Thursday, July 31, 2014

Analysis of Stay in Palmer v. D.C.

The stay of the permanent injunction ordered by Judge Frederic J. Scullin in the Palmer v. D.C. case has raised considerable ire among those who believe that the right to keep and bear arms has been denied in the District of Columbia for far too long.   Many thought that if constitutional carry were allowed for a period of time in the District, crime rates would have dropped.  Alan Gura predicted such a drop.    Many thought a crime rate drop would make it hard to justify a stay.   Some accused Alan Gura of being an accomplice of the establishment in limiting the effect of the ruling.

Others are convinced that Alan Gura has done a masterful job of managing the inevitable issuance of a stay to forward the ends of restoring second amendment rights.  From commenter Dirk Diggler at

there are certain rules that apply in this situation. A stay is reasonable to allow DC to craft legislation that the judge said they had to have. An open-ended stay is not. 90 days for a municipality to craft rules is reasonable. just remember – DC is a federal enclave. The House is working to de-fund alot of DC’s anti-gun agenda/budget exactly for crap like this. I am hopeful given the $$$ hanging over their head like the sword of damacles . . . Congress will be on a 5 week recess, but the DC Council better not screw the pooch on this one or they will lose more $$$ that they don’t have.

The judge is not stupid. He is following the law to prevent chaos. Illinois got 210 days to craft legislation. Remember that it has to be voted upon several times. go to different committees. allow for public comment. get voted on again, sveral times. Legislation is like making sausage. You just want the outcome and not have to watch the process.

anyhow – DC knows its days are numbered. They have the judge telling them which cases (Peruta) he thought were reasonable. They know they cannot ban out of staters as well as have a blanket prohibition on carry. once the legislation is crafted, it will be public before it gets voted on. that’s when you contact your federal rep/senator and raise hell since Congress oversees DC and its budget. make it difficult for them to try the same sneaky crap they tried in Chiraq. NRA and SAF can organize a campaign with the local chamber and tourist board. think of how many visitors DC can attract now or better yet, lose when it is highlighted how out of touch the city politicians are with the rest of the country. No – this stay is ok. Glad it is only 90 days and not 180. they will go by quickly.
Dirk is an attorney.  Others made clear that if Judge Scullin had not granted a stay, it was likely that a worse, longer stay would have been granted by the appeals court.  From Thundar at

The way the 90 day order is written is actually a very good order for gun owners.

Those that would suppress our civil rights were always going to get some sort of stay either from Scullin or from the Circuit Court. 90 days (instead of 180 days) and only for writing constitutional laws is a good thing. Not giving DC grounds to appeal the stay at this time is another good thing.

Remember this order is not a general stay, but a stay so that the district may draft constitutional law if they so choose. The district has 45 days to appeal the ruling. If DC appeals the ruling, the stay goes away. So the district has until September 9 to appeal the ruling. If they do appeal, the DC Council will not be in session until 15 September. So it would appear that in order to appeal, the district would have another period under which constitutional carry would apply.

Gura is smart. He is playing to win. Appearing reasonable and not backing the decider into a corner is good when dealing with a single district court judge. It also sets a tone for the length of stays in the future - 90 days instead of 180 days.

Here is a link to the pdf file of court ordered Stay in Palmer v. D.C.  I have transcribed it below for those who do not wish to open the pdf.   Any errors in the copy below are mine.   The formatting is a little different from the original, and I have cut out the addressing.   I believe it makes the order easier to read.  I have added links to the D.C. code mentioned.


In a Memorandum-Decision and Order dated July 24, 2014, this Court concluded that the District of Columbia's total ban on the carrying of handguns in public was unconstitutional; and, therefore, the Court permanently enjoined Defendants from enforcing D.C. Code §§ 7-2502(a)(4)  and 22-4504(a).

On July 28, 2014, Defendants filed a partially unopposed motion to stay pending appeal  or, in the alternative, for 180 days and for immediate administrative stay. See Dkt. No. 52 at 1.  In support of this motion, Defendants' counsel advised the Court that he had conferred with  Plaintiffs' counsel, "who indicated that [P]laintiffs do not oppose a 90-day stay starting  immediately 'pending the city council enacting remedial legislation that complies with  constitutional standards.'" See id. at 1-2.

Based on the parties' agreement that an immediate 90-day stay is appropriate to provide  the city council with an opportunity to enact appropriate legislation consistent with the Court's  ruling,1 the Court hereby

ORDERS that Defendants' motion for a stay is GRANTED to the extent that the Court's  July 24, 2014 Order is stayed nunc pro tunc for 90 days, i.e., until October 22, 2014; and the  Court further

ORDERS that Plaintiffs shall file their opposition to Defendants' motion for a stay  pending appeal on or before August 4, 2014; and the Court further

ORDERS that Defendants may file a reply in further support of their motion for a stay  pending appeal on or before August 11, 2014. 2


Dated: July 29, 2014
Syracuse, New York

Note 1 The Court notes that it sees no need to clarify its decision. The only issue before the  Court was whether the District of Columbia's complete ban on the carrying of handguns in  public was unconstitutional. Thus, the Court's injunction clearly applied only to handguns and  not any other type of deadly dangerous weapon.

Note 2 Based on the papers that Defendants have filed in support of their motion for a stay  pending appeal, the Court is not convinced that Defendants will be able to demonstrate a  likelihood of success on the merits to warrant such a stay. Nonetheless, the Court will provide  the parties with an opportunity to present their arguments in full before ruling on this part of  Defendants' motion.
This looks more and more like a smart strategy on the part of Alan Gura.  Notice that both parties are required to present argument as to why or why not a stay should be granted pending appeal.   The court explicitly says that court is "not convinced that Defendants will be able to demonstrate a  likelihood of success on the merits to warrant such a stay".     To me, that makes it likely that if the District decides to appeal, the stay will be lifted, just as Thundar noted above.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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