MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Currently before the Court is Plaintiffs’ motion for a preliminary injunction.
II. BACKGROUND
Plaintiffs filed their complaint in this 42 U.S.C. § 1983 action on February 3, 2015. Three days later, on February 6, 2015, they filed a motion for a preliminary injunction.
Plaintiffs’ complaint contains only one cause of action, in which they seek both injunctive and declaratory relief. Specifically, they request that the Court declare that D.C.Code § 22-4506(a)’s grant of discretion to the Police Chief to refuse, the issuance of licenses to carry handguns and its “good reason”/“proper reason” requirement, as well as the requirements of D.C.Code § 72709.11 that the Police Chief issue rules to establish the criteria for “good reason” and “other proper reason” for carrying a handgun, including the minimum requirements set forth therein and 24 D.C.M.R. §§ 2333.1, 2333.2, 2333.3, 2333.4, and 2334.1 violate the Second Amendment to the United States Constitution on their face and as applied to the individual Plaintiffs and other law-abiding, responsible members of Plaintiff Second Amendment Foundation (“SAF”), who otherwise would qualify for a District of Columbia license to carry a handgun. See Complaint at ¶ 40. They also ask that the Court 'permanently enjoin Defendants from enforcing the same.
With regard to their instant motion for a preliminary injunction, the relief that Plaintiffs seek is limited to enjoining Defendants from applying the “good reason”/“proper reason” requirement' of D.C.Code § 22-4506(a), including, but not limited to, the manner in which that requirement is defined in D.C.Code § 7-2509.11 and 24 D.C.M.R. §§ 2333.1, 2333.2, 2333.3, 2333.4 and 2334.1, to applicants who otherwise meet the requirements of D.C.Code § 22-4506(a) and all other current requirements for possessing and carrying" of handguns under District of Columbia law.
III.DISCUSSION
A. Statutory scheme
Before analyzing Plaintiffs’ motion, it is necessary to set forth the provisions of the District of Columbia’s licensing mechanism with which ..Plaintiffs take issue. In response to this Court’s July 24, 2014 Memorandum-Decision and Order in Palmer v. Dist. of Columbia,
The Council also introduced permanent legislation, the “License to Carry a Pistol Amendment Act of 2014,” Bill 20-930, which was referred to, its Committee on
Under the current legislation, D.C.Code § 22^4506(a) provides as follows:
The Chief of the Metropolitan Police Department (“Chief’) may, upon the application of any 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, (emphasis added)
In addition, “[t]he Chief of [the Metropolitan Police Department] shall issue rules to implement the provisions of the License to Carry a Pistol Amendment Act of 2014,” including the following rules:
(1) To establish criteria for determining when an applicant has, pursuant to section 6 of the Pistols and Other Dangerous Weapons Act:
(A) Demonstrated a good reason to fear injury to his or her person, which shall at a minimum require a showing of a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life;
(B) Demonstrated any other proper reason for carrying a concealed pistol, which shall at a minimum include types of employment that require the handling of cash or other valuable objects that may be transported upon the applicant’s person;....
Furthermore, Defendant Lanier, as Chief of the Metropolitan Police Department, has adopted various regulations regarding the licensing of individuals to carry concealed handguns, including the following:
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. 24 D.C.M.R. § 2333.1
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. 24 D.C.M.R. § 2333.2
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. 24 D.C.M.R. § 2333.3
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. 24 D.C.M.R. § 2333.4
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. 24 D.C.M.R. § 2334.1
B. Standard for reviewing a motion for a preliminary injunction
As stated, currently before the Court is Plaintiffs’ motion for a preliminary injunction to enjoin Defendants from applying the “good reason”/“proper reason” requirement of D.C.Code § 224506(a), including, but not limited to, the manner in which that requirement is defined in D.C.Code § 7-2509.11 and 24 D.C.M.R. §§ 2333.1, 2333.2, 2333.3, 2333.4 and 2334.1, to applicants who otherwise meet the requirements of D.C.Code § 22-4506(a) and all other current requirements for possessing and carrying of handguns under District of Columbia law.
