DC Is Having To Pay $75,000 In Attorneys’ Fees In Palmer Case

Thanks to the District of Columbia City Council and their anti-gun policies the taxpayers of the District are having to shell out $75,000 in legal fees to the Second Amendment Foundation. This is a result of their having lost Palmer v. District of Columbia and the award of attorneys’ fees to the plaintiffs.

From the Legal Times:

(Alan) Gura, of Gura & Possessky, represented the plaintiffs who challenged the ban. He asked the court to award $54,720 in fees and costs in August 2014, but he continued to rack up billable hours while the city contested Scullin’s ruling and the two sides fought over whether the city had complied with the judge’s decision. In June, the parties told Scullin that they were attempting to reach an agreement on fees.

Notice of the settlement was filed with the court late Thursday. Gura declined to comment, as did a spokesman for the D.C. Office of the Attorney General.

In the aftermath of Scullin’s decision in the firearms case, Palmer v. District of Columbia, the city adopted regulations for residents who wished to apply for a permit to carry concealed firearms. Gura is challenging those regulations in a pending case, Wrenn v. District of Columbia.

While I feel for the taxpayers of DC, I take heart in the fact that there are many gun prohibitionists like Ladd Everitt of the Coalition to Stop Gun Violence (sic) who live in the District.

You can read the agreement at the link to the Legal Times above.

SAF Reaction To DC’s Decision On It’s Appeal Palmer Case

On Wednesday, District of Columbia Attorney General Karl Racine announced that his office would ask the US Court of Appeals to dismiss their appeal of Palmer v. DC. That decision in that case forced the District of Columbia to start issuing carry permits.

“We need to focus our energies not on litigating old laws, but defending new ones that our leaders enacted
in good faith
to comply with court rulings while still protecting public safety,” Attorney General Racine said.
“The Council enacted a law that sets a process by which individuals may apply for gun licenses, which has
superseded the law at issue in Palmer v. District of Columbia. Going forward, our energies are best spent
focusing on defending the current law. We are vigorously defending it in the district court, and we are
confident that it will be upheld.”

The new carry laws that the DC Council “enacted in good faith” (sic) are so onerous and so draconian that the Second Amendment Foundation filed a second lawsuit. DC took as their model Maryland who has a “good cause” requirement.

The Second Amendment Foundation is pleased with their victory but note that it isn’t over yet. They still have pending motions before US District Court Judge Frederick Scullin over the enforcement of his decision in addition to Wrenn et al v. DC.

BELLEVUE, WA – The Second Amendment Foundation will continue fighting the District of Columbia’s new concealed carry law, while notching a small victory with today’s decision by the city to drop its appeal of SAF’s victory in the Palmer case that forced the city to adopt a carry permitting structure.

“While we’re happy to see the city drop their appeal of our earlier victory,” said SAF founder and Executive Vice President Alan Gottlieb, “we were eager to face them in court, as there was no possible way they could have successfully argued in favor of continuing an outright ban on carry in the District.

“This is one more critical Second Amendment Foundation victory for gun rights,” he added. “But we will continue to keep suing the city of Washington, D.C. over their new carry law that is still an unconstitutional infringement on our Second Amendment rights.”

Under the District’s newly-adopted law, permit applicants must still provide a good reason for carrying a protective firearm outside the home, and the police chief gets to decide whether that reason is valid. So far, only a handful of applicants have been approved, and Gottlieb said that shows a fundamental flaw in such a discretionary permitting scheme.

“No public official should enjoy that kind of sway over a citizen’s right to bear arms,” Gottlieb stated. “It creates a manifestly unfair system that is wide open to abuse and favoritism, as we’ve seen in New York, California and elsewhere that insiders and elitists can get permits, but average citizens are routinely given second-class consideration, or no consideration at all.”

This is not the end of the Palmer case, however. SAF still has outstanding enforcement motions pending before U.S. District Judge Frederick J. Scullin, Jr., who handed down the initial Palmer ruling. His rulings on those motions could produce further appeals, SAF attorney Alan Gura explained. SAF has already filed a lawsuit challenging the District’s current highly-restrictive “good reason” requirement.

“Our intent is to continue our battle for the right to bear arms on behalf of all the citizens, not just a privileged few,” Gottlieb concluded.

One thing I did notice in DC Attorney General’s release was the Congress has until May to disapprove the Council’s permanent legislation concerning concealed carry. I’m not sure where that stands but Sen. Marco Rubio (R-FL) and Rep. Jim Jordan (R-OH) have introduced the Second Amendment Enforcement Act of 2015 which would remove the power of the DC Council to enact gun control legislation. The bill also includes shall-issue carry permits, the ability of DC residents to purchase firearms in Maryland and Virginia, and repeal the firearms registration system.

