Angelo v. District of Columbia ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREGORY T. ANGELO, et al.,
Plaintiffs,
v. Civil Action No. 22-1878 (RDM)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs, residents of District of Columbia and Virginia who hold licenses to carry
concealed pistols in the District, challenge the constitutionality of a District law that prohibits
them from carrying their firearms on “public transportation vehicle[s], including the Metrorail
transit system and [in] its stations.” D.C. Code § 7-2509.07(a)(6). A “[p]ublic transportation
vehicle” is defined to include “any publicly owned or operated commercial vehicle, including
any DC Circulator bus, DC Streetcar, MetroAccess vehicle, Metrobus, or Metrorail train.” Id.§ 7-2509.07(g)(3). Plaintiffs each aver that, “[b]ut for D.C. law, [they] would carry [their]
concealed handgun[s] on Metro trains and buses for self-defense” and that they “do not do so
now because [they] fear arrest and prosecution.” Dkt. 6-2 at 1 (Angelo Decl. ¶ 4); Dkt. 6-3 at 1
(Yzaguirre Decl. ¶ 4); Dkt. 6-4 at 1 (Miller Decl. ¶ 4); Dkt. 6-5 at 1 (Erickson Decl. ¶ 4). They
assert that the prohibition on carrying a pistol on Metrobus or Metrorail train, which is allegedly
enforced by Defendants the District of Columbia and the Chief of the Metropolitan Police
Department (“MPD”), violates Plaintiffs’ Second and Fifth Amendment rights. Dkt. 1 (Compl.).
Pending before the Court is Plaintiffs’ motion for preliminary injunction. Dkt. 6.
Plaintiffs ask the Court to enjoin Defendants from enforcing D.C. Code § 7-2509.07(a)(6) while
the Court considers the merits of their constitutional claim. Because Plaintiffs have not shown
that they likely have standing to challenge § 7-2509.07(a)(6), the Court will DENY their motion
for a preliminary injunction.
I. BACKGROUND
District of Columbia law permits individuals to carry pistols “concealed on or about their
person” if they have “a license issued pursuant to District of Columbia law.” D.C. Code
§ 22-4504(a); see id. § 7-2509.07(e) (prohibiting individuals from “carry[ing] a pistol openly or
otherwise in a manner that is not concealed”). 1 To obtain a license, an applicant must
demonstrate to the satisfaction of the MPD Chief of Police that she has registered the firearm she
wishes to carry; has satisfied certain age and mental health requirements; and has completed a
series of required firearms training courses. See id. § 7-2509.02(a). But even after obtaining a
license, gun owners may not carry their pistols everywhere they go. See id. § 7-2509.07; see
also id. § 7-2509.06 (prohibiting individuals from carrying a pistol while “impaired” by drugs or
alcohol). D.C. law provides that “[n]o person holding a license shall carry a pistol” in, among
other places, “[a] building or office occupied by the District of Columbia;” at “[t]he building [or]
grounds” of a childcare facility, school, or university; at “[a] hospital,” “[a] penal institution” or
“[a] polling place while voting is occurring;” or at federal landmarks such as “[t]he public
memorials on the National Mall and along the Tidal Basin,” at “[t]he White House Complex and
its grounds,” or at “[t]he U.S. Naval Observatory.” Id. § 7-2509.07(a)(1)–(5), (10)–(12).
As relevant here, the law also prohibits licensed gun owners from carrying a pistol on
“[a] public transportation vehicle, including the Metrorail transit system and its stations.” Id.
1
D.C. law defines “pistol” as “any firearm originally designed to be fired by use of a single hand
or with a barrel less than 12 inches in length.” D.C. Code § 7-2501.01(12).
2
§ 7-2509.07(a)(6). “Public transportation vehicles” include “any publicly owned or operated
commercial vehicle, including any DC Circulator bus, DC Streetcar, MetroAccess vehicle,
Metrobus, or Metrorail train.” Id. § 7-2509.07(g)(3). If a licensee “carries a concealed pistol
and approaches [one of these] prohibited location[s],” she must secure the unloaded pistol in her
vehicle as described in D.C. Code § 22-4504.02(b) or “immediately leave the prohibited
location.” Id. § 7-2509.07(c)(1)–(2). A licensee may also “carry the firearm to any other place
where [s]he may lawfully possess and carry” it, id. § 22-4504.02(a), but only if the firearm is
“[u]nloaded,” “[i]nside a locked container,” and “[s]eparate from any ammunition, id.
§ 22-4504.02(c). Any licensed gun owner convicted of carrying a pistol in a prohibited place
may be fined or imprisoned for up to 180 days or, in the alternative, may be subject to “[c]ivil
fines, penalties, and fees.” Id. § 7-2509.10(a). Any prosecution for a violation of these rules
must be brought by the D.C. Attorney General “in the name of the District of Columbia.” Id.
§ 7-2509.10(b).
Plaintiffs Gregory T. Angelo, Tyler Yzaguirre, and Cameron M. Erickson live in the
District of Columbia. See Dkt. 6-2 at 1 (Angelo Decl. ¶ 1); Dkt. 6-3 at 1 (Yzaguirre Decl. ¶ 1);
Dkt. 6-5 at 1 (Erickson Decl. ¶ 1). Plaintiff Robert M. Miller is a resident of Virginia. See Dkt.
6-4 at 1 (Miller Decl. ¶ 1). Each avers that he “hold[s] a license to carry a concealed pistol
issued by the D.C. Metropolitan Police Department” and that he “regularly ride[s] the Metro
subway and Metro buses,” see Dkt. 6-2 at 1 (Angelo Decl. ¶¶ 2–3); Dkt. 6-3 at 1 (Yzaguirre
Decl. ¶¶ 2–3); Dkt. 6-4 at 1 (Miller Decl. ¶¶ 2–3); Dkt. 6-5 at 1 (Erickson Decl. ¶¶ 2–3).
Erickson and Yzaguirre use public transportation to commute to work, Dkt. 18-4 at 5–6 (Defs.’
