Corporation Counsel James E. Johnson Responds to the Solicitor General in Connection with Supreme Court Gun Case
November 20, 2019
Statement from New York City Corporation Counsel James E. Johnson
"Petitioners challenge under the Second Amendment and other constitutional theories a now superseded New York City Police Department gun transport rule originally issued in 2001. Effective July 2019, New York State enacted a gun transport law, and the City amended the challenged rule. Both the law and amended rule grant petitioners exactly what they have sought in this litigation – the right of City residents with handgun premises permits to take their handguns to and from shooting ranges, competitions, and second homes outside of City limits. The State and the City have each recognized that, through these rule changes, they can ensure safe transport of handguns by licensees while accommodating the petitioners’ Second Amendment concerns. There is no longer a case or controversy for the Supreme Court to resolve – the case is moot. Moreover, the State’s law, enacted by the legislature and signed by the Governor, preempts the defunct rule, ensuring petitioners’ ongoing ability to transport their handguns. As ample precedent demonstrates, under these circumstances the courts’ jurisdiction is at its end. Notably, the U.S. Solicitor General has agreed that petitioners’ fruitless arguments against mootness should fail.
"Nonetheless, the Solicitor General attempts at this late hour to throw petitioners a lifeline with a new theory: that their case can continue because they might now decide to seek damages. As detailed in our letter submitted today, we disagree. Petitioners have always represented their case as vindicating a constitutional right for licensed gun owners and have sought only injunctive relief—the same relief they now have with New York’s law changes. Last-minute attempts to claim damages to save cases from mootness have been rejected by the courts. We believe there is no legal precedent or justification to issue a constitutional ruling in this case with respect to a legal restriction that no jurisdiction in the entire country, including New York City, currently imposes.
"The time has come for litigation to cease over what is no longer a dispute."
Background
Petitioners in this case are the New York Rifle and Pistol Association and three New York City residents with handgun premises licenses. Respondents are the City of New York and the New York City Police Department. Richard Dearing, Chief of Appeals, New York City Law Department, will argue this case on behalf of respondents on December 2, 2019. The New York City Law Department is joined on the case by co-counsel Jeffrey L. Fisher, O’Melveny & Myers.
Here is a link to the letter respondents filed today in the Supreme Court in response to the Solicitor General’s recent submission on mootness.
Excerpt from NYC's response on mootness submitted in the Supreme Court
The Solicitor General agrees that the only claims petitioners have ever asserted in this lawsuit—those for declaratory and injunctive relief—are now moot.
But in a strange twist, he resists dismissal of petitioners’ suit on a ground that they have not raised themselves: namely, that petitioners might decide to seek damages; and, if they do, they might be allowed to pursue such relief. U.S. Letter 1. To be precise: The Solicitor General takes no position on whether petitioners are entitled at this late juncture to raise a new request for damages. Id. at 2. Yet the Solicitor General says the case is not moot because there is a “prospect” that petitioners “may” seek damages, and it “may well be” permissible for petitioners to add a damages claim now. Id. at 1–2. The Court has never embraced reasoning remotely like this to save a case from mootness and should not do so for the first time now.
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