Government’s Reply

Case 2:16-cv-00578-JAD-PAL

Document 42

Filed 12/16/16

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JOHN R. TYLER
Assistant Branch Director
DANIEL RIESS
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20530
Telephone: (202) 353-3098
Email: Daniel.Riess@usdoj.gov Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

BARRY MICHAELS, ) ) Plaintiff, ) ) v. ) ) LORETTA E. LYNCH, Attorney General of ) the United States, in her official capacity; and ) THOMAS E. BRANDON, Deputy Director, ) Bureau of Alcohol, Tobacco, Firearms & ) Explosives, in his official capacity, )

Defendants. ) )

Defendants Loretta E. Lynch, Attorney General of the United States, in her official capacity; and Thomas E. Brandon, Deputy Director of the Bureau of Alcohol, Tobacco, Firearms & Explosives, submit this reply to Plaintiff Barry Michaels’ response (ECF No. 35) to Defendants’ Motion to Dismiss (ECF No. 19) and response to Plaintiff’s Motion to Amend Complaint (ECF No. 36).
I. INTRODUCTION

Defendants’ opening brief explained that Plaintiff’s complaint should be dismissed in its entirety for lack of Article III standing. Because Nevada state law prohibits felons from possessing firearms, Plaintiff is unable to demonstrate that a favorable ruling on his behalf regarding the federal prohibition against felons possessing firearms is likely to redress his alleged injury, as is required under Article III of the Constitution in order for Plaintiff to

Case No: 2:16-cv-00578-JAD-PAL

REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

AND
) RESPONSE TO MOTION TO AMEND

COMPLAINT

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establish standing. The Court also lacks jurisdiction over the first two counts of Plaintiff’s complaint because he has failed to identify an applicable waiver of sovereign immunity by which the United States has consented to suit.

Plaintiff’s response to Defendants’ opening brief essentially concedes that the Court lacks subject matter jurisdiction over the complaint, and asks the Court for leave to amend the complaint in order to cure these jurisdictional deficiencies. However, the Court should deny this request for being futile. Even if Plaintiff could overcome these jurisdictional bars by adding the Attorney General of the State of Nevada as a party to this case and by identifying the Administrative Procedure Act as the applicable waiver of sovereign immunity, the fact remains that every count of the complaint (as repeated in the proposed amended complaint) fails to state a claim on which relief can be granted.

Thus, as Defendants have previously demonstrated, the heart of the complaint, Plaintiff’s Second Amendment claim, is legally invalid because the Ninth Circuit has squarely held that felons such as Plaintiff do not fall within the scope of that Amendment’s protection. While Plaintiff argues that Ninth Circuit decisions on this point do not comport with constitutional principles, this Court should decline Plaintiff’s invitation for it not to comply with binding circuit precedent. Established law similarly dooms Counts I and II of the complaint in which Plaintiff attempts to fashion a statutory claim based on prefatory language from the firearms statute in question. Contrary to Plaintiff’s argument, there is no question that 18 U.S.C. § 922(g)(1) applies to Plaintiff and bars him from possessing a firearm. Plaintiff’s Fifth Amendment due process claim also fails as a matter of law because Plaintiff has failed to identify a protected liberty or property interest, and because in any event, due process does not require the government to provide a hearing where the results of such a hearing would have no bearing on whether the firearms prohibition at issue applies to him. And the last two counts of the complaint have no merit because the federal restriction on firearms possession by felons does not violate the constitutional prohibitions against bills of attainder or cruel and unusual punishment. The Court should therefore dismiss the complaint, and deny leave to amend the complaint as futile.

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II.

ARGUMENT

A. The Court Should Dismiss Plaintiff’s Complaint for Lack of Subject Matter Jurisdiction.

1. Plaintiff Essentially Concedes That He Lacks Standing to Pursue the Claims Alleged in the Complaint Unless It Is Amended.

