Petition for Writ of Certiorari — Frank v. United States

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

Suprems © U.8.

FIL Dp

952006 JUN 1 3 19%

OFEIQE OF THE CLERK

No. 95-

)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

SAMUEL FRANK, Sheriff, Orange County, Vermont,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

* JAMES H. WARNER

11250 Waples Mill Road

Fairfax, Virginia 22030

(703) 267-1256

Attorney for Petitioner

* Counsel of Record

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

QUESTION PRESENTED

Whether the delegated powers of Congress, as construed

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

power which Congress exercised in the Brady Law, 18 U.S.C.

§922(s)(2), (6)(B) and (C), to prescribe duties for state Chief

Law Enforcement Officers (CLEOs), beyond those duties

prescribed in the state laws which created their positions,

including compelling the CLEO to make a reasonable effort to

ascertain whether individuals may lawfully purchase handguns;

thereafter to destroy the records of such transaction, or to

provide a written explanation for an adverse determination.

PARTIES TO THE PROCEEDING

The parties to the proceeding below were Sheriff

Samuel Frank and the United States of America. No parent

companies and wholly or non-wholly owned subsidiaries of

either exist.

ae ee ee bead.

Petectens teen lt it timate

iii

TABLE OF CONTENTS

Page

I et ee a es oueeeue i

I sr Fe ii

a oe ant iii

IR CS go a OR iv

a oe on 6 a watlna deewabewacwes ses l

NERS S 0 eae ee |

Statutes And Constitutional Provisions

ES TESTS AGES SSS a ie ae ne ee ee ]

es Ss as vb'a'y ow biwe wcien 3

Reasons For Granting The Writ ..................... 7

I. THE WRIT SHOULD BE GRANTED

BECAUSE THERE IS A CONFLICT OF

OPINION IN THE CIRCUITS ON THE

CONSTITUTIONALITY OF AN ACT OF

PNG caves Sbugek Cubes 66s us 7

Il. THE WRIT SHOULD BE GRANTED

BECAUSE THE DECISION OF THE

SECOND CIRCUIT IS IN CONFLICT

WITH THE DECISION OF THIS COURT

IN NEW YORK V. UNITED STATES .... 8

NPIS "Gf Or a ap Ra ing oy Ra A eee 16

Appendix:

Opinion of the U.S. Court of Appeals

rn es ron one b det wn la

Opinion of the U.S. District Court

for the District of Vermont.................. 44a

Brady Handgun Violence Protection

Act, Pub. L. 103-159; 107 Stat. 1536

CPS oc cocccuvcul sbavensbaberbals secede 78a

AUTHORITIES CITED

Cases

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

Federal Trade Commission v. Flotill Products, 389

SS. FRC). wh es eersincieb tiveness 7

Frank v. United States, 78 F.3d 815 a Cir. 1996) at

ee ONES ei eee err ebeeeneesy 1, 12, 13

Frank v. United States, 860 F. Supp. 1030 (D. Vermont

1994), rev'd 78 F.3d 815 (2d Cir. 1996) .............. l

Pep v. GE GE UE. FAS Gras ccc cccevevesesdenace G

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

Se ee Oa x taee ees anwneeewnen 9,12

Gregory v. Ashcroft, 111 S.Ct. 2395 (1991) .......... 13

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

Pett @ Fy eer erry | Perr: yee 9

Koog v. U.S., 79 F.3d 452 (Sth Cir. 1996) ........ 6, 7,8

ete eee ih BEI Me

ees | Cee Or Ont Tee ame Ee eee

eee ee A

McGee v. U.S., 79 F.3d 452 (Sth Cir. 1996) ......... 6,7

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

Printz v. U.S., 66 F.3d (9th Cir. 1995) ................ 6

South Carolina v. Baker, 485 U.S. 505 (1988) ...... 9,12

Testa v. Katt, 330 U.S. 386 (1947) ................. 12

Waterman Steamship Corp. v. U.S., 381 U.S. 252, 258

GRO 2 Sa see er ee ae Cae ee a 7

Constitutional Provisions

a SA PERO hives nk vcceweccieksucudte 1 & e

se ee Rg rrr are rere mein shpat” 13

a CE ES es see baaec eee ee eee 12

Ek ee ee 8 Berar i ree or orrre er passim

Statutes and Rules

SO Ghdt Ace EE «<b ua ims ned bead deed ete cas 3

SO a DS avasbswatereude tare eere: 3

Se Ur. ew sactseckchbekasel ee passim

Se Wes SN > beaks Siuueeuseeeneateiene 2

WUE MA ei eee 4,14

28 UBS. S1ZSA) vc ccvensctivetvisevesvansene l

y BLE om Bs . | Spot ee rg te 5

Regulations

Attorney General Order No.1853-94, 59 Federal Register

9498 (Fab. 2B, 19OG) cic bss esivovesevtetesunss 4

Legislative History

H.R. Rep. No. 103-344, 103rd Cong., Ist Sess., at 7

10) #6 oSniiweskvews eee 14

Petitioner, Sheriff Samuel Frank requests that a writ of

certiorari issue to review the final order of the United States

Court of Appeals for the Second Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported as Frank v. United States, 78 F.3d 815 (2nd Cir. 1996)

and is reproduced in the Appendix (“App.”) at la. The opinion

of the United States District Court is reported as Frank v.

United States, 860 F. Supp. 1030 (D. Vermont. 1994) and is

reproduced in the Appendix at 44a.

JURISDICTION

On March 15, 1996, the Court of Appeals affirmed in

part and reversed in part the judgment of the District Court,

thereby upholding the validity of the statutory provisions in

question. 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 regulate

Commerce with foreign Nations, and among the several

States...

Amendment 10 to the Constitution of 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 respectively, 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. 78a.

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--

(1) received from the transferee a

statement 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 paragraph

(1)(A)G@)CID shall make a reasonable effort to ascertain

within 5 business days whether receipt or possession

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. §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 | year, or both.".

ce Sen ee ot teeta

18 U.S.C. § 925A:

Any person denied a firearm pursuant to subsection (s)

or (t) of section 922--

eeeeeore

(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 directing that ... the transfer be approved...

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.

STATEMENT OF THE CASE

Federal law prohibits the transfer of firearms to, or

possession by, members of certain classes of restricted persons,

including, inter alia, convicted felons, persons dishonorably

discharged from the armed forces, adjudicated mental

defectives, illegal aliens, unlawful drug users, fugitives from

justice, and persons under certain forms of domestic restraining

orders. 18 U.S.C. §922(d), (g), & (n).

In the past, purchasers were required to complete an

official questionnaire, on a form prescribed by the federal

government, verifying that they were not included in any of the

classes of restricted persons. In 1993 Congress enacted the

"Brady Law," Pub. L. 103-159, 107 Stat. 1536 (1993), which

provided for an official verification, through an examination of

available records, of the proposed purchaser's eligibility to

possess a firearm. To this end, the law requires the U.S. Justice

Department to establish a data base of prohibited persons by

the year 1999. Before that time, the law creates an interim

system which requires that the background investigations, on

persons seeking to purchase handguns, be conducted by the

"Chief Law Enforcement Officer" (CLEO) for the district in

which the proposed purchaser resides. The term "Chief Law

Enforcement Officer" 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).

During the operation of the interim system, the

proposed purchaser must fill out a form indicating an intent to

purchase a handgun. The dealer must submit this information

to the Chief Law Enforcement Officer of the place where the

proposed purchaser resides. 18 U.S.C. §922(s)(1)(A)(iii). The

CLEO is required to make ". . . a reasonable effort to ascertain

within 5 business days whether receipt or possession 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 U.S. Attorney General has designated two

Federal databases as the "national system" which the CLEO

must check. Order No.1853-94, at 59 Federal Register 9498

(Feb. 28, 1994).

If the CLEO finds that the proposed sale would not

violate Federal, State or local law, he is required to destroy the

form and any references to it within twenty business days. 18

U.S.C. §922(s)(6)(B). On the other hand, if the CLEO finds

that the proposed purchaser is ineligible to receive a handgun,

he must inform the dealer and, if the purchaser requests,

provide a written justification of his findings within 20

business days. 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.

Sheriff Sam Frank is the elected Sheriff of Orange

County, Vermont. Orange County has a population of

approximately 26,000, and an area of 992 square miles. The

ae ee ed

County has three full time law enforcement officers, including

the Sheriff and two deputies. The Vermont legislature has

prescribed the duties of a sheriff at 24 Vermont Statutes

Annotated, Chap. 5, subchap. 5. These include a duty to serve

as bailiffs in courts in the county, transport prisoners, serve

legal process, as well as to serve as peace officers for the

county. Sheriff Frank, or his deputy, must spend from 15

minutes to six hours conducting background checks, and the

workload, with respect to background checks, has doubled

since the effective date of the Brady Law. App. 45a.

In May, 1993, Petitioner commenced an action in the

United States District Court, District of Vermont, invoking its

jurisdiction under 28 U.S.C. § 1331. He sought declaratory

relief to establish, inter alia, that 18 U.S.C. §922(s) exceeds

Congress’s Article I powers and violates the Tenth

Amendment. He also sought an injunction against its

enforcement.

The District Court (Parker, J.), relying upon this Court’s

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

issued its decision, holding, in pertinent part, that those sections

of 18 U.S.C. §922(s) which impose ministerial duties upon

Chief Law Enforcement Officers is unconstitutional,

permanently enjoined the enforcement of same in the District

of Vermont, and upheld the remainder of the statute as

severable. App., at 44a.

The Court of Appeals reversed in part and affirmed in

part, the judgment of the District Court. The Court of Appeals

for the Second Circuit found that the duties imposed by the

Brady law do not, in fact, exceed the delegated powers of

Congress, or violate the 10th Amendment.

The question presented in this case has been reviewed

in other Circuits. The Ninth Circuit, in Mack v. U.S., and

Printz v. U.S. , 66 F.3d 1025 (9th Cir. 1995), held that the

duties which the Brady law compels CLEOs to perform did not

violate the 10th Amendment, or exceed the delegated powers

of Congress. On the other hand, in a decision issued 6 days

after the decision in the instant case, the Fifth Circuit, in Koog

v. U.S., and McGee v. U.S., 79 F.3d 452 (Sth Cir. 1996), held

that the interim duties, including the duty to perform a

background check, the destruction of records and the duty to

furnish written justification for denials, violate the constitution.

The Solicitor General, in the Brief of the United States,

in the Petition styled Printz v. United States, docket #95-1478,

which involves the question which is presented in the instant

case. concludes that this is a question which should be resolved

and that certiorari should be granted.

REASONS FOR GRANTING THE WRIT

THE WRIT SHOULD BE GRANTED BECAUSE

THERE IS A CONFLICT OF OPINION

IN THE CIRCUITS ON THE CONSTITUTIONA® ITY

OF AN ACT OF CONGRESS

This Court should grant the writ of certiorari because

there is a conflict between the Circuit Courts on a question

which involves the delegated powers of Congress, under

Article I, section 8, ci.3 of the Constitution, and the reserved

powers of the States, under the 10th Amendment to the

Constitution. As noted, supra, the decision of the Second

Circuit in the instant case, the decision of the Ninth Circuit, in

Mack and Printz, supra, are precisely contrary to the decision

in the Fifth Circuit, in Koog and McGee, supra. Further, the

decisions of the Second and Ninth Circuits are not congruent

with the decision of this Court in New York v. United States,

505 U.S. 144 (1992). In such case, it is appropriate for the

Supreme Court to grant certiorari to resolve the conflict.

Waterman Steamship Corp. v. U.S., 381 U.S. 252, 258 (1965);

Federal Trade Commission vy. Flotill Products, 389 U.S. 179

(1967).

THE WRIT SHOULD BE GRANTED BECAUSE

THE DECISION OF THE SECOND CIRCUIT IS

IN CONFLICT WITH THE DECISION OF THIS

COURT IN NEW YORK V. UNITED STATES

In an opinion on the same issue, with a contrary result,

the Court of Appeals for the Fifth Circuit, in Koog v. U.S., 79

F. 3d 452 (Sth Cir. 1996), held that the Brady Law, to the

extent that it compels Chief Law Enforcement Officers to

perform ministerial duties, is unconstitutional. The Fifth

Circuit based its decision on the decision of this Court in New

York v. U.S., 112 S. Ct. 2408 (1992), which, it said, was ". . .

central to the question before us." New York is also central to

this case.

In New York the issue was a challenge to the Low-Level

Radioactive Waste Amendments of 1985. This statute

provided several incentives to induce States to conform with

the directives of the federal government on the disposal of

nuclear wastes. The Act offered financial grants to States

which complied. It provided for federal pre-emption in

instances in which a State chose not to comply. This Court

found that these provisions were within the permissible powers

of Congress, and did not transgress the powers reserved under

the 10th Amendment.

The Act also provided that Siates could choose whether

to enact regulations, as prescribed by Congress, or take title to

the waste from the parties who generated it, and assume

ee ee ee Ce ee eee oe

liability both for the disposal of such wastes, and for any

damages. This provision was found to lie outside of the

enumerated powers and to be inconsistent with the Tenth

Amendment.

In reaching this decision, this Court distinguished those

Tenth Amendment cases in which the issue was the authority

of Congress to subject state governments to generally

applicable laws. These cases include Garcia v. San Antonio

Metropolitan Transit Authority, 469 US.. 528 (1985)(Fair

Labor Standards Act); Fry v. U.S., 421 U.S. 542 (1975)(wage

stabilization), and South Carolina v. Baker, 485 U.S. 505

(1988)(tax exemption on the interest on municipal bonds). /d.,

at 2420. The Court found these cases inapposite since the

legislation at issue, in New York, was not applicable to private

parties. Instead the issue was ". . .the circumstances under

which Congress may use the States as implements of

regulation." Jd.

The Court began its analysis by observing that

"Congress may not simply commandeer the legislative

processes of the States by directly compelling them to enact

and enforce a federal regulatory program." /d., at 2420, citing

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452

U.S. 264, at 288 (1981).

Congress may, however, use a variety of means to

induce states to assist in regulatory programs. For example,

under the spending power, "Congress may attach conditions to

the receipt of federal funds." Jd. Or Congress may offer States

the choice of regulating in accordance with Congressional

wishes, or having State regulation pre-empted by federal

regulation. /d., at 2424.

In Hodel, and in Federal Energy Regulatory Comm'n v.

Mississippi, 456 U.S. 742 (1982) (FERC), there were

incentives offered to the States for undertaking certain

regulatory programs. There was also the option of federal pre-

emption if the States chose not to act. In neither case were the

States compelled to enact legislation, nor to promulgate

regulations. In fact, the court observed, ". . . this “ourt never

has sanctioned explicitly a federal command to the States to

promulgate and enforce laws and regulations." /d.

Such a command is not permissible because the power

of the national government operates directly upon the people,

not on the States.

In providing for a stronger central government,

therefore, the Framers explicitly chose a

Constitution that confers upon Congress the

power to regulate individuals, not States. As we

have seen, the Court has consistently respected

this choice. We have always understood that

even where Congress has the authority . . . to

pass laws requiring or prohibiting certain acts,

it lacks the power directly to compel the States

to require or prohibit those acts.

* *

The allocation of power contained in the

Commerce Clause, for example, authorizes

Congress to regulate interstate commerce

directly; it does not authorize Congress to

regulate state governments’ regulation of

interstate commerce. J/d., at 2423.

After explaining the principles to be applied in

construing the Tenth Amendment, the Court then addressed the

arguments of the Government in defense of the "take iitle"

provisions, and against the prohibition on such legislation.

err lt—“—S

First, the Government argued that this prohibition can

be overcome if the federal interest is important enough. The

Court responded:

No matter how powerful the federal interest

involved, the Constitution simply does not give

Congress the authority to require the States to

regulate. The Constitution instead gives

Congress the authority to regulate matters

directly and to pre-empt contrary state

regulation. Where a federal interest is

sufficiently strong to cause Congress to

legislate, it must do so directly; it may not

conscript state governments as its agents. /d., at

2429.

The Government also argued that ". . . the Constitution

does, in some circumstances, permit federal directives to state

governments." The Court responded that "(v)arious cases are

cited for this proposition but none support it." /d.

The Brady law compels State officers (Chief Law

Enforcement Officers, or "CLEOs") to perform a background

investigation of potential handgun purchasers, then either to

destroy the records of the investigation if the result is negative,

or furnish, if requested, a written explanation if the potential

purchaser appears to be ineligible to possess a firearm. Like

the "take title" provisions in New York, the Brady Law is a

direct, and unavoidable command to state officials. Like the

“take title" provisions, it violates the Tenth Amendment and

exceeds the Commerce Clause powers.

