Coalition of New Jersey Sportsmen v. Florio

• Citation: 744 F. Supp. 602
• Decision Date: 15 August 1990
• Docket Number: Civ. No. 90-2992(GEB).
• Parties: COALITION OF NEW JERSEY SPORTSMEN, et al., Plaintiffs, v. James J. FLORIO, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

744 F. Supp. 602

COALITION OF NEW JERSEY SPORTSMEN, et al., Plaintiffs, v. James J. FLORIO, et al., Defendants.

Civ. No. 90-2992(GEB).

United States District Court, D. New Jersey.

August 15, 1990.

Evan F. Nappen, Eatontown, N.J., for plaintiffs.

Robert J. Del Tufo, Atty. Gen. of N.J., Benjamin Clarke (argued), Deputy Atty. Gen., Dept. of Law & Public Safety, Trenton, N.J., for defendants.

OPINION

GARRETT E. BROWN, Jr., District Judge.

Plaintiffs in this action¹ have brought suit against the Governor of New Jersey, the Attorney General of New Jersey, the Superintendent of the New Jersey State Police, and the Prosecutor of Mercer County as prosecutor and as a representative of the class of county prosecutors in the State of New Jersey, seeking to strike down as unconstitutional portions of New Jersey's newly amended gun control law, N.J.S.A. 2C:39-1 et seq. The matter is now before the Court on a motion by plaintiffs for a preliminary injunction enjoining enforcement of the purportedly unconstitutional provisions. The Court has had the benefit of able, thorough, and helpful briefing and oral argument by counsel for both sides.

Plaintiffs raise three challenges to the statute. First, they challenge the newly enacted ban on large capacity magazines, N.J.S.A. 2C:39-3(j) (banning possession) and N.J.S.A. 2C:39-9(h) (banning manufacture, transport, shipment, sale, or disposal).² They contend that the law unconstitutionally criminalizes the possession or transfer of large capacity magazines without providing owners of such magazines an opportunity to conform with the new law before being subjected to its penalties. Second, they argue that the ban on large capacity magazines and regulation of semiautomatic, "assault firearms," N.J.S.A. 2C:39-5(f) (possession) and N.J.S.A. 2C:39-9(g) (manufacture, transport, shipment, sale or disposal), are preempted by federal law to the extent these provisions prohibit the sale of air guns and "traditional" B-B guns, in violation of 15 U.S.C. § 5001(g)(ii). Third, they contend that federal law providing for the interstate transport of unloaded, inaccessible firearms, 18 U.S.C. § 926A, preempts the newly amended law to the extent that the new law exposes to criminal prosecution people who transport weapons through New Jersey in accordance with the federal law.

The Attorney General has cross-moved for dismissal of all the above claims for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). In the alternative, and as to the first claim only, the Attorney General asks this Court to abstain under the doctrine enunciated in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Attorney General concedes that, under the Third Circuit's decision in United Servs. Auto. Ass'n v. Muir, 792 F.2d 356 (3d Cir.1986), Pullman abstention is inappropriate when a federal court is faced with questions of federal preemption under the Supremacy Clause. See id. at 363-64.

Before this Court may issue a preliminary injunction, plaintiffs must show a reasonable probability of success on the merits, and that they will suffer irreparable injury pendente lite if relief is not granted. The Court also must consider the possibility of harm to other interested persons from the grant or denial of the injunction, and the public interest. In re Arthur Treacher's Franchise Litigation, 689 F.2d 1137, 1143 (3d Cir.1982). For the following reasons, the Court will abstain as to plaintiffs' first claim, grant preliminary injunctive relief on the second claim, and dismiss the third.

I. THE LARGE CAPACITY MAGAZINE BAN

New Jersey's newly enacted ban on the possession, sale, manufacture, disposal, shipment, or transport of large capacity magazines became effective on March 30, 1990, the date Governor Florio signed the bill into law. Plaintiffs argue that, with the stroke of a pen, previously law-abiding owners of such magazines instantly became criminals without being given an opportunity lawfully to conform their conduct with the new law. Plaintiffs seek a preliminary injunction to protect themselves from the threat of prosecution.