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As explained in Defendants’ opening brief, the complaint should be dismissed in its entirety because Plaintiff has not satisfied the redressability requirement of Article III standing. Def. Mot. to Dismiss (“Def. Mot.”) at 6-8 [ECF No. 19]. Specifically, because Nevada law independently prohibits possession of firearms by felons, granting Plaintiff his requested relief by invalidating 18 U.S.C. § 922(g)(1) would not redress his alleged injury (the inability to possess a firearm) because Nevada law would continue to bar his possession of a firearm. Id. at 7 (citing authorities). Therefore, the Court lacks subject matter jurisdiction over Plaintiff’s claims.

Instead of contesting this conclusion, Plaintiff essentially concedes that Defendants are correct that Plaintiff has no standing to sue. In lieu of challenging this conclusion, Plaintiff moves for leave to amend his complaint to correct this jurisdictional deficiency by adding the Attorney General of Nevada as a defendant in this action. Because Plaintiff concedes that he lacks standing to pursue the claims alleged in the present complaint, at a bare minimum, the Court should dismiss the complaint for lack of subject matter jurisdiction.

Furthermore, the Court should deny Plaintiff leave to amend the complaint because amendment would be futile. “The general rule that parties are allowed to amend their pleadings does not extend to cases in which any amendment would be an exercise in futility or where the amended complaint would also be subject to dismissal.” Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (citation and internal punctuation omitted). “Futility alone can justify a court’s refusal to grant leave to amend.” Id. (citation omitted); see also Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (“[A] district court does not err in denying leave to amend where the amendment would be futile.”) (citation and internal punctuation omitted).

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Here, even if Plaintiff did possess standing to sue, all six counts of his complaint warrant dismissal for failure to state a valid claim. See Def. Mot. at 8-17 and infra. Consequently, Plaintiff’s proposed amendment to his complaint would be futile, and the Court should deny leave to amend. See Novak, 795 F.3d at 1020 (concluding that “amendment would be an exercise in futility because even if Plaintiffs established standing, they would still fail to state a claim”) (footnote omitted).

2. Plaintiff Has Also Essentially Conceded That the Complaint Fails to Identify a Valid Waiver of Sovereign Immunity to Maintain Counts I and II.

Defendants’ opening brief explained that Plaintiff cannot maintain the first two counts of his complaint because, inter alia, no waiver of sovereign immunity applies to these two counts. Def. Mot. at 8-9. Again, rather than contesting this conclusion, Plaintiff instead moves for leave to amend the complaint to identify the Administrative Procedure Act as the applicable waiver of sovereign immunity in an attempt to cure this jurisdictional deficiency. As explained below, however, leave to amend would be futile because these counts fail to state a claim on which relief can be granted. The Court, accordingly, should dismiss these two counts for lack of subject matter jurisdiction and deny Plaintiff’s motion to amend his complaint.

B. None of Plaintiff’s Claims Are Valid as a Matter of Law.

1. Plaintiff Cannot State a Valid Claim Under Count III Because the Ninth Circuit Has Held That Felons Do Not Fall Within the Protections of the Second Amendment.

As the Ninth Circuit has unmistakably held, felons such as Plaintiff fall outside the protections of the Second Amendment. See United States v. Phillips, 827 F.3d 1171, 1174 (9th Cir. 2016).1 The Ninth Circuit “held in [United States v.] Vongxay[, 594 F.3d 1111, 1115 (9th Cir. 2010,] that ‘felons are categorically different from the individuals who have a fundamental right to bear arms,’ and . . . accordingly upheld 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.” Phillips, 827 F.3d at 1174; see also Van Der Hule v. Holder, 759 F.3d 1043, 1050-51 (9th Cir. 2014) (relying on Vongxay to uphold Section § 922(g)(1) as constitutional). Like Plaintiff, the defendant in Phillips argued that permitting his “non-violent”

1 Plaintiff’s opposition brief abandons Count III’s additional reliance on substantive due process principles. See Pl. Opp. at 11.

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crime – misprision of a felony – to serve as a predicate for Section 922(g)(1)’s firearms prohibition violated the Second Amendment. Phillips, 827 F.3d at 1173. But the Ninth Circuit rejected this argument, and squarely held that “[o]ur decision in Vongxay forecloses Phillips’s argument.” Id. at 1174. As shown in Defendants’ opening brief, these holdings by the Ninth Circuit equally foreclose Plaintiff’s similar claim that as applied to him, Section 922(g)(1) violates the Second Amendment. Def. Mot. at 10-12.

