United States District Court, D. Columbia.
For Dick Anthony Heller, Plaintiff: Stephen Porter Halbrook, LEAD ATTORNEY, Fairfax, VA; Dan Mark Peterson, Dan M. Peterson PLLC, Fairfax, VA; Richard E Gardiner, Fairfax, VA.
For Absalom F. Jordan, Jr., William Carter, Plaintiffs: Richard E Gardiner, LEAD ATTORNEY, Fairfax, VA; Stephen Porter Halbrook, LEAD ATTORNEY, Fairfax, VA; Dan Mark Peterson, Dan M. Peterson PLLC, Fairfax, VA.
For District of Columbia, Adrian M. Fenty, Mayor, District of Columbia, Vincent C. Gray, Mayor, District of Columbia, Defendants:
Andrew J. Saindon, D.C. OFFICE OF ATTORNEY GENERAL, Washington, DC; Chad Alan Naso, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC.
For Cathy L. Lanier, CA-09-454, Defendant: Andrew J. Saindon, LEAD ATTORNEY, D.C. OFFICE OF ATTORNEY GENERAL, Washington, DC; Chad Alan Naso, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
The District of Columbia knows gun violence. Notorious for a time as the " murder capital" of the United States, it recorded over 400 homicides annually in the early 1990s -- more than one for every 1500 residents. While safety in the District has improved markedly in this millennium, residents will not soon forget the violence of the more recent past: the wounding of seven children outside the National Zoo on Easter Monday in 2000, the triple murder at Colonel Brooks' Tavern in 2003, the five killed in the South Capitol Street shootings in 2010, and the twelve shot to death inside the Washington Navy Yard only a few months ago. These number just a few of the lives lost to guns in our city's recent memory.
In an effort to stem this violence and promote public safety, the District of Columbia has, over the last several decades, passed some of the most restrictive gun laws in the nation. In fact, it was the District's handgun ban that the Supreme Court struck down in District of Columbia v. Heller (Heller I), 554 U.S. 570, 128 S.Ct. 2783,
171 L.Ed.2d 637 (2008), where the Court concluded that the Second Amendment protected handgun possession for self-defense in the home. Seeking to accommodate that constitutional right while also protecting the community from gun violence, the District responded by enacting a law that banned assault weapons and large-capacity magazines but merely imposed registration requirements for handguns and long guns. Plaintiffs believe that such a law still infringes their Second Amendment rights and have brought this action to challenge it.
A prior district court initially upheld the constitutionality of the law, but on appeal, the D.C. Circuit offered a mixed response. Although it affirmed the bans on assault weapons and large-capacity magazines, as well as the handgun-registration requirement, it remanded the case to this Court to permit the parties to develop a more thorough factual record in relation to the lion's share of the regulations. Having done so, both sides now cross-move for summary judgment, asking the Court to consider their constitutional arguments in light of the new evidence adduced.
The Second Amendment requires the District to justify its firearm-registration requirements by presenting substantial evidence that they will achieve important governmental interests and that they are narrowly tailored to such ends. The Court ultimately concludes that the government has met that burden and that the regulations pass constitutional scrutiny.
The people of this city, acting through their elected representatives, have sought to combat gun violence and promote public safety. The Court finds that they have done so in a constitutionally permissible manner.
In 2008, the Supreme Court struck down the District of Columbia's handgun law as violating the Second Amendment right to keep and bear arms. That landmark decision, Heller I, announced that the Second Amendment protects " the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635. The Court thus voided the District's total ban on handgun possession as well as its requirement that D.C. residents store their lawfully owned firearms disassembled or bound by a trigger lock. See id. at 574-75. Because a handgun is " the quintessential self-defense weapon" and because storing firearms disassembled or locked " makes it impossible for citizens to use them for the core lawful purpose of self-defense," the Court found that these two regulations contravened the Second Amendment. Id. at 629-30, 635.
