Smith v. Government of the District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAGGIE SMITH, et al.,
Plaintiffs,
V. Case No. 1:15-cv-00737-RCL
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
The District of Columbia is no stranger to challenges to its gun laws. After the Supreme
‘Court struck down a District law banning all handgun possession, see District of Columbia v.
Heller, 554 U.S. 570 (2008), the District has been stuck in a back-and-forth with residents and
non-residents alike who seek to register and carry firearms. Important to this case are a trio of the
District’s laws: D.C. Code § 22-4504, the ban on carrying a weapon, which a judge of this Court
struck down in 2014, see Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014),
appeal withdrawn, No 14-7180, 2015 WL 1607711 (D.C. Cir. Apr. 2, 2015); D.C. Code § 7-
2502.01 (2012) (repealed 2015), which criminalized the possession of non-D.C. registered
firearms; and D.C. Code § 7-2506.01 (2013), which criminalized the possession of ammunition by
one who does not have a D.C. registered firearm. When combined with a provision that essentially
limited handgun registration to D.C. residents, D.C. Code § 7-2502.02 (2012) (repealed 2015) and
a District policy of refusing to entertain non-resident gun registration applications, see ECF No.
133-1 ¥ 109, these provisions effectively banned non-residents from possessing a firearm. And all
people, resident and non-resident alike, were prevented from carrying a weapon in public.
The six plaintiffs in this case, four non-residents and two District residents, were all
arrested and charged with some combination of §§ 22-4504 (carrying ban), 7-2502.01
(unregistered firearm), and 7-2506.01 (unregistered ammunition). They bring a putative class
action challenging their arrests and ultimately aborted prosecutions under 42 U.S.C. § 1983asserting claims under the Second, Fourth, and Fifth Amendments. Plaintiffs moved for partial
summary judgment regarding liability, requesting the expungement of their arrest records and a
declaration of nullity as to their arrests. ECF No. 121. The District filed a cross-motion for
summary judgment regarding liability. ECF No. 134. Upon consideration of these motions, the
respective oppositions and replies, and the record, the Court will GRANT plaintiffs’ motion for
partial summary judgment as to Counts I and III, DENY plaintiffs’ motion for partial summary
judgment Z to Count VI, DENY the District’s motion for summary judgment as to Counts I and
III, and GRANT the District’s motion for summary judgment as to Count VI.
I. BACKGROUND
The material facts of this case are undisputed. Plaintiffs are four non-residents and two
residents of the District of Columbia who, over the course of time between May 15, 2012, and
October 10, 2014, were arrested by the Metropolitan Police Department (“MPD”) on gun-related
charges. See ECF No. 121-1 4.
The MPD pulled over Maggie Smith, a nurse from North Carolina and the first plaintiff in
this case, on June 29, 2014, for a routine traffic stop. ECF No. 133-1 43, 8. At the time, Smith had
no criminal record. Jd. § 4. During the stop, Smith promptly informed the MPD officers that she
was cCatrying a pistol licensed in her home state of North Carolina. /d. | 5. The police, in response,
arrested Smith for § 22-4504(a), carrying a pistol, seized her gun, and held her overnight in the
D.C. Jail until her presentation in court the next day. Jd. § 6-8, 15. The U.S. Attorney’s Office first
charged her with § 22-4504(a)! by complaint, then obtained an indictment which added additional
charges under § 7-2502.017 and § 7-2506.01.° Jd. 4 10-11. Though the U.S. Attorney’s Office
dismissed the indictment, the D.C. Attorney General (“OAG”) recharged Smith under § 7-2502.01
and § 7-2506.01 on September 12, 2014, before ultimately dropping the charges seven months
later. Jd. | 12-15. Smith’s gun remains in police custody. Jd. J 17.
