Zahn v. Barr

• Decision Date: 23 June 2020
• Docket Number: No. 2:19-cv-3553-DCN,2:19-cv-3553-DCN
• Parties: RICHARD GREGORY ZAHN, Plaintiff, v. WILLIAM BARR, in his official capacity as Attorney General of the United States, and REGINA LOMBARDO, in her official capacity as Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendants.
• Court: U.S. District Court — District of South Carolina

RICHARD GREGORY ZAHN, Plaintiff, v. WILLIAM BARR, in his official capacity as Attorney Generalof the United States, and REGINA LOMBARDO,in her official capacity as Acting Director of the Bureau of Alcohol,Tobacco, Firearms and Explosives, Defendants.

No. 2:19-cv-3553-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

June 23, 2020

ORDER

This matter is before the court on defendants William Barr and Regina Lombardo's (collectively, "defendants") motion to dismiss, ECF No. 8. For the reasons discussed below, the court grants the motion and dismisses the matter.

I. BACKGROUND

On February 8, 2013, plaintiff Richard Gregory Zahn ("Zahn") pleaded guilty to conspiracy to commit offense or to defraud the United States in violation of 18 U.S.C. § 317, with the objects of the conspiracy being violations of: (1) 18 U.S.C. § 1951, interference with commerce by threats or violence; (2) 18 U.S.C. § 1343, fraud by wire, radio, or television; (3) 18 U.S.C. § 666, theft or bribery concerning programs receiving federal funds; and (4) 18 U.S.C. § 1346, participation in a scheme or artifice to deprive another of the intangible right of honest service. On November 23, 2015, this court sentenced Zahn to a probation term of three years.

On December 20, 2019, Zahn filed this action against defendants in this court, seeking a declaratory judgment. Zahn's sole claim asks the court for a declaration that "the prohibitions in Section 922 regarding the purchase and possession of firearms do not apply to him because of the statutory exception contained in Section 921(a)(20[)](A)." ECF No. 1, Compl. ¶ 14. In other words, Zahn asks the court for a declaration that 18 U.S.C. §§ 922(g)(1) and (d)(1) do not prohibit him from possessing a firearm because his conviction fits within the exception contained in 18 U.S.C. § 921(a)(20)(A). On March 13, 2020 defendants filed a motion to dismiss for want of subject matter jurisdiction and failure to state a claim. ECF No. 8. On May 18, 2020, Zahn responded to the motion. ECF No. 12. Defendants did not file a reply, and the time to do so has now expired.

II. DISCUSSION

Article III of the Constitution established the judicial branch as a means to peacefully resolve "Cases" and "Controversies", simultaneously endowing the judiciary with the authority to resolve disputes and limiting the exercise of that power to the nebulous concept of "cases and controversies." U.S. Const. Art. III, § 2. Resolving to encompass the entire concept of federal jurisdiction with two words, the authors of Article III left the Supreme Court to determine the types of disputes which "are of the justiciable sort," Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992), i.e., "appropriately resolved through the judicial process," Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). The Supreme Court has defined the contours of the cases-and-controversies requirement through several "justiciability doctrines." Such doctrines ensure that federal courts hear only true "cases and controversies" by precluding consideration of those matters that are not ripe, see, e.g., Abbott Labs. v. Gardner, 387 U.S. 136 (1967), are moot, see, e.g., Already, LLC v. Nike, Inc., 568 U.S. 85 (2013), ask political questions, see, e.g., Nixon v. United States, 506 U.S. 224 (1993), or seek advisory opinions, see, e.g., Golden v.Zwickler, 394 U.S. 103 (1969). Additionally, a justiciable dispute must be brought by a party with standing, which the Supreme Court has deemed "an essential and unchanging part of the case-or-controversy requirement . . . ." Lujan, 504 U.S. at 560. The concepts of justiciability are fluid and inform the constitutional "cases and controversies" definition by providing examples of the types of disputes that are not justiciable. As such, disputes often run afoul of more than just one of their mandates. Such is the case here.