One way or another the District is going to be dragged kicking and screaming into recognizing the Second Amendment just like the South was over civil rights and integration. And just like the South, the District will attempt to do it with all due deliberate speed if their new mayor is any indication.

DC To Appeal Carry Case

Emily Miller of Fox 5 News (yes, that Emily Miller) is reporting that the District of Columbia City Council will vote to appeal their loss in Palmer v. District of Columbia. She spoke with Council Chair Phil Mendelson who said:

“The whole issue of the public carrying of a firearm is very complicated,” Mendelson said. “And I believe the executive and the attorney general will continue with the appeal.”

Also this week, the city asked the court for six more months to rewrite its gun laws. Right now, the city has until October 22. That’s why Mendelson said gun carry will be at the top of the agenda when the city council returns from recess.

“What the court said very clearly was that a complete 100-percent ban on anybody being able to get a license to carry a handgun was unconstitutional. But there’s a gray area between 100-percent ban and everybody can carry. And that’s what we’re working through.”

This is not an unexpected turn of events. The local political establishment in DC is profoundly anti-gun and to have let Judge Frederick Scullin’s decision go unchallenged would be unthinkable.

Miller also spoke to George Lyon, one of the plaintiffs, about the potential appeal. He was disappointed as you can see in the video below:


H/T Bitter

More Time, Please…Because We Are Sensitive

The District of Columbia is arguing that they need more time beyond the original 90 day stay granted by Judge Frederick Scullin in the DC carry case, Palmer v. DC. First, they are arguing that if they decide to appeal the decision, they want the decision stayed throughout the appeal process. Second, if they forego the appeal, they want an additional 90 days in which to craft a carry law.

The District of Columbia in their brief (available here) argues that the judge erred in stating that the core right of the Second Amendment extends outside the home. Further, they argue that a good part of DC could be considered a sensitive area.

I found what they had to say interesting.

Thus, even assuming some form of public carrying of handguns is protected by the
Second Amendment, it is not at the core of the right, and, accordingly, a court must examine the strength of the government’s justifications for its regulation, pursuant to intermediate scrutiny.
See Heller II, 670 F.3d at 1252. The Court here did not do so, ignoring the many, important
public safety and other reasons put forth for the District’s longstanding prohibition, many of
which are unique to the District of Columbia, a state-level jurisdiction with an almost completely
urban makeup that as the seat of the national government is home to the White House, the U.S.
Capitol, dozens of federal agencies, and hundreds of international diplomats and has, over the
years, experienced attempted as well as successful assassinations of Presidents and other officials
of national importance using firearms.
These and the other important public safety concerns will
need to be considered by the D.C. Circuit in any appeal, and will present a serious question (even
assuming the Circuit concludes a balancing test is necessary), one that is of first impression in
this Circuit.

Of the two Presidents assassinated within the District of Columbia, Abraham Lincoln and James Garfield, neither had any sort of bodyguards or other security with them when they were murdered. Contrast that with the security cordon erected around modern presidents such as Barack Obama. I guess you could argue that Ford’s Theater is a “sensitive site” given it is a National Historic Site run by the National Park Service.

That said, there are significant portions of the District that can in no way be considered sensitive.

For example, this corner at the intersection of Atlantic St and 14th St SE is considered one of the most dangerous spots in the US. You have a 1 in 14 change of being a crime victim here.

I fail to see how this “abandominium” as they are called by local DC housing activists could be considered sensitive even if it is owned by the DC government.

The argument that the majority of the District of Columbia is a sensitive place fails when you examine what’s on the ground. I would have no disagreement with the argument that many DC neighborhoods have improved with gentrification. However, just because a neighborhood has gentrified, it doesn’t make it a sensitive place. In my opinion, it may have made it a target for which the residents might need a firearm for protection both inside and outside their home.

Judgment Stayed For 90 Days

As pretty much expected, Judge Frederick Scullin, Jr. granted the District of Columbia a stay of his decision finding DC’s ban on the possession of firearms outside the home as unconstitutional. However, the District only got 90 days or until October 22nd.

The plaintiffs had indicated that they would agree to a 90-day stay if the City Council would enact remedial legislation within that time that was consistent with Constitutional standards.

The plaintiffs have until Monday, August 4th, to file a motion in opposition to the stay and the defendants then have until the following Monday to file their reply in support of a 180-day stay pending appeal.

In a footnote to the order, Judge Scullin asserted that he saw no need to clarify his decision noting that the injunction “clearly applied only to handguns and not any other type of deadly dangerous weapon.” DC’s Attorney General had tried to assert the original ruling was broader than “scope of the gun owners’ lawsuit and that it appeared to apply to restrictions on the carrying of all deadly weapons and not just handguns.”