Gerard Cassagnol, a resident of Maryland, was driving home from his office in Northern
Virginia when he was pulled over by MPD police officers. Jd. ¢ 24-26. While searching his truck,
the police officers asked Cassagnol whether he had a gun in his vehicle. Jd. As “he had been
taught,” Cassagnol informed the police officers that he had a firearm locked in a safe in his trunk
and gave the officers the combination. Jd. Wi 26, 28. Like Smith, Cassagnol was arrested and held
in D.C. jail for two nights. Jd. J 31-34. The U.S. Attorney charged him with § 22-4504(a), § 1
2502.01, and § 7-2506.01 before dropping the charges after the District Court’s decision in Palmer
v. District of Columbia, 59 F. Supp. 3d 173 (D.C. Cir. 2014). Jd. § 38-39. Undeterred, the OAG
refiled charges under § 7-2502.01, and § 7-2506.01 against Cassagnol. Jd. § 40. Those charges
were ultimately not prosecuted. Jd. 41. Cassagnol was fired from his job after his arrest. /d. at
437. Cassagnol’s gun remains in police custody. Id. § 42-44. Though he reached out to the
Evidence Control Branch at MPD to request the return of his gun after all charges were dropped,
' The relevant portion of D.C. Code § 22-4504(a) at the time stated that “[n]o person shall carry within the
District of Columbia either openly or concealed on or about their person, a pistol, or any deadly or
dangerous weapon capable of being so concealed.” Jd.
* The relevant portion of § 7-2502.01 at the time provided that “no person . . . in the District [of Columbia]
shall possess or control any firearm, unless the person . . . holds a valid registration certificate for the
firearm.” Jd. at (a). A related provision, § 7-2502.02(a)(4)(C) made it impossible to register a pistol unless
the registrant sought the gun for self-defense “within that person’s home,” effectively requiring the person
to live in D.C. to register their handgun.
3 The relevant portion of § 7-2506.01 requires that “no person shall possess ammunition in the District of
Columbia unless . . . [h]e is the holder of the valid registration certificate for a firearm.” Jd. at (a).
3
they informed him that he would have to contact his lawyer and the prosecutor to get his property
returned. Jd. 4] 45-48.
Corporal Frederick “Cornelius” Rouse, a veteran and resident of Maryland, was staying in
a hotel in downtown D.C. when police searched his hotel room for guns. Jd. 50-57. When the
police discovered two handguns and a scope, Rouse admitted they were his and were lawfully
registered in Maryland. Jd. 451. Rouse was arrested, his guns were seized, and he was charged by.
the OAG with § 7-2502.01 and § 7-2506.01. Jd. § 61-63. The OAG ultimately nolle presse’d the
charges against Rouse. Jd. 62. Rouse secured the return of his guns and scope in July 2017 after
multiple attempts. Jd. 64-65. After his arrest, his Top Secret Security Clearance was placed under
review. Id. ¥ 54.
| The next plaintiff, Delontay Davis, was a resident of Virginia who was arrested on March
23, 2014, after police spotted his pistol during a traffic stop. Jd. | 66. Virginia at the time did not
require any license or registration for the open carry of pistols outside the home. Jd. J 68. After his
arrest, Davis’s gun was seized and he was held in D.C. jail for four nights. Jd. ¢ 73, 80. The U.S.
Attorney first charged Davis with § 7-2502.01 and § 72506.01 before dismissing the charges on
January 16, 2015. Jd. 77. The OAG promptly refiled the same charges the same day before
ultimately dismissing them two months later. Jd. § 78-79.
The plaintiffs’ most recent Amended Complaint, ECF No. 114, added Kimberly Buffaloe
and Carl Atkinson as plaintiffs. Buffaloe and Atkinson are unique from the other plaintiffs in that,
at the time of their arrests, they were both residents of the District of Columbia. ECF No. 133 4 85,
97. Buffaloe was arrested on July 21, 2012, when MPD officers approached the car she was sitting
in with her then-boyfriend. /d. { 84. Buffaloe was held in D.C. jail overnight and then released to
a halfway house. Jd. 991. The U.S. Attorney charged Buffaloe with § 22-4504(a), § 7-2502.01, §
7-2506.01, and § 22-2511. Id. § 94. Nearly eight months later all charges against Buffaloe were
dismissed. Id. J 95.
Atkinson, the final plaintiff, was arrested after a traffic stop by MPD on January 28, 2014.
Id. § 96. Officers arrested Atkinson after finding a loaded pistol in the backseat during a search.
