Gun Ruling

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

TOM G. PALMER, et al., ) Case No. 09-CV-1482-FJS)

Plaintiffs, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN OPPOSITION

v. ) TO DEFENDANTS’ MOTION FOR) STAY PENDING APPEAL

DISTRICT OF COLUMBIA, et al., ))

Defendants. )

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS’ MOTION FOR STAY PENDING APPEAL

COME NOW the Plaintiffs, Tom G. Palmer, George Lyon, Edward Raymond, Amy

McVey, and the Second Amendment Foundation, Inc., by and through undersigned counsel, and

submit their Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Stay

Pending Appeal.

Dated: August 4, 2014 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)Gura & Possessky, PLLC105 Oronoco Street, Suite 305Alexandria, VA 22314703.835.9085/Fax 703.997.7665

By: /s/ Alan Gura Alan Gura

Attorney for Plaintiffs

Case 1:09-cv-01482-FJS Document 57 Filed 08/04/14 of 23

TABLE OF CONTENTS

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Defendants’ Failure to Notice an Appeal Bars Their Motion for a Stay Pending Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Defendants Misstate the Standard for Issuing a Stay Pending Appeal.. . . . . . . . . . . . . . . . . . 2

III. Defendants Have Failed to Establish Any of the Elements Justifying a Stay Pending Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Defendants Have No Likelihood of Success on the Merits, Let Alone a “Substantial Indication of Probable Success”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Defendants Will Not Suffer Any Injury, Let Alone an Irreparable Injury, in the Absence of a Stay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. A Stay Would Injure Plaintiffs and the Public.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. The Public Interest Counsels for Denial of a Stay. . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

i


TABLE OF AUTHORITIES

Cases

Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Akiachak Native Cmty. v. Jewell, No. 06-0969-RC, 2014 U.S. Dist. LEXIS 86931 (D.D.C. June 26, 2014). . . . . . . . . . . . . . 4

Century Laminating, Ltd. v. Montgomery, 595 F.2d 563 (10th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Comm. on the Judiciary v. Miers, 575 F. Supp. 2d 201 (D.D.C. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Corpus Christi Peoples’ Baptist Church, Inc. v. Texas Dep’t of Human Resources, 481 F. Supp. 1101 (S.D. Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972 (D.C. Cir. 1985) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Dickens v. Ryan, 688 F.3d 1054 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-8, 12, 13

Downes v. Bidwell, 182 U.S. 244 (1901). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Guttenberg v. Emery, No. 13-2046, 2014 U.S. Dist. LEXIS 37101 (D.D.C. Mar. 19, 2014). . . . . . . . . . . . . . . . . 3

ii


Hertz v. Bennett, 294 Ga. 62 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Hilton v. Braunskill, 481 U.S. 770 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re Brickey, 8 Idaho 597 (1902). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d. Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Kingman Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230 (D.D.C. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Loving v. IRS, 920 F. Supp. 2d 108 (D.D.C. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15, 16

Nat’l Ass’n of Mfrs. v. NLRB, No. 11-1629, 2012 U.S. Dist. LEXIS 73506 (D.D.C. Mar. 7, 2012) . . . . . . . . . . . . . . . . . . 3

Nken v. Holder, 556 U.S. 418 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Nunn v. State, 1 Ga. 243 (1846). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

O’Donoghue v. United States, 289 U.S. 516 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Aguilar, 2013 IL 112116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iii


Ross v. Meese, 818 F.2d 1132 (4th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Shepard v. Madigan, 734 F.3d 748 (7th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

State v. Blocker, 291 Ore. 255 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Christian, 354 Ore. 22 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

State v. Kessler, 289 Ore. 359 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Black, 707 F.3d 531 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Garvin, Cr. No. 11-480-01, 2012 U.S. Dist. LEXIS 76540 (E.D. Pa. May 31, 2012). . . . . . . . . . . 11

Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921 (D.C. Cir. 1958).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Washington Metropolitan Area Transit Com. v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 7, 14

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statutes and Rules

18 U.S.C. § 1116.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 1201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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18 U.S.C. § 970. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

430 ILCS 65/4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Fed. R. App. P. 4(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. App. P. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Civ. P. 62(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Alexi Mostrous, “White House Backs Right To Arms Outside

Obama Events,” Washington Post, Aug. 19, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/08/18/AR2009081803416.html (last visited Aug. 3, 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gary Kleck & Marc Gertz, Armed Resistance to Crime:

The Prevalence and Nature of Self- Defense with a Gun, 86 J. CRIM. L. & CRIMINOLOGY 150 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mike DeBonis, “Security, not street crime, at risk after gun ruling,

D.C. Police Chief Cathy Lanier says,” Washington Post, July 30, 2014, available at http://www.washingtonpost.com/local/dc-politics/security-not-street-crime-at-risk-after-gun-ruling-dc-police-chief-cathy-lanier-says/2014/07/30/f8b17e1c-1808-11e4-9e3b-7f2f110c6265_story.html (last visited Aug. 3, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

v


MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS’ MOTION FOR STAY PENDING APPEAL

PRELIMINARY STATEMENT

A stay pending appeal is an extraordinary remedy, particularly, as here, where the

government is violating a fundamental constitutional right. Defendants’ burden in seeking such a

disruption in the ordinary administration of justice is substantial. They have failed to carry that

burden. Defendants have established none of the requisite elements required to obtain such relief, let

alone all four of them. Indeed, as of this writing, Defendants have not even noticed an appeal, nor

confirmed that an appeal is forthcoming. Defendants’ motion should be denied.