Plaintiff offers two arguments in response, neither of which is persuasive. Pl. Opp. at 12-16. First, Plaintiff expresses his disagreement on policy grounds with Phillips and Vongxay, as well as Ninth Circuit decisions relied on in their holdings, such as United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013), and United States v. Younger, 398 F.3d 1179 (9th Cir. 2005). Id. at 12-15. Regardless of Plaintiff’s disagreement with the reasoning of the Ninth Circuit in reaching its holdings in these cases, however, this Court remains bound by those holdings. See Hart v. Massanari, 266 F.3d 1155, 1175 (9th Cir. 2001) (“A district court bound by circuit authority. . . has no choice but to follow it, even if convinced that such authority was wrongly decided”). Second, Plaintiff unsuccessfully attempts to distinguish the present case from Phillips. Pl. Opp. at 15-16. While it is correct that the factual background portion of Phillips related that the defendant in that case had, inter alia, both resisted arrest and fled from police, the Ninth Circuit neither grounded its holding in those facts nor limited that holding to persons to whom these particular factual conditions applied. Instead, the Court of Appeals reiterated the holding from Vongxay that “‘felons are categorically different from the individuals who have a fundamental right to bear arms,’” and explained that its “decision in Vongxay forecloses Phillips’s argument” that permitting a “non-violent” crime to “serve as a predicate for his
§ 922(g)(1) conviction violates the Second Amendment.” Phillips, 827 F.3d at 1173, 1174 (quoting Vongxay, 594 F.3d at 1115); see also id. at 1174 n.1 (rejecting argument that “Vongxay is not good law”). That holding from Phillips applies here, and equally forecloses Plaintiff’s claim that Section 922(g)(1) violates the Second Amendment as applied to him.

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2. Plaintiff Cannot Maintain a Statutory Claim That 18 U.S.C.
§ 922(g)(1) Does Not Apply to Non-Violent Felons, When the Ninth Circuit Has Plainly Held Otherwise.

Defendants explained in their opening brief that Plaintiff did not identify an applicable waiver of federal sovereign immunity with respect to Counts I and II, Def. Mot. at 8-9, and that these two counts furthermore failed to state valid claims. Id. at 9-10. In response, Plaintiff seeks leave to amend his complaint to specify that the waiver contained in the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), applies to these claims. However, amendment would be futile because even if the APA provides an applicable waiver of sovereign immunity, Plaintiff fails to state claims on which relief can be granted.

As explained above, the Ninth Circuit has clearly held that 18 U.S.C. § 922(g)(1) applies to non-violent felons, and has upheld Section 922(g)(1) against a Second Amendment challenge on that basis. Plaintiff, however, attempts to sidestep this clear holding by relying on prefatory language from the Gun Control Act of 1968. In specific part, Count I of the complaint seeks a declaration that “the implicit purpose” of the Act “was to prevent violent crimes,” Compl. ¶ 26 (emphasis in original), and Count II seeks a declaration that Plaintiff “enjoy[s] the same presumption of being (a) ‘law-abiding’ citizen(s) as any non-convicted person(s) are.” Id. ¶ 29 (emphasis in original). In asking for this specific relief, Plaintiff relies on a statement of congressional purpose issued when Congress enacted the Gun Control Act. See Compl. ¶¶ 21-29 (quoting and relying on Pub. L. No. 90-618, § 101, 82 Stat. 1213-14, which states in relevant part: “The Congress hereby declares that the purpose of this title is to provide support to Federal, State, and local law enforcement in their fight against crime and violence, and it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law- abiding citizens with respect to the acquisition, possession, or use of firearms . . . .”). However, this cited text is not part of the Gun Control Act itself, see 18 U.S.C. § 921 et seq., but merely a preamble or “statement of Congress’ purpose.” United States v. Lam, 20 F.3d 999, 1001 (9th Cir. 1994). As Defendants have shown, such a preamble or congressional declaration of purpose creates no legal rights and has no legal effect. Def. Mot. at 10 (citing Montes v. Bank of Am. NA, No. 2:13-cv-00660, 2014 WL 1494234, at *13 (D. Nev. Apr. 15, 2014) (dismissing claim based on provision of U.S. Code carrying the title “Congressional findings and declaration of purpose,”

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because “[t]here is simply no statutory basis for a cognizable cause of action” for such a provision)). Because no valid cause of action exists to enforce a provision that creates no rights and has no legal effect, Counts I and II have no legal validity.

