Liberty, Justice, and Handguns for All (in Washington): The D.C. Circuit Weighs In On Concealed Carry

Issue

Is the right to publicly carry a concealed weapon a “core” right protected by the Second Amendment? Gun rights activists throughout the District can celebrate, because the D.C. Circuit said yes. The court struck down the section of the D.C. Code that primarily limited concealed carry licenses to “those showing a good reason to fear injury to [their] person or property.”

The Evolution of Gun Laws in the District of Columbia

Over the last 40 years, the D.C. Council has attempted to establish gun restrictions on three separate occasions.

The first attempt – a complete ban on handgun possession – was struck down by the Supreme Court in District of Columbia v. Heller. In Heller, Justice Scalia analyzed the meaning of the words “keep and bear arms,” and noted that “the inherent right of self-defense has been central to the Second Amendment right.” Justice Scalia (quoting the D.C. Circuit in Parker v. District of Columbia) noted that “banning from the home the most preferred firearm in the nation to ‘keep’ and use for the protection of one’s home and family would fail constitutional muster.” Following Heller, most jurisdictions adopted the holding that the core right protected by the Second Amendment was the right for persons to keep firearms at home.

The Council’s second attempt – which allowed DC residents to possess handguns in their homes, but instituted a total ban on public carrying – was struck down by the U.S. District Court for the District of Columbia in Palmer v. District of Columbia. In Palmer, the court held that a blanket ban on carrying handguns in public was unconstitutional, but some restrictions on carrying handguns in public could be permitted.

The third attempt maintained a ban on publicly carrying a handgun, except for persons who could demonstrate a “good reason” to carry. This “good reason” statute was struck down by the D.C. Circuit in Wrenn v. District of Columbia. In Wrenn, the court noted that the “good reason” statute was effectively the same as a “total ban” for most citizens.

To meet the requirements of the “good reason” statute, applicants for a concealed carry permit would need to “show a special need for self-protection distinguishable from the general community.” The court found the phrase “distinguishable from the general community” problematic. The language of the statute barred most people from obtaining a license to carry, because only a small portion of the D.C. metropolitan community could distinguish their needs “from the general community.” Before Wrenn, the Washington Metropolitan Police Department rejected 77 percent of concealed carry permit applications for failure to show a special need for self-protection.

Taking into consideration the textual and historical analysis in Heller, the court held

“…the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment protections.”

With this language, the D.C. Circuit became the latest circuit to join the split over whether carrying beyond the walls of the home is a “core” right protected by the Second Amendment. This may result in greater scrutiny of the “good reason” statutes in other circuits.

The Split

The D.C. Circuit joins the Seventh Circuit in holding that a ban on public carrying violates the Second Amendment. In Moore v. Madigan, the Seventh Circuit struck down the Illinois Unlawful Use of Weapons statute. While somewhat distinct from a “good reason statute,” the statute was effectively a total ban on public carrying, with very narrow exceptions for law enforcement officers, hunters, and members of target shooting clubs (among others). The court held that “confrontation [requiring self-defense with a gun] is not limited to the home.”

The First, Second, Fourth, and Ninth Circuits disagree (for a comprehensive overview of the decisions below, check out another one of our Sunday Splits blogs).

  • In Hightower v. City of Boston, the First Circuit held that the government “may regulate the carrying of concealed weapons outside the home” and upheld Boston’s “good reason” statute.
  • In Kachalsky v. County of Westchester, the Second Circuit declined to extend the reasoning in Heller to carrying outside the home. The court upheld New York’s “good reason” statute, which required applicants seeking to obtain a concealed handgun permit, to “demonstrate a special need for protection.”
  • In Woollard v. Gallagher, the Fourth Circuit held that a “good-and-substantial-reason” requirement could withstand constitutional muster, and upheld Maryland’s “good reason” statute.
  • In Peruta v. County of San Diego, the Ninth Circuit explicitly stated that “there is no Second Amendment right for members of the public to carry concealed firearms in public.”