ARGUMENT

I. DEFENDANTS’ FAILURE TO NOTICE AN APPEAL BARS THEIR MOTION FOR

A STAY PENDING APPEAL.

Defendants base their motion for a stay pending appeal upon Federal Rule of Civil

Procedure 62(c), which allows for a stay pending appeal only upon the filing of an actual notice of

appeal, or at least some commitment by the movant to do so. Loving v. IRS, 920 F. Supp. 2d 108,

110 (D.D.C. 2013). A “possible appeal” will not do. Corpus Christi Peoples’ Baptist Church, Inc.

v. Texas Dep’t of Human Resources, 481 F. Supp. 1101, 1111-12 (S.D. Tex. 1979), aff’d, 621

F.3d 438 (5th Cir. 1980). “Both Civil Rule 62(c) and Appellate Rule 8 presuppose the existence of

a valid appeal.” Century Laminating, Ltd. v. Montgomery, 595 F.2d 563, 569 (10th Cir. 1979); cf.

Comm. on the Judiciary v. Miers, 575 F. Supp. 2d 201, 203-04 (D.D.C. 2008).

While a stay pending appeal might also be entered pursuant to the Court’s inherent

supervisory powers, Defendants’ motion invokes only Rule 62(c), and in any event, it is not too

much to ask that before asking the Court for the extraordinary remedy of a stay pending appeal, the

Defendants actually file a notice of appeal, or at least commit to filing an appeal.

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That is especially the case here, where Plaintiffs have consented to, and the Court has

already entered, a ninety day stay. As a practical matter, Defendants’ time to notice an appeal will

run out much earlier, on August 28. See Fed. R. App. P. 4(a)(1)(A). Absent a notice of appeal or

some guarantee that one will be filed by August 28, there is nothing more for the Court to consider,

and Defendants’ motion for a stay pending appeal should be denied.

Of course, regardless of whether an appeal is noticed, the City Council is always free to

amend the District’s firearm laws. But if an appeal were filed, the public, the Plaintiffs—and the

D.C. Circuit—would be entitled to know sooner rather than later whether Defendants intend to stand

on their absolute ban and thus litigate until the end, or whether truly remedial legislation is around

the corner. Considering the severe and irreparable harm inflicted upon the public by the denial of

this fundamental constitutional right (see below), any stay for the sole purpose of accommodating

the legislative process must therefore be brief. Ninety days mark the outer limits of what the Court

should be willing to afford Defendants.

II. DEFENDANTS MISSTATE THE STANDARD FOR ISSUING A STAY PENDING APPEAL.

“[I]t is the movant’s obligation to justify the court’s exercise of such an extraordinary

remedy [as a stay].” Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 978 (D.C. Cir.

1985) (per curiam). The factors considered in deciding such motions “are by now familiar to both

the bench and bar in this Circuit:

(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of itsappeal? Without such a substantial indication of probable success, there would be nojustification for the court’s intrusion into the ordinary processes of administration andjudicial review. (2) Has the petitioner shown that without such relief, it will be irreparablyinjured? . . . (3) Would the issuance of a stay substantially harm other parties interested inthe proceedings? . . . (4) Where lies the public interest? . . .”

Washington Metropolitan Area Transit Com. v. Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C.

2


Cir. 1977) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir.

1958)).1

Defendants claim that “the party seeking a stay pending appeal can satisfy [the first] element

of the test by raising a ‘serious legal question,’” Def. Br., at 3 (citation omitted), and argue that

Defendants are entitled to a stay because “the District has raised a serious legal question” as to

whether the Second Amendment applies outside the home, id. at 4. Defendants err on both counts.

Defendants’ failure to make a “substantial showing of probable success,” WMATC, 559 F.2d

at 843, is discussed in greater detail below. At the outset, however, it should be noted that

Defendants’ relaxed “serious legal question” formulation of this factor did not survive the Supreme

Court’s decision in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), which held that a

likelihood of success on the merits did not relieve the petitioner from proving the likelihood, rather

than mere possibility, of irreparable injury. “Broadly read, the Supreme Court thus concluded that a2

strong showing on one factor could not ‘balance out’ a weak showing on another.” Guttenberg v.

Emery, No. 13-2046, 2014 U.S. Dist. LEXIS 37101, at *29 (D.D.C. Mar. 19, 2014); see also Nken

v. Holder, 556 U.S. 418, 434-35 (2009) (chance of success on the merits must exceed “better than

negligible” or “mere ‘possibility’ of relief”); id. at 438 (“[w]hen considering success on the merits

and irreparable harm, courts cannot dispense with the required showing of one simply because there

is a strong likelihood of the other”) (Kennedy, J., concurring).

“[C]ourts apply the same test for a stay or injunction pending appeal, which ‘substantial[ly]1

overlap[s]’ with, but is not the same as, the test for a preliminary injunction.” Nat’l Ass’n of Mfrs. v.

NLRB, No. 11-1629, 2012 U.S. Dist. LEXIS 73506, at *4 n.1 (D.D.C. Mar. 7, 2012) (citationsomitted).

The various cases Defendants cite for a “serious legal question” standard predate Winter.2

3


Accordingly, “[i]n this circuit, it remains an open question whether the ‘likelihood of

success’ factor is an ‘independent, free-standing requirement,’ or whether, in cases where the three

other factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal

question’ on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (quoting

Sherley v. Sebelius, 644 F.3d 388, 393, 398 (D.C. Cir. 2011)); see Akiachak Native Cmty. v.

