statute's own identification of particular products manufactured only by the [plaintiffs].").
The Court of Appeals, however, did not completely foreclose a pre-enforcement challenge to the portions of the Act identifying prohibited materials by characteristics only. The Court of Appeals indicated that it would be possible for plaintiffs to establish standing to challenge these portions of the Act if Intratec and Penn Arms could demonstrate a "special priority placed upon preventing these parties from engaging in specified conduct." Id. at 1001. This language makes it clear that in order to establish an imminent threat of prosecution, plaintiffs must demonstrate that some portion of the challenged Act or actions taken by the government in enforcing this Act create a heightened prospect of enforcement with respect to either Penn Arms or Intratec when compared with all other manufacturers who may possibly engage in the proscribed conduct. This is a burden that plaintiffs cannot meet.
A comparison of the language of the First Amended Complaint and the Proposed Second Amended Complaint demonstrates that plaintiffs have simply repackaged arguments under the label of "new facts" that have been previously rejected by both this court and the Court of Appeals. While it is true that the opinion of the Court of Appeals did not completely foreclose the possibility that plaintiffs could establish standing, plaintiffs' Proposed Second Amended Complaint simply fails to present any facts reflecting that a special priority has been placed on either Intratec or Penn Arms under the portions of the Act identifying prohibited firearms or materials by characteristics only. Both Intratec and Penn Arms allege that §§ 922(v)(1) and (4) and § 922(w)(1) prohibit the manufacture and sale of the TEC DC-9, TEC 22, Striker 12, Striker 12S, Striker 12E, Striker 12SE, and 32 round magazines--firearms and ammunition manufactured exclusively by Intratec and Penn Arms. What appears to be the focal point of plaintiffs' argument is the contention that the Bureau of Alcohol, Tobacco, and Firearms ("ATF") would criminally prosecute or revoke the licenses of either Intratec or Penn Arms if these parties continued to manufacture these products. Furthermore, plaintiffs assert that but for this threat of prosecution, the manufacture of the products would begin immediately. Pl.'s Reply to Opp. to Mot. for Leave to Amend Compl. at 2-4.
Notwithstanding these "new facts," it is apparent that plaintiffs simply misconstrue the requirements for standing set forth by the Court of Appeals in its consideration of this issue. The language of the Court of Appeals' opinion indicates that standing to bring a pre-enforcement challenge of the constitutionality of the generic provisions of the Act requires some showing of an imminent threat of prosecution under the Act. In the absence of a specific reference to a particular manufacturer or product by the sections of the Act at issue, the Court of Appeals specified that standing could be demonstrated by a showing that a "special priority" has been placed upon preventing a manufacturer from engaging in the proscribed conduct. Thus, plaintiffs must present some facts indicating that they face a greater or more imminent threat of prosecution than do other manufacturers of these same products. In the absence of such facts, the concerns expressed by the Court of Appeals are still manifest--"[the] generic portions of the Act could be enforced against a great number of weapon manufacturers or distributers . . . [and] nothing in these portions [of the Act] indicates any special priority placed upon preventing [Intratec and Penn Arms] from engaging in specified conduct." Navegar, 103 F.3d at 1001. All other manufacturers of the firearms and ammunition covered under these portions of the Act could make identical claims. In effect, plaintiffs have done nothing to differentiate themselves in any way from any other manufacturer of these products.
In light of these considerations, the information contained in the Proposed Second Amended Complaint fails to establish that plaintiffs would have standing to assert a pre-enforcement challenge to the constitutionality of the generic portions of the the Act identifying prohibited materials by characteristics only. Plaintiffs make no showing that either the Act or the government's enforcement efforts under the Act constitute a "special priority" vis-a-vis other manufacturers.
For the reasons stated above, plaintiffs' motion to further amend their complaint is DENIED and plaintiffs' pre-enforcement constitutional challenge to the generic provisions of the Act identifying prohibited materials by characteristics only remains DISMISSED. It is further
ORDERED that defendant's Motion for Protective Order is DENIED as moot; and it is further
ORDERED that the parties are to submit a supplemental report as required by Local Rule 206(d) within 20 days of this date in accordance with this court's order dated August 28, 1995.
Royce C. Lamberth
United States District Judge
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