Petition for Writ of Certiorari — Printz v. United States

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Court, US.

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/ 91503 war 18 1996

No. ____ OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

SHERIFF RICHARD MACK,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Davip T. Harpy

8987 E. Tanque Verde, Ste. 265

Tucson, AZ 85749

Tel. (520) 749-0241

Attorney for Petitioner

ee —_ — — — EEE SSS

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether Congress exceeds its Commerce Clause

powers when it orders State officials, themselves neither

engaged in nor interfering with interstate commerce, to

exercise their police powers with regard to commerce.

2. Whether a Federal statute requiring State officials

to investigate and pass upon the background of each

handgun purchaser can be reconciled with the Tenth

Amendment as construed in New York v. United States, 505

U.S. 144 (1992), on the claimed distinction that it com-

mandeers a State’s labor rather than its policymaking.

PARTIES TO THE PROCEEDING

The parties to the proceeding below were Sheriff

Richard Mack and the United States of America. Neither

has parent companies or wholly or nonwholly owned

subsidiaries.

TABLE OF CONTENTS

Page

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Parties To The Proceeding ................00eeeee0s ii

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Statutes And Constitutional Provisions Involved.... 2

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Reasons For Granting The Writ.................... 8

l. The Ninth Circuit's Decision Broadens The

Commerce Power In A Manner Which Con-

flicts With The Rulings Of This Court And Of

EE SE EEE OTOP TEES Xs

Il. The Decision Of The Ninth Circuit Improperly

Narrows The Scope Of The Tenth Amendment

As Recognized In New York v. United States.. 12

Nec ebeectes 19

AUTHORITIES CITED

Page

Cases

Board of Natural Resources v. Brown, 992 F.2d 937

SR Se Gls c badnccncacuceabsedecede 15, 16, 17, 19

Bowsher v. Synar, 478 U.S. 714 (1986).............45. 18

Brown v. EPA, 521 F.2d 827 (9th Cir. 1975),

remanded for consideration of mootness, 431 U.S. 99

(1977), opinion on remand, 566 F.2d 665 (9th Cir.

SO sccecusceccovhoseedecweddl dedeucweoweseenel 9, 11

Buckley v. Valeo, 424 U.S. 1 (1976).... 2.2.6... ee ene 18

District of Columbia v. Train, 521 F.2d 971 (D.C. Cir.

1975), remanded for consideration of mootness sub

nom., EPA v. Brown, 431 U.S. 99 (1977).......... 9, 11

FERC v. Mississippi, 456 U.S. 742 (1982) ............. 13

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

BD GE. cockvachickdectadinuiedsatbeeonn ..10, 13

Hodel v. Virginia Surface Mining & Reclam. Ass'n,

Ris, GES Das GS Ge 6 c Ko kcweeodevedudeetbebtse 13

Mack v. United States, 856 F. Supp. 1372 (D. Ariz.

1994), rev'd, 66 F.3d 1025 ( - |B Feaeerr 1

New York v. United States, 505 U.S. 144 (1992) ... passim

Puerto Rico v. Branstad, 483 U.S. 219 (1987).......... 10

South Carolina v. Baker, 485 U.S. 505 (1988).......... 10

State of Maryland v. EPA, 530 F.2d 215 (4th Cir.

1975), remanded for consideration of mootness sub

nom. EPA v. Brown, 431 U.S. 99 (1977) .......... 9, 11

Teate O Hate, TD UG. Fe CORED occ ccccccccscccccess 13

AUTHORITIES CITED - Continued

United States v. Lopez, 115 S.Ct. 1624 (1995).......... 11

Voting Rights Coalition v. Wilson, 60 F.3d 1411 (9th

Cir. 1995), cert. denied, 64 U.S.L.W. 3501 (1996) .... 10

CONSTITUTIONAL PROVISIONS

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AUTHORITIES CITED - Continued

Page

REGULATIONS

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Attorney General Order No. 1853-94, 59 Federal

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TREATISES AND ARTICLES

B. Bailyn, The Ideological Origins of the American

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D. Merritt, The Guarantee Clause and State Auton-

— 42 fs FS £0 Ree 13

D. Merritt, Three Faces of Federalism, 47 Vand. L.

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Pees Ge Be Ge, HO, ... cdvcdivbtcbece'l odes 18

Federalist No. 45 (J. Madison) ................0000005. 8

Federalist No. 51 (J. Madison) .......................- 19

Petitioner Sheriff Richard Mack requests that a writ

of certiorari issue to review the fina! order of the United

States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported as Mack v. United States, 66 F.3d 1025 (9th Cir.

1995) and is reproduced in the Appendix (“App.”) at 1.

The order of the Court of Appeals denying Petitioner's

petition for rehearing is unpublished, and is reproduced

at App. 24. The opinion of the United States District

Court is reported as Mack v. United States, 856 F. Supp.

1372 (D. Ariz. 1994) and is reproduced at App. 26.

JURISDICTION

On September 8, 1995, the Court of Appeals reversed

in part, affirmed in part, and dismissed in part the judg-

ment of the District Court, thereby upholding the validity

of the statutory provisions in question. On December 19,

1995, the Court of Appeals denied Petitioner's petition

for rehearing and suggestion for rehearing en banc. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Article I, §8 of the Constitution of the United States

provides:

Congress shall have the power . . . to regu-

late Commerce with foreign Nations, and among

the several States... .

Amendment 10 to the Constitution of the United

States provides:

The powers not delegated to the United

States by the Constitution, nor prohibited by it

to the States, are reserved to the States respec-

tively, or to the people.

Pub. L. 103-159, 107 Stat. 1536 (1993), codified as 18

U.S.C. §§922(s), 924, 925A, is reproduced in full at App.

51. As codified, it provides in relevant part:

18 U.S.C. §922(s):

(1)... . it shall be unlawful for any

.. . licensed dealer to sell, deliver, or transfer a

handgun ... unless... .

(A)(i) the transferor has -

(I) received from the transferee a state-

ment of the transferee containing the

information described in paragraph

(III) within 1 day ... provided notice of

the contents of the statement to the chief

law enforcement officer of the place of

residence of the transferee... .

(2) A chief law enforcement officer to whom a

transferor has provided notice pursuant to para-

graph (1)(A)(i)(III) shall make a reasonable

effort to ascertain within 5 business days

whether receipt or possession would be in viola-

tion of the law, including research in whatever

State and local recordkeeping systems are avail-

able and in a national system designated by the

Attorney General.

18 U.S.C. §924(5):

Whoever knowingly violates subsection (s)

or (t) of section 922 shall be fined not more than

$1,000, imprisoned for not more than 1 year, or

both.”

18 U.S.C. §925A:

Any person denied a firearm pursuant to sub-

section (s) or (t) of section 922 -

(2) who was not prohibited from receipt of a

firearm . . . may bring an action against the

State or political subdivision responsible for

... denying the transfer . . . for an order direct-

ing that .. . the transfer be approved. . . . In any

action under this section, the court, in its discre-

tion, may allow the prevailing party a reason-

able attorney's fee as part of the costs.

STATEMENT OF THE CASE

Federal law has long prohibited the receipt of fire-

arms by certain classes of persons. These are defined with

varying degrees of clarity and complexity, but generally

include those convicted of certain offenses! and who have

not received pardon, restoration of civil rights, or Federal

relief from disabilities, undocumented aliens, users of

illicit drugs, those who have been the subject of certain

mental adjudications, those given dishonorable military

discharges, persons who have renounced American citi-

zenship, and those subject to certain domestic restraining

orders. 18 U.S.C. §922(g), (n). Persons purchasing from a

Federally-licensed firearms dealer are required to attest

that they fall within none of these categories; the attesta-

tion is available for inspection by Federal agents, who

may bring Federal charges as appropriate. 18 U.S.C.

§923(g)(1)(A),(B); 27 C.F.R. §§178.124, 178.161.

With the expressed intent of increasing the effective-

ness of these restrictions, Congress enacted Pub. L.

103-159, 107 Stat. 1536 (1993). That statute envisioned an

eventual “permanent system” whereby each handgun

purchaser would be checked against an automated Fed-

eral database of prohibited purchasers. Since no such

Federal database exists,? the statute created an “interim

system” under which duties would be placed upon State

1 In general, those convicted of an offense punishable by

imprisonment of more than a year, excepting certain business

offenses and offenses denominated misdemeanors and

punishable by no more than two years’ imprisonment. 18 U.S.C.

§921(a)(20). “Open-ended” offenses are treated in accord with

the law of the jurisdiction of conviction. Id.

2 NCIC reflects outstanding warrants; State criminal

records are of varying detail, often reflecting arrests but not

convictions, let alone restorations of civil rights. Centralized

records of the other categories - dishonorable discharges,

mental adjudications, domestic restraining orders, etc. - simply

do not exist.

ee — "

officials for five years, or until the Federal system is

funded and functional.

Under the interim system, every Federally-licensed

firearms dealer is required to send a Federal form, giving

notice of each handgun sale, to his “Chief Law Enforce-

ment Official” (CLEO), a term defined to exclude Federal,

and include State, law enforcement officials. 18 U.S.C.

§922(s)(8). The CLEO is in turn required3, within five

business days, to make reasonable effort to determine

whether each purchaser so reported is forbidden to

receive firearms by any Federal, State, or local law. 18

U.S.C. §922(5)(2). (Paradoxically, the minimum effort

required of the State official is the consultation of

databases maintained by Federal offices. 18 U.S.C.

§922(s)(2).).

If the CLEO finds no bar to the purchase, the statute

commands him to destroy the form and any references to

it within twenty business days. 18 U.S.C. §922(s)(6)(B). If

he finds a bar, he must so inform the Federally-licensed

dealer and, if the purchaser requests, provide a written

justification of his findings. 18 U.S.C. §922(s)(6)(C).

Should the CLEO err in barring a purchase, the statute

creates a Federal cause of action against his jurisdiction

for correction and recovery of attorneys’ fees. 18 U.S.C.

§925A.

* Earlier bills had sought to provide opportunity for a State

background check, rather than to mandate it. The proponents of

the legislation in the 103d Congress, in contrast, stressed the

mandatory nature of background checks as a virtue of their

proposal. See H.R. Rep. No. 103-344, at 7 (1993); 139 Cong. Rec.

H9091, H9094-95, H9107 (Daily ed., Nov. 10, 1993).

The 1993 statute thus shifts the primary burden of

enforcing the Federal system onto State officials, requir-

ing them to consult Federal records to determine whether

each sale by a Federally-licensed dealer meets Federal

standards. Pursuant to its requirements, the Attorney

General of the United States issued Order No.1853-94,

ordering State CLEOs to consult two Federal databases.

59 Federal Register 9498 (Feb. 28, 1994). State officials

were thus required to check Federal forms, submitted by

Federally-licensed dealers, against Federal databases and

Federal law.

Petitioner Richard Mack is Sheriff and thus CLEO of

Graham County, Arizona. As Sheriff, he is responsible for

maintaining the peace of its 28,000 residents. App. 63.

Even prior to enactment of the statute at issue, his force

of twelve sworn officers was able to average but 1.5

officers on patrol at any given time, to cover a 4,500

square mile jurisdiction. Id.

Under the new Federal mandate, Petitioner was

obliged to attempt to verify that each handgun sold by

the county’s 35 licensed dealers was in fact transferred to

a lawful purchaser. The work consumed one to two man-

hours of effort per day. App. 65. In the first three months,

Petitioner processed over eighty purchase forms, of

which exactly one proved questionable. Id. The mandated

labor earned Petitioner the anger of his constituents, who

held him accountable for diversion of his law enforce-

ment resources. App. 66.

In February, 1993, Petitioner commenced an action in

the United States District Court, District of Arizona,

invoking its jurisdiction under 28 U.S.C. §1331. He sought

declaratory relief establishing, inter alia, that 18 U.S.C.

§922(s) exceeds Congress’ Article | powers and is incon-

sistent with the Tenth Amendment, and an injunction

against its enforcement.

The District Court (Roll, J.), relying upon this Court's

decision in New York v. United States, 505 U.S. 144 (1992),

entered final judgment striking those parts of 18 U.S.C.

§922(s) which purport to impose duties upon State offi-

cials and upheld the remainder of the statute as sever-

able. App. 26.

A divided Court of Appeals reversed the judgment of

the District Court striking portions of the statute. The

majority disposed of the Commerce Clause issue with a

brief note that the statute regulates commerce. App. 5. It

dealt with the Tenth Amendment concern by concluding

that New York does not bar mandates to State officials to

enforce, as opposed to enact, Federal programs:

The Brady Act is not the kind of a federal man-

date condemned by New York, nor does it pre-

sent the concerns related above. . . . It is true

that, for a limited period of time, the Act

requires state law enforcement officials, the

CLEOs, to make reasonable efforts to assist in

carrying out the federal program. But the

CLEOs are not being commanded to engage in

the central sovereign processes of enacting legis-

lation or regulations. . . . Instead, they are

directed to serve for a temporary period as law

enforcement functionaries in carrying out a fed-

eral program.

App. 12-13. In dissent, Judge Fernandez argued that the

enact/enforce distinction was inconsistent with the teach-

ing of New York. “This case makes palpable the notion

that the states are just a part of the national government,

a notion that was rejected when this country was

founded.” Judge Fernandez added that, if an enact/

enforce distinction could be drawn, the latter would be

the greater, not the lesser. infringement of federalism:

Rather than ordering state legislatures or agen-

cies to adopt a scheme for vetting requests for

gun transfers, Congress has avoided that hin-

drance and dragooned the state officials directly.

Under this new approach, the states have noth-

ing to say about it. Their officials are ordered to

become part of a federal gun control program at

the state’s own expense and are ordered to

engage in various tasks necessary to administer

that program.

App. 21.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s Decision Broadens The Commerce

Power In A Manner Which Conflicts With The Rulings

Of This Court And Of Other Circuits

The Framers believed that liberty was best preserved

by dividing the responsibilities of power among jealous

rivals — executive and legislative, State and Federal. To

protect the role of the States, the Framers gave the

national government powers that were “few and

defined,” Federalist No. 45 (J. Madison), a limitation

underscored by the later ratification of the Tenth Amend-

ment.