Plaintiff’s proposed amendments to his complaint are of no help to him at all. The amended complaint would combine these two counts as a new Count I, and include the phrase “Violation of Second Amendment” under the heading of this new count. Compare Compl.
¶¶ 21-29 (Counts I & II) with Pl. Proposed Am. Compl. [ECF No. 35-1] ¶¶ 24-40 (new Count I). But the Second Amendment does not “entitle[]” Plaintiff to the relief he seeks under Counts I and II: namely, a “declaration by the Court” that (1) “the implicit purpose(s) of the [Gun Control Act]” was “to prevent violent crimes,” Compl. ¶ 26; and (2) Plaintiff “enjoy[s] the same presumption of being [a] “law-abiding” citizen[] as any non-convicted person [is].” Id. ¶ 29 (emphasis in original). Rather, as explained above, the Ninth Circuit has unmistakably held that the Second Amendment does not apply to felons such as Plaintiff, and Plaintiff cannot evade this holding by seeking a declaratory judgment to the contrary. Because Counts I and II fail to state valid claims, amending the complaint to identify a sovereign immunity waiver would be futile because these counts are independently subject to dismissal under Fed. R. Civ. P. 12(b)(6). See McCartin v. Norton, 674 F.2d 1317, 1319 (9th Cir. 1982) (while the APA “does waive the sovereign immunity of the United States for purposes of nonmonetary relief, it does not of itself create the substantive right upon which a claim for retroactive relief can be based”). Therefore, the Court should dismiss these counts for failure to state a claim on which relief can be granted, and deny leave to amend the complaint as futile.

3. Count IV Does Not State a Valid Claim Because Plaintiff Fails to Identify a Protected Liberty or Property Interest, and Because Due Process Does Not Require a Hearing to Address a Fact Not Relevant to the Substantive Inquiry Here.

Count IV of the complaint asserts a purported “procedural due process” claim under the Fifth Amendment. Compl. ¶¶ 41-51. However, Plaintiff has failed to demonstrate either “a deprivation of a constitutionally protected liberty or property interest” or a “denial of [] procedural protections,” the two elements required to maintain such a claim. Brewster v. Bd. of

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Education of Lynwood, 149 F.3d 971, 982 (9th Cir. 1998). As explained above and in Defendants’ opening brief, because Plaintiff has been convicted of a felony, he can have no constitutionally protected interest in possessing a firearm. Def. Mot. at 12-13. Moreover, as that brief further demonstrated, Count IV also fails because Plaintiff has not identified any constitutionally-required procedural due process that he has been denied. Id. at 13-15. Where the requirements of a law protecting public safety “turn on an offender’s conviction alone – a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest,” procedural due process does not require an individualized hearing on dangerousness. Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 7 (2003). And applying Doe, courts have easily concluded that felons may be restricted from firearms possession without individualized dangerousness hearings. See Def. Mot. at 13-14 (citing cases). “[D]ue process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme,” Doe, 538 U.S. at 4, and here, the material fact is whether Plaintiff has been convicted of a crime punishable by imprisonment of more than one year. Because Plaintiff has conceded that he has been convicted of such a crime, his procedural due process claim cannot withstand a motion to dismiss for failure to state a valid claim.

Plaintiff’s opposition brief fails to respond meaningfully to these arguments for dismissal. Instead, Plaintiff simply reiterates that he believes, contrary to binding caselaw, that the Second Amendment guarantees him the right to possess a firearm, despite the fact that he is a felon. Because the Ninth Circuit has expressly held to the contrary, this argument holds no weight.