A party seeking a preliminary injunction must demonstrate “‘(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.’ ” Davis v. Billington, No. 10-0036,
Since “ ‘a preliminary injunction is an extraordinary and drastic remedy,
The Court' will address each of these requirements in turn.
1. Likelihood of success on the merits
As the court stated in In re Guantanamo Bay Detainee Litig., “absent a ‘substantial; indication’ of likely success on the merits, ‘there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review.’ ” In re Guantanamo Bay Detainee Litig.,
In Palmer v. Dist. of Columbia,
In Heller v. Dist. of Columbia,
With respect to the first step of this analysis, the Supreme Court in Heller instructs that “longstanding” regulations are “presumptively lawful,” Dist. of Columbia v. Heller,
Defendants argue that, because the District of Columbia’s regulation of the public carrying of guns is “longstanding,” its “good reason”/“proper reason” requirement is presumed not to violate Plaintiffs’ Second Amendment right to bear arms. To support this position, Defendants note that the District of Columbia has been regulating guns for more than two centuries. See Dkt. No. 9 at 14. For example, in 1801 the then-Town of Georgetown prohibited firing guns in its “inhabited parts.” See id. (citing Town of Georgetown Ordinance of Oct. 24, 1801). In 1809, the City of Washington similarly made it unlawful to fire guns “ ‘within four hundred yards of any house ... or on the Sabbath.’ ” See id. (quoting Act of the Corporation of the City of Washington of Dee. 9, 1809). In 1857, the District of Columbia authorized the filing of civil complaints by “ ‘any person having reasonable cause to fear an injury or breach of the peace’ against any person who ‘shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury or violence to his person, or to his family or property[.]’” See id. (quoting. Revised Code of the District of Columbia, ch. 141, § 16 (1857)). Also, in the same year, the District of Columbia “made it unlawful to carry ‘deadly or dangerous weapons, such as ... pistol[s].’ ” See id. (quoting Act of the Corporation of the City of Washington of Nov. 4, 1857) (citing Act of Nov. 18, 1858).
Defendants also note that, in 1892, Congress barred persons throughout the District of Columbia from having such weapons “ ‘concealed about théir person’ outside of the person’s ‘place of business, dwelling house, or premises.’ ” See id. (quoting Act of July 13, 1892, ch. 159, 27 Stat. 116). Finally, “[i]n 1932, Congress required licenses for carrying pistols and other concealable weapons outside of one’s home or place of business.” See id. (citing Act' of July 8,1932, ch. 465, Pub.L. No. 72-275, 47 Stat. 651). Baséd on this history, Defendants assert that, “leaving aside the recent legislation, the District’s regulation of firearms generally and concealed weapons in particular is manifestly ‘longstanding’ and therefore does not burden conduct within the scope of the Second Amendment.” See id.
In response, Plaintiffs point out that Defendants “advanced th[is] same argument
Plaintiffs also distinguish the 1857 law, which references a good-reason type requirement, but which Plaintiffs argue undermines Defendants’ position. See id. The 1857 law “provided that an individual going armed ‘without reasonable cause to fear an assault or other injury or violence to his person, or to his family or property ... find sureties for keeping the peace for a term not exceeding six months,’ upon ‘complaint of any person having reasonable cause to fear an injury or breach of the peace.’ ” See id. at 15-16. Plaintiffs assert that this means that a “complainant would have to establish ‘reasonable cause’ that the gun-carrier would injure him or breach the peace ... [and][d]oing so would result not in any criminal sanction or even prohibition on the carrying of arms, but only the temporary posting of sureties. That is a far cry from requiring the individual gun-carrier to prove a good reason for so doing.” See id. at 16.
Despite Defendants’ lengthy dissertation of the District of Columbia’s history of firearm regulation, with the possible exception of the 1857 statute, which refers to a “good-reason type” requirement that is clearly distinguishable from the requirement at issue here, Defendants have not presented any historical evidence to support their argument that the District of Columbia’s “good reason”/“proper reason” requirement is longstanding.
