Brian WRENN, et al., Plaintiffs v. DISTRICT OF COLUMBIA, et al., Defendants
Civil Action No. 15-162 (CKK)
United States District Court, District of Columbia.
Signed March 07, 2016
107 F.Supp.3d 1
COLLEEN KOLLAR-KOTELLY, United States District Judge
Andrew J. Saindon, D.C. Office of Attorney General, Washington, DC, Chad Alan Naso, Office of the Attorney General, District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION and ORDER
COLLEEN KOLLAR-KOTELLY, United States District Judge
In this case, Plaintiffs Brian Wrenn, Joshua Akery, Tyler Whidby, and the Second Amendment Foundation, Inc., challenge several provisions of the District of Columbia‘s licensing scheme for carrying handguns in public, including the permissive nature of the scheme and the “good reason/other proper reason” requirement for obtaining a concealed carry handgun license. Plaintiffs claim that the challenged requirements violate their rights under the Second Amendment to the Constitution to “keep and bear Arms.” Before the Court is Plaintiffs’ [6] Motion for Preliminary Injunction. Plaintiffs ask the Court to enter an order enjoining Defendants District of Columbia and Cathy Lanier, Chief of Police of the District of Columbia‘s Metropolitan Police Department, from enforcing the “good reason/other proper reason” requirement against the individual Plaintiffs and against the members of the Second Amendment Foundation and from denying
Upon consideration of the pleadings,1 the relevant legal authorities, and the record for purposes of this motion, the Court DENIES Plaintiffs’ [6] Motion for Preliminary Injunction. The Court concludes that, even assuming without deciding for the purposes of this motion alone that the Second Amendment includes a right to carry arms publicly in the District of Columbia,2 Plaintiffs have not met their burden of showing a likelihood of success on the merits. With respect to the other equitable factors the Court must consider in evaluating a motion for a preliminary injunction, the Court concludes that Plaintiffs have satisfied the irreparable harm factor in light of their allegation of a constitutional violation, but that Plaintiffs have not met their burden of showing that the equities tip in their favor or that the issuance of an injunction would be in the
I. BACKGROUND
The Court provides a brief review of the background necessary to resolve the pending motion for a preliminary injunction. Pursuant to District of Columbia law, “[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon.”
The Chief of the Metropolitan Police Department (“Chief“) may, upon the application of a person having a bona fide residence or place of business within the District of Columbia, or of a person having a bona fide residence or place of business within the United States and a license to carry a pistol concealed upon his or her person issued by the lawful authorities of any State or subdivision of the United States, issue a license to such person to carry a pistol concealed upon his or her person within the District of Columbia for not more than 2 years from the date of issue, if it appears that the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol, and that he or she is a suitable person to be so licensed.
Pursuant to the parameters for the licensing scheme stated in the D.C. Code, Chief of Police Cathy Lanier issued the following regulations elucidating the requirement of “good reason to fear injury to person or property“:
§ 2333.1 A person shall demonstrate a good reason to fear injury to his or her person by showing a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks which demonstrate a special danger to the applicant‘s life.
§ 2333.2 For the purposes of satisfying the specifications of § 2333.1, a person shall allege, in writing, serious threats of death or serious bodily harm, any attacks on his or her person, or any theft of property from his or her person. The person shall also allege that the threats are of a nature that the legal possession of a pistol is necessary as a reasonable precaution against the apprehended danger.
§ 2333.3 The person shall provide all evidence of contemporaneous reports to the police of such threats or attacks, and disclose whether or not the applicant has made a sworn complaint
to the police or the courts of the District of Columbia concerning any threat or attack. § 2333.4 The fact that a person resides in or is employed in a high crime area shall not by itself establish a good reason to fear injury to person or property for the issuance of a concealed carry license.
D.C. Mun. Regs., tit. 24, § 24-2333.1-4 (2015); see 62 D.C. Reg. 9781 (July 17, 2015). The Chief of Police also promulgated the following regulation elucidating the “other proper reason” alternative criterion:
A person may allege any other proper reason that the Chief may accept for obtaining a concealed carry license which may include:
(a) Employment of a type that requires the handling of large amounts of cash or other highly valuable objects that must be transported upon the applicant‘s person; or
(b) The need for a parent, son, daughter, sibling, or other adult member of the immediate family to provide protection of a family member who is physically or mentally incapacitated to a point where he or she cannot act in defense of himself or herself, and the family member who is physically or mentally incapacitated can demonstrate a good reason to fear injury to his or her person by showing a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks which demonstrate a special danger to the applicant‘s life in the manner described in § 2333.
