Stephen P. Halbrook
10605 Judicial Drive, B-3
Fairfax, Virginia 22020
(703) 385-8610
David T. Hardy
Suite 265
8987 East Tanque Verde
Tucson, Arizona 85749
(602) 749-0241
State Bar No. 4288
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
SHERIFF RICHARD MACK,
Individually and as
Sheriff and Chief Law
Enforcement Officer of
Graham County, Arizona,
No. 94-113-TUC-JMR
Plaintiff
AMENDED COMPLAINT
v.
UNITED STATES OF AMERICA,
Defendant
COMES NOW the plaintiff, Richard Mack, Sheriff of Graham
County, Arizona and represents to the Court:
1. This is an action for declaratory and injunctive relief
concerning P.L. 103-159, 107 Stat. 1536 (1993), which amended Title 18,
United States Code, to create Sec. 922(s). Sec. 922(s) purports to
mandate Federal duties, enforceable with criminal penalties, on the
chief State and local law enforcement officers of the places of
residence of handgun purchasers, thereby exceeding Congress' authority
under Article 1, Section 8 of the United States Constitution, violating
the Tenth and Thirteenth Amendments to the United States Constitution,
and diverting law enforcement resources away from the duties required
by State law, including the investigation and apprehension of
criminals. Moreover, Sec. 922(s) is unconstitutionally vague and
violative of the due process clause of the Fifth Amendment.
Parties
2. Plaintiff Sheriff Richard Mack is the chief law enforcement
officer of Graham County, Arizona, with offices at Safford, the county
seat of Graham County, Arizona. He appears in his individual capacity
and also in his official capacities as sheriff and as Chief Law
Enforcement Officer for the County. The office of sheriff is an
elective position created by Article 12, Section 3 of the Arizona
Constitution. The status and duties of Chief Law Enforcement Officer
are defined by the legislation at issue in this case.
3. The United States of America is the defendant herein.
Jurisdiction
4. Jurisdiction is founded upon 28 U.S.C. Sec. 1331 in that
this case arises under the Constitution and laws of the United States,
and is a controversy to which the United States is a party. Plaintiff
resides in the District of Arizona, and the events giving use to this
claim occurred in the District of Arizona.
Facts
5. Effective on or about February 28, 1994, Section 102(a) of
P.L. 103-159, makes it unlawful for a federally licensed firearms
dealer to transfer a handgun to a non-dealer unless such dealer, inter
alia, obtains a statement containing personal information from the
transferee; and transmits a copy of the statement to such officer. See
Sec. 922(s)(1)(A).
6. Sec. 922(s)(8) provides that "the term 'chief law
enforcement officer' means the chief of police, the sheriff, or an
equivalent officer or the designee of any such individual." Pursuant
to Arizona State law, Sheriff Mack is the chief law enforcement officer
of Graham County, Arizona.
7. 18 U.S.C. Sec. 922(s) imposes three duties on Sheriff Mack.
The provisions setting forth those duties are as follows:
a. "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 State and local
recordkeeping systems are available and in a national system designated
by the Attorney General." Sec. 922(s)(2) (emphasis added).
b. "Unless the chief law enforcement officer to whom a
statement is transmitted . . . determines that a transaction would
violate Federal, State, or local law--(i) the officer shall, within 20
business days after the date the transferee made the statement on the
basis of which the notice was provided, destroy the statement, any
record containing information derived from the statement, and any
record created as a result of the notice required . . . ." Sec.
922(s)(6)(B) (emphasis added).
c. "If a chief law enforcement officer determines that
an individual is ineligible to receive a handgun and the individual
requests the officer to provide the reason for such determination, the
officer shall provide the reasons to the individual in writing within
20 business days after receipt of the request." Sec. 922(s)(6)(C)
(emphasis added).
8. Sheriff Mack is subject to criminal penalties for each and
every failure to carry out the above duties. Sec. 924(a)(5) provides
generally: "Whoever knowingly violates subsection (s) . . . of section
922 shall be fined not more than $1,000, imprisoned for not more than 1
year, or both." Accordingly, Sheriff Mack is subject to criminal
prosecution if he fails to carry out the above federally-imposed
duties.
9. Neither P.L. 103-159 nor any other federal law provides any
funding, compensation, or other assistance to enable the chief law
enforcement officers to carry out the above duties. The costs of
obedience to the above unfunded federal mandates are being and will be
borne entirely by each respective chief law enforcement officer or by
his department.