Jewell, No. 06-0969-RC, 2014 U.S. Dist. LEXIS 86931, at *7 (D.D.C. June 26, 2014); Kingman

Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230, 241 (D.D.C. 2013).

In the end, the difference between the Supreme Court’s stringent Winter/Nken requirements

that each of the four factors be independently proven, and the Defendants’ obsolete “sliding scale”

standard, may not impact the outcome of this motion. Defendants, after all, are not entitled to relief

even under the looser “sliding scale” methodology. But the fact Defendants’ motion is based upon

the pre-Winter understanding of what it takes to obtain a stay pending appeal is telling.

III. DEFENDANTS HAVE FAILED TO ESTABLISH ANY OF THE ELEMENTS JUSTIFYING A STAY

PENDING APPEAL.

Even were Defendants to notice an appeal, they have failed to establish any of the elements

necessary to obtain a stay of the Court’s decision pending the resolution of such an appeal.

A. Defendants Have No Likelihood of Success on the Merits, Let Alone a “SubstantialIndication of Probable Success.”

As this Court found, “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.” Slip op., at 16. The notion that the Supreme Court has

not yet “determined whether or not the Second Amendment extends beyond the home,” Def. Br., at

3, is false. The Supreme Court has held that self-defense is the core interest secured by the Second

Amendment, an interest plainly existing outside the home as well as inside. And it has held that the

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right to “bear” arms is the right 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.” District of Columbia v. Heller, 554 U.S. 570, 584 (2008) (citation

omitted). Thus, the question of “whether the District of Columbia’s total ban on the carrying of

handguns within the District ‘infringes’ that right . . . is not difficult to answer.” Slip op., at 15.

Regulations for possessing a gun in a home environment may differ from those governing the public

carriage of a gun, but that does not mean that the right disappears entirely outside the home.

Particularly instructive on this point is the Oregon Supreme Court’s opinion in State v.

Blocker, 291 Ore. 255 (1981). That court had earlier held that possession of a billy club was

secured by the constitutional guarantee that “[t]he people shall have the right to bear arms for the

defence of themselves . . .” Ore. Const. art. I, § 27 (1857); see State v. Kessler, 289 Ore. 359

(1980). In Blocker, prosecutors argued that the right should be confined to Kessler’s facts, relating

to home possession of a billy club, and not to its public carrying. The court disagreed:

The text of the constitution is not so limited; the language is not qualified as to place exceptin the sense that it can have no effect beyond the geographical borders of this state . . . In

Kessler we started from the premise that under § 27 a person has a right to bear arms fordefense of self . . . We then moved from that general proposition to the more particular onethat a person had the constitutional right to have a billy in his home for defense.

Blocker, 291 Ore. at 259 (citation and footnote omitted).

Likewise, Heller announced a general proposition respecting constitutional protection for the

possession of handguns, and applied it to the home-bound facts of the case. McDonald’s description

of Heller neatly parallels Blocker’s description of Kessler:

[I]n [Heller], we held that the Second Amendment protects the right to keep and bear armsfor the purpose of self-defense, and we struck down a District of Columbia law that bannedthe possession of handguns in the home.

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McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010). Extending this logic, there is no

reason to suppose that the Supreme Court would suddenly limit Heller to its facts—and every

reason to suppose that it would decide future Second Amendment cases from the baseline

proposition that the Amendment secures the individual right to keep and carry arms for self-defense.

Defendants’ formulation of the issue is thus inaccurate. Of course “the history underlying

the Second Amendment does not support an unlimited right to carry outside the home.” Def. Br., at

3 (emphasis added). Neither does the history of the First Amendment support an “unlimited right” to

speech or religious worship. Rather, the question here is whether history supports an unlimited

prohibition of a right literally spelled out in the Constitution’s text. Indeed, explaining that this right

is “not unlimited,” in that there is no right to “carry any weapon whatsoever in any manner

whatsoever and for whatever purpose,” Heller, 554 U.S. at 626 (citations omitted), the Supreme

Court confirmed that there is a right to carry at least some weapons, in some manner, for some

purpose. The Court then listed as “presumptively lawful,” id. at 627 n.26, “laws forbidding the

carrying of firearms in sensitive places,” id., at 626, confirming that carrying bans are not

presumptively lawful in non-sensitive places.

Similarly, the notion that “[o]nly one circuit—the Seventh—has extended the Second

Amendment right beyond the home in a jurisdiction (Illinois) that had not already, historically,

recognized some form of public carrying,” Def. Br., at 3, is disingenuous on two levels. Only one

other circuit has dealt with a total handgun carry ban—and struck it down, Moore v. Madigan, 702

F.3d 933 (7th Cir. 2012)—precisely because that sort of law is exceedingly rare. And “the paucity

of precedent sustaining bans comparable to those at issue here” is not a point in Defendants’ favor.

McDonald, 130 S. Ct. at 3047. Moreover, numerous other courts, before and after Heller, have

6


confirmed or assumed that the Second Amendment secures some right to carry handguns for self-

defense. Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014); State v. Christian, 354 Ore.

22, 44 n.11 (2013); Hertz v. Bennett, 294 Ga. 62, 66 (2013); id. at 70 (Blackwell, J., concurring);

People v. Aguilar, 2013 IL 112116, ¶ 20; Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.

2013); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 n.10, 93 (2d. Cir. 2012); In re Brickey,

8 Idaho 597 (1902); Nunn v. State, 1 Ga. 243 (1846). This list does not include opinions securing

the right to bear arms in public under analogous right to bear arms provisions of state constitutions.

