Angelo v. District of ColumbiaAngelo v. District of Columbia
MEMORANDUM OPINION AND ORDER
Plaintiffs, residents of District of Columbia and Virginia who hold licenses to carry concealed pistols in the District, challenge the constitutionality of a District law that prohibits them from carrying their firearms on “public transportation vehicle[s], including the Metrorail transit system and [in] its stations.”
I. BACKGROUND
District of Columbia law permits individuals to carry pistols “concealed on or about their person” if they have “a license issued pursuant to District of Columbia law.”
As relevant here, the law also prohibits licensed gun owners from carrying a pistol on “[a] public transportation vehicle, including the Metrorail transit system and its stations.”
Plaintiffs Gregory T. Angelo, Tyler Yzaguirre, and Cameron M. Erickson live in the District of Columbia. See Dkt. 6-2 at 1 (Angelo Decl. ¶ 1); Dkt. 6-3 at 1 (Yzaguirre Decl. ¶ 1); Dkt. 6-5 at 1 (Erickson Decl. ¶ 1). Plaintiff Robert M. Miller is a resident of Virginia. See Dkt. 6-4 at 1 (Miller Decl. ¶ 1). Each avers that he “hold[s] a license to carry a concealed pistol issued by the D.C. Metropolitan Police Department” and that he “regularly ride[s] the Metro subway and Metro buses,” see Dkt. 6-2 at 1 (Angelo Decl. ¶¶ 2–3); Dkt. 6-3 at 1 (Yzaguirre Decl. ¶¶ 2–3); Dkt. 6-4 at 1 (Miller Decl. ¶¶ 2–3); Dkt. 6-5 at 1 (Erickson Decl. ¶¶ 2–3). Erickson and Yzaguirre use public transportation to commute to work, Dkt. 18-4 at 5–6 (Defs.’ Ex. A) (Pls.’ Interrog. Resp.), and, although he works from home, Angelo estimates that he used public transportation in the District “[a]n average of 24 times a month from 2019 and 2022,”
On June 30, 2022, Plaintiffs sued the District of Columbia and Robert J. Contee III, the Chief of the D.C. Metropolitan Police Department, for declaratory and injunctive
II. LEGAL STANDARD
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To prevail on a motion for a preliminary injunction, “[t]he movant must: (1) establish a likelihood of ‘succe[ss] on the merits;’ (2) show ‘irreparable harm in the absence of preliminary relief;’ (3) demonstrate that the equities favor issuing an injunction; and (4) persuade the court that ‘an injunction is in the public interest.‘” Trump v. Thompson, 20 F.4th 10, 31 (D.C. Cir. 2021) (second alteration in original) (quoting Winter, 555 U.S. at 20). Before the Supreme Court‘s decision in Winter, courts in this circuit applied a “sliding-scale” approach under which “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Since Winter, however, the D.C. Circuit has hinted on several occasions that Winter should be read to suggest that “a likelihood of success is an independent, free-standing requirement for a preliminary injunction,” id. at 393 (quoting Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)), but it “has not yet needed to decide th[e] issue,” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016); see also Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022).
In any event, the D.C. Circuit has declared in unequivocal terms that “[a] party seeking a preliminary injunction ‘must show a substantial likelihood of standing.‘” Green v. U.S. Dep‘t of Just., --- F. 4th ---, 2022 WL 17419644, at *3 (D.C. Cir. Dec. 6, 2022) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015)); see also Obama v. Klayman, 800 F.3d 559, 565 (D.C. Cir. 2015) (Williams, J.) (“The affirmative burden of showing a likelihood of success on the merits . . . necessarily includes a likelihood of the court‘s reaching the merits, which in turn depends on a likelihood that the plaintiff has standing.” (internal quotation marks omitted) (emphasis in original)); Cal. Ass‘n of Priv. Postsecondary Schs. v. DeVos, 344 F. Supp. 3d 158, 167 (D.D.C. 2018) (noting that “regardless of whether the sliding scale approach applies, parties seeking a preliminary injunction must” establish a likelihood that all “jurisdictional prerequisites” are satisfied). That rule makes eminent sense, as “[d]efect[s] of standing” constitute “defect[s] in subject matter jurisdiction,” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987), and courts must proceed with caution when their jurisdiction is in doubt. Whatever the precise contours of the authority of courts sitting in equity, it is safe to conclude that—at a bare minimum—a court ought not issue an injunction, which could remain in place for many months while the parties litigate the case to a final judgment, when the court is unpersuaded that it has jurisdiction—or even that it “likely” has jurisdiction—and the injunction is unnecessary to preserve the court‘s jurisdiction.
