# Petition for Writ of Certiorari — Printz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0704%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 518 U.S. 1003 ## Text Court, US. FIBED \ / 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 EEE i Parties To The Proceeding ................00eeeee0s ii EEE OT Ee iii EE EE iv ET ScbwheGaseb cvcvecscotesccccccccces 1 eee aes caer cbedeecteccecees 1 Statutes And Constitutional Provisions Involved.... 2 Ee 3 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 iv 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 Vv 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 ee GR, GO. FE occas evccanctcenestoscesvs 2, 9, 18 es GE, GIR BP coe v ccc cccvtccuveiccencdedeeess 18 eee Ge MN ED Biinae cacsce cddsisdcbecsvevedetus 18 ee GI, AE Bs Te onc ccc cadescccgdacueabetgees 18 ee I, GE BP Me cn cncdecenccscessennhecddeuns 18 See GR, AGMNME. To ccctedecvevccssccccesses passim SP TG. HE o ca cccccccccpesscteciccvensveres 15 BD BE GE on 0c concccccccmmecevessapecesscs 4 FP Cs FD 0 voc vccccvccecescccccesesecceecosens 4 BD Fs Be ccc ccccecccccdsvses tsnnsacerosrcsass 4 BD TRG GD cc ccc vccdeccedétocsvesdseccions passim BB WEG. GORI 6 occ cccccccccccccccccscccecccccecces 4 BD en GI on cre scccceccesccsccscccenvcessousece 3 BD TRE GS onc ccbcdccccedssccccccceccescces i Fe BD CEB. GEROIED owe ccvccccccccccccccsessenboseccens 1 NEES os ota a v5 oe ducranlnaiads cea 6 vi AUTHORITIES CITED - Continued Page REGULATIONS AMX SS FF Bf Sr ae er 4 Attorney General Order No. 1853-94, 59 Federal Seeee SESS GU. BR GOO oc sc cccccscsccccccsiccss 6 TREATISES AND ARTICLES B. Bailyn, The Ideological Origins of the American SD WE Ca vcuvccccdeababecndcccce’ 18 D. Merritt, The Guarantee Clause and State Auton- — 42 fs FS £0 Ree 13 D. Merritt, Three Faces of Federalism, 47 Vand. L. Se My Mn cd acadancedens wiedenséct * a . > nh a ain ee + Ade om yliar OS Ee gg ace tor ee Wg st es AA re om ae. \ es) ae Tour oe ache as eT Wekee Se amy | eM iy oakee : eas. fs - a ei ae bi Wee } =e 7 i : ° : are oy" : ») . ane oo. 2 Eh a hi hh rats HEX ce f chy 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 © See supra note 6 and accompanying text. 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.”. (c) PENALTY. - Section 924(a) of title 18, United States 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0704%3A02. Public record. Not legal advice.