Fraser v. Bureau of Alcohol, Tobacco, Firearms & Explosives

• Decision Date: 10 May 2023
• Docket Number: 3:22-CV-410
• Parties: JOHN COREY FRASER, et al., on behalf of themselves and all others similarly situated as a Class, Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

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JOHN COREY FRASER, et al., on behalf of themselves and all others similarly situated as a Class, Plaintiff,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al., Defendants.

No. 3:22-CV-410

United States District Court, E.D. Virginia, Richmond Division

May 10, 2023

MEMORANDUM OPINION

Robert E. Payne Senior United States District Judge.

This matter is before the Court on the DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT (ECF No. 21) and PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (ECF No. 28).

For the reasons set forth below, the DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT (ECF No. 21) will be denied and PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (ECF No. 28) will be granted.

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BACKGROUND

Factual Background^[1]

Plaintiffs John "Corey" Fraser, Joshua Clay McCoy, Tyler Dalton McGrath, and Ian Fletcher Shackley ("Plaintiffs") want to buy handguns. First Amended Complaint ("FAC") at ¶ 54 (ECF No. 18). All four men are over the age of 18 but less than 21. FAC at ¶¶ 41-44. Federal law prohibits them from purchasing handguns from Federal Firearm Licensed Dealers ("FFL") solely because of their age. FAC ¶ 49. They "are all law-abiding, responsible adult citizens who are otherwise qualified to own a handgun and but for the laws at issue, they would purchase a new handgun and handgun ammunition from a federally-licensed firearm dealer." Id.

In May 2022, Fraser attempted to purchase a Glock 19x handgun from an FFL. FAC ¶ 50. Because of Fraser's age and in accordance with federal law, the FFL refused to allow Fraser's putative purchase. FAC ¶¶ 50-51. The other three Plaintiffs-McCoy, McGrath, and Shackley-"also desire to purchase a similar handgun from an FFL" but "have not attempted to make such a purchase due to their awareness of the laws at issue and the inevitable futility of such an exercise as seen by Mr. Fraser." FAC ¶ 53. Plaintiffs are

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challenging the federal laws as violative of the Second Amendment (Count I) and the Due Process Clause of the Fifth Amendment (Count II). FAC at 13-14.

Also, they sue on behalf of other similarly situated members of a class defined as:

Natural persons and citizens of the United States of America who have attained the age of eighteen but who are not yet twenty-one and who have not been convicted of a felony, who are not fugitives from justice, have not been discharged from the Armed Forces under dishonorable conditions, are not unlawful users of or addicted to any controlled substances have not been adjudicated as mental defectives or committed to a mental institution, are not on parole or probation, are not under indictment or restraint

FAC ¶ 20. So, they are also requesting class certification. FAC ¶¶ 20-22.

Procedural Background

Fraser originally filed this action in June 2022 (ECF No. 1). The Court held an initial pre-trial conference on November 16, 2022. On the same day, Plaintiffs filed the FAC (ECF No. 18). On November 30, the Government filed a Motion to Dismiss the FAC (ECF No. 21). On December 15, 2022, the Plaintiffs filed a Motion for Summary Judgment (ECF No. 28) . There are two amicus briefs, one from the Brady and Gifford Law Center to Prevent Gun Violence ("Brady and Gifford Amicus Br.") (ECF No. 25) and one from Everytown for Gun Safety ("Everytown Amicus Br.") (ECF No. 26),

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both in support of the Government. The Court heard oral argument on February 8, 2023, Minute Entry (ECF No. 37), and thereafter ordered the parties to file replacement briefs and responses to address the issues as required by controlling law and to respond to questions raised during oral argument, ORDER (ECF No. 38).

Laws at Issue

Plaintiffs challenge the constitutionality of an interlocking collection of federal law and regulations that prevent 18-to-20-year-olds from purchasing handguns from FFLs. The legal prohibitions begin with 18 U.S.C. § 922(a) (1) (A) which specifies that anyone who "engage [s] in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive[s] any firearm in interstate or foreign commerce" is required to obtain a federal firearms license.

Then, 18 U.S.C. § 922(a)(5) specifies that only FFLs are allowed to engage in the interstate transfer of firearms and ammunition. And, it is:

unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver . . . any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the

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licensee knows or has reasonable cause to believe is less than twenty-one years of age.