Id. § 100. He was held overnight in D.C. jail and charged with § 22-4504(a) at presentment in court
the next day, but the U.S. Attorney ultimately dismissed the charges three months later. Jd. { 102—
105.
Both parties agree that when the arrests occurred, no person in the District of Columbia,
resident and non-resident alike, could carry either a handgun or ammunition outside the home. Jd.
4 108. And at the time of these arrests, the District of Columbia refused to even entertain gun
registration applications by individuals who were not residents of the District of Columbia, Id.
4 109. Gun registration applicants were required to submit “[p]roof of residency in the District of
Columbia (e.g., a valid [D.C.] operator’s permit, [D.C.] vehicle registration card, lease agreement
for a residence in the District, the deed to your home or other legal document showing [D.C.]
residency).” Jd. § 110. Non-residents without such proof of residency had no recourse to seek a
District of Columbia gun registration. Jd. It is also undisputed that during the time of these arrests
the MPD seized handguns and other evidence from people arrested on gun offenses. Jd. at { 127.
On July 24, 2014, the District Court struck down § 22-2404(a), the prohibition against open
carry, and’§ 7-2502.02(a), which prohibited persons from registering a handgun unless it was “for
use in self-defense within that person’s home.” Palmer v. District of Columbia, 59 F. Supp. 3d 173(D.D.C. 2014). The Court in Palmer enjoined the District from enforcing those two statutes against
individuals “based solely on the fact that they are not residents of the District of Columbia.” Jd. at
184,
As in the examples above, when’a suspect was arrested on a District gun offense, the MPD
would seize handguns and other evidence. ECF No. 133-1 § 127. Handguns and ammunition were
initially classified as “evidence” in these situations. Jd. 4128. To obtain release of these seized
firearms, there is a set procedure. MPD must present a Form 81-C for the U.S. Attorney’s Office
to sign indicating that there is no objection to the release. Jd. FJ 131, 134. As the plaintiffs note,
MPD’s Evidence Control Branch would sometimes assist owners in retrieving their seized firearms
by shipping guns to either the owner themselves in a different state, a police station in a different
state, or a gun dealer outside of the District. Jd. J 140.
Plaintiff Smith filed this lawsuit in 2015 as a putative class action. ECF No. 1. Plaintiffs
Cassagnol and Rouse were subsequently added in the first Amended Complaint, ECF No. 22, and
all plaintiffs moved for class certification, ECF No. 26. This court denied the motion after both |
parties consented to deferring class certification until after liability was determined. ECF Nos. 36
& 38.
Plaintiffs next filed a Second Amended Complaint with ten claims against the District of
Columbia, alleging violations of their Second, Fourth, and Fifth Amendment rights. ECF No. 50.
The District moved to dismiss under Rule 12(b)(1), arguing that plaintiffs lacked standing and the
Court lacked jurisdiction. ECF No. 53. The District also moved to dismiss for failure to state a
claim. ECF No. 53. This Court found that the plaintiffs had standing but dismissed seven of the
plaintiffs’ claims under Rule 12(b)(6). Smith v. District of Columbia, 387 F. Supp. 3d 8 (D.D.C.
2019).
Plaintiffs then filed a Third Amended Complaint, adding Atkinson and Buffaloe, the first
resident plaintiffs. ECF No. 114. The complaint contains their three remaining claims: Count I,
that District of Columbia’s “gun control regime” during the time of the arrests violated their
Second Amendment rights; Count III, that District of Columbia’s “gun control regime” during the
time of arrests violated their Fifth Amendment rights to travel and equal protection with respect to
non-residents; and Count VI, that the retention of handguns and ammunition after all plaintiffs’
cases were closed violated their Fourth Amendment rights. Jd. ¢ 39-43. Both parties moved for
summary judgment as to liability on these three claims. ECF Nos. 121 & 134.
II. LEGAL STANDARDS
A. Summary Judgment
For a movant to succeed on a motion for summary judgment, she must “sho[w] 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). When evaluating a summary judgment motion, all inferences to be
drawn from the underlying facts “must be viewed in the light most favorable to the party opposing
the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “A fact
is ‘material’ if a dispute over it might affect the outcome of a suit under governing law.” Holcomb
v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute about a material fact is “genuine” if the
nonmovant presents evidence “such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When facing cross-motions
for summary judgment, neither party “waives the right to a full trial on the merits by filing its own
motion; each side concedes that no material facts are at issue only for the purposes of its own
motion.” Sherwood v. Wash. Post, 871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989).
