United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2004 Decided February 8, 2005
No. 04-5016
Sandra Seegars, et al.,
Appellants/Cross-Appellees
v.
John D. Ashcroft,
Attorney General of the United States and
Anthony A. Williams, Mayor, District of Columbia,
Appellees/Cross-Appellants
Consolidated with
04-5081
Appeals from the United States District Court
for the District of Columbia
(No. 03cv00834)
Stephen P. Halbrook argued the cause for appellants/
cross-appellees. With him on the briefs was Richard E.
Gardiner.
R. Ted Cruz, Solicitor General, Attorney General's Office
2
of State of Texas, argued the cause for amici curiae State of
Texas, et al. in support of appellant. With him on the brief
were Greg Abbott, Attorney General, Troy King, Attorney
General, Attorney General=s Office of State of Alabama,
Charles J. Crist, Jr., Attorney General, Attorney General=s
Office of State of Florida, Thurbert E. Baker, Attorney
General, Attorney General=s Office of State of Georgia,
Lawrence G. Wasden, Attorney General, Attorney General=s
Office of State of Idaho, Phill Kline, Attorney General,
Attorney General=s Office of State of Kansas, Charles C. Foti,
Jr., Attorney General, Attorney General=s Office of State of
Louisiana, Michael A. Cox, Attorney General, Attorney
General=s Office of State of Michigan, Jim Hood, Attorney
General, Attorney General=s Office of State of Mississippi,
Mike McGrath, Attorney General, Attorney General=s Office
of State of Montana, Jon Bruning, Attorney General, Attorney
General=s Office of State of Nebraska, Jim Petro, Attorney
General, Attorney General=s Office of State of Ohio,
Lawrence E. Long, Attorney General, Attorney General=s
Office of State of South Dakota, Mark L. Shurtleff, Attorney
General, Attorney General=s Office of State of Utah, Jerry W.
Kilgore, Attorney General, Attorney General=s Office of
Commonwealth of Virginia, and Patrick J. Crank , Attorney
General, Attorney General=s Office of State of Wyoming.
Daniel Meron, Deputy Assistant Attorney General, U.S.
Department of Justice, argued the cause for appellees/cross-
appellants. With him on the brief were Peter D. Keisler,
Assistant Attorney General, Kenneth L. Wainstein, U.S.
Attorney, and Mark B. Stern and Lewis Yelin, Attorneys.
Lutz Alexander Prager, Attorney, Office of Attorney
General for the District of Columbia, argued the cause for
3
appellee The District of Columbia. With him on the brief
were Robert J. Spagnoletti, Attorney General, and Edward E.
Schwab, Deputy Attorney General.
Andrew L. Frey, David M. Gossett, Mathew S.
Nosanchuk, and Eric J. Mogilnicki were on the brief for amici
curiae The Brady Center to Prevent Gun Violence, et al. in
support of appellee.
Before: S ENTELLE and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Dissenting opinion filed by Circuit Judge SENTELLE.
WILLIAMS, Senior Circuit Judge: Plaintiffs raise Second
Amendment and local law claims against provisions of the
District of Columbia’s criminal code that bar them from
registering and lawfully possessing pistols within the District
of Columbia, or maintaining firearms in their homes free of
mandates that they be unloaded and disassembled, or secured
by a trigger lock. The district court held that the plaintiffs
lacked standing to challenge the provisions limiting the lawful
possession of pistols, but that one plaintiff (Hailes) could
challenge the “trigger lock” provision. Seegars v. Ashcroft,
297 F. Supp. 2d 201, 203-04 (D.D.C. 2004). Because we find
that under controlling circuit precedent no plaintiff has
standing to challenge either provision, we affirm in part and
reverse in part.