18 U.S.C. § 922(b)(1) (emphasis added).

Plaintiffs also challenge several derivative regulations which mirror and implement those statutes. Those regulations are: 27 C.F.R. §§ 478.99 (b)(1); 478.102; 4.78.124(a), (c) (1)-(5), (f); and 478.96(b). FAC at 15.

In 1983, the Chief Counsel of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") issued a written opinion clarifying the Government's interpretation of those federal gun control statutes and regulations as applied to 18-to-20-year-olds. In pertinent part, that opinion states:

Federal firearms licensees are prohibited from selling or delivering handguns to person under the age of 21. However, a minor or juvenile is not prohibited by Federal law from possessing, owning, or learning the proper usage of firearms since any firearm that the parents or guardian desire the minor to have can be obtained by the parents or guardian.

"Purchasing, possession of firearms by minors," 23362.0 ATF (Dec. 5, 1983) ("ATF Opinion") at 1-2 (emphasis added) (ECF No. 22-1).

In sum, these federal laws and regulations preclude the "sale of handguns and handgun ammunition" to the Plaintiffs - indeed, anyone aged 18-to-20 is prohibiting from purchasing a handgun from an FFL. FAC ¶ 39. This is a blanket age-based restriction. The Government does not contend otherwise.

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DISCUSSION

I. The Standing Issue

The Government first posits that the Plaintiffs do not have standing to bring this action because they failed to plead a sufficient injury in fact. In Lujan v. Defenders of Wildlife, the Supreme Court of the United States articulated the three canonical, irreducible requirements for standing:

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized. . . and (b) actual or imminent, not conjectural or hypothetical . . . . Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

504 U.S. 555, 560-61 (1992) (emphasis added) (cleaned up) . The burden is on the Plaintiff (s) to prove standing. Id. at 561. The Government challenges only the first facet of the test-whether Plaintiffs have successfully pled an injury in fact.^[2]

Plaintiffs take the view that they have suffered an "injury in fact" because all of them wish to, but are prohibited from,

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purchasing handguns from FFLs. Compl. ¶¶ 50, 53-54. And, of course, Fraser has attempted to purchase a pistol from an FFL and has been turned down. The Government argues that this is not an injury because Plaintiffs can legally receive and possess handguns as gifts from parents or guardians. Gov. Memo in Supp. of Motion to Dismiss at 8.^[3]

For their part, the Plaintiffs acknowledge that, according to the ATF Opinion, 18-to-20-year-olds can obtain a new handgun from an FFL purchased by their parent or guardian. Pl. Replacement Br. at 24 (ECF No. 44) . But, they say, that is simply not the point. Eighteen-to-twenty-year-olds themselves cannot purchase the handguns from an FFL dealer. And, it is undisputed that parents or guardians may, for whatever reason, decide not to buy an 18-to-20-year-old a handgun. It is also undisputed that there is no recourse from such a parental refusal.

It is beyond question that the deprivation of a right conferred by the Constitution is an injury in fact. So, if, as they allege, the Plaintiffs have a right under the Second Amendment to buy handguns, and if the challenged laws and regulations

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infringe that right, they are injured. It is of no moment that a parent, as a matter of grace, might help the Plaintiffs to skirt the statutory and regulatory prohibition.

The Government's argument assumes that requiring an adult, law-abiding citizen to exercise the claimed right through, and at the grace of, a third-party is not an infringement of the alleged right. The Government, however, cited no decision that has gone so far. Nor do there appear to be any.^[4] And, indeed, in Brown v. Entertainment Merchants Association, 564 U.S. 786, 802 (2011) the Supreme Court rejected a similar argument on the merits in the First Amendment context, wherein the Supreme Court struck down a California law prohibiting the sale (but not the possession) of violent video games to children under the age of 18. Like this statute, the California law allowed parents (or aunts and uncles) to purchase and provide the games to children. Id. Yet, the Supreme Court found that this prohibition on the sale of games implicated children's First Amendment rights and proceeded to strike down the regulation under a strict scrutiny analysis. Id. at 805.

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Furthermore, the Government's argument is predicated on a limited, and erroneous reading, of the fundamental right...