Ex. A) (Pls.’ Interrog. Resp.), and, although he works from home, Angelo estimates that he used
public transportation in the District “[a]n average of 24 times a month from 2019 and 2022,” id.
3
at 7 (Defs.’ Ex. A). Miller indicates that his use of public transit in D.C. “was very limited”
between 2020 and 2022 “because of COVID-19[-related closures],” but that, in 2019, he
“traveled to, from, and within DC on public transit approximately 45 times per month.” Id.
Plaintiffs each declare, moreover, that “[b]ut for D.C. law, [they] would carry [their] concealed
handgun[s] on Metro trains and buses for self-defense” and that they “do not do so now because
[they] fear arrest and prosecution.” Dkt. 6-2 at 1 (Angelo Decl. ¶ 4); Dkt. 6-3 at 1 (Yzaguirre
Decl. ¶ 4); Dkt. 6-4 at 1 (Miller Decl. ¶ 4); Dkt. 6-5 at 1 (Erickson Decl. ¶ 4).
On June 30, 2022, Plaintiffs sued the District of Columbia and Robert J. Contee III, the
Chief of the D.C. Metropolitan Police Department, for declaratory and injunctive relief under 42
U.S.C. § 1983, 2 alleging that D.C. Code § 7-2509.07(a)(6) violates Plaintiffs’ Second and Fifth
Amendment rights by prohibiting them from carrying their firearms on public transportation
vehicles. Dkt. 1 at 33–34 (Compl. ¶¶ 81–83). Plaintiffs moved for a preliminary injunction on
July 11, 2022, requesting that this Court enjoin Defendants from enforcing § 7-2509.07(a)(6)
during the pendency of this action. Dkt. 6. Plaintiffs also ask that the Court “merge” the
preliminary injunction proceeding with the ultimate merits and issue a permanent injunction
barring Defendants from enforcing § 7-2509.07(a)(6). 3 Dkt. 6-1 at 50–51. Plaintiffs’ motion is
fully briefed, and the Court heard oral argument on December 12, 2022.
2
Although Plaintiffs style their complaint as one for “Declaratory, Injunctive Relief and
Damages,” Dkt. 1 at 1 (Compl.), it is unclear whether the complaint in fact seeks damages.
Beyond the title of the complaint, damages are mentioned only in passing—and only in
following a claim for attorney’s fees under 42 U.S.C. § 1988. See id. at 35 (Compl.). Notably,
the complaint contains no allegation relating to any monetary loss that any Plaintiff has suffered.
In any event, the question of damages is not presently before the Court.
3
Federal Rule of Civil Procedure 65 allows the Court to “advance the trial on the merits and
consolidate it with the hearing [on a motion for a preliminary injunction].” Fed. R. Civ. P.
65(a)(2). This Court has adopted that approach when “resolving . . . the merits would not
involve exploration of additional factual issues” beyond those necessary for resolving the
4
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.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008). To prevail on a motion for a preliminary injunction, “[t]he movant must:
(1) establish a likelihood of ‘succe[ss] on the merits;’ (2) show ‘irreparable harm in the absence
of preliminary relief;’ (3) demonstrate that the equities favor issuing an injunction; and (4)
persuade the court that ‘an injunction is in the public interest.’” Trump v. Thompson, 20 F.4th
10, 31 (D.C. Cir. 2021) (second alteration in original) (quoting Winter, 555 U.S. at 20). Before
the Supreme Court’s decision in Winter, courts in this circuit applied a “sliding-scale” approach
under which “a strong showing on one factor could make up for a weaker showing on another.”
Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Since Winter, however, the D.C. Circuit
has hinted on several occasions that Winter should be read to suggest that “a likelihood of
success is an independent, free-standing requirement for a preliminary injunction,” id. at 393(quoting Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh,
J., concurring)), but it “has not yet needed to decide th[e] issue,” League of Women Voters of U.S
preliminary injunction, as long as no prejudice to either party would result. Melinta
Therapeutics, LLC v. U.S. Food & Drug Admin., 22-cv-2190, 2022 WL 6100188, at *1 n.2
(D.D.C. Oct. 7, 2022) (internal quotation marks omitted); see also, e.g., Republican Nat’l Comm.
v. Pelosi, --- F.3d ---, 2022 WL 1295409, at *6 n.3 (D.D.C. May 1, 2022) (consolidating the
preliminary-injunction motion with the trial on the merits where “the record [was] sufficient for a
determination on the merits under the summary judgment standard” (quoting March for Life v.
Burwell, 128 F. Supp. 3d 116, 124 (D.D.C. 2015))), vacated as moot, 2022 WL 4349778 (D.C.
Cir. Sept. 16, 2022). Because the Court concludes that Plaintiffs have not established a
substantial likelihood that the Court has jurisdiction, the Court declines to consolidate the
preliminary-injunction inquiry with what would be a premature trial on the merits.
5
.v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016); see also Changji Esquel Textile Co. v. Raimondo, 40
F.4th 716, 726 (D.C. Cir. 2022).
In any event, the D.C. Circuit has declared in unequivocal terms that “[a] party seeking a
preliminary injunction ‘must show a substantial likelihood of standing.’” Green v. U.S. Dep’t of
Just., --- F. 4th ---, 2022 WL 17419644, at *3 (D.C. Cir. Dec. 6, 2022) (quoting Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015)); see also Obama v. Klayman, 800
F.3d 559, 565 (D.C. Cir. 2015) (Williams, J.) (“The affirmative burden of showing a likelihood
of success on the merits . . . necessarily includes a likelihood of the court’s reaching the merits,
which in turn depends on a likelihood that the plaintiff has standing.” (internal quotation marks
omitted) (emphasis in original)); Cal. Ass’n of Priv. Postsecondary Schs. v. DeVos, 344 F. Supp.