B. Claims Under 42 U.S.C. § 1983To succeed on a 42 U.S.C. § 1983 claim against a municipality, the plaintiffs must prove
that there was (1) a “predicate constitutional violation” and (2) that a “custom or policy of the
municipality caused the violation.” Louis v. District of Columbia, 59 F. Supp. 3d 135, 150 (D.C.
Cir. 2014) (quoting Baker v. District of Columbia, 326 F.3d 1302, 1305 (D.C. Cir. 2003). The
custom or policy must be the “moving force” behind the constitutional violation. City of Canton
v. Harris, 489 U.S. 378, 389 (1989). Section 1983 “creates liability for a local government when
‘the action that is alleged to be unconstitutional implements or executes a[n]... ordinance...
officially adopted and promulgated by that body’s officers.” Barnes v. District of Columbia, 793
F. Supp. 2d 260, 282 (D.D.C. 2011) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
(1978)).
III. DISCUSSION
A. There is No Genuine Dispute of Material Fact Regarding Plaintiffs’ Second
Amendment Claims, and No Reasonable Jury Could Find for The District
Plaintiffs first argue that three now-repealed D.C. statutes, §§ 7-2502.01, 7-2506.01, and
22-4504, infringe on their Second Amendment rights. They argue that these statutes in
combination made it impossible for all persons, both non-residents and residents, to lawfully carry
a handgun for self-defense. ECF No. 121 at 12. The District argues in response that its actions did
not violate the Constitution, because “the right to carry a firearm in public .. . did not exist in the
District prior to Palmer” and because there has never been a right to carry a firearm without
“needing to acquire any permit whatsoever.” ECF No. 134 at 12-14.
Because the three statutes in question—§§ 7-2502.01, 7-2506.01, and 22-4504—-were part
of the District of Columbia Code, there is no question here that the unconstitutional action here, if
there was any, was executed pursuant to an ordinance “officially adopted and promulgated by that
body’s officers.” Barnes, 493 F. Supp. 2d at 282. The parties here rightfully focus the majority of
their energy on whether there was a predicate constitutional violation, the second requirement for
a Monell claim.
As plaintiffs note, ECF No. 121 at 13, complete prohibitions of Second Amendment rights
are always invalid. Wrenn v. District of Columbia, 864 F.3d 650, 665 (D.C. Cir. 2017). It is
undisputed that during the period in question here, there was a complete ban on carrying handguns
in public—§ 22-4504(a) banned carrying weapons in public until it was held unconstitutional in
2014, and § 7-2502.01 and § 7-2506.01 banned carrying weapons or ammunition without a license,
which non-residents could not acquire. It is further undisputed that plaintiffs were arrested,
detained, prosecuted, and had their guns seized pursuant to these laws.* ECF No. 133-1 1-2.
In response, the District first recites the two steps for analyzing a challenge to a law under
the Second Amendment. ECF No. 134 at 13. First, the Court determines whether the regulated
activity is “outside the Second Amendment’s protections.” Medina v. Whitaker, 913 F.3d 152, 156
(D.C. Cir. 2019). Next, if the activity is within the Second Amendment’s protections, the burden
shifts to the government to show that the regulation is “substantially related to an important
government objective.” Jd. But this analysis is unproductive here because § 22-2504 has been held
unconstitutional and this Circuit has firmly stated that at the “Second Amendment’s core lies the
right of responsible citizens to carry firearms for personal self-defense beyond the home, subject
to longstanding restrictions.” Wrenn, 864 F.3d at 667. It is beyond argument that these statutes,
which both parties agree made it effectively impossible for any person to carry a gun “beyond the
home,” ECF No. 133 4 108, regulated activity within the Second Amendment’s protections. And
the District makes no further argument as to how these laws were substantially related to an
important government objective.
