MEMORANDUM AND ORDER
This matter comes before the court on a motion filed by the government for judgment on the pleadings or for summary judgment on the question of jurisdiction. The government argues in its motion for summary judgment that plaintiffs' pre-enforcement constitutional challenge to § 922(v) and § 922(w) of the Gun Control Act does not constitute a justiciable controversy under Article III because plaintiffs fail to demonstrate the existence of a genuine threat of prosecution. With respect to its motion for judgment on the pleadings, the government contends that plaintiffs' pre-enforcement challenge is barred by the doctrine of ripeness as a prudential matter. Upon consideration of the filings and arguments by counsel, the Court finds that plaintiffs fail to demonstrate the existence of a genuine threat of prosecution as required by Article III. Because plaintiffs lack standing to bring this pre-enforcement challenge, the Court shall grant defendant's motion for summary judgment on jurisdictional grounds.
Accordingly, plaintiffs' pre-enforcement challenge to § 922(v) and § 922(w) of the Gun Control Act shall be dismissed for lack of a justiciable controversy. The court's reasoning is set forth below.
On September 13, 1994, President Clinton signed into law, as part of the 1994 Crime Control Act, amendments to the criminal provisions of the previously amended Gun Control Act of 1968. These new amendments restricted for ten years the manufacture, transfer or possession of certain semiautomatic assault weapons, and the transfer or possession of large capacity ammunition feeding devices. The statutory provisions were effective immediately.
Plaintiffs are two manufacturers of semiautomatic assault weapons. Plaintiff Navegar, Inc. ["Intratec"] was the sole manufacturer of the TEC-DC9
and TEC-22 semiautomatic pistols and the thirty-two round detachable box magazines for the TEC-DC9. Plaintiff Penn Arms, Inc. ["Penn Arms"] was the sole manufacturer of the Striker 12 series 12-gauge shotgun and the 12 round spring motor driven revolving magazine for the Striker 12 series shotgun.
On September 13, 1994, Intratec was visited by regulatory inspectors from the Bureau of Alcohol, Tobacco & Firearms ("ATF") and informed that § 922(v) of the newly amended Gun Control Act prohibited the manufacturing of new TEC-DC9 and TEC-22 semiautomatic pistols unless the guns were for sale to entities enumerated in the Act.
At that time, Intratec had in its inventory some 43,254 frames for its TEC-DC9 and some 9,371 frames for its TEC 22.
According to Intratec, these frames could only be used for the manufacturing of TEC-DC9 and TEC-22.
ATF inspectors also informed Intratec that § 922(w) of the newly amended Gun Control Act prohibited the manufacturing of its 32-round magazines for the Intratec TEC-DC9 and TEC-22 pistols.
At that time, Intratec had in inventory an estimated $ 30,000 worth of magazine parts. See Aff. of Martha Fernandez, P 9.
ATF inspectors also visited the premises of Penn Arms on September 13, 1994, and informed Penn Arms that § 922(v) prohibited the future manufacture of the Striker 12 series shotguns.
At the time, Penn Arms had in its inventory some $ 58,000 worth of component parts unique to the Striker 12 series shotguns.
On September 26, 1994, the ATF sent letters to all federally licenced firearm manufacturers, including Intratec and Penn Arms, to advise them that identifiable semiautomatic assault weapons, if lawfully possessed on September 13, 1994, could be "grandfathered" under § 922(v)(2) and could be assembled and sold to non-enumerated persons or entities. The letter further advised that because some firearms manufacturers may have been unaware of ATF's policy of "grandfathering" weapons, ATF would permit manufacturers to package or group together for future assembly component parts of unassembled weapons for an additional seven days, after which the ATF would conduct a final inventory to create a contemporaneous record identifying all "grandfathered" weapons.
Pursuant to this policy, Intratec assembled 4,401 TEC-DC9 pistols and 3,502 TEC-22 pistols from complete part sets. However, Intratec continues to hold in its inventory over 40,000 unmatched TEC-DC9 and TEC-22 frames and thousands of dollars of unmatched gun parts. Penn Arms was unable to package complete part sets prior to the expiration of the seven day period, and as a result, Penn Arms was unable to assemble complete weapons that could be "grandfathered" under § 922(v)(2).
Within six months of the enactment of the amendments, Intratec and Penn Arms filed an action for declaratory judgment pursuant to 28 U.S.C. § 2201 challenging: (1) the constitutionality of the prohibition by § 922(v)(1) on manufacturing the Intratec TEC-DC9 and TEC-22 pistols and the Striker 12 series shotguns; and (2) the constitutionality of the prohibition by § 922(w)(1) on manufacturing magazines for the TEC pistols and the Striker 12 series shotgun.
Shortly thereafter, the government filed the present motion.