Among those defined powers was authority “to regu-

late commerce . . . among the several States.” Art. I, §8.

As the nation has grown, so has this power. But in 1993

Congress chose to regulate, rot commerce, but the States

themselves. It issued commands to their officials, not on

the basis that they were engaging in or regulating com-

merce, but on the basis that they were declining to do so.

For two centuries, it has been the understanding of

all - Congress, President, and courts — that the Commerce

Clause does not authorize Congress to command the

States to regulate commerce. Two decades have passed

since the Courts of Appeals overwhelming rejected, and

the United States declined to defend, attempts to com-

mand State enforcement of Federal regulation of com-

merce. That chain of cases began when the EPA “vetoed”

certain State attempts at Clean Air Act compliance and

imposed Federal standards. Rather than use Federal

resources to enforce its standards, EPA asserted the statu-

tory power to force State agencies to apply them.

The Fourth, Ninth, and District of Columbia Circuits

held that such a construction would exceed the Com-

merce Clause and Tenth Amendment restrictions, and

repudiated the asserted power. See State of Maryland v.

EPA, 530 F.2d 215, 227-28 (4th Cir. 1975); Brown v. EPA,

521 F.2d 827, 837-39 (9th Cir. 1975); District of Columbia v.

Train, 521 F.2d 971, 992 (D.C. Cir. 1975) (“We are aware of

no decisions of the Supreme Court which hold that the

federal government may validly exercise its commerce

power by directing nonconsenting states to regulate

activities affecting interstate commerce, and we doubt

that any exist.”).4

After this Court granted certiorari, the Solicitor Gen-

eral declined to defend the regulations, see Brief for the

Federal Parties, EPA v. Brown (No. 75-909) at 20 n.14, and

this Court acted upon the concession. EPA v. Brown, 431

U.S. 99 (1977).

The issue, indefensible in 1977, now reappears. It is

presented, paradoxically, in the wake of this Court's

recent reiteration that:

While the Framers no doubt endowed Congress

with the power to regulate interstate commerce

in order to avoid further instances of the inter-

state trade disputes that were common under

the Articles of Confederation, the Framers did

not intend that Congress should exercise that

power through the mechanism of mandating

State regulation. The Constitution established

Congress as a ‘superintending authority over

the reciprocal trade’ among the States, The Fed-

eralist No. 42, p. 268 (C. Rossiter, ed. 1961) by

empowering Congress to regulate that trade

directly, not by authorizing Congress to issue

trade-related orders to State governments.

4 It is noteworthy that all Federal commands to the States

upheld to date involved either commercial activity by the State

itself, see, e.g., Garcia v. San Antonio Metropolitan Transit Auth.,

469 F.2d 528 (1985) (payment of wages); South Carolina v. Baker,

485 U.S. 505 (1988) (issuance of bonds) or enumerated non-

commerce powers. See Puerto Rico v. Branstad, 483 U.S. 219

(1987) (Extradition Clause); cf. Voting Rights Coalition v. Wilson,

60 F.3d 1411 (9th Cir. 1995), cert. denied, 64 U.S.L.W. 3501 (1996)

(Elections Clause).

New York v. United States, 505 U.S. at 166; see also United

States v. Lopez, 115 S.Ct. 1624, 1626 (1995) (invalidating

statute which neither regulated commerce nor required a

connection to commerce).

Petitioner's position was simple: while firearms may

flow in interstate commerce, he is not a firearms dealer,

but a State official exercising police powers given him by

the people of Arizona. (Appellee’s Brief, 16-17; Reply

Brief, 3; App. 22, 43). He neither engages in nor interferes

with interstate commerce when he declines to review

firearm purchase forms. If anything, he is refusing to

affect commerce, and Congress is attempting to force him

to do so.

The Ninth Circuit here disposed of the Commerce

Clause issue with the note that regulation of firearm sales

lies within the commerce power, and the statute in ques-

tion focuses on sale rather than simple possession. App.

5. The fact that others in a State engage in commerce is

thus made dispositive of the Congressional power to

command State officials.

This treatment places the Ninth Circuit in conflict

with New York and Lopez, not to mention Circuit rulings in

State of Marylané Brown, and Train.° If it is good law, then

5 The Ninth Circuit attempts to distinguish Brown on the

claim that the EPA there sought to compel State adoption of

regulations. App. 15. In fact, the State regulations involved in

these cases had been “vetoed,” and Federal regulations

imposed. The issue was posed even more clearly on remand,

when the Administrator disavowed all intent of forcing State

rulemaking, and the court specifically rejected the power to

require State enforcement of Federal regulations. Brown v. EPA,

566 F.2d 665 (9th Cir. 1977).

New York caneot be: nuclear waste travels in and affects

commerce, and Congress would have every right to com-

mand States to deal with it.

The Ninth Circuit decision, in sum, extends the Com-

merce Clause to the point wher it abrogates the core

principles of federalism itself. li ine national sovereign

can use the plenary power of the Commerce Clause to

force State officials to control commerce as it sees fit, then

indeed States are no more than regional offices of the

national government - and unpaid ones at that.

The Decision Of The Ninth Circuit Improperly Narrows

The Scope Of The Tenth Amendment As Recognized In

New York v. United States.

The United States has repeatedly argued before this

Court that mandated State enforcement of Federal policy

would pose the quintessential Tenth Amendment viola-

tion:

Under this Court’s decision in New York v.

United States, supra, very different constitutional

issues would be presented if Congress imposed

statutory requirements or prohibitions directly

upon state and local educational officials, or if

Congress mandated that state and local govern-

ments assume responsibility for the enforcement

of federal law.

Reply Brief for the United States, United States v. Lopez

(No. 93-1260) at 10.° By virtue of a reversal of Respon-

dent's Tenth Amendment position, these “very different

constitutional issues” are now squarely posed.

This Court has outlined in detail the parameters of

Tenth Amendment federalism. While Congress can sub-

ject States to generally applicable regulations, Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), or to

special regulation if it offers valid alternatives, FERC v.

Mississippi, 456 U.S. 742 (1982) (option of abstaining from

regulating commerce); Hodel v. Virginia Surface Mining &

Reclam. Ass'n, Inc., 452 U.S. 264 (1981) (option of Federal

pre-emption), or can (pursuant to the Supremacy Clause)

require State adjudicators to apply Federal law, Testa v.

Katt, 330 U.S. 386 (1947),” it cannot unconditionally com-

mandeer State resources for its own ends. New York v.

United States.

States, at 37 (distinguishing statute from hypothetical measures

requiring “implementation of federal policies regulating private

conduct, which would transform State administrative bodies

into ‘field offices of the national bureaucracy.’ ”).

? Testa invalidated a State bar to enforcement of certain

Federal claims in State courts of general jurisdiction. The

rationale was simple: courts of general jurisdiction by definition

rule upon all legal issues brought before them, and a

constitutional Federal statute is entitled to supremacy. The

filing of Federal claims in State court was the rule in the early

republic; the State duty to hear them was recognized as early as

Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). “No such

historical tradition supports federal compulsion of a state's

executive or legislative branches.” D. Merritt, The Guarantee

Clause and State Autonomy, 88 Col. L. Rev. 1, 66 n.369 (1988).

New York sets forth this Court’s understanding of the

Tenth Amendment. There, the Low-Level Radioactive

Waste Policy Act gave States two alternatives: enter into

specified interstate compacts (a legislative act) or take

title to waste upon tender (a ministerial act at most). This

Court concluded that neither alternative met Tenth

Amendment muster.

The Court's rejection of the “take title” alternative is

inconsistent with the Ninth Circuit's discovery that feder-

alism protects only narrowly-defined legislative powers

of the States:

On one hand, the Constitution would not permit

Congress simply to transfer radioactive waste

from generators to state governments. Such a

forced transfer, standing alone, would be in

principle no different from a congressionally

compelled subsidy from state governments to

radioactive waste producers. The same is true of

the provision requiring state governments to

become liable for the generators’ damages.

Standing alone, this provision would be indis- -

tinguishable from an Act of Congress directing

the states to assume the liabilities of certain

state residents. Either type of federal action

would ‘commandeer’ state governments into the

service of federal regulatory purposes, and

would for this reason be inconsistent with the

Constitution’s division of authority between

federal and state governments.

505 U.S. at 175. The breadth of New York's holding was

underscored by this Court’s use of the disjunctive:

“Whatever the outer limits of [State] sovereignty may be,

one thing is clear: the federal government may not com-

pel the states to enact or administer a federal regulatory

program.” Id. at 188 (emphasis supplied).

This understanding is shared by Board of Natural

Resources v. Brown, 992 F.2d 937 (9th Cir. 1993). There the

circuit considered the constitutionality of the Forest

Resources Conservation Act, 16 U.S.C. §§620-620j. That™

statute essentially banned export of timber harvested on

State lands, and required governors to issue implement-

ing regulations. The panel held the disputed portion of

the statute void under New York. To the government's

contention that “Washington can avoid the Act altogether

by simply halting all sales of timber,” the circuit

responded that this “is a choice similar to the one

declared unconstitutional in New York, as it presents an

alternative, halting all timber sales, that Congress has no

authority to command.” 992 F.2d at 947.*

The Ninth Circuit’s decision here flies in the face of

this precedent. It places a gloss on this New York's use of

“or administer,” concluding that this Court must have

meant only “ ‘administer’ in the sense of being in charge

of a program and making policy decisions. ...” App. 11,

* The government had contended: “The Counties’ Tenth

Amendment claim fails first because Washington can remove

itself from the reach of Section 491 entirely by halting sales of

timber from the State’s public lands. . . . In fact, the alternative

open to Washington here would appear to be far less onerous

than the alternative that eliminated the question of

commandeering in FERC.” It went on to contend that the State

could still derive value from the resource, simply by selling

timber lands rather than harvesting the timber itself. Brief for

the Appellees, at 42-43.

n.7. The interpolation is inconsistent with the holding of

New York, which invalidated both compelled compacts and

mandated acceptance of title, and with the result in Board

of Natural Resources v. Brown. The Tenth Amendment pro-

tects from Federal appropriation a State’s resources — its

treasury, timber, and manpower — not merely its policy

decisions.

If the Circuit’s newfound explanation of federalism is

flawed, its application shrinks the Tenth Amendment to a

Cartesian point, an abstraction with location but no

dimensions. Although Petitioner is required to reallocate

scarce resources given him by the voters, to exercise

judgment as to how much effort is “reasonable,” to guess

as to whether to withhold permission where records are

incomplete, and to take the blame (and civil liability

created by the statute) for erroneous determinations, the

Circuit suggests that he is not forced to “ ‘administer’ in

the sense of being in charge of a program.” App. 11.’

Although his constituents have in actuality blamed him

for his involuntary role, the holding finds no accoun-

tability problem since with a better grasp of the law they

would not do so. App. 12 n.8.'°

% If CLEOs are not in charge of the statutory “program,”

one is left to wonder just who is. The CLEOs set the standards,

conduct the reviews, allow or stop the transfer, set out the

justification for denials, and are subject to suit if they err.

fewer than three misplaced accountability problems. First, State

officials will be blamed for shortfalls if resources are diverted to

the Federal objective; if Petitioner's office cannot respond to a

crime in progress, or patrol strength is thinned, he and not

Congress will be held accountable. Second, constituents may

The conflict between the Ninth Circuit and New York

is absolute. If the Ninth Circuit is correct, then New York

is wrong: the Federal government could have ordered

State officials to take title to the waste and build appro-

priate disposal sites. Indeed, the national sovereign could

have commanded them to reallocate their resources in

any way it desired. There could have been no problem

with misplaced accountability, since all requirements

were imposed by Federal law. An identical conflict exists

with the circuit disposition of Board of Natural Resources v.

Brown, holding that the Federal government could not bar

sale of State resources.

The Circuit decision reduces to a simple proposition:

the national government may not make States its regional

offices, for regional offices have discretion, but it may

make them its messengers and file clerks. Principles of

federalism are violated only if States are left with some

discretion, not if they are bypassed and blind obedience

is demanded of their servants. This strange understand-

ing of dual sovereignty opens the door to national legisla-

tors, naturally desirous of claiming credit for action and

yet of avoiding blame for its costs, to claim credit

blame the State official for the underlying law; this has already

happened to Petitioner. Third, constituents denied privileges by

the adjudications forced upon State officials will blame the

officials for a supposedly incorrect decision. This, too, has

already been Petitioner's lot. D. Merritt, Three Faces of

— 47 Vand. L. Rev. 1563, 1580 n.65 (1994). See App.

65-66.

for programs created yet shift the entire cost of operation

to the State official of their choice."

From the distance of two centuries, the novelty of the

Frarners’ creation is easily overlooked. In creating a fed-

eral structure, they disregarded the first concept of con-

temporary political science — that there could be no

imperium in imperio, no supreme ruling power within a

supreme ruling power — and substituted a concept

whereby imperium remained with the people, who appor-

tioned it between two different sovereigns. See generally

B. Bailyn, The Ideological Origins of the American Revo-

lution 198-229 (1967). The Framers took comfort in the

reflection that “Power is almost always the rival of

power.” Federalist No. 28 (A. Hamilton). Rather than fear-

ing the inefficiency of divided power, they rejoiced that

In the compound republic of America, the

power surrendered by the people is first divided

between two distinct governments, and then the

'! Tenth Amendment analysis indeed understates the

impact of this statutory innovation upon the Constitutional

scheme. The President, charged with “tak[ing] care that the laws

be faithfully executed” Art. II, §3, and with appointing “inferior

officers” for that duty, Art. Il, §2 is no longer empowered or

accountable: Congress simply conscripts non-federal employees

for the duty. The strictures of Buckley v. Valeo, 424 U.S. 1, 132-36

(1976) and Bowsher v. Synar, 478 U.S. 714 (1986) are thus

sidestepped. The national government's taxing and spending

powers, Art. 1, §8, subject to the requirement of appropriation

and published budget, Art. I §9, are likewise evaded by

conscription of another sovereign’s resources. The people of the

States retain a republican form of government , Art. IV, §4, only

to the doubtful extent that a republic can be said to exist where

the people cannot fix the duties and powers of those they elect

and the uses of the resources they appropriate.

portion allotted to each subdivided among dis-

tinct and separate departments. Hence a double

security arises to the rights of the people. The

different governments will control each other, at

the same time that each will be controlled by

itself.

