Mack v. US

• Decision Date: 29 June 1994
• Docket Number: No. CV 94-113 TUC JMR.,CV 94-113 TUC JMR.
• Citation: 856 F. Supp. 1372
• Parties: Sheriff Richard MACK, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Arizona

856 F. Supp. 1372

Sheriff Richard MACK, Plaintiff, v. UNITED STATES of America, Defendant.

No. CV 94-113 TUC JMR.

United States District Court, D. Arizona.

June 29, 1994.

COPYRIGHT MATERIAL OMITTED

Stephen P. Halbrook, Fairfax, VA and David T. Hardy, Tucson, AZ, for plaintiff.

Frank W. Hunger, Asst. Atty. Gen., Janet Napolitano, U.S. Atty., Don B. Overall, Asst. U.S. Atty., Tucson, AZ and Dennis G. Linder, Sandra M. Schraibman, Michael Sitcov, Pamela J. Eppli, Robert Van Kirk, Dept. of Justice, Civ. Div., Washington, DC, for defendant.

Grant Woods, Atty. Gen., Rebecca White Berch, Sol. Gen., Thomas J. Dennis, Asst. Atty. Gen., Phoenix, AZ, for the State of Ariz.

ORDER & MEMORANDUM DECISION

ROLL, District Judge.

INTRODUCTION

Pending before the Court is plaintiff Graham County Sheriff Richard Mack's complaint for injunctive and declaratory relief against the enforcement of 18 U.S.C. § 922(s), commonly referred to as the Brady Act. For the reasons set forth below, the Court finds that subsection 922(s)(2) violates the Fifth and Tenth Amendments of the United States Constitution and will enter partial judgment in favor of the plaintiff on that basis.

The Brady Act

This lawsuit is a challenge to the constitutionality of public law 103-159, 107 Stat. 1536 (1993), codified at 18 U.S.C. § 922(s), which amends the Gun Control Act of 1968.¹ The statute, popularly known as the Brady Act, provides for a waiting period of five business days for purchases of handguns from federally-licensed gun dealers. 18 U.S.C. § 922(s)(1)(A)(ii). During that waiting period, the "chief law enforcement officer" ("CLEO") in each jurisdiction is required to "make a reasonable effort to ascertain ... whether receipt or possession of a handgun by the prospective buyer 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." 18 U.S.C. § 922(s)(2). The CLEO is defined as "the chief of police, the sheriff, or an equivalent officer or the designee of any such individual." 18 U.S.C. § 922(s)(8). The CLEO performs the check on the basis of a sworn statement that the prospective purchaser provides to the gun dealer and that the gun dealer in turn provides to the CLEO. The CLEO must destroy the sworn statement within 20 days of the date of the transfer unless the CLEO determines that the transfer would violate the law. 18 U.S.C. § 922(s)(6)(B). If the CLEO determines that the transfer would violate the law, the CLEO must, within 20 days of a request, provide reasons to the denied purchaser for that determination. 18 U.S.C. § 922(s)(6)(C).

The Brady Act also amends the penalty provision of the existing criminal code by providing that anyone who knowingly violates its provisions shall be subject to a fine, imprisonment, or both. 18 U.S.C. § 924(a)(5). CLEOs are specifically exempted from civil liability. 18 U.S.C. § 922(s)(7). It is the position of the Department of Justice that criminal sanctions shall not attach to any CLEO who violates any provision of the Brady Act. The Act does not so indicate, however.

The interim procedure outlined above is slated to be replaced by a national instant criminal background check system to be developed and maintained by the Department of Justice within five years from the date of enactment. 18 U.S.C. § 922(t)(1). The national system will consist of a computerized database of information gathered from both federal and state criminal records and will be accessible telephonically by federally-licensed gun dealers. Once the national data bank is operational, the duties of the CLEO will cease.

Plaintiff Richard Mack is the sheriff of Graham County. As such, he is the chief law enforcement officer of that jurisdiction. Graham County is a sparsely populated rural county of 4500 square miles inhabited by 28,000 residents. The Graham County Sheriff's Office is responsible for law enforcement in the county and consists of a staff of twelve officers, including the sheriff.