Plaintiffs must support their standing to bring suit “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). Accordingly, at the pleading stage, “general factual allegations of injury resulting from the defendant‘s conduct may suffice,” Lujan, 504 U.S. at 561, and the court should dismiss a claim for lack of jurisdiction only if the plaintiffs have failed to “state a plausible claim that [they have] suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits,” Food & Water Watch, Inc., 808 F.3d at 913 (alteration in original) (quoting Humane Soc‘y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015)). But because, on a motion for preliminary injunction, the Court should “evaluate[] Plaintiffs’ standing to bring their claims under the heightened standard for evaluating a motion for summary judgment,”
III. ANALYSIS
To establish Article III standing, Plaintiffs must demonstrate that they are suffering an “injury in fact“—“an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal citations and quotation marks omitted). “The plaintiff[s‘] injury must be ‘fairly traceable to the challenged action of the defendant,’ and likely to be ‘redressed
No plaintiff in this case has been arrested and prosecuted—or threatened with arrest or prosecution or with the imposition of a civil penalty—for violating the provision of D.C. law at issue here. But Plaintiffs contend that they are suffering continuing, adverse effects sufficient to support standing because
A.
The first of the preenforcement standing requirements is easily satisfied here. The D.C. Circuit has disavowed any requirement that plaintiffs asserting preenforcement challenges express an “unconditional intention to engage in the proscribed behavior, regardless of whether the statute is invalidated.” Seegars v. Gonzales, 396 F.3d 1248, 1251 (D.C. Cir. 2005) (emphasis in original). As a result, the first United Farm Workers prong is satisfied where, for example, plaintiffs who did not own firearms at the time of litigation alleged that they forewent the “additional security of possessing pistols” “because of the threat of criminal prosecution.” Id. at 1251; see also Ord, 587 F.3d at 1143 (concluding that a plaintiff had standing to bring a preenforcement challenge where “his complaint and affidavit c[ould] only be understood to mean that if the threat of arrest [were] removed, he intend[ed] to travel to D.C. while armed“). Here, Plaintiffs aver, under the penalty of perjury, that, “[b]ut for D.C. law, [they] would carry [their] concealed handgun[s] on Metro trains and buses for self-defense” and that they “do not do so now because [they] fear arrest and prosecution.” Dkt. 6-2 (Angelo Decl. ¶ 4); Dkt. 6-3 (Yzaguirre Decl. ¶ 4); Dkt. 6-4 (Miller Decl. ¶ 4); Dkt. 6-5 (Erickson Decl. ¶ 4). That course of conduct—i.e., the carrying of pistols on public transportation—moreover, is one “arguably affected with a constitutional interest.” Ord, 587 F.3d at 1140 (quoting United Farm Workers, 442 U.S. at 298); see N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022) (concluding that the Second Amendment “protect[s] the right of an ordinary, law-abiding citizen” to “carry handguns publicly for their self-defense“).
It is at the second prong of the United Farm Workers test where Plaintiffs’ claim of standing falters. Significantly, binding D.C. Circuit case law “demands more than does United Farm Workers,” Ord, 587 F.3d at 1141—at least where the
The D.C. Circuit first articulated this imminence requirement in Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), which required the court to evaluate the Article III standing of gun manufacturers to bring a preenforcement challenge to various provisions of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796. The challenged law, among other things, made it unlawful for any person to “manufacture, transfer, or possess a semiautomatic assault weapon,” Navegar, Inc., 103 F.3d at 997 (quoting
As to the statutory provisions that explicitly named the plaintiffs’ products, the court held that, “[b]ecause it is clear to whom these provisions of the Act would be applied were they to be applied at all,” the fear of prosecution was “firmly grounded in the language of the Act;” the only context in which that fear could be deemed “speculative” would be “if it [were] likely that the government [would] simply decline to enforce these provisions at all.”
