Richmond Boro Gun Club, Inc. v. City of New York

• Decision Date: 10 October 1996
• Docket Number: No. 1209,D,1209
• Citation: 97 F.3d 681
• Parties: RICHMOND BORO GUN CLUB, INC., New York State Rifle and Pistol Association, Inc. and John Does I Through VI, Plaintiffs-Appellants, and National Rifle Association of America, Plaintiff, v. CITY OF NEW YORK, and Lee P. Brown In His Official Capacity as Police Commissioner of the City of New York, Defendants-Appellees. ocket 95-7944.
• Court: U.S. Court of Appeals — Second Circuit

Page 681

97 F.3d 681

RICHMOND BORO GUN CLUB, INC., New York State Rifle and

Pistol Association, Inc. and John Does I Through

VI, Plaintiffs-Appellants, and National Rifle Association of America, Plaintiff, v. CITY OF NEW YORK, and Lee P. Brown In His Official Capacity

as Police Commissioner of the City of New York,

Defendants-Appellees.

No. 1209, Docket 95-7944.

United States Court of Appeals, Second Circuit.

Argued March 15, 1996.

Decided Oct. 10, 1996.

Stephen P. Halbrook, Fairfax, VA (Susan Courtney Chambers, New York City, of counsel), for Plaintiffs-Appellants.

Alan Beckoff, New York City Law Dept, New York City (Paul A. Crotty, Corporation Counsel of the City of New York, New York City, on the brief, Stephen J. McGrath, Albert Fredericks, New York City, of counsel), for Defendants-Appellees.

(Ira S. Sacks, on the brief, Jocelyn Lee Jacobson, Deborah Lifshey, Fried, Frank, Harris, Shriver & Jacobson, New York City, Dennis A. Henigan, Gail Robinson, Center To Prevent Handgun Violence, Washington, DC, all of counsel), for Amicus Curiae Center To Prevent Handgun Violence, New York Association Of Chiefs Of Police, Detectives' Endowment Association, Captains Endowment Association, Lieutenants Benevolent Association and Sergeants Benevolent Association.

Before: FEINBERG, WALKER, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Appellants Richmond Boro Gun Club, the New York State Rifle and Pistol Association, and John Does I through VI brought this action challenging New York City Local Law 78 of 1991, amending New York City Administrative Code § 10-131 & §§ 10-301 through 10-310 (hereafter "Local Law 78"), which criminalizes the possession or transfer of certain assault weapons and ammunition feeding devices within the city. ¹ The Unites States District Court for the Eastern District of New York (Reena Raggi, Judge ) denied plaintiffs' initial request for a preliminary injunction and, in a well reasoned opinion, granted defendants' motion for summary judgment. Richmond Boro Gun Club, Inc. v. City of New York, 896 F.Supp. 276 (E.D.N.Y.1995). On appeal, plaintiffs press only three of the arguments raised below. Before this court plaintiffs argue that Local Law 78 (1) is unconstitutionally vague; (2) is preempted by federal laws and regulations establishing the Civilian Marksmanship Program; and (3) deprives them of rights to liberty and property without due process. We agree with the district court that plaintiffs' theories do not justify judicial revocation of the decisions of the New York City Council.

I. BACKGROUND

Section 10 of Local Law 78, which added a new Section 10-303.1 to Chapter 3 of the New York City Administrative Code, criminalizes, subject to certain exceptions, possession or transfer of assault weapons. Section 6 of Local Law 78, which amended Section 10-301 of the New York City Administrative Code, defines "Assault Weapon" as

(a) [a]ny semiautomatic centerfire or rimfire rifle or semiautomatic shotgun which has one or more of the following features:

1) folding or telescoping stock or no stock;

2) pistol grip that protrudes conspicuously beneath the action of the weapon;

3) bayonet mount;

4) flash suppressor or threaded barrel designed to accommodate a flash suppressor;

5) barrel shroud;

6) grenade launcher; or

7) modifications of such features, or other features, determined by rule of the commissioner to be particularly suitable for military and not sporting purposes. In addition, the commissioner shall, by rule, designate specific semiautomatic centerfire or rimfire rifles or semiautomatic shotguns, identified by make, model and/or manufacturer's name, as within the definition of assault weapon, if the commissioner determines that such weapons are particularly suitable for military and not sporting purposes.

(b) Any shotgun with a revolving-cylinder magazine.

(c) Any part, or combination of parts, designed or redesigned or intended to readily convert a rifle or shotgun into an assault weapon.

