The Department of Justice has forcefully responded to the U.S. Virgin Islands’ motion to dismiss the DOJ’s lawsuit challenging the patterns and practices of the Virgin Islands Police Department that abuse the Second Amendment rights of the territory’s residents and visitors.
Barry Arrington, head of the DOJ’s Second Amendment Section, scornfully dismissed the USVI’s claim that the lawsuit has been mooted by a recently passed gun control bill that rescinded some of the policies and practices challenged by the Justice Department.
Defendants now admit that the United States Virgin Islands (USVI) “may-issue” permitting scheme was unconstitutional under N. Y. Pistol & Rifle Ass’n, Inc. v. Bruen. In Defendants’ motion, they admit for the first time that they knew their statute was unconstitutional over two years ago. Yet, they did not amend the statute until the United States pushed them to do so by filing this lawsuit. In the wake of their knowing and flagrant lawlessness, Defendants assert that everything is fine now, so it is time to move along. Defendants are wrong. As set forth below, the new statute does not address—much less remedy—all of VIPD’s misconduct. Moreover, the new statute creates additional constitutional violations that will be the subject of a supplemental complaint. This case is far from moot.
Arrington went on to argue that the USVI officials who’ve been sued “have provided cursory assurances that they will stop violating the Second Amendment,” but says “that is not enough.”
Defendants have not repudiated or changed their conduct with respect to all those whom they have already harmed. Act 9113 explicitly carries over ongoing prior restrictions VIPD placed on Virgin Islanders’ firearms licenses (§ 452(b)) and requires those who were not permitted licenses for their firearms to surrender them to VIPD (§ 452(c)) with the hope of engaging in a lengthy process to secure the return of lawful firearms (§ 452(d)). And, Defendants have failed to provide required discovery responses that, among other things, would identify the ongoing, aggrieved citizens whose rights VIPD continues to violate. Defendants assertions of repudiation or non-repetition lack credibility. Therefore, they have no hope of proving that it is “absolutely clear” that they will stop violating the Second Amendment.
Arrington says the USVI “misapprehends” what the DOJ’s lawsuit is all about. It’s not just about the territory’s “may issue” licensing laws, which have supposedly been replaced with a “shall issue” system under Act 9113. It’s about the pattern and practice of “law enforcement misconduct that deprived the citizens of the USVI of their constitutional rights.”
According to Arrington, VIPD Commissioner Mario Brooks has now admitted that those practices existed. And Arrington says the DOJ has learned over the course of the litigation that the abuses went beyond what was documented in the agency’s initial complaint, including Brooks imposing his own unconstitutional magazine ban even before Act 9113 was enacted with a prohibition on magazines that can hold more than 15 rounds.
The USVI contends that the lengthy delays applicants for a carry license were subjected to are no longer an issue because Act 9113 imposes a 30-day window for the police to approve or deny a permit. As Arrington points out, that’s actually the same deadline that was imposed before Act 9113 was adopted, but the VIPD routinely ignored that deadline in the past and there’s nothing to indicate it will now adhere to it.
Act 9113 fails to address the DOJ’s concerns, but it also imposes many new infringements on the right to keep and bear arms.
1. 23 V.I.C. § 453(i)(6): (unconstitutional carry ban)
2. 23 V.I.C. § 453(i)(8): (unconstitutional carry ban)
3. 23 V.I.C. § 453(k): (unconstitutional ban on transportation of long guns)
4. 23 V.I.C. § 455(a)(8) and 489a: (unconstitutional storage mandate)
5. 23 V.I.C. § 455(c)(1): (requires applicants to obtain VIPD’s own records and give them back to them as part of the application)
6. Last sentence of 23 V.I.C. § 458(d): (unconstitutional suspension of license without due process)
7. 23 V.I.C. § 492 to the extent it applies to firearms suppressors: (unconstitutional arms ban)
8. 23 V.I.C. § 493: (unconstitutional magazine ban)
9. 23 V.I.C. § 452(e) (unconstitutional restriction on protected arms)
The DOJ reply also notes that the Virgin Islands government was warned about adopting an “assault weapon’ and magazine ban by Second Amendment Foundation attorney Kostas Moros, but ignored his advice and included the bans in Act 9113. The law is now squarely at odds with the Third Circuit Court of Appeals, which has jurisdiction over the USVI and recently declared New Jersey’s nearly identical prohibitions unconstitutional.
The federal judge overseeing the lawsuit has already said that DOJ can amend its complaint after an August 19 hearing, and there are a lot of additional policies for the Justice Department to include. I can’t imagine the judge granting the USVI’s request to dismiss the DOJ’s litigation, especially after the DOJ has done such a thorough job of documenting the abuses that Virgin Islands residents are still subjected to when it comes to their right to keep and bear arms.
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