In the instant case, the Second Circuit began its analysis

with the observation that "(t)o help navigate safely through the

murky waters of Tenth Amendment doctrine, it is necessary to

dispel the notion that the federal government may never compel

action by state officials." Frank v. United States, 78 F.3d 815

(2nd Cir. 1996), at 825. This flatly ignores the New York

Court's response to the same assertion, viz., "(v)arious cases

are cited for this proposition but none support it." New York,

supra, at 2429.

The Court of Appeals attempts to support this

proposition with several examples of decisions in which

burdens appear to have been imposed upon States. There are

three which are central to its reasoning.

In Garcia v. San Antonio Metropolitan Transit

Authority, 469 US.. 528 (1985), the issue was the applicability

of the Federal Fair Labor Standards Act, a law of general

application, to a municipal transit authority. It is inapposite.

The Brady Law background check duties apply only to state

officials.

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

issue was the exemption, from federal income tax, of income

from municipal bonds. It is inapposite. First, there is a specific

constitutional grant of authority to Congress to "lay and collect

taxes." Art I, section 8, cl. 1. There is also a constitutional

grant of authority to "make all laws which shall be necessary

and proper for carrying into execution" the granted power.

U.S. Constitution, Art I, section 8, cl.18. There is no such

grant to give direct commands to state officials.

In Testa v. Katt, 330 U.S. 386 (1947), this Court held

that a State court is required to enforce federal law. It is

inapposite. The Constitution provides, that the "Constitution,

and the laws of the United States which shall be made in

pursuance thereof . . . shall be the supreme law of the land; and

the judges of every state shall be bound thereby." US.

Constitution, Article VI, cl. 2. There is no provision binding

$i eS SAG eR A Sl Pa a NI AR aS ed

See ee ee

state executive or legislative branch officials to the commands

of Congress.

The Second Circuit also cites Gregory v. Ashcroft, 111

S. Ct. 2395 (1991). It is not clear, from the decision, what

principle this case was thought to support. In that case the

issue was the applicability of the federal Age Discrimination in

Employment Act to Missouri judges who were required, by the

State Constitution, to retire at age 70. The case is not only

inapposite, but may be taken to support the opposing view.

The right of the people to determine the qualifications of state

officials is an integral element of a republican government.

There is a Constitutional guarantee of a republican form of

government, U.S. Constitution, Art. IV, sect. 4. Federal

interference would violate the Tenth Amendment.

The Second Circuit does recognize a very narrow field

in which Congress cannot act:

Certain kinds of federal action are by their very

nature so intrusive as to violate the Tenth

Amendment regardless of how light a burden is

imposed on state officials. Coercive

commandeering to the States’ legislative

processes that effectively compels the States to

adopt a federal regulatory scheme is one

example. Frank, 78 F.3d 815 (2nd Cir. 1996),

at 826.

Under the structural limits test, the Court found the

Brady Law did not violate the Tenth Amendment because it

does not "direct the States to enact legislation or to promulgate

regulations." Further, it held that the background check did not

transgress the decision in New York, supra, because". . . the

Brady Act is an exercise of Congress's power to regulate

individuals." Jd., at $27.

While it is true that most provisions of the Brady Law

are of general application, the provisions relating to Chief Law

Enforcement Officers is only applicable to them in their

capacity as creatures of State law, and not as individuals.

Further, the Brady Law does "commandeer the legislative

process" by augmenting the duties which the legislature of the

State prescribes for CLEOs by adding duties which the

legislature has declined to prescribe.

The Second Circuit also discussed a subjective,

quantitative limits test. "Directives aimed solely at States have

been upheld if they do not place any particularly ‘onerous

burden’ on the State." /d., citing FERC, supra, 2142. The

Second Circuit found that the Brady Law does not impose such

an "onerous burden" on CLEOs. Counsel is unable to find

support for an "onerous burden" standard in the four corners of

New York. However, assuming, arguendo, that there is such a

lower threshold for those statutes which do not violate the

structural limits of the Tenth Amendment, the Brady Law does,

in fact, impose an onerous burden.

First, when Congress was considering the Brady Bill, it

rejected an amendment which would have forced the Federal

Bureau of Investigation to conduct the background checks.

H.R. Rep. No. 103-344, 103rd Cong., Ist Sess., at 7 (1993). If

the burden is too onerous for the F.B.I., with its financial,

material, and personnel resources, then it is, a fortiori, onerous

for a Sheriff with two full time deputies and 992 square miles

to patrol.

Further, the Brady Law, at 18 U.S.C. §925A, provides

for a federal cause of action in cases of erroneous

determinations of ineligibility. That is, it involuntarily imposes

liability upon Orange County, and the State of Vermont. If

exposure to unlimited money damages is not an "onerous

burden,” the Second Circuit does not explain why it is not. In

fact, the liability provision would appear to "commandeer the

legislative processes." It commits the financial resources of the

people of Orange County, and of Vermont, under conditions

over which the people have no control. It mandates liability

for compulsory actions which the people are not permitted to

prescribe, alter, or evade.

There is a conflict in the Circuits on the question which

is presented in the instant case, a question regarding the

constitutionality of an act of Congress. The Solicitor General

agrees that certiorari should be granted on this question. The

Court of Appeals, for the Second Circuit, in the instant case,

has not followed the decision in New York. The Brady Law

violates the Tenth Amendment, and it exceeds the powers

granted Congress in the Commerce Clause.

CONCLUSION

This Court should grant a writ of certiorari to review the

judgment of the United States Court of Appeals for the Second

Circuit.

Respectfully Submitted, ze

* James H. Warner

11250 Waples Mill Road

Fairfax, Virginia 22030

(703)267-1256

*Counsel of Record

Attorney for Petitioner

Sheriff Samuel Frank

4 +.

iia +

ine,

arn es

—dé

Be mn!

alt

ne ay \« fe Any s lie oo ; J a! in| my

fe ey VE leita Bizaaie _ i oe

weet = ? saat Oe ?

aetaves! , eh a , Ad ;

”

ri oe

i) ae

Ley

Lael

eed Bae |

T yr? 7 iv ha

aor © co a |e ;

Pe A | a —

a): oes OLS oh.

Pe ee Z ‘

ee eae ae ;

; 7 ny >

wre 6 ?

% ~~ os =

Pe es a _ ¥ 7

a z |

2 Pee ; a:

Sf ri 9 , fi

TC Ps y

: a ei 7 .

os \ | Ca ry } sy J

a yen Blend ee ec "i ;

UCI coher een s> gaan ; ; , :

. Te = “7 at SLT : ;

” ita ‘See, 7 oy ? a ; : 7

ee ee ee i > fe cee a P,

— Pj y a ~ a5i' a4) 4 f ; ae "

ate a es - i A

~~ ae Te } ad

ats Sees 1 7 40 7Y y

a = : aye 4 he

7 a a ’ ‘ be

a ay es Oy a, ‘ -

‘Sa » eed’ n Bei i: j

ae > : ? 7 - .

i . ‘ = e : , 4

7 ; )

sa ¥ - ~« 7 5

- } ‘ , ~~ 7

es - oy _

- . nN :

¢ : a , .

i. - a - _ cy x

: ry

: 4

oo t J

: Pai = PE.

- 1 ; la i ;

. by . | J

4 | ,

4 :

€

i Vx

’ a

_s i

APPENDIX

ye ¥ 7

Pr tas

eth .

- od

$ ye id

78 F.3d 815

SAMUEL FRANK,

Plaintiff-Appellee-Cross-Appellant, v. UNITED

STATES OF AMERICA,

Defendant-Appellant-Cross-Appellee.

Docket Nos. 95-6019, 95-6023

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

; 1996 U.S. App. LEXIS 4615

August 28, 1995, Argued

March 15, 1996, Decided

PRIOR HISTORY: [*1] Defendant, the United States,

appeals from a judgment of the United States District Court

for the District of Vermont (Parker, C.J.) declaring that the

background check requirement for "chief law enforcement

officers" under the Brady Handgun Violence Prevention Act

of 1993 violates the Constitution and enjoining its

enforcement in Vermont. Plaintiff, Samuel Frank, sheriff of

Orange County, Vermont, cross-appeals from the district

court's determination that he has no standing to challenge the

statute's criminal penalty provisions under the Fifth

Amendment and that the background check requirement is

severable from the remainder of the Brady Act.

DISPOSITION: Affirmed, in part, and reversed, in part.

COUNSEL: MARK B. STERN, Washington, D.C. (Sean A.

Lev, Stephanie R. Marcus, Appellate Staff, Civil Division,

Department of Justice, Washington, D.C.; Frank W. Hunger,

Assistant Attorney General, Walter Dellinger, Assistant

Attorney General, Richard L. Shiffrin, Deputy Assistant

Attorney General, H. Jefferson Powell, Stuart M. Benjamin,

Office of Legal Counsel, Washington, D.C.; Charles R.

Tetzlaff, United States Attorney, Civil Division, Burlington,

Vermont, of counsel and on the brief), for Appellant United

[*2] States of America.

ANDREA L. GALLITANO, Barre, Vermont (David A.

Otterman, Otterman and Allen, Barre, Vermont, of counsel),

for Appellee Samuel Frank.

Randolph D. Moss, Washington, D.C. (Anthony G. Brown,

James S. Campbell, Wilmer, Cutler & Pickering,

Washington, D.C.; Dennis A. Henigan, Gail A. Robinson,

Center to Prevent Handgun Violence, Legal Action Project,

Washington, D.C., of counsel), filed a brief on behalf of

Handgun Control, Inc., Center to Prevent Handgun Violence,

International Association of Chiefs of Police, Major Cities

Chiefs, National Organization of Black Law Enforcement

Executives, Fraternal Order of Police, National Association

of Police Organizations, National Troopers’ Coalition, Police

Executive Research Forum, and Federal Law Enforcement

Officers’ Association as Amici Curiae.

JUDGES: Before: CARDAMONE, MINER, and

CALABRESI Circuit Judges, Judge Miner concurs in a

separate opinion.

OPINIONBY: CARDAMONE

OPINION: CARDAMONE, Circuit Judge:

The United States appeals from a judgment entered August

2, 1994 in the United States District Court for the District of

Vermont (Parker, C.J.) declaring unconstitutional that

section of the Brady Handgun Violence Prevention Act [{*3]

of 1993 (Brady Act or Act) which requires background

checks of potential handgun buyers, Pub. L. No. 103-159, @

102(a)(1), 107 Stat. 1536, 1537-38 (1993) (codified at 18

U.S.C. @ 922(s)(2) (1994)). Plaintiff Samuel Frank, the

Sheriff of Orange County, Vermont, cross-appeals from the

district court's rulings that he lacked standing to challenge

the Brady Act on Fifth Amendment grounds and that the

background check provision is severable from the remainder

of the Act.

Sheriff Frank does not argue that Congress lacks the power

to regulate transactions involving handguns. Apart from

federalism concerns, the commerce power of the United

States is almost certainly broad enough to support such

regulation. See United States v. Lopez, 131 L. Ed. 2d 626,

115 S. Ct. 1624, 1630 (1995) ("The proper test requires an

analysis of whether the regulated activity ‘substantially

affects’ interstate commerce."); Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241, 252, 258, 13 L. Ed. 2d 258.

85 S. Ct. 348 (1964) (although final version of Civil Rights

Act carried no congressional findings, burden on interstate

commerce permitted prohibition of racial discrimination by

motels); H.R. Rep. No. 90-1577, 90th Cong., 2d Sess.

(1968), reprinted [*4] in 1968 U.S.C.C.A.N. 4410, 4411

("The principal purpose of [the Gun Control Act] is to

strengthen Federal controls over interstate and foreign

commerce in firearms .. . ."); H.R. Rep. No. 103-344, 103d

Cong., Ist Sess. 9-10 (1993), reprinted in 1993 U.S.C.C.A.N.

1984, 1986-87 (background checks intended to effectuate

prohibitions contained in Gun Control Act).

The issue on this appeal, then, does not involve Congress’

ordinary power to regulate under the Commerce Clause; the

issue is whether the regulatory means chosen under the

Brady Act are valid or intrude impermissibly upon state

sovereignty. At the front where the enumerated powers

granted to Congress under the Constitution clash with those

powers reserved to the States by the Tenth Amendment,

there is no certain line of demarcation. But whatever line

there is, it is one to which we should hold strongly. The

powers reserved to the States must not be, like the Maginot

line, easily outflanked by the powers of the national

government. In our view, the background check provisions

of the Brady Act do not cross that line and trespass on those

rights reserved by the Tenth Amendment.

FACTS

A. The Brady Act

Congress [*5] enacted the Brady Act in 1993 to address the

national epidemic of handgun violence and death. See H.R.

Rep. No. 103-344, 103d Cong., Ist Sess. 8 (1993), reprinted

in 1993 U.S.C.C.A.N. 1984, 1985. The Act amends title I of

the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.

1213 (codified as amended at 18 U.S.C. @@ 921-930

(1994)), which regulates firearms dealers and prohibits the

transfer of firearms to specific categories of persons ranging

from felons and "fugitives from justice” to certain

non-citizens. See 18 U.S.C. @ 922(g). To put teeth into these

prohibitions by identifying unlawful gun transactions before

they occur, the Act imposes a background check system.

The Act operates in two phases. First, it requires the U.S.

Department of Justice to develop a national instant

background check system for firearms transfers, which is to

be operational by the year 1999. See @ 103(b), 107 Stat. at

1541; 18 U.S.C. @ 922(t) (permanent provision). This

instant check system requires no waiting period. See @

922(t)(1). Second, for gun purchases occurring before the

national system is active, the Act contains an interim

provision that imposes a five-day waiting [*6] period

during which a background check is to take place. @

922(s)(2). This provision does not apply in States that require

pre-purchase background checks, see @ 922(s)(1)(D), or

permits and pre-permit background checks for handgun

purchases, see @ 922(s)(1 (C).

It is this interim background check provision that is the

subject of the instant litigation. Such checks are to be

conducted by the "chief law enforcement officer" (CLEO) of

the proposed purchaser's place of residence, see @ 922(s)(2),

which the Act defines as "the chief of police, the sheriff, or

an equivalent officer or the designee of any such individual."

@ 922(s)(8). Before transferring a handgun, a licensed

firearms dealer must obtain a statement from the purchaser

(transferee). @ 922(s)(1)(A)(i)(1). In practice, this means that

a person seeking to buy a handgun must fill out a form

prepared by the Bureau of Alcohol, Tobacco and Firearms

(Bureau). See 27 C.F.R. @ 178.102(a)(1) (1995)

(conditioning handgun transfers on receipt by the licensee of

a "statement of intent to obtain a handgun on Form

5300.35"). The dealer then transmits the form to the CLEO

of the transferee's place of residence. @ 922(s)(1)(A)(i)(IID);

[*7] 27 C.F.R. @ 178.102(a)(3).

After a CLEO receives a copy of such a statement from a

dealer, that official "shall make a reasonable effort to

ascertain within 5 business days whether receipt or

possession 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." @ 922(s)(2). Two additional

requirements are imposed on CLEOs in connection with

these interim background checks. If the CLEO determines,

on the basis of the background check, that a proposed

transfer would be lawful, he or she must destroy the

transferee's statement and related records. @ 922(s)(6)(B)(i).

If, however, the CLEO determines that a proposed transfer

would be illegal, the CLEO must give written reasons if the

would-be gun buyer so requests. See @ 922(s)(6)(C).

Criminal penalties are provided: "Whoever knowingly

violates [the Brady Act interim or permanent provisions]

shall be fined . . ., imprisoned for not more than | year, or

both." 18 U.S.C. @ 924(a)(5). The applicability of these

penalties to CLEOs is in dispute in this litigation. However,

eo eee ee eee SO — eee

Sa oot —

a le a er a ee

the record does not suggest that Sheriff [*8] Frank or any

other potential CLEO has been prosecuted or threatened with

prosecution under this subsection. In a March 16, 1994

memorandum to the Attorney General, the Office of Legal

Counsel took the position that for a variety of reasons

prosecuting and applying the penalty provision to CLEOs

would be impractical and inconsistent with the statute's

language and aim.

B. Brady's Implementation in Orange County

The Bureau, which by delegation of the Secretary of the

Treasury is responsible for the implementation of the Gun

Control Act and the 1993 amendments, see 18 U.S.C. @ 926

(1994), interprets the term "CLEO" as broad enough to

encompass more than one law enforcement officer within

any given geographical area. On January 21, 1994, bef>re the

effective date of the Brady Act, it sent an "Open Letter to

State and Local Law Enforcement Officials" (Open Letter)

explaining the requirements of the Act and suggesting that

state and local officials in each locality work together to

decide which agency would perform the CLEO functions.

The Bureau now maintains a list of the responsible CLEOs in

the jurisdictions within States covered by the five-day

interim requirement of the [*9] Act and publishes changes

in CLEO status in the Federal Register. See, e.g., 59 Fed.

Reg. 37,532 (1994).

