Peoples Rights Organization, Inc. v. Betty D. Montgomery, Ohio Attorney General

Decision Date09 April 2001
Docket Number01-LW-1390,CA2000-04-018
PartiesPEOPLES RIGHTS ORGANIZATION, INC., et al., Plaintiffs-Appellants v. BETTY D. MONTGOMERY, OHIO ATTORNEY GENERAL, Defendant-Appellee CASE
CourtOhio Court of Appeals

David M. Buda, 35 E. Livingston Avenue, Columbus, Ohio 43215, for plaintiffs-appellants

Stephen P. Halbrook, 10560 Main Street, 404, Fairfax, Virginia 22030 for plaintiffs-appellants pro hac vice

Betty D. Montgomery, Ohio Attorney General, Judith L. French Arthur J. Marziale, Jr., Darrell M. Pierre, Jr., 30 E. Broad Street, 17t h Floor, Columbus, Ohio 43215-3428, for defendant-appellee

OPINION

YOUNG J.

Plaintiffs-appellants (collectively "appellants"), Peoples Rights Organization ("PRO"), Big Boys Toys I, Inc., dba Davis Guns ("Davis Guns"), John Does I, II, and III, and Jane Does I and II, appeal the decision of the Madison County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Betty D. Montgomery, Ohio Attorney General ("Attorney General").[1]

A. FACTS

This case involves a class action suit by appellants to recover the fees charged ("Brady fees") to conduct background checks ("Brady checks") for the purchase of handguns. The facts of the case are not in substantial dispute, and they are presented fully after a brief overview of the procedural history.

1. Overview

PRO is a non-profit organization incorporated in Ohio "dedicated to the rights of law-abiding firearm owners." Many of its members purchased handguns in Ohio between 1994 and 1998, paying the Brady fee, which they now seek to have refunded. Davis Guns is a federally licensed firearms dealer located in Plain City, Madison County, Ohio, which paid the Brady fee as part of promotional sales. John and Jane Does are Ohio residents and handgun purchasers who seek to remain anonymous. Some of them are PRO members.

Appellants filed a class action suit against the Attorney General seeking a refund of all Brady fees paid by handgun purchasers in Ohio for Brady checks pursuant to the Brady Handgun Violence Prevention Act ("Brady Act"), Section 921 et seq., Title 18, U.S. Code[2] and a subsequent agreement between the Attorney General and the United States Attorney General ("USAG") which continued the Brady checks after certain provisions of the Brady Act were declared unconstitutional by the United States Supreme Court in Printz v. United States (1997), 521 U.S. 898, 117 S.Ct. 2365. The Attorney General assigned the Ohio Bureau of Criminal Investigation and Identification ("BCI&I") to collect the Brady fee. Appellants alleged that the Brady fee was not authorized by law and infringed upon their rights to bear arms and to due process of law.

Both parties filed motions for summary judgment. The Attorney General argued that charging and collecting the Brady fee to perform Brady checks was legal and not in violation of appellants' civil rights. The trial court granted the Attorney General's motion, finding that the Brady fees were authorized. Appellants' motion was overruled.

2. The Brady Act

The events of this case involve a number of government agencies.[3] The Gun Control Act of 1968 ("GCA"), Sections 921-930, Title 18, U.S.Code, established a detailed federal scheme governing the distribution and sale of firearms. The scheme requires that any person dealing in firearms first obtain a federal license. Section 923. Federal firearm licensees ("FFLs"), such as Davis Guns, must maintain records of their sales and allow the Bureau of Alcohol, Tobacco, and Firearms ("ATF") to inspect these records. Section 923(g). The scheme includes a prohibition against transferring handguns to, and the possession of firearms by, certain listed classes of persons. Section 922(b), (d), and (g).