Of course, some courts have refused to follow Heller or otherwise give effect to the Second

Amendment’s text. But the issue here is whether Defendants can establish “a strong showing that

[they are] likely to prevail on the merits of [their] appeal,” should they notice one—whether they

might establish “a substantial indication of probable success.” WMATC, 559 F.2d at 843; see also

Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (“whether the stay applicant has made a strong

showing that he is likely to succeed on the merits”) (emphasis added). Nothing in Defendants’

motion explains why their views would likely be adopted on appeal.

Perhaps recognizing that their battle against the Second Amendment’s plain text is hopeless,

Defendants return to an argument rejected long ago by the D.C. Circuit and Supreme Court:

[that] the unique situation of the District—home as it is to the center of federal government(including a history in this city of attempted assassinations by firearm of sitting Presidents),numerous, historically important sites, and thousands of visiting dignitaries and foreignofficials every year (some of whom receive death threats)—requires a careful analysis of therights granted [sic] under the Second Amendment that is distinctly applicable to this uniquejurisdiction. The District believes that it will demonstrate on appeal that its uniquecircumstances require a different outcome here.

Def. Br., at 3 (citations omitted).

7


Alas, the Second Amendment is not “distinctly applicable” or, as Defendants must have

meant, distinctly inapplicable, to the District of Columbia. “[T]he Supreme Court has

unambiguously held that the Constitution and Bill of Rights are in effect in the District.” Parker v.

District of Columbia, 478 F.3d 370, 395 (D.C. Cir. 2007), aff’d sub nom Heller, supra (citing

O’Donoghue v. United States, 289 U.S. 516, 539-41 (1933); Downes v. Bidwell, 182 U.S. 244,

260-61 (1901)). None of the District’s allegedly unique features justify erasing the Second

Amendment wholesale throughout the entire city. Government facilities, Presidents, “historically

important sites,” and “thousands of visiting dignitaries and foreign officials” and various foreign

consulates and missions may be found throughout the United States.3

Of course Defendants may prohibit the carrying of handguns in “government buildings” and

other “sensitive places,” Heller, 554 U.S. at 626, but that does not mean that they might prohibit

carrying guns in a city containing government buildings. To be sure, Presidents travel throughout

the country, and Presidential assassinations have been attempted, sometimes with success, outside

Washington, D.C. In 1975, two attempts were made on President Ford’s life within seventeen days,

in Sacramento and San Francisco, but that did not stop the Ninth Circuit from barring California’s

destruction of the right to bear arms. See Peruta, supra. President Kennedy was assassinated in

Dallas (with a rifle), but licensed Texans enjoy the right to carry handguns without threatening the

political order. President McKinley was assassinated in Buffalo, but at least some New Yorkers are

licensed to carry handguns. Deranged or politically motivated assassins are unlikely to be influenced

by the District’s carry prohibition in any event. And as Plaintiffs briefed previously, President

The protection of foreign dignitaries and officials may well be a field occupied by Congress3

directly, not a matter of home rule for the District of Columbia. See, e.g., 18 U.S.C. §§ 112, 970,1116, 1201. For example, MPD might occasionally assist in the protection of embassies, but thematter is primarily left to the Secret Service.

8


Obama and Vice President Biden routinely travel throughout the great bulk of the United States

where law-abiding citizens may carry handguns, without incident. Plfs. Opp. to Def. SJ Br., at 13-

14. As former White House Press Secretary Robert Gibbs offered, “There are laws that govern

firearms that are done state or locally. Those laws don’t change when the president comes to your

state or locality.”4

The District is not the only city whose urban uniqueness argument for a Second Amendment

exemption failed. “Municipal respondents point out -- quite correctly -- that conditions and problems

differ from locality to locality and that citizens in different jurisdictions have divergent views on the

issue of gun control.” McDonald, 130 S. Ct. at 3046. But that was not a reason to avoid insisting

that the Second Amendment apply in full throughout the United States. Defendants might

“experiment” with regulations fitting local conditions, within constitutional limitations. It is quite

difficult to see a substantial likelihood of success for the argument that Defendants are wholly

exempted from respecting the right to bear arms.

B. Defendants Will Not Suffer Any Injury, Let Alone an Irreparable Injury, in theAbsence of a Stay.

“A party moving for a stay is required to demonstrate that the injury claimed is ‘both certain

and great.’” Cuomo, 772 F.2d at 976 (quotation omitted). The only specific injury Defendants

identified as stemming from the injunction, apart from their generalized interest in enforcing the law,

is apparent confusion as to whether the Court’s order is limited to securing the ability to carry

Alexi Mostrous, “White House Backs Right To Arms Outside Obama Events,”4

Washington Post, Aug. 19, 2009, available at http://www.washingtonpost.com/ wp-dyn/content/article/2009/08/18/AR2009081803416.html (last visited Aug. 3, 2014) (attachedhereto as Exhibit A).

9


handguns or whether it extends to other concealable arms (e.g., knives). The Court has already

resolved this issue. See Order, July 30, 2014, at 2 n.1.

Indeed, Defendant Lanier has offered that the Court’s decision “would have a relatively

minimal impact on street crime or her department’s ability to police neighborhoods and lock up

dangerous criminals who are found carrying guns. ‘Law-abiding citizens that register firearms, that

follow the rules, are not our worry.’” Defendant Lanier’s concern appears to remain the security of5

sensitive places. “My one focus, really, now is going to be security of our dignitaries in those really

highly sensitive large events.” Id.