4 The District notes that Buffaloe was also charged by the arresting officer with the National Firearms Act.
ECF No. 133-1 4 1. This fact is immaterial, as she was formally charged and further detained based solely
on D.C. laws. ECF No. 123-3 at 28-30.
The District’s next argument strays further from the point. Despite what the District half-
heartedly argues, ECF Nos. 134 at 14 & 140 at 5, constitutional rights do not spring out of thin air.
Judge Scullin did not singlehandedly manifest a constitutional right into existence in Palmer. ECF
No. 140 at 5. The Second Amendment “codified a pre-existing right,” District of Columbia v.
Heller, 554 U.S. 570, 592 (2008)—and that right includes the right of “responsible citizens to carry
firearms for personal self-defense beyond the home.” Wrenn, 864 F.3d at 667. To the extent that
the District claims it could not have violated plaintiffs’ rights because they did not exist at the time
of their arrests, that argument fails.
The District finally points out that there is no constitutional right “to carry a firearm without
needing to acquire any permit whatsoever.” ECF No. 134 at 14. This is true. Traditional limits to
the Second Amendment inglunde licensing requirements. Wrenn, 864 F.3d at 667. Building off this
point, the District argues that plaintiffs’ conduct was not protected because they did not “attempt
to fully familiarize themselves with the District’s firearms regulations” nor “attempt to obtain a
[D.C.] registration or license.” ECF No. 134 at 14-15. The District notes that under the current
D.C. Code, carrying without a license is still prohibited. Jd. at 7. Put simply, the District reasons
that because there is a counterfactual world where it had a constitutional gun control regime in
place during the arrests that could criminalize plaintiffs’ conduct, there was no constitutional
violation.
Again, the District misses the mark. It cites no support for the proposition that
constitutional analysis implicates what plaintiffs would have done in a different world under
different laws. It fails to support the idea that for plaintiffs’ actions to be constitutionally protected
they were required to go through futile actions, like attempting to obtain a D.C. gun registration,
in anticipation of a future set of Palmer-compliant law. The District fails to address the key,
10
undisputed fact in this case. There were no actions that the plaintiffs could have taken during the
time period in question that would have allowed them to carry a gun for self-defense in the District
of Columbia. Even if the plaintiffs had “properly familiarize[d] themselves with District firearm
laws,” ECF No. 134 at 15, they would not have had any avenue to constitutionally carry for self-
defense. These laws “besiege[ed their] free-standing substantive rights.” Smith, 387 F. Supp. 3d at
27.
In sum, plaintiffs were arrested, detained, and had their guns seized under a gun control
regime that completely banned carrying handguns in public. That fact is undisputed. ECF No 133-
1 § 1-2. The same set of laws barred non-residents from obtaining a gun registration, and then
permitted the arrest of non-residents for carrying weapons or ammunition without a license. Jd.
These laws go to the core of the Second Amendment, which preserves the “right of responsible
citizens to carry firearms for personal self-defense beyond the home, subject to longstanding
restrictions.” Wrenn, 864 F.3d at 667. The District was thus burdened with showing the law was
“substantially related to an important governmental objective.” Medina, 913 F.3d at 156. It has
failed to do so.
Accordingly, this Court finds that there is no genuine dispute of material fact as to the
District’s liability on Claim 1. Construing the facts most favorably to the defendants, the District
violated the plaintiffs’ Second Amendment rights by arresting them, detaining them, prosecuting
them, and seizing their guns based on an unconstitutional set of D.C. laws. This Court will
GRANT plaintiffs’ motion for partial summary judgment and DENY the District’s motion for
summary judgment as to liability on Count I.
11
B. There is No Genuine Dispute of Material Fact Regarding Plaintiffs’ Fifth Amendment
Claims, and No Reasonable Jury Could Find for the District
Plaintiffs next argue that the District’s gun laws violated their Fifth Amendment rights to
travel and equal protection. ECF No. 121 at 22. Only the non-resident plaintiffs—Smith,
Cassagnol, Rouse, and Davis—bring this claim. They argue that the District’s gun laws
discriminate against non-residents by denying them the fundamental right to carry a weapon for
self-protection.