D.C. Mun. Regs., tit. 24, § 24-2334 (2015); see 62 D.C. Reg. 9781 (July 17, 2015). These requirements are further implemented through the Concealed Carry Pistol Application developed by the Metropolitan Police Department. See Pls.’ Mot., Ex. 6; see also “Applying for a Concealed Carry Pistol License,” Metropolitan Police Department website, available at http://mpdc.dc.gov/page/applying-concealed-carry-pistol-license (including links to application and associated instructions) (last visited March 2, 2016).
Essentially, the individual Plaintiffs—who are members of the Second Amendment Foundation—claim that they were denied concealed carry pistol licenses on the basis that they did not demonstrate “good reason to fear injury” or “other proper reason” to justify such a license. See Pls.’ Mot. at 6-9 (citing attached declarations). In addition, Plaintiffs state that other members of the Second Amendment Foundation would qualify for a concealed carry license but for the good reason/other proper reason requirement and that they have refrained from applying for concealed carry licenses because they believe that doing so would be futile in light of the applicable legal requirements. See Pls.’ Mot., Declaration of Alan Gottlieb, ECF No. 6-11, ¶ 7.
In this case, Plaintiffs argue that three aspects of the licensing scheme violate what they claim is their Second Amendment right to carry handguns in public in the District of Columbia: (1) the permissive nature of the scheme—that the Chief of Police may issue a license rather than being required to issue a license (e.g., “shall issue“) upon an applicant‘s satisfaction of the relevant statutory and regulatory criteria; (2) the good reason/other proper reason requirement; and (3) the rules promulgated to elucidate the good reason/other proper reason requirement, including those mandated by the applicable D.C. Code provisions, see
Through Plaintiffs’ motion for a preliminary injunction, they ask the Court to enter the following two-pronged injunction:
Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, are enjoined from denying handgun carry licenses to applicants who meet the requirements of
D.C. Code § 22-4506(a) and all other current requirements for the possession and carrying of handguns under District of Columbia law; moreover,Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, are enjoined from enforcing the requirement of
D.C. Code § 22-4506(a) that handgun carry license applicants have a “good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol,” including, but not limited to, the manner in which that requirement is defined byD.C. Code § 7-2509.11 and 24 D.C.M.R. §§ 2333.1, 2333.2, 2333.3, 2333.4 and 2334.1, against Brian Wrenn, Joshua Akery, Tyler Whidby, and other [Second Amendment Foundation] members.
Pls.’ Mot., Proposed Order, ECF No. 6-12. In essence they seek first to enjoin Defendants from enforcing the good reason/other proper reason requirement (as implemented in the District‘s regulations) against the individual Plaintiffs and against other members of the Second Amendment Foundation. They also seek to enjoin Defendants from denying a concealed carry license pistol application upon a showing that any applicant satisfies the requirements that remain applicable to them, including those requirements regarding the applicant‘s suitability,4 place of residence, and licensure in other jurisdictions. In short, under the injunction sought by Plaintiffs, the good reason/other proper reason requirement would not apply to the individual Plaintiffs or to members of the Second Amendment Foundation; but it would apply to other applicants. With respect to all applicants, as a result of the injunction Plaintiffs seek, Defendants
Previously, Senior Judge Frederick J. Scullin, Jr., of the Northern District of New York, was assigned to this case and issued the preliminary injunction sought by Plaintiffs. See Wrenn v. D.C., 107 F. Supp. 3d 1, 14 (D.D.C. 2015) vacated, 808 F.3d 81 (D.C. Cir. 2015). That injunction was vacated by the D.C. Circuit Court of Appeals in light of its conclusion that the assignment of the case to Judge Scullin exceeded his jurisdictional authority under the applicable statutory provisions. See Wrenn v. D.C., 808 F.3d 81, 84 (D.C. Cir. 2015). Upon the issuance of the Court of Appeals’ mandate, this case was reassigned to this undersigned judge on February 9, 2016. The Court provided the parties an opportunity to supplement and replace their original briefing regarding the pending motion, and that briefing was complete as of March 2, 2016. The motion for preliminary injunction is now ripe for resolution.
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.‘” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). “When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The four factors have typically been evaluated on a ‘sliding scale.‘” Davis, 571 F.3d at 1291. Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291-92.