On January 1, 1994 Sheriff Frank, Commissioner A. James

Walton, Jr. of the Vermont Department of Public Safety, and

numerous other interested law enforcement officials attended

a meeting at Norwich University in Northfield, Vermont

organized by the Bureau and the Vermont Department of

Public Safety to discuss the Act's implementation. At the

meeting, Commissioner Walton told local officials that the

State would be willing te appoint an officer of the State

Police to discharge the CLEO duties in any jurisdictions in

which local officials declined to do so. Sheriff Frank then

indicated that he would perform that function in Orange

County.

The Bureau subsequently placed the sheriff on its list as the

CLEO for Orange County and notified licensed firearms

dealers in Vermont of its action. Initially, the sheriff's office

performed the background check duties. After Sheriff Frank

instituted the present suit, the state safety commissioner

asked the Bureau to change the CLEO designation; the

Bureau notified the sheriff on June 29, 1994 that it would

now treat Lieutenant George [*10] C. Contois of the

Vermont State Police as the CLEO for Orange County

because the sheriff's position in the litigation indicated his

unwillingness to perform that function.

C. The Lawsuit

On May 10, 1994 Sheriff Frank commenced the instant

action in the District of Vermont against the United States.

The complaint sought a declaration that the background

check requirement is unconstitutional and requested a

preliminary and permanent injunction against its

enforcement. The papers filed alleged that the mandated

background check violates the Tenth Amendment by

impairing the performance of the sheriff's duties under state

law, that it violates the Fifth Amendment because it is

excessively vague, and that this provision is not severable

and the entire interim portion of the Brady Act is therefore

invalid. In response, the government contended plaintiff

lacked standing to litigate either of his claims because he

voluntarily assumed the CLEO duties and because the

government's interpretation of the Act's criminal provisions

as inapplicable to CLEOs eliminateu any threat of

prosecution. The government also urged that the background

check requirement was a valid exercise of Congress’ [*11]

power and that it was, in any event, severable from the other

interim provisions.

Following a hearing, the district court ruled that Sheriff

Frank has standing to assert the Tenth Amendment because

officers of the Vermont State Police are not CLEOs under 18

U.S.C. @ 922(s)(8). See Frank v. United States, 860 F. Supp.

1030, 1037-39 (D. Vt. 1994). It ruled further that the

background check provision is barred by the Tenth

Amendment, but that the provision is severable from the

remainder of the Brady Act. Id. at 1043-44. The trial court

held, in addition, that Sheriff Frank lacks standing to

challenge the Act on due process grounds. Id. at 1036. From

this judgment the United States appeals, and Sheriff Frank

cross-appeals.

ANALYSIS

I Standing

We must first decide whether Sheriff Frank has standing to

challenge the Brady Act on Tenth Amendment grounds.

Article III of the Constitution imposes three requirements for

standing: plaintiff must have suffered an injury in fact,

concrete and particularized as to plaintiff, actual and not

hypothetical; the injury must be fairly traceable to

defendant's challenged conduct and not caused by the

10a

independent action of a third [*12] party; and the injury

must likely, not possibly, be redressable by a favorable

decision in the litigation. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130

(1992); Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d

556, 104 S. Ct. 3315 (1984); Golden Hill Paugussett Tribe of

Indians v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994). These

constitutional requirements stem from separation of powers

principles. See Defenders of Wildlife, 504 U.S. at 559-60.

Standing also includes prudential limits, see, e.g., Golden

Hill, 39 F.3d at 58, which not being here implicated are not

addressed.

A. Statutory Argument

The issue of standing in the case at hand is, in the first

instance, one of statutory construction. The question is

whether the term "chief law enforcement officer" used in @

922(s)(2) of the Act includes state as well as local officers. If

so, the government points out, Sheriff Frank's assumption of

the CLEO duties in Orange County was voluntary because

the Vermont State Police had said it would discharge the

duties in any jurisdictions in which local law enforcement

agencies did not want to act. If the government is correct and

Sheriff Frank's injury is self-inflicted, he lacks [*13]

standing for Article III purposes. See Diamond v. Charles,

476 U.S. 54, 70, 90 L. Ed. 2d 48, 106 S. Ct. 1697 (1986)

(assessment for attorney's fees resulted from litigant's

intervention and could not fairly be traced to statute whose

constitutionality was at issue); Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 41, 48 L. Ed. 2d 450, 96 S. Ct.

1917 (1976) (injury at the hands of a non-party is

insufficient); Petro-Chem Processing, Inc. v. EPA, 275 U.S.

App. D.C. 232, 866 F.2d 433, 438 (D.C. Cir.) (potential

lla

liability incurred voluntarily cannot fairly be traced to

challenged conduct of defendant), cert. denied, 490 U.S.

1106 (1989).

Plaintiff insists the Act does not permit state officials to be

CLEOs. Had Congress meant CLEO to include only local

law enforcement officials, then the state safety

commissioner's offer to perform the background checks

would have had no effect on Sheriff Frank's duties as the

CLEO of Orange County and plaintiff's statutory argument

would carry the day. We are unable to adopt plaintiff's

restrictive understanding of CLEO.

To begin, by defining CLEO 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), Congress did not

expressly exclude state officials [*14] from performing

background checks. Although, as plaintiff points out,

Congress knew how to say "State" when it wanted to, see,

e.g., @ 922(t)(6) (limiting liability for employees "of the

Federal Government or of any State or local government"), it

also knew how to say "local" when that is what it meant, see

id., and it said neither in the definition of CLEO. Instead, it

used the more adjustable term "equivalent officer."

Further, the structure of the Brady Act does not support an

interpretation of CLEO restricted to local officers. A broader

construction of the term is consistent with the flexible

background check responsibility: CLEOs are required only to

"make a reasonable effort to ascertain" the legality of a

proposed transfer. @ 922(s)(2). To make the waiting period

and background check effective as an interim measure, the

words "or equivalent officer” were used by Congress to

reflect the reality that background checks can be performed

12a

best in different locales by different agencies. The legislature

explicitly recognized the vast differences between different

local areas by exempting altogether certain

sparsely-populated areas from the requirement, see @

922(s)(1)(F); [*15] it also accomplished this by using the

inclusive term "equivalent officer” within the definition of

CLEO. Hence, the Vermont State Police, whose powers over

criminal matters are identical to sheriffs’ under Vermont law,

see Vt. Stat. Ann. tit. 20, @ 1914 (1987), fall within the

definition of CLEO.

Moreover, to the extent the statute is ambiguous, we defer

to the Bureau's reasonable interpretation of the term because

it is the agency charged with administering the Gun Control

Act and the Brady Act. See Chevron U.S.A. Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 843, 81 L. Ed. 2d

694, 104 S. Ct. 2778 (1983) (where statute silent or

ambiguous, the question is whether the agency's resolution

"is based on permissible construction of the statute").

Plaintiff asserts that deference is not warranted because

“equivalent officer” was not included in the definition of

CLEO to resolve conflicting policies. See Chevron, 467 U.S.

at 844. Although policy questions are quite clearly

implicated, we believe the essential question is not whether

there are conflicting policies, but "whether Congress has

directly spoken to the precise question at issue." Id. at 842.

It has not so spoken. Neither the Act's [*16] text nor its

legislative history contains a definition of "equivalent

officer," and the Bureau's Open Letter and its compilation of

the CLEQs in various jurisdictions, see, e.g., 59 Fed. Reg.

37,532 (1994), make plain that it views CLEO as including

state officials. Given the language and purpose of the Act,

the Bureau's construction is certainly a permissible one.

l3a

Consequently, plaintiff's standing may not rest on the scope

of the term CLEO.

B. Administrative Burdens

Reading CLEO to include state officials along with local

officers does not end the standing inquiry. Although the Act

does not require plaintiff to serve as the CLEO of Orange

County, we think it inflicts sufficient injury to give him

standing. Because the Act envisions that more than one

official can qualify as CLEO in a given jurisdiction and

provides no formal mechanism for choosing among the

candidates, it therefore mandates at a minimum that the

relevant state and local law enforcement officials reach an

agreement as to which agency will serve as CLEO. See Roy

v. Kentucky State Police, 881 F. Supp. 290, 293 (W.D. Ky.

1995) ("Congress envisioned that law enforcement agencies

with an interest [*17] in and the ability to perform the

Brady Act requirements would meet and agree upon the

CLEO in each geographic area."). Indeed, the Bureau's Open

Letter so concluded. It suggested that state and local officials

work together to determine which agency would perform the

CLEO functions in each jurisdiction, which is why the

Bureau brought state and local law enforcement officials

together not only in Vermont, but throughout the country.

It is this administrative burden added to the sheriff's regular

workload that permits plaintiff to maintain his Tenth

Amendment challenge. Interference with the functions of a

local unit of government is an injury that may give a litigant

standing. Friends of the Earth v. Carey, 552 F.2d 25, 33 (2d

Cir.), cert. denied, 434 U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct.

296 (1977). It is familiar law that injury in the context of

standing is not limited to economic harm, see United States

l4a

v. Students Challenging Regulatory Agency Procedures, 412

U.S. 669, 686, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973),

although a plaintiff seeking review must be among the

injured. See Sierra Club v. Morton, 405 U.S. 727, 734-40, 31

L. Ed. 2d 636, 92 S. Ct. 1361 (1972) (not enough to allege

government changes in national park would destroy scenery

and wildlife; to [*18] have standing plaintiff must allege

that its members use the park and are directly affected).

By making Sheriff Frank responsible -- even though only

concurrently with others -- for ensuring that some qualified

agency performs the background checks in Orange County,

the Act imposes administrative burdens beyond simply

reaching an agreement. To decide which of the potential

CLEOs will perform the tasks required by the Brady Act,

plaintiff and his counterparts must as a practical matter

undertake an analysis of their own internal procedures and

capabilities, consider the impact of background checks on

their budgets and on delivery of customary sheriff's services,

and work together to determine who may best conduct the

interim background checks. This imposition compels action

by state and local officials in a way that is alleged to violate

state sovereignty.

Additionally, the burden does not end with an initial

agreement on performing the checks. Plaintiff is excused

from the CLEO duties only for so long as the State Police are

willing to discharge them. And that willingness, for

budgetary, political, and logistical reasons, is always subject

to change. The CLEO duties therefore remain [*19] a

factor in the way the sheriff's office structures its operations.

These several burdens, we believe, impact sufficiently upon

Sheriff Frank to give him standing to maintain the present

action.

Se ee ee re eS

2. ee ee

lSa

Our concurring colleague writes that the imposition of the

CLEO duties on Sheriff Frank is sheer speculation and that

the administrative burdens are insufficient to support

standing. First, although the possibility that the state will

withdraw its pledge to supply personnel is not certain to

occur, that possibility imposes a present burden on the sheriff

that is by no means speculative. The sheriff's office must

plan for the contingency even if it never materializes.

Moreover, the Act imposes another present burden on him

even if the state continues to volunteer: he must reach an

initial agreement and continue to agree with the state and

other potential CLEOs.

Second, although the administrative burdens may appear to

be a slender reed upon which to base standing, they are

sufficient for constitutional purposes. The burden of an

allegedly unconstitutional statute need not be crippling

before it may be challenged in court; plaintiff only need

allege "such a personal stake in the outcome of [*20] the

controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court so

largely depends for illumination of difficult constitutional

questions." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d

663, 82 S. Ct. 691 (1962). While the harm must be

"perceptible," Defenders of Wildlife, 504 U.S. at 566, it need

not be monumental. In the present case, the continuing

burden on Sheriff Frank meets this requirement and has led

to this sharply contested lawsuit. Therefore, the injury-in-fact

requirement has been met.

The government's argument that Sheriff Frank lacks

standing because he voluntarily assumed the CLEO duties is

based on the willingness of another state-created entity, with

l6a

the approval of the Bureau, to perform the functions in his

stead. We do not adopt this reasoning because to do so would

grant to the government the power unilaterally to prevent the

resolution of a controversy by designating and replacing

CLEOs and thereby destroying standing. Ten days after the

instant action was commenced, Commissioner Walton

notified Sheriff Frank that the lawsuit indicated his desire to

discontinue the CLEO functions and that the Bureau was

being asked to designate (*21] the State Police as CLEO.

The Bureau assented to the change. A State may not consent

to a Tenth Amendment violation, New York v. United States,

505 U.S. 144, 182, 120 L. Ed. 2d 120, 112 S. Ct. 2408

£1992); nor should litigants be allowed to strategically

prevent controversies from being resolved, cf. City of

Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 71 L.

Ed. 2d 152, 102 S. Ct. 1070 (1982) (a case is not moot where

a litigant abandons a challenged practice); United States v.

W.T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct.

894 (1953) ("voluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear and determine

the case"). Under the present circumstances, to accept the

contention that the sheriff now lacks standing would not

serve the purpose of identifying and resolving those disputes

most appropriately heard and decided by the federal courts,

see Defenders of Wildlife, 504 U.S. at 560; Whitmore v.

Arkansas, 495 U.S. 149, 155, 109 L. Ed. 2d 135, 110 S. Ct.

1717 (1990).

Moreover, we have held that a local unit of government has

standing to challenge a federal requirement on Tenth

Amendment grounds despite the failure of the State -- the

creator of the local entity -- to join in the challenge. Friends

of the Earth, 552 F.2d at 33. The [*22] instant case raises

the same concerns -- the county sheriff should not be

17a

precluded from challenging the statute merely because the

State has supported the Brady Act and has pledged personnel

to carry out the background checks. The burden imposed on

Sheriff Frank by the Brady Act is sufficiently concrete,

actual, and particularized to constitute injury for

constitutional purposes. The injury is directly caused by the

challenged statutory provision, and would be eliminated

were the litigation resolved in Sheriff Frank's favor.

As our concurring colleague points out, the burden

imposed on New York City in Friends of the Earth was much

heavier than the one imposed on Sheriff Frank. Although the

burden of complying with an automobile pollution control

plan is concededly more severe than the administrative

requirements mandated by the Brady Act, Friends of the

Earth, like the present case, involved a | enth Amendment

challenge of a federal requirement by a local governmental

unit; the State in Friends of the Earth supported the federal

mandate and it was argued that the local government

therefore had no standing. Here, the State of Vermont has

supported the Brady Act and has [*23] agreed to perform

the interim background checks in certain jurisdictions.

Therefore, the principle that was dispositive in Friends of the

Earth -- that a state's failure to oppose a federal requirement

does not prevent a political subdivision from bringing a

federalism challenge -applies with equal force to the present

case. Plaintiff therefore has standing to chalienge the Act on

Tenth Amendment grounds.

Il Tenth Amendment

A. Federalism Principles and the Boundaries of

Congressional Power

18a

Having resolved the threshold question of standing, we pass

now to a discussion of the merits. The Tenth Amendment to

the United States Constitution states: "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." Because the Tenth

Amendment simply states that all is kept that has not been

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

85 L. Ed. 609, 61 S. Ct. 451 (1941), the reach of the federal

government's power vis-a-vis the States may be analyzed as a

question of whether Congress has exceeded the bounds of its

delegated powers, or whether it has impermissibly trenched

upon state sovereignty. [*24] As observed by the Framers,

that power surrendered by the people is divided between two

governments that will control each other, giving rise to a

"double security" protecting the rights of the people. The

Federalist No. 51, at 263-64 (James Madison) (J.M. Dent &

Sons Ltd., 1961). The purpose of the division is to protect the

liberty of individual citizens from an excessive concentration

of power in a central government. See United States v.

Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624, 1626 (1995) (The

mandated division of authority "was adopted by the Framers

to ensure protection of our fundamental liberties." (internal

quotations omitted)); Gregory v. Ashcroft, 501 U.S. 452,

458, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991) (as the

separation of the branches of national government keeps each

in check, so a "balance of power between the States and the

Federal Government will reduce the risk of tyranny and

abuse from either front").

To help navigate safely through the murky waters of Tenth

Amendment doctrine, it is necessary to dispel the notion that

the federal government may never compel action by state

officials. This was stated to be the law over a century ago in

19a

Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107, 16 L. Ed.

717 (1861): [*25] "The Federal Government, under the

Constitution, has no power to impose on a State officer, as

such, any duty whatever, and compel him to perform it."

Today, a view that the national and state governments are

coequal sovereigns in all circumstances does not fairly

represent the state of the law. See Federal Energy Regulatory

Comm'n v. Mississippi, 456 U.S. 742, 761, 72 L. Ed. 2d 532,

102 S. Ct. 2126 (1982) (FERC).

There are occasions when the federal government may

impose legal duties on state officers. For example, Congress

may require state regulatory authorities to implement

federally-promulgated rules requiring the adjudication of

disputes arising under a federal statute. See FERC, 456 U.S.

at 759-60. Instead of preempting an area of state regulatory

activity, Congress may require state authorities to consider

the enactment of federally-proposed standards, id. at 764.

