Oefinger v. Zimmerman, Civ. A. No. 83-3013.

• Decision Date: 19 December 1984
• Docket Number: Civ. A. No. 83-3013.
• Citation: 601 F. Supp. 405
• Parties: Douglas Lawrence OEFINGER, t/d/b/a D.L.O.; and David A. Goodman, t/d/b/a American Armament, Plaintiffs, v. Leroy ZIMMERMAN, Attorney General of the Commonwealth of Pennsylvania; Robert L. Keutch, Executive Deputy Attorney General, Commonwealth of Pennsylvania, and Executive Director, Bureau of Criminal Law Enforcement, Lawrence Claus, Deputy Attorney General, Commonwealth of Pennsylvania; and Robert L. Colville, District Attorney of Allegheny County, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

601 F. Supp. 405

Douglas Lawrence OEFINGER, t/d/b/a D.L.O.; and David A. Goodman, t/d/b/a American Armament, Plaintiffs, v. Leroy ZIMMERMAN, Attorney General of the Commonwealth of Pennsylvania; Robert L. Keutch, Executive Deputy Attorney General, Commonwealth of Pennsylvania, and Executive Director, Bureau of Criminal Law Enforcement, Lawrence Claus, Deputy Attorney General, Commonwealth of Pennsylvania; and Robert L. Colville, District Attorney of Allegheny County, Defendants.

Civ. A. No. 83-3013.

United States District Court, W.D. Pennsylvania.

December 19, 1984.

John W. Murtagh, Pittsburgh, Pa., for plaintiff Oefinger.

Rochelle Friedman, Pittsburgh, Pa., for plaintiff Goodman.

Joel M. Kaufman, Asst. Dist. Atty., John S. Sherry, Pittsburgh, Pa., for Dist. Atty.

Jose Hernandez-Cuebas, Deputy Atty. Gen., Pittsburgh, Pa., for Commonwealth defendants.

OPINION

SIMMONS, District Judge.

I.

This action was originally filed December 2, 1983, under the Commerce Clause of the United States Constitution, by Plaintiffs Douglas Lawrence Oefinger, t/d/b/a DLO and David A. Goodman, t/d/b/a American Armament, against the Attorney General and his representatives and the District Attorney of Allegheny County, seeking injunctive relief. Frankford Arsenal was originally named as a party to this action, but on June 20, 1984, this Court granted the Motion of Frankford Arsenal for Voluntary Dismissal.

Plaintiff Douglas Lawrence Oefinger, t/d/b/a DLO hereinafter "Oefinger", is federally licensed and registered by the Secretary of the Treasury to engage in foreign and interstate commerce by importing and manufacturing firearms pursuant to the National Firearms Act of 1934, 26 U.S.C. §§ 5801 et seq., and the Gun Control Act of 1968, 18 U.S.C. §§ 921 et seq.

Plaintiff David A. Goodman, t/d/b/a American Armament hereinafter "Goodman", is likewise federally licensed pursuant to the National Firearms Act and the Gun Control Act to engage as a Class 3 dealer in Title II firearms (including machineguns short-barrelled shotguns and silencers), and is also licensed by the Commonwealth of Pennsylvania to sell firearms through a license issued by the Sheriff of Allegheny County, Pennsylvania. American Armament is also registered as the manufacturer's representative for the Plaintiff D.L.O.

The Original Complaint is based on the Plaintiff's contention that the Defendants have interfered with foreign and interstate commerce and have arrested or threatened to seize firearms which were distributed through interstate commerce in full compliance with the requirements of federal firearms laws.

Specifically, the Plaintiffs allege that the Defendants have seized firearms lawfully maintained as sales samples at the principal place of business of American Armament and have subjected Plaintiff Goodman to prosecution for the possession of said firearms. Such actions were allegedly taken by the Defendants pursuant to 18 Pa.C.S.A. § 908 of the Pennsylvania Crimes Code, which prohibits the dealing in or possession of certain "offensive weapons". Plaintiffs claim that Defendant Keuch has notified the Bureau of Alcohol Tobacco and Firearms that the Plaintiffs distribute "prohibited offensive weapons" under the Pennsylvania statute, 18 Pa.C. S.A. § 908, and as a result, the Bureau of Alcohol Tobacco and Firearms has not authorized the transfer of these firearms to and by the Plaintiffs in the Commonwealth of Pennsylvania.

Plaintiffs claim that the actions and threatened actions of the Defendants make it impossible for the Plaintiffs to do business in the Commonwealth of Pennsylvania as they are federally licensed to do, since they are threatened with arrest if they engage in their business and the seizure of their sales samples. As a result, the Plaintiffs claim that they are being deprived of their ability to freely engage in foreign and interstate commerce as they are federally licensed to do, and that they have suffered irreparable loss, damage and injury as a consequence of the actions of the Defendants. Plaintiffs seek an injunction restraining Defendants from prohibiting and interfering with interstate commerce and directing Defendants not to arrest, seize or threaten to arrest and seize the Plaintiff's and their goods, providing that the Plaintiffs are in full compliance with the laws and regulations of the United States Department of Treasury pertaining to commerce in firearms.

