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No. 05-365

In the Supreme Court of the United States

SANDRA SEEGARS, ET AL., PETITIONERS

v.

ALBERTO R. GONZALES,
ATTORNEY GENERAL, ET AL.,

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DANIEL MERON
Deputy Assistant Attorney
General
MARK B. STERN
LEWIS S. YELIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

The District of Columbia Code prohibits the pos session of pistols and requires firearms to be kept disassembled or bound by trigger locks. The questions presented are:

1. Whether petitioners may bring a preneforcement challenge to the pistol ban when they have not alleged a threat of prosecution and can obtain judicial review of the statute in the District of Columbia's courts without risking criminal prosecution.

2. Whether petitioner Hailes may bring a pre enforcement challenge to the trigger lock requirement, when she has alleged only that she wants to remove the trigger lock when necessary for self-defense if such an occasion arose in the future.

In the Supreme Court of the United States

No. 05-365

SANDRA SEEGARS, ET AL., PETITIONERS

v.

ALBERTO R. GONZALES,
ATTORNEY GENERAL, ET AL.,

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-20a) is reported at 396 F.3d 1248. The opinion of the district court (Pet. App. 32a-117a) is reported at 297 F. Supp. 2d 201.

JURISDICTION

The judgment of the court of appeals was entered on February 8, 2005. A petition for rehearing was denied on June 21, 2005 (Pet. App. 21a-30a). The petition for a writ of certiorari was filed on September 16, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1976, the City Council of the District of Colum bia enacted the Firearms Control Regulation Act of 1975, D.C. Code §§ 7-2502.01 et seq. (2001). One provi sion of the Act prohibits a person from possessing a fire arm in the District of Columbia unless the individual holds a valid registration certificate. Id. § 7-2502.01. Another provision prohibits the registration of pistols that were not already registered before September 24, 1976, the effective date of the Firearms Control Regula tions Act. Id. § 7-2502.02(a)(4). A third provision re quires registrants to "keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia." Id. § 72507.02.

Under the Act, an applicant for a registration certifi cate must file an application "prior to taking possession of a firearm from a licensed dealer or from any person or organization holding a registration certificate there for." D.C. Code § 7-2502.06(a) (2001). But "[i]n all other cases, an application for registration shall be filed imme diately after a firearm is brought into the District." Ibid. If the Chief of Police denies an application, an in dividual has the right to seek reconsideration of the de cision. Id. § 7-2502.10(a). Upon receipt of the Chief of Police's "final decision," an applicant may seek review under the District of Columbia Administrative Proce dure Act. Id. §§ 7-2502.10(b), 7-2507.09. Such review culminates in judicial review of the Chief of Police's de cision in the District of Columbia Court of Appeals, id. § 7-2502.10(b); id. § 2-510(a), where the individual may challenge the constitutionality of the Chief's decision, id. § 2-510(a)(3)(B); see Fesjian v. Jefferson, 399 A.2d 861 (D.C. 1979). Within seven days of a final decision up holding the denial of a registration certificate, the appli cant must "[l]awfully remove such firearm from the Dis trict for so long as he has an interest in such firearm," or "[o]therwise lawfully dispose of his interest in such fire arm." D.C. Code § 7-2502.10(c)(2) and (3) (2001).

Possession of an unregistered firearm may be pun ished by a fine of up to $1000 or imprisonment of up to one year. D.C. Code § 7-2507.06 (2001). A second of fense is punishable by a fine of $5000 or five years of imprisonment. Id. § 7-2507.06(2)(A). Failure to keep a firearm disassembled or bound by a trigger lock is pun ishable by a fine of up to $1000 or imprisonment for up to one year. Id. § 7-2507.06.

The District of Columbia has licensing requirements for pistols that are distinct from the registration re quirements. D.C. Code § 22-4506 (2001) authorizes the Chief of Police to issue licenses to certain persons to carry a pistol if "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." However, an applicant for a license must "register the pistol for which the license will apply." D.C. Mun. Regs. tit. 24, § 2304.15 (2004).