3d 158, 167 (D.D.C. 2018) (noting that “regardless of whether the sliding scale approach applies,
parties seeking a preliminary injunction must” establish a likelihood that all “jurisdictional
prerequisites” are satisfied). That rule makes eminent sense, as “[d]efect[s] of standing”
constitute “defect[s] in subject matter jurisdiction,” Haase v. Sessions, 835 F.2d 902, 906 (D.C.
Cir. 1987), and courts must proceed with caution when their jurisdiction is in doubt. Whatever
the precise contours of the authority of courts sitting in equity, it is safe to conclude that—at a
bare minimum—a court ought not issue an injunction, which could remain in place for many
months while the parties litigate the case to a final judgment, when the court is unpersuaded that
it has jurisdiction—or even that it “likely” has jurisdiction—and the injunction is unnecessary to
preserve the court’s jurisdiction.
Plaintiffs must support their standing to bring suit “in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
6
2015) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). Accordingly, at the
pleading stage, “general factual allegations of injury resulting from the defendant’s conduct may
suffice,” Lujan, 504 U.S. at 561, and the court should dismiss a claim for lack of jurisdiction
only if the plaintiffs have failed to “state a plausible claim that [they have] suffered an injury in
fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable
decision on the merits,” Food & Water Watch, Inc., 808 F.3d at 913 (alteration in original)
(quoting Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015)). But because, on a
motion for preliminary injunction, the Court should “evaluate[] Plaintiffs’ standing to bring their
claims under the heightened standard for evaluating a motion for summary judgment,” id. at 912(internal quotation marks omitted), the plaintiff “can no longer rest on such ‘mere allegations,’
but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the
summary judgment motion will be taken as true,” Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P.
56(e)).
III. ANALYSIS
To establish Article III standing, Plaintiffs must demonstrate that they are suffering 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, 504 U.S. at
560 (internal citations and quotation marks omitted). “The plaintiff[s’] injury must be ‘fairly
traceable to the challenged action of the defendant,’ and likely to be ‘redressed by a favorable
decision.’” Ord v. District of Columbia, 587 F.3d 1136, 1140 (D.C. Cir. 2009) (quoting Lujan,
504 U.S. at 560–61). “In a case of this sort, where the plaintiffs seek declaratory and injunctive
relief, past injuries alone are insufficient to establish standing.” Dearth v. Holder, 641 F.3d 499,
501 (D.C. Cir. 2011). Rather, Plaintiffs must show that they are “suffering an ongoing injury” or
7
that they “face[] an immediate threat of injury.” Id. (citing Los Angeles v. Lyons, 461 U.S. 95,
105 (1983)).
No plaintiff in this case has been arrested and prosecuted—or threatened with arrest or
prosecution or with the imposition of a civil penalty—for violating the provision of D.C. law at
issue here. But Plaintiffs contend that they are suffering continuing, adverse effects sufficient to
support standing because § 7-2509.07(a)(6) “prohibit[s] them from carrying their registered
personal protection handguns in . . . public transportation vehicles and stations in violation of
their Second Amendment right.” Dkt. 6-1 at 12. “Where,” as here, “a plaintiff has yet to face
prosecution under a statute he seeks to challenge,” the Supreme Court “requires that he establish
Article III standing by ‘(1) alleg[ing] an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute,’ and [by] (2) demonstrating
that ‘there exists a credible threat of prosecution thereunder.’” Ord, 587 F.3d at 1140 (quoting
Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979)).
A.
The first of the preenforcement standing requirements is easily satisfied here. The D.C.
Circuit has disavowed any requirement that plaintiffs asserting preenforcement challenges
express an “unconditional intention to engage in the proscribed behavior, regardless of whether
the statute is invalidated.” Seegars v. Gonzales, 396 F.3d 1248, 1251 (D.C. Cir. 2005) (emphasis
in original). As a result, the first United Farm Workers prong is satisfied where, for example,
plaintiffs who did not own firearms at the time of litigation alleged that they forewent the
“additional security of possessing pistols” “because of the threat of criminal prosecution.” Id. at
1251; see also Ord, 587 F.3d at 1143 (concluding that a plaintiff had standing to bring a
preenforcement challenge where “his complaint and affidavit c[ould] only be understood to mean
8
that if the threat of arrest [were] removed, he intend[ed] to travel to D.C. while armed”). Here,
Plaintiffs aver, under the penalty of perjury, that, “[b]ut for D.C. law, [they] would carry [their]
concealed handgun[s] on Metro trains and buses for self-defense” and that they “do not do so
now because [they] fear arrest and prosecution.” Dkt. 6-2 (Angelo Decl. ¶ 4); Dkt. 6-3
(Yzaguirre Decl. ¶ 4); Dkt. 6-4 (Miller Decl. ¶ 4); Dkt. 6-5 (Erickson Decl. ¶ 4). That course of
conduct—i.e., the carrying of pistols on public transportation—moreover, is one “arguably
affected with a constitutional interest.” Ord, 587 F.3d at 1140 (quoting United Farm Workers,
442 U.S. at 298); see N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022)
(concluding that the Second Amendment “protect[s] the right of an ordinary, law-abiding
citizen” to “carry handguns publicly for their self-defense”).
It is at the second prong of the United Farm Workers test where Plaintiffs’ claim of
standing falters. Significantly, binding D.C. Circuit case law “demands more than does United
Farm Workers,” Ord, 587 F.3d at 1141—at least where the plaintiff presents a “non-First
Amendment preenforcement challenge to a criminal statute that has not reached the court
through agency proceedings,” Seegars, 396 F.3d at 1254. In those contexts, plaintiffs must
establish that the threat of prosecution is not only “credible,” but also “imminent.” Ord, 587
F.3d at 1140. In other words, plaintiffs bringing a preenforcement challenge must “demonstrate
that their prosecution results from a special law enforcement priority, namely that they have been
‘singled out or uniquely targeted by the . . . government for prosecution.’” Id. at 1140–41
(quoting Parker v. District of Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007)).
