Wilson v. Holder

• Decision Date: 12 March 2014
• Docket Number: Case No. 2:11–cv–01679–GMN–PAL.
• Parties: S. Rowan WILSON, an individual, Plaintiff, v. Eric HOLDER, individually and as Attorney General of the United States; The U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives; B. Todd Jones, individually and as Acting Director of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives; Arthur Herbert, individually and as Assistant Director of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives; and The United States of America, Defendants.
• Court: U.S. District Court — District of Nevada

7 F.Supp.3d 1104

S. Rowan WILSON, an individual, Plaintiff,

v.Eric HOLDER, individually and as Attorney General of the United States; The U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives; B. Todd Jones, individually and as Acting Director of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives; Arthur Herbert, individually and as Assistant Director of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives; and The United States of America, Defendants.

Case No. 2:11–cv–01679–GMN–PAL.

United States District Court, D. Nevada.

Signed March 11, 2014.

Filed March 12, 2014.

Charles C. Rainey, The Law Firm of Rainey Devine, Henderson, NV, for Plaintiff.

Zachary C. Richter, Alicia N. Ellington, John Kenneth Theis, U.S. Department of Justice, Federal Programs Branch, Washington, DC, Justin E. Pingel, United States Attorney's Office, Las Vegas, NV, for Defendants.

ORDER

GLORIA M. NAVARRO, Chief Judge.

Pending before the Court is the Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 37) filed by the United States of America, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“BATFE”), U.S. Attorney General Eric Holder, Acting BATFE Director B. Todd Jones, and Assistant BAT FE Director Arthur Herbert's (collectively, “Defendants”). Plaintiff S. Rowan Wilson (“Plaintiff”) filed a Response (ECF No. 41) and Defendants filed a Reply (ECF No. 47).

I. BACKGROUND

This case arises from an asserted conflict between the right secured by the Second Amendment, certain provisions of the federal Gun Control Act that prohibit the users of controlled substances from procuring firearms, and the recent wave of state legislation legalizing the medical use of marijuana. In 2001, the Nevada legislature enacted legislation exempting the medical use of marijuana from state criminal prosecution in certain limited circumstances. See Nev.Rev.Stat. § 453A. Specifically, the legislation permits individuals who obtain a state-issued registry identification card (“state marijuana registry card”) to use marijuana for medicinal purposes. Nev.Rev.Stat. § 453A.200(1)(f).

However, under the Controlled Substances Act, marijuana is listed as a controlled substance that cannot be lawfully prescribed and that the general public may not lawfully possess. 21 U.S.C. § 802(6); 21 U.S.C. § 812(c), Sched. I(c)(10). There is no provision under Federal law that permits any class of the general public to lawfully possess marijuana, including those wishing to use marijuana for medical purposes. See21 U.S.C. § 823(f) (providing an exception to the ban on possession of Schedule I drugs for federally approved research projects); see also Gonzales v. Raich, 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (“By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the ... possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study.”). In contrast, the Controlled Substances Act expressly recognizes that “there is a lack of accepted safety for use of [marijuana] under medical supervision.” 21 U.S.C. § 812(b)(1)(A)-(C). See21 U.S.C. § 829; see also United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) (“Whereas some other drugs can be dispensed and prescribed for medical use, ... the same is not true for marijuana.”).

Furthermore, the Federal Gun Control Act of 1968 (“Gun Control Act”) prohibits “any person ... who is an unlawful user of or addicted to any controlled substance ... [to] possess ... any firearm or ammunition....” 18 U.S.C. § 922(g)(3). Additionally, § 922(d)(3) prohibits any person from selling or otherwise disposing of “any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... is an unlawful user of or addicted to any controlled substance....” 18 U.S.C. § 922(d)(3).

