Electrolert Corp. v. Barry

• Decision Date: 19 June 1984
• Docket Number: No. 83-1986,83-1986
• Citation: 737 F.2d 110,237 U.S. App. D.C. 328
• Parties: ELECTROLERT CORPORATION, et al., Appellants v. Marion S. BARRY, Jr., Mayor of the District of Columbia, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 110

737 F.2d 110

237 U.S.App.D.C. 328

ELECTROLERT CORPORATION, et al., Appellants v. Marion S. BARRY, Jr., Mayor of the District of Columbia, et al.

No. 83-1986.

United States Court of Appeals District of Columbia Circuit.

Argued April 11, 1984.

Decided June 19, 1984.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 82-02674).

Elliot M. Mincberg, Washington, D.C., with whom Francis L. Casey, Jr., Edward W. Hummers, Jr., and Leonard R. Raish, Washington, D.C., were on the brief, for appellants.

Karen J. Krueger, Asst. Corp. Counsel, with whom Charles L. Reischel, Deputy Corp. Counsel, and Joyce M. Notarius, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellees.

Before WRIGHT, SCALIA and FRIEDMAN, ^* Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Appellants filed an action in United States District Court on September 20, 1982 challenging the constitutionality of a District of Columbia ordinance banning the sale, use, or "possession in a motor vehicle" of "any device designed to detect or counteract police radar." D.C. Commissioner's Order 61-2606, reprinted in D.C.Pol.Reg., Art. 25, Sec. 16, 18 D.C.M.R. Sec. 736 (1981). ¹ After some preliminary skirmishing, the District Court granted summary judgment to appellees. We here affirm the District Court's order.

I. BACKGROUND

Appellants include a manufacturer and a retailer of radar-detecting devices for use in motor vehicles, as well as George Sadler, a Maryland resident who frequently travels interstate by automobile. In one such journey through the District, his radar detector was confiscated and he was fined $50 for violating the Commissioner's Order banning radar detectors (hereinafter referred to simply as "the Order"). Appellants brought this action against the District of Columbia, the Mayor, and the Chief of Police. They sought issuance of a declaratory judgment that the Order was unconstitutional on two grounds.

First, appellants alleged that, because no other states banned mere possession of radar detectors, the Order was an impermissible burden on interstate commerce. Second, they alleged that the Order was overbroad and vague in violation of the Due Process Clause. ² In addition to the declaratory judgment, appellants sought an injunction against any attempt by appellees to enforce the Order and a court order directing appellees to return Mr. Sadler's $50 and his radar detector. After discovery was completed, the District Court granted appellees' motion for summary judgment on the ground that appellants had failed to state a claim on which relief could be granted.

II. COMMERCE CLAUSE

Appellants wisely do not argue that a statute banning the use of radar detectors would violate the Commerce Clause. Rather, they focus their attack on the fact that, although two states seem to prohibit the use of radar detectors, the District is apparently the only jurisdiction in the country that bans the mere possession of radar detectors. Appellants argue that owners of radar detectors are thus at risk whenever they travel through the District--even if their detectors are disconnected or even if they are stored in a vehicle's back seat or in the trunk. This, according to appellants, is an impermissible burden on interstate commerce. It is therefore allegedly subject to the standard dormant Commerce Clause balancing test, in which the "weight and nature of the state regulatory concern" is viewed "in light of the extent of the burden imposed on the course of interstate commerce." Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 441, 98 S.Ct. 787, 794, 54 L.Ed.2d 664 (1978).

Appellants object to the grant of summary judgment because they claim to be able to introduce evidence demonstrating the ineffectiveness of banning radar detectors in promoting enforcement of highway speed limits. They also claim to be able to prove that the Order puts a very heavy burden on interstate commerce. Therefore, appellants argue, at the very least application of each leg of the balancing test raises factual issues that can only be resolved at trial on the merits. It would follow that summary judgment in this case is inappropriate.

Because we believe that appellants misconceive the scope of our review in dormant Commerce Clause cases of this type, we have no difficulty in affirming the District Court's disposition of this case. The Supreme Court itself has admitted that it has "employed various tests to express the distinction between permissible and impermissible impact upon interstate commerce" and that "experience teaches that no single conceptual approach identifies all of the factors that may bear on a particular case." Raymond Motor Transportation, Inc. v. Rice, supra, 434 U.S. at 440-441, 98 S.Ct. at 793-794 (footnotes omitted). However, two principles emerge with unmistakable clarity from the cases.

First, state laws are most apt to run afoul of the dormant Commerce Clause when they are based on protectionist rationales, see, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978) ("where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected"); Pike v. Bruce Church, Inc., 397 U.S. 137, 145, 90 S.Ct. 844, 849, 25 L.Ed.2d 174 (1970) ("the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere"), or when they disproportionately burden economic activities conducted in sister states, see, e.g., Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 675-676, 101 S.Ct. 1309, 1318-1319, 67 L.Ed.2d 580 (1981) (opinion of Powell, J.) ("Less deference to the legislative judgment is due * * * where the local regulation bears disproportionately on out-of-state residents and businesses."); Southern Pacific Co. v. Arizona, 325 U.S. 761, 767-768 n. 2, 65 S.Ct. 1515, 1519 n. 2 (1945) ("the Court has often recognized that to the extent that the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected"). Of course, state regulations with protectionist features have not uniformly been held invalid. Nonetheless, regulations that benefit local interests at the expense of out-of-state interests are a particular concern of the analysis under the dormant Commerce Clause.

A second point that emerges from the cases is that state safety regulations are accorded particular deference in Commerce Clause analysis. See, e.g., South Carolina State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 189, 58 S.Ct. 510, 515, 82 L.Ed. 734 (1938) (noting that highway safety regulations that burden or impede commerce are nonetheless constitutionally valid); Raymond Motor Transportation, Inc. v. Rice, supra, 434 U.S. at 443, 98 S.Ct. at 795 ("[i]n no field has * * * deference to state regulation been greater than that of highway safety"). Most notably, five Justices have recently agreed that statutes based on nonillusory safety benefits are not subject to the dormant Commerce Clause balancing test. See Kassel v. Consolidated Freightways Corp., supra, 450 U.S. at 681 n. 1, 101 S.Ct. at 1321 n. 1 (Brennan, J., joined by Marshall, J., concurring in the judgment) ("in the field of safety * * * the role of the courts is not to balance asserted burdens against intended benefits," but rather "once the court has established that the intended safety benefit is not illusory, insubstantial, or nonexistent, it must defer to the State's lawmakers on the appropriate balance to be struck against other interests"); id. at 692 n. 4, 101 S.Ct. at 1327 n. 4 (Rehnquist, J., joined by Burger C.J., and Stewart, J., dissenting) ("courts in Commerce Clause cases do not sit to weigh safety benefits against burdens on commerce when the safety benefits are not illusory"); see also id. at 670, 101 S.Ct. at 1316 (opinion of Powell, J.) (noting "strong presumption of validity" that attaches to safety regulations).

Appellants do not argue--nor could they--that the Order challenged here is overtly protectionist or even has an effect that favors in-state commerce. All sale of these devices within the District is banned. Moreover, the Order was clearly...