Carrying an unlicensed pistol in one's dwelling is punishable by a fine of up to $1000 or imprisonment for up to one year. D.C. Code § 22-4504(a)(1) (2001); id. § 22-4515. A person who carries an unlicensed pistol outside his or her dwelling, place of business, or other land owned by the person is subject to a fine of up to $5000 or imprisonment of up to five years. Id. § 22- 4504(a)(1). The penalty increases to a fine of up to $10,000 or imprisonment for up to ten years for a second offense. Id. § 22-4504(a)(2). The offense of carrying an unlicensed pistol (id. § 22-4504(a)) is a separate offense from possessing an unregistered pistol. Id. §§ 7-2502.01, 7-2507.06). See Tyree v. United States, 629 A.2d 20 (D.C. 1993).

Prosecutorial responsibilities for District of Colum bia firearms laws is shared by the Office of the Attorney General for the District of Columbia and the United States Attorney for the District of Columbia. See United States v. Bailey, 495 A.2d 756, 760 n.10 (D.C. 1985). The Code authorizes the Office of the Attorney General for the District of Columbia-previously known as the Office of the Corporation Counsel for the District of Columbia-to prosecute certain minor crimes, such as violations of municipal ordinances, "in the name of the District of Columbia." D.C. Code § 23-101(a) (2001). The Code directs the United States Attorney for the District of Columbia to prosecute all other crimes, in cluding felonies, "in the name of the United States." Id. § 23-101(c).

2. Petitioners are five residents of the District of Columbia. They filed suit in the United States District Court for the District of Columbia against the Attorney General of the United States and the Mayor of the Dis trict of Columbia. Pet. App. 32a-33a. Their complaint alleged that the District of Columbia's prohibition against the registration of pistols, its requirement to keep firearms disassembled or bound by a trigger lock, and its prohibition against carrying a pistol without a license in one's dwelling, violated, inter alia, the Second Amendment to the United States Constitution. Pet. App. 4a-5a, 32a.

No petitioner claimed that he or she attempted to register a pistol before filing suit. Instead, each alleged that "[b]ut for D.C. Code § 7-2502.02(a)," he or she "would forthwith obtain and register a pistol to keep at home for self protection." C.A. App. 14, 15. Petitioner Hailes further alleged that she possesses a registered shotgun, which she keeps at home bound by a trigger lock, and that, "[b]ut for D.C. Code § 7-2507.02, she would remove the trigger lock when she deems it neces sary to defend herself in her home." Id. at 15. Petition ers did not allege that they have been prosecuted or threatened with prosecution under the provisions they challenge. Instead, they alleged that they "face arrest, prosecution, and incarceration should they possess an unregistered pistol in violation" of the D.C. Code. C.A. App. 15-16 (alleging that petitioner Hailes would be sub ject to prosecution were she not to keep her shotgun disabled).

The United States moved to dismiss petitioners' com plaints on the ground that petitioners lack standing to challenge the firearms provisions and that their chal lenges are not ripe. C.A. App. 34. The District of Co lumbia adopted the United States' justiciability argu ments but argued also that petitioners' complaints must be dismissed because, in its view, the Second Amend ment does not create an individual right to possess fire arms. Id. at 29 n.1, 34.1

3. The district court dismissed petitioners' claims. The court held that petitioners lack standing to chal lenge the provisions prohibiting the possession of pistols because they did not allege that they face[] a threat of prosecution under the statute which is credible and im mediate, and not merely abstract or speculative." Pet. App. 43a (quoting Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997)).

The court concluded that petitioner Hailes had standing to challenge the trigger lock provision, because she did not have a mechanism for administrative review, culminating in judicial review, to challenge the lawful ness of the trigger lock requirement. Pet. App. 61a-62a. The court rejected petitioner Hailes' Second Amend ment claim on the merits, on the ground that "the Sec ond Amendment does not confer an individual right to possess firearms," id. at 101a, and that the Second Amendment does not apply to the District of Columbia, because "the District of Columbia is not a state for Sec ond Amendment purposes." Id. at 111a.