4. Count V Fails to State a Valid Claim Because Section 922(g)(1) Is Not a Bill of Attainder.

Defendants’ opening brief demonstrated that Count V of the complaint – alleging that as applied to Plaintiff, Section 922(g)(1) constitutes a bill of attainder – has no merit. Def. Mot. at 15-16. “Section 922(g)(1) is not a bill of attainder because it does not determine guilt or remove the protections of a trial.” United States v. Stauffer, 156 F.3d 1241 (9th Cir. 1998) (table); see also Def. Mot. at 16 (citing other cases rejecting claims that Section 922(g)(1)

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constitutes a bill of attainder). The Ninth Circuit has also held that a predecessor statute to Section 922(g)(1) was not a bill of attainder, see Williams v. United States, 426 F.2d 253, 255 (9th Cir. 1970), and that analogous provisions of the Gun Control Act prohibiting the sale of firearms to, or the shipping or transportation of firearms by, persons convicted of a crime punishable by imprisonment exceeding one year do not constitute bills of attainder. United States v. Munsterman, 177 F.3d 1139, 1142 (9th Cir. 1999).

In response, Plaintiff criticizes the Ninth Circuit’s observation in Munsterman that the analogous Gun Control Act provisions at issue in that case were “reasonably calculated to achieve a nonpunitive public purpose, i.e., to keep firearms out of the hands of persons who, having been indicted for felonies, may have a somewhat greater likelihood than other citizens to misuse firearms,” 177 F.3d at 1142 (citation and internal punctuation omitted), because the Ninth Circuit did not utilize empirical evidence to support that observation. Pl. Opp. at 18. However, Plaintiff cites no authority suggesting that a statute must rely on empirical evidence in order not to be considered to be a bill of attainder, and Defendants are aware of none. It is well settled that in other contexts, the choice of the legislature as embodied in a statute need not cite empirical evidence. See, e.g., Heller v. Doe, 509 U.S. 312, 320 (1993) (explaining that under rational-basis review, “a State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification”; that “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data”; and that “a statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it”) (citations and internal punctuation omitted); Waugh v. Nev. State Bd. of Cosmetology, 36 F. Supp. 3d 991, 1014 (D. Nev. 2014) (in analyzing a substantive due process claim, a court “cannot overturn a statute on the basis that no empirical evidence supports the assumptions underlying the legislative choice”) (citation and internal punctuation omitted); see also United States v. Dowis, 644 F. App’x 882, 883 (11th Cir. 2016) (rejecting claim that no rational basis existed for Section 922(g)(1) to restrict firearms possession by both violent and non-violent felons). Plaintiff, accordingly, fails to state a claim on which relief can be granted in Count V of the

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complaint.

Finally, Count VI of the complaint alleges that as applied to Plaintiff, Section 922(g)(1) violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Compl. ¶¶ 60- 63. This allegation is meritless because “Section 922(g)(1) does not punish a person solely for his or her status as a convicted felon; the statute does not empower federal law enforcement officials to arrest a person merely because that person was once convicted of a felony. Rather, the statute is triggered only when the felon commits the volitional act of possessing a firearm that has traveled in interstate commerce.” United States v. Jester, 139 F.3d 1168, 1170 (7th Cir. 1998). The Court should “therefore reject [Plaintiff’s] Eighth Amendment claim.” Id. at 1171. III. CONCLUSION

For the reasons stated above and in Defendants’ opening brief, Defendants respectfully request that the Court dismiss Plaintiff’s complaint for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted, and deny Plaintiffs’ motion for leave to amend his complaint as futile.

5. Count VI Does Not State a Valid Claim Because 18 U.S.C. § 922(g)(1) Does Not Violate the Constitutional Prohibition Against Cruel and Unusual Punishments.

Dated this 16th day of December 2016.

JOHN R. TYLER
Assistant Branch Director
Civil Division, Federal Programs Branch

/s/ Daniel Riess

DANIEL RIESS Trial Attorney

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PROOF OF SERVICE

I hereby certify that this REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AND RESPONSE TO MOTION TO AMEND COMPLAINT was served this date on all parties via the Court’s Electronic Case File system, unless specified otherwise below.

Dated this 16th day of December 2016.

/s/ Daniel Riess

DANIEL RIESS Trial Attorney