Judge's Removal in D.C. Gun Case Shows Strained System

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By Melissa Stanzione

Dec. 21 — A seemingly minor clerical error in a District of Columbia gun law case highlights the strains facing the federal judiciary system.

The U.S. Court of Appeals for the D.C. Circuit Dec. 15 voided an order stalling enforcement of a D.C. concealed weapon law regulating such weapons because the judge who issued the order was from another district and had been improperly assigned to the case (Wrenn v. D.C., 2015 BL 409758, D.C. Cir., No. 15-7057, 12/15/15).

This hiccup over the propriety of a judge “sitting by designation” from another district is an example of the problems today's federal judiciary is facing, Steven I. Vladeck told Bloomberg BNA in a Dec. 16 e-mail.

These problems include judicial vacancies going unfilled and “the overall size of the federal judiciary, which really has not kept pace with the caseload in recent years,” Vladeck said.

Vladeck is a professor at American University Washington College of Law, Washington, whose scholarship includes the federal courts.

Judges Need Help

Because of these problems, it's necessary for judges to be appointed to other districts to help with the caseload.

The chief judge of a district must first issue a “certificate of necessity” to request a visiting judge underfederal law, 28 U.S.C. §294(d).

The statute doesn't define “necessity,” but “the general assumption” is that an assignment is necessary when there are too many cases for a court to handle or no judges available because they had to recuse themselves, Vladeck said.

After the certificate is issued, the Chief Justice of the United States assigns a judge either to specific cases or for a certain amount of time.

Here, Chief Justice John G. Roberts Jr. assigned 10 cases to Judge Frederick J. Scullin Jr. of the U.S. District Court for the Northern District of New York in July 2011. Wrenn v. D.C. wasn't on the list.

Assignment Error

The court's calendar committee assigned Wrenn to Scullin because it determined it was “related” to another case assigned to him.

In the other case, Scullin enjoined D.C. from enforcing its handgun-carry ban “unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms,” in Palmer v. D.C., 59 F. Supp. 3d 173, 2014 BL 206594 (D.D.C. 2014) (83 U.S.L.W. 177, 8/5/14).

D.C.'s Gun Law

In response to that decision, the District created a concealed carry permitting system for handguns similar to the systems that currently exist in New York, New Jersey, Maryland and California, Elizabeth Avore, Legal Director for amicus curiae Everytown for Gun Safety in support of the defendants, told Bloomberg BNA in a Dec. 17 e-mail.

Everytown for Gun Safety was founded by former New York City Mayor Michael Bloomberg, founder and majority owner of Bloomberg LP, parent of Bloomberg BNA.

The law, D.C. Law 20-279, §3(b), requires applicants for concealed carry permits to show that they have either (1) a good reason to fear injury to his or her person or property, or (2) any other proper reason for carrying a pistol. Both of these standards require more than a generalized desire for self-defense, Avore said.

What's “at issue in Wrennis whether law-abiding, responsible citizens who have been trained and who have been vetted by the District can nevertheless be denied a carry license because the District does not think they have a ‘proper reason' to exercise their constitutional rights,” Charles J. Cooper of Cooper & Kirk PLLC, Washington, told Bloomberg BNA in a Dec. 18 e-mail.

Cooper represented amicus curiae National Rifle Association of America Inc., in support of the plaintiffs

In Wrenn, several individuals and the Second Amendment Foundation sued the District of Columbia and the D.C. Police Chief. They alleged that the D.C. law's “good reason” requirement violated their Second Amendment rights and sought a preliminary injunction to prevent its enforcement.

“The NRA's amicus brief argued that requiring a trained, responsible, law-abiding citizen to show a ‘special need' before that person can exercise his or her Second Amendment right to carry a firearm in public is wholly incompatible with the enumerated, fundamental constitutional right to bear arms. It is like the government conditioning the First Amendment right to free speech on a showing that the would-be speaker has a ‘proper reason' to speak,” Cooper said.

Scullin issued a preliminary injunction inWrenn in May 2015, preventing enforcement of the law.

Preliminary Injunction

“In the order, Judge Scullin ignored centuries of legal tradition. Everytown has conducted extensive historical legal research regarding laws regulating the possession and use of firearms, so we understood that the historical record had not been adequately presented at the District Court level,” Avore said.

On appeal of the injunction, the D.C. Circuit asked the parties to address whether Scullin was authorized to hear this case.

It ultimately found Scullin's order was “null” because he lacked jurisdiction. His designation was limited to “specific and enumerated cases” that didn't include this one, Judge David B. Sentelle wrote for the court.

“We realize that we are undoing the work of litigation to date, but we have no choice” but to vacate the order, the court said.

Public Safety

The chances are now greater that a local judge will hear the case, “something that is crucial to understanding the public-safety issues at stake,” D.C. Attorney General Karl A. Racine said in a Dec. 15 statement.

“The District faces security concerns few other cities in the world have to deal with,” Avore said.

“D.C. is both a densely populated urban area and a hub of global political, military, and business activity. The District is packed full of high ranking political, judicial and military officials and frequently visited by foreign leaders and dignitaries,” she said.

Problems With Non-Local Judges

Vladeck said there are other problems with a judge from another district handling local issues.

Bringing a non-local judge onto a local case “arguably usurps the power of the President and the Senate to choose the judges who will sit on a particular court,” he said.

In addition, a non-local judge isn't as familiar with “the local rules, the local bar, and other similar considerations,” Vladeck said.

Further, the “inadequate total number of judges is pushing judges to engage in more triage—to spend less time on each case, which could have especially problematic results for particular kinds of cases that tend to be especially labor-intensive as compared to their potential impact,” he said.

Unfilled Judgeships

The average caseload per federal appellate judge has jumped from just over 57 cases per year in 1960 to over 340 in 2010, William M. Richman & William L. Reynolds wrote in their legal treatise, “Injustice on Appeal: The United States Courts of Appeals in Crisis” (2013).

There were 66 vacancies in the federal judiciary out of 890 authorized judgeships as of Dec. 17, according to the Administrative Office of the U.S. Courts.

That means the current vacancy rate is 7.4 percent, according to Bloomberg BNA research.

Over the past 11 years, the number of vacancies peaked in 2010 at 108 and has since declined, but the number of current vacancies is more than twice what is was in 2004 (84 U.S.L.W. 74, 7/21/15).

The U.S. Senate confirmed 11 judicial nominees this year, “matching the record for confirming the fewest annual number of judicial nominees in more than half a century,” according to a Dec. 17 statement from Sen. Patrick Leahy (D-Vt.), ranking member of the Judiciary Committee.

Leahy described the bipartisan nominations agreement to vote on five judicial nominees before the February recess as “a positive first step toward filling vacancies next year,” in a Dec. 16 statement.

There are 19 judicial nominees still pending on the Senate floor, however, and judicial vacancies are having “devastating effects” on the U.S. legal process, he said.

Judges Cornelia T.L. Pillard and Laurence H. Silberman joined the opinion.

Alan Gura represented the plaintiffs. Loren L. AliKhan represented the defendants.

To contact the reporter on this story: Melissa Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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