Government’s Motion To Dismiss

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

Document 19

Filed 07/25/16

Page 1 of 16

1 JOHN R. TYLER Assistant Branch Director



  1. 4  20 Massachusetts Ave., N.W. Washington, D.C.20530
  2. 5  Telephone: (202) 353-3098 Email: Daniel.Riess@usdoj. eov

Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch

6 AttorneysforDefendants 7




13 LORETTA E. LYNCH, Attorney General of the

United States, in her official capacity; and THOMAS E. BRANDON, Deputy Director, Bureau of Alcohol, Tobacco, Firearms &

15 Explosives, in his official capacity,

23 Dated: July 25,2016. 24

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Pursuant to Fed. R. Civ. P. 12(bxl) and 12(b)(6), 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, move to dismiss Plaintiff s complaint. In accordance with Local Civil Rule 7-2(a), this motion is supported by the following memorandum of points and authorities.

Respecti11ly sub■litted, JOI‐IN R.TYLER

Assistant Branch Director, Federal Programs




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Plaintiff, a convicted felon, seeks to challenge the constitutionality of 18 U.S.C. $ 922(g)(l), which prohibits firearms possession by persons convicted of crimes punishable by more than one year’s imprisonment. The Court, however, should dismiss the complaint in its entirety for lack of Article III standing. Because Nevada state law prohibits felons from possessing frrearms, Plaintiff cannot demonstrate that a favorable ruling is likely to redress his alleged injury, as is required under Article III in order for Plaintiff to establish standing. The

9 Court furthermore lacks jurisdiction over the first two counts of Plaintiff s complaint because he

  1. 10  has not identified an applicable waiver of sovereign immunity by which the United States has
  2. 11  consented to suit. It is black letter law that the United States may not be sued without its consent
  3. 12  and that the existence of consent is a prerequisite for jurisdiction.
  4. 13  Additionally, even if Plaintiff could overcome these jurisdictional bars, which he cannot,
  5. 14  Plaintiff also fails to state claims on which relief can be granted, which requires the dismissal of
  6. 15  the complaint in its entirety under Fed. R. Civ. P. l2(bx6). Counts I and II, asserted under the




Declaratory Judgment Act, do not state a valid claim because that Act does not provide Plaintiff 17 with a private right of action. Count III, which asserts a Second Amendment claim, is not legally

valid because the Ninth Circuit has held that felons such as Plaintiff do not fall within the scope

  1. 19  of that Amendment’s protection. Count fV, which asserts a due process claim, also fails as a
  2. 20  matter of law because Plaintiff identif,res no protected liberty or property interest, and in any
  3. 21  event, due process does not require the government to provide a hearing where the results of such
  4. 22  a hearing would have no bearing on whether the firearms prohibition at issue applies to him.

Finally, Counts V and VI have no merit because the federal prohibition on firearms possession by

  1. 24  felons does not violate the constitutional prohibitions against bills of attainder or cruel and
  2. 25  unusual punishment.

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A. 18 U.S.C. S e22(gX1)

“Enacted in its earliest incarnation as the Federal Firearms Act of 1938, [8 U.S.C. $ 922(dQ\ initially covered those convicted of a limited set of violent crimes such as murder, rape, kidnapping, and burglary, but extended to both felons and misdemeanants convicted of qualifying offenses.” United States v. Booker, 644 F .3d 12, 24 ( I st Cir. 201 I ), cert. denied, t32 S. Ct. 1538 (2012) (citations omitted); see Federal Firearms Act, ch. 850, $$ 1(6), 2(0, Pub. L. No. 75-785, 52 Stat. 1250,1250-51 (1938). In 1961, Congress amended this Act to prohibit “any person . . . convicted of a crime punishable by imprisonment for a term exceeding one year” from “receivfing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” See AnAct to Strengthen the Federal Firearms Act, Pub. L. No. 87-342,75 Stat.757 (1961); H.R. Rep. No. 87-1202, at 4-5 (1961). Congress introduced the amendment at the specific request of the Attorney General as “an integral part of an anticrime legislative program” in response to the “exploding crime rate” of recent years. H.R. Rep. No. 87-1202, at 2. Its purpose was to “better assist local authorities in the common assault on crime” and to “make it more difficult for the criminal elements of our society to obtain firearms.” 1d.

