285 F.3d 9 (D.C. Cir. 2002), 01-5104, Lomont v. O'Neill

Docket Nº:01-5104
Citation:285 F.3d 9
Party Name:Kent A. Lomont, et al., Appellants v. Paul H. O'Neill, Secretary, United States Department of the Treasury, and Bradley A. Buckles, Director, Bureau of Alcohol, Tobacco and Firearms, Appellees
Case Date:April 02, 2002
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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285 F.3d 9 (D.C. Cir. 2002)

Kent A. Lomont, et al., Appellants


Paul H. O'Neill, Secretary, United States Department of the Treasury, and Bradley A. Buckles, Director, Bureau of Alcohol, Tobacco and Firearms, Appellees

No. 01-5104

United States Court of Appeals, District of Columbia Circuit

Decided April 2, 2002

February 19, 2002

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (00cv01935)

Stephen P. Halbrook argued the cause for appellants. With him on the briefs was James H. Jeffries, III.

Michael S. Raab, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern, Attorney, U.S. Department of Justice.

Before: Edwards, Henderson, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Regulations of the Department of the Treasury, implementing the National Firearms Act of 1934, govern the manufacture, possession and transfer of certain types of firearms. The issues in this appeal center on the regulatory requirement that those seeking permission from the Treasury Department to make or transfer these firearms must obtain a certification from a law enforcement official in the jurisdiction of their residence. There are nine plaintiffs. Five are individuals who claim that although they are eligible for a certification, they are unable to obtain one; two are persons whose ability to sell or transfer these firearms allegedly has been impaired by the inability of prospective purchasers to obtain certifications; two are local chief law enforcement officers.

The emergence of organized crime as a major national problem led to the enactment of the National Firearms Act of 1934. See David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 590 (1987). Representing the first major federal attempt to regulate firearms, the Act concentrated on particularly dangerous weapons and devices such as machine guns, sawedoff shotguns and silencers. See United States v. Kenney, 91 F.3d 884, 890 (7th Cir. 1996); Sonzinsky v. United States, 300 U.S. 506, 511-12 (1937); Hardy, 17 Cumb. L. Rev. at 592-93. (When we speak of firearms in this opinion we mean to include only those currently covered by the Act.)1 The Act required the maintenance of a registry of firearms containing, Page 12

among other things, the name and address of the person possessing the weapon, see National Firearms Act, ch. 757, s 5(a), 48 Stat. 1236, 1238 (1934); it required persons seeking the transfer of firearms to file an application with the Commissioner of Internal Revenue, see id. at s 4; and it imposed a tax on firearm manufacturers, dealers and importers, as well as on the transfer of firearms. Id. at ss 2, 3.

Under the Treasury Department's 1934 regulations, anyone seeking permission to transfer a firearm had to support his application with a "certificate of the local chief of police, sheriff of the county, United States attorney, United States marshal, or other such person whose certificate may in a particular case be acceptable to the Commissioner [of the Internal Revenue], that he is satisfied that the fingerprints and photograph appearing on the application are those of the applicant and that the firearm is intended by the applicant for lawful purposes." U.S. Treasury Department, Bureau of Internal Revenue, Regulations 88 Relating to Taxes on Certain Firearms and Machine Guns Under the National Firearms Act, Chap. 4, Art. 65 (1934).2 For reasons described by Justice Jackson, see Robert H. Jackson, The Struggle for Judicial Supremacy 87-91 (1941), Congress passed the Federal Register Act in 1935. See Federal Register Act, ch. 417, 49 Stat. 500 (1935). Treasury's regulations dealing with the transfer of firearms first appeared in the Code of Federal Regulations in 1938. See 26 C.F.R. s 307.65 (1938). The regulations remained with minor changes until 1985, when the Bureau of Alcohol, Tobacco and Firearms ("ATF")--to which the Secretary had delegated his authority under 26 U.S.C. ss 5812 and 5822--deleted the certification authority of United States Attorneys and United States Marshals because this "required them to perform services outside their normal operations." See 50 Fed. Reg. 41,680-81 (Oct. 15, 1985). According to the government, a benefit of giving state and local officials (rather than federal officials) certification powers is that local officials "are in a better position to know about the particular status of an individual who seeks to make or receive" a firearm and whether that transfer would be consistent with state and local law. Brief for Appellees at 12.