A few months after Heller I, the D.C. Council enacted the Firearms Registration Amendment Act of 2008, which amended what remained of the District's gun laws in order to create a new and constitutionally compliant scheme for regulating firearms. See D.C. Law 17-372; 56 D.C. Reg. 3438 (May 1, 2009). The Council adjusted this scheme again in 2012. See D.C. Law 19-170; 59 D.C. Reg. 5691 (May 15, 2012). When the Council considered both the 2008 FRA and the 2012 amendments, it held several days of public hearings during which it received oral and written testimony supporting and opposing the legislation. See Def. Mot., Exh. A (Appendix) at 33-49 (Council of the District of Columbia Committee on Public Safety and the Judiciary, Report on Bill 17-1843, " Firearms Registration Amendment Act of 2008" ) (" 2008 Report" ); id. at 120-48 (Council of the District of Columbia Committee on the Judiciary, Report on Bill 19-614, " Firearms Amendment Act of 2012" ) (" 2012 Report" ).
The FRA establishes a city-wide gun registry, which requires that all gun owners in the District individually register each of their firearms with the city government. See D.C. Code § 7-2502.01. It then ties a host of obligations, limitations, and prohibitions to that basic registration mandate. See § 7-2502.02-.11.
More specifically, the regulatory regime adopted by the Council works as follows: To possess a firearm within the District, the owner must register that weapon with the city. See § 7-2502.01(a). This basic registration requirement applies equally to handguns and to long guns. See § 7-2501.01(9) (defining " firearm" without distinguishing between handguns and long guns). The firearm-registration system is run by the District's Metropolitan Police Department, which processes registrants' applications and maintains a database of firearm registrations. See Def. Mot., Exh. B (Declaration of Lieutenant Jon Shelton), ¶ ¶ 3, 9, 13. The District bars the registration -- and thus the possession -- of certain kinds of firearms, including sawed-off shotguns, machine guns, and assault weapons. See § 7-2502.02(a). The District also bars blind people from registering -- and thus possessing -- any firearm at all. See § 7-2502.03(a)(11). Finally, the District does not allow gun owners to register more than one pistol per month, although a new D.C. resident may grandfather in multiple pistols that he owned prior to moving here. See § 7-2502.03(e). Given that this provision refers only to " pistols," the limitation presumably does not apply to other types of firearms, such as rifles or shotguns.
To register a firearm, the owner must appear in person at MPD headquarters with the weapon he seeks to register. See § 7-2502.04(c). He must be photographed and fingerprinted, see § 7-2502.04(a) & (b), complete a background check, see § 7-2502.03(a), and provide, among other things, his current place of employment and his residences going back five years. See § 7-2502.03(b). The background check queries a number of sources, including the Federal Bureau of Investigation, the Washington Area Law Enforcement System, the National Criminal Information Center, and the D.C. Superior Court. See Shelton Decl., ¶ ¶ 11-12. According to MPD policy, " personally identifiable information provided by applicants on firearms-registration forms is exempt from disclosure to the public . . . as a clearly unwarranted invasion of personal privacy." Id., ¶ 13. The prospective registrant must also take and pass a test demonstrating knowledge of the District's firearms regulations as well as complete a firearms-training and safety course provided free of charge by the District. See D.C. Code § 7-2502.03(a)(10) & (13)(A). After the registrant has passed the test and completed the course, he need not do so again in order to register additional weapons. See id. Lastly, the registrant must pay a fee to reimburse the District for its registration expenses. See § 7-2502.05(b).
The owner of a registered firearm must keep the registration certificate with him whenever he is in possession of the weapon and he must produce it upon the demand of a law enforcement officer. See § 7-2502.08(c). If the firearm is lost, stolen, or destroyed, he must immediately notify MPD; if he sells or transfers the weapon, he must notify District police within two days; and if he changes his name or address, he must notify the police within 30 days. See § 7-2502.08(a). Registration certificates expire after three years, so gun owners must continually renew the certificates for the firearms in their possession. See § 7-2502.07a. Penalties for violating the District's registration requirements may include fines, revocation of registration certificates, prohibition from possessing
firearms, and prison time. See § § 7-2502.08(e) & 7-2507.06.