These prohibitions are codified at l8 U.S.C. $ 922(g)(1), which, as amended, prohibits “any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” from “possess[ing] in or affecting commerce, any firearm or ammunition.” Excluded from “[t]he term ‘crime punishable by imprisonment for a term exceeding one year”‘ are “State offense[s] classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” l8 U.S.C. $ 921(aX20)(B).’

B. PlaintifPs Conviction

In 1997, a criminal indictment was filed against Plaintiff in the U.S. District Court for the Central District of California. See Docket Sheet, United Stotes v. Michaels, No. 2:97-cr-00799

I Also excluded is “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored . . . unless such pardon, expungement, or restoration ofcivil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Id. $ 921(a)(20).

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  1. 1  (C.D. Cal. Alug.2l,1997) (attached as Ex. l). On May 6, 1998, Plaintiff pleaded guilty to one
  2. 2  count of securities fraud, in violation of 15 U.S.C. $$ 78j(b) and 78ff, and 17 U.S.C. $ 240.10b-5;

and to one count of subscribing to a false tax return, in violation of 26 U.S.C. $ 7206(1). Judgment and Probation/Commitment Order, United States v. Michaels, No. 2:97-cr-00799 (C.D. Cal. May 11, 1998) (attached as Ex. 2).2 Plaintiff was sentenced to 2l months’ imprisonment, and three years of supervised release. Id. at l.

9 Rule of Civil Procedure l2(bx1) allows apafiy to move for dismissal of a claim or action for lack

Defendants have moved to dismiss under Fed. R. Civ. P. l2(bXl) and 12(b)(6). Federal

of subject matterjurisdiction. Federal district courts are courts of limited jurisdiction, and
1l “presume [ ] that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. 1,2 Co. of Am.,511 U.S. 375,377 (1994). The plaintiff bears the burden of proving that the case is 13 properly in federal cowt. McCauley v. Ford Motor Co.,264F.3d952,957 (9th Cir. 2001)
t4 (citation omitted). When a challenge to subject matter jurisdiction has been properly raised, the 15 opposing party must “present affidavits or any other evidence necessary to satisfy its burden of t6 establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of

Chico,880 F.2d 199,201(9th Cir. 1989).
18 Federal Rule of Civil Procedure 12(bX6) allows aparty to move to dismiss for failure to t9 state a claim on which relief can be granted. A motion to dismiss under Rule l2(b)(6) tests the

20 legal sufficiency of a complaint. Navarro v. Block,250 F.3d 729,732 (9th Cir. 2001). Under a 2t Rule l2(b)(6) challenge, a court accepts the factual allegations in the complaint as true, but the 22 court does not accept as true legal conclusions couched as factual allegations. Brown v. Elec.

4rts,lnc.,724F.3d1235,1247-48(9thCir.2013). “Dismissalisproperwhenthecomplaintdoes

24 not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable








‘Bxhibits I and2 have been redacted in accordance with the Federal Rule of Civil Procedure 5.2 and Local Civil Rule 6-1.


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legal theory.” Chubb Custom Ins. Co. v. Space Sys./Loral, lnc.,710F.3d946,956 (9th Cir. 2013).3


A. The Court Should Dismiss the Complaint Because Plaintiff Fails to Satisfy the Redressability Requirement of Article III Standing.

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8 federal court’s jurisdiction to demonstrate standing.” Id.(citingArizonansfor Official English v.

Arizona,520 U.S. 43,64 (1997)). To establish standing, (l) the plaintiff must have suffered an “injury in fact;” (2) “there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife,504 U.S. 555, 560-61 (1992) (internal citations and punctuation omitted).