The D.C. Circuit first articulated this imminence requirement in Navegar, Inc. v. United
States, 103 F.3d 994 (D.C. Cir. 1997), which required the court to evaluate the Article III
standing of gun manufacturers to bring a preenforcement challenge to various provisions of the
9
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796. The
challenged law, among other things, made it unlawful for any person to “manufacture, transfer,
or possess a semiautomatic assault weapon,” Navegar, Inc., 103 F.3d at 997 (quoting 18 U.S.C.
§ 922(v)(1) (1994)), and defined “semiautomatic assault weapon” to include “any of the
firearms . . . known as . . . INTRATETEC-9, TEC-DC9, and TEC-22; and . . . revolving cylinder
shotguns, such as (or similar to) the Street Sweeper and Striker 12,” id. (quoting 18 U.S.C.
§ 921(a)(30)(A) (1994)). The statute also outlawed the transfer or possession of any “large
capacity ammunition feeding device,” which was defined to include “ammunition magazines . . .
which can hold more than ten rounds of ammunition.” Id. (quoting 18 U.S.C. § 922(w)(1)
(1994)). In considering the plaintiffs’ challenges to those provisions, the D.C. Circuit explained
that “[t]he question of whether a threat of prosecution adequate to satisfy the requirements of
justiciability is present in any particular preenforcement challenge is a factual and case-specific
one.” Id. at 999. In that vein, the court distinguished between the Act’s ban on “large capacity
ammunition feeding devices” more generally, id. at 1001, and those that “specifically name[d]
products made only by the [challengers],” id. at 1000.
As to the statutory provisions that explicitly named the plaintiffs’ products, the court held
that, “[b]ecause it is clear to whom these provisions of the Act would be applied were they to be
applied at all,” the fear of prosecution was “firmly grounded in the language of the Act;” the only
context in which that fear could be deemed “speculative” would be “if it [were] likely that the
government [would] simply decline to enforce these provisions at all.” Id. But for those
statutory provisions that identified prohibited materials by their characteristics, rather than by
their manufacturers, the D.C. Circuit held that the asserted injury (or prospect of injury) was too
speculative to establish Article III standing. Id. at 1001–02. Even though inspection agents from
10
the Bureau of Alcohol, Tobacco and Firearms (“ATF”) had visited the challengers’ facilities and
“informed officers of the[] companies [about] the [relevant] prohibitions,” id. at 997, the court
stressed that “nothing in . . . [the Act] indicate[d] any special priority placed upon preventing
these parties from engaging in specified conduct,” id. at 1001. The gun manufacturers,
accordingly, lacked standing to challenge the characteristic-specific provisions.
The D.C. Circuit reaffirmed this approach to preenforcement challenges eight years
later—at least as to those that challenge “a criminal statute not burdening expressive rights and
not in the form of appeal from an agency decision.” Seegars, 396 F.3d at 1253. In Seegars v.
Gonzalez, a group of D.C. residents who wished “lawfully [to] possess pistols in the District”
challenged a series of firearms registration laws that effectively prohibited them from
“purchas[ing] and lawfully possess[ing] a new pistol” (unless the pistol was registered “before
September 24, 1976”) and from, in one plaintiff’s case, “remov[ing] the trigger lock” on the
shotgun that she stored in her home. Id. at 1250–51. The Seegars plaintiffs averred that
“because of the threat of criminal prosecution, they fore[went] what they believe[d] would be the
additional security of possessing pistols or possessing a shotgun ready for immediate use.” Id. at
1251.
In considering whether the Seegars plaintiffs had standing to challenge these laws, the
D.C. Circuit acknowledged that its analysis in Navegar was “in sharp tension with” both the
“standard rules governing preenforcement challenges to agency regulations” and with the D.C.
Circuit’s “cases upholding preenforcement review of First Amendment challenges,” where the
court’s apparent concern with “‘chilling effects’ on speech” had allowed plaintiffs to bring
preenforcement challenges even absent a specific threat of enforcement or a high probability
thereof. Id. at 1253–54. But “[d]espite these apparent tensions, [the court] faithfully appl[ied]
11
the analysis articulated by Navegar,” id. at 1254, and held that the plaintiffs lacked Article III
standing because they had not “allege[d] . . . prior threats against them or any characteristics
indicating an especially high probability of enforcement against them,” id. at 1255. In doing so,
the Seegars court disavowed any requirement that the plaintiffs had to be “individually or
specifically burdened in a way distinct from some broader class of potential prosecutees;” rather,
the court recognized that an injury could be cognizable where it was “widely shared,” but only if
it was also “concrete.” Id. at 1253 (quoting FEC v. Akins, 524 U.S. 11, 24 (1998)).
Two years after its decision in Seegars, the D.C. Circuit once again considered a
preenforcement challenge to the same laws challenged in Seegars; the Court, again, reached the
same conclusion as to all but one plaintiff. See Parker, 478 F.3d at 374–78. As in Seegars, the
Parker plaintiffs alleged that the D.C. licensing and trigger-lock requirements precluded them
from “possess[ing] what they describe[d] as ‘functional firearms’”—i.e., “ones that could be
‘readily accessible to be used effectively when necessary’ for self-defense in the home,” id. at
374—because they “fear[ed] arrest, criminal prosecution, incarceration, and fine” under the
statute, Compl. at 2, Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C. 2004). But
because the plaintiffs failed to allege that they “ha[d] been singled out or uniquely targeted by
the D.C. government for prosecution,” the D.C. Circuit, bound by Seegars and Navegar,
concluded that the Parker plaintiffs—with the exception of one who had “applied for and been
denied a registration certificate to own a handgun”—lacked Article III standing to challenge the
laws. Parker, 478 F.3d at 375–76. The court reached that conclusion even though the District
indicated during the course of litigation that it intended to “enforce the law” against the Parker
plaintiffs “if, in fact, they br[oke] [it],” Br. of Appellant at 21, Parker, 478 F.3d 370 (No.
04-7041), reasoning that those statements, standing alone, did not evidence the requisite
12
“‘special priority’ for preventing these appellants from violating the gun laws, or a particular
interest in punishing them for having done so,” Parker, 478 F.3d at 375 (emphasis in original).