In any event, as Plaintiffs point out, “the ‘longstanding’ inquiry is irrelevant” because the District of Columbia’s “good reason”/“proper reason” requirement “has far more than a ‘de minimis’ effect on [their] rights it completely bars the right from being exercised, at all times and places and in any manner, without exception.” See Dkt. No. 10 at 17. Plaintiffs, as well as the vast majority of law-abiding citizens, who fail to satisfy the District of Columbia’s “good reason”/“proper reason” requirement because they cannot “show a special need for self-protection distinguishable from the general community” or that they are engaged in a “type[ ] of employment that require[s] the handling of cash or other valuable objects that may be transported upon [their] person,” are unable to exercise them fundamental right to bear arms for self-defense under the Second Amendment. Thus, the Court concludes that the District of Columbia’s “good reason”/“proper reason” requirement impinges on Plaintiffs’ Second Amendment right to bear arms.
The Court must next determine whether that impingement unlawfully burdens that right. To do that, the Court must first
Furthermore, in Heller II, the circuit court, in addressing the appropriate level of constitutional scrutiny to apply to the District of Columbia’s firearm registration requirements, decided to apply intermediate scrutiny to those requirements. See Heller II,
In Heller II, the circuit court held that intermediate scrutiny required that the District of Columbia demonstrate that its firearm registration requirements were “‘substantially related to an important governmental objective.’ ” Heller II,
In applying Heller II to the facts of this case, the Court concludes that, to pass muster under intermediate scrutiny, the District of Columbia must demonstrate that its “good reason”/“proper reason” requirement is not broader than necessary to 'achieve its substantial government interest in preventing crime and protecting public safety. As the Ninth Circuit explained in Peruta, although the Supreme Court in Turner Broad. Sys., Inc. v. FCC (“Turner II”),
Plaintiffs argue that the District of Columbia’s “good reason”/“proper reason” requirement fails intermediate scrutiny because it does not advance its interest in preventing crime or protecting public safety. See Dkt. no. 6-2 at 25. Specifically, this regulation is not directed at dangerous people, does not regulate the manner of carrying handguns, and does not impose any place restrictions. See id. (citing Peruta,
In Fletcher, the state law at issue barred lawful resident aliens from possessing guns. The court struck down the law, reasoning that, because the law was premised on the assumption that lawful permanent residents were categorically dangerous and all American citizens were trustworthy, it lacked even a reasonable basis and, thus, could not withstand either intermediate or strict -scrutiny. See Fletcher,
In response, Defendants argue that the District of Columbia’s “good reason”/“proper reason” requirement reasonably furthers its important governmental interest in reducing the number of concealed weapons in public in order to reduce the risks to other members of the public and to reduce the disproportionate use of such weapons in the commission of violent crimes. See Dkt. No. 9 at 19.
Furthermore, Defendants cite to the Report of the District of Columbia Council’s Committee on the Judiciary and Public Safety (“Committee Report”),
While, as' stated, Defendants argue that the District of Columbia’s “good reason”/“proper reason” requirement relates reasonably to its interest in preventing crime and protecting public safety, they have not established that relationship.
The fact that an individual may be able to demonstrate a greater need for self-protection, and therefore meets the “good reason”/“proper reason” requirement, does not indicate, in any way, whether that person is less likely to misuse handguns or may be less dangerous. See Drake,
Furthermore, even if the Court were to accept the proposition that handguns are used disproportionately in the commission of violent crimes, how is ‘that use related to whether or not a person has a greater need for self-protection? Moreover, isn’t it possible that even persons who cannot manifest a present need for self-protection are just as likely to be victims of a violent crime. Simply put, the District of Columbia’s “good reason”/“proper reason” requirement will neither make it less likely that those who meet this requirement will present a risk to other members of the public or commit violent crimes than those who cannot meet this requirement. Therefore, after reviewing the record in this case, the Court finds that Defendants have failed to demonstrate that there is any relationship, let alone a tight fit, between reducing the risk to other members of the public and/or violent crime and the District of Columbia’s “good reason”/“proper reason” requirement.
This conclusion should not be read to suggest that it would be-inappropriate for the District of Columbia to enact a licensing mechanism that includes appropriate time, place and manner restrictions on the carrying of handguns in public.