The Court notes that it is not clear whether this Circuit‘s sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court‘s decision in Winter. See Save Jobs USA v. U.S. Dep‘t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges on the D.C. Circuit Court of Appeals have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.‘” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the Court of Appeals has yet to hold definitively that Winter has displaced the sliding-scale analysis. See Sherley, 644 F.3d at 393; see also Save Jobs USA, 105 F. Supp. 3d at 112. In any
III. DISCUSSION
The Court now applies the four-factor analysis for evaluating a motion for preliminary injunction as stated above. The Court, in turn, considers (1) Plaintiffs’ likelihood of success on the merits, (2) the likelihood of irreparable harm, (3) the balance of the equities, and (4) whether an injunction is in the public interest. See Aamer, 742 F.3d at 1038. Each side in this case contends that each of the four factors weighs in its favor. The Court begins with the first prong, the likelihood of success on the merits.
A. Likelihood of Success on the Merits
In Heller v. District of Columbia (”Heller II“), 670 F.3d 1244, 1252 (D.C. Cir. 2011), the D.C. Circuit Court of Appeals adopted a “two-step approach to determining the constitutionality of the District‘s gun laws,” noting a similar scheme had been adopted by other circuits. 670 F.3d at 1252 (citing cases); see also Heller v. District of Columbia (”Heller III“), 801 F.3d 264, 272 (D.C. Cir. 2015). The Court of Appeals described the framework as follows: “We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny.” Heller II, 670 F.3d at 1252. In turn, to determine whether a provision impinges on a right protected by the Second Amendment, a court must identify whether a particular regulation is “longstanding,” which would then be “presumed not to burden conduct within the scope of the Second Amendment.” Id. at 1253. However, “[a] plaintiff may rebut this presumption by showing the regulation does have more than a de minimis effect upon his right.” Id. This Court is bound to apply that framework to the challenges raised in this action.
The parties vigorously dispute the history of regulations pertaining to the public carrying of arms, spanning from the English Statute of Northampton of 1328 to regulations from early American history and beyond. Defendants argue that—even if the Second Amendment has some application outside the home—the regulatory scheme in question is beyond the scope of the Second Amendment. The Court need not wade into that contentious dispute today. In order to resolve this matter in an expeditious manner, the Court will assume, without deciding, solely for the purposes of resolving the pending motion and without suggesting anything about the underlying merits, that the Second Amendment protects a right to carry arms publicly in the District of Columbia. The Court does so because, even if the Second Amendment‘s protections are applicable to that extent, the Court concludes that Plaintiffs have not met their burden of showing a likelihood of success on the merits. As such, the Court will reserve any consideration of the
1. Level of Scrutiny to Apply
As explained above, upon concluding that a particular regulatory provision “impinges upon a right protected by the Second Amendment“—as the Court assumes without deciding here—the Court must then “determine whether the provision passes muster under the appropriate level of constitutional scrutiny.” Heller II, 670 F.3d at 1252. Guided by the Court of Appeals’ analysis in Heller II and persuaded by the thorough analysis of other “good reason” licensing schemes that has been conducted by other Circuit Courts of Appeals, this Court concludes that, insofar as the challenged requirements of the District‘s licensing scheme impinge on a Second Amendment right, those requirements warrant intermediate scrutiny.
