Springfield Armory, Inc. v. City of Columbus
| Decision Date | 30 August 1994 |
| Docket Number | 92-4223,Nos. 92-4126,s. 92-4126 |
| Citation | 29 F.3d 250 |
| Parties | SPRINGFIELD ARMORY, INC., et al., Plaintiffs-Appellants, v. CITY OF COLUMBUS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Stephen P. Halbrook, Fairfax, VA (argued and briefed), Donald C. Brey (briefed), Geoffrey T. Kisor, Chester, Hoffman, Willcox & Saxbe, Columbus, OH, for plaintiffs-appellants.
Glenn B. Redick, City Atty's Office, Columbus, OH (argued and briefed), for defendants-appellees.
Theresa Rittinger Schaefer, Asst. Atty. Gen., (briefed), Jeffrey S. Sutton, Jones, Day, Reavis & Pogue, Columbus, OH (briefed), for State of Ohio, amicus curiae and Center To Prevent Handgun Violence, amicus curiae.
Before: MERRITT, Chief Judge; and NORRIS and SUHRHEINRICH, Circuit Judges.
Two manufacturers, a dealer and two potential purchasers of weapons challenge the constitutionality of a Columbus city ordinance that bans assault weapons. The ordinance defines "assault weapon" as any one of thirty-four specific rifles, three specific shotguns and nine specific pistols, or "[o]ther models by the same manufacturer with the same action design that have slight modifications or enhancements...." The weapons are specified by brand name and model, not generically or by defined categories.
Plaintiffs challenge the ordinance as an unconstitutional bill of attainder because it constrains only the named manufacturers while other manufacturers are free to make and sell similar products. Plaintiffs also contend that the ordinance is unconstitutionally vague. No equal protection claim is raised. The district court rejected the bill of attainder claim on a motion for summary judgment, 805 F.Supp. 489. It did not address the issue of facial validity but found it vague as applied to two of the weapons in question. We find the ordinance unconstitutionally vague on its face and therefore do not reach the bill of attainder issue.
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The Supreme Court has stated very general standards for evaluating whether a statute is unconstitutionally vague:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.
Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (footnotes omitted). In addition, "[t]he requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values ... and permits meaningful judicial review," Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 3256, 82 L.Ed.2d 462 (1984), but the Court has also said that a statute is void only if it is so vague that "no standard of conduct is specified at all." Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971).
At times the Court has suggested that a statute that does not run the risk of chilling constitutional freedoms is void on its In the present case, the ordinance is fundamentally irrational and impossible to apply consistently by the buying public, the sportsman, the law enforcement officer, the prosecutor or the judge. The Columbus ordinance outlaws assault weapons only by outlawing certain brand names without including within the prohibition similar assault weapons of the same type, function or capability. The ordinance does not achieve the stated goal of the local legislature--to get assault weapons off the street. The ordinance purports to ban "assault weapons" but in fact it bans only an arbitrary and ill-defined subset of these weapons without providing any explanation for its selections. Many assault weapons remain on the market and the consumer is without a reasoned basis for determining which firearms are prohibited. The ordinance permits the sale and possession of weapons which are virtually identical to those listed if they are produced by a manufacturer that is not listed. Thus, the Springfield SAR-48 is banned but equivalent designs sold by Browning Arms Company, Paragon Sales and Armscorp are not. The Springfield BM59 is banned but the equivalent Beretta BM59 and BM62 are not banned. The Colt AR-15 Sporter is banned but not identical weapons sold by Bushmaster, SGW/Olympic Arms, Pac West Arms, Eagle Arms, Inc., Holmes Firearms, Frankford Arsenal and Essential Arms Company. The Ruger Mini-14 rifle, which shoots .223 caliber cartridges from a detachable box magazine just like the Colt AR-15 Sporter, is not prohibited. (App. 150, 153, 238).
face only if it is impermissibly vague in all its applications, Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982), but at other times it has suggested that a criminal statute may be facially invalid even if it has some conceivable application. Kolender v. Lawson, 461 U.S. 352, 358-59 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983); Colautti v. Franklin, 439 U.S. 379, 394-401, 99 S.Ct. 675, 685-88, 58 L.Ed.2d 596 (1979). "The degree of vagueness that the Constitution tolerates--as well as the relative importance of fair notice and fair enforcement--depends in part on the nature of the enactment." Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193. When criminal penalties are at stake, as they are in the present case, a relatively strict test is warranted. Id. at 499, 102 S.Ct. at 1193
The ordinance defines "assault weapon" simply by naming forty-six individual models of rifles, shotguns and pistols, listed by model name and manufacturer, and then adds within the prohibition
other models by the same manufacturer with the same action design that have slight modifications or enhancements of firearms listed ... provided the caliber exceeds .22 rimfire.
Columbus City Codes Sec. 2323.01(I). No statement of purpose is added to the ordinance explaining the reason for outlawing some but not all assault weapons of the same type. Nor is there an explanation for drafting the ordinance in terms of brand name rather than generic type or category of weapon. Nor does the ordinance define "same action design" or "slight modifications." We do not know whether a "model by the same manufacturer" that fires twice as fast or twice as many bullets, or half as fast with half as many bullets, or some other combination of changes is a "slight modification" of the "same action design." 1
Plaintiffs, gun manufacturers and dealers, say that they are unable to comprehend the meaning of the "slight modifications" provision or the purpose of the ordinance and hence cannot know in advance which sales the ordinance purports to prohibit. They argue that the ordinance does not adequately notify the citizenry regarding what conduct is prohibited and will necessarily give rise to arbitrary enforcement. The only clear restriction on the range of modifications which may be considered slight is that the caliber How is the ordinary consumer to determine which changes may be considered slight? A weapon's accuracy, magazine capacity, velocity, size and shape and the caliber of ammunition it takes can all be altered. For example, the Colt Sporter Lightweight is a 5.56mm caliber weapon equipped with a 16 inch barrel, a 5-round magazine capacity, a 14.5 inch sight radius and weighs 6.7 lbs. (App. 266) If Colt modifies this weapon so that it takes a 9mm cartridge, has a 20 inch barrel, a 20-round magazine capacity, a 19.75 inch sight radius and weighs 10 lbs., would this new weapon be a slight modification? Or if these changes increase the weapon's range and accuracy so that it can shoot at twice the distance, or if a new trigger pull allows the operator to shoot twice as fast, or if Colt doubles the caliber of ammunition but halves the velocity at which the weapon fires the bullet, or if it modifies the gun so that it cannot accept a magazine capacity over 5 rounds? Suppose Colt changes so many of the external features of the weapon--adding a bipod, changing the pistol grip, the stock material, the color, the length and weight--that a person of ordinary intelligence would not, by merely looking at the weapon, be able to recognize any relationship between this modification and the original weapon. Would these changes be considered slight? We see no reasoned basis for making a determination one way or the other.
of a modified weapon must exceed .22. Does this
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