I agree with Bitter that there is no reason the DC City Council cannot enact a workable carry law within 90 days. As she notes, the DC police proved that they could come with something on the fly. 

As to an appeal of the decision, my gut still tells me that DC will go for it.

Chief Lanier’s Memo To Metro Officers (Updated)

Thanks to the efforts of the National Gun Rights Examiner David Codrea, we have the memo that District of Columbia Police Chief Cathy Lanier had sent out to all officers of the Metropolitan Police Department regarding carrying a pistol, either open or concealed, within the District.

UPDATE: David Codrea, the National Gun Rights Examiner, has an updated “official teletype” message from Chief Cathy Lanier that provides further guidance to the officers of the Metropolitan Police Department regarding the lawful carry of firearms outside the home in DC. This message goes into much greater detail than the earlier one issued on Sunday. While the District has officially requested a stay of the decision by Judge Scullin, it has not yet been granted as of early this morning.

Reading through the teletype, it is important to note that it only applies to handguns. The carry of a long gun such as a rifle or shotgun outside the home is still prohibited.

Given the fluidity of the legal situation, I’d be very careful if I were carrying in DC as a non-resident or even as a resident. The motion for the stay could be granted at any time which would probably return things to what they were before the decision. Or to use the full Latin phrase, status quo ante bellum. And yes, it is a war for our rights.

DC Does As Expected

In a not unexpected turn of events, the District of Columbia filed a Motion for a Stay Pending Appeal today with the US District Court in the case of Palmer v. District of Columbia. They are asking for an immediate administrative stay, a stay pending appeal, or in the alternative, a stay of 180 days.

The Attorney General of DC and his legal team have communicated with the plaintiffs who would not oppose a 90 day stay if  the city council would enact remedial legislation – that is, a carry law that would cover both residents and non-residents – “that complies with constitutional standards.” Alan Gura has indicated he will be filing a response by next Monday to the District’s Motion.

In their supporting Memorandum of Points, the District points out that the 7th Circuit granted the State of Illinois a 180 day stay which they extended for another 30 days.

In Moore v. Madigan, the Seventh Circuit found that Illinois’ prohibition on the public
carrying of guns, with very few exceptions, violated the Second Amendment. 702 F.2d 933. The
Seventh Circuit, however, ordered its mandate “stayed for 180 days to allow the Illinois
legislature to craft a new gun law that will impose reasonable limitations, consistent with the
public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns
in public.” Id. at 942.1 This Court should do the same.

I would note that there was broad support for a concealed carry bill in Illinois by both downstate Democrats as well as Republican members of the Illinois General Assembly. Such a bill had narrowly been defeated in an earlier session on the requirement for a super-majority. No such broad support exists within the DC City Council and they are likely to make a hash of it.

While I would like to think Judge Scullin would tell the District to go lump it, I fully expect that they will get some sort of stay. I hope I’m wrong.

SAF On Their Win Against DC

As you can well imagine, the folks in Bellevue are pretty happy about winning against DC in Palmer v. District of Columbia. They are also ready to fight to preserve that win if DC appeals Judge Scullin’s decision. Frankly, I fully expect the powers that be in the District to fight this tooth and nail. While they should have learned something about appealing rulings given former Mayor Adrian Fenty’s experience, I doubt that they have.

From SAF:


BELLEVUE, WA – Saturday’s long-awaited victory in Palmer v. District of Columbia is “one more important step toward firearms freedom,” the Second Amendment Foundation said today after reviewing the ruling, which the District of Columbia now reportedly plans to appeal.

“We will take all necessary steps to defend our victory against an unconstitutional ban on bearing arms outside of one’s home,” vowed SAF founder and Executive Vice President Alan M. Gottlieb. “The decision by Judge Frederick J. Scullin, Jr., reinforces our efforts in challenging burdensome concealed carry laws in several states.”

In his 19-page ruling, Judge Scullin wrote, “In light of Heller, McDonald and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.”

“Ever since the 2008 Heller ruling by the Supreme Court, the District of Columbia has carried on a campaign of red tape and regulation to discourage citizens from exercising their Second Amendment rights,” Gottlieb said. “This has included bearing arms outside the home for personal protection. We applaud Judge Scullin’s ruling, because the time is long overdue for the city to realize that it is the capitol of the United States, not a police state.

“Washington, D.C. is not some political gulag,” he observed, “but the seat of government in a land of free people. A cornerstone of that freedom is the right to keep and bear arms, and where better to exercise that right than in the nation’s capital? We have no intention of letting anti-gun city officials further delay the ability of law-abiding citizens to exercise their rights. As Dr. Martin Luther King said, ‘A right delayed is a right denied.’