Also, the national government may insist that States treat

their workers according to federally-imposed wage and

overtime standards. See Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 555-56, 83 L. Ed. 2d 1016, 105

S. Ct. 1005 (1985) (upholding minimum wage and overtime

requirements); Fry v. United States, 421 U.S. 542, 548, 44 L.

Ed. 2d 363, 95 S. Ct. 1792 (1975) (upholding wage

stabilization [*26] measures).

Certain kinds of federal action are by their very nature so

intrusive as to violate the Tenth Amendment regardiess of

how light a burden is imposed on state officials. Coercive

commandeering of the States’ legislative processes that

effectively compels the States to adopt a federal regulatory

program is one example. See Hodel v. Virginia Surface

Mining and Reclamation Ass'n, Inc., 452 U.S. 264, 288, 69

20a

L. Ed. 2d 1, 101 S. Ct. 2352 (1981). In New York v. United

States, 505 U.S. 144, 177, 120 L. Ed. 2d 120, 112 S. Ct.

2408 (1992), the Supreme Court held that the take title

provision in the Low-Level Radioactive Waste Policy

Amendments Act of 1985, which gave States the choice

between either taking title to and assuming legal

responsibility for waste generated within their borders, or

regulating such waste according to Congress’ instructions,

exceeded Congress’ power under the Constitution. It was the

coercive nature of the take title provision that violated the

constitutional plan, that is, Congress has no power to make

the States require or prohibit certain acts, even though

Congress itself may pass laws requiring or prohibiting those

same acts. Id. at 166. The take title provision also violated

the principle that officials, both [*27] state and federal,

must remain accountable to their constituents. Id. at 168.

Therefore, there is a clear prohibition against directing States

to legislate or to regulate because the structural nature of the

intrusion plainly strikes at the heart of state sovereignty and

violates the Constitution's careful allocation of power

between the federal and state governments. Apart from this

specific prohibition, the severity of the burden placed on

States is the touchstone for determining whether national

legislation is so onerous as to threaten the effectiveness of

the States in our federal system. In the case of a law of

general application, for instance, state sovereignty will

ordinarily be sufficiently protected by the States’

participation and influence in the national political process,

see Garcia, 469 U.S. at 554, so as not to warrant judicial

intervention to safeguard their interests. Directives aimed

solely at States have similarly been upheld if they do not

place “any particularly onerous burden on the State." FERC,

456 US. at 768.

2la

In determining whether Congress has transgressed either

the structural or the quantitative limits, the nature of the

federal requirement [*28] imposed on the States rather than

the subject matter of the regulation must be examined.

Rejecting, as impracticable, the four-part test for immunity

from federal regulation set forth in National League of Cities

v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465

(1976), the Supreme Court in Garcia, 469 U.S. at 548,

focused on preserving the role of the States in our federal

system. Thus, South Carolina v. Baker, 485 U.S. 505, 99 L.

Ed. 2d 592, 108 S. Ct. 1355 (1988), upheld a federal statute

that effectively required States to issue registered bonds, as

opposed to bearer bonds, if they chose to issue bonds at all.

South Carolina confirmed that the limits imposed by the

Tenth Amendment are "structural, not substantive." That is,

States must find protection from Congress’ intrusions via the

national political process, not by having courts define state

activities that may not be regulated. Id. at 512. New York

reaffirmed that Tenth Amendment analysis should focus on

the appropriate roles of the States and the federal government

rather than the subject matter of the regulation. See 505 U.S.

at 160-61.

B. Constitutionality of the Brady Act

With these principles in mind, we now address the

constitutionality [*29] of the provision requiring CLEOs to

“make a reasonable effort to ascertain . . . whether receipt or

possession [of a handgun] would be in violation of the law."

See 18 U.S.C. @ 922(s)(2). We do not think the background

check requirement of the Brady Act interim provisions

imposes a structural burden inconsistent with the plan

established by the Constitution; nor does it impose an

22a

onerous quantitative burden on state or local officials. We

address these issues in turn.

1. Brady Act Consistent with Structural Limits of Tenth

Amendment

We turn first to the formal limits imposed by the federal

structure of our Constitution. Sheriff Frank, relying primarily

on New York, urges that the interim background check

requirement is unconstitutional regardless of the quantitative

degree of the burden imposed. The Tenth Amendment does

impose structural restrictions on congressional action. But

unlike the statute at issue in New York, which attempted to

foist the responsibility for addressing the problems of

low-level radioactive waste upon the States, the Brady Act is

consistent with the constitutional scheme.

As already noted, we rejected at the outset plaintiff's

contention [*30] that Congress may never compel state

officials to perform duties and may only seek to guide States’

behavior by attaching conditions to federal funds, threatening

preemption, or passing generally-applicable legislation. New

York did not purport to revert to the 19th-century rule that

the federal government may never impose obligations on

state officers. Instead, that case involved a "unique" statute

that in its take title provision coerced state governments into

implementing federal law and therefore violated the Tenth

Amendment. 505 U.S. at 177. The Supreme Court reasoned

that the take title provision and its alternative pressed state

governments into federal regulatory service by offering

States the choice between regulating according to Congress’

instructions or themselves assuming liability for the waste.

Id. at 175. The offending take title provision violated Hodel's

edict that the national government cannot mobilize "the

23a

legislative processes of the States by directly compelling

them to enact and enforce a federal regulatory program.” 452

U.S. at 288.

The Brady Act does not direct the States to enact

legislation or to promulgate regulations. See Mack v. United

[*31] States, 66 F.3d 1025, 1031 (9th Cir. 1995). Rather, to

the extent that it implicates the States’ legislative processes at

all, it merely allows States to enact a background check or

permit system for handgun purchases as an alternative to

federally-required checks by CLEOs, see 18 U.S.C. @

922(s)(1)(C)-(D). But, such a state enactment is not

mandated or even significantly encouraged.

Sheriff Frank, further relying on New York, urges that the

Brady Act contravenes the Tenth Amendment because

Congress has "the power to regulate individuals, not States,”

New York, 505 U.S. at 166, and that "the Federal

Government may not compel the States to enact or

administer a federal regulatory program," id. at 188. The

background check requirement of the Act does not transgress

New York's holding. Unlike the statutory scheme established

in the Low-Level Radioactive Waste Policy Amendments

Act of 1985, designed to encourage States to reach their own

solutions, the Brady Act is an exercise of Congress's power

to regulate individuals. The thrust of the Act is to improve

the effectiveness of the laws governing handgun transfers

between individual citizens. To achieve this purpose, [*32]

the Act requires registered dealers and potential transferees

to supply information to law enforcement personnel when a

transaction is proposed, and it prohibits the consummation of

potential transactions found to be illegal. That the Brady Act

enlists state officials during the interim period, pending the

implementation of a national system for instant background

24a

checks, does not change the Act's basic character. Because

the Act neither requires States to enact regulations by

requiring them to fashion their own solutions, nor abdicates

political responsibility in the handgun control field, it is

distinguishable from the statutory provision found offensive

in New York.

Congress has authority to subject state governments to

generally applicable laws that govern the conduct of private

parties. Such laws are different from attempts by the national

government to direct or otherwise motivate the States to

regulate in a particular field in a particular way, that is to say,

it is permissible for Congress to require private citizens to act

in a certain manner and for the States to help administer such

a federal law, but Congress cannot require the States to pass

laws requiring their citizens [*33] to act in a certain

manner.

Congress is, according to New York, barred under the

Tenth Amendment from compelling state legislatures to

enact legislation because the federal government may not

commandeer the basic decisionmaking processes of state

government. This view is reinforced by the Supreme Court's

repeated reference to Hodel, which upheld provisions of the

Surface Mining Control and Reclamation Act of 1977

because that statute did not compel the States to enact and

enforce a federal regulatory program and thereby take over

the States’ legislative processes. Hodel, 452 U.S. at 288,

quoted in New York, 505 U.S. at 161, 162, 170, 176. The

offending provision in New York -- because it required

States to enact their own regulatory solution -- was the sort

of unconstitutional legislation alluded to in Hodel.

Moreover, the Framers contemplated and approved the

25a

administration by state officials of federal laws applicable to

individuals. Thus, Madison said collection of tax revenue for

national purposes "will generally be made by the officers . . .

appointed by the several States." The Federalist No. 45, at

237 (James Madison) (J.M. Dent & Sons Ltd., 1961). [*34]

Hamilton agreed: "The national legislature can make use of

the system of each State within that State. The method of

laying and collecting . . . taxes in each State can, in all its

parts, be adopted and employed by the federal government."

The Federalist No. 36, at 172 (Alexander Hamilton)

(emphasis in original). Mandates to local officials to enforce

federal as well as state laws -- as in the interim provisions of

the Brady Act -- do not encroach on state sovereignty in any

appreciable manner.

The absence of compelled regulation helps illuminate the

central reason that New York is not controlling: the roles of

the federal government and the States under the Brady Act

are consistent with the values underlying federalism. "Where

the Federal Government compels States to regulate, the

accountability of both state and federal officials is

diminished." New York, 505 U.S. at 168. Under an

arrangement like that in New York, "it may 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

decisions.” Id. at 169.

The Brady Act has no [*35] such effect on

accountability. First, the Act itself is a national,

comprehensive approach to identifying potential illicit

handgun transactions. Because it requires no additional

enactments by state governments, it poses little risk of

shifting the blame (or glory) for its provisions to local

26a

officials. Additionally, because the administration of the

interim provisions is vested in a federal agency -- the Bureau

of Alcohol, Tobacco and Firearms -- there is little danger of

confusion. For example, the Act instructs potential

transferees to fill out a Form 5300.35, clearly identified as a

federal form. See 27 C.F.R. @ 178.102(a)(1) (1995).

Second, political accountability would be jeopardized were

local officials able to invoke the Tenth Amendment to defeat

even the lightest and most insignificant federal mandate. Just

as Congress in New York attempted to shift responsibility to

state officials, federal officials could shift the blame for

inaction by attributing persistent national problems, such as

handgun violence, to the intransigence of local officials.

Even more problematic is the possibility that federal officials

could consistently surrender responsibility for national [*36]

problems by invoking abstract notions of "federalism,"

which would result in dissipation, as opposed to a mere

shifting, of political responsibility. Thus, the accountability

concerns discussed in New York support the validity of the

Brady Act.

Today's ruling serves the purposes of federalism in another

way. Returning to the 19th-century prohibition of any direct

mandate to state officers would lead Congress, when it acts,

to do so exclusively through federal instrumentalities. Rather

than promoting the "constitutionally mandated division of

authority” intended by the framers to protect individual

citizens’ liberties, Lopez, 115 S. Ct. at 1626, the perverse

result would be a further concentration of authority in the

federal government. Sheriff Frank has not asserted in this

litigation that Congress could not, by exercising its

commerce power, bypass local governments and employ

federal agents to check on citizens who wish to purchase

te tite —_— —- = Satin —

27a

firearms. Such action illustrates how direct federal

intervention could follow from the adoption of a simple "no

compulsion" rule. Federalism is too crucial, too centra! to our

system of government to be trivialized by a rule that would

make [*37] any co-optation of any state official into a

violation of the Constitution. The effect of such a rigid rule

would be the multiplication of direct federal bureaucratic

intervention and, hence, in practice, a greater reduction in

effective federalism.

In addition to being qualitatively different from

arrangements like the one invalidated in New York, the

duties imposed on CLEOs are more like those that have been

upheld in prior cases. Congress can require state courts to

entertain a federal claim despite a contrary state rule or

policy. See Testa v. Katt, 330 U.S. 386, 91 L. Ed. 967, 67 S.

Ct. 810 (1947). Although a state court may refuse to do so if

it has a “valid excuse," see Douglas v. New York, New

Haven & Hartford R.R. Co., 279 U.S. 377, 388, 73 L. Ed.

747, 49 S. Ct. 355 (1929), "an excuse that is inconsistent

with or violates federal law is not a valid excuse." Howlett v.

Rose, 496 U.S. 356, 371, 110 L. Ed. 2d 332, 110 S. Ct. 2430

(1990). This principle does not apply only to state courts;

Congress also may enlist state regulators to vindicate federal

rights. See FERC, 456 U.S. at 760 & 763 n.27 ("It is difficult

to perceive any fundamental distinction between the state

legislature's power to establish limits on the jurisdiction of

the state courts, [*38] and its prerogative to set ratemaking

criteria for use by quasi-legislative utilities commissions.").

CLEOs' duties under the Brady Act are not qualitatively

different from the congressionally-imposed functions upheld

in such cases as Testa and FERC. When a Form 5300.35 is

forwarded by a transferor, a CLEO is required to consult

28a

relevant records and issue a determination as t> whether the

transaction can be consummated. If the decision is favorable,

the five-day waiting period is truncated and the weapon may

be transferred. See 18 U.S.C. @ 922(s)(1)(A)(ii)(1I). The

same result obtains if the five-day period has elapsed without

notice from the CLEO. See @ 922(s)(1)(A)(ii)(1). If the

decision is not favorable, then the transaction has been

identified as illegal and may not take place. See @ 922(s)(1).

In the operation of the Brady Act, as in the circumstances of

FERC and Testa, the federal government has taken

responsibility for determining the applicable standards, and

state officials are being asked to apply those standards to a

particular situation. Although plaintiff attempts to dismiss

FERC and Testa as merely addressing "adjudicatory" bodies,

[*39] in so doing he fails to acknowledge the striking

similarity between the obligations imposed in those cases

and those imposed on CLEOs. The applicability of the Testa

principle depends upon the role performed by the state

officer, not the governmental branch involved. See FERC,

456 U.S. at 762 n.27. Thus, the proffered distinction is

irrelevant. Testa was distinguished in New York on the

grounds that the legislation in question in the latter case did

not regulate individuals and required States to engage in

legislation. 505 U.S. at 178-79. Unlike a statute that

commands state legislatures to legislate, the Brady Act

simply requires CLEOs to apply federal law in the regulation

of individuals and to perform a function similar to those

validated in FERC and Testa.

In sum, after Testa, Garcia, Gregory, and New York it is

now clear that Congress acts within its broad power to

regulate under the Commerce Clause when its legislation

neither obscures lines of political accountability nor disturbs

the ordinary presumed sovereignty of the States. This

29a

principle furthers federalism and strengthens its attendant

political safeguards -- the "double security" [*40] -- in our

constitutional system.

2. No Impermissibly Onerous Burden on States

Sheriff Frank contends, at least with respect to his standing

argument, that the duties imposed by the Brady Act are

burdensome. In an affidavit filed in support of a preliminary

injunction, he stated a typical background check included a

search of the National Crime Information Center that the

State Police in Bradford, Vermont performed at his request.

The National Crime Information Center provides criminal

background information that covers the entire country.

Preparing the request and transmitting it by facsimile took 15

minutes. The State Police would notify the Sheriff's office by

telephone of potential legal problems with a given transfer.

To obtain the National Crime Information Center's findings,

he reported, a deputy had to drive 30 minutes to the State

Police barracks and back. Deciphering the report often

demanded additional telephone calls. In his affidavit, Sheriff

Frank described a number of other sets of records that might

be relevant to the legality of handgun transactions. When he

testified before the district court, he indicated that a Brady

check "may take us anywhere from 15 [*41] minutes to --

well, we had one up to six hours."

We do not think the described burden is so significant

quantitatively that it rises to the levei of a constitutional!

violation. Courts should avoid construing a statute in a

manner that raises serious constitutional problems whenever

possible, unless such otherwise acceptable construction of a

statute is not plainly repugnant to Congress’ aim. This is true

generally, see, e.g., Edward J. DeBartolo Corp. v. Florida

30a

Gulf Coast Bldg. & Constr. Trades Councii, 485 U.S. 568,

575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988), and is

particularly true where a federal statute might be construed to

invade state sovereignty impermissibly, see Gregory v.

Ashcroft, 501 U.S. 452, 469-70, 115 L. Ed. 2d 410, 111 S.

Ct. 2395 (1991); Will v. Michigan Dep't of State Police, 491

U.S. 58, 65, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). In the

context of the Brady Act, this rule tips us toward construing

the background check requirement as imposing only a light

burden on CLEOs. Such a reading is consistent with the

tenor and language of the Act, which simply requires a

“reasonable effort" and directs that the background check

include searching state and local records only if they are

"available." See 18 U.S.C. @ 922(s)(2). The view that the

[*42] burden is a light one accords with the Bureau's

interpretation of the Act as expressed in its Open Letter,

which stated the Act requires "some minimal effort to check

commonly available records."

