Frank v. U.S.
Citation | 78 F.3d 815 |
Decision Date | 14 March 1996 |
Docket Number | D,Nos. 138,506,s. 138 |
Parties | Samuel FRANK, Plaintiff-Appellee-Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant-Cross-Appellee. ockets 95-6019, 95-6023. |
Court | U.S. Court of Appeals — Second Circuit |
Judge Miner concurs in a separate opinion.
Mark B. Stern, Washington, D.C. (Sean A. Lev, Stephanie R. Marcus, Appellate Staff, Civil Division, Department of Justice, Washington, D.C.; Frank W. Hunger, Assistant Attorney General, Walter Dellinger, Assistant Attorney General, Richard L. Shiffrin, Deputy Assistant Attorney General, H. Jefferson Powell, Stuart M. Benjamin, Office of Legal Counsel, Washington, D.C.; Charles R. Tetzlaff, United States Attorney, Civil Division, Burlington, Vermont, of counsel and on the brief), for Appellant United States of America.
Andrea L. Gallitano, Barre, Vermont (David A. Otterman, Otterman and Allen, Barre, Vermont, of counsel), for Appellee Samuel Frank.
Randolph D. Moss, Washington, D.C. (Anthony G. Brown, James S. Campbell, Wilmer, Cutler & Pickering, Washington, D.C.; Dennis A. Henigan, Gail A. Robinson, Center to Prevent Handgun Violence, Legal Action Project, Washington, D.C., of counsel), filed a brief on behalf of Handgun Control, Inc., Center to Prevent Handgun Violence, International Association of Chiefs of Police, Major Cities Chiefs, National Organization of Black Law Enforcement Executives, Fraternal Order of Police, National Association of Police Organizations, National Troopers' Coalition, Police Executive Research Forum, and Federal Law Enforcement Officers' Association as Amici Curiae.
Before: CARDAMONE, MINER, and CALABRESI, Circuit Judges.
The United States appeals from a judgment entered August 2, 1994 in the United States District Court for the District of Vermont (Parker, C.J.) declaring unconstitutional that section of the Brady Handgun Violence Prevention Act of 1993 (Brady Act or Act) which requires background checks of potential handgun buyers, Pub.L. No. 103-159, § 102(a)(1), 107 Stat. 1536, 1537-38 (1993) (codified at 18 U.S.C. § 922(s)(2) (1994)). Plaintiff Samuel Frank, the Sheriff of Orange County, Vermont, cross-appeals from the district court's rulings that he lacked standing to challenge the Brady Act on Fifth Amendment grounds and that the background check provision is severable from the remainder of the Act.
Sheriff Frank does not argue that Congress lacks the power to regulate transactions involving handguns. Apart from federalism concerns, the commerce power of the United States is almost certainly broad enough to support such regulation. See United States v. Lopez, --- U.S. ----, ----, 115 S.Ct. 1624, 1630, 131 L.Ed.2d 626 (1995) (); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252, 258, 85 S.Ct. 348, 354-55, 358, 13 L.Ed.2d 258 (1964) ( ); H.R.Rep. No. 90-1577, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411 (); H.R.Rep. No. 103-344, 103d Cong., 1st Sess. 9-10 (1993), reprinted in 1993 U.S.C.C.A.N.1984, 1986-87 ( ).
Congress enacted the Brady Act in 1993 to address the national epidemic of handgun violence and death. See H.R.Rep. No. 103-344, 103d Cong., 1st Sess. 8 (1993), reprinted in 1993 U.S.C.C.A.N.1984, 1985. The Act amends title I of the Gun Control Act of 1968, Pub.L. No. 90-618, 82 Stat. 1213 ( ), which regulates firearms dealers and prohibits the transfer of firearms to specific categories of persons ranging from felons and "fugitive[s] from justice" to certain non-citizens. See 18 U.S.C. § 922(g). To put teeth into these prohibitions by identifying unlawful gun transactions before they occur, the Act imposes a background check system.
The Act operates in two phases. First, it requires the U.S. Department of Justice to develop a national instant background check system for firearms transfers, which is to be operational by the year 1999. See § 103(b), 107 Stat. at 1541; 18 U.S.C. § 922(t) (permanent provision). This instant check system requires no waiting period. See § 922(t)(1). Second, for gun purchases occurring before the national system is active, the Act contains an interim provision that imposes a five-day waiting period during which a background check is to take place. § 922(s)(2). This provision does not apply in States that require pre-purchase background checks, see § 922(s)(1)(D), or permits and pre-permit background checks for handgun purchases, see § 922(s)(1)(C).