10. The duties of Sheriff Mack under state law are specific
and defined. These are set forth in Arizona Revised Statutes Sec.
11-441(A), which provides in pertinent part:
The sheriff shall:
(1) Preserve the peace.
(2) Arrest and take before the nearest magistrate for
examination all persons who attempt to commit or have committed a
public offense.
(3) Prevent and suppress all affrays, breaches of the
peace, riots, and insurrections which may come to the knowledge of the
sheriff.
In addition, the sheriff must (4) attend and obey all courts, and (5)
keep the jail. Sec. 11-441 provides that the sheriff must conduct
"search or rescue operations involving the life or health of any person
. . . ."
11. Sheriff Mack has the legal duty to expend the resources of
his office on the above activities and not to divert the human and
financial resources of the sheriff's office to meeting the research,
notification, and justification requirements of Sec. 922(s). Sheriff
Mack has presently one detective, and nine deputies to patrol his
county and provide 24-hour law enforcement to over 28,000 residents
living in a 4,500 square mile area. Federal authorities have no
constitutional power to order him upon pain of imprisonment either to
perform uncompensated labor himself, or to reassign his limited county
personnel to the administration of a Federal program. He is not engaged
in interstate commerce, nor affecting commerce in a way subject to
Federal pre-emption.
12. Sheriff Mack's budget has no provision for the
administration of the federal program at issue, and he has no legal
authorization to expend funds for that program or any other expense for
activities which are not duties imposed by State law. Sheriff Mack and
other county officials are personally liable for expenditures not
authorized by the Arizona legislature.
13. Article 1, section 26 of the Arizona Constitution
provides: "The right of the individual citizen to bear arms in defense
of himself or the State shall not be impaired . . . ." Pursuant to
this reservation of rights, handguns are purchased regularly by
residents of Graham County, Arizona, from federally licensed dealers
for hunting, target shooting, and lawful protection.
14. Sheriff Mack's obedience to Sec. 922(s) will cause him to
sustain irreparable harm. He will either be forced to perform in
person without compensation, or will be forced to reassign his county
employees to the task. In either event, he will be exposed to personal
civil liability as a price of avoiding criminal liability, and will be
impaired in his legal duty to enforce the laws of Arizona and to
protect the citizens of his county from criminal harm.
15. Sheriff Mack cannot determine the meaning and limits of
Sec. 922(s)(2)'s requirement that he "make a reasonable effort" to
ascertain whether receipt or possession of a handgun would be in
violation of "the law," or what or how much "research" in "whatever
State and local recordkeeping systems are available" is required, or
the extent of the required research into "a national system designated
by the Attorney General." Manual recordkeeping systems, including
courthouse and medical files, are "available" in various places
throughout the State of Arizona, at widely varying distances.
16. To determine whether each and every purchaser is
prohibited under Arizona law alone will be an onerous task. Arizona
Revised Statutes Sec. 13-3102(A)(3) makes it an offense for a
"prohibited possessor" to possess a deadly weapon. Sec. 13-3101(1)
defines a deadly weapon to include a firearm. Sec. 12-3101(5) provides
in part:
"Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to
himself or to others pursuant to court order under the provisions of
Sec. 36-540, and whose court ordered treatment has not been terminated
by court order.
(b) Who has been convicted within or without this state
of a felony involving violence or possession and use of a deadly weapon
or dangerous instrument and whose civil rights have not been restored.
Plaintiff is unaware of any automated records of persons found to
constitute a danger to themselves or others or of persons whose civil
rights have or have not been restored. The records must be sought out
in each courthouse of each county. Plaintiff cannot determine whether
records of the Superior Courts of Maricopa, Santa Cruz or Yuma Counties
are "available" to him within the meaning of the law. Moreover, under
Arizona law, many persons have civil rights restored automatically,
depending upon the sentence and the person's past record, without the
necessity of a judicial determination.
17. A far more serious burden is imposed on Sheriff Mack if he
must research records to ascertain whether receipt or possession of a
handgun would violate federal law as well. 18 U.S.C. Sec. 922(g)
provides:
It shall be unlawful for any person--
(1) who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any
controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802);
(4) who has been adjudicated as a mental defective or
who has been committed to a mental institution;
(5) who, being an alien, is illegally or unlawfully in
the United States;
(6) who has been discharged from the Armed Forces under
dishonorable conditions; or
(7) who, having been a citizen of the United States,
has renounced his citizenship; to . . . possess in or affecting
commerce, any firearm . . .; or to receive any firearm . . . which has
been shipped or transported in interstate or foreign commerce.