The D.C Circuit’s decision casts a sharp split on the issue of whether concealed carrying in public is a core right protected by the Second Amendment. The decision struck down the very kind of statute –a “good reason” statute – that has been consistently upheld in sister circuits.

Looking Forward – The Future of Concealed Carry

The D.C. Circuit’s order went into effect on October 7, and residents of Washington, D.C. who pass a background check and a firearms safety test will be permitted to carry a concealed handgun. Some restrictions on concealed carry remain, including prohibitions on carrying firearms into federal buildings or around monuments.

Following the D.C. Circuit’s decision, “good reason” statutes could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the D.C. Circuit’s qualification that handguns can be carried “even in densely populated areas” could lead to the arguably strict “good reason” statues being challenged in major cities, such as New York and Boston.

The Supreme Court declined to review the decision in Woollard, and D.C. officials stated that they would not petition the Supreme Court to review the decision in Wrenn shortly before the D.C. Circuit’s order went into effect. But in light of current events, stark administrative changes, and the D.C. Circuit’s decision, the time may be ripe for the Supreme Court to revisit “good reason” statutes and explicitly state whether the core of the Second Amendment protects the right to publicly carry a concealed firearm.

Is the Trump Travel Ban Still Moot? Why the Broader Issue of Executive Power is at Stake.

On December 8, 2015, then candidate Donald Trump called for what colloquially became known to some as a “Muslim ban.” Fast forward almost a full year later to January 27, 2017, when President Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order placed a temporary ban on immigration from seven countries that had been deemed to be terror prone by the Obama Administration. Almost immediately, an injunction was ordered barring the enforcement of the order.

In response, President Trump issued a “watered down” travel ban” on March 6, 2017. The new travel ban was less restrictive than the first ban, allowing immigration from Iraq, and containing an exemption for green card holders and people with permanent residency who were entering the U.S. from any of the other six countries. Despite the revision, the order was challenged in multiple lower courts, and eventually appeals were heard in both the Fourth and Ninth Circuits. Both courts ruled against allowing the “watered down” travel ban to go into effect.

The Supreme Court:

On June 26, 2017, the Supreme Court agreed to hear the appeals of those cases during its fall term. Most notably, they lifted the stays that the lower courts had placed on the travel ban, thereby allowing it to go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Though a minor legal debate over the scope of the phrase “bona fide relationship” ensued, the decision to lift the stay until the Court heard the case at least signaled to some that the Court was likely to side with President Trump’s assertion of executive power.

 The Split

Though both the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals ruled against President Trump’s travel ban, each court differed in its reasoning. The Fourth Circuit’s decision was based on the premise that President Trump’s rhetoric during the campaign was evidence of his “anti-Muslim sentiment.” The decision went on to say that such discrimination in the form of an executive order violated the Establishment Clause of the First Amendment.

The Ninth Circuit’s decision to stay the ban was based on statutory grounds. They held that President Trump’s Executive Order violated the Immigration and Nationality Act (INA). The INA requires that a President provide reasoning for his or her decision to restrict immigration from certain countries, and the Ninth Circuit held that President Trump failed to provide such support for his order.

Looking Forward and why the Circuit Split Matters:

Recently, the Supreme Court removed the appeals of both of the above cases from its oral arguments calendar for the fall over the question of whether the issue was still moot. In light of both of the lower court decisions, President Trump issued a third travel ban, which added more countries to the list that bans entry and provided a much stronger rationale for the ban after citing an inter-agency review. Though there will likely still be grounds to challenge the new order, it is entirely possible that the Court will not find those new challenges persuasive and thus leave its decision to lift the stay in place.

If this were to happen, it would set up an interesting legal question over what to do with the lower court decisions. The Trump Administration will likely want the lower court decisions vacated because they restrict his authority. In particular, since the Fourth Circuit’s decision was based on constitutional grounds, it is the decision that has a far greater impact on the scope of executive power in the United States. Therefore, what the justices decide to do with the mootness issue and consequently the lower court decisions will play an important role in understanding how the justices view the scope of Trump’s executive power.