Federalist No. 51 (J. Madison). These practical judgments

have withstood the hard test of two centuries. They are

set at nought by the Ninth Circuit’s construction of the

Tenth Amendment.

We respectfully suggest that the Circuit’s view of that

amendment marks a complete abandonment of the teach-

ings of New York, conflicts with Board of Natural Resources,

and marks an abrogation of the core principles of federal-

ism.

CONCLUSION

For the foregoing reasons we respectfully submit that

the Court should grant a writ of certiorari to review the

decision of the United States Court of Appeals for the

Ninth Circuit.

Davip T. Harpy

Attorney for Petitioner

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App. 1

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed September 8, 1995]

Nos. 94-16940/94-17002

D.C. No. CV-94-00113-IMR

RICHARD MACK, Sheriff of Graham

County, Arizona,

Plaintiff-Appellee-Cross-Appellant,

UNITED STATES OF AMERICA,

Defendant-Appellant-

Cross-Appellee.

Appeals from the United States

District Court for the District of

Arizona John M. Roll, District Judge.

Argued and Submitted

July 11, 1995 — San Francisco, California

OPINION

[Filed September 8, 1995]

Before: Herbert Y.C. Choy, William C. Canby, Jr., and

Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Canby; Partial Concurrence and

Partial Dissent by Judge Fernandez

App. 2

Opinion

CANBY, Circuit Judge:

Sheriffs Richard Mack and Jay Printz, in separate

actions, challenged the constitutionality of the Brady

Handgun Control Act, P.L. 103-159, 107 Stat. 1536 (1993),

codified at 18 U.S.C. § 922(s). The main issue on appeal

concerns the district courts’ respective holdings that sec-

tion 922(s)(2) of the Brady Act, requiring local law

enforcement officials to perform background checks of

handgun purchasers, violates the Tenth Amendment. We

conclude that the Act is constitutional, and we accord-

ingly reverse the judgments of the district courts.

FACTS

The Brady Act, passed in 1993 as an amendment to

the Gun Control Act of 1968, imposes a waiting period of

up to five days for the purchase of a handgun, and

subjects purchasers to a background check during that

period.' See 18 U.S.C. § 922(s)(1). Within five years from

the effective date of the Act, such checks will be per-

formed instantaneously through a nationai criminal back-

ground check system maintained by the Department of

Justice, 18 U.S.C. § 922(t), but in the meantime the back-

ground checks must be performed by the Chief Law

Enforcement Officer (CLEO) of the prospective pur-

chaser’s place of residence. 18 U.S.C. § 922(s)(2). The Act

! The waiting period and background check prescribed by

the Act are not required in States that have permit systems

meeting standards prescribed by the Act. 18 U.S.C.

§ 922(s)(1)(C), (D).

App. 3

requires CLEOs to “make a reasonable effort to ascertain

... whether receipt or possession [of a handgun by the

prospective buyer] would be in violation of the law... . ”

Id. The CLEO performs the check on the basis of a sworn

statement signed by the buyer and provided to the CLEO

by a federally-licensed gun dealer. 18 U.S.C.

§ 922(s)(1)(A). If the CLEO approves the transfer, he or

she must destroy the buyer's statement within twenty

business days after the statement was made. 18 U.S.C.

§ 922(s)(6)(B)(i). If the CLEO disapproves the transfer, the

CLEO must provide the reasons for the determination

within twenty business days if so requested by the disap-

pointed purchaser. 18 U.S.C. § 922(s)(6)(C).

Richard Mack and Jay Printz, as sheriffs, are the

CLEOs in their respective jurisdictions of Graham

County, Arizona, and Ravalli County, Montana. They

brought these actions in their local federal district courts

to challenge the Brady Act’s provisions imposing duties

upon them. Mack and Printz both invoked the Tenth and

Fifth Amendments. Mack also challenged the Act as vio-

lating the Thirteenth Amendment.

Both district courts held that section 922(s)(2) of the

Act, by imposing on the sheriffs a mandatory duty to

conduct background checks, violated the Tenth Amend-

ment as interpreted by the Supreme Court in United States

v. New York, 505 U.S. 144, 120 L. Ed. 2d 120, 112 S. Ct. 2408

(1992). See Mack v. United States, 856 F. Supp. 1372 (D.

Ariz. 1994); Printz v. United States, 854 F. Supp. 1503 (D.

App. 4

Mont. 1994).? Neither court enjoined the provisions of the

Act requiring CLEQOs to explain the reasons for rejecting a

purchase application, § 922(s)(6)(C), and requiring

destruction of records, § 922(s)(6)(B). The Printz decision

noted that the requirement of a statement of reasons

became optional once the mandatory background check

was invalidated, and that the provision for destruction of

records was “de minimis.”

In Mack, the district court also held that the criminal

provisions of the Act applied to CLEOs, and were void

for vagueness under the Fifth Amendment because they

made it a crime for CLEOs to fail to make a “reasonable

effort” to ascertain the lawfulness of a prospective hand-

gun purchase. The Printz court held that the criminal

provisions did not apply to CLEOs. Finally, the Mack

court rejected Mack’s Thirteenth Amendment challenge.

Both district courts held that the invalid portions of the

Act were severable, and accordingly refused to hold the

entire Act unconstitutional.

2 Four other district courts have ruled on whether the

interim provisions of the Brady Act violates the Tenth

Amendment. See Romero v. United States, 883 F. Supp. 1076 (D.

La. 1995) (provisions of Brady Act requiring CLEOs to perform

background checks, destroy sworn statements, and provide

written response to those denied a handgun, held

unconstitutional); Frank v. United States, 860 F. Supp. 1030 (D.

Vt. 1994) (provision of Brady Act requiring CLEOs to perform

background checks unconstitutional); McGee v. United States,

863 F. Supp. 321 (S.D. Miss. 1994) (same); Koog v. United States,

852 F. Supp. 1376 (W.D. Tex. 1994) (interim provisions not

unconstitutional).

App. 5

In both actions, both sides appealed.? The sheriffs

primarily dispute the holdings of severability, while the

United States contends that the entire Act is constitu-

tional.*

ANALYSIS

I. THE TENTH AMENDMENT CHALLENGE

No one in this case questions the fact that regulation

of the sales of handguns lies within the broad commerce

power of Congress.* The issue for decision is whether the

manner in which Congress has chosen to regulate in the

Brady Act violates the Tenth Amendment.

* Handgun Control, Inc., et al., Senator Paul Simon, and the

State of Ohio, have filed briefs as amici curiae in support of the

United States. The Law Enforcement Alliance of America filed

an amicus curiae brief in support of Mack.

* The United States also argues that, if the disputed

provisions are unconstitutional, the injunction should prevent

enforcement only against the two sheriffs because they did not

bring class actions. Our disposition of the appeal makes it

unnecessary for us to address this contention.

5 Nor is any question raised by the Supreme Court's recent

decision in United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct.

1624 (1995), holding that Congress lacked authority under the

commerce clause to enact the Gun Free School Zones Act.

Unlike the statute in Lopez, the Brady Act regulates the sale of

handguns and thus directly regulates commerce. The Brady Act

is an amendment to a comprehensive federal scheme for the

regulation of firearms sales that unquestionably affect interstate

commerce. The legislative history of the Brady Act also contains

findings that gun violence affects commerce, and we accept

those findings. See H.R. Rep. 103-344, 103rd Cong., Ist Sess.,

reprinted in 1993 U.S.C.C.A.N. 1984, 1985.

App. 6

The Tenth Amendment provides that “powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or the people.” U.S. Const. amend. X. As a

textual matter, therefore, the Tenth Amendment “states

but a truism that all is retained which has not been

surrendered.” United States v. Darby, 312 U.S. 100, 124, 85

L. Ed. 609, 61 S. Ct. 451 (1941). By its terms, the Amend-

ment does not purport to limit the commerce power or

any other enumerated power of Congress.

In recent years, however, the Tenth Amendment has

been interpreted “to encompass any implied constitu-

tional limitation on Congress’ authority to regulate state

activities, whether grounded in the Tenth Amendment

itself or in principles of federalism derived generally

from the Constitution.” South Carolina v. Baker, 485 U.S.

505, 511 n.5, 99 L. Ed. 2d 592, 108 S. Ct. 1355 (1988). Thus,

“the Tenth Amendment confirms that the power of the

Federal Government is subject to limits that may, in a

given instance, reserve power to the States.” New York v.

United States, 505 U.S. 144, 157, 120 L. Ed. 2d 120, 112 S.

Ct. 2408 (1992). The question before us is whether the

Brady Act, by requiring CLEOs to perform background

checks on handgun purchasers, transgressed such an

implied limitation on federal power. We conclude that it

did not.

There are numbers of ways in which the federal

government is permitted to secure the assistance of state

authorities in achieving federal legislative goals. First and

most directly, the federal government may coerce the

states and their employees into complying with federal

App. 7

laws of general applicability. Garcia v. San Antonio Metro-

politan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016,

105 S. Ct. 1005 (1985).° Second, Congress may condition

the grant of federal funds on the States’ taking govern-

mental action desired by Congress. South Dakota v. Dole,

483 U.S. 203, 97 L. Ed. 2d 171, 107 S. Ct. 2793 (1987).

These broad categories do not exhaust, however, the

means by which the federal government can enlist state

employees in implementing federal programs. State judi-

cial and administrative bodies may be required to apply

federal law. Testa v. Katt, 330 U.S. 386, 91 L. Ed. 967, 67 S.

Ct. 810 (1947); FERC v. Mississippi, 456 U.S. 742, 760-61, 72

L. Ed. 2d 532, 102 S. Ct. 2126 (1982). The federal govern-

ment may offer to preempt regulation in a given area, and

permit the states to avoid preemption if they regulate in a

manner acceptable to Congress. Hodel v. Virginia Surface

Mining & Reclamation Ass'n, 452 U.S. 264, 290-91, 69 L. Ed.

2d 1, 101 S. Ct. 2352 (1981).

The federal government has been permitted effec-

tively to compel the states to issue registered rather than

bearer bonds. South Carolina v. Baker, 485 U.S. 505, 514, 99

L. Ed. 2d 592, 108 S. Ct. 1355 (1988). Finally, the federal

government has been permitted to require state utility

regulators to consider prescribed federal standards in

determining regulatory policies. FERC v. Mississippi, 456

U.S. at 765. In the course of the latter ruling, the Supreme

® It is true that this principle was rejected for certain state

functions in National League of Cities v. Usery, 426 U.S. 833, 49 L.

Ed. 2d 245, 96 S. Ct. 2465 (1976), but National League of Cities was

expressly overruled in Garcia, 469 U.S. at 557, and Garcia

remains the law controlling us.

App. 8

Court referred to and rejected the “19th century view”

that “Congress has no power to impose on a State officer,

as such, any duty whatever, and compel him to perform

it.” Id. at 761 (quoting Kentucky v. Dennison, 65 U.S. 66, 24

How. 66, 107, 16 L. Ed. 717 (1861)). That view, said the

Court, “is not representative of the law today.” Id. “The

federal government has some power to enlist a branch of

state government .. . to further federal ends.” 456 U.S. at

762.

Against this background, there would appear to be

nothing unusually jarring to our system of federalism in

the Brady Act’s requirement that CLEOs, during a five-

year interim period, “make a reasonable effort to ascer-

tain” the lawfulness of handgun purchases. The obliga-

tion imposed on state officers by the Brady Act is no more

remarkable than, say, the federally-imposed duties of

state officers to report missing children, 42 U.S.C.

§ 5779(a), or traffic fatalities, 23 U.S.C. § 402(a).

Mack and Printz, however, contend that the prece-

dential background set forth above was changed by

United States v. New York, 505 U.S. 144, 120 L. Ed. 2d 120,

112 S. Ct. 2408 (1992), and that the federal government is

now flatly precluded from commanding state officers to

assist in carrying out a federal program. We do not read

New York that broadly.

Although we concede that there is language in New

York that lends support to the view of Mack and Printz,

that language must be interpreted in the context in which

it was offered. New York was concerned with a federal

intrusion on the States of a different kind and much

greater magnitude than any involved in the Brady Act.

App. 9

The constitutional evil that New York addressed was one

recognized by several of the cases already cited: the fed-

eral government was attempting to direct the States to

enact their own legislation or regulations according to a

federal formula.

New York involved the constitutional validity of the

Low-Level Radioactive Waste Policy Amendments Act of

1985, 42 U.S.C. § 2021b et. seq. The part of the Act that the

Court found to violate the Tenth Amendment was the so-

called “take title” provision. Under that provision, a State

that failed to regulate radioactive waste according to con-

gressional standards was simply given title to the waste

within its borders (which previously would have been in

private hands). The waste then became the total respon-

sibility of the State as owner. The alternative to this unac-

ceptable prospect was for the State to legislate or regulate

in a manner that Congress dictated, and “a direct order to

regulate, standing alone, would . . . be beyond the power

of Congress.” Id. at 176. Thus, in response to the govern-

ment’s argument that a strong federal interest supported

the “take title” provision, the Court in New York stated:

“whether or not a particularly strong federal interest

enables Congress to bring state governments within the

orbit of generally applicable federal regulation, no Mem-

ber of the Court has ever suggested that such a federal

interest would enable Congress to command a state gov-

ernment to enact state regulation.” Id. at 178. In the same

vein was the Court’s conclusion after reviewing the

debates at the time of the founding of the Constitution:

We have always understood that even where

Congress has the authority under the Constitu-

tion to pass laws requiring or prohibiting certain

App. 10

acts, it lacks the power directly to compel the

States to require or prohibit those acts. E.g.,

FERC v. Mississippi. . . . The allocation of power

contained in the Commerce Clause, for example,

authorizes Congress to regulate interstate com-

merce directly; it does not authorize Congress to

regulate state governments’ regulation of inter-

state commerce.

Id. at 166.

