Wilson v. Lynch

• Decision Date: 31 August 2016
• Docket Number: No. 14-15700,14-15700
• Citation: 835 F.3d 1083
• Parties: S. Rowan Wilson, Plaintiff-Appellant, v. Loretta E. Lynch, Attorney General; Bureau of Alcohol, Tobacco, Firearms And Explosives; B. Todd Jones, as Acting Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; Arthur Herbert, as Assistant Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

835 F.3d 1083

S. Rowan Wilson, Plaintiff-Appellant,

v.Loretta E. Lynch, Attorney General; Bureau of Alcohol, Tobacco, Firearms And Explosives; B. Todd Jones, as Acting Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; Arthur Herbert, as Assistant Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and United States of America, Defendants-Appellees.

No. 14-15700

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 21, 2016, San Francisco, California

Filed August 31, 2016

Charles C. Rainey (argued) and Jennifer J. Hurley, Rainey Legal Group PLLC, Las Vegas, Nevada, for Plaintiff-Appellant.

Abby C. Wright (argued) and Michael S. Raab, Attorneys, Appellate Staff; Daniel G. Bogden, United States Attorney; Civil Division, Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Susan P. Graber and Richard C. Tallman, Circuit Judges, and Jed S. Rakoff,^* Senior District Judge.

OPINION

RAKOFF, Senior District Judge:

Plaintiff-Appellant S. Rowan Wilson acquired a Nevada medical marijuana registry card. She then sought to purchase a firearm, but the firearms dealer knew that Wilson held a registry card. Consistent with a letter issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), the dealer refused to sell Wilson a firearm because of her registry card. Wilson sued, challenging the federal statutes, regulations, and guidance that prevented her from buying a gun. The district court dismissed Wilson's complaint, and Wilson appealed. We affirm.

BACKGROUND

Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812

. As a Schedule I controlled substance, marijuana, under federal law, is deemed to have “no currently accepted medical use in treatment[, and] [t]here is a lack of accepted safety for use of the ... substance under medical supervision.” Id. § 812(b)(1)(B) & (C).¹

This, however, is not the view of the State of Nevada. Although Nevada law criminalizes the possession of marijuana, see Nev. Rev. Stat. § 453.336(4)

, Nevada's Constitution was amended in 2000 to provide for medical marijuana use, see Nev. Const. art. IV, § 38. Under a statutory scheme enacted pursuant to this constitutional amendment, a holder of a valid marijuana registration ID card (a “registry card”) is exempt from state prosecution for marijuana-related crimes. Nev. Rev. Stat. § 453A.200. To acquire a registry card, an applicant must provide documentation from an attending physician affirming that the applicant has a chronic or debilitating medical condition, that the medical use of marijuana may mitigate the symptoms of the condition, and that the physician has explained to the applicant the risks and benefits of the medical use of marijuana. Id. § 453A.210(2)(a)(1)–(3). Cardholders must also comply with certain ongoing requirements, including limitations on the amount of marijuana they have at one time, id. § 453A.200(3)(b), as well as the requirement that they “[e]ngage in ... the medical use of marijuana in accordance with the provisions of this chapter as justified to mitigate the symptoms or effects of a person's chronic or debilitating medical condition,” id. § 453A.200(3)(a)

. A registry card is valid for one year and may be renewed annually by submitting updated written documentation from a physician. Id. §§ 453A.220(5), 453A.230(1)(b).

Turning to federal firearms provisions, under 18 U.S.C. § 922(g)(3)

no person “who is an unlawful user of or addicted to any controlled substance” may “possess ... or ... receive any firearm or ammunition.” In addition, it is unlawful for “any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... is an unlawful user of or addicted to any controlled substance.” Id. § 922(d)(3).

The ATF has promulgated regulations implementing § 922

and defining a person “who is an unlawful user of or addicted to any controlled substance.” See 27 C.F.R. § 478.11. The ATF has also developed Form 4473, which confirms eligibility for gun ownership under § 922. Prospective purchasers of firearms fill out Form 4473 when they seek to buy a firearm. Form 4473 includes Question 11.e., which asks “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” See Firearms Transaction Record Part I—Over-the-Counter (“Form 4473”), https://www.atf.gov/file/61446/download. If the answer is “yes,” the putative transaction is prohibited.

