Olympic Arms v. Magaw

• Decision Date: 31 March 2000
• Docket Number: No. 95-CV-76357-DT.,95-CV-76357-DT.
• Citation: 91 F.Supp.2d 1061
• Parties: Olympic ARMS; Calico Light Weapons Systems; D.C. Engineering, Inc.; Ammo Dump; and Glenn Duncan, Plaintiffs, v. John W. MAGAW, Director, Bureau of Alcohol, Tobacco and Firearms; and United States of America, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 1061

91 F.Supp.2d 1061

Olympic ARMS; Calico Light Weapons Systems; D.C. Engineering, Inc.; Ammo Dump; and Glenn Duncan, Plaintiffs, v. John W. MAGAW, Director, Bureau of Alcohol, Tobacco and Firearms; and United States of America, Defendants.

No. 95-CV-76357-DT.

United States District Court, E.D. Michigan, Southern Division.

March 31, 2000.

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Gerald W. Pergande, Pergande & Bleau, Bay City, James H. Warner, Assistant General Counsel, National Rifle Association, Fairfax, VA, David Hardy, Tucson, AZ, David M. McCleary, Lansing, for plaintiffs.

Frank W. Hunger, Assistant Attorney General, Saul A. Green, United States Attorney, Michael Hluchaniuk, Assistant United States Attorney, Dennis G. Linder, Director, Federal Programs Branch, Sandra M. Schraibman, Andrea Newmark, Martha E. Rubio, Washington, D.C., Patricia Milgram, Bureau of Alcohol, Tobacco and Firearms, Office of the Chief Counsel, Washington, D.C., of counsel, for defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

CLELAND, District Judge.

I. Background

A. The Statute at Issue

Plaintiffs filed this lawsuit in February 1995, challenging the constitutionality of Title XI of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (1994) ("Crime Control Act" or "Semiautomatic Assault Weapons Ban" or "the ban"). The Crime Control Act amended the Gun Control Act of 1968, 18 U.S.C. §§ 921-930 ("Gun Control Act"). The 1994 Amendments, which went into effect September 13, 1994, make criminal for a ten-year period a future "manufacture, transfer, or possess[ion] of semiautomatic assault weapon[s]," 18 U.S.C. § 922(v)(1), and "transfer or possess[ion][of] large capacity ammunition feeding device[s]." 18 U.S.C. § 922(w)(1).

Congress defined a "semiautomatic assault weapon" in 18 U.S.C. § 921(a)(30):

(A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as—

(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);

(ii) Action Arms Israeli Military Industries UZI and Galil;

(iii) Beretta Ar70 (SC-70);

(iv) Colt AR-15;

(v) Fabrique National FN/FAL, FN/LAR, and FNC;

(vi)SWD M-10, M-11, M-11/9, and M-12;

(vii) Steyr AUG;

(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and

(ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12;

(B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of—

(i) a folding or telescopic stock;

(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;

(iii) a bayonet mount;

(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

(v) a grenade launcher;

(C) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of—

(i) an ammunition magazine that attaches to the pistol outside of the pistol grip;

(ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;

(iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;

(iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and

(v) a semiautomatic version of an automatic firearm; and

(D) a semiautomatic shotgun that has at least 2 of—

(i) a folding or telescopic stock;

(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;

(iii) a fixed magazine capacity in excess of 5 rounds; and

(iv) an ability to accept a detachable magazine.

18 U.S.C. § 921(a)(30).

Congress defined a "large capacity ammunition feeding device" in 18 U.S.C. § 921(a)(31):

(A) [ ] a magazine, belt, drum, feed strip, or similar device manufactured after the date of enactment of the Violent Crime Control and Law Enforcement Act of 1994 that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition; but

(B) does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.

18 U.S.C. § 921(a)(31).

B. Procedural History

This court dismissed plaintiffs' case based on standing and ripeness issues. National Rifle Ass'n v. Magaw, 909 F.Supp. 490 (E.D.Mich.1995); see also (Def. Br. at 3; Def. Mot. at 1.) Plaintiffs appealed. The Sixth Circuit affirmed in part and reversed in part, sustaining the dismissal of the individual and organizational plaintiffs, but holding that those plaintiffs who were federally licensed firearms manufacturers and dealers had standing to assert their Commerce Clause and equal protection challenges. National Rifle Ass'n v. Magaw, 132 F.3d 272, 295 (6th Cir.1997). Accordingly, Olympic Arms, Calico Light Weapons Systems, D.C. Engineering, Ammo Dump, and Glenn Duncan remain in the case¹ because they "suffered economic harm from the impact of the passage of the Act, which has restricted the operation of their businesses in various ways—either forcing them to `stop production,' `decline work,' and to `refrain from sales and marketing,' or imposing the need to redesign and relabel products." Id. at 281; see also (Def. Br. at 4.) The individual plaintiffs and non-profit gun rights associations do not have standing to sue because they suffered no economic harm, National Rifle Ass'n, 132 F.3d at 293, and failed to allege any "injury-in-fact sufficient to confer standing." Id. at 295.

In July 1998, defendants moved for summary judgment. Plaintiffs collectively responded and simultaneously filed a cross-motion for summary judgment. Additionally, plaintiff Glen Duncan individually filed a response and cross-motion for summary judgment (the "Duncan Brief") which included discussion of the Second Amendment. The court struck the "Duncan Brief" in an order filed August 9, 1999. See, infra, pp. 1070-71. Accordingly, only the Commerce Clause claim and the equal protection claim remain in the cross-motions for summary judgment.

II. Standard

Under Rule 56, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c). "Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate." Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Summary judgment is not appropriate when "the evidence presents a sufficient disagreement to require submission to a jury." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The existence of some factual dispute does not defeat a properly supported motion for summary judgment; the disputed factual issue must be material.

The burden placed upon the movant for summary judgment is to show that the non-moving party has failed to establish an essential element of its case upon which the non-moving party would bear the ultimate burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. But the moving party need not support its motion with affidavits or other similar materials "negating" the opponent's claim. Id. at 323, 106 S.Ct. 2548. Once the moving party meets this burden, the burden passes to the non-moving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element necessary to its case with respect to which it bears the burden of proof. Id. The non-moving party must show that there is sufficient evidence for a jury to return a verdict in its favor, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989) (citation omitted), that is, that there is doubt as to the material facts and that the record, taken as a whole, does not lead to a judgment for the movant. Id. at 1478 (citation omitted). The non-moving party must present affirmative evidence on critical issues. Id. at 1477.

III. Commerce Clause

Plaintiffs' complaint contends that the semiautomatic assault weapons ban exceeds Congress' power under the Commerce Clause because "[t]he possession and intrastate manufacture and transfer [of `assault weapons'], neither is in, nor does it substantially affect, commerce between the States." (Sec. Amend. Compl. at 5.) Plaintiffs further contend that regulation of "semiautomatic firearms, and large capacity ammunition feeding devices is an area of law which has historically been reserved to the states," (id. at 6), and that the possession and manufacture, within the State of Michigan, of the devices addressed by the regulation would not have "any substantial effect upon commerce among the several States." Id.

In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court described "three broad categories of activity that Congress may regulate under its commerce power." Lopez, 514 U.S. at 558, 115 S.Ct. 1624:

First, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce.

Id. at 558-59, 115 S.Ct. 1624(citations omitted).²

Accordingly, the issue before the court is whether § 922(v)(1) and 922(w)(1) fit within one of the three categories...