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 §922(s). §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, §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. §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 §922(s)(1)(A).

6. §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. §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." §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 . . . ." §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." §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. §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 §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. §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 §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 §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 §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 §13-3102(A)(3) makes it an offense for a "prohibited possessor" to possess a deadly weapon. §13-3101(1) defines a deadly weapon to include a firearm. §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 §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. §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. §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, §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 §922(g), but also of that person's employment and employer.

21. In addition to the above, §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. §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 §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. §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, §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 §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 §922(s) are the foundation for that entire subsection and are thus not severable, with the result that §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. §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 §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. §922(s)(2) is the heart of §922(s) and is thus not severable, with the result that §922(s) is entirely unconstitutional.

COUNT THREE

35. Paragraphs 1-24 are realleged and incorporated herein by reference.

36. 18 U.S.C. §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. §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, §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, §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. §922(s) is unconstitutional as beyond the powers delegated to Congress in Article 1, §8 of the United States Constitution and as in violation of the Tenth and Thirteenth Amendments; and that §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. §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