Moreover,

Lanier . . . said fears were overstated that the end of the carry ban would impede everydaypolicing by putting thousands of additional guns on the street. Lanier also played downconcerns that dangerous criminals could go free if officers cannot detain and charge them forcarrying a weapon in public. Criminals, she said, typically do not possess properly registeredfirearms, meaning they can be charged under other laws not challenged by Scullin’s ruling.

Id. Responding to a statement that D.C. police might require changing their “mindset” to

accommodate legal civilian gun-carrying (thereby aligning their “mindset” with those of police

throughout the United States),

Lanier said Wednesday that is “not a big shift” . . . “We deal with concealed carry everysingle day in this city, I don’t care what anybody tells you,” she said, citing the large numberof plainclothes local and federal law enforcement officers. “Legal guns, legally carried,there’s hundreds of them out there in this city every single day . . . . That’s not a big traininggap for us.”

Id.

Mike DeBonis, “Security, not street crime, at risk after gun ruling, D.C. Police Chief Cathy5

Lanier says,” Washington Post, July 30, 2014, available at http://www.washingtonpost.com/local/dc-politics/security-not-street-crime-at-risk-after-gun-ruling-dc-police-chief-cathy-lanier-says/2014/07/30/f8b17e1c-1808-11e4-9e3b-7f2f110c6265_story.html (last visited Aug. 3, 2014)(attached hereto as Exhibit B).

10


Courts share Defendant Lanier’s position that the mere carrying of a handgun does not

inherently signal the imminent commission of a crime. “[A]s some individuals are legally permitted

to carry guns pursuant to the Second Amendment of the Constitution, a reasonable suspicion that an

individual is carrying a gun, without more, is not evidence of criminal activity afoot.” United States

v. Garvin, Cr. No. 11-480-01, 2012 U.S. Dist. LEXIS 76540, at *10 (E.D. Pa. May 31, 2012),

aff’d, 548 Fed. Appx. 757 (3d Cir. 2013). “Being a felon in possession of a firearm is not the default

status. More importantly, where a state permits individuals to openly carry firearms, the exercise of

this right, without more, cannot justify an investigatory detention.” United States v. Black, 707 F.3d

531, 540 (4th Cir. 2013). “Carrying a gun, which is a Second Amendment right . . . cannot legally6

lead to a finding that the individual is likely to murder someone; if it could, half or even more of the

people in some of our states would qualify as likely murderers.” Dickens v. Ryan, 688 F.3d 1054,

1085 (9th Cir. 2012) (Reinhardt, J., dissenting).

The Court’s order leaves intact the nation’s most stringent handgun registration scheme,

which operates upon anyone wishing to carry a defensive handgun in public. And to this reality, the

District might still add reasonable time, place and manner restrictions. The Court’s order does not

bar the City Council from legislating on this topic. Plaintiffs did not oppose the granting of a ninety-

day stay, pursuant to the Court’s inherent supervisory power, to afford the City Council an

opportunity to enact any constitutional regulations of the right to carry handguns for self-defense.7

Plaintiffs do not claim a right to carry in, specifically, an open or concealed manner. The6

District may regulate the manner in which handguns are carried, but cannot entirely ban carrying.

This Court expects that any new licensing mechanism would actually be “consistent with7

constitutional standards enabling people to exercise their Second Amendment right to bear arms.”Slip op, at 16 (footnote omitted) (emphasis added). Plaintiffs would seek a modification of theinjunction to bar any new laws that simply continue the old, enjoined policy of prohibiting the rightto bear arms under the guise of “regulation.” An illusory licensing scheme that treats the carrying of

11


Ninety days more than suffice for this purpose, considering that the District’s existing handgun

registration scheme (not disturbed by the Court’s decision) already meets or exceeds virtually all

valid licensing standards for the issuance of handgun carry permits in the United States today.8

Moreover, the D.C. City Council has had over six years’ notice as to how the Supreme Court defines

“bear arms,” as used in the Second Amendment. See Heller, 554 U.S. at 584.

Individuals should not tolerate the loss of a fundamental right because the government

would be inconvenienced by enacting timely regulations. That the City Council is on recess until

September 15, Def. Br., at 6, is not Plaintiffs’ problem. Plaintiffs’ fundamental rights are on hold

today, and there is nothing that requires the city to regulate the carrying of handguns—many states

do not generally regulate the carrying of handguns in at least some manner, and some do not

regulate the carrying of handguns at all. If regulation is important, the City Council can return from

its vacation, reorder its priorities, or work more diligently. Plaintiffs find it difficult to believe that

handguns as an administrative dispensation at the police’s pleasure rather than as a right—“verysimilar to the [statutes] at issue in this case,” slip op., at 9—or a “sensitive place” regime that wouldrender defensive handgun carrying wholly impractical, would be a mere circumvention of theCourt’s order. To the extent that the City might require a license to carry a handgun, issuing such

licenses to objectively qualified applicants is not optional. See Heller, 554 U.S. at 635 (regardinglicense to carry gun inside a home: “[a]ssuming that Heller is not disqualified from the exercise of

Second Amendment rights, the District . . . must issue him a license to carry it in the home”)(emphasis added).

While the Seventh Circuit afforded Illinois 180 (eventually 210) days to regulate handgun8

carrying following the demise of that state’s total carry ban, Illinois’ laws regulating handgunpossession are fairly lax relative to the District’s. Illinois requires gun owners to have a “FirearmOwners Identification Card,” issued to any 21 year-old (18 with parental permission) who passes abasic background check. 430 ILCS 65/4. In contrast, the District requires that each handgun beregistered to an individual who has, in addition to passing a background check, undergone aprogram of classroom and live-fire instruction, and passed safety and vision tests. See Slip op., at 16-17 n.4.

