Connecticut man may bring pre-enforcement challenge to anti-gun law

This case involves a man who wants to carry a gun in the state parks of Connecticut. He says he needs the gun for self-defense. The state has not yet arrested plaintiff over this, and it does not appear he actually entered any state parks with his gun. For that reason, the case was dismissed because the district court said plaintiff lacks standing to to bring this pre-enforcement lawsuit. The Court of Appeals reverses.

The case is Nastri v. Dykes, a summary order issued on March 29. Standing rules emanate from the Constitution. You need a concrete dispute before the courts can issue a ruling. So if plaintiff were actually arrested for carrying a gun into a state park, then proving standing is easy. But what about when the anti-carry law is on the books and plaintiff anticipates an arrest, even when no one specifically threatens him with enforcement?

To establish standing, plaintiff has to establish a "credible threat of enforcement." That is a "quite forgiving standard" for plaintiffs. The Court of Appeals (Jacobs, Leval and Sullivan) lays out the test:

we do “not place[] the burden on the plaintiff to show an intent by the government to enforce the law against [him] but rather presume[] such intent in the absence of a disavowal by the government.” In other words, we presume that a credible threat of enforcement exists, and require the government to “rebut” that inference by “disavowing” its intent to enforce the statute, or by pointing to “another reason to conclude that no such intent exist[s].”

Nor must plaintiff identify a threat of future enforcement to demonstrate a credible threat. Rather, "when it is apparent that the plaintiff's conduct is subject to the statute, we presume that there exists a credible threat of enforcement -- whether or not a plaintiff points to additional evidence -- and require the government to show otherwise."

Since the anti-carry law on the books prevents plaintiff from bringing a handgun into the state park, and Connecticut's Environmental Conservation Police has stated that his department would take enforcement action if its officers found a person inside the parks with an unauthorized firearm, plaintiff has standing to bring this case challenging the anti-gun law. And while the state claims the law is "moribund" and "not likely to be enforced because it has origins to 1918, the current statute was enacted in 1993 and amended in 2017, so it is not as outdated as Connecticut claims.