Other decisions of the Supreme Court have recog-

nized this proposition that the federal government cannot

coerce States into performing the ultimately sovereign

acts of legislating or vegulating in a manner specified by

the federal government. In Virginia Surface Mining, the

Court noted that the provision of an alternative of federal

regulation rendered federal standards for state regulation

permissible; because the State had a constitutional option,

“there can be no suggestion that the Act commandeers

the legislative processes by directly compelling them to

enact and enforce a federal regulatory program.” Virginia

Surface Mining, 452 U.S. at 288 (emphasis added). Sim-

ilarly, In FERC v. Mississippi, the Court noted that the

federal command that the State “consider” federal alter-

natives was constitutional because “[t}here is nothing in

PURPA ‘directly compelling’ the States to enact a legisla-

tive program.” FERC v. Mississippi, 456 U.S. at 765.

New York, then, is best read as a case that draws a line

already partly delineated in Virginia Surface Mining and

FERC v. Mississippi: the federal government is not entitled

to coerce the States into legislating or regulating accord-

ing to the dictates of the federal government. Certainly

New York did not purport to overrule Virginia Surface

App. 11

Mining or FERC v. Mississippi, or even to disavow the

latter decision’s rejection of the nineteenth century view

that the federal government cannot command state

employees. New York can be read consistently with these

cases as an instance where “the etiquette of federalism

has been violated by a formal command from the

National Government directing the State to enact a cer-

tain policy, cf. New York.” United States v. Lopez, 131 L. Ed.

2d 626, 115 S. Ct. 1624, 1642 (1995) (Kennedy, J., concur-

ring); see also Board of Natural Resources v. Brown, 992 F.2d

937, 947 (9th Cir. 1993) (“direct commands to the states to

regulate according to Congress’s instructions” “violate

the Tenth Amendment as interpreted by New York”).”

There are good reasons for focusing Tenth Amend-

ment concern on federal coercion of a State’s enactment

of legislation or regulations or creation of an administra-

tive program. These activities are inherently central acts

of a sovereign; if an area of state activity is to be pro-

tected from direct coercion by an implication drawn from

the Tenth Amendment, legislating and regulating are

prime candidates. “[T]he power to make decisions and to

set policy is what gives the State its sovereign nature.”

FERC v. Mississippi, 456 U.S. at 761. There is a second

reason, also, emphasized in New York itself. Democratic

governments must be politically accountable. When the

? Thus we conclude that when the Court in New York stated

that “(t]he Federal Government may not compel States to enact

or administer a federal regulatory program,” the Court meant

“administer” in the sense of being in charge of a program and

making policy decisions with respect to the program. New York,

505 U.S. at 188.

App. 12

federal government requires the States to enact legisla-

tion, the enacted legislation is state legislation. Thus, it

will likely “be state officials who will bear the brunt of

public disapproval, while the federal officials who

devised the regulatory program may remain insulated

from the electoral ramifications of their decision.” New

York, 505 U.S. at 169. When the federal government itself

imposes a requirement on a state official, the requirement

is more clearly an act of the federal government and thus

does not, to the same extent, undermine political accoun-

tability.®

The Brady Act is not the kind of a federal mandate

condemned by New York, nor does it present the concerns

related above. The Brady Act does not embody a mandate

to the “States” in the sovereign sense discussed in New

York, FERC v. Mississippi, or Virginia Surface Mining. The

Brady Act is a regulatory program aimed at individuals

and not the States. It is true that, for a limited period of

time, the Act requires state law enforcement officials, the

CLEOs, to make reasonable efforts to assist in carrying

out the federal program. But the CLEOs are not being

commanded to engage in the central sovereign processes

of enacting legislation or regulations. They are not even

being a.ked to produce a state policy, for which the state

must bear political accountability. Instead, they are

8 We recognize that some individuals may criticize local

officials for implementing federal regulations. But when federal

regulations are imposed by the federal government, political

accountability by the federal government for those regulations

remains.

App. 13

directed to serve for a temporary period as law enforce-

ment functionaries in carrying out a federal program.

Their activities are not alien to their usual line of work,

and represent a minimal interference with state functions.

In that sense, their duties are not different from other

minor obligations that Congress has imposed on state

officials.

Mack and Printz do not agree that the Brady Act's

interference with their state duties is minimal. They point

out that there are many factors that may make a prospec-

tive handgun purchase illegal under the Act. A purchase

is unlawful, for example, if the purchaser is a fugitive, is

an unlawful user of a controlled substance, has been

adjudicated a mental defective, has been dishonorably

discharged from the armed forces, has renounced his

citizenship, or is under certain restraining orders involv-

ing an intimate partner. 18 U.S.C. § 922(g). They also

contend that it will be unduly burdensome to give rea-

sons for rejecting a proposed purchase, within 20 days of

being requested by the disappointed purchaser. See

§ 922(s)(6)(C). Mack and Printz point out that they are

sheriffs in rural counties with limited staffs and

resources. To research for all of these disabilities and to

give reasons for rejection, Mack and Printz argue, will

either take all of their time or so much of it that they will

be unable to perform their regular county duties.

The government, on the other hand, argues that there

is no requirement that CLEOs pursue all of these avenues

of potential disqualification. They are enjoined only to

“make a reasonable effort,” § 922(s)(2), and the statute's

only fixed requirement is a search in whatever

recordkeeping systems are available and in a national

App. 14

system. Id. A reasonable effort, the government contends,

might in the circumstances of Mack and Printz simply be

a check of the existing computer records.

We agree, and the government concedes, that there is

likely to be some point at which a federal statute that

enlists the aid of state employees can become so burden-

some to the State that it violates the Tenth Amendment.

Surely the federal government cannot stall the state gov-

ernment in its tracks by imposing all-consuming federal

duties on the State’s employees. We conclude, however,

that the Brady Act does not approach that point. Mack

and Printz have not demonstrated that the Act will inter-

fere unduly with their duties. Indeed, to a considerable

degree, the dispute over the magnitude of the burden

imposed upon them is not ripe for resolution. Mack and

Printz have not been subjected to any interpretation of

the Act, or any attempt to enforce it against them, that

requires them to do more than check computer records.

On this record, we cannot conclude that “a reasonable

effort” inevitably requires more than this minimum for

Mack and Printz. To perform such computer checks, and

to explain reasons for rejection when and if disappointed

purchasers so request, has not been shown to constitute

the kind of interference with state functions that would

raise Tenth Amendment concerns. It follows even more

strongly that the minimal requirement of destruction of

records presents no constitutional problem-

We also find no support for the Tenth Amendment

claims of Mack and Printz in the cases from our circuit

that they cite. See Board of Natural Resources v. Brown, 992

F.2d 937 (9th Cir. 1993); United States v. Best, 573 F.2d 1095

(9th Cir. 1978); Brown v. Environmental Protection Agency,

App. 15

521 F.2d 827 (9th Cir. 1975), vacated as moot 431 U.S. 99

(1977).? In Board of Natural Resources we held that the

Forest Resources Conservation and Shortage Relief Act

violated the Tenth Amendment. Board of Natural

Resources, 992 F.2d at 947. That Act however - akin to the

statute in New York — required the States to issue regula-

tions and was far more demanding of state officials than

the Brady Act. See Board of Natural Resources, 992 F.2d at

947. Best applied the National League of Cities govern-

mental function test, Best, 573 F.2d at 1102, which has

been abandoned. See Garcia Metropolitan Transit Authority,

469 U.S. at 531 (overruling National League of Cities). And

Brown, like Board of Natural Resources, involved regula-

tions that clearly intruded upon a state’s sovereignty,

unlike the contested provisions of the Brady Act. See

Brown, 521 F.2d at 829-830 (State had to develop and

implement plan for implementing, enforcing, and main-

taining national air standards). Additionally, Brown relied

upon the Tenth Amendment view espoused in Kentucky v.

Dennison, 65 U.S. (24 How.) 66, 107, 16 L. Ed. 717 (1861),

overruled by Puerto Rico v. Branstad, 483 U.S. 219, 97 L. Ed.

2d 187, 107 S. Ct. 2802 (1987), that “the Federal Govern-

ment ... has no power to impose on a State officer, as

such, any duty whatsoever. ...” See Brown, 521 F.2d at

841. As the Supreme Court has made clear, the view

* Although the Supreme Court vacated Brown, on remand

we stated: “Except as modified herein, we continue to regard, or

once more adopt if necessary, our opinion in Brown | as the law

of this circuit.” Brown v. EPA, 566 F.2d 665, 666 (9th Cir. 1977).

For reasons discussed later in the text, however, the

precedential value of Brown is limited.

App. 16

espoused in Kentucky v. Dennison is no longer representa-

tive of the law. FERC, 456 U.S. at 761.!° We therefore

reject Mack’s and Printz’s Tenth Amendment challenges

to the Brady Act."

Il. THE FIFTH AMENDMENT VAGUENESS CHAL-

LENGE

Section 924(a)(5) of the Act provides that “[w]hoever

knowingly violates subsection (s)” of the Act is subject to

fine or imprisonment or both. Mack and Printz contend

that this provision subjects them to criminal liability for

10 The Law Enforcement Alliance of America, as Amicus

Curiae, argues that the method by which the Brady Act was

enacted violates the “structuralist” test articulated by Garcia v.

San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed.

2d 1016, 105 S. Ct. 1005 (1985), under which the States are

protected from overreaching by the federal government

primarily by “the workings of the National Government itself,

rather than in discrete limitations on the objects of federal

authority.” Id. at 552. The Court in New York has indicated that

Garcia is limited to statutes that subject “a State to the same

legislation applicable to private parties.” New York, 505 U.S. at

160. But even if we assume that Garcia’s structuralist test were

applicable, we cannot accept the Law Enforcement Alliance's

view that the Brady Act would fail the test. There is no showing

that the States affected were “deprived of any right to

participate in the national political process” or were “singled

out in a way that left [them] politically isolated and powerless.”

South Carolina v. Baker, 485 U.S. at 513.

11 Because we hold that the Brady Act does not violate the

Tenth Amendment, we do not consider whether section

922(s)(2) is severable from the remainder of the Act, or whether

the district courts erred in issuing injunctions that applied

statewide.

App. 17

failing to “make a reasonable effort” to ascertain whether

a particular purchase would violate the law, as required

by section 922(s)(2). So construed, the criminal provision

is unconstitutionally vague, according to Mack and

Printz, because a person of reasonable intelligence has no

way of knowing what may constitute a “reasonable

effort.”

It is not at all clear, however, that section 924(a)(5) is

intended to apply to the Act’s requirements imposed

upon CLEOs. Indeed, the Montana district court viewed

the criminal prohibition as ambiguous in that regard, and

concluded that it did not apply to CLEOs.

We decline to reach this issue, however, because it is

not ripe.'? Mack and Printz have not been charged under

the Act with any criminal violations, nor are they likely to

be. The United States represented during oral argument

that the Justice Department's official position is that the

criminal sanctions of the Brady Act do not apply to

CLEOs. Because Mack and Printz do not face a “credible

threat of prosecution,” San Francisco County Democratic

Cent. Comm. v. Eu, 826 F.2d 814, 821 (9th Cir. 1987), aff'd

489 U.S. 214, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989),

there is no “case or controversy.” See Campbell v. Wood, 18

F.3d 662, 680 (9th Cir.), cert. denied, 114 S. Ct. 2125

"2 Mack and Printz also make a vagueness argument based

on their exposure to civil proceedings. Neither Mack nor Printz

has been subjected to civil proceedings, nor have they pointed

to any civil proceeding to which they would be subject that

would violate the Fifth Amendment. In any event, because this

issue was not raised below, we decline to reach it.

App. 18

(1994).!3 In the extremely unlikely event that a criminal

prosecution is one day brought against a CLEO, the con-

stitutional objection may be raised in defense at that time.

We therefore vacate the ruling of the District Court of

Arizona that the criminal provisions apply to CLEOs and

are void for vagueness, as well as the ruling of the

District Court of Montana that the criminal provisions do

not apply to CLEOs. These claims are to be dismissed as

unripe.

ll. THE THIRTEENTH AMENDMENT CHALLENGE

Mack also challenges the Brady Act as violating the

Thirteenth Amendment. The Thirteenth Amendment pro-

vides that “[nJeither slavery nor involuntary servitude,

except as a punishment for crime . . . shall exist within

the United States, or any place subject to their jurisdic-

tion.” U.S. Const. amend. XIII. According to Mack, sec-

tion 922(s) requires him to perform labor for the United

13 Mack and Printz also suggest that they need not face a

reasonable threat of prosecution. None of the cases that they cite

support this proposition, however. See Board of Natural

Resources, 992 F.2d at 945 (plaintiff showed injury in fact);

Epperson v. Arkansas, 393 U.S. 97, 21 L. Ed. 2d 228, 89 S. Ct. 266

(1968) (Court did not reach the justiciability issue); Beacon

Journal Pub. Co. v. Unger, 532 F. Supp. 55, 58 (N.D. Ohio 1982)

(plaintiff showed injury in fact); Brown v. EPA, 521 F.2d at 831 &

829 n.1 (the EPA had already given a notice of violation.); Gentile

v. State Bar, 501 U.S. 1030, 115 L. Ed. 2d 888, 111 S. Ct. 2720

(1991) (plaintiff charged with violation); Babbitt v. Farm Workers,

442 U.S. 289, 299-300, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (even

though plaintiffs did not face an imminent threat of prosecution,

statute was “sure to work the injury alleged,” and so Court

found a case or controversy).

App. 19

States or face legal sanctions, even though he is not a

federal employee.

Unlike a slave, however, Mack can quit work at any

time. By doing so, he escapes all compulsion. The require-

ments of the Brady Act are not placed on Mack person-

ally; the duties that are imposed attend the office. Thus

the Brady Act does not coerce Mack “by improper or

wrongful conduct” into service by causing and intending

to cause him “to believe that he . . . has no alternative but

to perform the labor.” Brogan v. San Mateo County, 901

F.2d 762, 764 (9th Cir. 1990) (citation omitted). The fact

that Mack, if he continues to be sheriff, must perform

certain duties as a condition of his employment, does not

violate the Thirteenth Amendment. Cf. United States v.

30.64 Acres of Land, 795 F.2d 796, 800-01 (9th Cir. 1986)

(requiring lawyers to perform pro bono services does not

violate Thirteenth Amendment because requirement is a

condition of practicing law).