It is this interim background check provision that is the subject of the instant litigation. Such checks are to be conducted by the "chief law enforcement officer" (CLEO) of the proposed purchaser's place of residence, see § 922(s)(2), which the Act defines as "the chief of police, the sheriff, or an equivalent officer or the designee of any such individual." § 922(s)(8). Before transferring a handgun, a licensed firearms dealer must obtain a statement from the purchaser (transferee). § 922(s)(1)(A)(i)(I). In practice, this means that a person seeking to buy a handgun must fill out a form prepared by the Bureau of Alcohol, Tobacco and Firearms (Bureau). See 27 C.F.R. § 178.102(a)(1) (1995) ( ). The dealer then transmits the form to the CLEO of the transferee's place of residence. § 922(s)(1)(A)(i)(III); 27 C.F.R. § 178.102(a)(3).
After a CLEO receives a copy of such a statement from a dealer, that official "shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General." § 922(s)(2). Two additional requirements are imposed on CLEOs in connection with these interim background checks. If the CLEO determines, on the basis of the background check, that a proposed transfer would be lawful, he or she must destroy the transferee's statement and related records. § 922(s)(6)(B)(i). If, however, the CLEO determines that a proposed transfer would be illegal, the CLEO must give written reasons if the would-be gun buyer so requests. See § 922(s)(6)(C).
The Bureau, which by delegation of the Secretary of the Treasury is responsible for the implementation of the Gun Control Act and the 1993 amendments, see 18 U.S.C. § 926 (1994), interprets the term "CLEO" as broad enough to encompass more than one law enforcement officer within any given geographical area. On January 21, 1994, before the effective date of the Brady Act, it sent an "Open Letter to State and Local Law Enforcement Officials" (Open Letter) explaining the requirements of the Act and suggesting that state and local officials in each locality work together to decide which agency would perform the CLEO functions. The Bureau now maintains a list of the responsible CLEOs in the jurisdictions within States covered by the five-day interim requirement of the Act and publishes changes in CLEO status in the Federal Register. See, e.g., 59 Fed.Reg. 37,532 (1994).
On January 1, 1994 Sheriff Frank, Commissioner A. James Walton, Jr. of the Vermont Department of Public Safety, and numerous other interested law enforcement officials attended a meeting at Norwich University in Northfield, Vermont organized by the Bureau and the Vermont Department of Public Safety to discuss the Act's implementation. At the meeting, Commissioner Walton told local officials that the State would be willing to appoint an officer of the State Police to discharge the CLEO duties in any jurisdictions in which local officials declined to do so. Sheriff Frank then indicated that he would perform that function in Orange County.
The Bureau subsequently placed the sheriff on its list as...
To continue reading
Request your trial-
Vermont Assembly of Home Health v. Shalala
...joins in the claim. Friends of the Earth v. Carey, 552 F.2d 25, 33-34 (2d Cir.1977). This standard was reinforced in Frank v. United States, 78 F.3d 815 (2d Cir.1996), rev'd on other grounds ___ U.S. ___, 117 S.Ct. 2501, 138 L.Ed.2d 1007 (1997), on remand 129 F.3d 273; to include a County s......
-
Gross v. Rell
...is not enough; "[i]ssues not sufficiently argued are in general deemed waived and will not be considered on appeal." Frank v. United States, 78 F.3d 815, 833 (2d Cir.1996), vacated on other grounds, 521 U.S. 1114, 117 S.Ct. 2501, 138 L.Ed.2d 1007 (1997). "[S]imply stating an issue does not ......
-
U.S. v. Wall
...18 U.S.C. § 922(g)(1)); United States v. Diaz-Martinez, 71 F.3d 946 (1st Cir.1995) (upholding 18 U.S.C. § 922(k)); Frank v. United States, 78 F.3d 815 (2d Cir.1996) (upholding 18 U.S.C. § 922(s)(2)); United States v. Hernandez, 85 F.3d 1023 (2d Cir.1996) (upholding 18 U.S.C. § 922(g)(1),(k)......
-
United States v. Siddiqui
...prejudice. As such, the argument is waived. See Tolbert v. Queens College, 242 F.3d 58, 76 (2d Cir.2001); see also Frank v. United States, 78 F.3d 815, 833 (2d Cir.1996), vacated on other grounds by,521 U.S. 1114, 117 S.Ct. 2501, 138 L.Ed.2d 1007 (1997). 13. These soft restraints, made of t......
-
Positive Education Federalism: the Promise of Equality After the Every Student Succeeds Act
...e.g., New York v. United States, 505 U.S. 144 (1992); Am. Trucking Ass'ns v. EPA, 175 F.3d 1027 (D.C. Cir. 1999); Frank v. United States, 78 F.3d 815 (2d Cir. 1995).20. See, e.g., Younger, 401 U.S. at 44; Condon v. Reno, 528 U.S. 141 (2000); West Virginia v. U.S. Dep't of Health & Human Ser......