The Attorney General contends that the immediate effective date of the large capacity magazine ban does not render the provision constitutionally infirm because New Jersey's voluntary surrender statute provides an opportunity for owners of such magazines lawfully to turn in such items without fear of prosecution. The statute provides:

No person shall be convicted of an offense under this chapter for possessing any firearms, weapons, destructive devices, silencers or explosives, if after giving written notice of his intention to do so, including the proposed date and time of surrender, he voluntarily surrendered the weapon, device, instrument or substance in question to the superintendent or to the chief of police in the municipality in which he resides, provided that the required notice is received by the superintendent or chief of police before any charges have been made or complaints filed against such person for the unlawful possession of the weapon, device, instrument or substance in question and before any investigation has been commenced by any law enforcement agency concerning the unlawful possession. Nothing in this section shall be construed as granting immunity from prosecution for any crime or offense except that of the unlawful possession of such weapons, devices, instruments or substances surrendered as herein provided.

N.J.S.A. 2C:39-12.

Plaintiffs respond that the voluntary surrender statute is inadequate for three alternative reasons: 1) magazines are neither "firearms, weapons, destructive devices, silencers or explosives," the only items covered by the statute; 2) even if magazines were considered "weapons,"³ the voluntary surrender provisions would immunize owners only from possessory offenses, not manufacture, shipment, disposal, transport, or sale, which are proscribed under N.J. S.A. 2C:39-9(h); and 3) even if owners of large capacity magazines could turn them in without fear of prosecution, the uncompensated voluntary surrender of such property would result in an unconstitutional "taking" under the Fifth Amendment.

Before reaching the merits of these arguments, however, the Court first must consider whether to abstain. Although, as a general rule, the federal courts are bound to adjudicate cases within their jurisdiction, Pullman abstention is appropriate when "questions under both state law and the federal constitution are present," and abstention forwards the policies of "promoting comity with the state courts and ensuring the smooth functioning of the federal judiciary." Hughes v. Lipscher, 906 F.2d 961, 967 (3d Cir.1990). Pullman abstention also is appropriate where the state court's resolution of an unsettled question of state law may moot or change the analysis of the federal constitutional issue. Georgevich v. Strauss, 772 F.2d 1078, 1089 (3d Cir.1985) (en banc), cert. denied, 475 U.S. 1028, 106 S.Ct. 1229, 89 L.Ed.2d 339 (1986).

Although application of Pullman abstention is discretionary with the Court, the Third Circuit requires three special circumstances as prerequisites:

(1) Uncertain issues of state law underlying the federal constitutional claims brought in the district court;

(2) Amenability of the state law issues to a state court interpretation that would obviate the need for, or substantially narrow, adjudication of the federal claims; and

(3) Disruption of important state policies through a federal court's erroneous construction of state law.

Hughes, at 968. Once these elements are present, a district court must next determine "whether abstention is appropriate, considering such factors as the availability of an adequate state remedy, the length of time the litigation has been pending, and the potential impact on the parties from the delay in seeking a state ruling." Id.

All the factors in favor of Pullman abstention are present in regard to plaintiffs' claim regarding the large capacity magazine ban. First, the uncertain issue of state law underlying the constitutional claim is the interaction between the voluntary surrender statute and the ban on large capacity magazines. The New Jersey courts have not had the opportunity to interpret either statute, alone or in combination. Second, state court interpretation of these statutes will materially alter this Court's constitutional analysis. If the state court interprets the voluntary surrender statute as not providing a remedy for large capacity magazine owners, this Court must consider whether the statute is constitutionally deficient for insufficient notice. If the state court interprets the voluntary surrender statute to the contrary, this Court must determine whether such a remedy effects an unconstitutional taking, rather than a valid exercise of the police power. Third, gun control and regulation is an important state policy that would be disrupted if this Court were to construe state law erroneously.

Other factors also favor abstention at this time. At oral argument, defendants indicated that they will move promptly to seek a decision in the state courts, and there is no indication that those courts would not promptly and adequately resolve the questions presented. The present action has been pending for only a few weeks, and the Court does not foresee any potential adverse impact on the parties from a reasonable delay in seeking a state ruling. The Attorney General has taken the position in open court that N.J.S.A. 2C:39-12 does in fact provide for the voluntary surrender of large capacity magazines and this Court has no reason to anticipate that the chief law enforcement officer of the State of New Jersey would change his position and authorize prosecution of those individuals who voluntarily surrendered such magazines for the possession thereof. Moreover, any claimed uncompensated "taking" as a result of...