CONCLUSION

The Brady Act violates neither the Tenth nor Thir-

teenth Amendment. Mack and Printz’s Fifth Amendment

vagueness challenge is not ripe. Accordingly, the district

courts’ injunctions prohibiting the United States from

enforcing the disputed provisions of the Brady Act are

vacated, and the district courts’ judgments are reversed

insofar as they invalidate portions of the Act. The por-

tions of the cross-appeal in Mack and the appeal in Printz

that challenge the district courts’ rulings of severability

are dismissed as moot; in all other respects the rulings

challenged by Mack and Printz, are affirmed. The cases

App. 20

are remanded with instructions to dismiss the vagueness

challenges as unripe. The United States is entitled to its

costs on appeal.

No. 94-16940 (Appeal by United States) REVERSED.

No. 94-17002 (Cross-appeal by Mack) AFFIRMED in

part and DISMISSED in part.

No. 94-36193 (Appeal by Printz) AFFIRMED in part

and DISMISSED in part.

No. 95-35037 (Cross-Appeal by United States)

REVERSED.

FERNANDEZ, Circuit Judge, concurring and dissenting:

I concur in parts Il and III of the majority opinion,

but I respectfully dissent from part I.'

This case makes palpable the notion that the

states are just a part of the national government, a notion

that was rejected when this country was founded. Con-

gress has previously attempted to order the states to

legislate or regulate in particular ways, and it has failed

at that. See, e.g., New York v. United States, 505 U.S. 144,

112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992); Board of Natural

Resources v. Brown, 992 F.2d 937 (9th Cir. 1993); cf. United

States v. Best, 573 F.2d 1095, 1102-03 (9th Cir. 1978). That is

to say, Congress has failed when it has not given the

states the option to avoid the intended yoke. See, ¢.g.,

FERC v. Mississippi, 456 U.S. 742, 766, 102 S. Ct. 2126,

1 Given the majority's decision, | see no need to discuss

the criminal provisions of this law, the severability of the law’s

provisions, or the breadth of the injunctions imposed by the

district courts.

App. 21

2141, 72 L. Ed. 2d 532 (1982); see also Hodel v. Virginia

Surface Mining & Reclamation Ass‘n, Inc., 452 U.S. 264, 101

S. Ct. 2352, 69 L. Ed. 2d 1 (1981); Brown v. EPA, 521 F.2d

827 (9th Cir. 1975), vacated by 431 U.S. 99, 97 S. Ct. 1635,

52 L. Ed. 2d 166 (1977), on remand to 566 F.2d 665 (9th Cir.

1977). Even those determinations are not without their

problems because government.” See FERC, 456 USS. at

782, 102 S. Ct. at 2150 (O’Connor, J., dissenting).

Now Congress has avoided those issues, but it

has done so by eliminating the niceties of the federal-

state relationship entirely. Rather than ordering state leg-

islatures or agencies to adopt a scheme for vetting

requests for gun transfers, Congress has avoided that

hindrance and dragooned the state officials directly.

Under this new approach, the states have nothing to say

about it. Their officials are ordered to become part of a

federal gun control program at the state’s own expense

and are ordered to engage in various tasks necessary to

administer that program. Those officials must make a

“reasonable effort” to decide whether receipt of a weapon

by a proposed transferee “would be in violation of the

law” of the United States. 18 U.S.C. § 922(s)(2). Those

efforts must include “research in whatever State and local

recordkeeping systems are available and in a national

system designated by the Attorney General.” Id.

(emphasis added). And the work must be done within

five business days. Id. The officials must also dispose of

the materials and may not make any use of them other

than that directed by Congress. Id. § 922(s)(6)(B). They

must provide written explanations for negative deter-

minations upon request. Id. § 922(s)(6)(C). Presumably

those officials must also adopt appropriate procedures for

App. 22

the carrying out of those functions. Perhaps that is not

forced administration of the federal gun regulation pro-

gram, but I fail to see why it is not.

Of course, the states are to bear the full cost of

these tasks, and, unless the states adopt a local permit

system, they cannot opt out of the federal program. If a

state does not choose to engage in the regulation of this

part of commerce - commerce in weapons - that makes

no difference at all. In other words, state officials are

conscripted by the federal government to fulfill its pur-

poses and they can do nothing about that.

The government argues that this is much more

respectful of state sovereignty than the legislation struck

down in New York. | do not agree. If the Tenth Amend-

ment has anything to do with the separate sovereign

dignity of the states, it is difficult to see how that dignity

is not undermined by the reality of a command that they

commit their resources to the carrying out of this kind of

federal policy, whether they like it or not.

Moreover, we are not dealing with a situation

where a state seeks to stay in the business of regulating

commerce in weapons. Quite the contrary. This legislation

impacts states that do not wish to do so. I assume that the

Supreme Court meant what it said when it said:

States are not mere political subdivi-

sions of the United States. State governments

are neither regional offices nor administrative

agencies of the Federal Government. The posi-

tions occupied by state officials appear nowhere

on the Federal Government's most detailed

organizational chart. The Constitution instead

“leaves to the several states a residuary and

App. 23

inviolable sovereignty,” reserved explicitly to

the States by the Tenth Amendment.

Whatever the outer limits of that sover-

eignty may be, one thing is clear: The Federal

Government may not compel the States to enact

or administer a federal regulatory program.

New York, 505 US. at __, 112 S. Ct. at 2434-35 (citations

omitted).

This legislation is a step toward concentrating

power in the hands of the federal government, for it

treats state officials and workers as if they were mere

federal employees. It makes every CLEO’s office an office

of the federal bureaucracy, funded by the states, but

directed from Washington. The time to stop this journey

of a thousand miles is at the first step.?

Therefore, I respectfully dissent from the majority's

determination that the statute does not violate the Tenth

Amendment.

? Cf. Lao-tzu, Bartlett's Familiar Quotations 65, quotation

1, (1980).

App. 24

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed December 19, 1995]

Nos. 94-16940/94-17002

D.C. No. CV-94-00113-JMR

RICHARD MACK, Sheriff of Graham

County, Arizona,

Plaintiff-Appellee-Cross-Appellant,

UNITED STATES OF AMERICA,

Defendant-Appellant-Cross-Appellee.

JAY PRINTZ, Sheriff /Coroner,

Ravalli County, Montana,

Plaintiff-Appellant-Cross-Appellee,

UNITED STATES OF AMERICA,

Defendant-Appellee-Cross-Appetlant.

BEFORE: CHOY, CANBY AND FERNANDEZ, CIRCUIT

JUDGES.

The panel has voted unanimously to deny both peti-

tions for rehearing.

The full court has been advised of the suggestions for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matters en banc. F. R. App.

P. 35.

App. 25

The petitions for rehearing are denied and the sug-

gestions for rehearing en banc are rejected.

App. 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Sheriff Richard Mack,

Plaintiff

vs. No. CV 94-113-TUC-JMR

United States of America,

Defendant.

ORDER & MEMORANDUM DECISION

[Entered June 28, 1994]

INTRODUCTION

Pending before the Court is plaintiff Graham County

Sheriff Richard Mack’s complaint for injunctive and

declaratory relief against the enforcement of 18 U.S.C.

922(s), commonly referred to as the Brady Act. For the

reasons set forth below, the Court finds that subsection

922(s)(2) violates the Fifth and Tenth Amendments of the

United States Constitution and will enter partial judg-

ment in favor of the plaintiff on that basis.

The Brady Act

This lawsuit is a challenge to the constitutionality of

public law 103-159, 107 Stat. 1536 (1993), codified at 18

U.S.S. 922(s), which amends the Gun Control Act of

1968.' The statute, popularly known as the Brady Act,

' Several other courts have had an opportunity to review

this matter. See Printz v. United States, No. CV 94-35-M-CCL (D.

Mont. 1994) (declared unconstitutional); McGee v. United States,

No. 2:93-CV-67PS (SD Miss.) (declared unconstitutional but

i a

App. 27

provides for a waiting period of five business days for

purchases of handguns from federally-licensed gun

dealers. 18 U.S.C. 922(s)(1)(A)(ii). During the waiting

period, the “chief law enforcement officer” (CLEO) in

each jurisdiction is required to “make a reasonable effort

to ascertain . . . whether receipt or possession [of a

handgun by the prospective buyer] would be in violation

of the law, including research in whatever State and local

recordkeeping systems are available and in a national

system designated by the Attorney General.” 18 U.S.C.

922(s)(2). The CLEO is defined as “the chief of police, the

sheriff, or an equivalent officer or the designee of any

such individual.” 18 U.S.C. 922(s)(8).

The CLEO performs the check on the basis of a sworn

statement that the prospective purchaser provides to the

gun dealer and that the gun dealer in turn provides to the

CLEO. The CLEO must destroy the sworn statement

within 20 days of the date of the transfer unless the CLEO

determines that the transfer would violate the law. 18

U.S.C. 922(s)(6)(B). If the CLEO determines that the trans-

fer would violate the law, the CLEO must, within 20 days

of a request, provide reasons to the denied purchaser for

that determination. 18 U.S.C 922(s)(6)(C).

The Brady Act also amends the penalty provision of

the existing criminal code by providing that anyone who

knowingly violates its provisions shall be subject to a

fine, imprisonment, or both. 18 U.S.C. 924(a)(5). CLEOs

are specifically exempted from civil liability. 18 U.S.C.

injunctive relief limited to sole plaintiff); Koog v. United States,

No. DR-94-Ca-8 (WD Tex. 1994) (constitutionality of Act

upheld).

App. 28

922(s)(7). It is the position of the Department of Justice

that criminal sanctions shall not attach to any CLEO who

violates any provision of the Brady Act. The Act does not

so indicate, however.

The interim procedure outlined above is slated to be

replaced by a national instant criminal background check

system to be developed and maintained by the Depart-

ment of Justice within five years from the date of enact-

ment. 18 U.S.C. 922(t)(1). The national system will consist

of a computerized database of information gathered from

both federal and state criminal records and will be access-

ible telephonically by federally licensed gun dealers.

Once the national data bank is operational, the duties of

the CLEO will cease.

Plaintiff Richard Mack is the sheriff of Graham

County. As such, he is the chief law enforcement officer

of that jurisdiction. Graham County is a sparsely popu-

lated rural county of 4500 square miles inhabited by

28,000 residents. The Graham County Sheriff's Office is

responsible for law enforcement in the county and con-

sists of a staff of twelve officers, including the sheriff.

Mack has been advised by the Graham County Attor-

ney that he is to enforce the provisions of the Brady Act

until a court of competent jurisdiction rules otherwise.

Mack alleges that the Brady Act will require him to

search nine categories of records, those categories having

varying degrees of accessibility. Mack maintains that his

responsibilities under state law do not include conduct-

ing the type of investigations the Act mandates, and that

Sea an ne a

App. 29

he does not have the personne! or funds to do so.2 He

claims that his refusal to perform the duties imposed

upon him by the Brady Act would subject him to criminal

penalties.

Plaintiff Mack seeks a declaration that 18 U.S.C.

922(s) is unconstitutional as beyond the powers delegated

to Congress in Article 1, sec. 8 of the United States

Constitution, contravenes the Tenth and Thirteenth

Amendments, and is unconstitutionally vague in viola-

tion of the Due Process Clause of the Fifth Amendment.

Mack asks the Court to enter a permanent injunction

against enforcement of the Brady Act.

Upon suggestion of counsel, the Court previously

agreed to consolidate Mack’s motion for preliminary

injunction with his complaint for permanent relief. Also

before the Court is defendant United States of America’s

motion to dismiss, which the parties have agreed may be

ruled upon as well. In essence, these procedural mecha-

nisms permit the Court to reach the merits of the case at

this time. For the reasons set forth below, the Court finds

section 922(s)(2), the provision of the Brady Act that

requires local law enforcement officials to conduct a rea-

sonable background search, exceeds Congress's Article |

powers in violation of the Tenth Amendment. Addi-

tionally, that provision, enforceable by way of criminal

sanctions, is unconstitutionally vague in violation of the

Due Process Clause of the Fifth Amendment. However,

? Ir. addition to his statutory duties, Sheriff Mack is bound

to obey the laws of the United States by his oath of office.

App. 30

the Court finds this offending provision to be severable

from the balance of the Act.

DISCUSSION

Sheriff Mack’s Standing to Sue

The first question posed by defendant United States

of America is whether this plaintiff has standing to sue.

The jurisdiction of the federal courts is limited by Article

Ill, sec. 2 of the Constitution to adjudication of “cases or

controversies.” U.S.Const. art. III, sec. 2. “In essence the

question of standing is whether the litigant is entitled to

have the court decide the merits of the dispute or of

particular issues.” Warth v. Seldin, 422 U.S. 490, 498

(1975). To satisfy the core constitutional requirements for

standing, a plaintiff must demonstrate that he or she has

suffered, or is in imminent danger of suffering, a distinct

and palpable personal injury fairly traceable to the defen-

dant’s allegedly unlawful conduct and such injury is

likely to be redressed by the requested relief. Allen v.

Wright, 468 U.S. 737, 751 (1984). A citizen’s belief that the

government is violating the Constitution does not consti-

tute sufficient personal injury to satisfy the Article III

standing requirements. Lujan v. Defenders of Wildlife, 112

S.Ct. 2130, 2143-44 (1992).

In order to reach these claims, the Court must first

determine whether the criminal penalty provisions of the

Brady Act apply to Sheriff Mack. As recited above, the

Brady Act amends the penalty provision of the existing

criminal code by providing that “[wJhoever knowingly

violates subsection (s) or (t) of section 922 shall be fined

not more than $1000.00, imprisoned for not more than 1

App. 31

year, or both.” 18 U.S.C. 924(a)(5). Focusing on the word

“whoever,” the Court finds that Mack is unequivocally at

risk of criminal sanctions should he decide to disobey the

statute.

The United States disputes this interpretation and

cites a Bureau of Alcohol Tobacco and Firearms “Open

Letter” to state and local law enforcement officials

explaining the operation of the Brady Act. The Bureau of

Alcohol, Tobacco, and Firearms is the federal agency

responsible for implementing the Act. The Bureau inter-

prets the mandatory provisions of the Act as merely

requiring “some minimal effort to check commonly avail-

able records.” Moreover, the letter states that it will be

left to the discretion of the CLEO to establish enforcement

standards based upon the jurisdiction’s resources which,

depending on the area, could entirely negate the research

obligation. The Assistant Attorney General for the Office

of Legal Counsel has officially opined that the penalties

section of the Act do not apply to chief law enforcement

officers.

