Domestic violence programs make case to keep suit on gun law going

MORGANTOWN, W.Va. — A coalition of domestic violence programs has made its case to keep alive its federal lawsuit seeking to overturn the so-called Parking Lot Gun Bill of 2018.

The West Virginia Coalition Against Domestic Violence is opposing state Attorney General Patrick Morrisey’s August motion to dismiss the case, which is in the U.S. District Court for the Southern District of West Virginia.

The Elkview-based coalition has 14 members statewide, including the Rape and Domestic Violence Information Center in Morgantown and HOPE Inc. in Fairmont. It’s represented by Everytown Law, a branch of Everytown for Gun Safety, and two Charleston law firms.

Before attacking what they say are the flaws in Morrisey’s arguments, the coalition opens with a general explanation of why it opposes the law.

The measure, House Bill 4187, is officially called the Business Liability and Protection Act. It says no private or public sector employer may prevent an employee, customer or invitee from keeping a firearm properly locked out of sight inside the vehicle from parking in the parking lot.

The act says the property owner may not ask the driver if there is a gun in the vehicle and may not search the vehicle. An employer may not condition employment upon gun ownership or intention to keep a gun locked in the employee’s car.

The programs exist, the coalition says, to protect victims of domestic violence and to create “safe havens where victims will not be physically endangered or psychologically retraumatized.” The law “impairs the shelters’ ability to safeguard the physical and emotional well-being of their residents and to foster the kind of environment that is so essential to their existence. … [It] inhibits their First Amendment right to associate freely with their clients.”

Weapons pose several threats, they say: “abusers who attempt to enter the premises, sometimes under false pretenses; residents who bring weapons onto shelter property and pose a danger to themselves or others; children who stay at the shelters and may access weapons kept in cars. … It is essential that shelter staff be allowed to protect themselves and their residents by exercising their professional judgment about how best to respond in such situations, whether by investigating, asking the person to remove the gun from the premises, or calling the police.”

Then they address Morrisey’s arguments. Morrisey argues that the court has no jurisdiction over the subject matter because in the 14 months the law has been in effect no one has filed a complaint alleging a violation of the law, so there has been and foreseeably will not be a credible threat of his office enforcing the law.

The coalition responds they that those who have not yet changed their gun policies do in fact face a credible threat of enforcement. They say in a footnote: “The Attorney General’s half-way assurance that he does not ‘plan’ to bring an enforcement action until he receives a complaint is no assurance at all. Even if it were a binding promise (and it is not), the shelters are just one complaint away from an enforcement action.”

Also, they say, shelters that have complied are being denied full enjoyment of their First Amendment rights. As an example, one member has been forced to adopt a temporary policy of not asking any questions about firearms in cars.

“It is apparently the official position of the attorney general that it is ‘unreasonable’ to comply with a West Virginia statute that his office is tasked with enforcing until he has had occasion to enforce it. … But there is no requirement that a person ‘violate the law and wait to see what happens.’”

Morrisey also argues that the case is not yet “ripe” [lawyer jargon] for judgment because, as above, no one’s filed a complaint so there’s been no danger of enforcement and no threat of penalties against any of the shelters.

The coalition counters that a case is ripe if a party plans to engage in the illegal activity. “Coalition members plainly have that here,” with shelters that have no-gun policies currently on hold.

Morrisey also argues that while the shelters may be censoring their own speech to avoid breaking the law, that doesn’t constitute objective harm or a threat of harm to their First Amendment rights.

The coalition responds: “This argument, too, collapses on inspection. Protecting the ability of its members to monitor and control the presence of loaded firearms on their own property—whether through “no guns” policies or by being able to ask about guns—is not only germane to, but directly advances, the coalition’s mission of providing for the physical safety and psychological well-being of domestic-violence victims.”

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