Malcolm Bezet v. United States

714 F. App'x 336
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 27, 2017
Docket17-30303 Summary Calendar
StatusUnpublished
Cited by6 cases

This text of 714 F. App'x 336 (Malcolm Bezet v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malcolm Bezet v. United States, 714 F. App'x 336 (5th Cir. 2017).

Opinion

•JERRY E. SMITH, Circuit Judge: *

Malcolm Bezet appeals the dismissal of his claims that certain provisions of the Gun Control Act of 1968 (“GCA”) and National Firearms Act (“NFA”) are unconstitutional under the Second Amendment, the Tenth Amendment, and the Necessary and Proper Clause. The district court concluded that Bezet lacks standing to challenge 26 U.S.C. §§ 5811 and 5812 and has failed to state a claim upon which relief can be granted as to 18 U.S.C. § 922(¿), (o), and (r) and 26 U.S.C. §§ 5821 and 6822. Finding no error, we affirm.

I.

Bezet wants to convert a semiautomatic pistol he lawfully owns into a fully automatic, silenced rifle. He avers that he is prevented from doing so by certain provisions of the GCA and NFA. He seeks a permanent injunction.

Specifically, Bezet asserts that the following provisions of the GCA are unconstitutional: Section 922(0, which bans the importation of firearms regulated under the GCA; § 922(r), which forbids assembling weapons from such imported parts; and § 922(o), which prohibits transferring or possessing any machinegun manufactured after the GCA’s enactment. Bezet alleges that the following provisions of the NFA are unconstitutional: Section § 5811, which taxes the transfer of firearms; § 5812, which establishes registration and application requirements for transferring firearms; § 5821, which taxes the making of firearms; and § 5822, 1 which establishes registration and application requirements for making firearms.

Bezet maintains that, to convert his pistol, he would need to register the completed rifle with the Bureau of Alcohol, Tobacco, Firearms and Explosives, pay a $200 tax on the parts, and use only American-made rather than imported parts. Even then, Bezet notes that he would be prohibited by the GCA from converting the pistol into a fully automatic rifle. See § 922(o).

The government moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6). The district court granted the motion and dismissed Bezet’s claims as to §§ 5811 and 5812 under Rule 12(b)(1) for lack of standing and his claims as to § 922(1), (o), and (r) and §§ 5821 and 5822 under Rule 12(b)(6) for failing to state a claim upon which relief could be granted.

II.

We review de novo the dismissal of a complaint under Rule 12(b)(1) and (6), applying the same standards used by the district court. See Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017); Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010). We address whether Bezet has standing to challenge §§ 5811 and 5812. Then we examine whether he has stated a claim upon which relief can be granted as to § 922(Z), (o), and (r) and §§ 5821 and 5822.

A.

Rule 12(b)(1) allows a party to challenge the district court’s subject-matter jurisdiction. Spotts, 613 F.3d at 565. Federal courts have jurisdiction only over “cases” or “controversies.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). One element of the case-or-cohtroversy requirement is that Bezet must have standing, which “focuses on whether the plaintiff is the proper party to bring this suit.” Id. Bezet must show that (1) he suffered an injury in fact, which is “a concrete and particularized invasion of a legally protected interest;” (2) his “injury is traceable to the challenged action of the Government;” and (3) “it is likely, rather than merely speculative, [that] the injury will be redressed by a favorable decision.” Hollis v. Lynch, 827 F.3d 436, 441 (5th Cir. 2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

“At the pleading stage," we “liberally” construe allegations of injury, Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009), but the plaintiff bears the “burden of proof that jurisdiction does in fact exist,” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Bezet has failed to demonstrate that he has standing to challenge §§ 5811 and 5812. As the district court correctly noted, both deal exclusively with the transfer of firearms: Section 5811 levies a tax on the transferor of a firearm, and § 5812 imposes registration requirements on the transferor of a firearm. Bezet has not alleged that he wishes to transfer a firearm. Accordingly, he is not directly subject to those provisions and suffers no immediate injury.

Furthermore, any indirect injuries that Bezet may incur are insufficient to establish standing. Regarding the first prong of injury-in-faet, he claims that any taxes lev-fed on the transferor will eventually be passed on to the transferee, and he observes that § 5812 requires that a transferee be photo-graphed and fingerprinted. But such allegations do not establish the “concrete and particularized” injury of “a legally protected interest” that standing requires. Defs. of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. Rather, they are merely “additional costs and logistical hurdles” that all citizens bear as ancillary to living under a government. Lane v. Holder, 703 F.3d 668, 673 (4th Cir. 2012).

Moreover, Bezet fails on the causality prong of standing., A plaintiff wishing to challenge certification laws must generally exhaust his certification options before suing in federal court. Westfall v. Miller, 77 F.3d 868, 872 (5th Cir. 1996). Otherwise, his “inaction” caused his own injury. Id, Bezet challenges the registration requirements of § 6812 yet has made no attempt to comply with them. Accordingly, “his inaction has caused any injury he has suffered.” Id, And regarding § 8211, Bezet has not explained why the $200 tax paid by the transferor of a firearm would necessarily be passed on to him. See San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996) (noting multiple factors that affect the price of firearm sales). Accordingly, the district court was correct in holding that Bezet lacks standing to challenge §§ 5811 and 5812.

B.

We turn to whether Bezet has stated a claim as to § 922©, (o), and (r) and §§ 5821 and 5822.

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Bluebook (online)
714 F. App'x 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malcolm-bezet-v-united-states-ca5-2017.