Skeptical of the lawfulness of this post-Heller I regulatory regime, Plaintiffs sued the District. They claimed, first, that the D.C. Council lacked the regulatory authority to enact this scheme and, second, that the regulations once again violated the Second Amendment. See Second Am. Compl., ¶ ¶ 68-80. Judge Ricardo Urbina granted summary judgment for the District on both points. See Heller v. District of Columbia, 698 F.Supp.2d 179, 181 (D.D.C. 2010).
On appeal, the D.C. Circuit rejected Plaintiffs' first argument but did not completely decide the second, remanding the case to this Court for further consideration. See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264, 399 U.S. App.D.C. 314 (D.C. Cir. 2011). On the question of the Council's regulatory authority, the court found that the District of Columbia Home Rule Act, D.C. Code § 1-201.01 et seq., empowered the Council to enact the challenged gun laws. See Heller II, 670 F.3d at 1251. On the Second Amendment question, the court upheld the District's basic registration requirement as applied to handguns as well as its ban on assault weapons and large-capacity magazines. See id. at 1253-58, 1260-64. As to the remaining aspects of the regime, however -- the basic registration requirement as applied to long guns and the other requirements as applied to all firearms -- the panel majority found the record " inadequate," noting that the District had failed " to present any data or other evidence to substantiate its claim that these requirements can reasonably be expected to promote either of the important governmental interests it has invoked." Id. at 1258-59. The D.C. Circuit therefore vacated the judgment below and remanded the case for this Court, Judge Urbina having since retired, " to develop a more thorough factual record" and so that the District could present " some meaningful evidence" to justify these laws. Id. at 1259-60 (quoting Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 664-68, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)).
Following the Heller II decision, the parties engaged in discovery. The District provided opinion testimony in support of its gun laws from four expert witnesses: Cathy L. Lanier, Mark D. Jones, Joseph J. Vince, Jr., and Daniel W. Webster. See Def. Mot., Exhs. G, D, H, and I (Declarations of Cathy L. Lanier, Mark D. Jones, Joseph J. Vince, Jr., and Daniel W. Webster). Plaintiffs presented one expert witness opposing the law: Gary Kleck. See Pl. Mot., Exh. 7 (Declaration of Gary Kleck, Ph.D.). As this Opinion cites extensively to the conclusions of these witnesses, their impressive credentials are worth recounting in some detail.
The District's first expert witness, Chief Lanier, has served since 2007 as the Chief of Police of D.C.'s Metropolitan Police Department. See Lanier Decl., ¶ 4. She has worked for MPD since 1990. See id. Lanier received her Bachelor's and Master's Degrees from Johns Hopkins University, and a Master's Degree in National Security Studies from the Naval Postgraduate School in Monterey, California. See id., ¶ 9. She is also a graduate of the FBI National Academy and the federal Drug Enforcement Administration's Drug Unit Commanders Academy. See id. Prior to her service as Chief, Lanier worked as Commander of MPD's Special Operations Division, as the first Commanding Officer of MPD's Office of Homeland Security and Counter-Terrorism, and as a uniformed patrol officer, including time as Commander of D.C.'s Fourth District. See id., ¶ ¶ 6-8. As Chief, Lanier has spearheaded a number of efforts to prevent gun violence in the District, including the reinstitution
of MPD's Gun Recovery Unit and the creation of a " collaborative information-sharing process among local criminal justice agencies, including police, prosecutors, Superior Court, . . . the Court Services and Offender Supervision Agency . . . and the D.C. Pretrial Services Agency." Id., ¶ 5. Lanier testified before the D.C. Council Committees considering the gun laws at issue here in both 2008 and 2012. See id., ¶ 3.