Waking the Dormant Commerce Clause

The Dormant Commerce Clause is a confusing and made-up doctrine crafted by the Court to prevent states from isolating themselves from the rest of the country for their own pecuniary benefit. The doctrine attempts to honor the delegation to Congress in Article I to regulate interstate commerce by preempting a state’s ability to pass laws regulating interstate commerce. However, states may be able to pass laws that favor the state in one particular scenario.

Facially Neutral, Discriminatory Impact

Generally, if a law patently or facially advantages a state at the expense of its peers, the law will receive strict scrutiny, essentially dooming the law. However, laws that do not discriminate on their face, but nevertheless have a discriminatory impact, may not run afoul of the dormant commerce clause. In Pike v. Bruce Church., the Court stated what has become the test for whether a given law violated the dormant commerce clause:

Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.

In simpler terms, if the law purports to benefits the state or local economy more than it burdens interstate commerce, the law is constitutionally sound.

                 The Split

Now, since this is a circuit splits blog, you’re probably asking yourself why this all matters since the Supreme Court already spoke on the subject. Well, states are split on what legislatures have to do to save their law: Do they need to simply assert putative local benefits? Or, does there need to be some evidence that the law will in fact create local benefits?

Well—the circuits are, you guessed it, split! The Second, Third, Eighth, and Tenth Circuits have a more substantive requirement, hoping to assure that the putative benefits are both “genuine and credibly advanced.” Inapposite—the First, Fifth, Ninth, and D.C. Circuits only require the assertion of local benefits—no matter how credible or genuine.

Looking Forward

In Kassel v. Kassel v. Consol. Freightways Corp., perhaps the most recent Supreme Court case on point, the Court’s reasoning indicates that the Second, Third, Eighth, and Tenth Circuits’ interpretation is correct, insofar that there is a substantive requirement on the state to ensure the asserted benefits are genuine and not just speculative. With seemingly more burgeoning issues on the Court’s horizon, it seems hopeful to wish this split will be resolved anytime soon; but, with the incoming administration’s alleged concern for federalism, perhaps precedent will trend towards allowing more state laws burdening interstate commerce.

It Seemed like the Reasonable Approach at the Time: A Circuit Split on the Meaning of “Reasonable Belief” in Search and Seizure

How Many Warrants?

Two major Supreme Court decisions are at play here concerning the constitutionality of officers entering residences to execute arrest warrants when residency of the suspect is uncertain.

In the aftermath of the first case, Payton v. New York (S.Ct. 1980), the Courts of Appeals developed a two-prong test to assess the constitutionality of an officer’s entry to execute an arrest warrant: the officer must have a “reasonable belief” that (1) the “arrestee lives in the residence, and that (2) the “arrestee is within the residence.” United States v. Gay (10th Cir. 2001).

One year after Payton, the Supreme Court held that officers may not enter the residence of a third party to execute an arrest warrant unless they first obtain a search warrant based on the belief that the suspect “might be a guest there.” Steagald v. United States (S.Ct. 1981). This created a stricter standard for entering officers if they believe only that the suspect is a common “guest” in the residence rather than a resident or immediately within the residence. Thus, officers would much prefer that the arrestee is a resident and within the residence as opposed to being simply a guest.  The determination of whether officers need only an arrest warrant to enter versus an arrest warrant and a search warrant to enter a residence is entirely dependent on an officer’s “reasonable belief.”

The circuit courts have since been faced with discerning what constitutes a “reasonable belief,” thus determining when both an arrest and a search warrant are necessary for constitutional entry into third party residences as opposed to only an arrest warrant.

Circuit Split

The Third Circuit is the most recent voice to enter the interpretive dispute surrounding the standard of “reasonable belief.” United States v. Vasquez-Algarin (3rd Cir. 2016).

