by Dave Workman
Senior Editor

The National Rifle Association (NRA) has come under fire from a Washington, DC, attorney representing several plaintiffs who are seeking to overturn the District’s gun ban, because an attorney who has historically worked for NRA on various cases filed what almost seems like a copycat lawsuit that the attorney feels could derail his original case.

NRA is also taking some heat from a pro-gun website, KeepandBearArms.com, for supporting the second lawsuit.

Attorney Robert Levy, a constitutional scholar and law professor at Georgetown University, is representing plaintiffs Tracey Ambeau, Dick Anthony Heller, Gillian St. Lawrence, George Lyon, Tom Palmer, and Shelly Parker. Levy works with the Cato Institute, a conservative think tank based in the District of Columbia. His co-counsel is attorney Alan Gura, also a Cato associate. Parker is the lead plaintiff in the case Parker v. District of Columbia, filed Feb. 10.

Cato is not directly involved in the lawsuit, though the website, operated by gun activist Angel Shemaya, suggests this is a dispute between Cato and NRA. Levy said Cato is not providing any financial support.

“It’s coming right out of my pocket,” he stressed.

According to Levy, the case was moving along—with what he believes was an impending summary judgment against the District—until the second lawsuit was filed on April 4 in a different court, by veteran NRA legal consultant Stephen Halbrook on behalf of five other plaintiffs, identified as Carmela Brown, Gardine Hailes, Robert Hemphill, Absalom Jordan Jr., and Sandra Seegars. It was not only the fact that NRA had leaped into the lawsuit arena, but the expanse of Halbrook’s action that inflamed Levy and many hard-core gun rights activists, including Shemaya. The second case is Seegars v. John Ashcroft.

Halbrook confirmed to Gun Week that NRA is providing funds for the Seegars lawsuit, though the Association is not a plaintiff.

The Parker lawsuit plaintiffs specifically filed against DC Mayor Anthony Williams and the District of Columbia for violating their constitutional right to keep and bear arms under the Second Amendment, arguing that the district’s gun law amounts to a de facto ban on gun ownership.

The Seegars plaintiffs are contending that the gun ban not only violates the Second Amendment, but also the Civil Rights Act of 1866, the Fifth Amendment’s due process clause, and subjects them to unreasonable regulations. In addition to the wider reach attempted by Halbrook’s lawsuit, what gives Levy the most distress is that the lead defendant in the Seegars lawsuit is Attorney General John Ashcroft.

Levy is seething, because Halbrook, a recognized authority on the Second Amendment, had been hired by Levy last fall to provide research support. Now he’s working on the Seegars lawsuit, which Levy claims was filed to “muck up” and possibly derail his case. Working with Halbrook is attorney Richard Gardiner.

Levy also accused Halbrook of approaching one of his clients, and Halbrook acknowledged to Gun Week that he would have liked to have one of Levy’s plaintiffs in his case. The specific client was not named.

“My plaintiffs,” Levy said, “they are the best of the best. One of the plaintiffs (Halbrook) got is a guy we had rejected. Not only are our plaintiffs just as good as they can be, they are a cut above.”

Levy asserted that progress on the Cato action was moving swiftly, a claim also made by Shemaya on his website. Levy said the District government had responded with a motion to dismiss, which was countered by Cato’s response that coupled a motion for a summary judgment. Levy said the District missed its deadline to respond to that summary judgment motion.

“We reminded them that they were some 20 days overdue for responding to our motion, and they effectively defaulted,” Levy insisted.

The District filed for an extension from the court, which granted that request, moving the deadline out to June 3. In the meantime, Halbrook filed the Seegars lawsuit, which Levy contended will extend the case many months, if not indefinitely. He was counting on a fairly quick resolution.

However, David Kopel with the Independence Institute, a Colorado-based think tank, disagreed with Levy’s optimism.

“Summary judgment is always an option for a court,” he explained. “Just because one side doesn’t respond gives a court the option, but not the duty (to issue a summary judgment). In this case, you’re talking about holding a city law unconstitutional. I would expect . . . the judge would probably prefer to wait for a trial.”

Translation: A district judge simply is not going to issue a summary judgment that a city’s law is not constitutional, but instead will allow that to be proven in the trial process.

Legal Sabotage?
Shemaya, on his website, questions whether the NRA-supported lawsuit was filed simply to sabotage the original Parker lawsuit. In his volatile remarks, Shemaya—a frequent NRA critic—noted, “Cato’s (sic) suit didn’t go after Ashcroft and thus won’t bring the full weight of the Justice Department and their competent attorneys with unlimited resources in as defendants. Is NRA really this stupid? Or do they actually need help on their case—from the superior legal team at Cato? Or, worse yet, are they deliberately trying to sabotage the Cato case? Few could deny that NRA is seeking to hog some credit for the good work of others—especially so since the NRA hasn’t filed a pure Second Amendment case and pursued it to the Supreme Court since their founding in the late 1800s. Perhaps it’s all of the above.”

Levy was a bit more reserved, telling Gun Week that he does not “see the logic” of Halbrook’s lawsuit. He does not try to mask his anger, however. He said there was no reason to “bring Ashcroft into this case.”