This Court has previously explained that §§ 7-2502.01 and 7-2506.01, which banned
possession of an unlicensed firearm or ammunition, when combined with § 7-2502.02, which
barred gun registration unless the registration sought the weapon for “self-defense within that
_ person’s home,” treated D.C. residents and non-residents differently. Smith, 387 F. Supp. 3d at 28.
Neither party disputes that the District also maintained a policy of refusing to entertain gun
registration applications by non-residents during the period in question. ECF No. 133-1 § 109. The
District allowed residents to register their guns but “made it impossible for [non-residents].” Smith,
387 F. Supp. 3d at 28. In combination, these practices made it impossible for any non-resident to
carry (or even possess) a gun in the District.
Before turning to the equal-protection and right-to-travel claims, the Court will first address
the District’s arguments that these two claims are either not ripe or are coextensive with the Second
Amendment claims. Turning first to ripeness, the court in Palmer held that the right-to-travel and
equal-protection claims were not ripe because at the time of the case residents and non-residents
were equally unable to carry a handgun in public for self-defense in the District. 59 F. Supp. 3d at
183. But these the claims are now ripe. At least one non-resident plaintiff, Frederick Rouse, was
arrested after the court invalidated § 22-4504(a), which barred open or concealed carry in the
District, but before the District began allowing non-residents to register for a gun license. ECF No.
12
133-1 4 1.° Second, the equal-protection and right-to-travel claims are not coextensive. Here, non-
residents were banned from possessing guns at all, while residents were banned only from carrying
them in public. Non-residents thus faced a unique injury—the inability to possess a gun anywhere
in the District.
i, Equal Protection
The Fifth Amendment prohibits the District from denying the equal protection of its laws
to any person within the District. Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954). The first issue
in equal-protection analysis is what level of scrutiny applies. Banner v. United States, 428 F.3d
303, 307 (D.C. Cir. 2005). “Strict scrutiny . . . is warranted if the restriction ‘jeopardizes exercise
of a fundamental right or categorizes on the basis of an inherently suspect characteristic.’” Jd.
(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Generally, a “bona | fide residence
requirement implicates no ‘suspect’ classification” that would require strict scrutiny. Martinez v.
Bynum, 461 U.S. 321, 328 n.7 (1983). But when the right being denied to a non-resident is a
fundamental right protected by the Constitution, strict scrutiny applies. Clark v. Jeter, 486 U.S.
456, 461 (1988). And the de-facto residency requirement at issue here affected the fundamental
right to keep and bear arms, including for personal self-defense. Strict scrutiny therefore applies
to the plaintiffs’ equal protection claims. See also Smith, 387 F.3d at 29 (concluding that outside
> The Court also rejects the District’s argument that non-residents could transport a gun into the District
under federal law. ECF No. 134 at 20. The District fails to explain how, if the Firearm Owners’ Protection
Act protected those lawfully possessing a handgun in any State to transport that weapon unloaded and
“contained in a locked container other than the glove compartment or console,” 18 U.S.C. § 926A,
Cassagnol was arrested. Plaintiffs attest—and the District did not dispute—that Cassagnol had an unloaded
gun in a locked safe when he was arrested. ECF No. 133-3 4 27. Clearly FOPA does not foreclose plaintiffs’
claims here.
13
of the equal-protection context, the Circuit’s Second Amendment jurisprudence further supports
applying strict scrutiny here).
Strict-scrutiny analysis requires the District to show that the gun laws in question are
“narrowly tailored to effectively advance a compelling interest.” Jd. at 29. The District, however,
declines to make this showing. Instead, it focuses all its energy on arguing that strict scrutiny
should not apply because the right in question is not fundamental. ECF No. 134 at 17-22.
The District cites two cases to illustrate that the right in question here is not fundamental.
Both are unpersuasive. It first cites Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013), a case
where a Washington resident applied for a concealed-carry license in Colorado and was denied
based on residency and reciprocity requirements. The Tenth Circuit affirmed the district court’s
rejection of piaineiae s claims under the right to travel and the Privileges and Immunities Clause of
Article IV, reasoning that the concealed carry of firearms had not been recognized as a right “basic
of the livelihood of the nation.” Jd. at 1216. The District argues that we should apply the Tenth
Circuit’s analysis here and hold that the concealed carry of firearms is not a fundamental right.