In Heller II, the D.C. Circuit Court of Appeals considered a series of gun registration requirements that it described as “mak[ing] it considerably more difficult for a person lawfully to acquire and keep a firearm, including a handgun, for the purpose of self-defense in the home—the ‘core lawful purpose’ protected by the Second Amendment.” Id. at 1255 (quoting District of Columbia v. Heller (”Heller I“), 554 U.S. 570, 630 (2008)). The D.C. Circuit explained that the “level of scrutiny applicable under the Second Amendment surely ‘depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.‘” Id. (quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010) and citing cases). After canvassing other sources of authority regarding the choice of the level of scrutiny to apply, the D.C. Circuit concluded that intermediate scrutiny was warranted for the gun registration laws in question because they did not “prevent[] an individual from possessing a firearm in his home or elsewhere, whether for self-defense or hunting, or any other lawful purpose.” Id. at 1258. It is notable that the D.C. Circuit concluded that intermediate scrutiny was warranted for gun registration laws which did not impinge on the ability of individuals to keep a firearm “for the purpose of self-defense in the home—the ‘core lawful purpose’ protected by the Second Amendment.” Id. at 1255. This Court concludes that the same level of scrutiny is appropriate for the regulations at issue in this case, whether or not the ability to carry handguns in public is considered part of the “core lawful purpose” protected by the Second Amendment. Moreover, the Supreme Court described the “home” in Heller I as the place “where the need for defense of self, family, and property is most acute,” 554 U.S. at 628. The D.C. Circuit has reiterated this emphasis on the home, stating that “at the core of the Second Amendment is ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.‘” Schrader v. Holder, 704 F.3d 980, 988 (D.C. Cir. 2013) (quoting Heller I, 554 U.S. at 635). Those descriptions give strong support to the conclusion that
In this case, the Court is considering a licensing scheme that restricts the ability of people to carry handguns in public within the 68 square miles of the District of Columbia, but is in no way a blanket prohibition on doing so. Cf. Moore v. Madigan, 702 F.3d 933, 941-42 (7th Cir. 2012) (holding unconstitutional Illinois‘s “uniquely sweeping ban” on carrying firearms in public, characterized as “the most restrictive gun law of any of the 50 states“). Because the Court is considering regulations on carrying firearms outside the home, rather than a prohibition on doing so, the Court concludes that intermediate scrutiny is the appropriate level of scrutiny. Indeed, three other Circuit Courts of Appeals have similarly concluded that intermediate scrutiny is appropriate for “good reason” licensing schemes, if any level of scrutiny is warranted at all. See Drake v. Filko, 724 F.3d 426, 435 (3d Cir. 2013) (applying intermediate scrutiny to New Jersey‘s “justifiable need” requirement); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (applying intermediate scrutiny to “good-and-substantial-reason requirement for obtaining Maryland handgun permit“); Kachalsky v. County of Westchester, 701 F.3d 81, 96-97 (2d Cir. 2012) (applying intermediate scrutiny to New York State‘s “proper cause” requirement); see also United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (holding that only intermediate scrutiny “is necessary with respect to laws that burden the right to keep and bear arms outside of the home“). Notably, the parties have characterized the licensing schemes at issue in these states as “may-issue” licensing schemes in light of the discretion afforded to the respective licensing authorities in issuing public carry licenses.7 See Pls.’ Mot. at 12 n.1; Defs.’ Opp‘n, Defendants’ App‘x (“DA“) at 9. Moreover, Plaintiffs have not shown that the use of the language “may” in the District‘s licensing scheme, see
Critically, the Second Circuit, Third Circuit, and Fourth Circuit are the only Courts of Appeals to have, thus far, addressed and definitively resolved the constitutionality of “good reason” handgun licensing laws similar to the one at issue here. The Ninth Circuit Court of Appeals has considered the constitutionality of the application of a “good reason” licensing requirement but has not yet issued an opinion that is binding precedent at this time. In Peruta v. County of San Diego, a panel of the Ninth Circuit Court of Appeals concluded that San Diego‘s specific policy implementing the State of California‘s “good cause” requirement violated the Second Amendment right to bear arms in public under any level of scrutiny. 742 F.3d 1144, 1175 (9th Cir. 2014), reh‘g en banc granted, 781 F.3d 1106 (9th Cir. 2015). The full Ninth Circuit subsequently granted rehearing en banc, instructing that the panel opinion “shall not be cited as precedent by or to any court of the Ninth Circuit.” Peruta v. Cty. of San Diego, 781 F.3d 1106, 1106-07 (9th Cir. 2015). The en banc court heard oral argument on June 16, 2015, and has not yet decided the case. The Court notes that Plaintiffs continue to rely on Peruta, even in their recently submitted Reply brief as did the district court in Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014).
For all of these reasons, the Court concludes that, insofar as the challenged provisions of the District of Columbia‘s regulatory scheme burden Second Amendment rights, that scheme regulating the public carrying of handguns in the District is subject to intermediate scrutiny.8 Before proceeding to the application of intermediate scrutiny, in order to determine whether Plaintiffs have demonstrated a likelihood of success on the merits, the Court addresses arguments made by Plaintiffs in support of standards other than intermediate scrutiny.
2. Plaintiffs’ Other Arguments
Plaintiffs present several arguments that suggest that intermediate scrutiny is not applicable here. The Court addresses, and rejects, each in turn.
