Fraternal Order of Police v. U.S., No. 97-5304

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSTEPHEN F. WILLIAMS
Citation152 F.3d 998
PartiesFRATERNAL ORDER OF POLICE, Appellant, v. UNITED STATES of America, Appellee.
Docket NumberNo. 97-5304
Decision Date12 November 1998

Page 998

152 F.3d 998
332 U.S.App.D.C. 49
FRATERNAL ORDER OF POLICE, Appellant,
v.
UNITED STATES of America, Appellee.
No. 97-5304.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 15, 1998.
Decided Aug. 28, 1998.
Rehearing Granted November 12, 1998.

Page 1000

[332 U.S.App.D.C. 51] Appeal from the United States District Court for the District of Columbia (No. 97cv00145).

William J. Friedman, IV argued the cause and filed the briefs for appellant.

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, and Mark B. Stern, Attorney, U.S. Department of Justice.

Before: WILLIAMS, GINSBURG and RANDOLPH, Circuit Judges.

STEPHEN F. WILLIAMS, Circuit Judge:

The Fraternal Order of Police, an association of law enforcement officers, brought suit challenging certain provisions of the 1996 amendments to the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. The Order alleged that these provisions exceeded Congress's power under the Commerce Clause, and also that they ran afoul of the Second, Fifth, and Tenth Amendments. The district court granted summary judgment for the government. Finding that the Order has standing to raise its claim under the equal protection component of Fifth Amendment due process, see Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954), and finding merit in that claim, we reverse.

* * *

As relevant here, the essence of the 1996 amendments was to (1) extend a pre-existing criminalization of firearms possession by persons convicted of domestic violence felonies to persons convicted of domestic violence misdemeanors; and (2) to withhold from the misdemeanants--but not the felons--an exception for firearms issued for the use of any state or locality (the so-called "public interest exception"). The Gun Control Act, now as before, also applies to anyone who supplies a person with a firearm in the face of this and related proscriptions.

The amendments bringing about this change are as follows: Section 922(d)(9) of Title 18 makes it illegal to provide a firearm to any person "convicted in any court of a misdemeanor crime of domestic violence"; § 922(g)(9) prohibits such misdemeanants from possessing or receiving firearms. Section 922(g)(9) limits its scope to possession in or affecting interstate commerce, or firearms transported in interstate commerce; § 922(d)(9) contains no similar limitation. Relief from the disability thus imposed is governed in part by § 925(a)(1), which provides that the prohibitions of § 922 generally do not apply to firearms issued for the use of "any State or any department, agency, or political subdivision thereof." Section 925(a)(1) explicitly excludes §§ 922(d)(9) and 922(g)(9) from this public interest exception.

Sections 922(d)(9) and (g)(9) thus forbid the states to arm those members of their police forces, militias, or National Guards who possess disabling misdemeanor convictions; they criminalize both the officers' acceptance

Page 1001

[332 U.S.App.D.C. 52] of the states' firearms and the provision of the firearms by any person, including (presumably) any state's representative. The disability operates regardless of the date of the conviction. So the new bans can be expected to affect a significant number of current police officers. The Joint Appendix contains several newspaper articles recounting instances in which officers were required to turn in their guns, and it was in view of this prospect--though not solely on behalf of members directly threatened with the firearm disability--that the Order brought suit.

* * *

The threshold question on appeal is whether the Order has standing to pursue its claims. We find it necessary to address only the standing claim based on the interests of members who are chief law enforcement officers ("CLEOs"). Although the Order's briefs make vague allusions to some legal theories that would entail broader relief than is suitable for the Equal Protection claim brought by the Order on behalf of the CLEOs, they fail to develop such theories. So there is no need to assess the standing possibly underlying such inchoate claims.

For a party to establish the sort of "case" or "controversy" over which Article III creates federal jurisdiction, it must satisfy the now familiar tripartite requirements of "(1) an injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood that the injury will be redressed by a favorable decision." United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). An association such as the Order, which alleges no injury to itself as an organization, may, according to Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), sue on behalf of its members if it can show that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Id. at 343, 97 S.Ct. 2434. The first of these elements ensures the presence of a case or controversy and is constitutional in nature. See Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). It is the only one the government contests and the only one with respect to which we can see any difficulty.