Mack has been advised by the Graham County Attorney that he is to enforce the provisions of the Brady Act until a court of competent jurisdiction rules otherwise. Mack alleges that the Brady Act will require him to search nine categories of records, these categories having varying degrees of accessibility. Mack maintains that his responsibilities under state law do not include conducting the type of investigations the Act mandates, and that he does not have the personnel or funds to do so.² He claims that his refusal to perform the duties imposed upon him by the Brady Act would subject him to criminal penalties.

Plaintiff Mack seeks a declaration that 18 U.S.C. § 922(s) is unconstitutional as beyond the powers delegated to Congress in Article 1, § 8 of the United States Constitution, contravenes the Tenth and Thirteenth Amendments, and is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Mack asks the Court to enter a permanent injunction against enforcement of the Brady Act.

Upon suggestion of counsel, the Court previously agreed to consolidate Mack's motion for preliminary injunction with his complaint for permanent relief. Also before the Court is defendant United States of America's motion to dismiss, which the parties have agreed may be ruled upon as well. In essence, these procedural mechanisms permit the Court to reach the merits of the case at this time. For the reasons set forth below, the Court finds section 922(s)(2), the provision of the Brady Act that requires local law enforcement officials to conduct a reasonable background search, exceeds Congress's Article I powers in violation of the Tenth Amendment. Additionally, that provision, enforceable by way of criminal sanctions, is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. However, the Court finds this sole offending provision to be severable from the balance of the Act, which survives judicial scrutiny.

DISCUSSION

Sheriff Mack's Standing to Sue

The first question posed by defendant United States of America is whether this plaintiff has standing to sue. The jurisdiction of the federal courts is limited by Article III, § 2 of the Constitution to adjudication of "cases or controversies." U.S. Const. art. III, § 2. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). To satisfy the core constitutional requirements for standing, a plaintiff must demonstrate that he or she has suffered, or is in imminent danger of suffering, a distinct and palpable personal injury fairly traceable to the defendant's allegedly unlawful conduct and such injury is likely to be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). A citizen's belief that the government is violating the Constitution does not constitute sufficient personal injury to satisfy the Article III standing requirements. Lujan v. Defenders of Wildlife, ___ U.S. ___, ___-___, 112 S.Ct. 2130, 2143-44, 119 L.Ed.2d 351 (1992).

In order to reach these claims, the Court must first determine whether the criminal penalty provisions of the Brady Act apply to Sheriff Mack. As recited above, the Brady Act amends the penalty provision of the existing criminal code by providing that "whoever knowingly violates subsection (s) or (t) of section 922 shall be fined not more than $1000.00, imprisoned for not more than 1 year, or both." 18 U.S.C. § 924(a)(5). Focusing on the word "whoever," the Court finds that Mack is unequivocally at risk of criminal sanctions should he decide to disobey the statute.

The United States disputes this interpretation and cites a Bureau of Alcohol Tobacco and Firearm's "Open Letter" to state and local law enforcement officials explaining the operation of the Brady Act. The Bureau of Alcohol, Tobacco, and Firearms is the federal agency responsible for implementing the Act. The Bureau interprets the mandatory provisions of the Act as merely requiring "some minimal effort to check commonly available records." Moreover, the letter states that it will be left to the discretion of the CLEO to establish enforcement standards based upon the jurisdiction's resources which, depending on the area, could entirely negate the research obligation. The Assistant Attorney General for the Office of Legal Counsel has officially opined that the penalties section of the Act do not apply to chief law enforcement officers.

An agency's interpretation of a statute it administers is entitled to deference only when the statute is silent or ambiguous on the issue presented.³ In determining whether Congress has "an intention on the precise question at issue," this Court employs "traditional tools of statutory construction." Chevron, U.S.A. v. NRDC, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2782 n. 9, 81 L.Ed.2d 694 (1984). In so doing, however, it should be emphasized that courts are the final authorities on issues of statutory construction. INS v. Cardoza-Fonseca, 480 U.S. 421, 447, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987); Natural Resources Defense Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir.1987). Moreover, it is "unclear whether an agency's interpretation of a criminal statute is entitled to deference under Chevron." United States v. Douglas, 974 F.2d 1046, 1048 n. 1 (1992) (emphasis in original).

It is basic that "as long as the statutory scheme is coherent and consistent, there is generally no need for a court to inquire beyond the plain language of the statute." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1029-31, 103 L.Ed.2d 290 (1989). The relevant provision of the Brady Act imposes liability upon those who knowingly violate its terms.⁴ Although ...