Plaintiff Goodman filed a first amended complaint, stating causes of action under the Commerce Clause (U.S. Constitution, Article I, § 8), the Supremacy Clause (U.S. Constitution, Article VI, clause 2), the Fourteenth Amendment, and the Civil Rights Acts, 42 U.S.C. §§ 1983, 1985 and 1988, and seeking monetary damages in addition to injunctive relief.

Plaintiff Goodman then filed a Second Amended Complaint on June 22, 1984, based on the Commerce Clause (U.S. Constitution, Article I, § 8), the Supremacy Clause (U.S. Constitution, Article VI, clause 2), the Fourteenth Amendment, and the Civil Rights Acts, 42 U.S.C. §§ 1983, 1985 and 1988. The Second Amended Complaint is based on Plaintiff's contention that the Supremacy Clause preempts interstate commerce as it relates to licensing to engage in foreign and interstate commerce in firearms, and that therefore, the Commonwealth of Pennsylvania may not impose criminal or civil sanctions against Plaintiff or interfere with his business.

Goodman also claims that Defendants have conspired to deny the Plaintiff of the equal protection of the law by causing the arrest of Plaintiff Goodman and threatening his re-arrest, and have permitted other arms dealers similarly situated to Plaintiff to engage in the same activities which Plaintiff is prohibited from engaging in by Defendants with respect to 18 Pa.C.S.A. § 908, such activity constituting a selective enforcement of the laws of the Commonwealth of Pennsylvania.

Plaintiff additionally claims that Defendants agreed among themselves that the Attorney General would investigate Plaintiff's activities, seize his firearms and institute a criminal complaint against Plaintiff when they knew or should have known that such investigation was not within their jurisdiction under the Commonwealth Attorney's Act, 71 P.S. § 732-101 et seq. The Defendant Colville is claimed to have colluded with the Attorney General in the wrongful investigation of the Plaintiff. Such acts of conspiracy are alleged to have been undertaken by Defendants acting under color of state law.

Plaintiff claims actual and impending irreparable loss, injury and damages to business and goodwill, and seeks an injunction restraining the Defendants from enforcing 18 Pa.C.S.A. § 908, restraining the Defendants from arresting, seizing or threatening to arrest or seize, restraining Defendants from selective enforcement of the laws of the Commonwealth of Pennsylvania, a declaratory judgment that the Plaintiff has the right to engage in the interstate commerce of firearms without prosecution or threat of prosecution, and money damages, costs and fees.

The Second Amended Complaint is applicable to Plaintiff Goodman only. At a June 20, 1984 conference, Plaintiff Oefinger's attorney indicated to the Court on the record that Plaintiff Oefinger would continue to rely on the Original Complaint. (Tr. at 18, 6-20-84).

All of the Defendants have filed Answers to the original and amended complaints, and seek dismissal of the complaints for various reasons, among them failure to state a claim for relief. Numerous briefs have been submitted and extensive oral arguments have been heard concerning the motions of the Defendants to dismiss this above-captioned action. From all that has been submitted thus far, it appears to this Court that the crucial issue to be decided by this Court is whether the federal government has preempted interstate commerce in firearms, as Plaintiffs allege it has, and whether the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 908, which makes it an offense to make, repair, sell, deal in, use or possess any "offensive weapon", is in direct and positive conflict with the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. Since the thrust of both the original complaint (Oefinger) and the amended complaint (Goodman), is that the Defendants have impermissibly interfered with interstate commerce in an area which has been preempted by Congress, it appears that the resolution of this issue will determine whether or not this action can proceed.

If the Pennsylvania statute is in direct and positive conflict with the federal legislation, then the state statute must yield to the federal right to regulate this particular aspect of interstate commerce. However, if the state statute is not in direct and positive conflict on its face or as applied, then Plaintiffs would not be entitled to their requested injunctive relief, since there would be no impermissible interference with interstate commerce. Further, any actions of the Defendant taken pursuant to that state statute, if the state statute is not in conflict with the federal legislation, could not then be the basis for Plaintiff's claim of a civil rights violation.

II.

This case involves the interplay of three legislative enactments, the National Firearms Act, the Gun Control Act of 1968, and the Pennsylvania Crimes Code section pertaining to prohibited offensive weapons. The relevant provisions and backgrounds of these enactments are especially important to the resolution of this case.

A. The National Firearms Act

The National Firearms Act of 1934 sets forth a comprehensive scheme assessing taxes on importers, manufacturers, and dealers in firearms and providing for a registration scheme for the same. The Act assesses an occupational tax on all importers, manufacturers, and dealers, and provides for the payment of a transfer tax. 26 U.S.C. §§ 5801, 5811. The transfer of possession of a firearm is subject to the approval of the Secretary of the Treasury, providing...