The District's next witness, Mark Jones, is currently employed as a Senior Law Enforcement Advisor at the University of Illinois's Crime Lab. See Jones Decl., ¶ 3. Before joining the University, Jones spent twenty years as an ATF agent. See id. He received his Bachelor's in Criminal Justice from the University of Illinois and his Master's in Management at Johns Hopkins. See id. at 15. Jones's most recent assignment was as the Regional Firearms Advisor to several Central American governments, which he helped develop policies to reduce gun violence. See id., ¶ ¶ 3-4. Based in El Salvador, Jones " led a team of experts who conducted detailed assessments of the regulatory and enforcement environments in six of the seven countries of Central America, . . . [and then] formulate[d] a training plan to help the public security agencies in each of those countries to better focus and use their resources to deter illegal small-arms trafficking." Id., ¶ 4. Before that, Jones served in a variety of capacities at ATF, including seven years in the District. See id., ¶ 3. Jones has participated in over 100 arrests involving firearms-related crimes and in investigations across the country and around the world. See id. Jones was trained as a firearms instructor by the U.S. Diplomatic Security Service and later received additional firearms training at the Federal Law Enforcement Training Center. See id., ¶ 7. He has since trained numerous law-enforcement personnel in the safe use, care, and storage of firearms.
Joseph Vince heads the Criminal Justice Program at Mount St. Mary's University, where he teaches courses on criminal justice and law enforcement. See Vince Decl., ¶ 4. He is also the President of Crime Guns Solutions, LLC, a consulting firm that provides training and advice to law enforcement on how to reduce gun-related crime.
See id. Vince received his Bachelor's in Criminal Justice from Youngstown State University and his Master's in Criminal Justice from the University of Detroit. See id. at 13. He spent nearly 30 years as an agent with ATF, where he served as Chief of the Bureau's Firearms Enforcement Division and as Chief of its Crime Gun Analysis Branch. See id., ¶ 4. Given his expertise in investigating gun-related crime, Jones was appointed as the U.S. representative to the United Nations Working Group on Small Arms Proliferation and also served as a member of the U.S. negotiating team that, under the direction of the Office of National Drug Policy, attempted to reach an agreement with Mexico to halt the cross-border trade in drugs and guns. See id., ¶ 5. Jones is a member of the Firearms Committee of the International Association of Chiefs of Police and the American Bar Association's National Task Force on Stand Your Ground Laws. See id., ¶ 6. He has testified as an expert on firearms-related crime in numerous cases and provided a statement to D.C.'s Committee on the Judiciary when it considered amendments to the District's gun laws in 2012. See id., ¶ ¶ 3, 6-7.
The District's last witness, Daniel Webster, is the Director of the Johns Hopkins Center for Gun Policy. See Webster Decl., ¶ 5. He also serves as Deputy Director for Research at the Johns Hopkins Center for the Prevention of Youth Violence. See
id. Webster received his Bachelor's Degree from the University of Northern Colorado, his Master's in Public Health from the University of Michigan, and his Doctorate in Health Policy and Management from Johns Hopkins. See id. at 15. At the Johns Hopkins School of Public Health, Webster is a tenured Professor of Health Policy and Management; he also has a joint appointment in the School of Education's Division of Public Safety Leadership. See id., ¶ 7. He teaches graduate courses on violence prevention as well as research and evaluation methods, and his research over the past 23 years has focused primarily on gun-related injuries and violence. See id., ¶ ¶ 6-7. Webster has published nearly 70 articles in peer-reviewed, scientific journals, the majority of which address gun-related violence and its prevention. See id., ¶ 8. He is the lead editor of the book Reducing Gun Violence in America: Informing Policy with Evidence and Analysis, to which he contributed two chapters as a lead author and three chapters as a co-author. See id. Webster provided a written statement and oral testimony to the D.C. Committee on the Judiciary when it considered amendments to the District's gun laws in 2012. See id., ¶ 3.