An agency’s interpretation of a statute it administers

is entitled to deference only when the statute is silent or

ambiguous on the issue presented.? In determining

whether Congress has expressed “an intention on the

* As the Supreme Court has explained: “First, always, is the

question whether Congress has spoken to the precise question

at issue. If the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress... .” Chevron

USA v. NRDC, 467 U.S. 837, 842-43 (1984).

App. 32

precise question at issue,” this Court employs “tradi-

tional tools of statutory construction.” Chevron, U.S.A. v.

NRDC, 467 U.S. 837, 843 n. 9 (1984). In so doing, however,

it should be emphasized that courts are the final authori-

ties on issues of statutory construction. INS v. Cardoza-

Fonseca, 480 U.S. 421, 447 (1987); Natural Resources Defense

Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir. 1987).

Moreover, it is “unclear whether an agency's interpreta-

tion of a criminal statute is entitled to deference under

Chevron.” United States v. Douglas, 974 F.2d 1046, 1048 n. 1

(1992) (emphasis in original).

It is basic that “as long as the statutory scheme is

coherent and consistent, there is generally no need for a

court to inquire beyond the plain language of the stat-

ute.” United States v. Ron Pair Enterprises, Inc., 489 U.S.

235, 240-41 (1989). The relevant provision of the Brady

Act imposes liability upon those who knowingly violate

its terms.* Although the term “whoever” is not defined

under the statute, it does not demand further articula-

tion.>

4 Again, CLEOs are specifically exempted from civil

liability. 18 U.S.C. 922(s)(7). It is apparent from this exemption

that Congress considered the extent to which it wished to hold a

CLEO responsible for enforcement. It is difficult to conclude

that Congress meant to preclude criminal liability simply

because civil liability has been removed.

5 Assuming for the sake of argument that the term lacks

clarity, several interlocking principles guide this Court's

construction to the identical result. First, a statute must be

construed, if fairly possible, to avoid constitutional problems.

Communication Workers of America v. Beck, 487 U.S. 735, 762

(1988). If ambiguous, the more lenient construction in favor of a

criminal defendant is required. United States v. Bailey, 982 F.2d

App. 33

Under the plain meaning of the statute, Mack is

under threat of criminal penalties and thus possesses an

injury that can be redressed. The agency's interpretation

to the contrary is entitled to no deference.

The United States asks the Court to additionally con-

sider whether Mack is entitled to bring suit in his official

capacity, assuming that he can allege no injury as a pri-

vate entity. See Karcher v. May, 484 U.S. 72, 78 (1987)

(appellant state legislators who participated in lawsuit in

their official capacities lacked standing to appeal on

behalf of legislature when term of office expired); Bender

v. Williamsport Area School District, 475 U.S. 534, 544 (1986)

(plaintiff school board member had “no personal stake in

the outcome of the litigation” and therefore did not have

standing to file a notice of appeal). Mack’s duties under

state law are set out in A.R.S. 11-441. Mack has additional

practical responsibilities that ensue from his management

of his staff and office. Mack has sworn under oath to

uphold his duties as sheriff. He has brought this lawsuit

identifying himself as the Sheriff of Graham County. The

county board has not authorized this suit and the County

Attorney has informed Mack that he is not to use county

facilities, staff, services or equipment in pursuit of the

1265, 1270 (9th Cir. 1992). It is only if the language is unclear

that the Court need refer to legislative history as an aid to

Statutory interpretation. Blum v. Stenson, 465 U.S. 886, 896

(1984).

* At oral argument, counsel for the government cited 28

C.F.R. 0.25 for the proposition that CLEOs would be sheltered

from subsequent prosecutions based on the opinion letter even

if the interpretation were later to change. The regulation,

however, offers Sheriff Mack no such reassurances.

App. 34

litigation. Mack has retained private counsel to represent

him.

The Court finds that there is no difference between

Sheriff Mack’s personal and official capacities for pur-

poses of the duties imposed upon him by the Brady Act.

The Act directs the CLEO as a county agent to perform its

statutory mandates. Mack is thus forced to choose

between violating his oath or violating the Act, subjecting

himself to possible sanctions. Mack has a sufficient stake

in the outcome of the proceedings to justify standing,

regardless of whether it is characterized as private or

official conduct. See Board of Education v. Allen, 392 US.

236 (1968) (plaintiffs’ belief that statute forced them to

choose between following oath and statute supplied per-

sonal stake necessary for standing).

The United States raises one final point — namely, its

theory that Arizona law does not authorize its sheriffs to

sue or be sued. Fed. R. Civ. P. 17(b) provides that the

capacity to sue must be determined by state law. Pur-

suant to statute, the office of sheriff is named a county

officer. A.R.S. 11-401. The powers of the county to sue

and be sued “shall be exercised only by the board of

supervisors or by agents and officers acting under its

authority and authority of law.” A.R.S. 11-201. Mack lists

several early cases for the simple proposition that Ari-

zona sheriffs regularly sue and are sued. This is hardly

dispositive as “capacity to sue is not jurisdictional and

can be waived.” Gonzales v. Arizona Public Service Co., 161

Ariz. 84, 87, 775 P.2d 1148, 1151 (App. 1989). Thus far, it

would appear that Arizona courts have not had an oppor-

tunity to determine the extent of a sheriff's capacity to

sue. The Supreme Court of West Virginia, when faced

App. 35

with a similar issue, ruled that “the capacity to sue is an

important incident to the duties of public officers and it is

often necessary that such an official be able to ensure that

he [or she] is acting properly by seeking court guidance.”

State ex rel. Manchin v. Lively, 170 W. Va. 672, 674, 295

S.E.2d 912, 915 (1982). That court cited with approval the

following language found in 67 C.J.S. Officers sec. 250

(1978): “public officers have capacity to sue commensu-

rate with their public trust or duties without express

statutory authority.” Id. See also State ex rel. Hoagland v.

School Dist. No. 13, 116 Mont. 294, 151 P.2d 168 (1944)

(implying right to sue into statute defining county super-

intendent’s duties). This Court concurs in that reasoning.

The government's argument was recently rejected in

McGee v. United States, No. 2:94-CV-67PS (S.D. Miss.

1994). There, the District Court for the Southern District

of Mississippi stated:

“The cases are clear that the appropriate body to

bring an action involving counties is the board

of supervisors of such county. However, that is

not the situation before this Court. Brady directs

sheriffs (as chief law enforcement officers) to

ascertain if obtaining a gun is in violation of the

law, including checking whatever records are

available. . . . This directive is not to the county.

It is not to the attorney general. It is not any

other state agency or to any federal agency.”

McGee, slip op. at 5. Nor, it might be added, will the

consequences of violating the Act be borne by anyone

other than the CLEO.

The Court finds the standing and jurisdiction argu-

ments presented by the United States to fall on all fronts.

App. 36

It is irrefutable that the Act specifically imposes certain

duties on a particular category of individuals - the

CLEOs. Sheriff Mack is a CLEO for purposes of this

statute. Should Sheriff Mack disregard his statutory

responsibilities, he would place himself at risk of its

criminal penalties. Thus, Sheriff Mack has standing to

challenge the statute on Fifth Amendment grounds

because of the potential sanctions he faces. Moreover,

Sheriff Mack has standing to raise a Tenth Amendment

laim because of his position as the state official to whom

“ongress has delegated the obligation to enforce federal

law.

Commerce Clause and Tenth Amendment

Count One of Mack’s Amended Complaint alleges

that Congress has exceeded the scope of its powers under

the Commerce Clause by legislating the requirement that

he perform a background check on potential firearms

purchasers. The flip side of this argument is Count Two

of Mack’s Amended Complaint, which contends that the

Act’s enforcement scheme infringes upon the state’s sov-

ereign powers reserved to it by the Tenth Amendment. As

the Supreme Court noted, these inquiries go hand in

hand. New York v. United States, 112 S.Ct. 2408, 2417

(1992). “If a power is delegated to Congress in the Consti-

tution, the Tenth Amendment expressly disclaims any

reservation of that power to the States; if a power is an

attribute of state sovereignty reserved by the Tenth

Amendment, it is necessarily a power the Constitution

has not conferred on Congress.” Id. “In the end, just as a

cup may be half empty or half full, it makes no difference

whether one views the question at issue in this case as

App. 37

one of ascertaining the limits of the power delegated to

the Federal Government under the affirmative provisions

of the Constitution or one of discerning the core of sover-

eignty retained by the States under the Tenth Amend-

ment.” Id. at 2419

Turning first to Count One, legislation enacted under

the Commerce Clause has a “presumption of constitu-

tionality,” Usery v. Turner Elkhorn Mining Co., 428 US. 1,

15 (1976), and receives “a highly deferential” judicial

review. United States v. Edwards, 13 F.3d 291, 293 (9th Cir.

1993). “A court may invalidate legislation enacted under

the Commerce Clause only if it is clear that there is no

rational basis for a congressional finding that the regu-

lated activity affects interstate commerce, or that there is

no reasonable connection between the regulatory means

selected and the asserted ends.” FERC v. Mississippi, 456

U.S. 742, 754 (1982) (internal citations and quotations

omitted)

Applying these principles to the facts at hand, it is

clear that the activity regulated by the Brady Act, the

purchase of handguns, affects interstate commerce. This

is not even a debatable question. See Huddleston v. United

States, 415 U.S, 814, 833 (1974) (Congress is permitted to

regulate intrastate redemption of firearms from pawn-

shops on the basis that such transactions affect interstate

commerce); Edwards, 13 F.3d at 293 (Gun Free School

Zones Act, prohibiting possession of firearms within

1,000 feet of a school, represents permissible exercise of

Congressional power); United States v. Evans, 928 F.2d 858

(9th Cir. 1991) (the violence created through the posses-

sion of firearms adversely affects the national economy

App. 38 .

and therefore comes within the scope of Congressional

authority).

The second prong of the analysis requires the Court

to determine whether there is a rational connection

between the background check requirement and the regu-

lation of the transfer of handguns. The purpose of the

investigation is to determine if a potential purchaser is

legally entitled to possess a firearm. 18 U.S.C. 922(g). See

also U.S.Const. art. I, sec. 8, cl. 18 (granting Congress the

power “[t]o make all Laws which shall be necessary and

proper for carrying into Execution” its delegated

powers).

The issue is not, however, whether Congress pos-

sesses the raw power to regulate the transfer of hand-

guns. Clearly it does. The thorny question is whether the

Tenth Amendment limits the power of Congress to regu-

late in the way it has chosen. The district court for the

District of Montana framed the inquiry as follows: “This

case turns on the proper relationship between the federal

government and the several states, and in particular, on

the constitutionality of federally imposed, unfunded

mandates to the states.” Printz v. United States, No. CV

94-35-M-CCL, slip op. at 3-4 (D. Mont. 1994). The Tenth

Amendment confirms that the federal government has

fixed powers. U.S. Const. amend. X (the “powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people.”). “[AJll is retained which

has not been surrendered.” New York, 112 S.Ct. at 2418

(quoting United States v. Darby, 312 U.S. 100, 124 (1941)).

App. 39

In New York v. United States, the Supreme Court

reviewed the history of the decisional law construing the

delicate balance struck between the federalist compro-

mise and a state’s authority. The Supreme Court stated

without hesitation that “[wJhere a federal interest is suffi-

ciently strong to cause Congress to legislate, it must do so

directly; it may not conscript state governments as its

agents.” Id. at 2429. Compare FERC v. Mississippi, 456 U.S.

at 762 (federal government may enlist the judicial branch

of state government to further federal ends). The New

York Court held that the federal government could not

force the state of New York to regulate nuclear waste in a

certain way because in doing so, Congress exceeded its

Article | powers. The statute offered state governments

the choice of either regulating pursuant to Congressional

dictates or accepting ownership of low level radioactive

waste. Justice O’Connor, writing for the majority, held the

statute invalid under the Commerce Clause and the Tenth

Amendment because it “ ‘commandeers the legislative

processes of the States by directly compelling them to

enact and enforce a federal regulatory program.” New

York, 112 S.Ct. at 2428 (quoting Hodel v. Virginia Surface

Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288 (1981)).

The parties present two very different views of the

Brady Act. The government maintains that the Act's pro-

visions are discretionary, cooperative, and clerical. The

government goes so far as to say that were Sheriff Mack

to find in his discretion and under the circumstances that

a reasonable effort meant no investigation whatsoever,

App. 40

that would be acceptable compliance.” For his part, Mack

interprets the Act to be a direct command from Congress.

Such a command would clearly involve the type of gov-

ernment conduct found to be unconstitutional in New

York v. United States, 112 S.Ct. at 2425

Relying upon Garcia v. San Antonio Metropolitan Tran-

sit Authority, 469 U.S. 528 (1985), the government first

maintains that the Brady Act is a statute of general appli-

cability and thus does not intrude upon the special pre-

serve of state sovereignty. At issue in Garcia was whether

Congress had exceeded its powers by requiring the states

to comply with the Fair Labor Standards Act minimum

wage and overtime requirements. In that case the

Supreme Court found that the state “face[d] nothing

more than the same obligations that hundreds of thou-

sands of other employers, public as well as private, have

to meet.” Garcia, 469 U.S. at 554. Under Garcia, if states

object to complying with FLSA, their recourse is to the

political process of state participation in tederal govern-

ment action.® Id. at 556.

? The government claims that the mandated actions are de

minimis and therefore escape constitutional review. This

position was accepted by the district court in Koog v. United

States, No. DR-94-Ca-8 (W.D. Tex. 1994).

* Prior to Garcia, the FLSA was not applicable to states

when they were performing traditional governmental functions.

National League of Cities v. Usery, 426 U.S. 833 (1976). The Garcia

Court rejected National League of Cities’s “traditional

government functions” test. Garcia, 469 U.S. at 556-57. Thus, the

government's argument to the contrary herein does not merit

further comment.

App. 4!

The government's efforts to characterize the Brady

Law as a law of general applicability are disingenuous.