On September 21, 2011, the ATF issued an “Open Letter to All Federal Firearms Licensees” (the “Open Letter”) that stated the following:

[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 ... and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.

Open Letter to all Federal Firearms Licensees dated Sept. 21, 2011, https://www.atf.gov/files/press/releases/2011/09/092611-atf-open-letter-to-all-ffls-marijuana-for-medicinal-purposes.pdf.

It was against this regulatory and statutory context that appellant Wilson, on May 12, 2011, was issued a marijuana registry card by the State of Nevada. A few months later, on October 4, 2011, Wilson sought to purchase a firearm from Custom Firearms & Gunsmithing in the small community of Moundhouse, Nevada. As Wilson began to fill out Form 4473, the owner of the store, Frederick Hauser, stopped her from completing Question 11.e, which asked whether Wilson was an unlawful user of a controlled substance. Hauser explained that, because (as Hauser already knew) Wilson held a marijuana registry card, Wilson was deemed an unlawful user of a controlled substance and therefore someone to whom he could not sell a firearm without jeopardizing his federal firearms license. Wilson handed Hauser Form 4473 with Question 11.e. left blank. Hauser, who had received the ATF Open Letter three days earlier, nonetheless refused to sell her a firearm. Wilson alleges that Hauser's refusal to sell her a firearm was a direct consequence of Hauser's receipt of the Open Letter.

On October 18, 2011, Wilson filed the present action against the Government and, on December 17, 2012, filed a First Amended Complaint (the “FAC”). Wilson asserted five causes of action: (1) violation of the Second Amendment, (2) violation of the Equal Protection Clause of the Fifth Amendment, (3) violation of the procedural Due Process Clause of the Fifth Amendment, (4) violation of the substantive Due Process Clause of the Fifth Amendment, and (5) violation of the First Amendment. Wilson sought declarations that 18 U.S.C. § 922(g)(3)

and (d)(3), as well as all derivative regulations, such as 27 C.F.R. § 478.11, and the Open Letter, were unconstitutional. Wilson also sought a permanent injunction barring enforcement of § 922(g)(3) and (d)(3), all derivative regulations, and the Open Letter. Finally, Wilson sought compensatory and punitive damages, costs, fees, and expenses.

On January 31, 2013, the Government filed a motion to dismiss the FAC. In her opposition to Defendants' motion to dismiss, Wilson asserted that the Open Letter also violated the Administrative Procedure Act (“APA”). On March 11, 2014, the district court granted the Government's motion to dismiss the FAC. The district court also denied Wilson leave to amend the FAC to raise an APA claim, concluding that amendment would be futile. Wilson timely appealed.

DISCUSSION

We review de novo the district court's dismissal for failure to state a claim, and we review for abuse of discretion the denial of leave to amend. Dougherty v. City of Covina , 654 F.3d 892, 897 (9th Cir. 2011)

. We review de novo all constitutional rulings. Fournier v. Sebelius , 718 F.3d 1110, 1117 (9th Cir. 2013).

A.

As a preliminary matter, we address two jurisdictional issues:

First , as appellant's counsel conceded at oral argument, Wilson lacks standing to challenge 18 U.S.C. § 922(g)(3)

.² Standing requires, among other elements, a “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.” Lujan v Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). Section 922(g)(3) criminalizes possession or receipt of a firearm by a unlawful drug user or a person addicted to a controlled substance. Wilson has not alleged that she is an unlawful drug user or that she is addicted to any controlled substance. Nor has she alleged that she possessed or received a firearm. Accordingly, Wilson has not alleged that § 922(g)(3) has injured her in any way. For the same reasons, she also has not shown a “genuine threat of imminent prosecution” under § 922(g)(3), as is generally required of plaintiffs raising pre-enforcement challenges to criminal statutes outside the First Amendment context. San Diego Cty. Gun Rights Comm. v. Reno , 98 F.3d 1121, 1126 (9th Cir. 1996) (internal quotation marks omitted). Accordingly, we affirm on the ground of lack of standing the district court's dismissal of Wilson's claims concerning § 922(g)(3)

.

Wilson does have standing, however, to raise her remaining claims challenging 18 U.S.C. § 922(d)(3)

, 27 C.F.R. § 478.11, and the Open Letter. Wilson alleges that § 922(d)(3)'s ban on sales of...