Finally, Plaintiffs' expert witness, Gary Kleck, is a Professor of Criminology and Criminal Justice at Florida State University. See Kleck Decl., ¶ 6. Kleck received his Bachelor's, Master's, and Doctorate in Sociology all at the University of Illinois. See id. at 56. He has worked as a consultant to the National Research Council, the National Academy of Sciences Panel on the Understanding and Prevention of Violence, and Canada's Department of Justice. See id., ¶ 10. He has also served as a member of the U.S. Sentencing Commission's Drug-Violence Task Force and of the Institute of Medicine and National Research Council Committee on Priorities for a Public Health Research Agenda to Reduce the Threat of Firearm-Related Violence. See id. Kleck has authored or co-authored four books on guns and violence, among them Point Blank: Guns and Violence in America, Targeting Guns, The Great American Gun Debate, and Armed. See id., ¶ 7. He has also published scholarly research in numerous professional journals, addressing subjects such as the relationship between crime rates and gun ownership, gun-control laws, and gun trafficking. See id., ¶ ¶ 8-9.
As both sides have now cross-moved for summary judgment, the Court turns to the substance of their arguments.
II. Legal Standard
Summary judgment may be granted if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S. App.D.C. 122 (D.C. Cir. 2006). A fact is " material" if it is capable of affecting the substantive outcome of the litigation.
See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007);
Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. " A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by " citing to particular parts of materials in the record" or " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).
When a motion for summary judgment is under consideration, " [t]he evidence of the nonmovant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850, 371 U.S. App.D.C. 68 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288, 332 U.S. App.D.C. 256 (D.C. Cir. 1998). On a motion for summary judgment, the Court must " eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363, 374 U.S. App.D.C. 351 (D.C. Cir. 2007). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. Navy, 813 F.2d 1236, 1242, 259 U.S. App.D.C. 115 (D.C.Cir.1987). If the nonmovant's evidence is " merely colorable" or " not significantly probative," summary judgment may be granted. Liberty Lobby,
477 U.S. at 249-50.
There is some dispute between the parties as to what Plaintiffs must show to prevail in their challenge to the District's gun registry, which alleges that the regulations in question are unconstitutional both facially and as applied. To prevail on their as-applied challenge, the parties agree, Plaintiffs must show that the law in question is unconstitutional as applied to them in particular. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). To prevail on their facial challenge, however, the District says Plaintiffs must show the regulations unconstitutional " in all of [their] applications," Def. Mot. at 19 (citing Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 699-700, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995)), while Plaintiffs deride that rule as " inconsistently-applied." Pl. Mot. at 10 (citing Chicago v Morales, 527 U.S. 41, 44 n.22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)). The Supreme Court's more recent precedent, however, states clearly that " a plaintiff can only succeed in a facial challenge by 'establish[ing] that no set of circumstances exists under which the Act would be valid,' i.e., that the law is unconstitutional in all of its applications." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). Because, as explained below, the Court finds that the challenged regulations are constitutional as applied to Plaintiffs, their facial challenge must fail as well.
To analyze Plaintiffs' Second Amendment challenge to the District's gun laws, the Court begins by defining the appropriate constitutional inquiry. This is no easy task, as the parties dispute exactly what is required of the District in order for it to demonstrate the lawfulness of its firearms regulations. After setting forth the constitutional framework, the Court will then apply this standard to each challenged provision of the D.C. scheme.
A. The Second Amendment Inquiry
1. The Constitutional Framework
In Heller II, the D.C. Circuit followed several of its sister circuits in adopting a two-step approach to resolving Second Amendment cases.
See Heller II, 670 F.3d at 1252 (citing Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010);
United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); and United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). It proceeds as follows:
In the first step of the inquiry, the Court asks whether the challenged law " impinges upon a right protected by the Second Amendment." Id. A historically " longstanding" regulation is " presumed not to burden conduct within the scope of the Second Amendment." Id. at 1253 (citing Heller I,
554 U.S. at 626-27 & n.26 and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010)). That presumption is based on the notion that a gun regulation that has " long been accepted by the public . . . is not likely to burden a constitutional right" and therefore that a court may assume that " the activities [it] cover[s] . . . [are] not protected from regulation by the Second Amendment." Id. " A plaintiff may rebut this presumption," however, " by showing the regulation does have more than a de minimis effect upon his [Second Amendment] right." Id. If the court determines that a challenged law does not burden the right to bear arms -- either because it is longstanding and the plaintiff has failed to rebut the presumption of Second Amendment compatibility or because it simply does not burden the right -- then there is no constitutional violation. The court may uphold the law without going further.