First, Plaintiffs argue that the District‘s handgun licensing scheme is an unlawful prior restraint. Defendants respond that first, the prior restraint doctrine is inapplicable outside of the First Amendment context and second, even if applicable, it would not govern the challenged scheme because the scheme does not vest the Chief of Police with “unbridled discretion.” Because the Court agrees with Defendants that the prior restraint doctrine is not applicable in the Second Amendment context, the Court need not consider Defendants’ alternative argument that the challenged scheme does not give the Chief of Police “unbridled discretion.”
The authorities on which Plaintiffs rely do not support importing the prior restraint doctrine into the Second Amendment context. Indeed, Plaintiffs acknowledge that no court has applied the doctrine of prior restraint in the Second Amendment context. Pls.’ Reply at 23. Plaintiffs argue that the absence of such case law is not surprising because Second Amendment litigation is a relatively recent phenomenon. However, regardless of the merits of that characterization, Plaintiffs have only raised this argument in a cursory manner, providing little support for the Court to embrace this novel argument, particularly in the context of evaluating a motion for a preliminary injunction. Nor do the sole authorities to which Plaintiffs cite support the application of the doctrine of prior restraint in the Second Amendment context. In Staub v. City of Baxley, the Supreme Court concluded that a municipal ordinance of the City of Baxley, Georgia, that restricted freedom of speech “impose[d] an unconstitutional prior restraint upon the enjoyment of First Amendment.” 355 U.S. 313, 325, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958). The Supreme Court did charac
Moreover, it is highly persuasive that the three Circuit Courts of Appeals to have considered the issue have rejected the application of the prior restraint doctrine to “good reason” handgun licensing schemes. See Kachalsky, 701 F.3d at 91 (“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence.“) (emphasis in original); Woollard, 712 F.3d at 883 n. 11 (rejecting plaintiffs’ prior restraint argument and citing analysis of Second Circuit in Kachalsky); Drake, 724 F.3d at 435 (rejecting applicability of prior restraint doctrine).10 Similarly, other courts have concluded that the doctrine of prior restraint is inapplicable in the Second Amendment context. See Hightower v. City of Boston, 693 F.3d 61, 80 (1st Cir. 2012) (concluding that First Amendment prior restraint doctrine is “a poor analogy for purposes of facial challenges under the Second Amendment” and declining to apply prior restraint doctrine in Second Amendment context); Bolton v. Bryant, 71 F. Supp. 3d 802, 817 (N.D. Ill. 2014) (declining to import prior restraint doctrine into Second Amendment context); Young v. Hawaii, 911 F. Supp. 2d 972, 991 (D. Haw. 2012) (same). Plaintiffs have not pointed to any authority suggesting a contrary conclusion, nor has the Court found any.
Because the Court concludes that Plaintiffs have not presented any basis for applying the doctrine of prior restraint in the Second Amendment context and because of the weight of the case law against applying that doctrine in this context, the Court concludes that the prior restraint doctrine simply has no applicability to the licensing scheme at issue. Accordingly, the Court need not consider the parties’ arguments regarding the scope of discretion afforded to Defendants under the challenged licensing scheme.
Second, Plaintiffs claim that the licensing is effectively a rationing scheme and therefore must fail. The Court disagrees and concludes that there is no basis to conclude that the licensing scheme is an unlawful rationing scheme. In Woollard, the Fourth Circuit explicitly rejected Plaintiffs’ rationing argument, reasoning that it was not for the court to “substitute [its] views for the considered judgment of the General Assembly that the good-and-substantial-reason requirement strikes an appropriate balance between granting handgun permits to those persons known to be in need of self-protection and precluding a dangerous proliferation of handguns on the streets of Maryland.” 712 F.3d at 881. In their Reply, Plaintiffs primarily
3. Application of Intermediate Scrutiny
For the challenged rules ‘to pass muster under intermediate scrutiny[,] the District must show they are ‘substantially related to an important governmental objective.‘” Heller II, 670 F.3d at 1258 (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)). In other words, intermediate scrutiny requires ‘first, that [the challenged provision] ‘promotes a substantial governmental interest that would be achieved less effectively absent the regulation,’ and second, that ‘the means chosen are not substantially broader than necessary to achieve that interest.‘” Heller III, 801 F.3d at 272 (quoting Heller II, 670 F.3d at 1258 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 782-83 (1989))).