(d) "Assault weapon" shall not include any rifle or shotgun modified to render it permanently inoperative.

New York City Administrative Code § 10-301(16) (emphasis on sections challenged on vagueness grounds). Local Law 78 also defines and criminalizes the possession and transfer of "Ammunition feeding devices," which are "[m]agazines, belts, feedstrips, drums or clips capable of being attached to or utilized with firearms, rifles, shotguns, or assault weapons." Local Law 78, §§ 4, 6 (creating New York City Administrative Code §§ 10-131.i & 10-301(17)). The law bans possession or disposition of any such feeding devices capable of holding more than five rounds of ammunition designed for use with a rifle or shotgun, Local Law 78, § 13 (amending New York City Administrative Code § 10-306), or capable of holding more than seventeen rounds of ammunition if designed for use with a handgun, Local Law 78, § 4 (creating New York City Administrative Code § 10-131(i)(6)).

The law exempts from its coverage state and city police or peace officers carrying such items in the lawful performance of their duties, and members of the federal or state armed forces who are authorized by law to carry these weapons. Local Law 78, § 12 (amending New York City Administrative Code § 10-305).

II. DISCUSSION

The district court assumed the truth of all of plaintiffs' allegations and applied the law to those allegations in granting summary judgment for New York City. Our review, then, is of the district court's legal conclusions. We review such conclusions de novo. Motor Vehicle Mfrs. Ass'n v. New York Dep't of Envtl. Conservation, 79 F.3d 1298, 1304 (2d Cir.1996).

1. The "Void for Vagueness" Argument

"The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). The principle underlying the doctrine is that "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Id.

Plaintiffs claim that Local Law 78 is unconstitutionally vague both on its face and as applied. They argue that several of the phrases used to identify an "assault weapon," such as a gun having "a pistol grip that protrudes conspicuously beneath the action," "no stock," "a threaded barrel designed to accommodate a flash suppressor," and "a barrel shroud," fail to provide notice of what is prohibited and is therefore vague facially and as applied to the rifles and shotguns owned by the plaintiffs.

Plaintiff's facial vagueness challenge is plainly without merit. They concede that the local law does not infringe upon a fundamental constitutional right. Courts rarely invalidate a statute on its face because of alleged vagueness if the statute does not relate to a fundamental constitutional right (usually first amendment freedoms) and if the statute provides "minimally fair notice" of what the statute prohibits. 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 17.8 n. 22 (2d ed. 1992). See also Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 1929, 114 L.Ed.2d 524 (1991) ("vagueness claim must be evaluated as the statute is applied to the facts of [the] case" when "First Amendment freedoms are not infringed by the statute.").

Plaintiffs could perhaps succeed on a facial vagueness challenge if they could show that the law is impermissibly vague "in all of its applications." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). However, it is obvious in this case that there exist numerous conceivably valid applications of Local Law 78. The district court's analysis of plaintiffs' facial challenge is excellent and we readily adopt it:

[Plaintiffs] hypothesize some ambiguous application for each factor used by New York City to identify the semiautomatic rifles and shotguns that will be deemed assault weapons under Local Law 78. But such conjectures hardly suffice to establish vagueness in all applications of the law.

For example, plaintiffs complain that defining assault weapons to include rifles or shotguns with a "folding or telescoping stock or no stock" is vague because some person might unwittingly violate the law by removing a stock for a brief period to clean or transport a weapon. This possibility ignores the "core" category of weapons within this factor that are clearly intended to be the focus of the legislation: those either equipped with folding stocks or with permanently-removed stocks. The governmental concern is that such weapons can be discharged in a way that is characteristic of military and not sporting weapons. Since persons have plain notice of the applicability of the law to this core group of weapons, there is no facial vagueness in this factor.

Plaintiffs further complain that defining an assault weapon by reference to "a pistol grip that protrudes conspicuously beneath the action of the weapon" is impermissibly vague because it is unclear what is meant by "conspicuously." The argument is disingenuous. As is made plain in the [Report and Recommendation of the ATF Working Group on the Importability of Certain Semiautomatic Weapons (1989) ("ATF Report") ] prepared in connection with that agency's ban on the importation of assault weapons, most sporting firearms "employ a more traditional pistol grip built into the wrist of the stock of the firearm." ATF Report at 7 (emphasis added). By contrast, "[t]he vast majority of military firearms employ a well-defined pistol grip that protrudes conspicuously beneath the action of the weapon." Id. (emphasis added). The latter design is favored in military weapons because it aids in "one-handed firing" at hip level, a technique sometimes required in combat, but "not usually employed in...