18. A search of all "available" records to determine whether a
person would be prohibited from possession or receipt of a handgun by
reason of all of the above could require hours of uncompensated labor
for each and every applicant. Merely to determine whether a person has
been convicted of a crime punishable by imprisonment for a term
exceeding one year, as that term is defined in 18 U.S.C. Sec.
921(a)(2), one would have to search arrest, conviction, and appellate
records as well records concerning pardons, expungements, and
restorations of civil rights, since a beneficiary of the latter
proceedings is excluded from the definition. Medical, hospital, drug
treatment, and police investigatory records could be searched to
determine if a person is an unlawful user of or addicted to a
controlled substance. Medical and judicial records could be searched
to determine if a person has been adjudicated as a mental defective or
committed to a mental institution. Military, FBI and State Department
records of fugitives, dishonorable dischargees, and ex-citizens could
be searched. Should the result be affirmative, records must be
searched to determine whether the handgun to be purchased had ever been
shipped or transported in interstate or foreign commerce or affected
commerce, so as to bring it within the scope of the Federal
restrictions. Plaintiff is required to inquire into all of these or
alternately to speculate at his risk whether his failure might be
considered failure to conduct a "reasonable" investigation of whether
the purchaser is precluded from buying.
19. In addition to the above, Sec. 922(h) provides:
It shall be unlawful for any individual, who to that
individual's knowledge and while being employed for any person
described in any paragraph of subsection (g) of this section, in the
course of such employment--
(1) to receive, possess, or transport any firearm . . .
in or affecting interstate or foreign commerce; or
(2) to receive any firearm . . . which has been shipped
or transported in interstate or foreign commerce.
20. The chief law enforcement officer must thus search records
not only of whether a prospective purchaser is prohibited under Sec.
922(g), but also of that person's employment and employer.
21. In addition to the above, Sec. 922(n) provides:
It shall be unlawful for any person who is under
indictment for a crime punishable by imprisonment for a term exceeding
one year to . . . receive any firearm . . . which has been shipped or
transported in interstate or foreign commerce.
22. The chief law enforcement may thus be required to search
records of ongoing indictments as well as records of whether a specific
handgun has been shipped in interstate or foreign commerce.
23. In addition to the above, federal law contains various
other provisions making the receipt or possession of certain handguns a
violation, e.g., 18 U.S.C. Sec. 922(j) (stolen firearm), (k) (firearm
which has had serial number removed), (l) (firearm imported in
violation of chapter 44 of 18 U.S.C.), and (p) (firearm not detectable
with certain devices). Sheriff Mack does not have the resources to
make a reasonable effort to research whatever records are available to
determine whether receipt or possession of every handgun sought to be
sold from a licensed dealer would violate one of these provisions.
24. To undertake the determinations required by Sec. 922(s)
would require Sheriff Mack to establish a program which is not within
the functions legally delegated to his office by Arizona law, nor
within the budget assigned him. The Federal government has provided no
resources or assistance to carry out these functions, but has instead
criminalized, by sanctions applicable to him personally, any failure to
carry out its program. Sheriff Mack is thus required either to
personally perform the labor without compensation or to divert his
employees and budgetary authority without authority of law.
COUNT ONE
25. Paragraphs 1-24 are realleged and incorporated herein by
reference.
26. 18 U.S.C. Sec. 922(s), which seeks to impose duties on
individuals who are, like Sheriff Mack, employed as State or local law
enforcement authorities, is unconstitutional as beyond the powers
delegated to Congress in Article 1, Sec. 8 of the United States
Constitution, and as in violation of the Tenth Amendment, which
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." Plaintiff is not engaged in
interstate commerce, nor affecting commerce, within the scope of the
Congressional power to regulate or pre-empt.
27. The imposition of the unconstitutional duties imposed by
Sec. 922(s) impairs the performance of Sheriff Mack's lawful duties,
forces him as an individual to choose between exposure to criminal
liability or to personal civil liability, requires him as a county
official either to perform duties without authority or to delegate them
to other county employees against his and their will. This causes and
will continue to cause irreparable harm to him.