4
* * *
D.C. Code § 7-2502.01 prohibits a person from
possessing a firearm in the District of Columbia unless it is
validly registered. Pursuant to D.C. Code § 7-2502.02(a)(4),
pistols not already registered before September 24, 1976 may
not now be registered. And D.C. Code § 22-4504(a) prohibits
carrying a pistol either openly or concealed on or about one’s
person without a license within the District of Columbia. As a
result, it is no t possible in the District to purchase and
lawfully possess a new pistol—or indeed any pistol not
registered here three decades ago. A fourth provision requires
that registrants keep firearms unloaded and disassembled, or
bound by a trigger lock or similar device, subject to
exceptions for firearms kept at places of business or firearms
that are being lawfully used for recreationa l purposes in the
District. See D.C. Code § 7-2507.02. All plaintiffs in this
case would like to lawfully possess pistols in the District.
Joint Appendix (“J.A.”) 14-15. Plaintiff Jordan is the only
plaintiff who owns a pistol, but he stores it outside the District
in order to avoid violating the law. J.A. 15. Plaintiff Hailes
possesses a shotgun that she stores at her home, and would
like to remove the trigger lock when she feels endangered.
J.A. 14-15. Most of the plaintiffs allege that they live in high-
crime neighborhoods and would like to possess loaded
weapons in their homes for protection, not secured by a
trigger lock; because of the threat of criminal prosecution,
they forego what they believe would be the additional security
of possessing pistols or possessing a shotgun ready for
immediate use. Id. Under 28 U.S.C. § 2201 plaintiffs seek a
declaration that the challenged provisions are unlawful.
No plaintiff in this case has been arrested and prosecuted
for violating the disputed provisio ns of the Code, so plaintiffs’
5
case constitutes a “preenforcement” challenge. To meet the
“case and controversy” requirement of Article III they must
allege 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 v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also
Nat’l Treasury Employees Union v. United States, 101 F.3d
1423, 1427 (D.C. Cir. 1996).
Assessing standing to attack a statute on constitutional
grounds, the Supreme Court has said:
When the plaintiff has alleged an intention to engage in a
course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder, he should not
be required to await and undergo a criminal prosecution
as the sole means of seeking relief.
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979) (citing Doe v. Bolton, 410 U.S. 179, 188 (1973))
(internal quotation marks omitted). Compare Regional Rail
Reorganization Act Cases, 419 U.S. 102, 143 n.29 (1974)
(suggesting that ripeness for pre-enforcement review of
criminal statutes was to be resolved “on a case-by-case basis,
by considering the likelihood that the complainant will
disobey the law, the certainty that such disobedience will take
a particular form, any present injury occasioned by the threat
of prosecution, and the likelihood that a prosecution will
actually ensue”).
In addressing the plaintiff’s side of the story, some
circuits have demanded that he express an unconditional
intention to engage in the proscribed behavior, regardless of
6
whether the statute is invalidated, see, e.g., San Diego County
Gun Rights Committee v. Reno, 98 F.3d 1121, 1127 (9th Cir.
1996) (discussing lack of allegation of a specific time and date
at which plaintiffs intended to violate the Crime Control Act).
But any such requirement seems inconsistent with our
circuit’s law, see, e.g., American Library Ass’n v. Barr, 956
F.2d 1178, 1196 (D.C. Cir. 1992); but cf. Martin Tractor Co.
v. FEC, 627 F.2d 375, 382-83 (D.C. Cir. 1980) (holding
portion of preenforcement challenge not ripe where appellants
“allege that their behavior has thus far conformed to the
statutory mandate. They make no allegation of an intention
imminent or otherwise to violate the statute . . . .”), and has
been expressly rejected by other circuits, e.g., Mobil Oil Corp.
v. Attorney General of Virginia, 940 F.2d 73, 75 (4th Cir.
1991) (“Public policy should encourage a person aggrieved by
laws he considers unconstitutional to seek a declaratory
judgment against the arm of the state entrusted with the state’s
enforcement power, all the while complying with the
challenged law, rather than to deliberately break the law and
take his chances in the ensuing suit or prosecution. ”).
On the government’s side, the requirement of a credible
threat of prosecution ensures that the threatened injury be
imminent. Imminence can also be evaluated in terms of
ripeness, but the severity of the required threat is independent
of the doctrinal hook. See Doe v. Duling, 782 F.2d 1202,
1206 n.2 (4th Cir. 1986). Unfortunately the adjective
“credible” says little or nothing about the requisite level of
probability of enforcement, and clarity prevails only at the
poles. If the threat is imagined or wholly speculative, the
dispute does not present a justiciable case or controversy.
