Sunday, January 16, 2011

Say v. Adams: An Earlier ACLU Case Challenging CCW Restrictions

A lawsuit brought by the American Civil Liberties Union of South Dakota on behalf of legal immigrant Wayne Smith has generated a lot of interest. The very fact that the ACLU is representing Mr. Smith over the denial of his concealed carry permit is part of it. The other aspect of the case generating some interest is that the NRA is in favor of permanent resident aliens getting CCW permits while it appears that Gun Owners of America has had a mixed response.

The South Dakota suit is very similar to a lawsuit decided in Kentucky back in 2008. The details of that case as well as the legal outcome will help us to understand the current case. In that case, Alexander Say, an attorney and a Permanent Resident, - that is, he held a "green card" - had lived in Kentucky since 1995.

In July 2006, Mr. Say applied to the Jefferson County Sheriff's Department for a Concealed Deadly Weapon (CCDW) permit. He was told he was not eligible because he was not a U.S. citizen. The Commonwealth of Kentucky that same July had changed their law to now make citizenship a prerequisite for a CCDW. But for that, Mr. Say had met all the other requirements to be granted a CCDW.

Kentucky had changed their requirements for a CCDW so as to gain Federal approval of their CCDW as a substitute for a telephone NICS check. However, a NICS check for a non-citizen requires an Illegal Alien Query (IAQ) conducted through U.S. Immigration and Customs Enforcement. However, the Kentucky State Police didn't conduct an IAQ before issuing a CCDW. With a requirement that the CCDW applicant be a citizen, then this was no longer an issue and the CCDW would qualify as a substitute for NICS purposes.

This case, like the South Dakota case, was brought by the ACLU. They challenged the denial of Mr. Say's CCDW application on the grounds that it was a violation of the Equal Protection Clause of the Fourteenth Amendment. They sought a preliminary injunction that was granted by U.S. District Court Judge Thomas Russell.

When determining whether a preliminary injunction is appropriate, the court must consider four factors. First, does the plaintiff have a strong chance of success  based upon the merits. Second, would the plaintiff suffer irreparable injury if not granted the injunction. Third, would the preliminary injunction cause substantial harm to others. Finally, the court must consider if the public interest would be served by the injunction.

In determining whether the plaintiff had a strong likelihood of succss, Judge Russell first looked at what standard of scrutiny was appropriate. While alienage is a suspect class, not all aliens are afforded the protection. Based upon both Supreme Court and Sixth Circuit precedent, only aliens who are permanent resident aliens - which Mr. Say was - are entitled to strict scrutiny. Illegal aliens, non-resident aliens, and others such as those on student or tourist visas are not considered part of a suspect class. Since Mr. Say was entitled to strict scrutiny, the Kentucky exclusion of permanent resident aliens must be both narrowly drawn and serve a compelling governmental interest. Judge Russell found:
Defendants have not satisfied their burden to show why this is a substantial state interest.The Court cannot find that a state’s interest in substituting a state background check for a federal background check is compelling enough to justify creating a classification that discriminates against a suspect class.

Furthermore, the citizenship provision is not narrowly tailored to achieve this governmental interest. A blanket prohibition discriminating against aliens is not precisely draw to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals. As discussed below, if the Kentucky State Police undertakes some administrative burden, it is possible to allow permanent resident aliens to obtain a CCDW license, and still meet the requirements necessary to allow CCDW holders to avoid the NICS inquiry at the time of purchase.
The second leg of the test is irreparable injury if an injunction is not granted. Courts have consistently found that a violation of a constitutional rights constitutes irreparable harm. Judge Russell found that "the violation of the Equal Protection Clause qualifies as an irreparable injury, especially when consider in light of Plaintiff's likelihood of success."

The third leg of the test is serious harm to others. The court noted that the Kentucky State Police would have a greater administrative burden if the CCDW was not accepted as a substitute for the NICS check. Furthermore, Kentucky CCDW holders would have to undergo the telephone NICS check. The court found this harm when balanced against the harm of not granting the injunction was "not substantial enough to justify the violation of Plaintiff's constitutional rights."

The final leg of the test is whether the injunction was in the public interest. According to Sixth Circuit precedent, it is always in the public interest to prevent violations of constitutional interests. After balancing all of the factors, Judge Russell granted the preliminary injunction to Mr. Say.

The injunction was not the end of this matter. Following the injunction, the Kentucky legislature changed the CCDW law to specify permanent legal residents were eligible for concealed carry permits. When the outcome of Say v. Adams is applied to the South Dakota case, I think there is a strong probability that Wayne Smith will get his concealed carry permit. South Dakota Secretary of State Jason Gant has said in an interview that the legislature may have overlooked the distinction between illegal aliens and permanent legal residents when drafting the 2002 law. He goes on to add that he has heard the legislature will be discussing legislation on this issue when they reconvene this month.

UPDATE: The Yankton (SD) Press and Dakotan has a story about the Smith case today. According to this account, the political leaders of South Dakota don't seem to be in a hurry to change their CCW law.
Senate Republican Leader Russell Olson, of Wentworth, said his main priority is preserving gun rights for U.S. citizens.

“I’ll fight for the rights of the citizens of South Dakota,” Olson said Friday. “My concern is for the citizens of our state and our nation.”

“Foreign nationals don’t fall under my umbrella,” he added in a separate interview.

House Republican Leader David Lust, of Rapid City, said he hasn’t studied the issue enough to take a position.
The House Minority Leader Bernie Hunhoff, a Yankton Democrat, said he was OK with changing the law to include permanent legal residents but that it would take support from the Republicans to make the change.

South Dakota Governor Dennis Daugaard, a Republican, said he would need to see the language of the any changes before he decided one way or another.

My guess is that Wayne Smith and the ACLU will win in court and the law will be changed whether these political leaders want to do it or not. Given court precedent in the Say case plus Supreme Court precedent making discrimination based on the origins of permanent legal residents subject to strict scrutiny, a proactive approach to making these changes would be the smart thing to do. The fact that the change in the CCW law was a reaction to the terrorist attacks of 9-11 would seem to me to be a weaker rationale than that of Kentucky's where they wanted to reduce administrative burdens.

From a political standpoint, the Republican leaders need to wake up or they will find themselves scooped on a gun rights issue by the Democrats. They need to remember that many gun owners vote gun rights first and party label second.

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