4. The court of appeals affirmed in part and re versed in part. Pet. App. 1a-16a. The court held that petitioners had not established a "threat of prosecution reaching the level of imminence required by" the court of appeals' Navegar decision. Id. at 13a (pistol petition ers); id. at 15a-16a (trigger lock petitioner). In Navegar, the court of appeals held that, in order to es tablish standing to bring a preenforcement challenge to a criminal statue restricting conduct that is arguably constitutionally protected, a plaintiff must show a credi ble threat of imminent prosecution. Navegar, 103 F.3d at 998. Under Navegar, a plaintiff cannot establish such a threat merely by showing that the law is generally enforced. Id. at 1001. Rather, under Navegar, plaintiffs must demonstrate "prior threats against them or [other] characteristics indicating an especially high probability of enforcement against them." Pet. App. 13a. The court of appeals concluded that none of the petitioners had made such a showing. Id. at 13a-15a.

Judge Sentelle dissented. Pet. App. 16a-20a. In his view, because petitioners had shown that their intended behavior is covered by a criminal statute that is gener ally enforced, they satisfied the standard for alleging a credible threat of enforcement set forth in Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979). Pet. App. 16a-18a. Judge Sentelle also concluded that while Babbitt involved a First Amendment claim, the same standard should apply to Second Amendment claims. Id. at 18a-19a.

5. The court of appeals denied the petition for re hearing en banc. Pet. App. 23a-24a. Three judges filed statements concerning the order denying rehearing en banc. Chief Judge Ginsburg concurred in the denial of rehearing en banc. He concluded that the pistol peti tioners did not satisfy the standards for bringing a preenforcement challenge to a criminal statute. He rea soned that because petitioners could have sought to register pistols and then challenged the subsequent de nial of their applications in the courts of the District of Columbia, this case "does not present a circumstance in which a plaintiff is 'required to await and undergo a criminal prosecution as the sole means of seeking relief." Id. at 26a (quoting Babbitt, 442 U.S. at 298). Chief Judge Ginsburg further concluded that petitioner Hailes lacked standing to challenge the trigger lock require ment, because "it is highly speculative" whether "she would ever find it necessary to remove the trigger lock in order to defend herself in her home," and whether "she would then be prosecuted for that action." Id. at 26a-27a.

Judge Williams expressed the view that the pistol petitioners had established a sufficiently imminent threat of prosecution to establish standing because the D.C. Code "unequivocally" bars issuance of permits for pistols. Pet. App. 28a. Judge Williams also concluded that petitioner Hailes had established standing, because "[t]he risk of prosecution in the event of the contingency [Hailes] fears is high." Id. at 29a. Judge Sentelle largely agreed with Judge Williams' reasoning. Id. at 27a.

ARGUMENT

The court of appeals correctly held that petitioners failed to satisfy the standards for bringing a preen forcement challenge to a criminal statute. The court's decision does not conflict with any decision of this Court or any other courts of appeals. Review by this Court is therefore not warranted.

1. Petitioners contend (Pet. 7) that the decision be low conflicts with Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979). In particular, they argue that the court of appeals failed to follow Babbit's holding that "[w]hen the plaintiff has alleged an intention to en gage in a course of conduct arguably affected with a con stitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await a criminal prosecu tion as the sole means of seeking relief." Id. at 298.

The court of appeals, however, did not depart from that holding. Instead, applying its previous decision in Navegar v. United States, 103 F.3d 994 (D. C. Cir. 1997), the court concluded that petitioners failed to establish a credible threat of prosecution as required by Babbitt. As the court explained, Navegar held that, in order to establish a credible threat of prosecution, a plaintiff must show either that he was threatened with prosecu tion or that he has a characteristic that puts him at a heightened risk of prosecution, and petitioners failed to make either showing. Pet. App. 13a.