“Rather,” the Court explained, “the District appear[ed] to be expressing a sentiment ubiquitous
among stable governments the world over, to wit, scofflaws will be punished.” Id. 4
These cases paint a clear picture: to establish Article III standing, a plaintiff bringing a
preenforcement challenge must do more than show that the government enforces its laws as
written. Measured against this standard, Plaintiffs’ grounds for asserting standing fall short. At
this stage, Plaintiffs rest their entire standing argument on the facial contention that “[b]ut for
D.C. law, [they] would carry [their] concealed handgun[s] on Metro trains and buses for self-
defense” and that they “do not do so now because [they] fear arrest and prosecution.” Dkt. 6-2
(Angelo Decl. ¶ 4); Dkt. 6-3 (Yzaguirre Decl. ¶ 4); Dkt. 6-4 (Miller Decl. ¶ 4); Dkt. 6-5
(Erickson Decl. ¶ 4). Although the Seegars court observed, in describing the imminence
requirement, that “clarity prevails only at the poles,” 396 F.3d at 1252, Plaintiffs—who could
not, at oral argument, identify a single person “with a concealed carry permit [who has] ever
been arrested for carrying a handgun on public transportation in the District of Columbia while
not engaged in another crime,” Rough Tr. at 8–9 (Dec. 12, 2022 Hearing)—have done little to
establish that the threat of enforcement is more than “speculative,” Seegars, 396 F.3d at 1252.
Notably, notwithstanding binding D.C. Circuit precedent on the issue, Plaintiffs made no
colorable effort to establish standing in moving for a preliminary injunction; surprisingly, they
4
The D.C. Circuit’s decision in Ord v. District of Columbia, 587 F.3d 1136 (D.C. Cir. 2009), is
not to the contrary. In that case, a warrant had been issued for the plaintiff’s arrest after he
allegedly violated the D.C. firearms licensing law that he wished to challenge. Id. at 1138.
Although the D.C. government later declared a nolle prosequi as to Ord, the Court concluded that
the past warrant and the District’s concession, in litigation, that Ord would likely be prosecuted
in the future suggested that “the District of Columbia place[d] a special priority on enforcing the
laws against him.” Id. at 1142 (emphasis added).
13
do not even mention Navegar, Seegars, or Parker in their opening brief. See Dkt. 6-1. For the
first time in their reply, Plaintiffs argue that “[t]he District has never disclaimed an intent to
enforce the Metro carry ban.” Dkt. 29 at 13. But nowhere do Plaintiffs allege (much less show a
likelihood of establishing) that they “have been singled out or uniquely targeted by the D.C.
government for prosecution,” Parker, 478 F.3d at 375, and they point to no “prior threats against
them” and to no “characteristics indicating an especially high probability of enforcement against
them,” Seegars, 396 F.3d at 1255. The Court, accordingly, finds no basis to distinguish the
plaintiffs who, fearing prosecution, decide not to bring their handguns on a Metrorail train or
Metrobus from those in Seegars and Parker who, fearing prosecution, decided not to possess
pistols at all. See id. at 1251; see, e.g., Compl. at 1, Parker, 311 F. Supp. 2d 103.
B.
Rather than squarely address their burden to establish standing under Navegar and its
progeny, Plaintiffs argue that the D.C. Circuit’s precedents are either “not the law under binding
Supreme Court precedent” or are “distinguishable” from the present case. Dkt. 29 at 14. The
Court is unpersuaded.
Plaintiffs first contend that Seegars and Navegar “have been eviscerated” by the Supreme
Court’s recent decision in New York State Rifle & Pistol Ass’n v. City of New York (“NYSR&P”),
140 S. Ct. 1525 (2020) (per curiam). See Dkt. 29 at 14. In NYSR&P, three gun owners
challenged a New York City rule that regulated the transportation of handguns, alleging that the
rule unconstitutionally prevented them from transporting their firearms to their second residences
and to shooting ranges outside of the city. See N.Y. State Rifle & Pistol Ass’n v. City of New
York, 86 F. Supp. 3d 249, 253 (S.D.N.Y. 2015). The Second Circuit concluded that the rule did
not violate the Second Amendment, N.Y. State Rifle & Pistol Ass’n v. City of New York, 883 F.3d
1445, 64 (2d Cir. 2018), and the Supreme Court granted certiorari, see 139 S. Ct. 939 (mem.).
Before the Supreme Court heard oral argument in the case, the State and City of New York
amended their statutes and rules, respectively, which effectively awarded the plaintiffs “the
precise relief that [they] requested in . . . their complaint.” NYSR&P, 140 S. Ct. at 1526. The
Supreme Court, accordingly, concluded that the case was moot and vacated the judgment of the
Court of Appeals, remanding for “such proceedings as are appropriate” and leaving the door
open for “the Court of Appeals and the District Court” to consider, on remand, “whether
petitioners m[ight] still add a claim for damages” with respect to the City’s old rule. Id. at 1526–
27.
In Plaintiffs’ view, the Supreme Court’s per curiam order—which said nothing about
standing—implicitly rejected the D.C. Circuit’s preenforcement standing precedents. “If
plaintiffs had needed to be singled out or personally threatened to have standing,” they argue,
“the Court would have never reached the question whether the claims were moot, nor would the
Court have vacated and remanded for a determination whether the plaintiffs could assert a
damage claim.” Dkt. 29 at 15. That argument is unavailing for at least three reasons. First, as
the Supreme Court has repeatedly recognized, courts may resolve the question of mootness
“without first determining whether [the plaintiffs] ha[ve] standing because the former question”
(mootness), “like the latter” (standing), “goes to the Article III jurisdiction of this Court and the
courts below, not to the merits of the case.” Arizonians for Off. Eng. v. Arizona, 520 U.S. 43,
66–67 (1997); see also Burke v. Barnes, 479 U.S. 361, 364 (1987) (declining to address standing
because the Court determined that the case was moot); Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (endorsing this same approach). To be sure,
“subject-matter jurisdiction necessarily precedes a ruling on the merits.” Ruhrgas AG v.