Because the relevant circumstances -- including the

availability of resources, access to records, frequency of

requests, and the likelihood that the CLEO will be personally

acquainted with the transferee -- will vary among different

localities, what is a “reasonable effort" depends upon the

jurisdiction. In some extreme situations, such as where an

emergency demands the immediate attention of the CLEO, a

"reasonable effort” might conceivably be no action at all. The

Brady Act's use of a highly subjective standard ensures that

state officials are not excessively burdened. Moreover, the

degree of inconvenience visited on the States is even smaller

in view of the flexible definition of CLEO, discussed above,

which allows agencies like Sheriff Frank's office to avoid the

task by delegation or by agreement with other agencies

qualifying as CLEOs.

eine.” “linden tai A ti. Wet Sen eS at a6 De DBO Pt ON BANE

a |

3la

In view of our duty to construe statutes so as to avoid

raising serious constitutional problems, and the text and

legislative history of the Act, we [*43] interpret the Act as

imposing a minimal, as opposed to an onerous, burden on

CLEOs. If a CLEO engages in unreasonably burdensome

activities to determine the legality of proposed handgun

transfers, the CLEO cannot claim that the statute demands it.

Congress has tailored the Brady Act to require only a

minimai effort, one no more oppressive than the

requirements upheld in FERC. Such effort does not

constitute a hardship of constitutional proportions.

Similarly, the two other relevant requirements of the Brady

Act -- destruction of records and notification of certain

transferees of the reasons for denying their applications --

also do not constitute impermissibly burdensome directives.

These requirements are dwarfed by the administrative

Jearings and judicial actions mandated by PURPA. From the

standpoint of the required time, the effect on resource

allocation, and the level of difficulty, these duties are

relatively insignificant. Indeed, Sheriff Frank has not

represented to us that these post-search responsibilities are

onerous. Other courts have concluded they are not. See

Printz v. United States, 854 F. Supp. 1503, 1517 (D. Mont.

1994) (record destruction requirement is [*44] de

minimis), rev'd on other grounds sub nom. Mack, 66 F.3d at

1034; McGee v. United States, 863 F. Supp. 321, 327 (S.D.

Miss. 1994) (same).

In addition, the very circumstances that cast doubt on

whether Sheriff Frank had standing -- the willingness of

other state officials to perform the CLEO functions -- tend to

show that the Brady Act is not a significant imposition on

32a

state or local officers. If the tasks required by the Act were

impracticable or unduly onerous, the State Police might not

have been so willing to relieve local law enforcement

officials of the obligation. Nor might Sheriff Frank have

been so willing to volunteer initially to perform the CLEO

duties. Usually, of course, the issue of standing is entirely

separate from the question of the merits. But in this case, the

same facts that lead the concurring judge to find no standing

seem to us -- while indicating the presence of some burden --

to show the burden imposed on Sheriff Frank and others in

his position to be sufficiently small that our conclusion on

the merits follows almost necessarily.

In sum, the obligations imposed on CLEOs by the Brady

Act do not entrench on those powers reserved to the States

{*45] by the Tenth Amendment. The Brady Act does not

establish a structurally defective scheme like the one struck

down in New York. The effort required is minimal, and the

Act is therefore not unconstitutional by virtue of the

magnitude of the burden. Finally, it is consistent with the

principles undergirding our federal system, and with past

decisions permitting federal impositions on States. As a

consequence, we declare the challenged provisions of the

Brady Act constitutional.

Ili Due Process

We turn now to the remaining issues and dispose of them as

briefly as possible. Plaintiff urged the district court, in

support of his motion for a preliminary injunction, to rule

that the Act's background check requirement is

unconstitutionally vague. This argument depended on the

applicability of the Brady Act's criminal penalty provision to

CLEOs. See Frank, 860 F. Supp. at 1034. The district court

33a

held instead that Sheriff Frank lacked standing with respect

to this Fifth Amendment claim because the Department of

Justice's Office of Legal Counsel stated that the penalty

provisions do not apply to CLEOs. The trial court ruled that

Sheriff Frank was in no danger of being prosecuted [*46]

and had therefore failed to demonstrate an injury. See id. at

1036.

On appeal, plaintiff again challenges @ 922(s)(2) as

unconstitutionally vague. He does this by identifying

vagueness as an issue and incorporating arguments made in a

memorandum in support of his motion for a preliminary

injunction. No other reference to this issue or the Brady Act's

criminal penalty provision is found in plaintiff's main brief,

though he tersely contends in his reply brief that the

"reasonable effort" requirement of @ 922(s)(2) is vague

because it requires subjective interpretation by CLEOs.

A. Justiciability

The Fifth Amendment question does not present a justiciable

controversy. Our analysis is substantially similar to that of

the district court. Ripeness, standing, and related doctrines

“relate in part, and in different though overlapping ways, to

an idea, which is more than an intuition but less than a

rigorous and explicit theory, about the constitutional and

prudential limits to the powers of an unelected,

unrepresentative judiciary in our kind of government." Allen

v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct.

3315 (1984) (quoting Vander Jagt v. O'Neill, 226 U.S. App.

D.C. 14, 699 F.2d 1166, 1179 (D.C. Cir. [*47] 1983)

(Bork, J., concurring), cert. denied, 464 U.S. 823, 78 L. Ed.

2d 98, 104 S. Ct. 91 (1983)).

34a

Our sensitivity to these concerns is particularly acute when

a litigant invokes the power of judicial review, a power at

once justified and limited by our obligation to decide cases.

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60

(1803). As a result, a litigant challenging the constitutionality

of a statute must be subject to a "credible threat of

prosecution,” although actual charges need not have been

filed. See Babbitt v. United Farm Workers Nat'l Union, 442

U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979).

Further, in analyzing ripeness, we must "evaluate both the

fitness of the issues for judicial decision and the hardship to

the parties of withholding court consideration." Abbott

Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d

681, 87 S. Ct. 1507 (1967).

It is inappropriate for us to address cross-appellant's

vagueness claim, first, because there is no "credible threat"

of criminal charges. The government, earlier in the litigation,

relied on an Office of Legal Counsel memorandum

concluding that CLEOs are not subject to criminal liability

under the Brady Act as evidence of a formal position on the

matter. Plaintiff asserts that since the memorandum [*48]

was not issued by the Attorney General or formally

published, it therefore represents but an informal opinion.

Even assuming that, there still remains no substantial threat

of prosecution. The record does not reflect that any CLEO

has been prosecuted or threatened with prosecution under the

Brady Act. In addition, the Office of Legal Counsel's

memorandum, however informal, has been proffered on

numerous occasions as the government's position, suggesting

that criminal charges against CLEOs are exceedingly

unlikely. That memorandum cites a variety of compelling

reasons that such prosecutions would be futile, further

35a

supporting the proposition that charges are not imminent. In

light of this, plaintiff cannot be said to have a "realistic fear

of prosecution.” Poe v. Ullman, 367 U.S. 497, 508, 6 L. Ed.

2d 989, 81 S. Ct. 1752 (1961). Plaintiff's failure to preserve

the issue for appellate review, explained below, lends

support to this conclusion.

Sheriff Frank also declared, in his reply brief, that further

delay would serve no purpose because the vagueness issue is

primarily one of law, and that the question should be settled

for the sake of the many officials who may qualify as

CLEOs. We disagree. Although additional [*49] facts may

not be necessary, plaintiff's failure to advance a substantive

legal argument leads us to believe the issue unfit for decision

now. See Abbott Laboratories, 387 U.S. at 149. Finally,

declining to reach the issue does not work a hardship on

either. party to this suit. The vagueness question is therefore

not justiciable.

B. Failure to Raise the Question on Appeal

Apart from ripeness concerns, we would not decide the

vagueness issue because it was not adequately raised by

plaintiff. Rule 28(a) of the Federal Rules of Appellate

Procedure requires that appellants’ briefs include seven

specific items: (1) tables of contents and authorities, (2)

statement of jurisdiction, (3) statement of issues, (4)

statement of the case, (5) summary of argument, (6)

argument, and (7) conclusion. The argument section must

include "the contentions of the appellant on the issues

presented, and the reasons therefor, with citations to the

authorities, statutes, and parts of the record relied on.” See

Fed. R. App. P. 28(a)(6). In a case in which a cross-appeal is

filed, the appellee's brief must conform to the rules

36a

governing appellants’ briefs except that a statement of the

case is [*50] not mandatory. See Fed. R. App. P. 28(h).

With respect to his Fifth Amendment claim, plaintiff -- an

appellee and cross-appellant -- did not comply with Rule 28.

Although he mentioned the Fifth Amendment claim in the

"issues" section and attempted to present it to us by referring

to his arguments to the district court, he failed to present an

argument or a "conclusion stating the precise relief sought"

with respect to it. Fed. R. App. P. 28(a)(6).

In United States v. Restrepo, 986 F.2d 1462 (2d Cir.), cert.

denied, 114 S. Ct. 130 (1993), appellant's argument that the

district court failed to observe the maximum sentence was

initially presented only in a footnote, and it was therefore

inadequately raised for appellate review. Id. at 1463; Hunter

v. Allis-Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir.

1986) (same rule). Issues not sufficiently argued are in

general deemed waived and will not be considered on appeal.

See United States v. Maniktala, 934 F.2d 25, 27 (2d Cir.

1991); Travitz v. Northeast Dep't ILGWU Health & Welfare

Fund, 13 F.3d 704, 711 (3d Cir.), cert. denied, 128 L. Ed. 2d

888, 114 S. Ct. 2165 (1994); Kost v. Kozakiewicz, 1 F.3d

176, 182 (3d Cir. 1993). [*51]

Sheriff Frank concededly did more than the appellant in

Restrepo: he referred to another document filed in the

litigation, stated the issue, and presented a short argument in

his reply brief. However, none of these additional factors

leads to a different outcome. Merely incorporating an

argument made to the district court does not preserve a

question for appellate review. See Cray Communications,

Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 n.6

(4th Cir. 1994) ("Novatel[] used . . . a practice that has been

consistently and roundly condemned by the Courts of

37a

Appeals: the appellant's briefs merely adopted by reference

the memoranda that it had previously filed in the district

court.") (citing 16 Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure @ 3974,

at 733 & 742 n.27.7 (2d ed. Supp. 1994)), cert. denied, 131

L. Ed. 2d 135, 115 S. Ct. 1254 (1995); Pignons S.A. de

Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983).

In addition, simply stating an issue does not constitute

compliance with Rule 28(a): an appellant or cross-appellant

must state the issue and advance an argument. See Weaver v.

Puckett, 896 F.2d 126, 128 [*52] (Sth Cir.), cert. denied,

498 U.S. 966, 112 L. Ed. 2d 411, 111 S. Ct. 427 (1990);

Brown v. Trustees of Boston Univ., 891 F.2d 337, 352 (lst

Cir. 1989), cert. denied, 496 U.S. 937, 110 L. Ed. 2d 664,

110 S. Ct. 3217 (1990). Further, a cross-appellant generally

cannot resurrect an argument omitted in its main brief by

raising it for the first time in a reply brief. See Knipe v.

Skinner, 999 F.2d 708, 711 (2d Cir. 1993).

We recognize that a litigant's failure to comply with Rule

28 does not automatically preclude us from considering an

issue. Just as it is within our discretion to decide certain legal

questions sua sponte, e.g., Lambert v. Genesee Hosp., 10

F.3d 46, 56 (2d Cir. 1993) (failure to state a claim), cert.

denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994), we may

overlook a litigant's failure properly to present an issue on

appeal in unusual circumstances, one being where manifest

injustice would otherwise result. Fed. R. App. P. 2 ("In the

interest of expediting decision, or for other good cause

shown, a court of appeals may . . . suspend the requirements

or provisions of any of these rules in a particular case"); see,

e.g., United States v. Babwah, 972 F.2d 30, 35 (2d Cir.

1992); United States v. Loya, 807 F.2d 1483, 1487 [*53]

(9th Cir. 1987); United States v. Anderson, 584 F.2d 849,

38a

853 (6th Cir. 1978).

We decline in the instant case to exercise our discretion

and disregard the general rule. Sheriff Frank did not attempt

to explain omitting the Fifth Amendment argument from his

main brief. Nor did he advance the vagueness contention at

oral argument. If, as his reply brief asserts, he is threatened

with prosecution under the Act's criminal provisions, it might

be expected that he would mention such at oral argument.

Indeed, the same factors that lead us to conclude that the

Fifth Amendment question would not be justiciable even if it

had been raised, as explained above, strongly suggest that

plaintiff will not suffer injustice -- manifest or otherwise --

from our decision not to address the merits of his due process

claim.

Moreover, because of the lack of a serious controversy on

the Fifth Amendment question, we need not address whether

overlooking a violation of Rule 28 would be warranted in

other cases involving, for example, "important . . . questions

of first impression concerning statutory interpretation."

United Transp. Umon v. Dole, 797 F.2d 823, 827 (10th Cir.

1986). Nor do [*54] we address the suggestion in NLRB v.

Semco Printing Ctr., Inc., 721 F.2d 886, 893 & n.4 (2d Cir.

1983), that review is permissible in administrative

enforcement proceedings when an argument is not advanced

or is merely referenced in a footnote. We simply hold that we

need not reach the merits in this case, because the

cross-appellant has not properly preserved the issue.

CONCLUSION

Because of our ruling that the Brady Act's imposition on

CLEOs is constitutional, we need not decide whether the

39a

background check provision is severable from the remainder

of the Act. Insofar as the judgment of the district court ruled

that Sheriff Frank has standing to challenge the Brady Act on

Tenth Amendment grounds, it is affirmed; insofar as it ruled

that the interim background check requirement of the Brady

Act violates the Tenth Amendment, it is reversed and that

portion of the Brady Act is found constitutional; and, finally,

insofar as it declined to reach the merits of cross-appellant's

Fifth Amendment claim, it is affirmed.

Affirmed, in part, and reversed, in part.

CONCURBY: MINER

CONCUR: MINER, Circuit Judge, concurring in the result:

I am of the opinion that Sheriff Frank lacked standing

[*55] to maintain this action and therefore see no need to

pass on the constitutional claims that he advances.

Accordingly, I agree with my colleagues only to the extent

that judgment should be entered for appellant.

There are three requirements that must be met to establish a

case or controversy calling for the exercise of federal judicial

power under Article III of the Constitution: first, the plaintiff

must have suffered an injury in fact--an injury that is actual

or imminent, not hypothetical or conjectural, is concrete and

is seen to "affect the plaintiff in a personal and individual

way," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 &

n.1, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); second, the

injury must be fairly traceable to the defendant's challenged

action and not caused by the independent action of a third

party, id. at 560; and third, it must be likely, not just

possible, that the injury will be redressed by a favorable

court ruling, id. at 561.

I cannot perceive how the Brady Act has caused Sheriff

Frank to suffer any injury in fact within the meaning of

Lujan. My colleagues properly decide that a Chief Law

Enforcement Officer ("“CLEO") can be a state official as well

as a local official [*56] within the intendment of the Brady

Act. The Act does not appear to impose CLEO duties upon

anyone unwilling to undertake them. A locality may have

any number of officers who fit the definition of

CLEO--Chief of Police, Sheriff or State Commissioner of

Public Safety. Sheriff Frank voluntarily took on the CLEO

function, apparently for the sole purpose of challenging the

Brady Act. His instigation of this lawsuit impelled

Commissioner Watson of the Vermont Department of Public

Safety to conclude that Sheriff Frank really did not desire to

perform the duties of a CLEO. Accordingly, the

Commissioner requested the Bureau of Alcohol, Tobacco

and Firearms to change the CLEO designation in Orange

County, where Sheriff Frank holds forth. The Bureau has

agreed to treat Lieutenant Contois of the Vermont State

Police as the CLEO for Orange County because of the

Sheriff's apparent unwillingness to act. What actual injury

has the Sheriff suffered? How has he been affected in a

personal and individual way?

My colleagues say that "administrative burdens” constitute

the concrete injury contemplated by the standing

requirement. The administrative burdens, they say, consist of

working together with [*57] state and local officials to

determine which agency would perform the CLEO function.

Because Sheriff Frank is responsible for participating in this

decision-making process, he must "undertake an analysis" of

his own procedures and capabilities, supposedly an onerous

SS we witch

4la

administrative burden. It just does not seem to me that a

simple decision to pass up the CLEO job constitutes any sort

of a "burden," let alone one that amounts to an injury in fact.

There is yet another "burden," according to my colleagues,

that justifies a finding of the requisite actual or imminent

injury--that the state police may at some time in the future

decide to discontinue CLEO duties in Orange County and

Sheriff Frank might then have to assume those duties.

Accordingly, it is said, the Sheriff must so structure his

operations as to be ready for this eventuality. However, there

is no suggestion whatsoever that the state police have any

intention of giving up the CLEO function in Orange County.

It certainly cannot be said that any such action is "imminent."

Also, there is nothing to say that some other law enforcement

agency will not take up the duties in the event the state police

gives them up. I» any event, [*58] it is sheer speculation

to say that the duties might someday be imposed on Sheriff

Frank. The administrative burdens cited constitute a very

thin reed upon which to rest a finding of injury sufficient to

confer standing.

