UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MAXWELL HODGKINS, et al., : : Plaintiffs, : : v. : Civil Action No. 09-0587 (JR) : ERIC HOLDER, Attorney General of : the United States, : : Defendant. :
MEMORANDUM
Plaintiffs Maxwell Hodgkins, Stephen Dearth, and the
Second Amendment Foundation, Inc. (“SAF”), present constitutional
challenges to certain federal gun control restrictions. The
government moves to dismiss, arguing, correctly, that the
plaintiffs lack standing.
Background
With exceptions not relevant here, federal law does not
allow any person “who does not reside in any State to receive any
firearms unless such receipt is for lawful sporting purposes.”
18 U.S.C. § 922(a)(9). A complementary provision prohibits the
transfer of firearms to any person “who the transferor knows or
has reasonable cause to believe does not reside in . . . the
State in which the transferor resides.” Id. § 922(a)(5). To
facilitate enforcement of these provisions, a prospective firearm
purchaser must complete and give to the seller ATF Form 4473,
which asks the purchaser to list his or her state of residence,
if any. See 27 C.F.R. § 478.124(c)(1). Plaintiff SAF is a non-profit organization of gunmen.
See Compl. ¶ 3. Plaintiffs Maxwell Hodgkins and Stephen Dearth
are United States citizens residing abroad with no domestic
residence. See id. at ¶¶ 1-2. Both occasionally visit friends
and family in the United States and intend to continue visiting
this country. See id. at ¶¶ 7, 10. Both hold valid state
permits to carry handguns. See id. at ¶¶ 9, 12. Hodgkins
attempted to purchase a firearm within the United States in
October 2008, but he was refused when he told the seller that he
resided abroad. See id. at ¶ 24. Similarly, Dearth attempted to
purchase firearms in the United States twice, but each time the
sale was refused when he admitted to residing abroad. See id. at
¶¶ 22-23. Dearth alleges that he intends to return to the United
States to buy firearms, which he would store at the home of
relatives in Ohio. See id. at ¶ 11.
Analysis
To have standing pursuant to Article III of the
Constitution, plaintiffs must demonstrate, inter alia, “an injury
in fact –- an invasion of a legally protected interest which is
(a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (internal quotation marks and citations
omitted). Plaintiffs seek relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201. To establish a right to proceed
- 2 - under the Declaratory Judgment Act, plaintiffs must demonstrate
“a case of actual controversy.” Id.
A. Standing of Hodgkins and Dearth
1. Based solely upon refusal to sell
Plaintiffs Hodgkins and Dearth contend that their
failed attempts to purchase firearms confer standing. However,
unlike many causes of action, the Declaratory Judgment Act does
not authorize remedies for past injuries alone. Under the
Declaratory Judgment Act, a constitutional question “must be
presented in the context of a specific live grievance.” Golden
v. Zwickler, 394 U.S. 103, 110 (1969); see also Steffel v.
Thompson, 415 U.S. 452, 459 (1974) (requiring “the continuing
existence of a live and acute controversy”) (emphasis in
original). Thus, a plaintiff’s prior arrest could not support a
declaratory judgment action where the plaintiff could not show
that the arrestable offense was likely to reoccur. See Golden,
394 U.S. at 108-10 (plaintiff’s concern lacked the “immediacy and
reality” necessary to support a Declaratory Judgment Act action).
Past events can be relevant to a determination of
whether a plaintiff’s fear of future prosecution is “imaginary or
speculative” or whether it is “immedia[te] and real[],” Steffel,
415 U.S. at 459-60, but past refusals of merchants to sell
firearms to Hodgkins and Dearth are not enough, without more, to
- 3 - provide the basis for an action pursuant to the Declaratory
Judgment Act.1
2. Preenforcement standing
If Hodgkins and Dearth have standing, then, it must be
based on the threat of future enforcement. See Seegars v.