Younger v. Harris, 401 U.S. 37, 42 (1971); Golden v.
Zwickler, 394 U.S. 103 (1969). Evidence that the challenged
law is rarely if ever enforced, for example, may be enough to
7
defeat an assertion that a credible threat exists. See, e.g.,
D.L.S. v. Utah, 374 F.3d 971, 974-75 (10th Cir. 2004) (no
standing to challenge the constitutionality of Utah’s sodomy
statute where plaintiff had never been charged, prosecuted, or
directly threatened with prosecution, and where prosecutors
were apparently not actively enforcing the law); Clarke v.
United States, 915 F.2d 699, 701-02 (D.C. Cir. 1990)
(discussing mootness) (no live case or controversy where
there had been no prosecution under the Anti-Deficiency Act
and the government had expressed its view that no successful
prosecution could be maintained). By contrast, actual threats
of arrest made against a specific plaintiff are generally enough
to support standing as long as circumstances have n’t
dramatically changed. See Steffel v. Thompson, 415 U.S. 452,
459 (1974).
In United Farm Workers, a union challenged provisions
of a state statute that made it an unfair labor practice,
punishable with criminal penalties, to encourage consumer
boycotts of agricultural products by the use of “dishonest,
untruthful and deceptive publicity.” 442 U.S. at 301. The
state argued that the criminal penalty provision had not yet
been applied and might never be applied to unfair labor
practices. Id. at 302. The Court found standing, saying that
“the State has not disavowed any intention of invoking the
criminal penalty provision against unions that commit unfair
labor practices,” id., and that the union’s fear of prosecution
was not “imagina ry or wholly speculative,” id. Thus United
Farm Workers appeared to find a threat of prosecution
credible on the basis that plaintiffs’ intended behavior is
covered by the statute and the law is generally enforced.
Courts have often found that combination enough, especially
where plaintiffs seek to engage in activities possibly protected
by the First Amendment, see, e.g., Mangual v. Rotger-Sabat,
8
317 F.3d 45, 57 (1st Cir. 2003) (citing New Hampshire Right
to Life PAC v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996)), but not
exclusively in such cases, see Hejira Corp. v. MacFarlane,
660 F.2d 1356, 1360 (10th Cir. 1981) (plaintiffs had standing
to challenge drug paraphernalia statute even where no
criminal prosecutions had been commenced and no specific
arrest threatened). But courts have also found the absence of
a specific threat fatal. See, e.g., San Diego County Gun
Rights Committee, 98 F.3d at 1127.
Related to but distinct from the requisite likelihood of
enforcement is a possible requirement that the plaintiffs
occupy a position different from that of others who
(conditionally) intend to commit acts that would violate the
statute. The district court used language arguably reflecting
such a view: “A generalized grievance, which is presumably
shared with many other citizens of the District of Columbia,
without an imminent threat of prosecution or another type of
injury- in- fact (i.e., economic harm), is not sufficient to confe r
standing to the plaintiffs.” Seegars, 297 F. Supp. 2d at 214.
To the extent that this language implied that plaintiffs
must be individually or specifically burdened in a way distinct
from some broader class of potential prosecutees, it is at
variance with Supreme Court precedent. Although injuries
that are shared and generalized—such as the right to have the
government act in accordance with the law—are not sufficient
to support standing, see Allen v. Wright, 468 U.S. 737, 754
(1984), “where a harm is concrete, though widely shared, the
Court has found injury in fact.” FEC v. Akins, 524 U.S. 11,
24 (1998) (internal quotation marks omitted); see also Public
Citizen v. United States Dep’t of Justice, 491 U.S. 440, 449-50
(1989) (plaintiffs had standing to challenge non-disclosure of
information even where innumerable other parties might make
9
identical requests for disclosure). Although the political arena
may prove appropriate to correct illegal injuries inflicted on
much of the public, the fact that an injury is shared, so long as
it is concrete enough, doesn’t preclude standing. FEC v.
