U.S.A v. Firearms

• Decision Date: 12 March 2010
• Docket Number: Case No. 09-CV-10463.
• Citation: 698 F.Supp.2d 894
• Parties: UNITED STATES of America, Plaintiff,v.FOUR HUNDRED SEVENTY SEVEN (477) FIREARMS, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

698 F.Supp.2d 894

UNITED STATES of America, Plaintiff,v.FOUR HUNDRED SEVENTY SEVEN (477) FIREARMS, Defendants.

Case No. 09-CV-10463.

United States District Court,

E.D. Michigan,

Southern Division.

March 12, 2010.

COPYRIGHT MATERIAL OMITTED

Philip A. Ross, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

ORDER GRANTING THE GOVERNMENT'S MOTION TO STRIKE CLAIMS OF GREGORY KISH, SHERRY HARNESS, AND GABRIEL KISH, IV

ROBERT H. CLELAND, District Judge.

Pending before the court is a “Motion to Strike Claims of Gabriel Kish, IV, Gregory Kish, and Sherry Harness Based Upon Lack of Article III, Section 2 or Statutory Standing,” filed by the Government on December 15, 2009. Having reviewed the briefs, the court concludes a hearing on this motion is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the court will grant the Government's motion.

I. BACKGROUND

This case is an in rem civil forfeiture action in which the Government requests the forfeiture of 477 firearms. The firearms were seized after the execution of a federal search warrant at the Highland Gun Barn, a gun store in Highland, Michigan, in which Claimants Gabriel Kish III and Deborah Summers were proprietors. (Am. Compl. ¶ 7(a).) Firearms were retrieved from the main store area, the attic, a gun smithing area, and a vault in the basement. ( Id. ¶ 7(ss).)

The search warrant was issued following an undercover operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). From August 2007 to July 2008, undercover ATF agents purchased firearms from Deborah Summers and Gabriel Kish III and exchanged purported stolen merchandise for firearms. ( Id. ¶ 7(j)-( oo ).) Deborah Summers has never held a federal firearms license, and Gabriel Kish III's federal firearms license was revoked in February 2005. ( Id. ¶ 7(g)-(h).)

On September 17, 2008, Gabriel Kish III and Deborah Summers were indicted for willfully engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1). They were both convicted on April 17, 2009. Deborah Summers was sentenced to a term of imprisonment of 57 months; Gabriel Kish III was sentenced to a term of imprisonment of 48 months. At the sentencing hearing, the court found:

no reason to exclude the firearms that were found in the basement and in the attic, ... [a]nd the preponderance of the evidence convinces me that those firearms were indeed available for sale. They were not a collector's item grouping of firearms. They were, in large measure, common firearms that were “collected” if at all for the purpose of acquiring a stock in trade in order to sell, should a willing purchaser present himself and wish to buy such an item.

So I am satisfied by the appropriate standard, that is a preponderance of the evidence that more than 200 firearms were involved in the offense of dealing in firearms without a license. And I accept the probation officer's, and accordingly, the Government's argument in that regard.

(9/1/09 Tr. at 39.)

In this case, the Government alleges that the firearms seized from the Highland Gun Barn, including the guns in the basement vault, are subject to forfeiture pursuant to 18 U.S.C. § 924(d)(1), which provides, in pertinent part, for the forfeiture of firearms “involved in or used in” any willful violation of 18 U.S.C. § 922(a)(1). (Am. Compl. ¶ 6.) A number of persons filed claims to these firearms, including now-convicted felons Gabriel Kish III and Deborah Summers. Relevant to the present motion, three of Gabriel Kish III's children, Sherry Harness, Gregory Kish, and Gabriel Kish IV, filed claims to firearms numbered “5, 9, 10, 11, 16, 17, 19, 20, 21, 27, 35, 36, 43, 44, 84, 97-116, 199, 120, 121, 124, 126-163, 165-200, 205-476.” (Suppl. Claims of Sherry Harness, Gregory Kish, Gabriel Kish, IV.) Each alleges that “[a]t the time of the seizure, I had a lawful interest in the property as the owner of these firearms and/or heir to them.” ( Id.) They claim that the firearms found in the basement vault “constitute a private family collection and were not offered for sale.” ( Id.) The Claimants filed a “more definite statement of claims” on August 3, 2009. It stated that “Claimant Gabe Kish III's children ... are claiming the balance of the firearms on the basis that they are the owners and/or intended heirs of the remaining guns which were not offered for sale and have filed their claims accordingly.” (Claimants' More Definite Statement of Claims ¶ 7.) On December 15, 2009, the Government filed a motion to strike the claims of Gabriel Kish IV, Gregory Kish, and Sherry Harness for lack of standing.

