End of the en banc week at the U.S. Fifth Circuit, one for the record books, and it started early, moving the argument up from 9:00 to 8:30 to give judges and staffs time to get back home, some of them to places that will be snow- and ice-bound starting tonight. Plus, the day’s arguments were cut in half, with the en banc rehearing in Spectrum WT v. Wendler dismissed as moot. In the end, then, the Court had six en banc oral arguments in seven cases (with the two 10 Commandment cases consolidated for oral argument purposes only, with an extended oral argument time).
Today’s remaining argument was in Bay Area Unitarian Universalist Church v. Ogg, 23-20165, where the panel (Jones, Dennis, Douglas; Jones, J., dissenting) reversed the district court’s dismissal of the plaintiffs’ First Amendment challenge to Texas’s handgun trespass statutes (Texas Penal Code §§ 30.06 & 30.07), which remove criminal trespass as a sanction for someone who enters a business with a licensed concealed or open-carried handgun and the premises does not post or orally notify that person in language and mode prescribed by the statute that a person may not enter the premises with the concealed or open-carried handgun. The district court had dismissed the suit by a church and by a coffeehouse on the grounds of lack of standing, which was the only issue on appeal.
Because the standing inquiry was focused on how the signage and notification requirement injured the plaintiffs and how prevailing in the suit would redress those injuries, Harris County and the defendants (who split their argument into three parts handles by three different advocates, ultimately a clumsily executed strategy that seemed to reduce engagement by the en banc panel) argued that the plaintiffs really were not seeking redress for the injury caused by the signage and notification requirements, but were challenging the Texas allowance for concealed and open-carry in the first place, or were challenging the stripping of the sanction of criminal prosecution.
On that last point, Judge Ho noted that people do not have a legally cognizable interest in someone else being prosecuted; invoking “weirdness” for the second time in this en banc session, he said, “I think that’s weird, but that’s the law.” Judge Higginson then stepped in to question whether the focus on the inability to gain a criminal prosecution was not missing the point, observing that the article III interest–the interest in not having to expend money or incur reputational damage in posting the required signage–was not antecedent to the lack of prosecution but still a cognizable interest for standing purposes. Judge Jones then said that posting signage is not the only prerequisite for criminal trespass, but that the laws also allowed for oral notice, then asking what the constitutional injury was for the oral notice requirement.
Chief Judge Elrod asked a series of questions to counsel for the church and the coffeehouse about redressability, wanting to know precisely what counsel would envision the remedy to be–would the remedy be to compel police to arrest someone for criminal trespass in contravention of the statute, or would the courts have to “redline” the statute: “how would we instruct the police that would redress your injury in a way we’re allowed to do?” Judge Richman began asking a series of questions along the same line, wanting to know, “What are you asking for?” Judge Jones looked down the bench at Judge Richman, holding up a piece of paper and saying, “her complaint,” pointing down at the paper; but before Judge Jones could continue with that thought, Chief Judge Elrod said, “let her answer Judge Richman’s question, then you can follow up.” Judge Richman said, “I’ve got her point. I don’t agree with it, but I’ve got it.” After Judge Jones suggested that the plaintiff’s counsel would have the police arrest people carrying guns on the plaintiffs’ property even where Texas trespass law doesn’t support it. Judge Wilson then observed that it appeared the plaintiffs wanted the court to rewrite the law instead of the legislature.
Judge Douglas proceeded on a line of questions to the defendants’ counsel about the allegations of pocketbook injury by plaintiffs. Judge Jones followed up that nothing prohibits whatever signage the plaintiffs want to put up, but that they just can’t invoke criminal trespass sanctions if their chosen notice doesn’t comply with the statute’s requirements. Judge Richman asked again, “What do any defendants have to do to remedy this?” Judge Douglas then observed that, aside from all the discussion about “redlining” the statute and instructing the police, what the plaintiffs sought was declaratory judgment.
The argument ended, in the plaintiffs’ rebuttal period, with a series of questions by Judge Oldham digging into the redressability question again, asking “What do you want?” and wanting to know if any case supported that the plaintiffs had a right to the deterrent effect of criminal trespass sanctions that was being unduly infringed on or conditioned by the Texas signage-and-notice laws. Judge Ho then returned to a hypothetical he had proposed earlier in the argument, whether the plaintiffs would have any claim if the Texas law, rather than conditioning the availability of the criminal trespass sanction on the required signage and notifications, had repealed criminal trespass altogether.
This is a tricky case to calibrate a hunch on, because, while it is just a standing case, it touches on Second Amendment issues without really getting into that and even touches on First Amendment religion issues to the extent that the church plaintiff based its right to prohibit gun carrying in the church on religious doctrine (seeming to elicit nods of approval from Judge Ho, for example, to the plaintiffs’ counsel’s responses where otherwise he might be expected to be more skeptical). My hunch: Judges Jones, Smith, Willett, Engelhardt, Duncan, Oldham, and Wilson appear to side with affirming the dismissal of the plaintiffs’ challenge, with Chief Judge Elrod also leaning that way; Judges Stewart, Graves, Higginson, Douglas, and Ramirez, plus senior judge Dennis appear to side with reversing the dismissal, with Judge Ho maybe leaning that way; and I have no hunch one way or the other about Judges Southwick, Richman, or Haynes. Another nail-biter until opinions come out.
Take the Fifth 