The D.C. Circuit reaffirmed this approach to preenforcement challenges eight years later—at least as to those that challenge “a criminal statute not burdening expressive rights and not in the form of appeal from an agency decision.” Seegars, 396 F.3d at 1253. In Seegars v. Gonzalez, a group of D.C. residents who wished “lawfully [to] possess pistols in the District” challenged a series of firearms registration laws that effectively prohibited them from “purchas[ing] and lawfully possess[ing] a new pistol” (unless the pistol was registered “before September 24, 1976“) and from, in one plaintiff‘s case, “remov[ing] the trigger lock” on the shotgun that she stored in her home.
In considering whether the Seegars plaintiffs had standing to challenge these laws, the D.C. Circuit acknowledged that its analysis in Navegar was “in sharp tension with” both the “standard rules governing preenforcement challenges to agency regulations” and with the D.C. Circuit‘s “cases upholding preenforcement review of First Amendment challenges,” where the court‘s apparent concern with “‘chilling effects’ on speech” had allowed plaintiffs to bring preenforcement challenges even absent a specific threat of enforcement or a high probability thereof.
Two years after its decision in Seegars, the D.C. Circuit once again considered a preenforcement challenge to the same laws challenged in Seegars; the Court, again, reached the same conclusion as to all but one plaintiff. See Parker, 478 F.3d at 374–78. As in Seegars, the Parker plaintiffs alleged that the D.C. licensing and trigger-lock requirements precluded them from “possess[ing] what they describe[d] as ‘functional firearms‘“—i.e., “ones that could be ‘readily accessible to be used effectively when necessary’ for self-defense in the home,”
These cases paint a clear picture: to establish Article III standing, a plaintiff bringing a preenforcement challenge must do more than show that the government enforces its laws as written. Measured against this standard, Plaintiffs’ grounds for asserting standing fall short. At this stage, Plaintiffs rest their entire standing argument on the facial contention that “[b]ut for D.C. law, [they] would carry [their] concealed handgun[s] on Metro trains and buses for self-defense” and that they “do not do so now because [they] fear arrest and prosecution.” Dkt. 6-2 (Angelo Decl. ¶ 4); Dkt. 6-3 (Yzaguirre Decl. ¶ 4); Dkt. 6-4 (Miller Decl. ¶ 4); Dkt. 6-5 (Erickson Decl. ¶ 4). Although the Seegars court observed, in describing the imminence requirement, that “clarity prevails only at the poles,” 396 F.3d at 1252, Plaintiffs—who could not, at oral argument, identify a single person “with a concealed carry permit [who has] ever been arrested for carrying a handgun on public transportation in the District of Columbia while not engaged in another crime,” Rough Tr. at 8–9 (Dec. 12, 2022 Hearing)—have done little to establish that the threat of enforcement is more than “speculative,” Seegars, 396 F.3d at 1252.
Notably, notwithstanding binding D.C. Circuit precedent on the issue, Plaintiffs made no colorable effort to establish standing in moving for a preliminary injunction; surprisingly, they
do not even mention Navegar, Seegars, or Parker in their opening brief. See Dkt. 6-1. For the first time in their reply, Plaintiffs argue that “[t]he District has never disclaimed an intent to enforce the Metro carry ban.” Dkt. 29 at 13. But nowhere do Plaintiffs allege (much less show a likelihood of establishing) that they “have been singled out or uniquely targeted by the D.C. government for prosecution,” Parker, 478 F.3d at 375, and they point to no “prior threats against them” and to no “characteristics indicating an especially high probability of enforcement against them,” Seegars, 396 F.3d at 1255. The Court, accordingly, finds no basis to distinguish the plaintiffs who, fearing prosecution, decide not to bring their handguns on a Metrorail train or Metrobus from those in Seegars and Parker who, fearing prosecution, decided not to possess pistols at all. See
B.