Defendants assert two interests in support of the challenged concealed carry licensing scheme: preventing crime and promoting public safety. Defs.’ Opp‘n at 27. The D.C. Circuit has already confirmed that both of these interests, which are in fact linked, qualify as substantial governmental interests under the intermediate scrutiny standard. See Heller III, 801 F.3d at 274. Therefore, upon reaching the merits, the question will be whether “the District has, with regard to each challenged [licensing] provision, offered substantial evidence from which it could reasonably have concluded the provision will [prevent crime and promote public safety] ‘in a direct and material way.‘” Id. at 275 (quoting Turner I, 512 U.S. at 664).
In considering Plaintiffs’ motion for a preliminary injunction, therefore, the Court must assess whether Plaintiffs have shown that it is likely that Defendants will not be able to satisfy that burden. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“It is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” (quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004))). Before turning to the evidence that Defendants have identified in support of the means-end fit in opposing the motion for preliminary injunction, the Court notes that this standard effectively means that there is a high hurdle for Plaintiffs to surmount. Indeed, as the D.C. Circuit has emphasized, this Court must ultimately assess the evidentiary record assembled by the parties in order to determine whether the chosen means contribute to the identified ends “‘in a direct and material way,’ whether in one of the ways anticipated by the D.C. Council or otherwise.” Heller III, 801 F.3d at 275 (internal citation omitted). Indeed, in Heller II, the Court of Appeals remanded the case to the district court in order to develop a fuller record that would allow an assessment of the fit between means and ends. 670 F.3d at 1258. Effectively, Plaintiffs must show that it is not likely that Defendants will be able to present evidence that will allow the Court to find that the District could have reasonably concluded that the chosen means serve the identified ends “in a direct and material way.” Heller III, 801 F.3d at 275.
For present purposes, it is enough to say that Defendants have identified what appears to be substantial evidence of connections between public carrying of guns—and associated regulations on public carrying—and impacts on crime and public safe
In Plaintiffs’ Reply, with the full panoply of Defendants’ arguments in support of the licensing scheme before them, Plaintiffs’ only response in the context of intermediate scrutiny is that Defendants are wrong to suggest deference to the legislature with respect to the fit between the government interests identified and legislative means used to achieve those ends. Regardless of the merits of the dispute on the precise quantum of legislative deference applicable, this cursory argument is insufficient. Nowhere do Plaintiffs address the evidence on which the D.C. Council relied in creating the licensing scheme or the additional evidence that Defendants have identified that they would present in support of that scheme in this case. See Defs.’ Opp‘n at 26-36. Instead, the gravamen of Plaintiffs’ argument appears to be that means-end scrutiny is inappropriate and that the licensing scheme is sufficiently destructive of Plaintiffs’ Second Amendment rights that it cannot be countenanced at any level of scrutiny.12 But the Court has already concluded that intermediate scrutiny is appropriate and that it is necessary to examine the ends identified by Defendants and the fit of the chosen means to those ends. Yet, Defendants’ explanation of how the evidence supports their scheme is effectively met with silence from Plaintiffs. In the end, without a substantive response to this evidence and its putative support for the licensing, at this step, Plaintiffs cannot prevail on their claim that the licensing scheme fails to survive intermediate scrutiny.
Although not dispositive of the issues before this Court, it is important that the Second Circuit, the Third Circuit, and the Fourth Circuit have each concluded that the state versions of a “good reason” requirement that each was considering—New York‘s, New Jersey‘s, and Maryland‘s, respectively—survive intermediate scrutiny. Drake, 724 F.3d at 430; Woollard, 712 F.3d at 876; Kachalsky, 701 F.3d at 100-01.13 The consistency of those results emphasizes the steep hill that Plaintiffs have to climb at the preliminary injunction stage, where the burden is on them to make a “clear showing” of the propriety of the “extraordinary remedy” of a preliminary injunction. Winter, 555 U.S. at 22. By contrast, Plaintiffs cannot point to any countervailing authority that persuades the Court that a different result is warranted. The Court reiterates that Peruta, on which Plaintiffs rely, is no longer precedential, even in the Ninth Circuit, in light of the full Ninth Circuit granting rehearing en banc in that case.
Peruta v. Cty. of San Diego, 781 F.3d 1106, 1106-07 (9th Cir. 2015). Similarly, the opinion of the Seventh Circuit in Moore v. Madigan is also inapposite as it concerned Illinois‘s “flat ban on carrying ready-to-use guns outside the home,” 702 F.3d at 940, whereas this case pertains to a licensing scheme not a “flat ban.” In sum, Plaintiffs have not shown that the licensing scheme is unlikely to survive intermediate scrutiny, and, in light of all of the foregoing analysis, the Court concludes that Plaintiffs have not met their burden of showing that they are likely to succeed on the merits on the present record. Therefore, this factor weighs in favor of Defendants.