12


city officials have not yet started working on a legislative response to the decision in this case, if they

do not seriously intend to pursue an appeal.

History shows that city councils can move fast in this area. Faced with the prospect of losing

its total ban on gun ranges, Chicago warned of a “regulatory vacuum” that would be left between an

injunction and subsequent regulatory efforts. The Seventh Circuit dismissed that concern. “[W]e

note that [Chicago] faced a similar dilemma after the Supreme Court decided McDonald. The sky

did not fall. The City Council moved with dispatch and enacted the Ordinance just four days later.”

Ezell v. City of Chicago, 651 F.3d 684, 711 (7th Cir. 2011). Chicago enacted its post-Ezell gun

range regulations upon issuance of that opinion, the same day, and those regulations took effect

before the District Court had an opportunity to enjoin the old prohibition on remand.

Defendants are not harmed by implementation of the Court’s decision.

C. A Stay Would Injure Plaintiffs and the Public.

“[T]he denial of a constitutional right, if denial is established, constitutes irreparable harm

for purposes of equitable jurisdiction.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987)

(citation omitted); Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998). No9

constitutional right is so directly linked to one’s immediate physical well-being as is the right to keep

and bear arms. The interest in self-defense is the “central component of the [Second Amendment]

right itself,” Heller, 554 U.S. at 599 (emphasis original). Though Defendants refuse to acknowledge

any positive social value to carrying guns, “there seems little legitimate scholarly reason to doubt

that defensive gun use is very common in the U.S., and that it probably is substantially more

Defendants believe that irreparable harm automatically occurs when the government is9

enjoined from enforcing “statutes enacted by the representatives of its people,” Def. Br., at 4(citations omitted), but the Constitution is a higher law ratified by the People directly.

13


common than criminal gun use.” Gary Kleck & Marc Gertz, Armed Resistance to Crime: The

Prevalence and Nature of Self- Defense with a Gun, 86 J. CRIM. L. & CRIMINOLOGY 150, 180

(1995). Plainly, the inability to access constitutionally-protected arms impacts one’s sense of

security—to say nothing of the irreparable harm resulting from a successful criminal attack that

might have been averted with access to defensive arms.

As the Seventh Circuit explained,

The loss of a First Amendment right is frequently presumed to cause irreparable harm basedon “the intangible nature of the benefits flowing from the exercise of those rights; and thefear that, if those rights are not jealously safeguarded, persons will be deterred, even ifimperceptibly, from exercising those rights in the future.” The Second Amendment protects

similarly intangible and unquantifiable interests. Heller held that the Amendment’s centralcomponent is the right to possess firearms for protection. Infringements of this right cannotbe compensated by damages.

Ezell, 651 F.3d at 699 (citations and footnote omitted).

The violation of Second Amendment rights causes individuals severe and irreparable harm

that is not compensable with money damages. There is simply no way to quantify or remedy the

profound loss of security, and its possible consequences, when individuals are denied adequate

means of self-defense.

Rather than acknowledge the fact that “the issuance of a stay [would] substantially harm

other parties interested in the proceedings,” WMATC, 559 F.2d at 843, Defendants simply declare

that their harm would exceed that sustained by Plaintiffs and others, and assert that they are entitled

to a stay owing to a balancing of the equities. As noted supra, however, Defendants are not harmed

at all by the Court’s injunction—a point virtually conceded by Defendant Lanier. And quite unlike

the situation that prevailed in Illinois following Moore, the District is not left without any regulation

of the right to bear arms, but with the nation’s strictest gun registration scheme.

14


Plaintiffs are nonetheless constrained to note that Defendants substantially mischaracterize

the issues in Moore and its companion case, Shepard v. Madigan, 734 F.3d 748 (7th Cir. 2013),

which addressed a set of circumstances quite different from those present here. Moore and Shepard

were filed in different districts, but consolidated on appeal. The decision in Moore struck down

Illinois’ total carry ban, following which, the state enacted a “shall issue” licensing regime for the

carrying of defensive handguns within the (extended) deadline afforded by the Seventh Circuit. The

Shepard plaintiffs, but not the Moore plaintiffs, were upset because it would take time to issue10

licenses under the new law, such that they could not carry handguns within the deadline that the

Seventh Circuit afforded for the enactment of a constitutional regulatory scheme (should the state

opt to enact one, which it did).

Shepard had nothing to do with the propriety, generally, of staying decisions. The stay that

the Seventh Circuit entered, based on the peculiar facts of Illinois’s situation, was entered in Moore.

The only issue in Shepard was what the Seventh Circuit intended to do by staying its decision in

Moore—did the court afford the state time to enact a new law, or did it mandate that any new law

must take effect within the prescribed time period? As the Seventh Circuit explained:

The [Shepard Plaintiffs’] only basis for complaining about the district court’s refusal toenjoin the old law immediately—and thus allow them (if they have a FOID card) to startcarrying guns in public without complying with the new law—is that we ordered it andtherefore the district court has violated our order. That is incorrect. We made no orderregarding relief except to specify a deadline for the state to enact a new law. It met thedeadline. Thus the district court did not violate our mandate and so there is no basis for therelief that the plaintiffs sought.

Shepard, 734 F.3d at 752. The Seventh Circuit was the ultimate arbiter of what it had meant to do

in Moore, and its explanation appears quite reasonable.

Undersigned counsel was lead counsel for the plaintiffs in Moore.10

15


This Court, however, took a different path, enjoining the unconstitutional laws “unless and

until such time as the District of Columbia adopts a licensing mechanism consistent with

constitutional standards enabling people to exercise their Second Amendment right to bear arms.”