Congress amended Title I of the GCA effective November 30, 1993, with the Brady Act, Pub.L. 103-159, 107 Stat. 1536. The Brady Act put into place interim provisions for a national background check system, Section 922(s), and required that the USAG establish a permanent national instant background check system by November 30, 1998. Section 922(t)(1). The Brady Act's interim system implemented a mandatory background check, the Brady check, and a five-day waiting period for the purchase of a handgun. Section 922(s)(1)(A)(ii). The permanent instant background check system requires no waiting period. Section 922(t)(1).[4]

As noted by the trial court, under the interim provision, a FFL who proposed to transfer a handgun had to:

(1) receive from the transferee/buyer ("buyer") the form prescribed by Section 922(s)(3) ("Brady form"), containing the name, address, and date of birth of the buyer, along with a sworn statement that the buyer is not among any of the classes of prohibited purchasers,[5] Section 922(s)(1)(A)(i)(I);
(2) verify the identity of the buyer by examining an identifying document, Section 922(s)(1)(A)(i)(II); and
(3) provide the "chief law enforcement officer" ("CLEO")[6] of the buyer's residence with a notice of the contents and a copy of the Brady form. Section 922(s)(1)(A)(i)(III)-(IV).

Other than listed exceptions, the FFL was required to wait five business days before consummating the sale unless the CLEO earlier notified the FFL that there was no reason to believe that the sale would be illegal. Section 922(s)(1)(A)(ii). There were significant alternative methods of completing a handgun sale, including where the buyer possessed a state handgun permit issued after a state background check, Section 922(s)(1)(C), and where state law provided for an instant background check. Section 922(s)(1)(D).

If a particular state, like Ohio, did not have in effect one of these alternatives applicable to all handgun buyers, CLEOs performed specific duties regarding Brady checks. Section 922(s)(2) and (6). Thus, unless a state already had a system for approving the sale of handguns to prospective buyers, CLEOs were instrumental in administering the Brady Act's interim system.[7]

When the CLEO received the required notice of a proposed sale from the FFL, the CLEO was to "make a reasonable effort"[8] to ascertain within five business days whether receipt or possession would be illegal, including research in state and local record-keeping systems and a national system designated by the USAG. Section 922(s)(2). The CLEO was not required to take any particular action if it was determined that a pending sale would be unlawful,[9] but if the CLEO informed the FFL that the prospective buyer was ineligible to receive a handgun, the CLEO had to provide the prospective buyer with a written statement of the reasons for that determination. Section 922(s)(6)(C). If the CLEO did not discover a basis for objecting to the sale, any records in its possession relating to the sale, including the Brady form, were to be destroyed within twenty days. CLEOs could not convey the information in the Brady form to any other person or use it for any purpose other than the Brady check. Section 922(s)(6)(B).

If the CLEO provided erroneous information, resulting in a denial of a handgun application, the denied buyer could "bring an action against the State or political subdivision responsible for providing the erroneous information." Section 925A. CLEOs were specifically exempted from civil liability for performing their duties under the Brady Act. Section 922(s)(7). Under a separate section of the GCA, "whoever knowingly violates subsection (s) or (t) of section 922 [could] be fined not more than $1,000, imprisoned for not more than one year, or both." Section 924(a)(5).[10]

On January 21, 1994, before the Brady Act's effective date, the Director of the ATF sent an "Open Letter to State and Local Law Enforcement Officials" ("Open Letter") explaining the Brady Act's interim requirements. The Open Letter stated that the Brady Act's primary intent was to "provide law enforcement an opportunity to screen out unlawful purchasers. Our goal is to see that [the] Brady [Act] is as effective as possible at keeping handguns out of the wrong hands." The Open Letter addressed how the background checks should be performed:

Each law enforcement agency serving as the CLEO will have to set it [sic] own standards based on its own circumstances, i.e., the availability of resources, access to records, and taking into account the law enforcement priorities of the jurisdiction. The law is designed so that the law enforcement authority who is doing the check [sic], is the one who is most likely to have to deal with the consequences of the buyer obtaining a handgun. Therefore, the CLEO of the buyer's residence has a vested interest in conducting an appropriate check and ultimately is in the best position to determine what is reasonable.

The Open Letter concluded by noting that in some situations the only reasonable Brady check would be no check at all, in accordance with circumstances predicted by Section 922(s)(1)(B)-(F) and by the ATF in its administrative regulations.[11]

3. CLEOs

"CLEO" was defined as "the chief of police, the sheriff, or an equivalent officer or the designee of any such individual." Section 922(s)(8). The Brady Act gave no express guidance in how a "designee" CLEO was to be appointed or whether only local, not state, law enforcement officers could act as CLEOs. In any case, CLEOs, as the key law enforcement officers administering the interim Brady Act system, were to be state, not federal, officers. As noted by the United States Supreme Court, the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. Regulated firearms FFLs are required to forward Brady forms not to a federal officer or employee, but to the CLEOs, whose...

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