Today applicants to make or transfer firearms can obtain a certification only from "the local chief of police, sheriff of the county, head of the State police, State or local district attorney or prosecutor, or such other person whose certificate may in a particular case be acceptable to the Director" of ATF. See 27 C.F.R. s 179.63; 27 C.F.R. s 179.85. As in 1934, the application form must contain a photograph of the applicant and two completed cards of his fingerprints. Id. The officer making the certification must state that he is satisfied that the photograph and fingerprints are those of the applicant and that he has "no information indicating that possession of the firearm by the [applicant] would be in violation of State or local law or that the [applicant] will use the firearm for other than lawful purposes." Id. The tax, payable to the Treasury by the transferor or, in the case of a manufacturer, by the maker of the weapon, is currently set at $200 per firearm-with the exception of firearms classified as "any other weapon" under s 5845(e), which are taxed at $5 per transfer. See 26 U.S.C. ss 5811, 5821.

The complaint was in four counts, each of which the district court dismissed for failure to state a claim upon which relief could be granted. Lomont v. Summers, Page 13

135 F.Supp.2d 23 (D.D.C. 2001). The court rejected plaintiffs' claim that the certification requirement violated the taxpayer privacy provision of 26 U.S.C. s 6103; the court reasoned that applicants (not federal officials) are disclosing return information to state officials. Id. at 25-26. Plaintiffs' Tenth Amendment claim failed because state and local officials participate voluntarily in providing certifications. Id. at 26. The regulations did not impinge upon the Secretary's duty to collect taxes: the Secretary's "duty to collect a transfer tax arises only after an application is approved and a transfer effected." Id. at 27. On the fourth count, the court sustained the Secretary's authority to issue the regulations under 26 U.S.C. ss 5812(a), 5822 and 7805(a), and held that regulations were not arbitrary and capricious. Id. at 27-28.


We will address first the contention that the certification regulations violate the Tenth Amendment "by commandeering State and local officers to administer federal law but without making them accountable to anyone." Brief for Appellants at 35. Two of the plaintiffs, if not any of the others, have standing to raise this claim.3 Plaintiff Dennis McClure is the sheriff of Orange County, Vermont,4 and plaintiff Stephen L. Hose is the Chief of the Clinton, Indiana Police Department. Fraternal Order of Police v. United States, 173 F.3d 898, 904-05 (D.C. Cir. 1999), held that because the Fraternal Order of Police had members who were chief law enforcement officers, the organization had Article III standing to bring a Tenth Amendment challenge to amendments to the Gun Control Act. This much may follow from Printz v. United States, 521 U.S. 898 (1997), in which the Court reached the merits of a Tenth Amendment challenge to the Brady Act in cases brought by county sheriffs. Neither the majority opinion nor the opinions of the five Justices who wrote separately questioned the sheriffs' standing to sue. The government believes that "chief law enforcement officers have standing only if they are authorized by state law to act on behalf of the State." Brief for Appellees at 34 n.9. But as the government recognizes, to impose that prerequisite would be to depart from our decision Page 14

in the FOP case, and perhaps the Supreme Court's disposition of Printz.

On the merits, we agree with the district court that plaintiffs' Tenth Amendment claim fails. Unlike the Brady Act, the certification regulations do not "command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Printz v. United States, 521 U.S. at 935. Local and state officials have the option of participating or not. See 53 Fed. Reg. 10,480, 10,488 (Mar. 31, 1988). There is no federal carrot to encourage participation, and no federal stick to discourage nonparticipation. Printz did not hold that the federal govern ment is forbidden from setting up regulatory programs, such as this one, in which state or local governments may voluntarily decide to assist in administering federal laws. See Printz, 521 U.S. at 936 (O'Connor, J., concurring); United States v. Nathan, 202 F.3d 230, 233 (4th Cir. 2000).

Chief of Police Hose alleges that citizens of his jurisdiction have the impression that his refusal to participate in the certification program "is injurious to such citizens." Complaint p 23(E).5 Plaintiffs spell this out in their brief: local and state officers who do not join in the program "offend constituents who thereby cannot get their applications approved" and face pressure to issue certifications. Brief for Appellants at 38. We will assume the allegation to be true, although one wonders how...

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