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FOP v. UNITED STATES

October 2, 1997

THE FRATERNAL ORDER OF POLICE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: ROBERTSON

 A 1996 amendment to the Gun Control Act of 1968 makes it illegal for any person "convicted in any court of a misdemeanor crime of domestic violence" to ship, receive or possess firearms or ammunition that affect interstate commerce. 18 U.S.C. § 922(g)(9). Unlike all other firearm disabilities in 18 U.S.C. § 922(g), the 1996 amendment applies to law enforcement officers. 18 U.S.C. § 925(a)(1).

 This action by the Fraternal Order of Police ("FOP"), an association of law enforcement officers, asserts that the new law exceeds Congress' legislative power under the Commerce Clause and the Tenth Amendment and that it violates the Due Process Clause of the Fifth Amendment. *fn1" The claims that remain viable after the Supreme Court's decision in Printz v. United States, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997), *fn2" deal with the provision of the new law that prohibits possession of firearms by persons convicted of domestic violence misdemeanors, 18 U.S.C. § 922(g)(9).

 Before the court are plaintiff's motion for a preliminary injunction and defendant's motion for dismissal or summary judgment. Defendant's motion will be granted because, although plaintiff does have standing, it has not stated claims for which relief can be granted.

 1. Standing

 An association may sue on behalf of its members if it demonstrates that: (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization's purpose, and (3) the claims asserted and the relief requested do not require the participation of individual members in the lawsuit. United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 134 L. Ed. 2d 758, 116 S. Ct. 1529, 1534 (1996). Plaintiff easily satisfies the second and third elements: FOP lists the promotion of its members' legal interests among its purposes (including law enforcement officers), and no single member of FOP is irreplaceable in the litigation. See Plaintiff's Motion for Preliminary Injunction at Exhibit 4; Plaintiff's Opposition to the Motion to Dismiss at Exhibits 1-5. The first element -- that some FOP members must have standing in their own right -- requires further analysis.

 Plaintiff has filed the affidavits of two FOP members who are law enforcement officers and have been convicted of domestic violence misdemeanors. Plaintiff alleges that the threatened application of 18 U.S.C. § 922(g)(9) has injured and, unless enjoined, will continue to injure those individuals and other member law enforcement officers by infringing on their constitutional rights to possess firearms, impeding their ability to serve as law enforcement officers, diminishing their job-related responsibilities, and resulting, for some of them, in termination of their employment. Complaint at P 25.

 Pre-enforcement constitutional challenges of criminal statutes are most frequently allowed when the threat of criminal prosecution against a complainant is "genuine and imminent." Navegar, Inc. v. United States, 322 U.S. App. D.C. 288, 103 F.3d 994, 1001 (D.C. Cir. 1997). FOP acknowledges that no specific threat of prosecution has been made against its members. FOP does assert, however, that members who have been convicted of domestic violence misdemeanors have been injured by adverse administrative actions taken by local and state law enforcement agencies attempting to comply with the new law. Officers Fidel Ortega and Dennis Meerdter have had their firearms taken from them and have been reassigned to positions of lesser responsibility or put on leave, and they have been unable to work in off-duty security jobs. Officer Ortega states further that lawful possession of a firearm is a prerequisite for all the available positions in his police department, and that he faces termination when his leave expires. Plaintiff's Opposition to Motion to Dismiss, Exhibit 1, PP 16, 21. The uncontroverted affidavits establish injury that is sufficiently concrete and imminent to confer standing on Officers Ortega and Meerdter, if the injury is "fairly traceable" to the government's action.

 "Traceability" can be refuted when the injury which allegedly confers standing results from "unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict." ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 109 S. Ct. 2037, 104 L. Ed. 2d 696 (1989); Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) (quoting ASARCO). Courts have thus refused to find a causal link between an injury and government action where the injury is potentially attributable to a myriad of sources. See, e.g., San Diego Co. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996) (no cognizable economic injury to gun manufacturers because other forces acting in the market had affected the prices, making it impossible to conclude that the passage of a statute had caused the injurious price increase). This case does not present that situation, however. Local and state law enforcement agencies do not have "unfettered choices" or "legitimate discretion" to flout a federal statute by hiring, or continuing to employ, officers whose possession of firearms is a crime.

 Because Ortega and Meerdter would have standing to sue, FOP has standing.

 2. Merits

 a. Commerce Clause

 Plaintiff asserts that § 922(g)(9) is unconstitutional on its face -- that Congress does not have the authority under the Commerce Clause to punish the possession of firearms by convicted misdemeanants. The Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), does not support -- and indeed its rationale defeats -- that assertion. Lopez invalidated a portion of the Gun Free School Zones Act that made it unlawful "for any individual knowingly to possess a firearm at a place that the individual knows, or has reason to believe, is a school zone." The Court observed that the statute ...


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