ECF No. 134 at 18. But unlike in Peterson, where the plaintiff could carry his concealed firearm
in his home and automobile, Peterson, 707 F.3d at 1202, the District’s gun laws amounted to a
total ban on any possession of a firearm for non-residents—plainly invading the fundamental right
to keep and bear arms for personal self-defense. See McDonald v. City of Chicago, Illinois, 561
U.S. 742, 775—76 (2010). And, as the District concedes in a footnote, the Privileges and Immunities
Clause of Article IV, the basis of the Tenth Circuit’s decision, does not apply to the District of
14
Columbia. ECF No. 134 at 18 n.11; Duehay v. Acacia Mut. Life Ins. Co., 105 F.2d 768, 775 (D.C.
Circ. 1939),
The District’s second case is equally inapposite. Culp v. Raoul, 921 F.3d 646, 657 (7th Cir.
2019) involved a concealed-carry licensing scheme that required all registrants, resident and non-
resident alike, to undergo ongoing record monitoring. Jd. at 651. Because only states with
“substantially similar regulatory schemes” allowed Illinois to obtain enough information for. this
ongoing monitoring, only non-residents from certain states could acquire an Illinois concealed
carrying license. Jd. at 650-51. But non-residents were not denied the right to licensure solely
based on their non-resident status, like here. Another state could, for example, alter its regulatory
scheme to provide Illinois the required information. And, again, this is another Circuit applying
the Privileges and Immunities Clause of Article IV, a section that does not apply to the District.
Nothing the District provides dissuades the Court from its original analysis and conclusion
that strict scrutiny applies to the plaintiffs’ equal protection claims, because those claims affect
their fundamental rights to keep and bear arms for self-defense. Smith, 387 F.3d at 29. And because
the District puts forth no showing regarding how these laws were narrowly tailored to achieve a
compelling government interest, the Court finds that there is no genuine dispute of material fact
and the plaintiffs are entitled to partial summary judgment regarding their equal protection claim.
ii. Right to Travel Claim
As the Court has previously noted, the “right to travel analysis refers to little more than a
particular application of equal protection analysis” scrutinizing the distinction between newcomers
and longstanding residents. Smith, 387 F.3d at 30 (quoting Zobel v. Williams, 457 U.S. 55, 60 n.6
(1982)). Government infringement on the fundamental right to travel is measured under a strict
scrutiny standard. Jd. A law implicates the right to travel when it utilizes “any classification which
15
serves to penalize the exercise of that right.” Att’y Gen. of New York v. Soto-Lopez, 476 U.S: 898,
903 (1986) (plurality opinion). The right to travel can be violated when it impairs a plaintiff's
“right to go from one place to another or to cross state borders while en route.” Pollack v. Duff,
793 F.3d 34, 48 (D.C. Cir. 2015).
Previously, this Court explained that “if [the gun laws] take away the fundamental right to
have a handgun for individual self-defense from non-D.C. residents who enter the District, this
Court must apply strict scrutiny.” Smith, 387 F. Supp. 3d at 30. Neither party disputes that, at the
time in question, non-residents in the District could not possess a gun. And, again, the District fails
to even put forth a showing regarding how these laws were narrowly tailored to achieve a
compelling government interest. Accordingly, this Court finds there is no genuine dispute of
material fact regarding plaintiffs’ right to travel claim, and no reasonable jury could find for the
District.
This Court will GRANT plaintiffs’ motion for partial summary judgment as to liability on
Count III and DENY the District’s motion for summary judgment.
C. There is No Genuine Dispute of Material Fact Regarding Plaintiffs’ Remaining
Fourth Amendment Claim, and No Reasonable Jury Could Find for the Plaintiff
Plaintiffs Smith, Cassagnol and Davis’s final remaining claim is to challenge the ongoing
seizure of their guns and ammunition, long after the District aborted their prosecutions. ECF No.