15
Marathon Oil Co., 526 U.S. 574, 584 (1999). But “the same principle does not dictate a
sequencing of jurisdictional issues” and “[i]t is hardly novel for a federal court to choose among
threshold grounds for denying audience to a case on the merits.” Id. at 585.
Second, it is not evident that the New York City residents challenging the transportation
laws faced the same difficulty establishing standing that the Plaintiffs do in this case. At least
two of the three plaintiffs in NYSR&P had “been advised by out-of-state ranges that they were
not permitted to engage in target practice or [to] participate in shooting competitions at those
ranges because of New York City’s enforcement” of the handgun-transportation rule. N.Y. State
Rifle & Pistol Ass’n, 86 F. Supp. 3d at 257. Those plaintiffs, accordingly, may well have alleged
a concrete injury based on their inability to engage in those activities, regardless of whether they
faced a credible fear of prosecution. Cf. Cuti v. Garland, --- F. Supp. 3d --- , 2022 WL 4598536,
at *2, *4 (D.D.C. Sept. 29, 2022) (concluding that the plaintiff had “at least plausib[ly]
allege[d]” a redressable injury where “licensed ranges and bird hunting facilities located in New
Jersey” had indicated “that they would refuse . . . [the plaintiff] access to their guns” based on
their interpretation of the challenged federal statute (internal quotation marks omitted)).
Third, although the Supreme Court typically “vacate[s] the judgment with directions to
dismiss” when “disposing of a case that has become moot on appeal,” the Court does not follow
that practice “where the mootness is attributable to a change in the legal framework governing
the case, and where the plaintiff may have some residual claim under the new framework that
was understandably not asserted previously.” Lewis v. Continental Bank Corp., 494 U.S. 472,
482 (1990); see also NYSR&P, 140 S. Ct. at 1526 (quoting same). In those circumstances, the
Supreme Court typically “vacate[s] the judgment and remand[s] for further proceedings in which
the parties may, if necessary, amend their pleadings or develop the record more fully.” Lewis,
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494 U.S. at 482. The Supreme Court opted for the latter approach in NYSR&P, but, in doing so,
expressed no view as to whether the plaintiffs had standing to assert an as-yet-unpled damages
claim—a question that would, presumably, be presented first to the lower courts and only after
the plaintiffs filed an amended complaint. See NYSR&P, 140 S. Ct. at 1526–27. But even if the
Supreme Court implicitly assumed, in remanding the case, that the petitioners would—or
might—have standing to bring a damages claim, that assumption would have no bearing on the
distinct question of whether they had standing to bring a preenforcement challenge for injunctive
relief. See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021) (“[A] plaintiff must
‘demonstrate standing separately for each form of relief sought.’” (quoting Friends of the Earth,
528 U.S. at 185)); Lyons, 461 U.S. at 102 (explaining that “[p]ast exposure to illegal conduct
does not in itself show a present case or controversy regarding injunctive relief” (alteration in
original) (internal quotation marks omitted)). The Supreme Court’s decision in NYSR&P,
accordingly, does not speak to—much less “eviscerate”—the Navegar line of cases. And none
of Plaintiffs’ tea-leaf reading comes close to persuading this Court to disregard binding D.C.
Circuit precedent.
Plaintiffs’ second argument posits that the Navegar line of cases is inconsistent with the
Supreme Court’s standing precedents, which, in Plaintiffs’ view, require only a “credible” threat
of prosecution and expressly disavow the notion that an individual must be subject to “arrest,
prosecution, or other enforcement action” before challenging a criminal statute. Dkt. 29 at 17–
18 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 159 (2014)); see also United
Farm Workers, 442 U.S. at 298. Of particular relevance to Plaintiffs’ argument is the Supreme
Court’s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), in which the
Court concluded that a party to a patent license agreement had standing to “challenge the validity
17
of [a] patent without terminating or breaking the agreement,” id. at 135. Because MedImmune,
unlike Susan B. Anthony List and United Farm Workers, did not allege an infringement of First
Amendment rights, Plaintiffs argue that the case undermines D.C. Circuit precedent suggesting
that “there is one standing requirement for First Amendment cases and another for others.” Dkt.
29 at 19.
But MedImmune casts less doubt on Navegar and Seegars than Plaintiffs suggest. As the
Supreme Court recounts, before the petitioner in MedImmune brought suit, the respondent
(Genentech) sent a letter to MedImmune that MedImmune “considered . . . to be a clear threat to
enforce [the challenged] patent, terminate the [relevant] license agreement, and sue for patent
infringement if petitioner did not make royalty payments as demanded.” MedImmune, Inc., 549
U.S. at 122. That letter prompted MedImmune to “pa[y] the demanded royalties” rather than to
risk the serious consequences of a patent infringement suit. Id. That threat alone distinguishes
MedImmune from the plaintiffs in Seegars and Parker, none of whom faced specific threats that
the challenged laws would be enforced against them. See, e.g., Seegars, 396 F.3d at 1255(finding it significant that “plaintiffs allege[d] no prior threats against them”); cf. Parker, 478
F.3d at 375 (determining that the threats of enforcement lodged against the plaintiffs during
litigation were insufficiently targeted). Moreover, unlike the plaintiffs in Seegars and Parker,
whose gun ownership, if commenced, might have gone unnoticed, Genentech would have known
as soon as MedImmune stopped making the required royalty payments—a fact that, in itself,
increased the certainty of an enforcement action.