The specific dictates imposed upon state law enforcement

personnel comprises the crux of this lawsuit. Those

duties are not generally applicable but specially meted

out to the CLEOs. Unlike the identical responsibilities

imposed upon government and private employers under

the FLSA, private entities have no corresponding duties

under the Brady Act.

Next, the government dismisses the holding in New

York as affecting only those federal laws which compel a

State to legislate. Without doubt, the Supreme Court

found the prospect of compelled legislation to be consti-

tutionally objectionabie. The reason for this principle, the

Supreme Court explained, is that “where the federal gov-

ernment compels States to regulate, the accountability of

both state and federal officials is diminished.” New York,

112 S.Ct. at 2424. That loss of accountability, the Court

concluded, undermines the purpose of federalism — to

ensure that the interests of the citizen are adequately

represented. Id. at 2431-32.

The government claims that the Brady Act does not

usurp accountability from the states because the Act does

not require, much less compel, the state legislature to do

anything. FERC v. Mississippi, 456 U.S. at 764 (Public

Utility Regulatory Policies Act of 1978 held constitutional

because did not contain a federal command to promul-

gate and enforce regulations but merely required the

States to consider federal standards); Hodel, 452 U.S. at

288 (Supreme Court upheld Surface Mining Control and

Reclamation Act of 1977 because “the States are not com-

pelled to enforce the steep-slope standards, to expend

App. 42

any state funds, or to participate in the federal regulatory

program in any manner whatscever.”).

True, the Brady Act does not require the state to

legislate in order to enforce its provisions. In this respect,

however, it is more like the “take title” section of the

unconstitutional statute in New York which essentially

operated upon default. This provision was found to be

constitutionally defective even though no affirmative

action was demanded of the state. In this case, the state is

forced to expend time and resources toward implementa-

tion of the Act, even though legislation is not mandated.°

Finally, the government claims that the Tenth

Amendment is not violated by a congressional order that

a state implement a federal directive where doing so is

exactly the type of activity the state ordinarily engages in.

The government offers Testa v. Katt, 330 U.S. 386 (1947), in

support of this proposition. Testa involved the state of

Rhode Island's refusal to permit lawsuits to be filed in its

courts under federal price control legislation which con-

ferred dual jurisdiction upen state and federal courts. The

Supreme Court held that Rhode Island could not refuse

jurisdiction over federal claims to be adjudicated in its

courts. Testa, 330 U.S. at 394. In evaluating the appli-

cability of Testa, the New York Court declared that Testa

was grounded upon the Supremacy Clause rather than

the Tenth Amendment. New York, 112 S.Ct. at 2429-30.

° For instance, the CLEO must address the reasons for

ineligibility and destroy the sworn statement.

App. 43

Accord FERC v. Mississippi, supra (Mississippi Public Ser-

vice Commission had jurisdiction to entertain claims aris-

ing out of the Public Utilities Regulatory Policy Act of

1978). Testa is not controlling here.

In summary, the Brady Act’s provision mandating

that state law enforcement officials perform a background

check exceeds Congressional powers under the Com-

merce Clause, thereby violating the Tenth Amendment.

Fifth Amendment Vagueness Claim

Mack also chailenges the Brady Act as unconstitu-

tionally vague in violation of the Fifth Amendment Due

Process Clause because it fails to make explicit, under

threat of criminal punishment, the reasonable effort

required when determining whether receipt or possession

of a handgun would be in violation of the law. A statute

is unconstitutionally vague if it threatens sanctions with-

out giving fair warning of the conduct that is proscribed

or demanded. Grayned v. Rockford, 408 U.S. 104, 108-09

(1972). “ ‘[T]he void-for-vagueness doctrine requires that

a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what

conduct is prohibited.’ ” United States v. Dischner, 974 F.2d

1502, 1510 (9th Cir. 1992) (quoting Kolender v. Lawson, 461

U.S. 352, 357 (1983), cert. denied, 113 S.Ct. 1290 (1993)).

The United States maintains that Sheriff Mack lacks

standing to pursue this claim in light of the Office of

Legal Counsel’s opinion letter proclaiming that the crimi-

nal sanctions of the Act were not meant to apply to

CLEOs. Because the protection afforded Sheriff Mack by

a“

App. 44

the opinion letter is illusory,!° Sheriff Mack is entitled to

have the Court decide the merits of this claim. Accord-

ingly, the Court concludes that the mandatory provisions

of the statute must fall for vagueness.

The Act requires that Sheriff Mack make a “reason-

able effort” to perform a background check within five

business days, including research in a national system of

records designated by the Attorney General as well as

any “available” state and local records. 18 U.S.C.

922(s)(2). Reasonable effort is not defined by statute.

The United States offers one definition to complete

the void. It insists that Sheriff Mack is not under a man-

datory obligation to determine the legality of handgun

transfers. The government's interpretation of the enforce-

ment provisions merely directs the CLEO to determine

whether, in light of the resources available in the specific

jurisdiction, it would be reasonable to conduct a back-

ground check after notice of the proposed sale by a

licensed gun seller. The government claims the Act would

allow ever changing obligations, as-appropriate, in light

of individual circumstances. At various times and

through various agencies, the government has posited

that criminal sanctions do not apply to CLEOs or that

criminal sanctions may apply, but only if the CLEO fails

to expend “minimal efforts” in pursuit of his or her

investigatory duties.

The government's position is untenable. When the

language of a criminal statute is clear, as is true of 18

U.S.C. 922(s), the executive branch is not at liberty to

App. 45

amend that statute by fiat. Accordingly, the Court finds

that Sheriff Mack faces criminal sanctions should he vio-

late the Brady Act's mandatory provisions, but the statu-

tory duty imposed upon him as the CLEO of Graham

County is imprecise and indefinite. This runs afoul of the

Fifth Amendment Due Process Clause.

Thirteenth Amendment Challenge

Mack next contests the Brady Act on the ground that

its enforcement provisions constitute involuntary servi-

tude prohibited by the Thirteenth Amendment. Involun-

tary servitude in violation of the Thirteenth Amendment

“occurs when an individual coerces another into baie

service by improper or wrongful conduct that is intended

to cause, and does cause, the other person to believe that

he or she has no alternative but to perform the labor.”

Brogan v. San Mateo County, 901 F.2d 762, 764 (9th Cir.

1990) (quoting United States v. Mussry, 726 F.2d 1448, 1453

(9th Cir.), cert. denied, 469 U.S. 855 (1984)).

In United States v. Kozminski, 487 U.S. 931 (1988), the

Supreme Court found that a conviction for violating a

Statute enacted to enforce the Thirteenth Amendment

required proof that the alleged victims were “forced to

work for the defendant by the use or threat of physical

restraint or physical injury” or by law, rather than merely

by psychological coercion. Kozminski, 487 U.S. at 952.

Where as here a person is free to refuse to work without

incurring legal sanctions, the Thirteenth Amendment is

not violated, even if the choice is a painful one. Mack

need only quit his job to be free of the duties imposed

‘upon him by the Act. Under these circumstances, the

App. 46

Thirteenth Amendment is not implicated. Id. at 950 (quot-

ing United States v. Schackney, 333 F.2d 475, 487 (2d Cir.

1964))

Severability of Offending Provisions

A statute that is partially unconstitutional may

require the Court to invalidate the statute in its entirety.

Mack maintains that the unconstitutional provisions of

sec. 922(s) are the heart and foundation of that entire

subsection” and the illegality of the part infects the legal-

ity of the whole. “Unless it is evident that” Congress

would not have enacted the constitutional provisions in a

statute independently of any unconstitutional ones, “the

invalid part may be dropped if what is left is fully opera-

tive as a law.” New York, 112 S.Ct. at 2434 (citations

omitted). Mack interprets both the statutory text and its

legislative history to mean that the statute would not

have been enacted absent the enforcement duties placed

upon the CLEOs. Thus, he claims, the subsections under

review are not severable and if even one subsection is

unconstitutional the entire act must be rejected.

The Gun Control Act, of which the Brady Act is a

part, does in fact contain a severability clause. Section 928

reads: “If any provision of this chapter . . . is held invalid,

the remainder of the chapter . . . shall not be affected

thereby.” 18 U.S.C. 928. If a statute includes a severability

clause, there is a presumption that any of its provisions

found to be unconstitutional are severable. Alaska Air-

lines, Inc. v. Brock, 480 U.S. 678, 686 (1987). See Board of

Natural Resources v. Brown, 992 F.2d 937, 948 (9th Cir.

1993) (the absence of a severability clause “does suggest

App. 47

an intent to have all components operate together or not

at all.”).

The Supreme Court in Alaska Airlines expressed some

doubt as to whether the severability clause contained

within the Federal Aviation Act of 1958 applied to the

Airline Deregulation Act of 1978, the provision under

review. Alaska Airlines, 480 U.S. at 686 n. 8. As the

Supreme Court explained, the Airline Deregulation Act

did not truly amend the Federal Aviation Act, but created

a whole new program. Id. That concern does not apply

here. In contrast, the Brady Act does amend the underly-

ing Gun Control Act. Rather than create an entire new

program, the Brady Act simply provides a means for

implementing the Gun Control Act's prohibition against

sales to certain classes of buyers.

Even without applying the severability clause, the

offending provision could be separated without doing

damage to the entire Brady Act. An invalid provision is

severable if the balance of the legislation is capable of

functioning independently from the invalid provision,

and the statute functions, in the absence of the objection-

able provision, “in a manner consistent with the intent of

Congress;” Id. at 684-85 (emphasis in original).

Accurately gauging the most vulnerable aspect of the

Brady Act, the government is hopeful that the Court will

limit its redaction to section 922(s)(2), the provision

requiring local law enforcement officials to conduct a

reasonable background search.'! This proposal would

'! Mack’s constitutional challenge encompasses three of the

interim provisions of the Act, namely, the requirements that the

App. 48

leave intact the five-day waiting period, the information

and notification duties imposed on gun importers,

dealers, and manufacturers, and the option for local offi-

cials to conduct a background check.

When considered absent the offending subsection,

the statute loses none of its function. The test is whether

the elimination “alters the substantive reach of the statute

and leaves completely unchanged its basic operation.”

Board of Natural Resources, 992 F.2d at 948 (citations omit-

ted). Irrefutably the balance of the interim provisions can

function independent of the alleged invalid provision.

Gun sales can be postponed for five days and sworn

Statements can be forwarded to CLEOs, regardless of

whether CLEOs perform any of the three acts described

in the challenged provisions.

The Court must next decide whether the offending

portion is necessary for the remainder of the Act to

function “in a manner consistent with the intent of Con-

gress.” The presence of the severability clause is again

evidence that Congress intended for the statute to have

continued viability, even though partially invalidated.

Mack disagrees, and argues that the bill was a prod-

uct of a negotiated compromise which Congress would

not have adopted but for its many parts. For instance,

Mack refers the Court to the destruction requirement,

which prevents the inadvertent creation of a registration

system, to have been critical to the successful passage of

CLEO conduct a background check, destroy sworn statements

of purchasers after 20 days, and inform rejected purchasers of

the reasons for the denial.

App. 49

the bill. At bottom, Mack has not overcome the presump-

tion in favor of severability and the Court can safely

excise the offending provision.

By invalidating the mandatory background check

Provision, the requirements of the other challenged pro-

Visions become optional. For instance, 18 U.S.C.

922(s)(6)(C), which requires the CLEO to provide reasons

to the denied purchaser for that determination, becomes

elective depending on whether the State chooses to per-

form background checks. Similarly, 18 U.S.C. 922(s)(6)(B),

which orders the CLEO to destroy the sworn statement

within 20 days of the date of the transfer again will

depend upon the state’s voluntary decision to perform

the background check. When viewed accordingly, the

remaining provisions do not commandeer the states in

any way and are therefore constitutional.

ORDER

The Court finds that in enacting section 18 U.S.C.

922(s)(2), Congress exceeded its authority under Article

1, section 8 of the United States Constitution, thereby

impermissibly encroaching upon the powers retained by

the states pursuant to the Tenth Amendment. The Court

further finds that the Provision, in conjunction with the

criminal sanctions its violation would engender, is uncon-

Stitutionally vague under the Fifth Amendment of the

United States Constitution.

Accordingly, IT IS HEREBY ORDERED that plaintiff

Sheriff Richard Mack’s complaint for declaratory and

injunctive relief is GRANTED IN PART. The Clerk of the

Court is directed to enter a judgment declaring 18 U.S.C.

App. 50

922(s)(2) to be unconstitutional. IT IS FURTHER

ORDERED that defendant United States of America and

its agents are PERMANENTLY ENJOINED from further

enforcing 18 U.S.C. 922(s)(2).

All other provisions under review are deemed sever-

able from the offending subsection and are found not to

violate the United States Constitution.

IT IS FURTHER ORDERED that all pending motions

are deemed MOOT by virtue of this order and this case is

DISMISSED.

Dated: June 28, 1994

JOHN M. ROLL

United States District Judge

App. 51

107 STAT. 1536 (Nov. 30, 1993)

PUBLIC LAW 103-159

103d Congress

An Act

To provide for a waiting period before the purchase

of a handgun, and for the establishment of a national

instant criminal background check system to be contacted

by firearms dealers before the transfer of any firearm.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

TITLE I - BRADY HANDGUN CONTROL

SEC. 101. - SHORT TITLE.

This title may be cited as the “Brady Handgun Vio-

lence Prevention Act”.

