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MARYLAND v. BARRY

February 28, 1985

STATE OF MARYLAND, et al., Plaintiffs,
v.
Marion BARRY, et al., Defendants; COMMONWEALTH OF VIRGINIA, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants



The opinion of the court was delivered by: JACKSON

 JACKSON, District Judge.

 Attracted by favorable prices reflecting the District of Columbia's lower liquor tax rates, residents of the District's Maryland and Virginia suburbs have for years been traveling to the District to buy, in quantity, distilled spirits they expect to serve or consume at home. Maryland and Virginia revenue authorities, aware that much untaxed liquor enters their jurisdictions from the District but unable, as a practical matter, to halt it without searching every motor vehicle as it crosses the City line, have regularly dispatched their agents to the District to keep watch at liquor stores for vehicles registered in their states being loaded with alcoholic beverages. Once spotted, a suspect vehicle can be followed or apprehended by cooperating agents alerted and awaiting it as it enters its home state. The practice has, not surprisingly, depressed liquor sales by District merchants to would-be suburban smugglers, particularly during holidays, provoking the District to enact protective legislation, the most recent of which is the subject matter of these related (and therefore consolidated) actions for declaratory and injunctive relief. The State of Maryland, the Commonwealth of Virginia, and various of those states' officials involved in the enforcement of their respective revenue laws, *fn1" ask the Court to declare invalid and enjoin enforcement of certain District of Columbia legislation known as the "State Revenue Officers Registration Act of 1978 Amendment Emergency Act of 1984" (hereafter "the emergency act"). Passed as emergency legislation by the Council of the District of Columbia on December 4, 1984, to be effective December 7, 1984, and remain so for a period of 90 days, the law, as described by Mayor Barry in his letter of transmittal to the Council, "prohibits state revenue officers [of any state, including Virginia and Maryland] from coming into the District of Columbia for the purpose of conducting an investigation, or surveillance of District liquor stores for possible violations of their states' alcoholic beverage control laws." *fn2" The cases are now before the Court on cross-motions of the plaintiffs for summary judgment and of the District of Columbia defendants and defendant-intervenors to dismiss. *fn3" The Court finds sufficient material facts appearing of record to be undisputed for the purpose, and, for the reasons hereinafter set forth, will deny defendants' motions to dismiss and grant plaintiff's motions for summary judgment.

 I.

 Despite a history of indifference to, if not cooperation with, out-of-state revenue agents engaged in surveillance in the City since at least the 1950's, in 1978 the Council of the District of Columbia passed the "State Revenue Officers Registration Act," D.C.Code §§ 4-1001-1002, which required out-of-state revenue agents to register with District police not less than 72 hours before entering the District to conduct liquor-store surveillances. Then, in 1983, in response to reports of allegedly abusive conduct by certain visiting revenue agents, the Council amended the law by "emergency" enactment, effective December 21, 1983, to require that out-of-state agents have registered at least 30 days in advance, thus curtailing virtually all surveillance for the 1983 holiday season, most revenue agents not having been sufficiently prescient to have registered that far ahead. The 1983 emergency legislation expired naturally on March 20, 1984, and no further action was taken by the Council until November 21, 1984, when the 30-day registration requirement was reported out of committee in the form of permanent legislation. The bill was passed over, however, and at the urging of the Mayor, the Council then passed yet another "emergency" measure, the emergency act at issue here, effective December 7, 1984, which barred the entry of out-of-state revenue agents for purposes of surveillance altogether. *fn4" As its legislative predicate the Council found, in substance: (1) that surveillance activities of out-of-state revenue agents had reduced lawful sales of alcoholic beverages in the District, resulting in a concomitant loss of tax revenues to the District ". . . from persons earning their living in the District . . . who otherwise add little to the District's tax base. . . ."; (2) that the surveillance had resulted in "disturbances and harassment" of both retailers and their customers, presenting "a continuing threat to public safety and order"; and (3) that surveillance, if allowed to continue, would have a "negative effect on tourism" in the District.

 II.

 Both Maryland and Virginia contend that the District's emergency act violates a multitude of constitutional provisions. Between them they raise the revenue agents' right to travel, their First and Fifth Amendment rights, equal protection, and the privileges and immunities clauses of Article IV and the Fourteenth Amendment. They also assert that the emergency act contravenes the Commerce Clause and the Twenty-first Amendment. Neither the parties' research nor that of the Court, however, has turned up a precedent in which one state's efforts to prohibit another's law enforcement officials from performing otherwise lawful duties within its borders has been held unconstitutional, or, for that matter, expressly upheld. *fn5"

 As a general rule, the constitutional guarantees relating to freedom of action and equality before the law are deemed to protect individuals only, and only as individuals, not as agents of a state. Compare Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S. Ct. 2333, 2335, 49 L. Ed. 2d 124 (1976) (per curiam); Hague v. C.I.O., 307 U.S. 496, 514, 59 S. Ct. 954, 963, 83 L. Ed. 1423 (1939) (opinion of Roberts, J.); Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 139 & n. 7, 93 S. Ct. 2080, 2104 & n. 7, 36 L. Ed. 2d 772 (1973) (Stewart, J., concurring). See also United States v. White, 322 U.S. 694, 699, 64 S. Ct. 1248, 1251, 88 L. Ed. 1542 (1944). It is also clear that a state acts only through its agents, City of Charlottesville, Va. v. Allen, 240 F.2d 59, 63 (4th Cir.1956), cert. denied, 353 U.S. 910, 77 S. Ct. 667, 1 L. Ed. 2d 664 (1957), and that peace officers are such agents. See, e.g., Daughtry v. Arlington County, 490 F. Supp. 307, 313 (D.D.C.1980).

 The District's emergency provision, on its face, applies only to "state officials," and D.C.Code § 4-1001(2) defines a "state official" as an "agent, employee, or representative officially responsible for the administration and enforcement of laws of a state relating to alcoholic beverages, tobacco, and tobacco products." Thus, by its terms, the emergency act does not purport to infringe the revenue agents' individual constitutional rights of free speech, travel, association, and the like; the officers are restricted only in their capacities, and to the extent they are acting, as state agents. The legislation leaves them free on their own time to enter the District as may any citizen, and to observe and report anything they see to whom they will while they are there. Thus, neither the state plaintiffs nor their co-plaintiff officials possess any rights under the First, Fifth or Fourteenth Amendments which the proscriptions of the emergency act appear to offend.

 Plaintiffs' arguments based upon the Commerce Clause and the Twenty-first Amendment are similarly tenuous. Plaintiffs begin with the assertion that state regulation designed to confer economic benefits on local businesses and residents at the expense of other states is generally impermissible. But, while "simple economic protectionism" may be "virtually per se " unconstitutional, see City of Philadelphia v. New Jersey, 437 U.S. at 617, 624, 98 S. Ct. 2531, 2535, 57 L. Ed. 2d 475 (1978), the Supreme Court has also observed that

 
where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 [90 S. Ct. 844, 25 L. Ed. 2d 174] (1970).

 Id. at 623-24, 98 S. Ct. at 2535-36. Pike v. Bruce Church, in turn, has been explained as holding that

 
if . . . the state regulation does not seek to distinguish between articles of commerce on the basis of their domestic or out-of-state origins, and the effects on interstate commerce are only incidental, the regulation will be found to burden commerce impermissibly only if, on balance, the benefits sought by the regulating state [do not] outweigh the detriments to interstate commerce.

 U.S. Brewers Association v. Healy, 692 F.2d 275, 279 (2d Cir.1982), aff'd mem., 464 U.S. 909, 104 S. Ct. ...


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