28. The unconstitutional portions of Sec. 922(s) are the
foundation for that entire subsection and are thus not severable, with
the result that Sec. 922(s) is entirely unconstitutional.
COUNT TWO
29. Paragraphs 1-24 are realleged and incorporated herein by
reference.
30. A chief law enforcement officer, including Sheriff Mack,
has no way to determine the meaning of the vague terms set forth in 18
U.S.C. Sec. 922(s)(2), that the officer shall make "a reasonable effort
to ascertain" whether receipt or possession would be in violation of
"the law," including "research" into whatever State and local
"recordkeeping systems" are "available."
31. A wide variety of records exist at the federal, State, and
local levels which are relevant to ascertaining whether receipt or
possession of a handgun would be in violation of the law. These
records include arrest, conviction, and post-conviction (e.g.,
restoration of civil rights) records; medical, hospital, and judicial
records regarding mental commitments and adjudications; drug treatment
center and police investigatory records about possible drug users;
military and immigration records; employment records relevant to Sec.
922(h); and even records regarding whether the specific handgun to be
purchased has been shipped or transported in interstate commerce.
32. Sheriff Mack must guess at his peril how much effort and
expense is necessary to a "reasonable" investigation; whether "the law"
includes not only State law, but also federal law, which Sheriff Mack
has no authority to interpret or legal staff to research; whether
"recordkeeping systems" simply means records of all kinds (including
records accessible only by manual searching) or some undefined "system"
of records; and how much staff time or driving miles make records
"available."
33. To impose criminal sanctions on failure to meet this vague
standard of reasonableness and availability is unconstitutional as in
violation of the Fifth Amendment to the United States Constitution.
34. Sec. 922(s)(2) is the heart of Sec. 922(s) and is thus not
severable, with the result that Sec. 922(s) is entirely
unconstitutional.
COUNT THREE
35. Paragraphs 1-24 are realleged and incorporated herein by
reference.
36. 18 U.S.C. Sec. 922(s)(2)'s requirement that Plaintiff make
all "reasonable effort," including specified research, to determine
whether each purchaser of a handgun in the entire of Graham County is
barred from purchase will require substantial and continuing effort and
labor on his part.
37. 18 U.S.C. Sec. 922(s)(2) makes no provision for
compensation or salary; instead it simply provides that any person who
fails to comply with its mandates shall be liable to a thousand dollar
fine and up to a year's imprisonment.
38. By ordering Plaintiff, upon pain or fine or imprisonment,
to devote substantial labor and effort to administration of a program
without compensation, Sec. 922(s)(2) imposes involuntary servitude upon
Plaintiff, in violation of the Thirteenth Amendment to the Constitution
of the United States.
39. The exaction of uncompensated and involuntary servitude
constitutes irreparable harm to Plaintiff.
40. In the alternative, Sec. 922(s) places Plaintiff in the
dilemna of choosing between providing uncompensated and involuntary
servitude as precluded by the Thirteenth Amendment, or foregoing his
right to run for and hold elective office, guaranteed by the First,
Fifth and Tenth Amendments.
WHEREFORE, plaintiff Sheriff Richard Mack prays that the Court:
1. Enter a declaratory judgement that 18 U.S.C. Sec. 922(s) is
unconstitutional as beyond the powers delegated to Congress in Article
1, Sec. 8 of the United States Constitution and as in violation of the
Tenth and Thirteenth Amendments; and that Sec. 922(s)(2) is
unconstitutionally vague and violative of the due process clause of the
Fifth Amendment.
2. Enter a preliminary and permanent injunction against the
enforcement of 18 U.S.C. Sec. 922(s).
3. Award to Plaintiff his attorney's fees and costs.
4. Grant such other and further relief as may be proper.
Respectfully submitted this ___ day of April, 1994
_________________________________
Stephen P. Halbrook David T. Hardy
10605 Judicial Dr., B-3 Suite 265
Fairfax, Virginia 22030 8987 East Tanque Verde
(703) 385-8610 Tucson, Arizona 85749
Counsel for Plaintiff (602) 749-0241
State Bar No. 4288
Counsel for Plaintiff
__
Copy served
this ___ day of April, 1994:
By hand delivery to:
Don Overall
Assistant U.S. Attorney
110 S. Church
Tucson, AZ 85701
By overnight mail to:
Michael Sitcov
Civil Division
U.S. Dep't of Justice
Washington D.C. 20530