To be sure, the Supreme Court’s First Amendment precedents are more difficult to square
with Navegar and its progeny. Although the Supreme Court has emphasized even in the First
Amendment context that the “threatened enforcement [must be] sufficiently imminent” to
18
warrant “preenforcement review,” Susan B. Anthony List, 573 U.S. at 159, the Court has not
always required, in that context, that challengers “have been singled out or uniquely targeted by
the . . . government for prosecution,” Parker, 478 F.3d at 375. In Babbitt v. United Farm
Workers, for example, the Supreme Court concluded that the plaintiffs had standing to bring a
preenforcement suit challenging a statute that barred the use of “dishonest, untruthful, and
deceptive publicity” based on allegations that the plaintiffs had “actively engaged in consumer
publicity campaigns in the past,” intended to continue doing so, and that “erroneous statements
[were] inevitable” in those future publicity campaigns. 442 U.S. at 301–02 (internal quotation
marks omitted). And in Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988), the Court
concluded that a group of booksellers had standing to challenge a Virginia law that criminalized
the display of certain types of sexually explicit materials for commercial purposes simply
because “the State ha[d] not suggested that the newly enacted law w[ould] not be enforced” and
because the booksellers, accordingly, had “an actual and well-founded fear that the law will be
enforced against them.” Id. at 392–93. That last point is in tension with the D.C. Circuit’s
conclusion, in the Second Amendment context, that a “general threat of prosecution” does not
establish standing. Parker, 478 F.3d at 374.
Notwithstanding that tension, “[s]tare decisis compels adherence to a prior factually
indistinguishable decision of a controlling court,” Brewster v. Comm’r of Internal Revenue, 607
F.2d 1369, 1373 (D.C. Cir. 1979), and it is the province of the D.C. Circuit, and not this Court, to
harmonize circuit precedent and to say when D.C. Circuit decisions should be overruled, see
Critical Mass Energy Proj. v. Nuclear Reg. Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992) (noting
that decisions of the D.C. Circuit “bind the circuit ‘unless and until overturned by the court en
banc or by Higher Authority’” (quoting Save Our Cumberland Mountains, Inc. v. Hodel, 826
19
F.2d 43, 54 (D.C. Cir. 1987), vacated in part en banc, 857 F.2d 1516 (D.C. Cir. 1988) (en
banc))). That principle has particular force where, as here, the D.C. Circuit itself has reckoned
with the tension between Navegar and the Supreme Court’s First-Amendment precedents,
including United Farm Workers and American Booksellers Ass’n. Notably, in Parker, the D.C.
Circuit explained that the Supreme Court “took a far more relaxed stance on pre-enforcement
challenges” in those First Amendment cases than “Navegar and Seegars permit” in the context of
other constitutional challenges. 478 F.3d at 375; see also Seegars, 396 F.3d at 1254 (articulating
the “tension between Navegar and [the D.C. Circuit’s] cases upholding preenforcement review
of First Amendment challenges to criminal statutes”). 5 Multiple judges on the D.C. Circuit have,
moreover, called for reconsideration of Navegar en banc—some of them precisely on the
grounds that the decision is at odds with United Farm Workers. See, e.g., 396 F.3d at 1257(Sentelle, J., dissenting) (“I know of no hierarchy of Bill of Rights protections that dictates
different standing analysis.”); Ord, 587 F.3d at 1146 (Brown, J., dissenting in part) (calling on
the en banc D.C. Circuit to “rehear this appeal sua sponte and overrule Navegar”); Seegars v.
Gonzales, 413 F.3d 1, 2 (D.C. Cir. 2005) (mem.) (Williams, J.) (explaining his “call for
rehearing en banc” of the panel decision in Seegars). “Nevertheless,” the D.C. Circuit has
explained that, “unless and until [the] en banc [D.C. Circuit] overrules these recent precedents,
5
Although the Seegars dissent is correct in explaining that there is no “hierarchy of Bill of
Rights protections” that necessarily “dictates different standing analysis,” Seegars, 396 F.3d at
1257 (Sentelle, J., dissenting), the Court notes that the Supreme Court has adopted a particularly
expansive view of standing in the First-Amendment context, see, e.g., Am. Booksellers Ass’n,
484 U.S. at 392–93 (“[I]n the First Amendment context, ‘[l]itigants . . . are permitted to
challenge a statute not because their own rights of free expression are violated, but because of a
judicial prediction or assumption that the statute’s very existence may cause others not before the
court to refrain from constitutionally protected speech or expression.’” (alteration in original)
(quoting Sec. State of Md. v. J.H. Munson Co., 467 U.S. 947, 956–57 (1984))). Given existing
precedent, it is for the en banc D.C. Circuit or the Supreme Court, and not this Court, to decide
whether that distinction matters outside the context of an overbreadth challenge.
20
[the court] must be faithful to Seegars just as the majority in Seegars was faithful to Navegar.”
Parker, 478 F.3d at 375. Whatever the merits of Plaintiffs’ doctrinal critiques, then, this Court
must, just like the D.C. Circuit, remain faithful to these precedents.
Lastly, Plaintiffs contend, to no avail, that Seegars and Navegar are distinguishable, even
if they remain good law. Dkt. 29 at 20. Unlike the plaintiffs in Seegars, who “could have
applied to register a pistol and then challenged the subsequent denial,” a preenforcement
challenge is, in Plaintiffs’ view, the only “means of seeking relief” here—aside from risking
arrest and prosecution. Id. (internal quotation marks omitted). But that argument is squarely
foreclosed by the D.C. Circuit’s decision in Seegars, which made clear that “the lack of an
administrative remedy, while it increases the hardship resulting from denial of preenforcement
review, still does not enable [the plaintiff] to meet the Navegar test.” 396 F.3d at 1256. Contra
Seegars, 413 F.3d at 1 (Ginsburg, J., concurring in the denial of rehearing en banc) (suggesting,
contrary to the decision of the panel, that the availability of administrative remedies to the
Seegars plaintiffs was among the reasons to deny preenforcement review). And even if, as
Plaintiffs suggest, the D.C. Circuit’s standing doctrine would make § 7-2509.07(a)(6) altogether
“unchallengeable,” Dkt. 29 at 21, that fact alone would not militate in favor of a different
interpretation of the D.C. Circuit’s precedents, for “[t]he assumption that if [the plaintiffs] have
no standing to sue, no one would have standing, is not a reason to find standing.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 420 (2013) (first alteration in original) (quoting Valley Forge
Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 489 (1982)).