Joining the Fifth, Sixth, Seventh, and Ninth Circuits, the Third Circuit held that reasonable belief should be viewed as the functional equivalent of probable cause, and thus the same standard.  The practical effect of requiring a probable cause standard is that it makes it more difficult to enter only with an arrest warrant. The Third Circuit had two primary reasons for their decision:

  • First, the Supreme Court’s use of the phrase “reason to believe,” when considered in the context of Payton and more generally the Court’s Fourth Amendment jurisprudence, supports a probable cause standard.
  • Second, and more fundamentally, requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.

Some of Vasquez-Algarin’s reasoning echoes that of the Sixth Circuit, both noting that on several occasions the Supreme Court has used the same “reason to believe” language from Payton “as a stand-in for ‘probable cause.’” (3d Cir. 2016).

The DC Circuit, First, Second, and Tenth Circuits have held that the standard for reasonable belief falls short of the standard for probable cause belief. The DC Circuit reasons that it is “more likely . . . that the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’” (2005). The Tenth Circuit equates probable cause requirements with calls for “actual knowledge of the suspect’s true residence.” (1999). It believes extending probable cause as the standard for a “reasonable basis” for determining that an individual “lived in the residence and . . . could be found within at the time of entry,” would “effectively make Payton a dead letter.” Valdez v. McPheters (10th Cir. 1999).

The Third Circuit claims that the Supreme Court’s choice of stand-in language undermines the DC Circuit’s conclusion that Payton’s ‘reason to believe’ language should be interpreted loosely. The Third Circuit explains that the Supreme Court’s use of “reason to believe” as a stand-in for “probably cause” indicates the Court’s belief that the standard for the two is the same.

Looking Forward

The incongruence in requirements for only arrest warrants versus arrest and search warrants creates such a fundamental constitutional discrepancy that the Supreme Court should address it soon.

For the last 36 years, courts have been left to grapple with the interpretation of the Court’s language in Payton, and the circuits seem to have pretty evenly split on the meaning of a “reasonable belief.” Until the Court addresses the standard for reasonable belief varying degrees of scrutiny will continue to be imposed on officers, and the degree of protection of an individual’s right to be secure in their home will remain grey.

Damned If You Do, Damned If You Don’t: The FDCPA, the Bankruptcy Code, and a Split on Time-Barred Claims

Filing a claim is one of the most basic components of bankruptcy law.  In fact, it’s the only way a creditor can hope to get their investment back in a bankruptcy proceeding.  But what if pursuing your legal remedy opened you up to liability?  Sounds like a catch-22 doesn’t it?  That’s the exact situation that the Supreme Court is about to decide.

What’s Going On

As we all know, bankruptcy is federal law.  However, the contract claims which fall under federal bankruptcy provisions are governed by state law.  These state law provisions provide for such things as enforceability, including when a debt is considered “stale” or the statute of limitations on its enforceability has run.

In addition to these state imposed limitations on debt collection, the federal government has a separate set of rules whose purpose is to protect debtors from unscrupulous debt collectors known as the Fair Debt Collection Practices Act (FDCPA).  One portion of this act bans the collection of stale consumer debts.

So What’s the Problem?

Even though stale debts are technically unenforceable, there is still a market for them.  Purchasers of stale debts hope for one of two outcomes.  That the debtor somehow see’s the light and voluntarily repays their remaining obligations or, the more likely outcome, the debtor files bankruptcy and the holder of the debt files a claim as a creditor in bankruptcy court.  Option two, however, comes with a bit of a problem: a stale claim is still a claim under the bankruptcy code, putting the bankruptcy code in direct conflict with the FDCPA by potentially allowing a creditor to collect on a stale debt.

The Split

Currently, the courts are split over how to resolve this clash between the bankruptcy code and the FDCPA.  The split revolves around whether the bankruptcy code preempts the FDCPA or whether both can apply to a creditor at the same time.  In essence, bringing around the hypothetical posed at the beginning of this article.

(Some history before we dive in. The Eleventh Circuit, in the opinion described below, was responding to some confusion sowed after a prior ruling in Crawford v. LVNV Funding, LLC. In Crawford, the Eleventh Circuit held that the FDCPA applied to a Chapter 13 claim filed for a time-barred debt. The Supreme Court denied cert. District courts, in the wake of Crawford, stated the FDCPA and the bankruptcy code were in irreconcilable conflict and, under a doctrine termed implied repeal, held that the bankruptcy code preempted FDCPA claims. Johnson reversed that holding, reinstating the Crawford regime that held the FDCPA applied to claims for stale debts.)