Determining redressability “requires an analysis of whether the court has the power to right or to prevent the claimed injury.” Barnum Timber Co. v. U.S. E.P.A.,633 F.3d 894,899 (9th Cir. 2011). “There is no standing if, following a favorable decision, whether the injury


In ruling on a motion to dismiss filed pursuant to Rule l2(bX6), the court may consider “matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and intemal punctuation omitted). Under Federal Rule of Evidence 201, “[t]he court may

judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. The Court

  1. 23  may take judicial notice of Exhibits I and 2 as undisputed matters of public record. See Bennett v. Medtronic, lnc.,285 F.3d 801, 803 n.2 (9th Cir. 2002) (aking judicial notice of filings in state court
  2. 24  proceeding); U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, lnc.,971 F .2d,244,248 (9th Cir. 1992) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial
  3. 25  system, if those proceedings have a direct relation to matters at issue.”) (citation and internal punctuationomitted); White v. Martel,601 F.3d 882, 885 (9th Cir. 2010) (taking judicial notice of docket sheet in a
  4. 26  different federal case); Bell v. Smith, No. 2: l4-cv-01730, 2015 WL 7432948, at *4 (D. Nev. Nov. 3, 2015)(taking judicial notice that plaintiff had been charged with being a felon in possession of a firearm in plaintiffs pending criminal case); Ferm v. McCarty, No. 2:12-cv-00782,2014WL 6983234, at *3 (D. Nev. Dec. 9,2014) (taking judicial notice of plaintiff s indictment, plea agreement, and transcript of plea colloquy).

“Article III of the Constitution grants the federal courts the power to decide legal questions only in the presence of an actual ‘Cas[e]’ or’Controvers[y].”‘ Wittman v. Personhuballah,136 S. Ct. 1732, 1736 (2016). “This restriction requires a party invoking a



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would be redressed would still depend on ‘the unfettered choices made by independent actors not before the courts.”‘ Novak v. United States,795 F.3d 1012, 1020 (9th Cir. 2015) (quoting ASARCO Inc. v. Kadish,490 U.S. 605, 615 (1989)). Here, Plaintiff cannot satisfo the redressability prong of Article III standing. lndependently of 18 U.S.C. $ 922(gXl), Nevada law prohibits the possession of firearms by a person who “[h]as been convicted of . . . a felony in violation of the laws of the United States of America.” Nev. Rev. Stat. Ann. $ 202.360(1Xb).4 Because of this state-law prohibition on the possession of firearms by felons, granting Plaintiff his requested relief and invalidating Section 922(g(l) will not redress his alleged injury (the inability to possess a firearm); the federal prohibition “would simply fall away,i’leaving intact the Nevada prohibition on firearms possession by felons. Wite v. United States, No. 08-l18, 2009 WL

173509, at *5 (S.D. Ohio Jan. 26,2009); see Get Outdoors II, LLC v. City of San Diego,506 F.3d 886, 894-95 (9th Cir. 2007) (declining to reach constitutional claims challenging denial of permit application on the basis of one provision of law when other, independent laws required same denial); McConnell v. FEC,540 U.S. 93,229 (2003) (no standing where, following invalidation
of the federal law, “limitations imposed by [state law] . . . would remain unchanged,” and so a favorable ruling “w ould not redress [the] alleged injury”), overruled on other grounds by Citizens United v. Fed. Election Comm’n,558 U.S. 310 (2010). Where Plaintiff s injury would not be ameliorated by action of the Court, there is no standing. See Steel Co. v. Citizens for a Better Env’t,523 U.S. 83, 107 (1998) (“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.”).

Because Plaintiffhas failed to satisfy the redressability requirement of Article III standing, the Court should dismiss the complaint for lack of subject matter jurisdiction.

B. The Court Should Dismiss Counts I and II for Lack of Subject Matter Jurisdiction.

“The United States, as a sovereign, is immune from suit unless it has waived its immunity.” Balser v. Dep’t of Justice, Office of U.S. Tr’327 F.3d 903, 907 (9th Cir. 2003). This

a Though this prohibition does not apply ifthe person in question “has received a pardon and the pardon does not restrict his or her right to bear arms,” id., Plaintiff does not allege that he has received a pardon.

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immunity extends to federal officials sued in their official capacities. See Gilbert v. DaGrossa, 2 756F.2d 1455, 1458 (9th Cir. 1985) (‘[T]he bar of sovereign immunity cannot be avoided by ., naming officers and employees of the United States as defendants.”). Because Plaintiff fails to

identify a valid sovereign immunity waiver for Counts I and II, the Court should dismiss those Countsforlackofsubjectmatterjurisdiction. See,e.g.,UnitedStatesv.Mitchell,463U.S.206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”).