Rather than squarely address their burden to establish standing under Navegar and its progeny, Plaintiffs argue that the D.C. Circuit‘s precedents are either “not the law under binding Supreme Court precedent” or are “distinguishable” from the present case. Dkt. 29 at 14. The Court is unpersuaded.
Plaintiffs first contend that Seegars and Navegar “have been eviscerated” by the Supreme Court‘s recent decision in New York State Rifle & Pistol Ass‘n v. City of New York (“NYSR&P“), 140 S. Ct. 1525 (2020) (per curiam). See Dkt. 29 at 14. In NYSR&P, three gun owners challenged a New York City rule that regulated the
In Plaintiffs’ view, the Supreme Court‘s per curiam order—which said nothing about standing—implicitly rejected the D.C. Circuit‘s preenforcement standing precedents. “If plaintiffs had needed to be singled out or personally threatened to have standing,” they argue, “the Court would have never reached the question whether the claims were moot, nor would the Court have vacated and remanded for a determination whether the plaintiffs could assert a damage claim.” Dkt. 29 at 15. That argument is unavailing for at least three reasons. First, as the Supreme Court has repeatedly recognized, courts may resolve the question of mootness “without first determining whether [the plaintiffs] ha[ve] standing because the former question” (mootness), “like the latter” (standing), “goes to the Article III jurisdiction of this Court and the courts below, not to the merits of the case.” Arizonians for Official English v. Arizona, 520 U.S. 43, 66–67 (1997); see also Burke v. Barnes, 479 U.S. 361, 364 (1987) (declining to address standing because the Court determined that the case was moot); Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (endorsing this same approach). To be sure, “subject-matter jurisdiction necessarily precedes a ruling on the merits.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999). But “the same principle does not dictate a sequencing of jurisdictional issues” and “[i]t is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits.”
Second, it is not evident that the New York City residents challenging the transportation laws faced the same difficulty establishing standing that the Plaintiffs do in this case. At least two of the three plaintiffs in NYSR&P had “been advised by out-of-state ranges that they were not permitted to engage in target practice or [to] participate in shooting competitions at those ranges because of New York City‘s enforcement” of the handgun-transportation rule. N.Y. State Rifle & Pistol Ass‘n, 86 F. Supp. 3d at 257. Those plaintiffs, accordingly, may well have alleged a concrete injury based on their inability to engage in those activities, regardless of whether they faced a credible fear of prosecution. Cf. Cuti v. Garland, --- F. Supp. 3d ---, 2022 WL 4598536, at *2, *4 (D.D.C. Sept. 29, 2022) (concluding that the plaintiff had “at least plausib[ly] allege[d]” a redressable
Third, although the Supreme Court typically “vacate[s] the judgment with directions to dismiss” when “disposing of a case that has become moot on appeal,” the Court does not follow that practice “where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously.” Lewis v. Continental Bank Corp., 494 U.S. 472, 482 (1990); see also NYSR&P, 140 S. Ct. at 1526 (quoting same). In those circumstances, the Supreme Court typically “vacate[s] the judgment and remand[s] for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.” Lewis,
Plaintiffs’ second argument posits that the Navegar line of cases is inconsistent with the Supreme Court‘s standing precedents, which, in Plaintiffs’ view, require only a “credible” threat of prosecution and expressly disavow the notion that an individual must be subject to “arrest, prosecution, or other enforcement action” before challenging a criminal statute. Dkt. 29 at 17–18 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 159 (2014)); see also United Farm Workers, 442 U.S. at 298. Of particular relevance to Plaintiffs’ argument is the Supreme Court‘s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), in which the Court concluded that a party to a patent license agreement had standing to “challenge the validity of [a] patent without terminating or breaking the agreement,”
To be sure, the Supreme Court‘s First Amendment precedents are more difficult to square with Navegar and its progeny. Although the Supreme Court has emphasized even in the First Amendment context that the “threatened enforcement [must be] sufficiently imminent” to warrant “preenforcement review,” Susan B. Anthony List, 573 U.S. at 159, the Court has not always required, in that context, that challengers “have been singled out or uniquely targeted by the . . . government for prosecution,” Parker, 478 F.3d at 375. In Babbitt v. United Farm Workers, for example, the Supreme Court concluded that the plaintiffs had standing to bring a preenforcement suit challenging a statute that barred the use of “dishonest, untruthful, and deceptive publicity” based on allegations that the plaintiffs had “actively engaged in consumer publicity campaigns in the past,” intended to continue doing so, and that “erroneous statements [were] inevitable” in those future publicity campaigns. 442 U.S. at 301–02 (internal quotation marks omitted). And in Virginia v. American Booksellers Ass‘n, 484 U.S. 383 (1988), the Court concluded that a group of booksellers had standing to challenge a Virginia law that criminalized the display of certain types of sexually explicit materials for commercial purposes simply because “the State ha[d] not suggested that the newly enacted law w[ould] not be enforced” and because the booksellers, accordingly, had “an actual and well-founded fear that the law will be enforced against them.”