I very much disagree with the proposition that Friends of

the Earth v. Carey, 552 F.2d 25 (2d Cir.), cert. denied, 434

U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct. 296 (1977), supports

Sheriff Frank's standing claim. In Friends, we were presented

with the question of whether the City of New York (the

"City") had standing to claim that enforcement of a pollution

control plan, promulgated by the State of New York pursuant

to the Federal Clean Air Act, represented an invasion of the

City's sovereignty in violation of the Tenth: Amendment. Id.

at 33. The pollution control plan at issue in Frieads was

promulgated in accordance with a federal statutory scheme

42a

that provided states with the choice of promulgating their

own pollution control plans or submitting to a plan

promulgated by the Environmental Protection Agency. Id. at

30. New York State, with the assistance of the City,

promulgated a plan (the "Plan") to meet the federal air

quality standards in the City, and the Plan became binding

[*59] upon and enforceable against both the state and the

City.

The City, a defendant in the action that sought to compel it

to enforce the Plan, claimed that "a judgment directing it to

enforce the Plan would interfere with its governmental

interests in allocating funds, police resources and in making

policy decisions." Id. at 33. We held that "the City's claim

satisfies traditional notions of standing since the City is

allegedly threatened with injury to its governmental interests

and is within the class of entities which the Supreme Court

has held to be protected from incursions of federal power."

Id.

The City in Friends suffered a far more concrete and

particularized injury than Sheriff Frank presents in the

instant case. First of all, while the City in Friends was the

subject of an action seeking to compel it to enforce the Plan,

Sheriff Frank has not been compelled to comply with the

requirements of the Brady Act. Indeed, the sheriff

volunteered to assume CLEO duties and was relieved of his

responsibilities immediately after he objected to performing

those responsibilities. Moreover, Sheriff Frank cannot

demonstrate that it is even remotely possible that he would

be required [*60] to perform the CLEO duties in the future.

Therefore, his claim of injury is merely "hypothetical" and

"conjectural."

In Friends, the City sustained a severe invasion of a

43a

legally protected interest. The City there was faced with the

possibility of being compelled to enforce a plan to meet

federal air quality standards for carbon monoxide,

hydrocarbons, oxidants, and nitrogen dioxide. Here, Sheriff

Frank was required to work with other law enforcement

officials to decide who would assume the CLEO duties. This

really cannot be compared with the burden of complying

with federal air pollution standards in the New York City

metropolitan area. Sheriff Frank cannot point to any concrete

injury. Accordingly, he has no standing to put forward his

constitutional challenges to the Brady Act.

860 F. Supp. 1030

Sheriff Samuel Frank, Plaintiff, v. United States of America,

Defendant.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF VERMONT

August 2, 1994, Decided

August 2, 1994, Filed

COUNSEL: [**1i] For Plaintiff: Andrea L. Gallitano, Esq.,

Otterman & Allen, Barre, VT.

For Defendant: Thomas D. Anderson, Esq., Assistant U.S.

Attorney, District of Vermont, Burlington, VT and Michael

Sitcov, Esq., U.S. Department of Justice, Washington, DC.

44a

JUDGES: Parker

OPINIONBY: FRED I. PARKER

OPINION: [*1031] FINDINGS OF FACT, OPINION

AND ORDER

This matter came before the Court on plaintiff's Motions

for a Temporary Restraining Order and/or Preliminary

Injunction. The Court held a hearing on the Motion for a

Preliminary Injunction on June 2, 1994. At that time the

parties agreed to consolidate the hearing with a trial on the

merits pursuant to Fed. R. Civ. P. 65(a)(2). After considering

all testimony, affidavits and arguments submitted by the

parties, nl the Court enters the following findings of fact,

opinion, and order on the merits of this case.

nl The Court also considered the amicus curiae brief

submitted by Handgun Control, Inc., Center to prevent

Handgun Violence, Major Cities Chiefs of Police,

International Association of Chiefs of Police, National

Association of Police Organizations, Fraternal Order of

Police, Police Foundation, Federal Law Enforcement

Officers Association, Police Executive Research Forum,

National Troopers Coalition, and National Organization of

Black Law Enforcement Executives. Further references to

this brief will be designated "Amicus Brief, p. ".

- [**2]

Findings of Fact

1. Sheriff Samuel Frank is the elected Sheriff of Orange

County, Vermont, a jurisdiction of 992 square mik.. with a

population of approximately 26,000 persons.

2. The Ora: ge County Sheriff's Department consists of two

full time law enforcement officers: Sheriff Frank and Deputy

Dennis McClure.

‘

45a

3. The duties of the Sheriff are defined by 24 V.S.A. Chapter

5, subchapter 5.

[*1032] 4. Ona typical day, the Sheriff's office will have

the Sheriff and one full time deputy on duty.

5. The Sheriff's Department provides court security in the

county, transports state prisoners, transports some mental

health patients, serves process and writs, investigates crime,

and patrols the jurisdiction.

6. Funding for the Sheriff's Department comes from three

sources: the State of Vermont, Orange County, and private

security contracts.

7. The Vermont State Police respond to criminal activity in

Orange County, enforce motor vehicle laws, and patrol the

county. The Vermont State Police do not provide court

security, prisoner transport, mental health transport, or

service of process in Orange County.

8. On January 21, 1994 the Bureau of Alcohol, Tobacco, and

Firearms (ATF) sent an [**3] "Open Letter to State and

Local Law Enforcement Officials" on the topic of the

so-called Brady Bill. n2 In this letter ATF discussed the

definition of chief law enforcement officer ("“CLEO"), which

the Brady Bill defines as "the chief of police, the sheriff, or

an equivalent officer or the designee of such individual," and

stated its opinion that the definition of CLEO was broad

enough, in some cases, to apply to more than one official in a

given jurisdiction. The letter also expressed ATF's opinion

that, in jurisdictions where more than one official satisfied

the definition of CLEO, law enforcement officials could

agree on having only one serve as CLEO.

46a

9. On January 31, 1994 a meeting of all interested law

enforcement agencies was held at Norwich University to

discuss the implementation of the Brady Act in Vermont. At

this meeting, representatives of local law enforcement

agencies, the Vermont State Police, and the Bureau of

Alcohol, Tobacco and Firearms (ATF) [**4] were present.

10. At the meeting, the obligations of CLEOs under the

Brady Act was discussed.

11. Also at the meeting, James Walton, the Commissioner of

Public Safety in Vermont, stated that the Vermont State

Police was willing to function as the CLEO for Brady Act

purposes, for any jurisdiction in which the sheriff or local

police department declined to accept that responsibility.

12. Sheriff Frank stated his willingness to serve as CLEO for

Orange County at the meeting, believing that the he was

required to do so because he was the Sheriff or Orange

County and thus directly implicated by the Act.

!~ In his capacity as CLEO, Sheriff Frank received notices

of proposed firearm transactions from federally licensed

dealers, and either Sheriff Frank or his Deputy conducted

some type of background check, ranging in time from 15

minutes to six hours, for each proposed transaction to

attempt to determine whether it would violate the law.

14. Prior to the enactment of the Brady Act, Sheriff Frank

would sometimes conduct criminal record checks in the

normal course of his duties. The Sheriff's Department

workload with respect to background checks approximately

doubled after the Brady [**5] Act became effective.

15. On May 10, 1994 Sheriff Frank filed this case, seeking to

have enforcement of the Brady Act enjoined and declared

unconstitutional as violative of Article I, sec. 8, as well as the

Fifth and Tenth Amendments of the Constitution.

16. Upon learning of the instant challenge to the Brady Act,

47a

Commissioner Walton wrote to Sheriff Frank and informed

him he was requesting ATF to substitute Lt. George Contois

of the Vermont State Police for Sheriff Frank as the CLEO

for Orange County because Commissioner Walton believed

that Sheriff Frank's conduct in challenging the Brady Act's

constitutionality was evidence of his desire not to serve as

CLEO.

17. After receiving Commissioner Walton's letter, Sheriff

Frank has continued to perform background checks when he

is notified of a proposed transfer by federal firearms dealers.

18. Sheriff Frank has not received notice from any party

other than Commissioner (*1033] Walton regarding his

status as CLEO for Orange County.

Conclusions of Law, Opinion and Order

To properly analyze Sheriff Frank's challenge to the Brady

Act, it is necessary to review both the statutory framework of

the Gun Control Act and the provisions of the [**6] Brady

Act itself prior to any discussion of Sheriff Frank's

complaint.

I. Statutory Framework

The so-called Brady Act amends the Gun Control Act of

1968, 18 U.S.C. @ 921 et. seq., which created a federal

regulatory scheme governing the manufacture and

distribution of firearms by private persons. One feature of the

Gun Control Act is a requirement that a federal license be

obtained to engage in the business of manufacturing,

importing, or dealing in firearms in interstate or foreign

commerce. 18 U.S.C. @ 923(a). Licensees are required to

maintain records of their transactions and to allow the

Bureau of Alcohol, Tobacco, and Firearms to inspect the

records. 18 U.S.C. @ 923(g). Licensees are also prohibited

from transferring firearms or ammunition to any person the

licensee knows, or has reasonable cause to believe: is under

48a

indictment for, or has been convicted of a crime punishable

by imprisonment for a term exceeding one year; is a fugitive

from justice; is an unlawful user of certain illegal substances;

has been adjudicated a mental defective; is an illegal alien;

has [**7] been dishonorably discharged from the armed

forces; or has renounced his or her U.S. citizenship. 18

U.S.C. @ 922(d)(1)-(7).

Prior to the passage of the Brady Act, federal firearms

dealers were required to have customers fill out ATF form

4473, on which the customer certified that he or she was not

prohibited by law from receiving or possessing a firearm. 27

C.F.R. @ 178.124. This self-certification was the only

method by which a federal firearms dealer could determine

whether or not a transfer was prohibited.

II. The Brady Act

The interim provisions n3 of the Brady Act alter the prior

scheme by imposing on the licensed dealers an obligation,

under certain circumstances, n4 to have the prospective

transferee fill out an ATF Form 5000.35. 59 Fed. Reg. 7110,

7112, Feb 14, 1994. On this form the transferee must provide

a statement that includes his or her name, date of birth, and

address as they appear on a designated piece of picture

identification. 18 U.S.C. @ 922(s)(3)(A). The transferee

must also state under oath that he or she is not barred from

purchasing or receiving a firearm [**8] in interstate or

foreign commerce. 18 U.S.C. @ 922(s)(3)(B). The licensed

dealer must then transmit the contents of the form to the

Chief Law Enforcement Officer ("CLEO") of the place of

residence of the prospective purchaser within one day of its

completion and send a copy of the form to that official. 18

U.S.C. @ 922(s)(1(A)(i)(IID-(IV).

n3 The challenged provisions of the law all relate to its

49a

interim provisions, which involve local law enforcement in

the determination of whether a transfer of a firearm is

prohibited. The Brady Amendment provides for the eventual

use of a national instant background check system that

licensed dealers can contact by phone or otherwise to

determine whether a transfer is prohibited. 18 U.S.C. @

922(t)(1). The involvement of local law enforcement is

contemplated under the Amendment only until such time as

the national system is operational, but not later than 1999.

Pub. L. 103-159, Sec. 103(b). Thus it is the interim

provisions and not the permanent provisions of the law that

are challenged by Sheriff Frank. [**9]

n4 No waiting period or background check is required

under certain circumstances. See 18 U.S.C. @

922(s)(1)(B)-(F).

Upon receipt of the form, the Brady Act dictates that the

CLEO "shall make a reasonable effort to ascertain within 5

business days whether receipt or possession [of a handgun]

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 federally licensed

dealer is prohibited from transferring the firearm until he or

she is advised by the CLEO that the transfer would not be

illegal, or until 5 days have elapsed since the CLEO received

notice of the proposed [*1034] transfer, whichever occurs

first. 18 U.S.C. @ 922(s)(1)(A).

In the event that it is determined that the proposed transfer

does not violate the law, the CLEO is also required to

destroy any records received or generated due to the notice of

proposed transfer within twenty days [**10] after the

50a

completion of the pretransfer application. 18 U.S.C. @ 922

(s)(6)(B)(i). A purchaser who is determined ineligible to

receive a handgun based on the CLEO's investigation may,

upon request, obtain a written explanation from the CLEO

explaining the reasons for denial. 18 U.S.C. @ 922(s)(6)(C).

The Brady Act also contains a penalty provision, 18 U.S.C.

@ 924(a)(5), which states: "Whoever knowingly violates

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

than $ 1,000, imprisoned for not more than | year, or both."

III. The Complaint

Sheriff Frank's complaint seeks declaratory and injunctive

relief concerning enforcement of the Brady Act. He contends

that certain provisions of 18 U.S.C. @ 922(s), specifically @

922(s)(2) (requiring CLEOs to make a reasonable effort to

ascertain whether a proposed transfer would violate the law),

@ 922(s)(6)(B) (requiring CLEOs to destroy records relating

to background checks), and @ 922(s)(6)(C) (requiring

CLEOs to provide written reasons to those who are

determined ineligible for the transfer [**11] of a handgun)

exceed Congressional authority under Article I, Section 8 of

the Constitution and the Tenth Amendment. Sheriff Frank

also interprets the penalty provision of the Brady Act, 18

U.S.C. @ 924(a)(5) as providing for criminal penalties

against local law enforcement authorities who do not comply

with its provisions. In this regard, he raises a Fifth

Amendment due process argument, claiming that the

provisions of the Brady Act are unconstitutionally vague.

IV. Discussion

A. Can Sheriff Frank Challenge the Brady Act?

The Government asserts that the Court should not reach the

merits of Sheriff Frank's challenge to the Brady Act because

he lacks standing. This argument takes two forms. First, the

Sla

Government argues that Sheriff Frank is not the real party in

interest and is not authorized to bring suit in his official

capacity under Vermont law. Second, the Government argues

that assuming he has the capacity to sue and is a real party in

interest, Sheriff Frank lacks standing because he volunteered

to be the CLEO for Orange County and has therefore

suffered no injury traceable to the Brady Act.

1. Capacity and Real Party in Interest Status [**12]

The Government argues that "under Vermont law, plaintiff

is a county officer, 24 V.S.A. @ 290, but lacks authority to

initiate this litigation in his official capacity. Instead,

Vermont law expressly confers the authority to sue or be

sued on counties themselves. Id. @ 136." Thus the

Government's position is that Sheriff Frank is really asserting

the legal rights of Orange County, which he is not authorized

to do. Fed. R. Civ. P. 17(a) and (b).

However, the matter is not as simple as the Government

contends. The office of sheriff is created by Chapter II of the

Vermont Constitution, sections 43, 50, and 53. Sheriffs are

elected by the freemen of their districts under Chapter II @

50 of the Vermont Constitution, and the county as such has

no part in the selection of a sheriff. Nor can the county

remove a sheriff from office, which, aside from the election

process, can be done only through an impeachment process

before the Vermont State Legislature under Chapter II @ 57

of the Vermont Constitution. The state, not the county, sets

the salary of the sheriff. 32 V.S.A. @ 1182.

Moreover, the duties of the sheriff are set by state statute,

not by the county. The executive officers of [**13] the

county are assistant judges, 24 V.S.A. @ 131 et seq. who are

given no authority to direct the sheriff's duties. Thus Sheriff

Frank, though a statutory employee of the county, 24 V.S.A.

@ 290, functions independently of the county in many

important respects. Viewed in this light, it is unclear that the

52a

county would be the real [*1035] party at interest in this

case. The Brady Act asks nothing of the county qua county.

To the extent that Brady directs Sheriff Frank to undertake

duties other than those that he would do in the absence of

Brady, the county, which has no control over the sheriff's

duties in the first place, does not suffer any injury. Given this

situation, the Government's argument that 24 V.S.A. @ 136,

which states that “actions in which a county is the party in

interest shall be brought by or against the county .. ."

(emphasis added) deprives Sheriff Frank of capacity to sue is

misplaced. It is the sheriff, not the county, who is directed to

take action by the Brady Act and who must attempt to

reconcile these actions with his Vermont statutory mandates

and oath of office. The county faces no similar dilemma.

Whether or not the county could have brought this action,

[**14] itis clear to the Court that, subject to the standing

considerations that will be discussed below, Sheriff Frank

must have capacity to initiate this challenge. As noted by the

Court in McGee v. United States of America, 1994 U.S. Dist.

LEXIS 10610 *5 (S.D. Miss., June 2, 1994), a similar

challenge to the Brady Act:

It would be anomalous indeed if Congress can direct a

sheriff to take specific action; if Congress may provide that a

sheriff may be sued in civil rights actions; and if sheriffs can

be sued for deprivation of constitutional rights by inmates;

but a sheriff cannot bring a suit to declare unconstitutional an

action of Congress that directly impacts upon such sheriff,

and impacts upon no other state, county or federal official.