Petitioners argue (Pet. 11) that, under Babbitt, a plaintiff can demonstrate a credible threat of prosecu tion by showing that he intends to engage in conduct that violates the statute and that the government main tains a general intent to enforce the statute. But Bab bitt did not purport to hold that a such a showing would always enable a plaintiff to establish that he faces a suf ficiently credible threat of prosecution to justify a preenforcement challenge to a criminal statute. Babbitt involved a First Amendment claim, and what is suffi cient to satisfy the credible threat requirement in that context is not necessarily sufficient in other contexts. Indeed, in Dombrowski v. Pfister, 380 U.S. 479, 486 (1965), the Court expressly held that preenforcement challenges to criminal statutes on First Amendment grounds involve distinct considerations because "free expression" has a "transcendent value to all society, and not merely to those exercising their rights."

In any event, even if petitioners could satisfy Babtitt's credible threat requirement, that would not make their preenforcement challenge justiciable. Babitt authorizes a preenforcement challenge to a criminal statute only when "await[ing] criminal prosecution" is "the sole [alternative] means of seeking relief." 442 U.S. at 298. Petitioner failed to satisfy that independent re quirement here. As Chief Judge Ginsburg correctly observed in his opinion concurring in the denial of re hearing en banc, petitioners had a ready means for seek ing relief with respect to the pistol prohibition without awaiting criminal prosecution. They could have applied to register a pistol with the Chief of Police and then challenged the subsequent denial in the District of Co lumbia Court of Appeals. Pet. App. 26a; see D.C. Code §§ 2-510(a), 7-2502.10(b), 7-2507.09 (2001); Fesjian v. Jefferson, 399 A.2d 861 (D.C. 1979) (considering consti tutional challenges to District gun statute upon appeal from denial of registration). And if that court issued an adverse decision, petitioners could seek a petition for a writ of certiorari from this Court. 28 U.S.C. 1257. The existence of that alternative avenue for review also ren ders their claim here unripe and furnishes an independ ent basis for a court to withhold the equitable relief peti tioners seek.

Petitioners argue (Pet. 22) that the existence of that alternative remedy is not relevant because they have sued under 42 U.S.C. 1983, and exhaustion of adminis trative remedies is not a prerequisite to such suits. But Section 1983 does not create a cause of action against federal officials acting under color of federal law. Wheeldin v. Wheeler, 373 U.S. 647, 650 & n.2 (1963). And when the United States Attorney prosecutes Dis trict firearms violations, he is a federal official acting under color of federal law. See Act of July 29, 1970, Pub. L. No. 91-358, § 210(a), 84 Stat. 604 (D.C. Code § 23-101 (2001)) (authorizing the United States Attorney to prosecute such offenses "in the name of the United States").

Petitioners' suit against the Mayor of the District of Columbia arises under Section 1983. But nothing in Sec tion 1983 eliminates the established rule that a plaintiff may not bring a preenforcement challenge to a criminal statute when there is an alternative way to challenge the law without awaiting criminal prosecution. The exis tence of an alternative mechanism to challenge the law is relevant to the ripeness analysis, which is distinct from principles of exhaustion. Petitioners' reliance on Section 1983 is therefore misplaced.

Petitioners also argue (Pet. 3) that they should not be required to invoke a futile administrative remedy. But that assertion of futility ignores the availability of judicial review for their claims in the District of Colum bia Court of Appeals.2

2. Petitioners contend (Pet. 7, 15-18) that the deci sion below conflicts with the Sixth Circuit's decision in Peoples Rights Organization, Inc. (PRO) v. Columbus, 152 F.3d 522 (1998). There is, however, no conflict.