Akins, 524 U.S. at 24-25 (giving examples of mass tort
injuries or injury involving widespread interference with
voting rights).
For preenforcement challenges to a criminal statute not
burdening expressive rights and not in the form of appeal
from an agency decision, our circuit’s single post-United
Farm Workers case appears to demand more than a credible
statement by the plaintiff of intent to commit violative acts
and a conventional background expectation that the
government will enforce the law. In Navegar, Inc. v. United
States, 103 F.3d 994 (D.C. Cir. 1997), we dealt with a
preenforcement challenge by two manufacturers to provisions
of the Violent Crime Control and Law Enforcement Act of
1994, 108 Stat. 1796, that made it unlawful to manufacture or
possess a semiautomatic assault weapon. 103 F.3d at 997.
Portions of the statute prohibited weapons by name that were
manufactured only by specific companies. See id. With
respect to these provisions, we found preenforcement standing
because the provisions essentially singled out the companies
by name, id. at 1000, saying that for those weapons the threat
of prosecution could be deemed speculative “only if it is
likely that the government may simply decline to enforce
these provisions at all.” Id. But we found no standing for the
companies to challenge portions of the statute that described
prohibited weapons only by general characteristics rather than
by name. Id. at 1001.
We cannot help noting that Navegar’s analysis is in sharp
tension with standard rules governing preenforcement
10
challenges to agency regulations, where an affected party may
generally secure review before enforcement so long as the
issues are fit for judicial review without further factual
development and denial of immediate review would inflict a
hardship on the challenger—typically in the form of its being
forced either to expend non-recoverable resources in
complying with a potentially invalid regulation or to risk
subjection to costly enforcement processes. Abbott Labs. v.
Gardner, 387 U.S. 136, 149 (1967); Toilet Goods Ass’n v.
Gardner, 387 U.S. 158, 164 (1967); Gardner v. Toilet Goods
Ass’n, 387 U.S. 167, 170 (1967); Clean Air Implementation
Project v. EPA, 150 F.3d 1200, 1204 (D.C. Cir. 1998). See
also Chamber of Commerce v. FEC, 69 F.3d 600, 604 (D.C.
Cir. 1995) (“an agency rule, unlike a statute, is typically
reviewable without waiting for enforcement”). The passage
from United Farm Workers quoted at the outset alludes to
precisely this hardship.
One might explain our greater readiness to hear
challenges to regulations than to statutes on the ground that
challenge s to a statute bring into play all the conventional
reasons to avoid premature constit utional adjudications. That
answer seems weak, as courts reviewing agency action
commonly give preenforcement review not only to statutory
claims but to constitutional attacks on the underlying statute.
See Time Warner Entertainment Co. v. FCC, 93 F.3d 957,
965, 973 (D.C. Cir. 1996). Cf. General Electric Co. v. EPA,
360 F.3d 188 (D.C. Cir. 2004) (interpreting explicit limit on
review as not preclud ing preenforcement review of facial due
process challenge to statute).
There is also tension between Navegar and our cases
upholding preenforcement review of First Amendment
challenges to criminal statutes. See, e.g., Chamber of
11
Commerce v. FEC, 69 F.3d at 603-04; see also American
Library Ass’n, 956 F.2d at 1194, 1196 (finding no plaintiff
with standing, but demand ing only that plaintiffs show an
intent to commit acts that would really or arguably violate the
provisions challenged). Such cases here and in other courts
appear to have rested on the special concern for “chilling
effects” on speech. See, e.g., Chamber of Commerce v. FEC,
69 F.3d at 604; New Hampshire Right to Life PAC, 99 F.3d at
12. Yet, while there is a special First Amendment standing
doctrine allowing a party in some circumstances to challenge
a provision on the ground that it violates the rights of someone
other than the plaintiff himself, see, e.g., Virginia v. American
Booksellers Ass’n, 484 U.S. 383, 392-93 (1988), the idea of a
special First Amendment rule for preenforcement review of
statutes seems to have no explicit grounding in Supreme Court
decisions. In United Farm Workers, for example, although
plaintiffs in fact attacked the statute on First Amendment
grounds, the Court conspicuously neglected to mention the
point in its discussion of standing. United Farm Workers, 442
U.S. at 297-302.