A determination that Sheriff Frank has capacity to bring the

action as Sheriff does not end the inquiry. The Government's

contention that Sheriff Frank lacks standing because he has

suffered no injury traceable to the Brady Act must also be

addressed.

2. Standing

53a

The Government claims that Sheriff Frank lacks standing

because he has not demonstrated that he has suffered, or is in

imminent danger of suffering, a distinct and [**15]

palpable "personal injury fairly traceable to the defendant's

allegedly unlawful conduct and likely to be redressed by the

requested relief." Allen v. Wright, 468 U.S. 737, 751, 82 L.

Ed. 2d 556, 104 S. Ct. 3315 (1984). This argument stems

from the fundamental principle that federal court jurisdiction

is limited by Article III to cases and controversies. As the

Supreme Court explained in Lujan v. Defenders of Wildlife,

119 L. Ed. 2d 351, 112 S.Ct. 2130, 2136 (1992) ". . . the core

component of standing is an essential and unchanging part of

the case-or-controversy requirement of Article III."

In Lujan, the Supteme Court discussed the requirements of

standing. Id. at 2135-37. It found that "the irreducible

constitutional minimum of standing contains three elements."

Id. at 2136. The three elements that must be shown are: (1)

an injury in fact, which is an invasion of a legally protected

interest that is concrete and particularized, actual or

imminent and not conjectural or hypothetical; (2) a causal

connection between the injury and the conduct; and (3) a

likelihood [**16] that the injury will be redressed by a

favorable decision. Id.

a. Injury in Fact

Sheriff Frank's claimed injury is that, by functioning as

CLEO, he has used some portion of his department's finite

resources completing tasks that are not part of his Vermont

statutory duties. In this case, Sheriff Frank testified and the

Court found that each background check he does on a

prospective gun purchaser takes a minimum of fifteen

minutes and sometimes up to six hours. Moreover, Sheriff

Frank argues that the Brady Act forces him to expend funds

and resources in a manner inconsistent with the scope of his

54a

duties as outlined in 24 V.S.A. ch. 5, subch. 5 and thus

compliance with Brady "places him at risk of violating his

oath of office, impeachment, and diminished re-election

potential." Plaintiff's Second Memorandum in Response, p.

11. Sheriff Frank also fears that he either faces criminal

prosecution pursuant to 18 U.S.C. @ 924 or the appearance

to his constituents that he is [*1036] not law abiding if he

does not comply with Brady.

The Government interprets Brady as requiring merely an

exercise of discretion on the part of Sheriff Frank and argues

that this [**17] “mandatory” discretionary duty is

consistent wit, Constitutional requirements. As for Sheriff

Frank's fear of criminal prosecution, the Government has

interpreted 18 U.S.C. 924(a)(5) as not providing criminal!

penalties for CLEOs. See Memorandum for Janet Reno,

Attorney General from Walter Dellinger, Office of Legal

Counsel, March 16, 1994.

With regard to Sheriff Frank's Fifth Amendment claim, I

agree that he has not shown injury because he has not been

prosecuted under the statute nor is he in any imminent

danger of being prosecuted because the Office of Legal

Counsel for the Department of Justice has taken the position

that Brady's criminal penalty provisions do not apply to

CLEOs acting in their official capacity. See id. Therefore, he

lacks standing to challenge the statute on vagueness grounds

because he will not be subject to criminal penalties whether

or not he complies with Brady. n5

n5 The Court notes its agreement with the Office of Legal

Counsel Opinion that "the absence of a definitive standard

inherent in the term "a reasonable effort" would very likely

pose an insurmountable hurdle to successful prosecution or

raise a substantial due process question" if the Government

were ever to reverse field and try to prosecute a CLEO for

5Sa

failing to perform his or her duties as required by the Brady

Amendment.

- [**18]

The Government's responses to Sheriff Frank's claim of

injury with regard to his Tenth Amendment claim, however,

do not directly refute Sheriff's Frar<'s claim of ongoing

injury. Rather, they actually go to the question of whether or

not it is Brady or Sheriff Frank himself that has inflicted the

injury. Accordingly, these arguments will be addressed

below.

b. Causation

The heart of the Government's standing argument is that

Sheriff Frank volunteered to be the CLEO for Orange

County wher he was under no obligation to do so. As such,

the Government maintains, any injuries he has suffered are

entirely self-inflicted, cannot be traced to the defendant's

conduct, and therefore cannot provide him with standing to

challenge the constitutionality of the Brady Act. See

Petro-Chem Processing Inc. v. EPA, 275 U.S. App. D.C.

232, 866 F.2d 433, 438 (D.C. Cir.), cert. denied, 490 U.S.

1106, 104 L. Ed. 2d 1020, 109 S. Ct. 3156 (1989)

(self-inflicted injuries cannot form the basis for standing to

challenge statute).

Prior to an evaluation of the Government's position, a more

detailed discussion of both the statute and the facts

surrounding Sheriff Frank's (**19] designation and removal

as the CLEO for Orange County is necessary.

As discussed above one feature of the Brady Acct is its

requirement that federal licensees have prospective handgun

purchasers complete an ATF form and that licensees notify

the "chief law enforcement officer of the place of residence

56a

of the” purchaser of the contents of the form. 18 U.S.C. @

922(s)(1)(A)(IID). The CLEO is then subject to the provisions

of Brady that Sheriff Frank has challenged here. The Brady

Act defines CLEO ("chief law enforcement officer") 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).

While Sheriff Frank is plainly within the definition of

CLEO, the Government's position, as explained in an ATF

Open Letter to State and Local Law Enforcement Officials,

is that the definition is "broad enough, in some cases, to give

the [firearms dealer] more than one official to contact" and

that "the law will clearly permit law enforcement officials to

agree that, within a given jurisdiction, one agency will serve

the role as CLEO." ATF Open Letter, p.8

On January [**20] 31, 1994, the Commissioner of the

Vermont State police and the senior ATF agent for Vermont

held a meeting for all interested law enforcement officers to

discuss Brady. At that meeting Commissioner Walton took

the position that designation as CLEO for Brady purposes

was voluntary, and that the state police would serve as CLEO

in any jurisdiction in which the elected [*1037] law

enforcement official did not want to undertake the CLEO's

responsibility. At the meeting Sheriff Frank indicated that he

would serve as the CLEO for Orange County.

After this case was filed Commissioner Walton sent Sheriff

Frank a letter in which he expressed his concern that the

Sheriff had chosen to attack the Brady Act's constitutionality.

Commissioner Walton also stated that he was requesting that

ATF delete Sheriff Frank from its list of CLEOs and

substitute Lieutenant G.C. Contois of the Vermont State

police as the CLEO for Orange County.

Thus the Government argues that Sheriff Frank does not

have, and never has had, standing because he never had to

57a

undertake the role of CLEO, but could have let

Commissioner Walton designate the Vermont State police as

CLEO for Orange County.

Sheriff Frank takes issue with the [**21] Government's

conclusion that the Vermont State police is an "equivalent

officer" for the purposes of the definition of chief law

enforcement officer. Although the Vermont State police are

given powers equivalent to those of sheriffs by 20 V.S.A. @

1914, Sheriff Frank takes the position that the intent of

Brady was that local law enforcement, not the state police,

were intended to perform the Brady background checks and

therefore the Vermont State Police are not "equivalent

officers” and can not relieve him of his Brady obligations.

Sheriff Frank essentially argues that Commissioner Walton's

“offer” to have the Vermont State Police serve as CLEO was

ineffectual because the Vermont State police do not fit the

statutory definition of CLEO.

The Government argues that although "equivalent officer"

is nowhere defined in the statute, "that term must, at a

minimum, include any official whose powers are the same as

a ‘sheriff or a 'chief of police." Defendant's Opposition To

plaintiff's Motion for a Preliminary Injunction, at 20.

Furthermore, the Government urges that ATF's interpretation

of the statute be should given substantial weight. Chevron v.

Natural Res. Def. Council, 467 U.S. 837, 844-45, 81 L. Ed.

2d 694, 104 S. Ct. 2778 (1984). [**22]

However, ATF's construction is entitled to substantial

weight only where the intent of Congress in unclear.

When a court reviews an agency's construction of the

statute which it administers, it is confronted with two

questions. First, always, is the question whether Congress

has directly 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

58a

unambiguously expressed intent of Congress.

Id. at 842. In this instance the Court finds that the statute

clearly contemplates that background checks will be done by

local, and not state, law enforcement officials and that ATF's

interpretation is contrary to the intent of Congress. n6

n6 The only issue that needs be addressed here is whether

the state police in Vermont are "equivalent" to a sheriff or a

chief of police. There is no need to reach the question of

whether the language of the Brady Act's CLEO definition

allows for more than one CLEO in a given jurisdiction,

although it seems that the term "equivalent officer" could

easily be read to mean the chief local law enforcement

officer of the jurisdiction in the event that a given

jurisdiction does not empioy the term "chief of police” or

“sheriff.”

However, the Court will assume that more than one CLEO

may exist in a given jurisdiction and limit the inquiry to the

question of whether the Vermont State Police are "an

equivalent officer” to the Sheriff of Orange County.

- (°923)

The first clue that Congress did not intend for state law

enforcement officials to be serving as CLEO's is that the

definition of CLEO does not include any reference to them.

This fact is particularly significant when the CLEO

definition is compared to the Brady Act's provisions relating

to the reporting of multiple firearms sales. These provisions

require federal licensees to prepare reports of multiple

handgun sales and forward them to "the department of state

police or state law enforcement agency of the state or local

law enforcement agency of the local jurisdiction in which the

59a

sale or other disposition took place . . ." 18 U.S.C. @

923(g)(3)(A) (Emphasis added). The amendments also

provide that". . . the department of state police or state law

enforcement agency of the state or [*1038] local law

enforcement agency of the local jurisdiction shall not

disclose any such form or the contents thereof to any person

or entity, and shall destroy each such form . . ." 18 U.S.C. @

923(g)(3)(B) (Emphasis added). These provisions strongly

indicate that where Congress intended to impose duties that

could be fulfilled [**24] by either state or local law

enforcement officials, it did so explicitly.

The legislative history of the Brady Act confirms this

interpretation. The House Report "Summary and Purpose"

section describes the bill as follows: "Local law enforcer:ent

officials are required to use the waiting period to determine

whether a prospective handgun purchaser has a felony

conviction or is otherwise prohibited by law from buying a

gun.” H.R. Rep. No. 344, 103d Cong. Ist. Sess. p. 7 (1993)

reprinted in 1993 U.S.C.C.A.N. 1984. (Emphasis added.) In

the section "Brief Explanation of H.R. 1025," under the

heading "the waiting period" the intent of the Congress is

again revealed: ". . . the transferor would be required to

notify local law enforcement officials of the proposed saie. . .

. The bill requires local law enforcement officials to make a

reasonable effort . . ." Id. at 10.

Prior to the initiation of this case, ATF itself apparently felt

that the background checks were to be conducted. by local

law enforcement, stating in its open letter:

. . . the law is designed so that the law enforcement authority

who is doing the check, is the one who is most likely to have

to deal [**25] with the consequences of the buyer

obtaining a handgun. Therefore, the CLEO of the buyer's

residence has a vested interest in conducting an appropriate

check and ultimately is in the best position to determine what

60a

is reasonable. ATF Open Letter, p. 10.

Even in the absence of the foregoing evidence of

Congressional intent regarding state police generally serving

as CLEOs, there are practical reasons why the Vermont State

Police cannot be considered the "equivalent" of Sheriff Frank

even if their legal authority is the same under state law.

Attorney General Reno, in urging one of the Brady Bill's

chief sponsors to reject proposed amendments to the Brady

Bill that would establish a date certain for establishment of a

federal instant check system, wrote:

Background checks performed by local police remain the

most effective means of screening out ineligible gun buyers.

It is local law enforcement who best know the residents and

residencies within their communities. Local law enforcement

can check to see if a given purchaser resides at the given

address, and can access local, county, state, and national

records whether they are in file folders or computerized.

Letter from Attorney [**26] General Reno to Rep. Charles

Schumer (Nov. 9, 1993) (Ex. 1 attached to Amicus Brief).

The reasons given by Attorney General Reno in support of

having local law enforcement perform background checks

demonstrate why state and local officials may not be

equivalent even if they are given the same powers under state

law. n7 Sheriff Frank testified and the Court found that his

department transports prisoners and mental health patients in

the county, provides court security in the county, and

maintains local records, many of which are not

computerized. All of these activities put the Sheriff in a

unique [*1039] position in terms of his familiarity with the

local citizenry of Orange County. The state police, while

given equivalent legal authority in the county, do not

perform any of these functions on a regular basis. It is clear

that Congress sought to take advantage of the local law

6la

enforcement's familiarity with the population when the

background check provision was drafted. For this reason, the

Court finds that the Vermont State police cannot be

considered the CLEO for Orange County because they are

not an "equivalent" to Sheriff Frank.

n7 The Government's syllogism in support of their

position that the state police are "equivalent officers” to the

sheriff runs as follows: (1) the sheriff's powers are defined by

statute; (2) the state police have "the same powers with

respect to criminal matters and the enforcement of the law

relating thereto as sheriffs . . ." 20 V.S.A. @ 1914; (3)

therefore the state police are an "equivalent officer" under he

Brady definition of the CLEO. This argument fails to

acknowledge that entities with the same powers under state

law are not necessarily equivalent.

As an exampie, the Court notes that under Vermont law, a

sheriff who has completed certain training requirements may

exercise his or her powers, "with respect to criminal matters

and the enforcement of law", on a statewide basis. 24 V.S.A.

@ 312. If one were to adopt the Government's expansive

interpretation of “equivalent officer", not only the state

police, but also the sheriff of any other county in the state,

could serve as the CLEO for Orange County because, in a

jurisdictional sense, they would have the same powers with

respect to criminal matters in Orange County as Sheriff

Frank.

-(**27)

Even if the state police could fulfill the role of CLEO for

Orange County, it is not clear to the Court that Sheriff Frank

has ever been removed as CLEO or that any federal agency

62a

has informed Sheriff Frank that he does not have any

obligations under the Brady Act. The only proof offered on

this point by the Government is a letter from Commissioner

Walton of the Vermont State police to Sheriff Frank, which

states that Commissioner W alton will request that ATF

remove Frank's name from its list of CLEOs. n8 Notably, the

Government's brief is completely bereft of reference to any

authority that gives the State of Vermont the power to relieve

Sheriff Frank of an obligation imposed under federal law. n9

Sheriff Frank has understandably continued processing

background checks under the assumption that the he is still

the CLEO because he has never received notice to the

contrary from any federal agency. Accordingly, to at least

some extent, Sheriff Frank is still functioning as the CLEO.

n8 The Government asserts in its brief that ATF has

removed Sheriff Frank from the CLEO position and

substituted the Vermont State Police. However, the

Government left the citation to the Federal Register blank.

The Court has conducted several database searches in an

attempt to find any reference in the Federal Register to a

change in the CLEO for Orange County but has been unable

to do so. [**28]

n9 The Government's brief mentions that "the State Police

would designate itself as the CLEO for any jurisdiction

where local law enforcement officials who also satisfied the

CLEO definition did not want to perform the CLEO's duties.

... Plaintiff volunteered to assume the CLEO's duties for

Orange county, and was designated as such by the

Commissioner." Gov. brief at 21. Implicit in the

Government's description is the assumption that the

Commissioner of the State Police, as opposed to ATF ora

local official, has the power to “designate” itself or someone

63a

else as the CLEO for any jurisdiction in Vermont. Given that

the state police are not mentioned in the definition of CLEO,

it would seem odd that the statute delegates to the state

police the power to "designate" Shernff Frank as the CLEO

for Orange County, or to "designate" itself CLEO if Sheriff

Frank challenges the constitutionality of the statute.

we eee newer eee End Footnotes- - - - ------------

In sum, Sheriff Frank is in the following position. A-

federal law imposes certain arguably unconstitutional

obligations cn chiefs of police, sheriffs, or equivalent

officers. As a Sheriff, Frank [**29] reasonably believes he

must comply with the law and has done so, but has

challenged the constitutionality of the law. A third party, the

State of Vermont, claims to be an equivalent officer and has

told Sheriff Frank that it will assume his federal obligations

because his challenge to the law makes it clear that he no

longer wishes to comply with it. Sheriff Frank does not agree

that the third party is legally his equivalent, nor does he

believe that the third party, which is not a federal agency, can

excuse him from performance of his duties. He therefore

seeks a Court order declaring the law unconstitutional but

has continued to perform the functions required under the

law because no party with the authority to relieve him of his

federal obligations has done so.