In PRO, plaintiffs brought a preenforcement chal lenge to a provision of the Columbus City Code that pro hibited the possession and sale of assault weapons. The plaintiffs alleged that they could not determine whether weapons they owned were "assault weapons" within the meaning of the ordinance, and that the ordinance was therefore unconstitutionally vague. 152 F.3d at 526, 528. The Sixth Circuit held that, based on the city's represen tation "that it fully intends to prosecute anyone who vio lates the provisions of the ordinance," id. at 529, the plaintiffs had alleged a sufficient threat of prosecution to confer standing, id. at 530. But in so holding, the Sixth Circuit expressly distinguished its prior decision in National Rifle Ass'n v. Magaw, 132 F.3d 272 (1997). In that case, the Sixth Circuit held that plaintiffs lacked standing to challenge federal gun legislation because they merely expressed the "desire" and "wish" to en gage in certain possibly prohibited activities, but were "restrained" and "inhibited" from doing so by the fed eral legislation. Id. at 293.

Petitioners here are more like the plaintiffs in Magaw than like the plaintiffs in PRO. Petitioners do not allege that they presently own pistols within the Dis trict. They have alleged only a desire or wish to possess pistols and claim to be restrained from doing so by the District's prohibition. C.A. App. 14, 15. There is there fore no conflict between the D.C. and Sixth Circuits on the question presented here.

This case is distinguishable from PRO in another important respect. As discussed above, petitioners have an alternative way to challenge the laws at issue without violating them and risking criminal punishment. By contrast, the plaintiffs in PRO had no apparent means of obtaining a judicial determination of their claims, other than by undergoing a criminal prosecution. See 152 F.3d at 530. For that reason as well, the Sixth Circuit's decision in PRO provides no assistance to petitioners here.

3. As petitioners note (Pet. 23), there is no adminis trative process that would permit petitioner Hailes to challenge the trigger lock requirement. Petitioner Hailes' claim is not justiciable, however, because it is too speculative to satisfy standing and ripeness require ments.

In order to have standing, a plaintiff bringing suit to prevent a future injury must show that the injury is "im minent" or "certainly impending." Whitmore v. Arkan sas, 495 U.S. 149, 158 (1990). "Allegations of possible future injury do not satisfy the requirements of Art. III." Ibid. In addition, "[a] claim is not ripe for adjudi cation if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas v. United States, 523 U.S. 296, 300 (1998) (citation omitted).

Under those standards, petitioner Hailes has failed to establish standing and ripeness. Rather than alleging an imminent harm, she alleges only that she currently possesses a registered shotgun in her home, C.A. App. 14-15, and that, "[b]ut for D.C. Code § 7-2507.02, she would remove the trigger lock when she deems it neces sary to defend herself in her home." Id. at 15. That chain of events is too speculative to satisfy standing or ripeness requirements.

Petitioner Hailes' alleged injury is speculative for another reason. Even if the chain of events petitioner Hailes identifies were to occur, it is entirely speculative whether a prosecutor would bring criminal charges against her. See Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 143 n.29 (1974). Indeed, if peti tioner Hailes were to use her shotgun in self-defense, she would likely have a defense to any criminal charge. See Wilson v. United States, 198 F.2d 299, 300 (D.C. Cir. 1952) (holding that, though not expressly provided for in the statute, self-defense is a defense to the analo gous crime of carrying an unlicensed pistol).

Because petitioner Hailes' alleged injury is doubly speculative, she failed to satisfy standing and ripeness requirements. In any event, that question is fact-bound and does not warrant review.

CONCLUSION

The petition for a writ of certiorari should be de nied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DANIEL MERON
Deputy Assistant Attorney
General
MARK B. STERN
LEWIS S. YELIN
Attorneys

DECEMBER 2005

1 While the United States did not take a position on the merits of petitioners' claims, it informed the district court of its position that the Second Amendment "protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." Motion to Dismiss 013 n.11 (quoting Memorandum by the Attorney General included in the government's Br. in Opp. at 19-20 n.3, United States v. Emerson, 536 U.S. 907 (2002) (No. 01-9780)).

2 For the same reason, petitioners' reliance (Pet. 22) on Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005), is misplaced. In that case, the court held that a plaintiff did not have to file a futile application for a license before bringing a preenforcement challenge to a gun licensing statute. But the court in that case focused solely on the absence of a viable administrative remedy. Id. at 83. It did not address the question whether the availability of judicial review of the denial of a licence would serve as an adequate alternative remedy.