Ashcroft, 396 F.3d 1248, 1251 (D.C. Cir. 2005) (“No plaintiff in
this case has been arrested and prosecuted for violating the
disputed provisions of the Code, so plaintiffs' case constitutes
a ‘preenforcement’ challenge.”). Hodgkins has not alleged any
intention to acquire firearms in the United States in the future,
so he cannot establish an imminent future injury. Dearth does
allege that he intends to return to the United States to purchase
firearms, but, as will be explained, that allegation is not
enough to overcome the preenforcement standing requirements
established by the D.C. Circuit in the Navegar line of cases.
Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir.
1997), held that gun manufacturers had standing to seek a
declaratory judgment against enforcement of the Violent Crime
Control & Law Enforcement Act of 1994 where the law, by naming
1 Some courts have characterized the Declaratory Judgment Act’s “actual controversy” requirement as being identical with Article III standing. See, e.g., Cutaiar v. Marshall, 590 F.2d 523, 527 (3d Cir. 1979); see also Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937) (“The word ‘actual’ [in the Declaratory Judgment Act] is one of emphasis rather than of definition.”). However, this is not strictly correct; while Article III supports actions based solely on actual past injuries, Steffel and Golden show that the Declaratory Judgment Act does not.
- 4 - specific brands and models of firearms, “in effect single[d] out
the [plaintiffs] as its intended targets.” See id. at 999-1001.
The manufacturers did not have standing to challenge certain
other provisions of the Act, however, because of the absence of
“any special priority placed upon preventing these parties from
engaging in specified conduct.” Id. at 1001-02.
The Court of Appeals has since explained Navegar’s
“special priority” language, holding that preenforcement standing
will exist only when a plaintiff has been “personally threatened
with prosecution or . . . his prosecution has [a] special
priority for the government.” Seegars, 396 F.3d at 1251.
Seegars questions whether Navegar’s stringency was consistent
with Supreme Court precedent and precedent from other circuits,
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MAXWELL HODGKINS, et al., : : Plaintiffs, : : v. : Civil Action No. 09-0587 (JR) : ERIC HOLDER, Attorney General of : the United States, : : Defendant. :
MEMORANDUM
Plaintiffs Maxwell Hodgkins, Stephen Dearth, and the
Second Amendment Foundation, Inc. (“SAF”), present constitutional
challenges to certain federal gun control restrictions. The
government moves to dismiss, arguing, correctly, that the
plaintiffs lack standing.
Background
With exceptions not relevant here, federal law does not
allow any person “who does not reside in any State to receive any
firearms unless such receipt is for lawful sporting purposes.”
18 U.S.C. § 922(a)(9). A complementary provision prohibits the
transfer of firearms to any person “who the transferor knows or
has reasonable cause to believe does not reside in . . . the
State in which the transferor resides.” Id. § 922(a)(5). To
facilitate enforcement of these provisions, a prospective firearm
purchaser must complete and give to the seller ATF Form 4473,
which asks the purchaser to list his or her state of residence,
if any. See 27 C.F.R. § 478.124(c)(1). Plaintiff SAF is a non-profit organization of gunmen.
See Compl. ¶ 3. Plaintiffs Maxwell Hodgkins and Stephen Dearth
are United States citizens residing abroad with no domestic
residence. See id. at ¶¶ 1-2. Both occasionally visit friends
and family in the United States and intend to continue visiting
this country. See id. at ¶¶ 7, 10. Both hold valid state
permits to carry handguns. See id. at ¶¶ 9, 12. Hodgkins
attempted to purchase a firearm within the United States in
October 2008, but he was refused when he told the seller that he
resided abroad. See id. at ¶ 24. Similarly, Dearth attempted to
purchase firearms in the United States twice, but each time the
sale was refused when he admitted to residing abroad. See id. at
¶¶ 22-23. Dearth alleges that he intends to return to the United
States to buy firearms, which he would store at the home of
relatives in Ohio. See id. at ¶ 11.
Analysis
To have standing pursuant to Article III of the
Constitution, plaintiffs must demonstrate, inter alia, “an injury
in fact –- an invasion of a legally protected interest which is
(a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (internal quotation marks and citations
omitted). Plaintiffs seek relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201. To establish a right to proceed
- 2 - under the Declaratory Judgment Act, plaintiffs must demonstrate
“a case of actual controversy.” Id.
