D.C. residents seek broader right to challenge laws

By Lyle Denniston
on Sep 10, 2007 at 12:01 pm

Five residents of Washington, D.C., who challenged their city’s strict ban on handguns told the Supreme Court on Monday that they support review of the constitutionality of that ban, but also asked the Court to rule on their right to challenge criminal laws enforced by the city. In a cross-petition, Parker, et al., v. District of Columbia, et al., the five individuals argued that they had been wrongly excluded from the gun lawsuit because of flawed precedents on who may sue in federal courts in D.C. (Click here to read the petition and appendix in Parker, et al., v. District of Columbia, et al. A docket number has not yet been assigned.)(UPDATE: The petition has been docketed as 07-335.)

Last week, D.C. officials appealed to the Court (District of Columbia v. Heller, docket 07-290), seeking to revive the local handgun control law that has been struck down by the D.C. Circuit Court based on the Constitution’s Second Amendment. Those who successfully challenged the law have until Oct. 5 to formally respond to that appeal, but their lawyers have indicated they will do so earlier than that.

The new petition was filed by Shelly Parker, Tom G. Palmer, Gillian St. Lawrence, Tracey Ambeau and George Lyon. They all live in Washington, and were part of the lawsuit that succeeded in nullifying the handgun ban. But the D.C. Circuit found that none of those five had “standing” to be in the case. (The Circuit Court found one D.C. resident, Dick Anthony Heller, did have standing, so proceeded to decide the case.)

The other five could not sue, the Circuit Court found, because they had not been “singled out or uniquely targeted by the D.C. government for prosecution.” Even though local officials had said repeatedly they would enforce the handgun ban, those statements were not directed against these five particular individuals, the Circuit Court said. (It found Heller had standing to sue, because he had sought a license to have a handgun, and had been refused.)

This exclusion of the five other residents, their new appeal argued, follows several precedents of the D.C. Circuit – in conflict with other appeals courts and with the Supreme Court – that will only allow individuals to sue to challenge laws that have not yet been enforced only if they can show a specific threat that they, as individuals, will be prosecuted under such laws.

The Supreme Court has said as recently as this past Term, the petition argued, that an individual seeking to challenge a law need not “expose himself to liability before bringing suit.” Merely because an individual has not violated a law to which he or she objects does not mean that individual may not bring a pre-enforcement challenge, according to the petition’s quotations from the Supreme Court’s decision last Jan. 9 in Medimmune v. Genentech Inc.(05-608). That ruling made clear, the new petition said, that a law can have a coercive effect on an individual’s conduct even without that individual being targeted for prosecution, and that coercion is an adequate basis for a right to sue.

One effect of the D.C. Circuit’s views on who has standing, the petition asserted, is that it essentially makes the Declaratory Judgment Act “a dead letter” in the District of Columbia. That Act was passed precisely to create an opportunity for pre-enforcement challenges to laws without having to break the law in order to test its constitutionality, the petition said.

There is no doubt, the petition said, that District of Columbia officials rigorously enforce the handgun ban, and, indeed, consider that ban a part of the city’s culture. There is thus a clear coercive effect that should enable those who want to protest the law to do so in court, it concluded. It is essential, it added, that the Supreme Court restore “a pre-enforcement right of access to federal courts”