The Declaratory Judgment Act permits a court to "declare the rights and other legal relations of" interested parties "in a case of actual controversy." 28 U.S.C. § 2201. A court may not entertain a declaratory judgment claim in the absence of an underlying case or controversy. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937) ("The Declaratory Judgment Act of 1934, in its limitation to 'cases of actual controversy' . . . is operative only in respect to controversies which are such in the constitutional sense."). As such, an action for declaratory judgment does not escape the constitutional mandates that its proponent have standing and that it not seek an advisory opinion. See Trustgard Ins. Co. v. Collins, 942 F.3d 195, 199 (4th Cir. 2019) (finding that the court must address issues of Article III justiciability before considering the merits of a declaratory judgment action). In his complaint, Zahn asks this court to declare the criminality of a hypothetical future act. Zahn does not present the court with a justiciable case or controversy because he lacks standing and asks the court to issue an advisory opinion. As such, the court lacks subject matter jurisdiction over Zahn's request and must dismiss the matter.

A. Standing

"[T]he irreducible constitutional minimum of standing contains three elements." Lujan, 504 U.S. at 560. First, a plaintiff must establish an "injury-in-fact", which is a "concrete and particularized . . . invasion of a legally protected interest." Id. Second, "there must be a causal connection between the injury and the conduct complained of, meaning that the injury must be "fairly . . . trace[able] to the challenged action of the defendant." Id. Third, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. Generally, a claim of future injury is insufficient to establish an injury-in-fact. See Clapper v. Amnesty Int'l USA, 568 U.S. 398, 416 (2013) (finding that declaratory-judgment plaintiffs "cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending"). However, the Supreme Court has carved out an exception to this generality where a plaintiff seeks to challenge the constitutionality of a criminal statute. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) ("When contesting the constitutionality of a criminal statute, it is not necessary that the plaintiff first expose himself to actual arrest or prosecution to be entitled to challenge the statute that he claims deters the exercise of his constitutional rights.") (internal quotation marks omitted).

Zahn seizes on Babbit and its progeny to support his contention that the threat of future prosecution, should he resolve to purchase a firearm, is a sufficient injury-in-fact to confer standing for his declaratory judgment action. In Babbit, plaintiffs were farmworkers who challenged the constitutionality of the Arizona Agricultural Employment Relations Act. Determining that the plaintiffs' claim satisfied Article III,the court found that the plaintiffs' fear of imminent prosecution was a sufficiently tangible injury-in-fact to confer the plaintiffs with standing to challenge the constitutionality of the statute. Babbitt, 442 U.S. at 298 ("A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. (emphasis added)). The fact that plaintiffs' claim challenged the constitutionality of the statute was central to the court's finding that the plaintiffs had standing. See id. at 302 ("[W]hen fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative, a plaintiff need not first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute." (emphasis added)). Zahn also relies heavily on a direct descendent of Babbit, a recent Fourth Circuit decision, Kenny v. Wilson, in which the court determined that public school students had standing to challenge South Carolina's "Disorderly Conduct" and "Disturbing Schools" laws. 885 F.3d 280 (4th Cir. 2018).

The problem with Zahn's argument is that the doctrine espoused in Babbit and Kenny is inapplicable to his claim because Zahn is not challenging the constitutionally of a statute. Instead, Zahn merely asks the court to advise him on whether his hypothetical conduct would fall within the prohibitions of § 922 or its exception, § 921(a)(20)(A). ECF No. 1, Compl. ¶ 14 (". . . Plaintiff therefore requests a declaration pursuant to 28 U.S.C Section 2201 [that] the prohibitions in Section 922 regarding the purchase and possession of firearms do not apply to him because of the statutory exception contained in Section 921(a)(20[)](A).").¹ The Supreme Court in Babbit provided a pathway forplaintiffs to challenge the constitutionality of a law without exposing themselves to criminal liability by violating that law. Babbit does not provide a means by which a plaintiff might establish standing to seek a declaration that an otherwise unchallenged law does not apply to his or her future actions. The Babbit plaintiffs asked the court to declare unconstitutional a statute that would inflict imminent harm; Zahn asks this court to declare how an unchallenged statute would be applied to him.

Like Kenny and Babbit, each of the other cases Zahn cites found that a plaintiff had standing for the express purpose of challenging a statute's constitutionality. See City of Chicago v. Morales, 527 U.S. 41 (1999) (challenging the constitutionality of a city "gang loitering" ordinance); Steffel v. Thompson, 415 U.S. 452 (1974) (challenging a Georgia trespass law under the First and Fourteenth Amendments); Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015) (challenging state law that criminalized possession of "gravity knives" as unconstitutionally vague). These cases do not stand for the proposition that a plaintiff can establish standing to...