9 “was to prevent violent crimes,” Compl. fl 26 (emphasis in original), and Count II seeks a

Count I seeks a declaration that “the implicil purpose” of the Gun Control Act of 1968

declaration that Plaintiff “enjoy[s] the samepresumption of being (a) ‘law-abiding’ citizen(s) as 1l any non-convicted person(s) are.” Id. fl 29 (emphasis in original). The complaint alleges that
t2 Counts I and II arise under the Declaratory Judgment Act, 28 U.S.C. $ 2201. .lee Compl. flfl 2l- 13 29. That Act provides in relevant part that “[i]n a case of actual controversy within its
t4 ‘tion, . . . any court of the United States, upon the filing of an appropriate pleading, may l5 declare the rights and other legal relations of any interested party seeking such declaration,

whether or not further relief is or could be sought.” 28 U.S.C. $ 2201(a) (emphasis added).
17 However, the Act “does not constitute the United States’ consent to be sued, it ‘merely grants an

additional remedy in cases where jurisdiction already exists in the court.”‘ W. Shoshone Nat’l t9 Council v. United States,408 F. Supp. 2d 1040,1047-48 (D. Nev. 2005) (quoting Brownell v. 20 Ketcham Wire & Mfg. Co., 2ll F .2d l2l , 128 (9th Cir. I 954). Absent a valid sovereign

2t immunity waiver, the Court lacks subject matter jurisdiction over Counts I and ll. See also

  1. 22  Morongo Band of Mission Indians v. California State Bd. of Equalization,858 F.2d 1376,1382-
  2. 23  83 (9th Cir. 1988) (explaining that the Declaratory Judgment Act “does not constitute an
  3. 24  independent basis for jurisdiction”) (citation omitted). The Court should therefore dismiss CountsI and II for lack of subject matter jurisdiction.


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C. The Court Should Dismiss the Complaint for Failure to State a Claim.

1. The Court Should Dismiss Counts I and II Because Plaintiff Cannot Assert a Stand-Alone Cause of Action Under the Declaratory Judgment Act, and Has No Private Right of Action to Enforce the Preamble to the Gun Control Act.

The Declaratory Judgment Act is also insufficient to provide a cause of action for Counts I and II of Plaintiff s complaint, and absent a cause of action, Plaintiff s claims must be dismissed for failure to state a claim. See Pettit v. Fed. Nat’l Mortg. Ass’n,No. 2:11-cv-00149,2014WL

584876, at*4,6 (D. Nev. Feb. 11,2014) (explaining that “a ‘claim’ for declaratory relief is not a substantive cause of action at all; it is merely a prayer for a remedy,” and dismissing complaint under Fed. R. Civ. P. l2(bX6)). As noted above, Count I, which seeks a declaration that the implicit purpose of the Gun Control Act is to prevent violent crimes, and Count II, which seeks a declaration that Plaintiff is entitled to a presumption of being a law-abiding citizen, are asserted

Declaratory Judgment Act does not create a stand-alone, independent cause of action; instead, it only provides a remedy for existing causes of action. See Frudden v. Pilling,842 F . Supp. 2d

1265,1280 (D. Nev. 2012) (“Where there is no private right of action, there is no jurisdiction to



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13 under the Declaratory Judgment Act. ,See Compl. fln2l-29. However, it is well settled that the

t7 entertain a request for a declaration under 28 U.S.C. $ 2201; to hold otherwise would evade the

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intent of a legislature not to create private rights of action under those statutes and would circumvent the discretion entrusted to the executive branch in deciding how and when to enforce those statutes. The availability of relief under the Declaratory Judgment Act presupposes the existence of a judicially remediable right.”), rev’d on other grounds,742 F.3d 1199 (9th Cir. 2014); Vitale & Assocs., LLC v. Lowden,No. 2: l2-cv-1400-JAD-VCF, 2015 WL 4603471, at*3 (D. Nev. July 30, 2015) (“[A] declaratory judgment is a remedy, not an independent claim.”); 5 Wright & Miller, Federal Practice and Procedure $ 1238 (3d ed. 2004) (“The Declaratory Judgment Act neither extends the jurisdiction of the federal courts nor enlarges substantive rights.”).