Despite these apparent tensions, we faithfully apply the
analysis articulated by Navegar. We do so not because it
represents our “law of firearms.” See generally Frank H.
Easterbrook, Cyberspace and the Law of the Horse, 1996 U.
Chi. Legal F. 207, 207-08 (1996). We do so because it
represents the only circuit case dealing with a non-First
Amendment preenforcement challenge to a criminal statute
that has not reached the court through agency proceedings.
See LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996)
(en banc).
12
* * *
Pistols. All plaintiffs allege that but for D.C. Code §§ 7-
2502.02(a), 22-4504(a), they would obtain and register pistols
to keep and carry in their homes in the District. J.A. 14-15, 17.
Plaintiff Jordan already owns a pistol that he stores outside the
District, which he would register and keep in the District but
for the Code. J.A. 15. The district court held that the pistol
plaintiffs lacked standing because they face no credible threat
of imminent prosecution under the District’s gun laws.
Seegars, 297 F. Supp. 2d at 213-14.
Whatever the ultimate understanding of the Second
Amendment, compare Silveira v. Lockyer, 312 F.3d 1052 (9th
Cir. 2002), with United States v. Emerson, 270 F.3d 203 (5th
Cir. 2001), the conduct that plaintiffs would engage in is at
least arguably affected with a constitutional interest, but
proscribed by a statute. Thus, the first requirement of United
Farm Workers and Navegar is satisfied.
We agree with the district court, however, that the pistol
plaintiffs have not shown a threat of prosecution reaching the
level of imminence required by Navegar. See 103 F.3d at
1001. Plaintiffs note that the District’s gun laws are enforced,
see Reply Brief for Appellants/Cross-Appellees at 4, and
indeed cite the District’s position in prior litigation, declaring
that it enforces its gun laws, prosecuting “ violators of the
all
statute under normal prosecutorial standards.” Austin v.
United States, 847 A.2d 391, 393-94 (D.C. 2004) (discussing
regulation of concealed weapons). But plaintiffs allege no
prior threats against them or any characteristics indicating an
especially high probability of enforcement against them. As
was true for the claims found non-justiciable in Navegar,
“nothing . . . indicates any special priority placed upon
13
preventing these parties from engaging in specified conduct.”
103 F.3d at 1001 (emphasis added); see also Lion Mfg. Corp.
v. Kennedy, 330 F.2d 833, 839 (D.C. Cir. 1964).
Plaintiff Jordan presents a slightly different case, as he
currently owns a pistol, which he stores outside the District.
But this improves only the assurance of his conditional intent
to commit acts that would violate the law, an assurance that is
adequate even for the other plaintiffs. As is true of the other
pistol plaintiffs, there is nothing in the record to indicate that
he has been personally threatened with prosecution or that his
prosecution has “any special priority” for the government.
See Navegar, 103 F.3d at 1001.
Plaintiffs correctly argue that Peoples Rights
Organization, Inc. v. Columbus, 152 F.3d 522, 528-29 (6th
Cir. 1998) (“PRO”), supports preenforcement standing in
precisely this circumstance. There the Sixth Circuit
entertained a preenforcement challenge to Columbus’s assault
weapons ban. It held the plaintiffs—owners of weapons who
were allegedly uncertain as to whether the ordinance
prohibited their weapons—faced a clear Hobson’s choice:
“They can either possess their firearms in Columbus and risk
prosecution under the City’s law, or, alternatively, they can
store their weapons outside the City, depriving themselves of
the use and possession of the weapons.” PRO, 152 F.3d at
529. The court found the costs of selecting either option high
enough to support a preenforcement challenge. Id. at 529-30.
But see National Rifle Association v. Magaw, 132 F.3d 272,
293-94 (6th Cir. 1997).