Halbrook countered that Ashcroft is a reasonable defendant because DC gun law violations are prosecuted as misdemeanors or felonies. In the latter case, the US Attorney brings the prosecution, he said, “and that’s why Mr. Ashcroft is a defendant. We want an injunction against prosecution (of gun violations) as felonies.”

“The NRA included all these extraneous things which have nothing to do with the Second Amendment,” Levy lamented. “All of this stuff gives the court an excuse to ignore the Second Amendment.”

He told CNSNews.com that the Halbrook lawsuit will prolong the resolution of his case.

Making the spat even more hostile is a Halbrook motion to combine the two cases, filed on Apr. 17, about two weeks after his case was filed. Levy has asked Halbrook to recuse himself from the case because of the research work he had done for Levy last fall, work that helped create a foundation for the Parker lawsuit. Levy and Gura filed a motion on May 1 opposing Halbrook’s request for consolidation.

“This is a great case, and I don’t want the NRA screwing it up,” Levy huffed. “They have had 27 years to file a lawsuit, and they haven’t. The reason might be that they are fearful they do not have a winning case to go in front of the court (so) they filed this second case that is filled with all kinds of other issues to give the court wiggle room so they don’t have to go near the Second Amendment.

“What they really want,” Levy continued, “is for the court to avoid dealing with it altogether and frankly that is none of their business. This is our lawsuit. We are not getting any funding or help from NRA. If they want to go ahead with their case, go ahead. They don’t need to consolidate it with our case.”

The Other Side
On the other side of this dispute sits Halbrook, a recognized Second Amendment expert. He told Gun Week that NRA had, contrary to Levy’s assertion, challenged the District’s gun law years ago.

“The NRA filed a case right after this law was passed,” he recalled. “That case was litigated and the court held adversely to NRA’s position.”

So, what makes him think NRA may have a better chance now?

“We contend that the handgun ban is not usual in a sense that no other state has it, and it is not reasonable,” Halbrook explained. “Count three of our complaint is the Civil Rights Act of 1866, which protects the right to security of person and property. The right to personal security includes the constitutional right to bear arms.”

Halbrook is skeptical about the Levy lawsuit, in that it seeks to have a District court render a precedent on the Second Amendment. If Kopel, from the Independence Institute, is correct, that’s simply not going to happen, at least not as part of a summary judgment.

Halbrook also noted that Levy’s associate, Gura, is the lead counsel in this effort and he has “never litigated any Second Amendment case, and has . . . never published anything on the Second Amendment.”

However, Halbrook acknowledged he was impressed with Gura’s work on the original motion to dismiss.

Why is NRA seeking consolidation? According to Halbrook, “If we can help if the cases are consolidated, and we can contribute to the court’s understanding on the Second Amendment—and I think I can do that because I’ve published more than anyone else on the Second Amendment.”

“We are only trying to help,” he insisted, “not interfere with their case. If the court feels consolidation is not warranted, they will not consolidate.”

He does not believe that he is violating any protocols, having worked with Levy last year and now pushing this separate lawsuit.

“Last fall,” Halbrook said, “I did some limited legal research with (Levy) on issues relating to the DC gun law. He has filed a motion to disqualify me for that reason, but the rule is that an attorney is disqualified if there is a material conflict of interest. We’re on the same side in this case. We want to invalidate the DC gun ban. There is no conflict. . . . I don’t think a judge would disqualify me for the limited research I did for Levy last fall. That was before they had filed a case.”

Timeline
Here’s the timeline of Halbrook’s work for Levy, according to court documents: Levy retained Halbrook on Oct. 23, 2002 for the research project. That research was finished Nov. 1, and Halbrook was paid on Nov. 11. The Parker lawsuit was filed Feb. 10.

Subsequently, Levy noted, Halbrook and “others within the NRA were kept apprised of developments in Parker, and were decidedly unenthusiastic about the enterprise.”

This allegation only places Halbrook’s lawsuit into further question. Halbrook dismissed much of the furor as the product of “the same people who criticize everything NRA does.”

“They frequently post things (on the Internet) about taking cases to the Supreme Court,” Halbrook said. “I’m not aware of what their qualifications are to make the claims they make.”

How long it may take for the court to decide whether to consolidate the Seegars and Parker cases is not known. Halbrook suggested it would be “a fairly prompt decision” that could be issued within 90 days of the motion, but Levy is concerned that the process may take weeks, if not months.

Halbrook is certain that either court, asked to invalidate the District gun ban on Second Amendment grounds, will move slowly.

“It would take a very long time to render such an opinion,” he stated, “because any judge that does would want to render a thorough opinion.”

He also noted that, “If the two cases remain separate, we have different judges, and there’s always the potential they will render inconsistent decisions.”

Halbrook said consolidation will only occur if the judge in Levy’s case—the first one filed—agrees with the motion.

How the cases will fair is open to conjecture. Levy and his supporters believe his case is a slam dunk. Halbrook noted with reserve that, “The likelihood of invalidating the DC gun ban is somewhat unlikely with a district court judge, and the Court of Appeals will ultimately make the decision.”

“I think,” Halbrook observed, “everybody agrees that the Supreme Court has been reluctant to create case law on the Second Amendment.”