Month: May 2015

This afternoon Judge Frederick Scullin denied the District of Columbia’s request for an immediate administrative stay in Wrenn et al v. District of Columbia et al.

Having reviewed the parties’ submissions and the applicable law, the Court hereby

ORDERS that Defendants’ motion for an immediate administrative stay is DENIED; and
the Court further

ORDERS that Plaintiffs shall file their papers in opposition to Defendants’ motion for a stay
pending appeal on or before June 22, 2015; and the Court further

ORDERS that Defendants shall file any papers in further support of their motion for a stay
pending appeal on or before June 26, 2015; and the Court further

ORDERS that counsel shall appear for oral argument in support of, and in opposition to,
Defendants’ motion for a stay pending appeal on July 7, 2015 at 11:00 a.m.

IT IS SO ORDERED.

The Second Amendment Foundation is rightly taking this as a win for them. While they didn’t get the contempt citation that they sought, they were successful in opposition to DC’s request for an immediate administrative stay. DC, as Alan Gura noted, had drug its heels for a week before they requested the stay.

Since Judge Frederick Scullin issued his preliminary injunction against the District of Columbia last Monday, the District has been dragging its feet on issuing new carry permits. Indeed they now say they will review the court’s order for the next 90 days. This not only contravenes the court’s order but violates their own law saying that they have 90 days to issue a permit.

Lawrence Powers is an approved firearms instructor for the District of Columbia. Without the now enjoined “good cause/proper cause” critiera, there is no reason that he, of all people, is not issued a permit. He has already met all the background and training requirements to be approved as an instructor.

Fed up with the District’s foot dragging, Alan Gura has filed a Motion to Hold Defendants in Contempt yesterday. After outlining the negotiations on compliance with the injunction and how the District has plainly ignored the court order, he writes:

11. The games continue. Defendants supposedly not understanding the Court’s order,
they will ignore it. Of course, Defendants understand the order perfectly well. They simply dislike it.
On May 26, 2015, counsel met and conferred regarding this motion. Defendants’ attorney declined to
state what is ambiguous about the Court’s May 18 order, and offered only that “soon” there would be
a filing discussing the matter.

12. If Defendants want a 90 day stay of the Court’s injunction, they need to ask for one.
There are requirements and standards—in other words, there is actual law that governs that process.
For parties in this Court, let alone government officials, to unilaterally declare a 90 day “court ignoring”
period upon issuance of a preliminary injunction is simply unacceptable.

Defendants are and should be held in contempt.

 Sometime after Mr. Gura filed his Motion, the District filed a motion asking for an immediate administrative stay while they study their alternatives for an appeal. It seems that this move was anticipated because a Memorandum in Opposition was filed shortly thereafter. Mr. Gura says the District has “already granted themselves a stay” and calls their arguments “disingenuous.” He goes on to say that if they really thought they faced irreparable harm, then they would have requested a stay immediately and not waited a week. As to the harm they face, he says, “Of course the District faces no harm from having to join the vast majority of
the country in respecting Second Amendment rights.”

It will be interesting to see what Judge Scullin does.

The Second Amendment Foundation is the organizational plaintiff in this case. This afternoon they issued a press release on the matter. Alan Gottlieb called their attempts to stall “unconscionable” and an example of “municipal arrogance.”

US District Court Judge Frederick Scullin granted a preliminary injunction to the plaintiffs who had challenged the District of Columbia’s “good reason”/”proper reason” requirement for obtaining a carry permit. The case, Wrenn et al v. District of Columbia et al, was a follow-on case to Palmer v. District of Columbia and was filed after the DC City Council adopted their new carry regulations.

The court found that the plaintiffs including the Second Amendment Foundation stood a good chance of winning a permanent injunction based upon the merits of their argument. Under legal precedent, a preliminary injunction is only granted if that can be shown.

Examining the existing DC law using intermediate scrutiny standard as established in the DC Circuit by Heller II, Judge Scullin found:

The District of Columbia’s arbitrary “good
reason”/”proper reason” requirement, however, goes far beyond establishing such reasonable
restrictions. Rather, for all intents and purposes, this requirement makes it impossible for the
overwhelming majority of law-abiding citizens to obtain licenses to carry handguns in public for
self-defense, thereby depriving them of their Second Amendment right to bear arms.

The Second Amendment Foundation was very pleased with Judge Scullin’s order. In their release below, they call it a “devastating loss” for DC and its gun control policies. The release points out more about the decision as well.

BELLEVUE, WA – The Second Amendment Foundation (SAF) today won a preliminary injunction against the District of Columbia and Metropolitan Police Chief Cathy Lanier’s enforcement of a requirement to provide a “good reason” when applying for a concealed carry permit.

Judge Frederick J. Scullin ordered that the city is “enjoined from denying handgun carry licenses to applicants who meet the requirements of D.C. Code 22-4506(a) and all other current requirements for the possession and carrying of handguns under District of Columbia law.”

Judge Scullin further wrote in his 23-page opinion that the District’s “good reason/proper reason” requirement “has far more than a ‘de minimis’ effect on [their] rights it completely bars the right from being exercised, at all times and places and in any manner, without exception” and that the requirement “impinges on Plaintiff’s Second Amendment right to bear arms.’

“This is a devastating loss for the District and its anti-gun-rights policy,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We’re delighted with the judge’s ruling, because once again, the court has thwarted the District’s blatantly obvious effort to discourage the exercise of Second Amendment rights by forcing permit applicants to jump through a series of hoops and then frustrate them by requiring an arbitrary ‘good reason’ for the exercise of a constitutionally-protected civil right.”

Gottlieb said that the court ruling essentially says the “good reason” requirement does not pass the smell test.

“It stinks, and always did stink, and now everybody knows it,” Gottlieb said.

The order also says that attorneys for both sides shall appear for a conference with the court on July 7, to “discuss an expedited schedule for the resolution of this case.”

“You can’t ask for more than that,” Gottlieb said. He noted that this is the second time in a row the District has lost on a carry issue in a case involving SAF.

“This is getting to be rather tiring,” he said. “To quote the renowned American folk trio, Peter, Paul and Mary, ‘when will they ever learn, when will they ever learn?’”

UPDATE: The Firearms Policy Coalition did a good breakdown on the decision. It can be found here.

Also see this from Brian Doherty at Reason.

It also made the Washington Post. Spencer Hsu took great pains to point out that Judge Scullin’s rulling differed from precedent set in the 3rd and 4th Circuits.

Scullin’s ruling runs counter to decisions by federal judges upholding similar “may-issue” discretionary laws in Maryland and New Jersey, including the U.S. Court of Appeals for the 4th Circuit. The U.S. Court of Appeals for the 9th Circuit in March set aside a three-judge panel’s ruling relied upon by Scullin, and the full court will rehear arguments next month.

While that is very true, Judge Scullin is bound by precedents set in the Circuit for the District of Columbia. He pointed to Heller II as being instructive as to the level of scrutiny (intermediate). He also acknowledged the precedents set in the 2nd, 3rd, and 4th Circuits were “uninstructive” and that those courts either accorded too much deference to the legislature or did not address whether the law or regulation was “no broader than necessary to achieve the government’s substantial objectives.”

The full opinion can be found here.