If, instead, the challenged law does burden the Second Amendment right, then in the second step of the analysis, the Court must determine " whether the provision passes muster under the appropriate level of constitutional scrutiny." Id. at 1252. Because the Supreme Court has not yet stated what level of scrutiny should apply to laws that burden the right to bear arms,
see Heller I, 554 U.S. at 628 & n.27; Heller II, 670 F.3d at 1256, the Heller II panel considered whether strict or intermediate scrutiny was appropriate for judicial review of the gun-registration laws at issue here.
See Heller II, 670 F.3d at 1256-58. Comparing the Second Amendment to the First, the panel reasoned that " the level of scrutiny . . . [should] depend on the nature of the conduct being regulated and the degree to which the challenged law burdens that right." Id. at 1257 (internal quotation marks and citations omitted). Because " registration requirements do not severely limit the possession of firearms" and " none of the District's registration requirements prevent an individual from possessing a firearm in his home or elsewhere," the D.C. Circuit determined that the more deferential, intermediate level of scrutiny was the better choice. Id. at 1257-58 (internal quotation marks and citation omitted). This Court is bound to follow that lead.
2. The Meaning of " Intermediate Scrutiny"
On all of this, the parties are in agreement. Their disagreement centers on what " intermediate scrutiny" actually means.
The basic language used to describe the standard is familiar enough: To satisfy intermediate scrutiny, the District must show that the challenged regulation is " substantially related to an important governmental objective." Id. at 1258 (quoting Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988)). In other words, " the District must establish a tight 'fit' between the registration requirements and an important or substantial governmental interest, a fit 'that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective." Id. (quoting Board of Trustees of State University of New York v. Fox,
492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)). " The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest."
Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). " [T]he fit between the challenged regulation and the asserted objective [need only] be reasonable, not perfect." Schrader v. Holder, 704 F.3d 980, 990, 403 U.S. App.D.C. 284 (D.C. Cir. 2013).
So far, so good. The parties part ways, however, on what exactly the District must do to survive this inquiry -- in other words, what it must show to establish that the challenged gun regulations are " substantially related" to its important interests.
According to the District, it need only provide " 'some meaningful evidence' demonstrating that the challenged registration requirements 'can reasonably be expected to promote' an important government interest." Def. Reply at 6 (quoting Heller II, 670 F.3d at 1259) (emphasis added). The District further contends that the " meaningful evidence" it provides " is not required to . . . [be] empirical data, but rather may . . . [comprise] any evidence that is 'reasonably believed to be relevant.'" Id. at 7 (quoting Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)) (emphasis added).
Plaintiffs claim, by contrast, that the District must establish that the challenged regulations will " actually achieve the governmental interest to a significant degree." Pl. Reply at 6 (emphasis added); see also Pl. Mot. at 48. Plaintiffs, contend, furthermore, that the District must provide " empirical evidence" to substantiate its argument -- " [t]he test is evidentiary and objective, and is not dependent on unsupported 'expectations.'" Id. at 7.
This may appear a subtle point. But because it will set the terms of the Court's merits analysis, it is worth considering in detail. There are essentially two issues in contention here. First, whether the District need only show that the D.C. Council " could reasonably believe that the laws" would serve its important interests or if it must establish that the laws " will have th[o]se effects." Def. Reply at 2; Pl. Reply at 6 (emphasis added). And second, whether the District may meet its burden by citing to sources other than empirical data or if it is limited exclusively to statistical evidence. Both parties have excised snippets of language from prior cases that seem to support their side over the other. At the end of the day, however, the District has the better of the argument on both issues.
a. Predictions versus Proof
As to the first point, the Supreme Court has stated explicitly that the government satisfies intermediate scrutiny if its predictions about the effect of a challenged law are rational and based on substantial evidence -- it need not establish with certitude that the law will actually achieve its desired end. When applying the intermediate-scrutiny standard, " [t]he question is not whether [the legislature], as an objective matter, was correct[; ] . . . [r]ather, the question is whether the legislative conclusion was reasonable and supported by substantial evidence in the record."