***
As noted above, if it is the case that “a likelihood of success is an independent, free-standing requirement for a preliminary injunction,” in light of the Supreme Court‘s decision in Winter, then the Court‘s conclusion that Plaintiffs have not shown a likelihood of success on the merits would be the end of the inquiry, and the Court would deny the motion for the preliminary injunction without further analysis. Davis, 571 F.3d at 1296 (concurring opinion). However, because the Court of Appeals has not yet definitively abandoned the sliding-scale approach, see Sherley, 644 F.3d at 393, and because this Court concludes that a preliminary injunction is not warranted even under the sliding-scale approach, the Court need not resolve the viability of the sliding-scale analysis.
B. Likelihood of Irreparable Harm
To show that a preliminary injunction is warranted, Plaintiffs must show that there is a likelihood of irreparable harm. See Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (“A movant‘s failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.“). The D.C. Circuit Court of Appeals “has set a high standard for irreparable injury.” Id. “First, the injury ‘must be both certain and great; it must be actual and not theoretical.‘” Id. (citation omitted). “Second, the injury must be beyond remediation.” Id. In Plaintiffs’ Reply, they clarify that the “certain and great” injury on which they rely is the deprivation of their claimed constitutional right to carry arms in public in the District of Columbia.14 Pls.’ Reply at 24-25. The Court notes that there is a dearth of authority regarding preliminary injunctions in the context of alleged Second Amendment violations. Accordingly, the Court looks to authority in the context of alleged violations of other constitutional provisions to guide this Court‘s consideration of the irreparable harm factor.
Plaintiffs Wrenn, Akery, and Whidby argue that their Second Amendment rights were violated when they were denied concealed carry licenses on the basis that they did not satisfy the good reason/other proper reason requirement of the licensing scheme.15 Pls.’ Mot. at 7-9. Plaintiff Second Amendment Foundation asserts associational standing on behalf of its members, who include the individual Plaintiffs. Plaintiffs argue that, in addition to the injury to the individual Plaintiffs, other members of the Second Amendment Foundation were injured because they would not be able to satisfy the good reason/other proper reason requirement and that they refrained from applying for concealed carry licenses as they believed that doing so would be futile. See Pls.’ Mot. at 6.
Above, the Court concluded that Plaintiffs have not shown a likelihood of success on the merits of their constitutional claims. However, “[w]ithin the irreparable harm analysis itself—which assumes, without deciding, that the movant has demonstrated a likelihood that the non-movant‘s conduct violates the law—we examine only whether [the alleged constitutional] violation, if true, inflicts irremediable injury.” Chaplaincy of Full Gospel Churches, 454 F.3d at 303; see also id. (“Of course, this raises the question of the extent to which the disputed government action actually violates the
Before addressing the remaining two equitable factors, the Court pauses to comment on the impact of this finding as part of the four-factor analysis. It is worth quoting at some length the assessment of the Court of Appeals on the impact of a finding of irreparable injury solely in light of an allegation of a constitutional violation:
We stress that a finding of irreparable injury is but one of four elements that comprise the preliminary injunction framework. The mere allegation that the government is violating the Establishment Clause may suffice to satisfy the irreparable harm prong, but a preliminary injunction will not issue unless the moving party also shows, on the same facts, a substantial likelihood of success on the merits, that the injunction would not substantially injure other interested parties, and that the public interest would be furthered by the injunction. It is these other prongs that will ultimately determine meritorious motions for preliminary injunctions in the face of purported Establishment Clause violations. Unsupported or undeveloped allegations of government establishment, for example, while sufficient to make out irreparable injury, will not withstand scrutiny concerning the movant‘s likelihood of success on the merits, thereby defeating a request for a preliminary injunction. Likewise, demands for preliminary relief that inflict untoward detriment on persons not party to the case will meet a similar fate, as will motions that do not further the public interest. Thus we do not believe that our decision today in any way lessens the burden for parties seeking preliminary injunctive relief against purported Establishment Clause violations. It merely focuses greater attention on the three other factors that indisputably enter into the preliminary injunction determination.