In Johnson v. Midland Funding, the Eleventh Circuit found that the two statutes were not irreconcilably different, and that the FDCPA is violated when a creditor files a claim on a time-barred debt. The Eleventh Circuit reasoned that:

The Code establishes the ability to file a proof of claim, see11 U.S.C. § 105(a), while the FDCPA addresses the later ramifications of filing a claim, see Crawford, 758 F.3d at 1257.

The Eighth Circuit on the other hand came to the opposite conclusion, finding that the bankruptcy code and FDCPA are in direct conflict, and that the filing on a time-barred debt is not barred by the FDCPA.  In making its decision, the Eighth Circuit noted that due to the special protections afforded to debtors in bankruptcy, the concerns for which the FDCPA was originally enacted are not present.  Stating:

These protections against harassment and deception satisfy the relevant concerns of the FDCPA. “There is no need to protect debtors who are already under the protection of the bankruptcy court, and there is no need to supplement the remedies afforded by bankruptcy itself.” Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2d Cir. 2010) (so stating while rejecting an FDCPA suit even where the proof of claim was inaccurate and inflated).

The ultimate decision reached by the Eighth Circuit was also reached by the Fourth and Seventh Circuits, albeit for slightly different reasons.  But the underlying thread between the decision was the extra layer of protections afforded do debtors in bankruptcy.

I’m Not Broke (Yet), Why Should I Care?

The outcome of this circuit split will have large implications not only for the creditors filing these stale claims but also for the debtors.

If the Eleventh Circuit’s reasoning is followed, then not only will creditors miss out on an opportunity to be repaid, but the debtor will now have a civil cause of action against the holder the debt.

On the other hand, if the Fourth, Seventh, and Eighth Circuits are followed, holders of time barred debt will be able to continue to assert claims and hope to receive payment.  And if this riveting split wasn’t reason enough to follow this case, the Supreme Court just granted cert to Johnson v. Midland.

Welcome, dear readers!

We call it Sunday Splits. Each week (but only on Sundays!) we will post a short discussion about a “circuit split.” For the uninitiated, a circuit split results when a federal circuit court of appeals rules differently on the same legal question as another court of appeals. These “splits” lead to a very enticing prospect—Supreme Court review.

We are a group of law students who specialize in Supreme Court litigation. Our organization, the Emory Law School Supreme Court Advocacy Program (ELSSCAP), files briefs exclusively at the high Court, so we follow legal news and developments closely. We have started this blog to highlight interesting issues that one day may end up before the Nine.

In these pages—screen?—we will organize and describe important circuit splits that we think are worthy of appearing before the high Court. (And some that are perhaps less worthy, or consequential, but nonetheless interesting). We are just beginning this journey, and we acknowledge at the outset that this is an ambitious experiment. If we are successful, however, we hope this blog will be a definitive repository of the issues that may soon be heard before the Court.

Before we begin, a brief word on our intended audience:

  • First, we hope this blog can be a resource for practicing attorneys who may bring cases to the Court. If that describes you, then we hope we can organize our splits so that you can find your match.
  • Second, to the legal academy, we hope to be a resource for professors and aspiring writers who look to these pages for article and comment ideas. If that describes you, we invite you in turn to share your ideas with us at elsscap@emory.edu.
  • Third, to the parties in litigation—perhaps you have lost an appeal at a federal circuit court of appeals, or a state supreme court, and the legal issue you face is described here. If so, we invite you to tell us about your case using our intake form (also available on our website), and we will let you know if we can help you.

This blog is not affiliated with Emory University, and we provide no legal advice, but we will do our best to provide engaging commentary.

That is all, for now – may the blogging begin!

It is so ordered.

Hamp Watson, director of ELSSCAP, Emory Law Class of 2017