Several CLEOs allege that enforcement of the 1996 amendments conflicts with their obligations under state law. Although there is no indication that this is true in the hard core sense of federal law requiring any CLEO to do something state law forbids (or vice versa), it seems true in the broader practical sense that if a CLEO complies with the domestic violence misdemeanor provisions, he will find himself, in any enforcement activity requiring firearms, unable to use officers who fall under the federal ban, even where in his judgment it is highly desirable or even critical to use such officers. The government presents no reason to think that this interference should not qualify as an Article III injury, and we can see none.

There remains the issue of whether the CLEOs would have "prudential standing," i.e., whether the interests they seek to advance are "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Ass'n of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). 1 As to the equal protection claim (the only claim it is necessary to reach), of course, the CLEOs are not members of the class that the statute is said to illegally disadvantage--law officers convicted of domestic violence misdemeanors, who are barred from the benefits of the public interest exception (as opposed to law officers convicted of domestic violence felonies,

Page 1002

[332 U.S.App.D.C. 53] who are not). But where a person is effectively used by the government to implement a discriminatory scheme, he may, as we held in...

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    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 11, 2003
    ...the rights of student athletes against whom they are allegedly "forced" to discriminate. See Fraternal Order of Police v. United States, 152 F.3d 998, 1002 (D.C.Cir.1998); Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350 Plaintiffs submit that their alumni and spectator members suff......
  • Pennsylvania Psychiatric v. Green Spring Health, No. 00-3403.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 6, 2002
    ...of Appeals for the District of Columbia granted an organization derivative authority to assert the third-party claims of its members. 152 F.3d 998, 1002 (D.C.Cir.1998) ("[T]he presence of [the chief law enforcement Page 292 as members gives the Order standing to make these [third-party] cla......
  • National Wrestling Coaches Ass'n v. Dept. of Educ., No. 03-5169.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 14, 2004
    ...to the extent that the victims of the alleged discrimination themselves have standing. See Fraternal Order of Police v. United States, 152 F.3d 998, 1002 Page 945 ("[W]here a person is effectively used by the government to implement a discriminatory scheme, he may ... attack that scheme by ......
  • Silveira v. Lockyer, No. 01-15098.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 2002
    ...considered or otherwise, on the nature of the right established by the Second Amendment. See Fraternal Order of Police v. United States, 152 F.3d 998, 1002 (D.C.Cir.1998) ("Despite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment 12. Since H......
  • Request a trial to view additional results
27 cases
  • National Wrestling Coaches v. U.S. Dept. of Educ, No. CIV.02-0072 EGS.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 11, 2003
    ...the rights of student athletes against whom they are allegedly "forced" to discriminate. See Fraternal Order of Police v. United States, 152 F.3d 998, 1002 (D.C.Cir.1998); Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350 Plaintiffs submit that their alumni and spectator members suff......
  • Pennsylvania Psychiatric v. Green Spring Health, No. 00-3403.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 6, 2002
    ...of Appeals for the District of Columbia granted an organization derivative authority to assert the third-party claims of its members. 152 F.3d 998, 1002 (D.C.Cir.1998) ("[T]he presence of [the chief law enforcement Page 292 as members gives the Order standing to make these [third-party] cla......
  • National Wrestling Coaches Ass'n v. Dept. of Educ., No. 03-5169.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 14, 2004
    ...to the extent that the victims of the alleged discrimination themselves have standing. See Fraternal Order of Police v. United States, 152 F.3d 998, 1002 Page 945 ("[W]here a person is effectively used by the government to implement a discriminatory scheme, he may ... attack that scheme by ......
  • Silveira v. Lockyer, No. 01-15098.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 2002
    ...considered or otherwise, on the nature of the right established by the Second Amendment. See Fraternal Order of Police v. United States, 152 F.3d 998, 1002 (D.C.Cir.1998) ("Despite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment 12. Since H......
  • Request a trial to view additional results

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