Notwithstanding that tension, “[s]tare decisis compels adherence to a prior factually indistinguishable decision of a controlling court,” Brewster v. Comm‘r of Internal Revenue, 607 F.2d 1369, 1373 (D.C. Cir. 1979), and it is the province of the D.C. Circuit, and not this Court, to harmonize circuit precedent and to say when D.C. Circuit decisions should be overruled, see Critical Mass Energy Proj. v. Nuclear Reg. Comm‘n, 975 F.2+d 871, 876 (D.C. Cir. 1992) (noting that decisions of the D.C. Circuit “bind the circuit ‘unless and until overturned by the court en banc
[the court] must be faithful to Seegars just as the majority in Seegars was faithful to Navegar.” Parker, 478 F.3d at 375. Whatever the merits of Plaintiffs’ doctrinal critiques, then, this Court must, just like the D.C. Circuit, remain faithful to these precedents.
Lastly, Plaintiffs contend, to no avail, that Seegars and Navegar are distinguishable, even if they remain good law. Dkt. 29 at 20. Unlike the plaintiffs in Seegars, who “could have applied to register a pistol and then challenged the subsequent denial,” a preenforcement challenge is, in Plaintiffs’ view, the only “means of seeking relief” here—aside from risking arrest and prosecution.
Plaintiffs also suggest, although only in passing, that this case is distinct from Navegar because “[a] specific statute governs when and where [these plaintiffs] may carry their firearms,” Dkt. 29 at 21, while “the general nature of the language” in some portions of the Act at issue in Navegar “ma[de] it impossible to foretell precisely how [the Act‘s] provisions [would] be applied,” Navegar, Inc., 103 F.3d at 1001. But the “general nature of the language” at issue in Navegar “suggest[ed] [to the D.C. Circuit] additional concerns as to the[] [claim‘s] ripeness” and did not seem to factor into the plaintiff‘s standing to bring the suit.
Finally, the Court notes that it is far from clear that Plaintiffs have shown enough to establish standing—or a likelihood that they have standing—even under a standard less onerous than that set forth in the Navegar line of cases. In United Farm Workers, for example, the Supreme Court identified three requirements to establish standing in a First Amendment, preenforcement suit: the plaintiff must show that (1) she intends “to engage in a course of conduct arguably affected with a constitutional interest;” (2) her actions are “proscribed by a statute;” and (3) “there exists a credible threat of prosecution” under that statute. 442 U.S. at 298. Here, Plaintiffs have offered declarations that arguably satisfy the first two elements of this test. They leave the third element, however, entirely unaddressed.
To be sure, as Judge Williams observed in Seegars, “the adjective ‘credible’ says little or nothing about the requisite level of probability of enforcement.” 396 F.3d at 1252. But the term does provide “clarity . . . at the poles,”
In sum, then, Plaintiffs have failed to allege that they satisfy the imminence requirement as articulated by the D.C. Circuit in Navegar and Seegars; have failed to persuade the Court that the D.C. Circuit‘s precedents are no longer good law or do not control this case; and, indeed, have failed to offer any evidence regarding whether and how
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for preliminary and permanent injunctive relief, Dkt. 6, is hereby DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: December 28, 2022