Slip op., at 16 (footnote omitted). That was eminently sensible, given (1) the fact that the injunction,

unlike that entered in Moore, hardly left gun carrying unregulated in the District, and (2) the City’s

demonstrated commitment to making the exercise of Second Amendment rights as difficult as

possible. Considering the irreparable harm that the District’s outright prohibition of a fundamental

right imposes, Defendants should be satisfied with the generous ninety day stay that the Court has

afforded them. They are not entitled to any more.

D. The Public Interest Counsels for Denial of a Stay.

It is “obvious” that “enforcement of an unconstitutional law is always contrary to the public

interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (citations omitted). Against this

reality, Defendants claim that “the uncertainty of the scope of the Court’s Order—alone—supports

the issuant [sic] of a stay.” Def. Br., at 8. But there is nothing remotely uncertain about the Court’s

order, aside perhaps from the matter of arms other than handguns that this Court has already

addressed. If Defendants believed that the Court’s decision is unclear, they should have moved to

clarify the judgment.

CONCLUSION

The Court should not consider Defendants’ motion for a stay pending appeal until and unless

Defendants actually file a notice of appeal, or at least indicate that one would be forthcoming by the

jurisdictional deadline for noticing an appeal. Should Defendants do so, the motion should still be

denied.

16


Dated: August 4, 2014 Respectfully submitted,

Alan Gura (D.C. Bar No. 453449)Gura & Possessky, PLLC105 Oronoco Street, Suite 305Alexandria, VA 22314703.835.9085/Fax 703.997.7665

By: /s/ Alan Gura Alan Gura

Attorney for Plaintiffs

17


8/3/14, 7:36 AMWhite House Backs Right to Bear Arms, Even Outside Obama Events, if State Laws Allow

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A man with an AR-15 semiautomatic assaultrifle joins protesters outside an event inPhoenix where President Obama wasdiscussing health-care reform. (By Jack Kurtz -- Associated Press)

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White House Backs Right to Bear Arms, Even Outside ObamaEvents, if State Laws AllowBy Alexi MostrousWashington Post Staff Writer Wednesday, August 19, 2009

Armed men seen mixing with protesters outside recentevents held by President Obama acted within the law,the White House said Tuesday, attempting to allayfears of a security threat.

Robert Gibbs, the White House press secretary, saidpeople are entitled to carry weapons outside suchevents if local laws allow it. "There are laws thatgovern firearms that are done state or locally," he said."Those laws don't change when the president comes toyour state or locality."

Anti-gun campaigners disagreed with Gibbs'scomments, voicing fears that volatile debates overhealth-care reform are more likely to turn violent ifgun control is not enforced.

"What Gibbs said is wrong," said Paul Helmke,president of the Brady Campaign to Prevent GunViolence. "Individuals carrying loaded weapons atthese events require constant attention from police andSecret Service officers. It's crazy to bring a gun tothese events. It endangers everybody."

The past week has seen a spate of men carryingfirearms while milling outside meetings Obama hasheld to defend his health-care reform effort. OnMonday, a man with an AR-15 semiautomatic assaultrifle strapped to his shoulder was outside a veterans'event in Phoenix. He was one of a dozen men whoreportedly had guns outside the forum.

Phoenix police made no arrests, saying Arizona lawallows weapons to be carried in the open.

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Last week, a man with a gun strapped to hisleg held a sign outside an Obama town hallmeeting in Portsmouth, N.H., that read: "It'stime to water the tree of liberty."

Before the same meeting, Richard TerryYoung, a New Hampshire resident, wasarrested by the Secret Service for allegedlyhaving a loaded, unlicensed gun in his car.Young was stopped inside the school whereObama held the forum, having reportedlysneaked past a security perimeter.

Ed Donovan, a spokesman for the SecretService, said incidents of firearms being carried outside presidential events are a"relatively new phenomenon." But he said the president's safety is not being jeopardized.

"We're well aware of the subjects that are showing up at these events with firearms," hesaid. "We work closely with local law enforcement to make sure that their very strict lawson gun permits are administered. These people weren't ticketed for events and wouldn'thave been allowed inside and weren't in a position outside to offer a threat." Theimmediate area occupied by Obama on such trips is considered a federal site whereweapons are not permitted, Donovan said.

Lawmakers holding tense town hall debates about health-care reform also have seenarmed constituents. The staff of some, including Rep. Stephen I. Cohen (D-Tenn.), havetaken precautions to guard against guns being brought into gatherings.

"We asked everyone with firearms to check them with the sheriff before we began themeeting," said Marilyn Dillihay, Cohen's chief of staff, describing an Aug. 8 town halldebate in Memphis. "We've never done that before." The decision was made because thenumber of people at the event and the subject of the debate created a "potentially avolatile situation," she said.

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Page 2 of 2 < Back White House Backs Right to Bear Arms, Even Outside ObamaEvents, if State Laws Allow

"Obviously there's a lot of emotion with health care,"Dillihay said. "Feelings are very tense, and we werejust trying to make sure that things were safe."

One man at the meeting disclosed that he had a firearmand complied with a request to put it in his vehicle, shesaid.

Other lawmakers said they intended to take noprecautions in future town hall meetings or to ask theadvice of local law enforcement. C.J. Karamargin, aspokesman for Rep. Gabrielle Giffords (D-Ariz.), saidthe congresswoman will "balance rights guaranteedunder the Second Amendment and providing herconstituents with a safe forum to share their views."