Furthermore, there is no alternative private right of action under which Plaintiff could bring Counts I and II. Other than the Declaratory Judgment Act, the sole basis asserted for


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Counts I and II is a statement of congressional purpose issued when Congress enacted the Gun Control Act. See Compl. [n2l-29 (quoting and relying on Pub. L. No. 90-618, $ l0l, 82 Stat.

l2l3-14, 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 . . . .”). 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, l00l (9th Cir. 1994). Such a preamble or congressional declaration of purpose creates no legal rights and has no legal effect. See Montes v. Bank of Am. Nl, No. 2:13-cv-00660,2014WL

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,” because “[t]here is simply no statutory basis for a cognizable cause of action” for such a provision). Because the Declaratory Judgment Act does not provide Plaintiff a private right of action, and there is no other available private right of action, the Court should dismiss Counts I and II for failure to state a claim.

2. The Court Should Dismiss Count III Because the Ninth Circuit Has Held That Felons Do Not Fall Within the Protections of the Second Amendment.

Felons do not fall within the protections of the Second Amendment, and Plaintiffls Second Amendment and substantive due process claims are therefore without merit. Count III of the complaint seeks a declaration that Plaintiff s inability to possess firearms violates his substantive due process rights under the Fifth Amendment, and that consequently, his “Second Amendment right(s) have been equally violated.” Compl. !139. Initially, Plaintiff does not assert a valid Fifth Amendment claim; where the Second Amendment “provides an explicit textual source” to

analyze, it is well established that substantive due process protections are not available. See Albright v. Oliver,510 U.S. 266,273 (1994) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of governrnent behavior, that Amendment, not the more generalized notion of substantive due process, must be

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the guide for analyzing these claims.”) (citation and internal punctuation omitted). Here, the Second Amendment explicitly provides the relevant constitutional standard to analyze regulation of the “keepfing] and bear[ing ofl arms,” U.S. Const. amend. II, and therefore, Plaintiff s Fifth Amendment claim must be dismissed. See Wilson v. Holder, T F. Supp. 3d 1104, ll22-23 (D. Nev. 2014) (dismissing substantive due process claim by plaintiff who was prohibited from possessing firearm under l8 U.S.C. $ 922(9)(3), as unlawful user of controlled substance); Texeira v. Cnty. of Alameda, 822 F .3d 1047 , 1052 (9th Cir. 2016) (rejecting gun store owners’ equal protection challenge as “no more than a Second Amendment claim dressed in equal protection clothing”) (internal punctuation omitted). s

Equally unavailing is Plaintiff s Second Amendment challenge. The Ninth Circuit “held rn United States v. Vongxay, 594 F.3d I I I I (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(gXt) against a Second Amendment challenge.” United States v. Phillips,_ F.3d _, 2016 WL 3675450, at *3 (9th Cir. July 6,2016); see also Van Der Hule v. Holder,759F.3d1043, 1050-51 (9th Cir. 2014) (relying on Vongxay to uphold 18 U.S.C. g 922(9)(1) as constitutional). In Vongxay, the Ninth Circuit concluded that “there appears to be a consensus that, even given the Second Amendment’s individual right to bear arms, felons’ Second Amendment rights can be reasonably restricted,” 594 F.3d at lll7, and “h[e]ld that $ 922(9)(1) does not violate the Second Amendment as it applies to Vongxay, a convicted felon.” Id. at ll l8 (citing United States v. Younger,398 F.3d ll79 (9th Cir. 2005)). Like Plaintiff, the defendant in Phillips argued that permitting his “non-violent” crime – misprision of a felony – to serve as a predicate for Section 922(g)(l)’s firearms prohibition violated the Second Amendment. Phillips,_ F.3d _,2016WL 3675450, at *2. The Ninth Circuit squarely rejected this argument, holding that “[o]ur decision in Vongxay forecloses Phillips’s argument.” Id. at *3. These clear holdings by the Ninth Circuit


Significantly, substantive due process claims are barred where another constitutional provision addresses the same subject matter, whether or not a plaintiff has a viable claim on the merits under the other provision. See Wilson, T F. Supp. 3d at 1 123. lt is therefore irrelevant under the Fifth Amendment that Plaintiff s Second Amendment claim must also be dismissed; the mere existence of the Second Amendment suffices to bar Plaintiffs Fifth Amendment claim. See Albright,s10 U.S. at273.

