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

Gun Watch ^ | 14 December, 2014 | Dean Weingarten

[marktwain]

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 mdshooters.forum:

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 mdform.com 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.
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[yefragetuwrabrumuy]

Instead of just ruling them in contempt, the judge might even threaten them with the appointment of a special master.

A special master is an “adjunct to a federal court, and Rule 53 of the Federal Rules of Civil Procedure allows a federal court to appoint a master, with the consent of the parties, to conduct proceedings and report to the Court.”

In effect, the SM would design a fully constitutional licensing scheme, and if necessary, appropriate city funds to pay for it, and insure that it is functioning well, showing all of these results to the judge. Then the judge would issue a consent decree requiring the city to keep it as a funded system for say 10 or more years, and for any complaints about the system to be forwarded to the judge.

[cqnc]

Meet the new boss! Same as the old boss! Yep, dat’s mah districk, fo’ shuh!

[marktwain]

“Instead of just ruling them in contempt, the judge might even threaten them with the appointment of a special master.”

Wasn’t this commonly done in school busing and affirmative action cases? It would be wonderful to hear the wailing and knashing of teeth to see this done to D.C. in support of the second amendment.

The rest of the country suffered under this sort of tyranny too long in support of leftist causes.

[yefragetuwrabrumuy]

Special Masters are something of a constitutional abomination.

In past, the Supremes have ruled that federal judges are superior to state judges, and that congress is superior to state legislatures. However, they have never ruled that the president is superior to state governors, so when they are at loggerheads, the president can only threaten or use military force against the orders of a governor. (Which was last done by Eisenhower against governor Orval Faubus of Arkansas to force desegregation of the Little Rock High School.)

However, this balance of power has been subverted by federal judges, who use Special Masters to force state legislatures to do what the judge wants, even to the point of forcing them to appropriate money. This is usually done over education, when the state doesn’t want to pay for something the judge wants.

So this means that not just the congress, but the federal judiciary, are superior to state legislatures.

But this is a strange case, because D.C. has weird rules.

“The constitution grants the United States Congress exclusive jurisdiction over the District in “all cases whatsoever.” Since 1973, Congress has allowed certain powers of government to be carried out by locally elected officials.

“However, Congress maintains the power to overturn local laws and exercises greater oversight of the city than exists for any U.S. state. Furthermore, the District’s elected government exists at the pleasure of Congress and could theoretically be revoked at any time.”

This makes the creation of a Special Master for D.C. a real oddity. A SM could boss around the city government, but maybe could be overruled by the congressional committee in charge of D.C. But maybe only if the committee kicked the elected government out.

In any event, a heck of a court case.