Plaintiffs also suggest, although only in passing, that this case is distinct from Navegar
because “[a] specific statute governs when and where [these plaintiffs] may carry their firearms,”
Dkt. 29 at 21, while “the general nature of the language” in some portions of the Act at issue in
21
Navegar “ma[de] it impossible to foretell precisely how [the Act’s] provisions [would] be
applied,” Navegar, Inc., 103 F.3d at 1001. But the “general nature of the language” at issue in
Navegar “suggest[ed] [to the D.C. Circuit] additional concerns as to the[] [claim’s] ripeness” and
did not seem to factor into the plaintiff’s standing to bring the suit. Id. (emphasis added); see
Worth v. Jackson, 451 F.3d 854, 857–61 (D.C. Cir. 2006) (articulating that standing addresses
the nature and redressability of the plaintiff’s injury while the related doctrine of ripeness ensures
that the courts do not “entangl[e] themselves in abstract disagreements”). Moreover, even if
Navegar’s generality concern factored into the Court’s standing analysis, see Seegars, 396 F.3d
at 1258 (Sentelle, J., dissenting) (distinguishing Navegar on this ground), the statute in Navegar,
which prohibited, among other weapons, “large capacity ammunition feeding devices” (i.e.,
those with a capacity of “more than 10 rounds of ammunition”), was no less specific than the
statute at issue in this case. Navegar, 103 F.3d at 1001 (quoting 18 U.S.C. §§ 922(w)(1) and
921(a)(31) (1994)). Cf. Parker, 478 F.3d at 373, 375 (concluding that certain plaintiffs did not
have standing to challenge a number of specific laws, including one “requiring that all lawfully
owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar
device”).
Finally, the Court notes that it is far from clear that Plaintiffs have shown enough to
establish standing—or a likelihood that they have standing—even under a standard less onerous
than that set forth in the Navegar line of cases. In United Farm Workers, for example, the
Supreme Court identified three requirements to establish standing in a First Amendment,
preenforcement suit: the plaintiff must show that (1) she intends “to engage in a course of
conduct arguably affected with a constitutional interest;” (2) her actions are “proscribed by a
statute;” and (3) “there exists a credible threat of prosecution” under that statute. 442 U.S. at
22
298. Here, Plaintiffs have offered declarations that arguably satisfy the first two elements of this
test. They leave the third element, however, entirely unaddressed.
To be sure, as Judge Williams observed in Seegars, “the adjective ‘credible’ says little or
nothing about the requisite level of probability of enforcement.” 396 F.3d at 1252. But the term
does provide “clarity . . . at the poles,” id., and, here, Plaintiffs have failed to proffer any
evidence relating to any threat or risk of enforcement. Although they do allege that the MPD
Chief is responsible for enforcing D.C. law and “is in fact presently enforcing the challenged
laws, customs and practices against plaintiffs,” Dkt. 1 at 3 (Compl. ¶ 6), that allegation is
insufficient on multiple levels. To start, it is not even clear that the MPD, as opposed to the
Metro Transit Police Department (“MTPD”), bears primary responsibility for policing Metrorail
trains and Metrobuses. More importantly, a conclusory allegation contained in an unverified
complaint is insufficient to support a motion for a preliminary (or permanent) injunction. See
Food & Water Watch, Inc., 808 F.3d at 913. Plaintiffs bear the burden of demonstrating that the
Court is likely to conclude that they have Article III standing, id., but have offered no evidence
indicating that the MPD has had any contact with them regarding the law at issue; that they have
contacted the MPD or MTPD; or, more generally, that they have any other reason to believe that
they face a threat of prosecution. Dkts. 6-2, 6-3, 6-4 & 6-5. Indeed, when asked at oral
argument, Plaintiffs’ counsel was unable to identify any case in which an individual licensed to
carry a handgun has ever been prosecuted simply for carrying a concealed handgun on a
Metrorail train or a Metrobus. See Rough Tr. at 8–9 (Dec. 12, 2022 Hearing). Instead,
Plaintiffs’ counsel merely speculated that those carrying concealed handguns often pat their sides
(to confirm that they have their guns with them) and that, by doing so, they might provide a tell
for law enforcement officers and thereby invite arrest, id. at 7; he also asserted that the MPD
23
invariably arrests those who violate any of “the myriad of firearms regulations” in the District of
Columbia, id. at 9. Neither statement by counsel, however, is evidence, and the evidence that
Plaintiffs have offered says nothing about the risk of criminal or civil enforcement of
§ 7-2509.07(a)(6). 6 As a result, even under the standard set forth in United Farm Workers, the
Court is unpersuaded that Plaintiffs have shown that they face a “credible threat of prosecution”
or civil fine. See 442 U.S. at 298 (“[P]ersons having no fears of state prosecution except those
that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.” (quoting
Younger v. Harris, 401 U.S. 37, 42 (1971))).
In sum, then, Plaintiffs have failed to allege that they satisfy the imminence requirement
as articulated by the D.C. Circuit in Navegar and Seegars; have failed to persuade the Court that
the D.C. Circuit’s precedents are no longer good law or do not control this case; and, indeed,
have failed to offer any evidence regarding whether and how § 7-2509.07(a)(6) is enforced.
Because “an inability to establish a substantial likelihood of standing requires denial of the
motion for preliminary injunction,” Food & Water Watch, 808 F.3d at 913, the Court will deny
Plaintiffs’ motion for temporary and permanent injunctive relief.
6
The risk of a civil enforcement action, moreover, raises very different considerations than the
risk of a criminal prosecution. Plaintiffs, however, offer no evidence regarding which, if either,
path the D.C. Attorney General typically takes in cases involving first-time violations of
§ 7-2509.07(a)(6) by license handgun owners.
24
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for preliminary and permanent injunctive
relief, Dkt. 6, is hereby DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: December 28, 2022
25