115 4301-04. Each of these plaintiffs had their gun seized during their arrest. ECF No. 133-1
4 133. None of them have recovered their guns. Jd. Previously, this Court explained that it must
“balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged to justify the intrusion” when
evaluating this claim. Smith, 387 F. Supp. 3d at 25 (quoting United States v. Place, 462 U.S. 696,
16
703 (1983)). In other words, the “Fourth Amendment permits seizures only for as long as
necessary.” Id.In Smith, this Court posed a simple question to the District: what justification could it
possibly have for still holding plaintiffs’ guns and ammunition years later? Jd. Now, the District
answers. The District has an interest in keeping its community safe, preventing crime, and
protecting law enforcement officers. ECF No. 134 at 23. That interest, it argues, includes retaining
contraband, such as unlawfully carried firearms. Jd. At the time—and still to this day—District
law defines a firearm that is “unlawfully owned, possessed, or carried” as a nuisance. D.C. Code
§ 22-4517. It was reasonable, then, for “MPD to require verification that a claimant was authorized
to possess a weapon before returning it to them.” ECF No. 140 at 11. In simplest terms, the District
argues that its governmental interest in keeping unregistered firearms and ammunition off the
streets justified the invasion of plaintiffs’ rights.
Plaintiffs argue that § 22-4517, which declares unregistered firearms a nuisance, is
unconstitutional under the Second Amendment because it was part of the gun-control regime in
the District at the time. ECF No. 137 at 38-40. Accordingly, they argue, continued seizure of their
unregistered firearm pursuant to this statute cannot be warranted. Jd. This argument echoes many
of the points made in their Fifth and Second Amendment claims. In essence, plaintiffs claim that
because they were unable to secure a District firearm registration during the time period in
question, the continued seizure of their guns based on the /ack of a firearm registration cannot be
reasonable and must be unconstitutional.
If the District required the firearm to be registered in the District to return it to plaintiffs or
only accepted proof of.a District-issued firearm registration during the time period in question,
plaintiffs may have had a point. But their argument fails for a simple reason. Plaintiffs do not
17
dispute that the District would, if requested, acknowledge the registration status of firearms from
other states and ship the firearms to owners there. ECF No. 121-1 § 140. Plaintiffs did not have to
possess a District gun registration to secure the return of their firearm—instead, they merely
needed to show that the gun was registered in their home state. ECF No. 130-1 at 34-36. It is
undisputed that basic registration requirements are constitutional. See Wrenn, 864 F.3d at 667
(“[T]raditional limits include, for instance, licensing requirements.”). And plaintiffs do not put
forth any argument that the gun registration laws in their home states were constitutionally lacking.
Plaintiffs confusingly counter that because these procedures were not published online or
expressly delineated in statutes, they had “no way of knowing” they could get their guns back this
way. ECF No. 137 at 41. But they cite no support for the proposition that this affects the Fourth
Amendment analysis. Instead, they cite a set of eases related to Fourteenth Amendment due-
process rights and forfeiture. Jd. at 42. Not only is this case law off-point, but this Court has already
held that the District’s mechanism to challenge the guns’ seizure satisfied the Fifth Amendment’s
due process requirement. Smith, 387 F. Supp. 3d at 31.
The District no doubt had a governmental interest in protecting the community from the
potential violence wrought by unregistered firearms. It is undisputed that the District would release
a firearm to a gun-owner in another jurisdiction if it was properly registered there. On balance, the
District’s interest in preventing unregistered firearms from circulating in the community greatly
outweighs the intrusion caused by requiring plaintiffs to prove that the seized firearms were
registered. The Court finds that no reasonable jury could conclude that retaining these firearms,
lawfully seized, id. at 25, until plaintiffs prove they are registered somewhere violates their Fourth
18
Amendment rights. Accordingly, plaintiffs’ motion for partial summary judgment on Count VI is
DENIED, and the District’s motion for summary judgment on Count VI is GRANTED.
IV. CONCLUSION
For the foregoing reasons, the Court will GRANT plaintiffs’ motion for partial summary
judgment as to Counts I and II, DENY plaintiffs’ motion for partial summary judgment as to
Count VI, DENY the District’s motion for summary judgment as to Counts I and HI, and GRANT
the District’s motion for summary judgment as to Count VI by separate Order.
Date: September 29, 2021 arta C Soli:
Hon. Royce C. Lamberth
United States District Judge
19