In September 2011, because of the growing number of states that permit the medicinal use of marijuana, the ATF issued an “Open Letter.” Bureau of Alcohol, Tobacco, Firearms and Explosives, Open Letter, Open Letter to All Federal Firearms Licensees—The use of marijuana for medical purpose and its applicability to Federal firearms laws (Sept. 26, 2011), available at http:// www. atf. gov/ press/ releases/ 2011/ 09/ 092611–atf–open–letter–to–all–ffls–marijuana–for–medicinal–purposes.pdf [hereinafter “ ATF Open Letter ”]. Notably, this letter informed all individuals licensed to sell firearms (“Federal Firearms Licensees” or “FFLs”) that “if [the seller is] aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance.” Id. Thus, the letter advised FFLs and provided them notice that the agency which issues their license (the BATFE) interpreted § 922 as not only criminalizing the possession of a firearm by a registry card holder, but also the sale of a firearm to a registry card holder.

In the fall of 2010, due to her struggle with severe dysmenorrhea, Plaintiff applied for and obtained a state marijuana registry card. (First Am. Compl. (“FAC”) ¶¶ 35–36, ECF No. 34.) Plaintiff subsequently applied to purchase a firearm at a gun store in Mound House, Nevada. ( Id. ¶¶ 17–24.) However, the store's proprietor prevented her from completing her application he knew she carried a state marijuana registry card. ( Id. ¶ 22.)

As a result, Plaintiff filed this lawsuit in October 2011. (Compl., ECF No. 1.) In her suit, Plaintiff challenges the constitutionality of the two provisions of the Gun Control Act that effectively criminalize the sale and possession of a firearm by the holder of a registry card: 18 U.S.C. §§ 922(d)(3) and (g)(3). (FAC ¶¶ 51–56.) Plaintiff also challenges the constitutionality of one of the accompanying regulations, 27 C.F.R. § 478.11, that defines the term “unlawful user of or addicted to any controlled substance” as used in §§ 922(d)(3) and (g)(3). ( Id.) Finally, Plaintiff challenges the ATF policy that federal firearms licensees may not sell a firearm to persons they know are “in possession of a card authorizing the possession and use of marijuana under State law....” ATF Open Letter. Plaintiff claims that these provisions, along with the ATF policy, violate her Second Amendment right to “keep and bear Arms”; her First Amendment right to free speech; as well as her rights to substantive due process, procedural due process and equal protection as secured by the Fifth Amendment.

In response to Plaintiff's initiating this action, Defendant filed a Motion to Dismiss. (Mot. to Dismiss, ECF No. 10.) Thereafter, on November 11, 2012, the Court held a hearing at which the Court ordered supplemental briefing on several issues. (Minutes of Proceedings, ECF No. 30.) Prior to the deadline for filing the supplemental briefing, the parties filed a Joint Motion to Amend/Correct Complaint. (ECF No. 31; see First Am. Compl. (“FAC”), ECF No. 34.) After the Court granted this Motion, the Court denied Defendants' previously filed Motion to Dismiss as moot. (ECF No. 32.) In response to Plaintiff's First Amended Complaint, (ECF No. 34), Defendants filed the instant Motion to Dismiss (ECF No. 37), which, for the reasons discussed below, the Court grants.

II. JURISDICTION

“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Therefore, before a federal court may consider the merits of a case, it must first determine whether it has proper subject matter jurisdiction. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653–54 (9th Cir.2002); see also Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”).

For the reasons discussed below, the Court concludes that Plaintiff has, at this stage of the litigation, adequately established that she has standing to assert these causes of action. In addition, the Court determines that this case is not rendered moot by the absence of a currently valid medical marijuana registry card from the record. Accordingly, the Court does not lack jurisdiction to consider the merits of this case.

A. Standing

Article III of the United States Constitution limits the power of the judiciary to hear only “cases” and “controversies.” U.S. Const. art. III, § 2; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is a core component of the Article III case or controversy requirement and focuses on whether the action was initiated by the proper plaintiff. See Davis v. Fed. Election Comm'n, 554 U.S. 724, 732–33, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (quoting Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[T]he party invoking federal jurisdiction [must] have standing—the ‘personal interest that must exist at the commencement of the litigation.’ ”)); see also Arakaki v. Lingle, 477 F.3d 1048, 1059 (9th Cir.2007) (“Standing ensures that, no matter the academic merits of the claim, the suit has been brought by a proper party.”). The “irreducible constitutional minimum of standing” requires that a plaintiff demonstrate three elements. Lujan, 504 U.S. at 560, 112 S.Ct. 2130.

First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second,...