A. Standing of Hodgkins and Dearth
1. Based solely upon refusal to sell
Plaintiffs Hodgkins and Dearth contend that their
failed attempts to purchase firearms confer standing. However,
unlike many causes of action, the Declaratory Judgment Act does
not authorize remedies for past injuries alone. Under the
Declaratory Judgment Act, a constitutional question “must be
presented in the context of a specific live grievance.” Golden
v. Zwickler, 394 U.S. 103, 110 (1969); see also Steffel v.
Thompson, 415 U.S. 452, 459 (1974) (requiring “the continuing
existence of a live and acute controversy”) (emphasis in
original). Thus, a plaintiff’s prior arrest could not support a
declaratory judgment action where the plaintiff could not show
that the arrestable offense was likely to reoccur. See Golden,
394 U.S. at 108-10 (plaintiff’s concern lacked the “immediacy and
reality” necessary to support a Declaratory Judgment Act action).
Past events can be relevant to a determination of
whether a plaintiff’s fear of future prosecution is “imaginary or
speculative” or whether it is “immedia[te] and real[],” Steffel,
415 U.S. at 459-60, but past refusals of merchants to sell
firearms to Hodgkins and Dearth are not enough, without more, to
- 3 - provide the basis for an action pursuant to the Declaratory
Judgment Act.1
2. Preenforcement standing
If Hodgkins and Dearth have standing, then, it must be
based on the threat of future enforcement. See Seegars v.
Ashcroft, 396 F.3d 1248, 1251 (D.C. Cir. 2005) (“No plaintiff in
this case has been arrested and prosecuted for violating the
disputed provisions of the Code, so plaintiffs' case constitutes
a ‘preenforcement’ challenge.”). Hodgkins has not alleged any
intention to acquire firearms in the United States in the future,
so he cannot establish an imminent future injury. Dearth does
allege that he intends to return to the United States to purchase
firearms, but, as will be explained, that allegation is not
enough to overcome the preenforcement standing requirements
established by the D.C. Circuit in the Navegar line of cases.
Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir.
1997), held that gun manufacturers had standing to seek a
declaratory judgment against enforcement of the Violent Crime
Control & Law Enforcement Act of 1994 where the law, by naming
1 Some courts have characterized the Declaratory Judgment Act’s “actual controversy” requirement as being identical with Article III standing. See, e.g., Cutaiar v. Marshall, 590 F.2d 523, 527 (3d Cir. 1979); see also Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937) (“The word ‘actual’ [in the Declaratory Judgment Act] is one of emphasis rather than of definition.”). However, this is not strictly correct; while Article III supports actions based solely on actual past injuries, Steffel and Golden show that the Declaratory Judgment Act does not.
- 4 - specific brands and models of firearms, “in effect single[d] out
the [plaintiffs] as its intended targets.” See id. at 999-1001.
The manufacturers did not have standing to challenge certain
other provisions of the Act, however, because of the absence of
“any special priority placed upon preventing these parties from
engaging in specified conduct.” Id. at 1001-02.
The Court of Appeals has since explained Navegar’s
“special priority” language, holding that preenforcement standing
will exist only when a plaintiff has been “personally threatened
with prosecution or . . . his prosecution has [a] special
priority for the government.” Seegars, 396 F.3d at 1251.
Seegars questions whether Navegar’s stringency was consistent
with Supreme Court precedent and precedent from other circuits,
see id. at 1253-54, but nonetheless “faithfully appl[ied]” its
holding to bar preenforcement challenges to several District of
Columbia gun control laws. Id. at 1254-56. In Parker v.
District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), the court
again questioned whether its standing precedent was consistent
with earlier Supreme Court decisions, but reiterated that it
“must be faithful to Seegars [and] Navegar.” Id. at 375. The
court then held that all plaintiffs whose challenges presented
- 5 - only preenforcement issues lacked standing because they had not
been singled out for prosecution.2 See id.