Turner II, 520 U.S. at 211; see also Turner I, 512 U.S. at 666 (to survive intermediate scrutiny, government must show that " in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence" ). The Court has emphasized that " [the legislature's] predictive judgments are entitled to substantial deference"
because " [s]ound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable."
Turner I, 512 U.S. at 665 (emphasis added); see also Turner II, 520 U.S. at 212 (" Congress is allowed to make a rational predication [ sic ] of the consequences of inaction and of the effects of regulation in furthering governmental interests." ) (internal quotation mark and citation omitted); 84 Video/Newsstand, Inc. v. Sartini, 455 F.App'x 541, 551 (6th Cir. 2011) (" This court has repeatedly held that [under intermediate scrutiny] governments are not required to demonstrate empirically that [their] proposed regulations will or are likely to [have their intended effects; ] . . . the touchstone is whether the legislature 'reasonably believed [the evidence it relied on] to be reasonable' and whether the evidence 'fairly support[s] the [legislature's] rationale' for the law." ) (internal quotation marks and citations omitted)). The Court has stressed, furthermore, that when the evidence regarding a law's probable effect is in conflict, the judiciary should defer to the legislature.
See Turner II, 520 U.S. at 199, 207-08, 211; see also City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 437, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (government " does not bear the burden of providing evidence that rules out every theory . . . that is inconsistent with its own" ).
Notably, the D.C. Circuit has instructed that courts should be especially deferential to legislative predictions when it comes to gun policy: " In the context of firearm regulation, the legislature is far better equipped than the judiciary to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks."
Schrader, 704 F.3d at 990 (internal quotation marks and citation omitted).
Given that the Supreme Court urges judicial deference to legislative predictions as well as to legislative judgments regarding conflicting evidence, it is plain that Plaintiffs are mistaken about the burden of proof in this case. The District need not prove that the gun-registration laws will actually further its asserted interests in order to prevail. This is evident notwithstanding the fact that the Court has occasionally used language that, taken in isolation, might seem to support Plaintiffs. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995) (intermediate scrutiny " is not satisfied by mere speculation or conjecture; rather, a governmental body . . . must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree" );
Turner I, 512 U.S. at 664 (to survive intermediate scrutiny, government must demonstrate " that the regulation will in fact alleviate [the asserted] harms in a direct and material way" ). This interpretation is consistent with Heller II itself, where the D.C. Circuit upheld the District's ban on assault weapons because " the evidence demonstrates [that it] is likely to promote the Government's interest in crime control."
Heller II, 670 F.3d at 1263 (emphasis added).
While the legislature is entitled to make predictions about the effect of its chosen policies, especially in the context of firearm regulation, those predictions must still have a sound basis:
That Congress' predictive judgments are entitled to substantial deference does not mean . . . that they are insulated from meaningful judicial review altogether. On the contrary, we have
stressed . . . that the deference afforded to legislative findings does not foreclose our independent judgment of the facts bearing on an issue of constitutional law. This obligation to exercise independent judgment . . . is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.
Turner I, 512 U.S. at 666 (internal quotation marks and citations omitted).
The D.C. Council may rely on predictions about the effect of the gun-registration laws, then, but its predictions must be reasonable ones drawn from " substantial evidence." The Supreme Court has emphasized that " substantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency,"
Turner II, 520 U.S. at 195, but it has also made clear that the " substantial evidence" requirement has teeth, rejecting legislative predictions that were not backed by sufficient evidence.
See, e.g., Turner I, 512 U.S. at 666-68. The Heller II court followed suit here, remanding this case for further consideration because the District had " fail[ed] to present any data or other evidence to substantiate its claim that these [gun-registration] requirements can reasonably be expected to promote either of the important governmental interests it has invoked."