II. STANDARD

Under Federal Rule of Civil Procedure 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.P. 56(c). “In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003). “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)).

The court does not weigh the evidence to determine the truth of the matter, but rather, to determine if the evidence produced creates a genuine issue for trial. Sagan, 342 F.3d at 497 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party discharges its burden by “ ‘showing’-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Horton v. Potter, 369 F.3d 906, 909 (2004) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). The burden then shifts to the nonmoving party, who “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must put forth enough evidence to show that there exists “a genuine issue for trial.” Horton, 369 F.3d at 909 (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (1986)). Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

III. DISCUSSION

A. Standing

To contest a government forfeiture action, a claimant must have both statutory standing in accord with the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) and standing under Article III. United States v. $515,060.42, 152 F.3d 491, 497 (6th Cir.1998) (citing United States v. $267,961.07, 916 F.2d 1104, 1107 (6th Cir.1990)). In this case, the Government argues that the Claimants lack Article III standing.¹

Article III, § 2 of the United States Constitution requires the existence of a case or controversy through all stages of federal judicial proceedings. Throughout the litigation, the petitioner “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). The injury must be “an invasion of a legally protected interest which is (a) concrete and particularized and (b) ‘actual or imminent,’ ” not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).

To satisfy Article III's standing requirement in civil forfeiture cases, “a claimant must have a colorable ownership, possessory or security interest in at least a portion of the defendant property.” $515,060.42, 152 F.3d at 497. A claimant is required to “demonstrate a legally cognizable interest in the defendant property.” United States v. $267,961.07, 916 F.2d 1104, 1107 (6th Cir.1990). While a “property interest less than ownership, such as a possessory interest, is sufficient to create standing,” id., the mere “assertion of simple physical possession,” without accompanying factual allegations regarding the nature and acquisition of possession is insufficient. $515,060.42, 152 F.3d at 498. “Similarly, bare legal title, in the absence of assertions of dominion, control or some other indicia of ownership of or interest in the seized property, is insufficient to confer standing to challenge a forfeiture.” Id. at 498 n. 6. The Claimant has the burden of demonstrating standing. Id. at 498.

Here, the Government argues that the Claimants lacks Article III standing because they have not “identified any ownership interest beyond an alleged inchoate expectation interest in the defendant firearms.” (Gov't's Mot. Br. at 13.) Specifically, the Government argues that: (1) the Claimants' interest as “heirs” is insufficient to establish standing; (2) Gabriel Kish III did not make an inter-vivos transfer of the firearms to the Claimants; and (3) the Claimants lack any other ownership interest in the firearms. ( Id. at 6-11.) The Claimants argue that they have standing based on (1) Gabriel Kish III's will; (2) the fact that Gabriel Kish III made an inter-vivos transfer of the firearms prior to the seizure; and (3) the fact that Gabriel Kish IV and Gregory Kish “purchased certain firearms in the family collection.” (Resp. at 2-6.)

1. Standing as “Heirs” to the Firearms

The Government argues that the Claimants “assert an interest in the defendant property as owners/heirs” and under Michigan law, “no person can be an heir during the life of an ancestor.” (Gov't's Mot. Br. at 6.) Claimants state that...