But PRO is plainly inconsistent with Navegar. Indeed,
the imminence of enforcement appears to have been greater in
Navegar, as in that case agents of the Bureau of Alcohol,
14
Tobacco and Firearms had visited the plaintiff gun
manufacturers, alerted them to the prohibitions in question,
and conducted inventories of the ir firearms stocks, including
those of the weapons about to be barred. 103 F.3d at 997,
1001.
Thus the district court here was correct not to follow
PRO, which applied a far less stringent standard than
Navegar. But it distinguished PRO on the ground that the
need for judicial intervention was stronger there because the
case included a vagueness challenge. Seegars, 297 F. Supp.
2d at 213. We think that an incorrect basis of distinction. We
see no reason why plaintiffs whose proposed conduct is
merely possibly barred by statute should be preferred over
ones—like those here—whose proposed conduct is
indisputably barred.
Under Navegar, therefore, we affirm the decision of the
district court that no plaintiff challenging the District’s pistol
provisions in this case has presented a justiciable case or
controversy.
Trigger Lock. Plaintiff Hailes possesses a shotgun that
she keeps in her home secured by a trigger lock. J.A. 15. She
alleges that but for the D.C. Code she would “remove the
trigger lock when she deems it necessary to defend herself in
her home.” Id. The district cour t concluded that Hailes had
standing because she must maintain the trigger lock on her
shotgun and forego possibly lawful activity because of her
“well- founded fear of prosecution.” Seegars, 297 F. Supp. 2d
at 217. To distinguish Hailes from the rest of the plaintiffs,
the district court relied on the fact that Hailes had no
administrative remedy. See id. at 216. Unlike the plaintiffs
challenging the pistol regulation, who could apply to register
15
the pistol and then subsequently challenge the inevitable
denial, Hailes was left to either leave the trigger lock on her
shotgun or remove it and risk criminal prosecution. Id.
But the lack of an administrative remedy, while it
increases the hardship resulting from denial of preenforcement
review, still does not enable Hailes to meet the Navegar test.
In that case the manufacturers denied standing had no
administrative remedy, at least so far as appears, and yet we
held their challenge (to the provisions that didn’t identify their
unique brands) non-justic iable simply because we found the
threat of prosecution inadequate, even though the visiting
BATF agents had taken an inventory of their soon-to-be-
prohibited weapons. Navegar, 103 F.3d at 1001. While an
unused administrative remedy’s presence will often defeat
adjudication under doctrines of ripeness, finality or
exhaustion, its absence is not enough to render a claim
justiciable if the imminence of the threatened injury is
inadequate—as is true here under Navegar.
Accordingly, because no plaintiff has demonstrated a
threat of prosecution sufficiently imminent under circuit law,
we have no justiciable case or controversy before us.
Therefore, we do not reach the merits. The judgment of the
district court is
Affirmed in part and reversed in part.
SENTELLE, Circuit Judge, dissenting: While I commend the
balanced tone and thoroughness of the majority opinion, I find
that after examining the authorities discussed therein, I reach a
different conclusion. As the court relates, plaintiffs seek to
challenge the provisions of the District of Columbia’s Criminal
Code limiting the possession of pistols, as violative of their
Second Amendment rights to keep and bear arms. The District
Court held that they had no standing. Today this court has
affirmed.
I would find standing based on the authority of cases cited
by the majority. The record offers essentially undisputed
evidence of the appellants’ intent to engage in gun-related
conduct prohibited by the challenged Code provisions, but for
the existence of those provisions. Appellants adequately allege
and argue that this conduct is protected by the Second
Amendment to the United States Constitution.
The Supreme Court has said, as the majority quotes:
When the plaintiff has alleged an intention to engage in a
course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder, he should not be
required to await and undergo a criminal prosecution as the
sole means of seeking relief.