Brian Levin, director of the Center for the Study ofHate and Extremism at California State University atSan Bernardino, said concern about whether Obamawill enact new gun restrictions may also becontributing to the tense political climate.

"There's a lot of anger out there," Levin said.

"A key thing that's been bubbling under the surface iswhat's going on with President Obama and guns," hesaid. "There is a real question mark not only for extremists but for gun rights advocates inthe mainstream."

Staff writer Carrie Johnson contributed to this report.

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7/31/14, 1:40 AMSecurity, not street crime, at risk after gun ruling, D.C. Police Chief Cathy Lanier says - The Washington Post

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D.C. Chief of Police Cathy L. Lanier shown June 11 at the 9th annual LawEnforcement Awards Ceremony in Washington, D.C. (Sarah L. Voisin/TheWashington Post)

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provisions” restricting the public from bearing arms in

sensitive locations at sensitive times. Otherwise, she said,

the decision would have a relatively minimal impact on

street crime or her department’s ability to police

neighborhoods and lock up dangerous criminals who are

found carrying guns.

“Law-abiding citizens that register firearms, that follow

the rules, are not our worry,” she said. “Our worry really

is, how do we maintain the level of security in the

nation’s capital that we’re required to maintain 24 hours

a day in the areas that we’re required to maintain that

security?”

The ruling by Senior U.S. District Judge Frederick J.

Scullin Jr. was stayed, or put on hold, until late October

while city leaders determine how to comply with his

finding that the city’s flat ban on the carrying of weapons

by people who are not law enforcement officials violates

the Second Amendment to the Constitution.

Lanier made note of major public events such as the

Fourth of July celebrations on the Mall and next week’s

U.S.-Africa Leaders Summit, which is expected to attract

dozens of world leaders, as places where gun carrying

should be tightly restricted.

“There are a lot of big things like that, that we really need

to think through what provisions are going to be valuable

to us that are unique to Washington, D.C.,” she said. “Of

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all of my concerns, my biggest concern is, how do we

designate what are the sensitive things that we need to

provide security for?”

Mayor Vincent C. Gray (D) and a top aide to D.C.

Attorney General Irvin B. Nathan said Wednesday that

those efforts are on a dual track as officials consider

whether to lodge an appeal and also how best to modify

city law to comport with Scullin’s ruling.

Scullin granted a 90-day stay of his ruling Tuesday. The

city has asked for a longer delay to continue until any

appeals are resolved; Scullin has asked for further

argument before ruling on the request.

Alan Gura, an attorney for the several gun owners and

nonprofit group that challenged the ban, said it was

“refreshing to hear” that Lanier does not consider law-

abiding gun owners a threat. He also said the District

should be able to strike an appropriate balance between

security needs and Second Amendment rights.

“Appropriate time, place and manner restrictions are

constitutional, but that does not mean that the entire

District is a ‘sensitive place,’ ” as the city has argued in

court, Gura said.

Ariel Levinson-Waldman, Nathan’s senior counsel, said

that the decision to appeal is under review but that

officials also plan to “explore ways to make sure that our

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carry laws continue to be strong . . . but may perhaps be

drawn back from an absolute ban.”

“We are the seat of the federal government,” he said,

echoing arguments that city lawyers have made in court.

“We have dignitaries and other federal officials who are

subject to constant death threats. We have had actual

assassinations and assassination attempts using firearms

in this city. We are a unique place, and so there is a very

serious and open question about whether our ban is fully

valid.”

Lanier, speaking with the other officials during a mayoral

event at the Walter E. Washington Convention Center,

said fears were overstated that the end of the carry ban

would impede everyday policing by putting thousands of

additional guns on the street. Lanier also played down

concerns that dangerous criminals could go free if

officers cannot detain and charge them for carrying a

weapon in public. Criminals, she said, typically do not

possess properly registered firearms, meaning they can

be charged under other laws not challenged by Scullin’s

ruling.

Delroy Burton, head of the D.C. police union, said this

week that if civilians are allowed to carry guns, “the

mind-set of officers has to change for how we have to

deal with that.” But Lanier said Wednesday that is “not a

big shift.”




“We deal with concealed carry every single day in this

city, I don’t care what anybody tells you,” she said, citing

the large number of plainclothes local and federal law

enforcement officers. “Legal guns, legally carried, there’s

hundreds of them out there in this city every single day.

. . . That’s not a big training gap for us.”

She also disputed claims that allowing the public to carry

weapons would have a significant impact on street crime,

citing her experience after the Supreme Court decision,

District of Columbia v. Heller, that struck down the city’s

long-standing handgun ban.

“When Heller came out in 2008, people said, ‘Oh, street

crime’s going to go down.’ Well, Heller only allows you to

have a handgun in your home, and guess what

happened? Burglaries went up. So I don’t know that

there’s any valid debate on the crime side. My one focus,

really, now is going to be security of our dignitaries in

those really highly sensitive large events.”

Peter Hermann contributed to this report.

Mike DeBonis covers local politics and government

for The Washington Post. He also writes a blog and a

political analysis column that runs on Fridays.


IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

TOM G. PALMER, et al., ) Case No. 09-CV-1482-FJS)

Plaintiffs, ) [PROPOSED] ORDER)

v. ))

DISTRICT OF COLUMBIA, et al., ))

Defendants. )

[PROPOSED] ORDER

This matter came before the Court on Defendants’ Motion for Stay Pending Appeal.

The motion is DENIED.

Dated: August ____, 2014

______________________________________The Hon. Frederick J. Scullin, Jr.United States District Judge


Gun Ruling

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