Heller v. Dist. of Columbia

• Decision Date: 18 September 2015
• Docket Number: No. 14–7071.,14–7071.
• Citation: 801 F.3d 264
• Parties: Dick Anthony HELLER, et al., Appellants v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

801 F.3d 264

Dick Anthony HELLER, et al., Appellants

v.DISTRICT OF COLUMBIA, et al., Appellees.

No. 14–7071.

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 2015.

Decided Sept. 18, 2015.

Stephen P. Halbrook argued the cause for appellants. With him on the briefs was Dan M. Peterson.

C.D. Michel, Anthony Pisciotti, and Jeffrey Malsch were on the brief for amici curiae CRPA Foundation, Pink Pistols, Second Amendment Sisters, and Women Against Gun Control in support of appellants.

William J. Olson, Herbert W. Titus, Jeremiah L. Morgan, and John S. Miles were on the brief for amici curiae Gun Owners of America, Inc., et al. in support of appellants.

John Parker Sweeney and James W. Porter III were on the brief for amicus curiae National Rifle Association, Inc. in support of appellants.

Loren L. AliKhan, Deputy Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Eugene A. Adams, Interim Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Holly M. Johnson, Assistant Attorney General.

Douglas F. Gansler, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Maryland, and Joshua N. Auerbach, Assistant Attorney General, Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, Martha Coakley, Attorney General at the time the brief was filed, Office of the Attorney General for the Commonwealth of Massachusetts, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Kamala Harris, Attorney General, Office of the Attorney General for the State of California, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Russell A. Suzuki, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Hawaii, and Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois were on the brief as amici curiae States of Maryland, et al. in support of appellees.

Walter A. Smith, Jr., Jonathan L. Diesenhaus, appointed by the court, and Karla J. Aghedo were on the brief as amici curiae DC Appleseed Center for Law & Justice, et al. in support of appellees.

Howard R. Rubin and Daniel Lipton were on the brief as amici curiae The Major City Chiefs of Police Association, The United States Conference of Mayors, and International Municipal Lawyers Association in support of appellees.

Paul R.Q. Wolfson, Francesco Valentini, and Jonathan E. Lowy were on the brief for amici curiae Brady Center to Prevent Gun Violence, et al. in support of appellees.

Before: HENDERSON and MILLETT, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Senior Circuit Judge GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge HENDERSON.

GINSBURG, Senior Circuit Judge:

At issue in this suit is the constitutionality of certain gun laws enacted by the District of Columbia. The district court determined as a matter of law that the District's efforts “to combat gun violence and promote public safety” by means of its registration laws were “constitutionally permissible.” Heller v. District of Columbia, 45 F.Supp.3d 35, 38 (D.D.C.2014). Before this court, Dick Anthony Heller and his co-appellants challenge both the district court's admission of, and its reliance upon, certain expert reports proffered by the District and the final order denying Heller's and granting the District's motion for summary judgment.

We hold the district court's admission of the challenged expert reports was not an abuse of discretion. We affirm in part and reverse in part the district court's judgment in favor of the District.

I. Background

In District of Columbia v. Heller (Heller I ) the Supreme Court held the District of Columbia's “prohibition of handguns held and used for self-defense in the home” was unconstitutional. 554 U.S. 570, 636, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Immediately thereafter, the D.C. City Council revised the District's gun laws by enacting the Firearms Registration Amendment Act of 2008(FRA). D.C. Law 17–372.

The FRA created a “new scheme for regulating firearms.” Heller v. District of Columbia, 670 F.3d 1244, 1248 (D.C.Cir.2011) (Heller II ). With limited exceptions, the FRA required the registration of all firearms in the District. D.C.Code § 7–2502.01. The law also imposed various conditions upon the registration of a firearm and limited the persons eligible to register a firearm by excluding, for example, individuals who within the prior five years had been convicted of certain drug or violent crimes or had a severe mental health problem, and individuals under the age of 18. Id. § 7–2502.03–.07. In addition, the FRA required the gun owner to renew the registration of his firearm(s) every three years, id. § 7–2502.07a, and prohibited registration—and hence possession—of certain firearms, such as short-barreled rifles and assault weapons. Id. § 7–2502.02.