SAF lawsuits have overturned laws not only in Washington D.C., but in several states including Illinois, California, North Carolina, New Mexico, Nebraska, and cities like San Francisco, Seattle, Des Moines and New Haven, among others, Gottlieb noted. Threats of SAF lawsuits have removed well over 100 anti-gun-rights laws across the country as well as stopping hundreds more from being enacted, he added.

“We are focusing our efforts on getting rid of unconstitutional violations of firearms owners’ civil rights in Connecticut, New Jersey, New York, Maryland, California and other states,” he said.

“These victories have been made possible by hundreds of thousands of concerned Americans who have financially supported SAF efforts over the years, Gottlieb noted. “Thanks to them, we have been able to field a first-rate team of legal advocates headed by noted civil rights attorney Alan Gura.

“SAF’s record of legal victories on behalf of the right to keep and bear arms has set the bar for all current and future firearms civil rights litigation,” Gottlieb concluded. “This is not SAF’s last step, but only the latest, in our efforts to win back firearms freedom, one lawsuit at a time.”

Impressions On The Win In Palmer v. District Of Columbia

By now, many of you are aware that attorney Alan Gura got another big win for the Second Amendment with his win in Palmer v. District of Columbia. US District Court Judge Frederick J. Scullin, Jr. ruled that DC’s ban on any sort of carry outside the home was unconstitutional under any level of scrutiny. The decision has been reported in most of the big papers ranging from the Washington Post to the Chicago Tribune to the New York Times (which they buried on page A16).

Congratulations must go to attorney Alan Gura, the Second Amendment Foundation, and the four individual plaintiffs led by Tom Palmer for bringing the fight to the District of Columbia and DC Police Chief Cathy Lanier. Without their efforts, there would be no win for carry in DC and, potentially, for carry in other areas.

Having read the Memorandum-Decision and Order from Judge Scullin, I was struck by a number of things. First, and most important, was the importance to this win of prior cases ranging from Heller and McDonald to Peruta, Ezell, and Moore v. Madigan. Alan Gura has stressed many times in public appearances and in private conversations that the expansion of Second Amendment rights is a building process. Just like the strategic civil rights litigation of Thurgood Marshall and the NAACP Legal Defense Fund didn’t end segregation overnight, neither will the Second Amendment Foundation, the NRA, and others involved in the legal battle to advance our Second Amendment rights win back what we lost overnight.

Second, dissents in past cases are often as important as majority opinions. For example, Judge Scullin quotes from the dissent in the New Jersey carry case of Drake v. Filko (originally Muller v. Maenza) by Judge Hardiman of the 3rd Circuit.

To speak of ‘bearing’ arms solely within one’s
home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the Court’s holding that
the verbs codified distinct rights, but also would be awkward usage given the meaning assigned
the terms by the Supreme Court.

Perhaps a more important dissent quoted in the case was by Justice Ruth Bader Ginsberg from Muscarello v. United States regarding the “natural meaning of ‘bear arms'”. Justice Ginsberg said in her dissent that to bear arms means to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with
another person.” While some may question quoting Justice Ginsberg, I think it was a masterful move by Judge Scullin.

Third, even losses in Second Amendment cases can be important for future wins. For example, even though cases such as Kachalsky from New York, Drake from New Jersey, and Woollard from Maryland failed to overturn their respective states’ rationales for granting their may-issue carry permits, they still helped Judge Scullin reach the conclusion that the Second Amendment guarantees a right to bear arms outside the home.

In light of Heller, McDonald, and their progeny, there is no longer any basis on which
this Court can conclude that the District of Columbia’s total ban on the public carrying of readyto-
use handguns outside the home is constitutional under any level of scrutiny. Therefore, the
Court finds that the District of Columbia’s complete ban on the carrying of handguns in public is

 Fourth, it is significant that this decision applies to both residents and non-residents of the District of Columbia. This means that, as of now, the District of Columbia and its entire bureaucracy including the Metropolitan Police Department are enjoined from enforcing the laws forbidding carry outside the home against both groups. While Judge Scullin found the equal protection and right to travel challenges to residency requirements were not ripe, they may come up again in the future after the District develops a concealed carry permit law.

As I said last night on The Polite Society Podcast, I fully expect this decision to be appealed. The Washington Post reported earlier this evening that DC’s Attorney General plans to seek a stay in Judge Scullin’s order while they decide whether to appeal the loss.

I’ll let Alan Gura have the final say on the implications of this case:

“The decision is in effect, unless and until the court stays its decision,” Gura said Sunday. “This is now a decision that the city is required to follow — the idea that the city can prohibit absolutely the exercise of a constitutional right for all people at all times, that was struck down. That’s just not going to fly.”

Gura said allowing citizens to carry handguns for self-defense will cut crime. “This is a fantastic improvement in public safety,” he said. “Yes, we have a problem in America with gun violence. But no, that problem is not the result of law-abiding people carrying guns.”