Accordingly, at this point in the litigation and based on the current record, the Court concludes that Plaintiffs have shown that they are likely to succeed on the merits of their claim that the District of Columbia’s “good reason”/“proper reason” requirement runs afoul of the Second Amendment.
2. Irreparable harm
In Ezell v. City of Chicago,
In addressing the requirement that the plaintiffs must establish irreparable harm in order to obtain a preliminary injunction, the court noted that for certain kinds of constitutional violations, particularly First Amendment claims, irreparable harm was presumed. See Ezell,
This Court agrees with the Seventh Circuit’s reasoning in Ezell and finds that Plaintiffs have established that they are likely to succeed on the merits of then-claim that the District of Columbia’s “good reason”/“proper reason” requirement was unconstitutional when enacted and continues to violate their Second Amendment right to bear arms for the purpose of self-defense every day that the District of Columbia continues to enforce it. Thus, the Court concludes that Plaintiffs have established that they will suffer irreparable
3. Balance of the equities
Plaintiffs argue that, although they have suffered and will continue to suffer irreparable harm as long as Defendants continue to enforce their “good reason”/“proper reason” requirement, Defendants would not suffer any harm if the Court granted Plaintiffs’ motion for a preliminary injunction. See Dkt. No. 6-2 at 28. They assert that Defendant Lanier virtually conceded that point when she commented on this Court’s decision striking down the total carry ban stating, “‘Law-abiding citizens that register firearms, that follow the rules, are not our worry.’ ” See id. at 28-29 (quotation and footnote omitted). Furthermore, Plaintiffs argue that they are not requesting anything that would “impact[ ] the city’s handgun registration requirements, which are generally stricter than state licensing requirements (if any) for the carrying of handguns, nor would the injunction impact any city carry restrictions as to time, place, and manner.” See id. at 29.
Finally, Plaintiffs assert that an injunction “would not result in unlicensed handgun carrying.” See Dkt. No. 10 at 27. Rather, “[t]he District would still have among the most stringent handgun carry licensing requirements in the country, requiring not just extensive training and background checks for applicants and registration of carried guns, but the full panoply of extreme (and dubious) restrictions upon licensed handgun carriers.” See id. Plaintiffs note that an injunction would not “stop background checks, or training, or registration, or any other thing that the District wishes to impose on handgun carry license applicants. It [would] stop only the ‘good/proper reason’ requirement, and nothing else.” See id. at 27-28. Thus, Plaintiffs assert that, “[considering the extreme level of regulation untouched by the injunction, and the wealth of evidence demonstrating how licensed handgun carriers actually behave, ..., the threat to the public harm would be virtually zero.” See id. at 28. On the other hand, Plaintiffs argue that “the benefit to individuals, who could defend themselves from violent crime, would be significant.” See id.
To the contrary, Defendants argue that the balance of equities tips heavily in their favor because an injunction would allow an unknown number of people to carry concealed handguns in the District of Columbia, which, in turn, would increase the risk of a gun-related tragedy to both those carrying the guns and the general public. See Dkt. No. 9 at 31-35. Defendants’ assertions misapprehend the scope of the injunction that Plaintiffs are seeking.
As noted, Plaintiffs seek a very limited injunction. That is, they seek an injunction that only affects Defendants’ ability to enforce the District of Columbia’s “good reason”/“proper reason” . requirement. They are not, as Defendants argue, seeking to prevent Defendants from enforcing the other provisions of the licensing mechanism nor do they seek to prevent Defendants from enacting and enforcing appropriate time, place and manner restrictions. Under these circumstances, the Court finds that the balance of the equities weighs in favor of granting Plaintiffs’ request for a preliminary injunction.
4. The public interest
Plaintiffs argue that “[i]t is ‘obvious’ that ‘enforcement of an unconstitutional law is always contrary to the public interest!,]’ ” see Dkt. No. 6-2 at 29 (quotation omitted); and, conversely, “enforcing the Constitution is always in the public interest!,]” see Dkt. No. 10 at 28.
For the same reasons that the Court found that the balance of equities weighs in favor of Plaintiffs, the Court also finds that the public interest weighs in favor of Plaintiffs.