In July 2008 Heller filed suit challenging the District's new registration scheme as inconsistent with the Second Amendment to the Constitution of the United States. The district court granted summary judgment to the District and Heller appealed.

On that appeal, we upheld the constitutionality of the District's “basic registration requirement,” insofar as that requirement pertained to handguns. Heller II, 670 F.3d at 1254–55. We also upheld the portion of the FRA prohibiting registration, and therefore possession, of assault weapons and magazines with a capacity in excess of 10 rounds. Id. at 1247–48, 1264.

We reserved judgment as to the constitutionality of the District's basic registration requirement for long guns, the conditions under which a registration certificate would be issued, and the duration for which such a certificate would be valid. Id. at 1255, 1258–60. We held that both the basic registration requirement for long guns, if not de minimis, and the conditions for registration were subject to intermediate scrutiny, and that the record as it then stood was not sufficient for us to evaluate whether those laws were narrowly tailored to serve an important governmental interest. Id. at 1258. We therefore remanded the case to the district court for further evidentiary proceedings. Id. at 1260.

Subsequently, the D.C. Council enacted the Firearms Amendment Act of 2012, D.C. Law 19–170, which repealed certain of the conditions for registration, such as the requirement that a pistol be submitted for ballistic identification as part of the registration process, and reduced the burden upon registrants imposed by other provisions. Heller then filed an amended complaint to take account of these legislative changes.

During discovery, Heller and the District offered the opinion testimony of, respectively, one and four expert witnesses.

Heller v. District of Columbia, 45 F.Supp.3d at 40 (Heller III ). Largely upon the basis of their testimony, the district court entered summary judgment for the District.

On this appeal, Heller argues the district court erred by admitting the opinion testimony of three of the District's four expert witnesses. In addition, Heller argues the district court erred in upholding as constitutional: (1) the basic registration requirement as it pertains to long guns, D.C.Code § 7–2502.01(a) ; (2) the requirement that one appear in person to register a firearm and be fingerprinted and photographed, id. § 7–2502.04 ; (3) the requirement that the registrant bring with him the firearm to be registered, which requirement the Metropolitan Police Department (MPD) may or may not invoke as to a particular individual, id. § 7–2502.04(c) ; (4) the expiration of the registration after three years, id. § 7–2502.07a ; (5) the imposition of certain fees for registration, id. § 7–2502.05(b) ; (6) the requirements that a registrant complete a firearms safety and training course or provide evidence of another form of training and that the registrant pass a test to demonstrate his knowledge of the District's firearms laws, id. §§ 7–2502.03(a)(13), 7–2502.03(a)(10) ; and (7) the prohibition on registration of more than one pistol per person in any 30–day period, id. § 7–2502.03(e).

II. Analysis

We first address the district court's admission of the challenged expert reports and related testimony. We then turn to Heller's constitutional challenges.

A. The expert reports and testimony

Heller moved to strike three of the four expert reports offered by the District during discovery, viz., those of Cathy Lanier, the Chief of the MPD, and of Mark Jones and Joseph Vince, Jr., both former agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), but not that of Daniel Webster, Director of the Johns Hopkins Center for Gun Policy. Heller argued the expert reports “fall short of the disclosure requirements under Fed.R.Civ.P. 26(a) and that their proposed testimony [was] too unreliable to be admitted under Fed.R.Evid. 702.” The district court denied Heller's motion.

On appeal, Heller renews both arguments. We review the district court's admission of expert testimony for abuse of discretion, whether that admission is challenged under the rules of evidence or under the rules of procedure. United States v. Day, 524 F.3d 1361, 1367 (D.C.Cir.2008). We conclude that the district court did not abuse its discretion in admitting the challenged testimony.

1. Federal Rule of Civil Procedure 26

Federal Rule of Civil Procedure 26(a)(2)(B) provides that an expert witness must submit a written report containing, among other things, “a complete statement of all opinions the witness will express and the basis and reasons for them,” as well as “the facts or data considered by the witness in forming them.” A party who fails to comply with Rule 26(a)(2)(B) generally may not use that witness “to supply evidence on a motion ... unless...