Like the D.C. Circuit itself, plaintiffs have
criticized the Navegar line of cases as improperly stringent in
comparison with other authority. See Pl. Resp. at 14-22. That
criticism is especially apt in this case. Domestic firearm
merchants are legally obligated to refuse sale to citizens who
reside abroad. Because sales will be refused, would-be
purchasers will never draw government attention. Because they
will draw no attention, they will never be in a position to be
threatened with prosecution. If Navegar retains its vitality,
the only way the state residence law can be challenged in this
Circuit is to engage in a forbidden transaction, exposing oneself
to prosecution. Nevertheless, I must “faithfully apply” the
principle enunciated in the Navegar line of cases, which are
squarely on point.3
2 In Ord v. District of Columbia, No. 08-7094 (D.C. Cir. Dec. 4, 2009), a panel of the D.C. Circuit upheld the standing of a police officer challenging firearm laws where a warrant had been issued for his arrest and others had been arrested for similar conduct. See Slip. Op. at 9-10. While Judge Brown criticized the Navegar standard in dissent, see id. at 19, the majority applied the existing standard without comment. 3 Plaintiffs suggest that Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir. 1998), on reh’g, 173 F.3d 898 (D.C. Cir. 1999), is inconsistent with the Navegar line of cases. As the court explained, however, the plaintiff police officers in that case complained of an ongoing constitutional injury due to the conflict between local law enforcement duties and the federal law at issue. See Fraternal Order, 152 F.3d at - 6 - 3. Venue-based argument
Before they filed here, Dearth and Hodgkins brought
separate suits, in Ohio and Texas. See Pl. Resp. at 5. Venue
was held improper in both locations.4 See id. at 5-6.
Plaintiffs suggest that defendant sought transfer in those cases
to obtain the benefit of the D.C. Circuit’s exacting standing
requirements, and that this district was not an appropriate
recipient venue because their lack of standing here means it is
not a district “in which [the case] might have been brought,”
according to the requirements of the transfer statute. 28 U.S.C.
§ 1404(a); see also 28 U.S.C. § 1406(a). Plaintiffs suggest that
this court should “sensibly confirm[] that inherent in any
discretionary transfer here is the idea that jurisdiction cannot
be destroyed.” Pl. Resp. 25.
The argument is artful but unpersuasive. “There is no
valid reason for reading the words ‘where it might have been
brought’ to narrow the range of permissible federal forums beyond
those permitted by federal venue statutes.” Van Dusen v.
1001. Navegar and its progeny, as well as the present case, deal with the potential of prosecutions that could cause injury only in the future, if at all. 4 Plaintiffs in each case asked for and were granted dismissal without prejudice rather than transfer so that they could appeal immediately. They did appeal, but neither appeal was successful. See Dearth v. Mukasey, 516 F.3d 413 (6th Cir. 2008) (holding appeal improper since the dismissal was voluntary); Hodgkins v. Mukasey, 271 F. App’x 412 (5th Cir. 2008) (same). - 7 - Barrack, 376 U.S. 612, 623 (1964); see also Carbonara v. Olmos,
1994 WL 61797, at *1 (N.D. Ill. Feb. 24, 1994) (holding that
transfer to a district in which circuit law likely precluded
standing was proper because the language of § 1404(a) “refers
only to whether venue is proper and not a plaintiff's capacity to
sue”).
B. Standing of SAF
SAF asserts both organizational and representational
standing. Organizations can have standing on their own behalf
when they have suffered injuries. See Warth v. Seldin, 422 U.S.
490, 511 (1975). However, SAF has not alleged any sufficient
injury. It contends that the work it must do fielding questions
from constituents about the laws at issue justifies standing, its
voluntary act of teaching cannot plausibly be the basis for a
claim of constitutional injury.
An association may sue on behalf of its members if
(1) its members would otherwise have standing to sue in their own
right, (2) the interests at stake are germane to the
organization's purpose, and (3) neither the claim asserted nor
the relief requested requires the participation of individual
members in the suit. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). SAF cannot
meet the first requirement, because it has failed to allege that
it has any members who are U.S. citizens residing abroad who
- 8 - intend to purchase firearms domestically in violation of the laws
at issue.
Conclusion
For the reasons set forth above, no plaintiff has
standing to challenge the provisions at issue. Accordingly,
defendant’s motion to dismiss will be granted. An appropriate
order accompanies this memorandum.
JAMES ROBERTSON United States District Judge
- 9 -