to this decision was predictable as far back as August, 2009, and they have met that expectation.

He takes apart the contention of the D.C. government that exercise of the right is itself harmful, by empirical measures:

Plaintiffs do, however, take this opportunity to reply to Defendants’ new arguments, rooted in alleged empiricism. Defendants assert that they may ration the right to bear arms to a select few; they need not deign to allow the “right” to all who may have it, but only to those whom Defendants believe have an exceptional case for enjoying their “right.” And it can do this, allegedly, because the right itself is harmful. In other words, where a court, applying means-ends scrutiny, would expect to see the governmental interest being claimed as public safety, with the regulation carefully tailored to avoid trenching on the right, Defendants instead offer that the governmental interest is the suppression of the right itself, and they measure success by the degree to which they stifle, not preserve, the right’s exercise.

He makes a good case that D.C's is attempting to undo the settled Heller and McDonald decisions, based on the "danger" argument:
Apart from their claim that the right itself is dangerous, Defendants do not attempt to show that their “good reason” requirements target any specifically dangerous people or behavior. And since Defendants admit that they are targeting the right itself, it is difficult to see how they might prove that the measure is properly tailored under any level of scrutiny. In sum, Defendants are merely trying to do again what they failed to do in Heller: “prove” that a fundamental Second Amendment right harms society, and thereby justify its violation. Even were Defendants able to prove their point, it would not legally justify their conduct.
It is difficult to estimate how long it will take for Judge Scullin to rule on the question of contempt.   Nonetheless, krucam on the takes a stab at it.  From krucam:
I would anticipate a few weeks, perhaps into early Jan for a ruling on the 2 Motions still outstanding in the District Court (Permanent Injunction, Contempt). The Holiday will have an impact as well.

The Circuit Court has certainly gotten the message of there being unfinished business at District, and this surely hasn't escaped Judge Scullin.
 ©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Anonymous said...

Great article, Dean, thank you.
Peruta is so complicated, and unusual, in just the twists and turns of en banc, sua sponte, and various internal court rules that its easy to lose sighg of the forest for the trees.

There are a couple of other things that made it unique, including the District Judge Irma Gonzalez, referencing the UUC in effect at time, and CA Legislature passing law to deny it, that contributed to later arguments,

but more important, to see the case as one milestone, and a very significant one, given the strategic and patient strategy by Michel, Gura, and help in orals by Clement, to create the very strong decision...including scholarship by Volokh and others...

within the context of the 30 year CCW movement, that I know you have been involved with, and now doing such a great job explaining to the noobs of the POTG, like me.

Here is something I found at Volokh that you might be interested in. They probably should invite you in as guest speaker...! But maybe you know other gun writers who would be interested.

Backwoods Engineer said...

Great summary and excerpting, Dean. Glad Gura is on the case; even this ol' backwoods engineer can see that his logic is impeccable. Hope he beats DC into submission.