Chaplaincy of Full Gospel Churches, 454 F.3d at 304 (emphasis added). In other words, an alleged constitutional violation may be enough to satisfy the irreparable injury prong. However, such an allegation is not determinative of the Court‘s assessment of the balance of the equities or of the impact on the public interest or, ultimately, of the outcome of the preliminary injunction analysis. The Court now proceeds to consider the final two factors.
C. Balance of the Equities
With respect to the third factor, Plaintiffs must show that “the balance of the equities tips in [their] favor.” Gordon, 721 F.3d at 644 (citation and quotation marks omitted). In support of this factor, Plaintiffs rely on their allegation of a constitutional violation. However, the Court already concluded above that Plaintiffs have not shown a likelihood of success on the merits, and as such, Plaintiffs have not demonstrated at this stage of the proceedings that continued enforcement of the District‘s licensing scheme will infringe on their constitutional rights. See Chaplaincy of Full Gospel Churches, 454 F.3d at 304 (success on allegation of constitutional violation not presumed for assessment of the
Moreover, the Court views this factor in light of the area that the contested licensing scheme affects, the densely populated jurisdiction of Washington, D.C.16 Because the entirety of the District of Columbia is an urban area, the carrying of operable handguns in public may further tip this factor in Defendants’ favor. Accordingly, the Court concludes that, for this additional reason, Plaintiffs have not borne their burden of showing that the equities tip in their favor.
D. Public Interest
With respect to this factor, on the one hand, Plaintiffs assert that enforcing an unconstitutional law is not in the public interest, but on the other hand, Defendants assert the District‘s interest in avoiding the dangers associated with the public carrying of handguns for those who live in, work in, and travel through it. Defendants also emphasize that Plaintiffs have yet to prevail on their constitutional claim. The Court‘s analysis with respect to the balance of the equities above is equally applicable to this fourth factor. Cf. Nken v. Holder, 556 U.S. 418, 435 (2009) (with respect to application for a stay, the balance of the equities and public interest “factors merge when the Government is the opposing party“); United States Ass‘n of Reptile Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133, 164 (D.D.C. 2015) (applying Nken merger doctrine to preliminary injunction context); FBME Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 127 (D.D.C. 2015). Because the Court determined above that Plaintiffs have not shown a
***
In sum, the Court has concluded that, on this record, Plaintiffs have not established a likelihood of success on the merits, that the equities tip in their favor, or that the issuance of an injunction would be in the public interest. Therefore, notwithstanding the fact that Plaintiffs have satisfied the irreparable harm factor as a result of their allegation of a Second Amendment violation alone, the Court concludes that the factors, taken together, favor denial of Plaintiffs’ motion for preliminary injunction. The Court concludes that Plaintiffs have not made the “clear showing” that the “extraordinary remedy” of a preliminary injunction is warranted in these circumstances. Winter, 555 U.S. at 22.
The Court will set a date for an Initial Scheduling Conference by a separate Order.
IV. CONCLUSION
For the foregoing reasons, the Court hereby ORDERS that Plaintiffs’ [6] Motion for Preliminary Injunction is DENIED.
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
Notes
- Pls.’ Mot. for Preliminary Injunction (“Pls.’ Mot.“), ECF No. 6;
- Defs.’ Opp‘n to Pls.’ Mot. (“Defs.’ Opp‘n“), ECF No. 48;
- Pls.’ Mem. of Points & Auth. in Reply to Defs.’ Opp‘n (“Pls.’ Reply“), ECF No. 51; and
- Defs.’ Surreply, ECF No. 53.
- Within the registrant‘s home;
- While it is being used for lawful recreational purposes;
- While it is kept at the registrant‘s place of business; or
- While it is being transported for a lawful purpose as expressly authorized by District or federal statute and in accordance with the requirements of that statute.
- Meets all of the requirements for a person registering a firearm pursuant to the Act;
- Has completed a firearms training course, or combination of courses, conducted by an instructor (or instructors) certified by the Chief;
- Is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance, unless the habitual use of a controlled dangerous substance is under licensed medical direction;
- Has not exhibited a propensity for violence or instability that may reasonably render the person‘s possession of a concealed pistol a danger to the person or another; and
- Does not currently suffer nor has suffered in the previous five (5) years from any mental disorder, illness or condition that creates a substantial risk that he or she is a danger to himself or herself or others, or if the Chief has determined that the person is suitable based upon documentation provided by the person pursuant to § 2337.3.