C. Bond Requirement ‘
Rule 65 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[t]he court may issue a preliminary' injunction ... only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined.... ” Fed.R.Civ.P. 65(c).
Plaintiffs argue that a court may dispense with this requirement when there is no risk of financial harm. See Dkt. No. 6-2 at 29 (citations omitted). Thus,'Plaintiffs assert’ that the Court should dispense with the bond requirement in this case. See id.
Defendants did not address Plaintiffs’ argument regarding this issue; Although it is true that Defendants would not suffer any financial damages if it were later determined that the Court wrongfully enjoined them from enforcing the District of Columbia’s “good reason”/“proper reason” requirement, the Court finds it proper that Plaintiffs provide security in the amount of $1,000.00 pursuant .to Rule 65(c).
IV. CONCLUSION
After reviewing the entire file in this matter, the parties’ submissions and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiffs’ motion for a preliminary injunction is GRANTED; and the Court further
ORDERS that 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-by D.C.Code § 7-2509.11 and 24 D.C.M.R. §§ 2333.1, 2333.2, 2333.3, 2333.4, and 2334.1, against Plaintiffs Brian Wrenn, Joshua Akery, Tyler Whidby, and other members of Plaintiff Second Amendment Foundation, Inc.; and the Court further
ORDERS that 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 224506(a) and all other current require
ORDERS that, pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, Plaintiffs shall post security in the amount of $1,000.00; and the Court further
ORDERS that counsel shall appear for a conference with the Court on Tuesday, July 7, 2015, at 11:00 a.m. to discuss an expedited schedule for the resolution of this case.
IT IS SO ORDERED.
Notes
. All references to page numbers in documents that are part of the Court’s record are to the page numbers that the Court’s electronic filing system generates and that appear in the top-right comer of each page.
. As the court noted in Henke v. Dep’t of Interior,
. The Court notes that, although "[s]ome D.C. , District Courts have held that mandatory injunctions [that change the status quo] require applicants to ‘meet a higher standard [i]t appears ... that the D.C. Circuit has not yet adopted this rule.... ” Boivin v. U.S. Airways, Inc.,
. Defendants reference decisions in other jurisdictions, in which the courts have found the legislative history to be longstanding. However, those decisions are not relevant to the District of Columbia’s legislative history.
. In 1892, Congress enacted a statute that was effective until 1932, which proscribed the open carrying of handguns if carried with the intent to use them illegally. A replacement law in 1932 continued the ban on the unlicensed concealed carrying of handguns ’ but did not mention the open carrying of handguns.
. Plaintiffs assert that, "if in 1943, Congress had looked to the federal courts for constitutional guidance in enacting this provision, it would have only been misled by the then-emerging, erroneous ‘collective rights' doctrine.” See Dkt. No. 10 at 17 (citing United States v. Tot,
. Other circuits likewise have found intermediate scrutiny to be the appropriate standard when reviewing firearms regulations vis-a-vis the Second Amendment. See, e.g., Drake v. Filko,
. It is in this regard that the Court finds the Second, Third and Fourth Circuits’ application of intermediate scrutiny to the firearms licensing regulations before them uninstructive. In analyzing the regulations before them, these courts either afforded too much deference to the legislature’s conclusions or did not address whether the statutes at issue were no broader than necessary to achieve the government's substantial objectives. See Peruta,
. The Committee Report is available online at http://lims.dccouncil.us/Download/32576/B 20-0930-CommitteeReportl.pdf (last visited May 14, 2015).
. The Committee held a public hearing on Bill 20-930 on October 16, 2014.
. This evidence would appear to be contradicted by, among other things, the Federal Bureau of Investigation’s Uniform Crime Reports: Crime in the United States 2013, Table 4, http://www.fbi.gov/about-us/cjis/ucr/crime-inthe-u.s/2013/crime-in-the-u.s.-2013/tables/4 tabled atadecoverviewpdf/table_ 4_ crime- in_ the_ united- states- by_ region- geographic-division- and- state- 2012-2013.xls (last visited May 18, 2015. The point is that the empirical evidence on this issue is not conclusive.
. See Drake,
. See Heller,