"Article III of the Constitution confines the federal courts to adjudicating actual cases' and controversies."' Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). Federal courts have developed a variety of doctrines -- including ripeness, standing, political question, and the like -- to clarify, and in some instances, elaborate on the case or controversy requirement. All of these doctrines are "founded in concern about the proper -- and properly limited -- role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).
This principle of restraint, as embodied in these jurisdictional doctrines, takes on added significance in the context of actions for declaratory judgement. The ability of the judiciary to declare a law unconstitutional "does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called on to enforce them." Younger v. Harris, 401 U.S. 37, 52, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Rather, the federal judicial power to review the constitutionality of a statute is to be exercised only when dictated by utmost necessity and "only at the instance of one who is himself immediately harmed, or immediately threatened with harm." Poe v. Ullman, 367 U.S. 497, 503, 6 L. Ed. 2d 989, 81 S. Ct. 1752 (1961). Such an exercise of federal judicial power can be "legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals." Chicago & Grand Trunk Ry Co. v. Wellman, 143 U.S. 339, 345, 36 L. Ed. 176, 12 S. Ct. 400 (1938).
Article III imposes an injury-in-fact requirement on plaintiffs who present claims in federal court. The plaintiff must demonstrate, at an "irreducible constitutional minimum," that (1) he personally suffered a "concrete and particularized" injury in fact (2) which is "fairly traceable to the challenged action of the defendant," and (3) "likely, as opposed to merely speculative, [to] be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); accord Valley Forge Christian College v. Americans United, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The injury-in-fact must be "actual or imminent," not "conjectural" or "hypothetical." Lujan, 504 U.S. at 560. Moreover, it is the party who "seeks the exercise of jurisdiction in his favor" who bears the burden of demonstrating that "he is the proper party to invoke judicial resolution of the dispute." FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990).
The injury-in-fact requirement of Article III requires plaintiffs who challenge the constitutionality of a criminal statute to "show a reasonable threat of prosecution for conduct allegedly protected by the Constitution.' " Ripplinger v. Collins, 868 F.2d 1043, 1047 (9th Cir. 1989) (citation omitted). The threat must be "genuine," Steffel v. Thompson, 415 U.S. 452, 475, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974), and "alive at each stage of the litigation." Ellis v. Dyson, 421 U.S. 426, 435, 44 L. Ed. 2d 274, 95 S. Ct. 1691 (1975). In the absence of an indictment, arrest, or immediate threat of prosecution, such a plaintiff has no "live" case or controversy with those charged with enforcing the statute. In such cases, courts routines dismiss plaintiffs for lack of standing. See. e.g., Younger, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Int'l Tape Manuf. Ass'n v. Gerstein, 494 F.2d 25 (5th Cir. 1974); Lion Mfg. Corp. v. Kennedy, 117 U.S. App. D.C. 367, 330 F.2d 833 (D.C. Cir. 1964); Oefinger v. Baker, 1986 U.S. Dist. LEXIS 18370, No. 86-1396 (D.D.C. Oct. 29, 1986).
The government argues in its motion for summary judgment that plaintiffs' pre-enforcement constitutional challenge to § 922(v) and § 922(w) of the Gun Control Act does not constitute a justiciable case or controversy because plaintiffs fail to demonstrate the existence of a genuine threat of prosecution. Plaintiffs, however, contend that the visits by ATF inspectors and the representations made by those ATF inspectors concerning the lawfulness of plaintiffs' gun manufacturing activities constitute a reasonable threat of prosecution. This cannot be the case. The firearm industry is a regulated one, United States v. Biswell, 406 U.S. 311, 315, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972), and visits to manufacturing facilities by ATF inspectors is not unusual. Indeed, "ispectors in ATF's Office of Regulatory Enforcement routinely examine inventory and records at the business premises of federally licensed firearm manufacturers, importers, and dealers as authorized by, and pursuant to, 18 U.S.C. § 923(g)." Suppl. Cates Decl. P 3 (emphasis added).
Furthermore, ATF inspectors are neither authorized to conduct criminal investigations nor empowered to prosecute regulated entities. As explained by the Terry Cates, Chief of the Firearms and Explosive Regulatory Division of the Bureau of Alcohol, Tobacco, and Firearms:
ATF is . . . comprised of two primary operational units -- the Office of Criminal Enforcement and the Office of Regulatory Enforcement. Special Agents in the ATF's Office of Criminal Enforcement conduct criminal investigations of violations of laws . . . and make recommendations to the United States Attorneys concerning criminal prosecutions. Inspectors in ATF's Office of Regulatory Enforcement conduct regulatory inspections of, inter alia, Federal firearms licensees, and make recommendations with respect to administrative actions against lisencees. ATF inspectors are not authorized to conduct criminal investigations, make arrests, seize property, and must, in accordance with agency guidelines, refer potential criminal matters to ATF's Office of Criminal Enforcement.