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979) (citing Doe v. Bolton, 410 U.S. 179, 188 (1973)) (internal
quotation marks omitted). The majority’s further analysis of
United Farm Workers is directly on point:
In United Farm Workers, a union challenged
provisions of a state statute that made it an unfair labor
practice, punishable with criminal penalties, to encourage
consumer boycotts of agricultural products by the use of
“dishonest, untruthful and deceptive publicity.” 442 U.S.
2
at 301. The state argued that the criminal penalty provision
had not yet been applied and might never be applied to
unfair labor practices. Id. at 302. The Court found
standing, saying that “the State has not disavowed any
intention of invoking the criminal penalty provision against
unions that commit unfair labor practices,” id., and that the
union’s fear of prosecution was not “imaginary or wholly
speculative,” id. Thus United Farm Workers appeared to
find a threat of prosecution credible on the basis that
plaintiffs’ intended behavior is covered by the statute and
the law is generally enforced.
Maj. Op. at 7. As appellants allege a similarly realistic fear of
prosecution, I would hold United Farm Workers controlling, and
conclude that appellants have standing to bring the Second
Amendment challenge.
As the majority notes, a long line of cases upholds pre-
enforcement review of First Amendment challenges to criminal
statutes by plaintiffs with bases for standing no different than
that asserted by appellants herein for their Second Amendment
challenge. For example, in Virginia v. American Booksellers
Ass’n, 484 U.S. 383 (1988), plaintiffs brought a suit challenging
the constitutionality of a newly enacted Virginia statute
criminalizing the display for commercial purposes of visual or
written material that “depicts sexually explicit nudity, sexual
conduct, or pseudo-masochistic abuse which is harmful to
juveniles.” Va. Code § 18.2-391(a) (Supp. 1987). The
Commonwealth of Virginia argued that plaintiffs lacked
standing, because they had not yet been prosecuted under the
Act. The Supreme Court, in discussing the standing question,
declared itself “not troubled by the pre-enforcement nature of
this suit.” American Booksellers, 484 U.S. at 393. Because “the
state ha[d] not suggested that the . . . law will not be enforced,”
and the Court saw no reason to assume that it would not be, the
3
Court found standing, “conclud[ing] that plaintiffs have alleged
an actual and well-founded fear that the law will be enforced
against them.” Id. I see no distinction between that case and
this.
As the Supreme Court further noted in American
Booksellers, the danger of the statute before it could “be realized
even without an actual prosecution.” Id. Needless to say, the
harm lay in self-censorship–that is, the curtailing of an otherwise
constitutional activity because of an allegedly unconstitutional
criminal statute. The only difference between that harm and the
harm alleged in this case is that there it was to First Amendment
interests, here to Second. I know of no hierarchy of Bill of
Rights protections that dictates different standing analysis.
I acknowledge, as the majority notes, that a case from this
circuit, Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir.
1997), is in tension with “cases upholding pre-enforcement
review of First Amendment challenges to criminal statutes.”
Maj. Op. at 10. In Navegar, plaintiff-appellants sought
declaratory judgment striking down as unconstitutional
provisions of the Violent Crime Control and Law Enforcement
Act of 1994, which outlawed firearm products manufactured by
appellants, some by name, and others by description. While we
found standing to challenge the regulation of the named
products, we held there was no standing as to the products
outlawed only by description. See Navegar, 103 F.3d at 1001.
The Navegar court found the threat of prosecution under the
provisions outlawing products by description insufficiently
imminent to support standing on the record before it. Those
latter provisions outlawed firearms in language so general that
the court found “it impossible to foretell precisely how these
provisions may be applied.” Id. Further, the Navegar court
found insufficient evidence of the government’s intent to
enforce the “generic portions of the Act” against the specific
4
parties before it. Id.
While I acknowledge that the majority is correct that
Navegar can be read as controlling the case before us and
barring standing, I think it is distinguishable. The allegedly
constitutionally protected conduct in the record before us is
clearly defined and clearly unlawful under a statute that the
District apparently enforces regularly, and under which there is
certainly no doubt that plaintiffs reasonably apprehend
enforcement. I would therefore find the line of cases
represented by American Booksellers, rather than Navegar,
controlling.
For the reasons set forth above, I respectfully dissent.