For all of the above reasons, the Court finds that Sheriff

Frank's injuries are directly traceable to the Brady Act and

that Commissioner Walton's offer to serve as CLEO did not

deprive Sheriff Frank of standing because: (1) the state

police in Vermont are not "equivalent officers” under 18

U.S.C. @ 922(s)(8) and cannot serve as CLEOs; (2) Sheriff

Frank has never been removed as CLEO by [**30] a party

with authority to remove him; and (3) the state police never

had the power to relieve the Sheriff of his obligations under

64a

the Brady Act in the first place. n10

nl0 The Court notes that while the imposition of federal

mandates on local law enforcement officials and the

subsequent agreement of a state entity to voluntarily assume

the federal responsibilities of the local official has created

somewhat unique standing questions, the result is generally

consistent with the Supreme Court's observation in Lujan

that: When the suit is one challenging the legality of

government action . . . the nature and extent of facts that

must be proved (at the trial stage) in order to establish

standing depends considerably upon whether the plaintiff is

himself an object of the action (or foregone action) at issue.

If he is, there is ordinarily little question that the action or

inaction has caused him injury, and that a judgement

preventing or requiring the action will redress it. 112 S. Ct.

at 2137.

-(°931]

[*1040] c. Redressability

It is clear that a decision by this Court in favor of Sheriff

Frank will redress his injuries in that he will no longer have

to perform background checks at all if enforcement of the

Brady Act is enjoined. Because Sheriff Frank has shown

injury in fact, causation, and redressability, he has standing

to bring his claim, the merits of which will now be

addressed.

B. The Tenth Amendment Challenge n1 |

65a

nl 1 Sheriff Frank's contention that the Brady Act is

beyond the scope of Article I, sec. 8 is subsumed within the

Tenth Amendment analysis and will not be addressed

separately. The Tenth Amendment only applies to powers "

. not delegated to the United States . . . ." Therefore, any

Tenth Amendment argument is a de facto argument that the

power in question was not delegated to the United States in

another provision of the Constitution.

Sheriff Frank's Tenth Amendment challenge to the Brady

Act is relatively straightforward. He relies on New York v.

United States, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992)

{**32] to support his contention that a federal statute may

not direct him, a local official, to perform background checks

or otherwise implement a federal program. Although the

Government vigorously disputes Sheriff Frank's Tenth

Amendment analysis, it also disputes that the Brady Act

requires any action on his part. Rather, the Government

reasons, Brady merely requires him to "consider" whether or

not to perform a background check in any given case.

Accordingly the Court must first determine what the Brady

Act requires of Sheriff Frank prior to determining whether

such requirements are constitutional.

1. Section 922(s)(2)

Section 922(s)(2) provides:

A chief law enforcement officer to whom : a transferor has

provided notice shall make a reasonable effort to ascertain

within 5 business days whether receipt or possession would

be in violation of the law, including research in whatever

66a

State and local recordkeeping systems are available and a

national system designated by the Attorney General.

Sheriff Frank reads this provision as requiring that some

sort of background check be performed by him. The

Government, however, reads the "reasonable effort"

provision expansively, concluding that [**33] a

"reasonable" effort may be no effort at all. The ATF Open

letter states, for example, that "in rural, sparsely populated

counties where many handguns purchasers are personally

known to the CLEO, little or no research may be necessary

in many cases." ATF Open letter, page 10. n12

”

nl2 The Government places great weight on this statement

as articulating the position of ATF with regard to the

definition of reasonable effort. However, the ATF Open

letter is less than consistent in its discussion of "reasonable

effort.” In addition to the portions of the letter quoted by the

Government, the Open letter also states that "the law clearly

anticipates some minimal effort to check commonly

available records." (p. 9). In any event the fact that there may

be some instances in rural counties when a handgun

purchaser is personally known to the CLEO, making research

unnecessary, does nothing to undercut the mandatory nature

of the statute in all other cases.

Once again, however, the Government's interpretation of

the statute is [**34] clearly contrary to the intent of

Congress. To begin, the statute states that CLEOs "shall"

make a reasonable effort to determine whether a transfer is

prohibited. Moreover, the Congress specifically rejected an

amendment that would have changed "shall" to "may". H.R.

67a

Rep. 344, 103d. Cong., Ist. Sess, p. 39 (1993) reprinted in

1993 U.S.C.C.A.N. 1984, 2009. It is hard to imagine a

clearer indication of Congressional intent that a provision be

mandatory rather than discretionary.

[*1041] Perhaps the most important phrase overlooked by

the Government is "including research in whatever State and

local recordkeeping systems are available and a national

system designated by the Attorney General." The use of the

word “including” indicates that a reasonable effort will

include, at a minimum, research in the national system

designated by the Attorney Generai and research in

"whatever" State and local systems are available.

Thus the CLEO "shall" make a "reasonable effort" to

ascertain whether a transaction is prohibited, "including"

some designated research. These terms cannot be reconciled

with the Government's contention that Sheriff Frank is not

required to perform some type of background [**35] check

when he receives notice of a proposed transfer (except,

perhaps, in those instances when he might already have in

mind all the necessary information).

The legislative history also reflects the mandatory nature of

the background check. The Summary and Purpose section of

the House report states: Local law enforcement officials are

required to use the waiting period to determine whether the

prospective purchaser has a felony conviction or is otherwise

prohibited by law from buying a gun. Id. at 8 (emphasis

added).

Furthermore, the "Brief Explanation" of the bill contained

in the House report states:

The bili requires local law enforcement officials to make a

reasonable effort to ascertain whether the prospective

purchaser is forbidden from buying a handgun. This

background check must be conducted within five business

68a

days from the date on which the prospective purchaser first

indicated his or her intention to purchase a handgun. Id. at 10

(emphasis added).

The Court concludes that the Brady Act places a duty on

Sheriff Frank to perform some type of background check.

The question then becomes whether such a requirement is

consistent with the Tenth [**36] Amendment.

2. New York v. United States

New York v. United States, 120 L. Ed. 2d 120, 112 S. Ct.

2408, is the most recent Supreme Court case discussing the

Tenth Amendment and the ability of the Congress to require

states to regulate or to administer federal programs. n13 The

issue in New York was the constitutionality of the Low

Level Radioactive Waste Policy Act. The Act contained a

“take title" provision that gave each state two options for

dealing with certain kinds of radioactive waste within its

borders. Id. at 2416. The states could either enact legislation

consistent with Congressional directives or "take title" to the

waste within its borders and face liability for all damages

caused by the waste. Id.

nl3 The Government bemoans the fact that "for all

practical purposes” Sheriff Frank relies exclusively on New

York. That observation is correct. Of course, if a party is

going to rely exclusively on one case, the most recent

Supreme Court case discussing the issue at hand is not a bad

choice.

- (**37]

The Court found that because Congress did not have the

authority to impose either option as a freestanding

requirement, neither did it have the authority to offer a

choice between the two. Id. at 2428. Justice O'Connor,

69a

writing for the majority, was careful to point out that there

are many permissible ways for Congress to encourage a State

to regulate in a particular way. For example, Congress may

attach conditions on the receipt of federal funds, South

Dakota v. Dole, 483 U.S. 203, 97 L. Ed. 2d 171, 107 S. Ct.

2793 (1987) (Congress may condition receipt of highway

funds on the adoption of a minimum drinking age) or may,

when operating pursuant to the Commerce Clause, offer

States the choice of regulating a given area according to

federal standards or having state law pre-empted by federal

regulation. Hodel v. Virginia Surface Mining & Reclamation

Assn, Inc. 452 U.S. 264, 69 L. Ed. 2d 1, 101 S. Ct. 2352

(1981) (upholding Surface Mining Control and Reclamation

Act of 1977 because states were not compelled to enact

federal program but could choose not to participate [**38]

the federal program, [*1042] in which case regulation

would fall to the Federal Government). Justice O'Connor

explained why such "encouragement” from the Federal

Government is permissible:

By either of these two methods, as by any other permissible

method of encouraging a State to conform to federal policy

choices, the residents of the state retain the ultimate decision

as to whether or not the State will comply. If a State's

citizens view federal policy as sufficiently contrary to local

interests, they may clect to decline a federal grant. If state

residents would prefer their government to devote its

attention and resources to probiems other than those deemed

important by Congress, they may choose to have the Federal

Government rather than the State bear the cost of a federally

mandated regulatory program, and they may continue to

supplement that program to the extent state law is not

preempted. Where Congress encourages state regulation

rather than compelling it, state governments remain

responsible to the local electorate's preferences; state

70a

officials remain accountable to the people. Id. at 2428.

In contrast, the take title provision in New York required

the states to [**39] comply with one of two options, both

dictated by the Federal Government, and was therefore

invalidated. The Court explained: The take title provision

appears to be unique. No other federal statute has been cited

which offers a state government no option other than that of

implementing legislation enacted by Congress. Whether one

views the take title provision as lying outside of Congress’

enumerated powers, or as infringing upon the core of state

sovereignty reserved by the Tenth Amendment, the provision

is inconsistent with the federal structure of Government

established by the Constitution.

Id. at 2429.

New York controls the outcome of this case. Like the take

title provision in New York, the background check provision

of the Brady Act has provided no option to local officials but

has merely directed them to administer the federal program.

Whether a Vermont Sheriff is to be compelled to undertake

the duty of conducting background checks is a decision that

the Vermont Legislature, not the United States Congress,

must make. This is so because the Vermont Legislature, not

the United States Congress, is the only legislative body that

can determine how these duties [**40] affect all other

duties a sheriff is required to perform. It is the Vermont

legislature that determines the Sheriff's salary and determines

his or her duties. This enactment improperly commands

action on the part of a local law enforcement official. There

can be no doubt that such a command is unconstitutional.

... one thing is clear: the Federal Government may not

compel the states to enact or administer a federal statutory

program. Id. at 2435.

The Government's attempts to distinguish New York are

unavailing. Moreover, many of its arguments were flatly

Tla

rejected by the Court in New York. For example, the

Government contends at one point that: "New York did not

suggest that the federal government can never mandate that

state governments assist in the enforcement of federal

statutes." Defendant's Opposition To Plaintiff's Motion for a

Preliminary Injunction, at 30. On the contrary, New York

appears to suggest just that:

... the United States argues that the Constitution does, in

some circumstances, permit federal directives to state

governments. Various cases are cited to support this

proposition, but none support it. Id. at 2429.

Of particular [**41] note is the Government's contention

that New York is distinguishable because the statute at issue

there was directed at states and completely dominated state

legislative and regulatory processes. In essence, by making

this argument the Government concedes that Congress could

not compel the states to pass legislation requiring all local

law enforcement officials to conduct background checks.

What is remarkable is the Government's apparent contention

that Congress is somehow on better constitutional footing if

it by-passes the state legislature [*1043] altogether and

directly compels state and local officials acting in their

official capacity to undertake federally mandated duties. Of

course, if this were the case, Congress would never have to

encourage states to adopt legislation because it could simply

"eliminate the middle man" and pass federal legislation

requiring state officials to carry out the desired federal

programs.

Other arguments advanced by the Government can be

easily dismissed. As in New York, references to Tenth

Amendment cases that discuss the authority of Congress to

subject state governments to generally applicable laws, e.g.,

Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985); [**42]

72a

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

2d 245, 96 S. Ct. 2465 (1976), are inapposite because the

Brady background check provisions are not generally

applicable, but are directed solely at local law enforcement

officials. See New York, 112 S. Ct. at 2420.

Nor is this a case addressing the ability of Congress to pass

laws enforceable in state courts. E.g., Testa v. Katt, 330 U.S.

386, 91 L. Ed. 967, 67 S. Ct. 810 (1947). Such cases merely

involve application of the Supremacy Clause and are not

concerned with the Federal Government's ability to compel

non-judicial officers to implement federal programs.

Although FERC v. Mississippi, 456 U.S. 742, 72 L. Ed. 2d

532, 102 S. Ct. 2126 (1982), held that a state administrative

body, the Mississippi Public Service Commission, could be

compelled to adjudicate disputes arising under a federal

statute, it is within this class of cases because the Court

found that the administrative body was part [**43] of the

"state adjudicatory machinery" and that the case was

therefore controlled by Testa v. Katt. Id. at 760, 761. nl4

Accordingly, neither Testa v. Katt nor FERC provide any

support for the proposition that the Federal Government may

command that non-adjudicatory state officials to carry out

federal directives.

nl4 The Court noted that any other decision would allow

the States to disregard the pre-eminent position held by

federal law. FERC, 456 U.S. at 761. No such concerns are

present here, where no "state adjudicatory machinery" is

involved.

Finally, the Government (and amici) also discuss at length

73a

the pressing need for federal legislation such as the Brady

Act. I do not question the sincerity of those who have

worked for passage of the Brady Act, nor do I at all dispute

the fact that the Federal Government may regulate the

transfer of firearms. nl15 However, laudable ends cannot be

[**44] used to justify unconstitutional means. Justice

O'Connor addressed this very question in New York. Her

words are equally applicable here:

Some truths are so basic that, like the air around us, they

are easily overlooked. Much of the Constitution is concerned

with setting forth the form of our government, and the courts

have traditionally invalidated measures deviating from that

form. The result may appear "formalistic" to partisans of the

measure at issue, because such measures are typically the

product of the era's perceived necessity. But the Constitution

protects us from our own best intentions: It divides power

among sovereigns and among branches of government

precisely so that we may resist the temptation to concentrate

power in one location as an expedient solution to the crisis of

the day. [The issue before the Court] is a pressing national

problem, but-a judiciary that licensed extra-constitutional

government with each issue of comparable gravity would, in

the long run, be far worse. New York, 112 S.Ct. at 2434.

nl5 Although the subject of federal law challenged here is

the transfer of handguns, this case has absolutely nothing to

do with the Second Amendment or the right to bear arms.

This case is about the ability of the Federal Government to

require action on the part of local officials.

- (**45]

74a

Believing as I do, that the Tenth Amendment of the United

States Constitution prohibits the United States Congress

from usurping the power of the Vermont Siate Legislature by

requiring local (aw enforcement to administer this federal

program, I conclude that 18 U.S.C. @ 922(s)(2) is

unconstitutional. [*1044] 2. 18 U.S.C. @ 922(s)(6)(B) and

922(s)(6)(C)

Because @ 922(s)(2), which requires that CLEOs conduct

a background check has been invalidated, @ 922(s)(6)(B)

(which directs CLEOs to destroy records received or

generated as a result of a background check if the transfer is

allowed) and @ 922(s)(6)(C) (which directs the CLEO to

provide a written explanation to a party whose proposed

transfer is denied) are no longer mandatory provisions. These

provisions will only apply to those CLEOs who choose to

cooperate with @ 922(s)(2). No CLEO is compelled to

comply with these provision because he or she can choose

not to participate in background checks at all. Therefore,

these provisions are not invalid once the mandatory nature of

@ 922(s)(2) is eliminated.

C. Severability

In Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 94 L. Ed.

2d 661, 107 S. Ct. 1476, [**46] (1987) the Supreme Court

established that "unless it is evident that the Legislature

would not have enacted those provisions which are within its

power, independently of that which is not, the invalid part

may be dropped if what is left is fully operable as law." Id. at

684. Moreover, when Congress adopts a severability clause

there is a presumption that the unconstitutional part of act is

severable. Id. at 686. The Gun Control Act, which the Brady

Bill amended, contains a severability clause. 18 U.S.C. @

75a

928.

It is not evident to the Court that this presumption of

severability has been overcome by the Plaintiff. Sheriff

Frank baldly asserts that the Act would "serve no purpose"

without mandatory background checks, but he provides no

support for that proposition. Moreover, Sheriff Frank labors

under the assumption that without a mandatory provision, no

background checks will be done at all. However, to the

extent that other Sheriffs or Chiefs of police elect to

cooperate with federal officials in administering the Brady

Act, [**47] the Act will function as Congress intended.

Without the mandatory background check, the Act can

operate as intended by Congress with the exception that local

law enforcement would then have the option, rather than the

obligation, of conducting a background check during the

five-day waiting period. nl6 Because the Act is still "fully

operable as law" without a mandatory background check

provision, the balance of the Brady Act remains fully

operational.

n16 There can be no doubt that at least some CLEOs will

find it in their own best interest to conduct background

checks.

CONCLUSION

The Court concludes that 18 U.S.C. @ 922(s)(2) is an

unconstitutional mandate from Congress which violates the

Tenth Amendment of the United States Constitution. The

Court hereby ORDERS that judgement shall enter declaring

section 922(s)(2) of Title 18 unconstitutional and void and

permanently enjoins the United States from enforcing that

provision in the District of Vermont. The remainder of the

76a

Brady [**48] Act remains unaffected by the judgement or

by this ORDER.

Dated at Burlington, in the District of Vermont, this 2 day

of August, 1994.

Fred I. Parker

Chief Judge

77a

--H.R.1025--

--Pub. L. 103-

This text is long and has been trimmed here. Open the source document for the complete record.

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.