Heller II, 670 F.3d at 1259. To satisfy intermediate scrutiny, therefore, the District need not meet Plaintiffs' demanding standard by proving definitively that the challenged gun regulations will actually further its important interests. Instead, its predictions about the effect of the gun regulations are entitled to significant deference, and the District need only show that they reflect " reasonable inferences based on substantial evidence." Id. at 1259 (quoting Turner II,
520 U.S. at 195) (internal quotation marks omitted).
b. Data versus Other Evidence
On the second point in contention -- whether the District must rely only on hard data or if it may supplement the record with other forms of evidence -- the government once again prevails. The Supreme Court has specifically addressed this matter: " [W]e have permitted litigants to justify . . . restrictions [under intermediate scrutiny] by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and simple common sense." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (emphasis added) (internal quotation marks omitted);
see also Alameda Books, 535 U.S. at 439-40 (" A municipality considering an innovative solution may not have data that could demonstrate the efficacy of its proposal because the solution would, by definition, not have been implemented previously." );
National Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 15, 388 U.S. App.D.C. 190 (D.C. Cir. 2009) (" [Plaintiff] maintains that the congressional findings . . . are insufficient to support [the government's asserted interest] and thus to satisfy strict scrutiny. Rather, there must be 'studies, statistics, or empirical evidence . . . .' We disagree." ); National Cable & Telecommunications Ass'n v. FCC, 555 F.3d 996, 1000, 384 U.S. App.D.C. 349 (D.C. Cir. 2009) (" The Supreme Court has found 'various unprovable assumptions' sufficient to support the constitutionality of state and federal laws." ) (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61,
93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)).
The proper standard, the Supreme Court has suggested, is that the government may rely on " whatever evidence . . . is reasonably believed to be relevant to the problem that [the government is] address[ing]."
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986);
see also Alameda Books, 535 U.S. at 438-39. When the D.C. Circuit remanded this case for further factual development, it accordingly did not limit the District exclusively to statistics, but instructed only that " the District needs to present some meaningful evidence, not mere assertions, to justify its predictive judgments." Heller II, 670 F.3d at 1259 (emphasis added); see also id. (the District " fails to present any data or other evidence to substantiate its claim" ) (emphasis added). That is a much broader mandate than what Plaintiffs claim is required here.
Relatedly, Plaintiffs attempt to discredit three of the District's expert witnesses -- Lanier, Jones, and Vince -- whose opinions rely primarily on their personal experiences working in law enforcement. Plaintiffs urge that " formal training in statistical analysis and research design is necessary to evaluate the effectiveness of gun control measures, as is a thorough knowledge of the methods and findings of prior research on this topic. These witnesses have neither that training nor that knowledge." Pl. Mot. at 21 n.16. Plaintiffs therefore suggest that the Court " give little or no weight to the unsupported personal opinion testimony of these three witnesses." Id.
The Court will not disregard the District's expert testimony on that basis. While a police officer's personal experience may not always carry the same heft as a criminologist's data, this is no reason for the Court to entirely disregard the former in favor of the latter. Indeed, in some cases, the reverse might be true. Just as Justice Holmes once observed that " a page of history is worth a volume of logic," New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963, T.D. 3267 (1921), so too, sometimes, a page of professional experience is worth a volume of statistics. That is hardly to say that an anecdote or two from " life on the beat" would suffice, yet in this case, the experience of the District's witnesses far exceeds that measure. The D.C. Circuit, moreover, routinely permits law-enforcement officers to testify as expert witnesses based on their professional experiences, without the kind of formal statistical training that Plaintiffs insist is indispensable to any legitimate policy judgment. See, e.g., Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1211-12, 324 U.S. App.D.C. 241 (D.C. Cir. 1997); United States v. Spriggs, 996 F.2d 320, 325, 302 U.S. App.D.C. 54 (D.C. Cir. 1993). This is because Federal Rule of Evidence 702 allows a witness to qualify as an expert " by knowledge, ...