SEC. 102. FEDERAL FIREARMS LICENSEE REQUIRED

TO CONDUCT CRIMINAL BACKGROUND CHECK

BEFORE TRANSFER OF FIREARM TO NON-

LICENSEE. :

(a) INTERIM PROVISION. -

(1) IN GENERAL. - Section 922 of title 18, United

States Code, is amended by adding at the end the follow-

ing:

“(s(1) Beginning on the date that is 90 days after

the date of enactment of this subdsection and ending on

the day before the date that is 60 months after such date

of enactment, it shall be unlawful for any licensed impor-

ter, licensed manufacturer, or licensed dealer to sell,

App. 52

deliver, or transfer a handgun to an individual who is not

licensed under section 923, ui'less -

“(A) after the most recent proposal of such transfer

by the transferee -

“(i) the transferor has -

“(I) received from the transferee a statement of

the transferee containing the information

described in paragraph (3);

“(Il) verified the identity of the transferee by

examining the identification document pre-

sented;

“(1i1) within 1 day after the transferee fur-

nishes the statement, provided notice of the con-

tents of the statement to the chief law

enforcement officer of the place of residence of

the transferee; and

“(IV) within 1 day after the transferee fur-

nishes the statement, transmitted a copy of the

statement to the chief law enforcement officer of

the place of residence of the transferee; and

“(ii)) 5 business days (meaning days on

which State offices are open) have elapsed from

the date the transferor furnished notice of the

contents of the statement to the chief law

enforcement officer, during which period the

transferor has not received information from the

chief law enforcement officer that receipt or pos-

session of the handgun by the transferee would

be in violation of Federal, State, or local law; or

“(11) the transferor has received notice from

the chief law enforcement officer that the officer

has no information indicating that receipt or

possession of the handgun by the transferee

would violate Federal, State, or local law;

“(B) the transferee has presented to the trans-

feror a written statement, issued by the chief

law enforcement officer of the place of residence

of the transferee during the 10-day period end-

ing on the date of the most recent proposal of

such transfer by the transferee, Stating that the

transferee requires access to a handgun because

of a threat to the life of the transferee or of any

member of the household of the transferee;

“(C)i) the transferee has presented to the

transferor a permit that —

“(I)_ allows the transferee to possess or acquire

a handgun; and

“(I) was issued not more than 5 years earlier

by the State in which the transfer is to take

place; and

“(ii) the law of the State provides that such a

permit is to be issued only after an authorized

government official has verified that the infor-

mation available to such official does not indi-

cate that possession of a handgun by the

transferee would be in violation o# the law;

“(D) the law of the State requires that, before

any licensed importer, licensed mamufacturer, or

licensed dealer completes the transfer of a hand-

gun to an individual who is not lecensed under

section 923, an authorized govwermmesit official

verify that the information available to such

official does not indicate that possession of a

handgun by the transferee would be im violation

of law;

App. 54

“(E) the Secretary has approved the transfer

under section 5812 of the Internal Revenue Code

of 1986; or

“(F) on application of the transferor, the Secre-

tary has certified that compliance with subpara-

graph (A)(i)(III) is impracticable because -

“(i) the ratio of the number of law enforcement

officers of the State in which the transfer is to

occur to the number of square miles of land area

of the State does not exceed 0.0025;

“(ii) the business premises of the transferor at

which the transfer is to occur are extremely

remote in relation to the chief law enforcement

officer; and

“(iii) there is an absence of telecommunica-

tions facilities in the geographical area in which

the business premises are located.

“(2) A chief law enforcement officer to whom a

transferor has provided notice pursuant to para-

graph (1)(A)(i)(III) shall make a reasonable

effort to ascertain within 5 business days

whether receipt or possession would be in viola-

tion of the law, including research in whatever

State and local recordkeeping systems are avail-

able and in a national system designated by the

Attorney General.

“(3) The statement referred to in paragraph

(1)(A)(i)(1) shall contain only -

“(A) the name, address, and date of birth

appearing on a valid identification document (as

defined in section 1028(d)(1)) of the transferee

containing a photograph of the transferee and a

description of the identification used;

App. 55

“(B) a statement that the transferee -

“(i) is not under indictment for, and has not

been convicted in any court of, a crime punish-

able by imprisonment for a term exceeding 1

year;

“(ii) is not a fugitive from justice;

“(iili) is not an unlawful user of or addicted to

any controlled substance (as defined in section

102 of the Controlled Substances Act);

“(iv) has not been adjudicated as a mental

defective or been committed to a mental institu-

tion;

“(v) is not an alien who is illegally or

unlawfully in the United States;

“(vi) has not been discharged from the Armed

Forces under dishonorable conditions; and

“(vii) is not a person who, having been a citi-

zen of the United States, has renounced such

citizenship;

“(C) the date the statement is made; and

“(D) notice that the transferee intends to

obtain a handgun from the transferor.

“(4) Any transferor of a handgun who, after

such transfer, receives a report from a chief law

enforcement officer containing information that

receipt or possession of the handgun by the

transferee violates Federal, State, or local law

shall, within 1 business day after receipt of such

request, communicate any information related

to the transfer that the transferor has about the

transfer and the transferee to —

App. 56

“(A) the chief law enforcement officer of the

place of business of the transferor; and

“(B) the chief law enforcement officer of the

place of residence of the transferee.

“(5) Any transferor who receives information,

not otherwise available to the public, in a report

under this subsection shall not disclose such

information except to the transferee, to law

enforcement authorities, or pursuant to the

direction of a court of law.

“(6)(A) Any transferor who sells, delivers, or

otherwise transfers a handgun to a transferee

shall retain the copy of the statement of the

transferee with respect to the handgun transac-

tion, and shall retain evidence that the trans-

feror has complied with subclauses (III) and (IV)

of paragraph (1)(A)(i) with respect to the state-

ment.

“(B) Unless the chief law enforcement officer

to whom a statement is transmitted under para-

graph (1)(A)(i)(IV) determines that a transaction

would violate Federal, State, or local law -

“(i) the officer shall, within 20 business days

after the date the transferee made the statement

on the basis of which the notice was provided,

destroy the statement, any record containing

information derived from the statement, and

any record created as a result of the notice

required by paragraph (1) A)(DUL)

“(ii) the information contained in the state-

ment shall not be conveyed to any person except

a person who has a need to know in order to

carry out this subsection; and

App. 57

“(iii) the information contained in the state-

ment shall not be used for any purpose other

than to carry out this subsection.

“(C) If a chief law enforcement officer deter-

mines that an individual is ineligible to receive a

handgun and the individual requests the officer

to provide the reason for such determination,

the officer shall provide such reasons to the

individual in writing within 20 business days

after receipt of the request.

(7) A chief law enforcement officer or other

person responsible for providing criminal his-

tory background information pursuant to this

subsection shall not be liable in an action at law

for damages -

“(A) for failure to prevent the sale or transfer

of a handgun to a person whose receipt or pos-

session of the handgun is unlawful under this

section; or

“(B) for preventing such a sale or transfer to a

person who may lawfully receive or possess a

handgun.

“(8) For purposes of this subsection, the term

‘chief law enforcement officer’ means the chief

of police, the sheriff, or an equivalent officer or

the designee of any such individual.

“(9) The Secretary shall take necessary actions

to ensure that the provisions of this subsection

are published and disseminated to licensed

dealers, law enforcement officials, and the pub-

_ A

(2) HANDGUN DEFINED. - Section 921(a) of title 18,

United States Code, is amended by adding at the end the

following:

App. 58

“(29) The term ‘handgun’ means -

“(A) a firearm which has a short stock and is

designed to be held and fired by the use of a

single hand; and

“(B) any combination of parts from which a

firearm described in subparagraph (A) can be

assembled.”.

(b) PERMANENT PROVISION. - Section 922 of title 18,

United States Code, as amended by subsection (a)(1), is

amended by adding at the end the following:

“(t)(1) Beginning on the date that is 30 days after the

Attorney General notifies licensees under section 103(d)

of the Brady Handgun Violence Prevention Act that the

national instant criminal background check system is

established, a licensed importer, licensed manufacturer,

or licensed dealer shall not transfer a firearm to any other

person who is not licensed under this chapter, unless -

“(A) before the completion of the transfer, the

licensee contacts the national instant criminal back-

ground check system established under section 103 of

that Act;

“(B)(i) the system provides the licensee with a

unique identification number; or

“(ii) 3 business days (meaning a day on which State

offices are open) have elapsed since the licensee con-

tacted the system, and the system has not notified the

licensee that the receipt of a firearm by such other person

would violate subsection (g) or (n) of this section; and

“(C) the transferor has verified the identity of the

transferee by examining a valid identification document

App. 59

(as defined in section 1028(d)(1) of this title) of the trans-

feree containing a photograph of the transferee.

“(2) If receipt of a firearm would not violate section 922

(g) or (mn) or State law, the system shall -

“(A) assign a unique identification number to the

transfer;

“(B) provide the licensee with the number; and

“(C) destroy all records of the system with respect

to the call (other than the identifying number and the

date the number was assigned) and all records of the

system relating to the person or the transfer.

“(3) Paragraph (1) shall not apply to a firearm transfer

between a licensee and another person if -

“(A)(i) such other person has presented to the

licensee a permit that -

“(1) allows such other person to »ossess or

acquire a firearm; and

“(II) was issued not more than 5 years earlier

by the State in which the transfer is to take

place; and

“(ii) the law of the State provides that such a

permit is to be issued only after an authorized

government official has verified that the infor-

mation available to such official does not indi-

cate that possession of a firearm by such other

person would be in violation of law;

“(B) the Secretary has approved the transfer

under section 5812 of the Internal Revenue Code

of 1986; or

App. 60

“(C) on application of the transferor, the Secre-

tary has certified that compliance with para-

graph (1)(A) is impracticable because -

“(i) the ratio of the number of law enforcement

officers of the State in which the transfer is to

occur to the number of square miles of land area

of the State does not exceed 0.0025;

“(ii) the business premises of the licensee at

which the transfer is to occur are extremely

remote in relation to the chief law enforcement

officer (as defined in subsection (s)(8)); and

“(iii) there is an absence of telecommunica-

tions facilities in the geographical area in which

the business premises are located.

“(4) If the national instant criminal back-

ground check system notifies the licensee that

the information available to the system does not

demonstrate that the receipt of a firearm by such

other person would violate subsection (g) or (n)

or State law, and the licensee transfers a firearm

to such other person, the licensee shall include

in the record of the transfer the unique identi-

fication number provided by the system with

respect to the transfer.

“(5) If the licensee knowingly transfers a fire-

arm to such other person and knowingly fails to

comply with paragraph (1) of this subsection

with respect to the transfer and, at the time such

other person most recently proposed the trans-

fer, the national instant criminal background

check system was operating and information

was available to the system demonstrating that

receipt of a firearm by such other person would

violate subsection (g) or (n) of this section or

State law, the Secretary may, after notice and

App. 61

opportunity for a hearing, suspend for not more

than 6 months or revoke any license issued to

the licensee under section 923, and may impose

on the licensee a civil fine of not more than

$5,000.

“(6) Neither a local government nor an

employee of the Federal Government or of any

State or local government, responsible for pro-

viding information to the national instant crimi-

nal background check system shall be liable in

an action at law for damages -

“(A) for failure to prevent the sale or trarster

of a firearm to a person whose receipt or posses-

sion of the firearm is unlawful under this sec-

tion; or

“(B) for preventing such a sale or transfer to a

person who may lawfully receive or possess a

firearm.”.

Codie, is amended -

(1) in paragraph (1), by striking “paragraph (2) or (3)

of”; and

(2) by adding at the end the following:

“(5) Whoever knowingly violates subsection (s) or (t) of

section 922 shall be fined not more than $1,000,

imprisoned for not more than 1 year, or both.”.

App. 62

SEC. 104. REMEDY FOR ERRONEOUS DENIAL OF

FIREARM.

(a) IN GENERAL. - Chapter 44 of title 18, United States

Code, is amended by inserting after section 925 the fol-

lowing new section:

“§ 925A. Remedy for erroneous denial of firearm

“Any person denied a firearm pursuant to subsection (s)

or (t) of section 922 -

“(1) due to the provision of erroneous information

relating to the person by any State or political subdivision

thereof, or by the national instant criminal background

check system established under section 103 of the Brady

Handgun Violence Prevention Act; or

“(2) who was not prohibited from receipt of a fire-

arm pursuant to subsection (g) or (n) of section 922, may

bring an action against the State or political subdivision

responsible for providing the erroneous information, or

responsible for denying the transfer, or against the

United States, as the case may be, for an order directing

that the erroneous information be corrected or that the

transfer be approved, as the case may be. In any action :

under this section, the court, in its discretion, may allow

the prevailing party a reasonable attorney's fee as part of

the costs.”.

App. 63

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Sheriff Richard Mack

v. No. 94-113-TUC-JMR

United States of America

Plaintiff Sheriff Richard Mack declares and states:

1. I am sheriff of, and reside in, Graham County,

Arizona, having been elected by the citizens of that

county in 1988 and since re-elected.

2. The office of sheriff is created by Article 12, § 3 of

the Constitution of Arizona; its duties are fixed by Ari-

zona Revised Statutes, Title 11; its budget allocations are

fixed by the County Board of Supervisors.

9. Ihave in my office an undersheriff, one detective,

a patrol sergeant, and nine deputies for active patrol.

These must provide 24 hour law enforcement for 4,500

square miles under my jurisdiction, occupied by 28,000

persons. By my calculation, we average 1.5 deputies on

patrol at any given moment, for this entire area. Between

the necessity of responding to actual calls, these are hard

put to provide routine patrol. Until recently, | performed

our Drug Abuse Resistance Education duties myself, sim-

ply so that we would not have to take a deputy off patrol

to carry it out. If | am now compelled to perform back-

ground checks of our residents, it will have to be done by

pulling deputies off patrol. For a large department,

removing one deputy from patrol may not be a burden.

App. 64

For the 28,000 residents of Graham County it means an

11% reduction in law enforcement protection.

App. 65

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Sheriff Richard Mack

v. No. 94-113-TUC-JMR

United States of America

Reporter’s Transcript of Proceedings

Before the Honorable John M. Roll

May 31, 1994

[Testimony of Sheriff Richard Mack]

[p. 7} Q. Based on your three months’ experience

with the Act, how much time would you say, man-hours

wise, you are putting in on it?

A. Probably for all personnel that have participated,

it is an average of an hour or two a day.

Q. How many ‘hits’ have you had in the last three

months?

A. Out of all the checks that we have done, which

have numbered over 80, there was one that was question-

able, and we denied a handgun purchase to that individ-

ual.

Q. Did he agree with your finding that it was ques-

tionable?

A. No, he was quite upset. He did not agree with it.

He said that his civil rights have been restored. The

conviction that it shows on his rap sheet was from

another state, so | wasn’t able to verify it then. I told him

he would have to show me verification of that.

App. 66

[p. 8] Q. Have you received criticism from persons

regarding your performance of the checks?

A. Yes, they believe that it was a waste of time, and

that the Sheriff's Office should be spending County tax-

payer dollars on more pressing matters.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.