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equally foreclose Plaintiff s similar claim that as applied to him, Second 922(g)(l) violates the Second Amendment. The Court should thus dismiss Count III.


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8 protected liberty or property interest” or a “denial of [] procedural protections,” the two elements

required to maintain such a claim. Brewster v. Bd. of Education of Lynwood, 149 F.3d 971,982 (9th Cir. 1998). Here, as described above, Plaintiff can have no constitutionally protected interest in possessing a firearm because “felons are categorically different from the individuals who have a fundamental right to bear arms.” Phillips, _ F.3d _,2016WL3675450, at *3; see also Wilson,

13 7 F. Supp. 3d at I 116-79, ll23-24 (rejecting procedural due process claim, asserted by plaintiff t4 who was prohibited from possessing firearms because she possessed a state marijuana registry

card, that “Defendants have denied the Plaintiff adequate procedural protections before depriving t6 her of her right to purchase and possess a firearm”; because plaintiff had failed to state a valid

The Court Should Dismiss Count IV Because Plaintiff Has Failed 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.

In Count IV, Plaintiff alleges a purported “procedural due process” claim under the Fifth Amendment, but Plaintiff has not demonstrated either “a deprivation of a constitutionally

Second Amendment claim, her procedural due process claim lacked merit because she had “failed

l9 Amendment”); Fisher v. Kealoha,49 F. Supp. 3d727,748 (D. Haw. 2014) (“Because Plaintiff

20 cannot establish a liberty or property interest under the Second Amendment, the Court further 2l concludes that Plaintiff cannot establish that his Fourteenth Amendment due process rights were

  1. 22  violated.”). Apart from his meritless Second Amendment claim, Plaintiff has not alleged any
  2. 23  liberty or property interest of which he has been deprived, and so his procedural due process
  3. 24  claim should be dismissed on this basis alone. See Wilson, T F. Supp. 3d at 1123 (“The Court
  4. 25  need not reach the second element because Plaintiff has not alleged that Defendants deprived her
  5. 26  of a constitutionally protected liberty or property interest.”) (citing Bd. of Regents v. Roth, 408
  6. 27  u.s. s64, 569 (1972)).


to identify a constitutionally protected liberty or property interest, as required by the Fifth

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Moreover, Plaintiffls procedural due process claim cannot succeed in any event because Plaintiff fails to identiff any constitutionally-required procedural due process that he has been denied. 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 individuahzed hearing on dangerousness. Connecticut Department of Public Sof”ty v. Doe,538 U.S. 1, 7 (2003). The Supreme Court in Doe rejected a procedural due process challenge to a state’s sex offender registry. Id. at7-8. In that case, convicted sex offenders had challenged a law requiring them to register with the state following release from prison, asserting that it offended due process by impinging on their liberty without providing them an opportunity to demonstrate that they, as individuals, were not likely to be currently dangerow. Id. at 4. The Supreme Court rejected the claim because the government may properly regulate convicted offenders in the interests of public

safety based “on the fact ofprevious conviction, not on the fact ofcurrent dangerousness,” and thus concluded that “any hearing on current dangerousness is a bootless exercise.” Id. at 4,7 -8.

Applying Doe, cotrts have easily concluded that felons may be restricted from frearms possession without individualized dangerousness hearings. See, e.g., Blackv. Snow,272F. Supp. 2d21,34 (D.D.C. 2003), aff’d,ll0 F. App’x 130 (D.C. Cir.2004); Bell v. United States,No. 13-

5533,2013 WL 5763219, at *3 (E.D. Pa. Oct. 24,2013), aff’d, 574 F. App’x 59 (3d Cir. 2014). The plaintiff in Black, a convicted felon, alleged a procedural due process claim that “he may not be deprived of his right to bear arms without first being afforded the chance to show that he is not dangerous.” Black,272F. Supp. 2d at 34. However, the court held that the plaintiff s argument was foreclosed by Doe,recognizing that “where it is clear that the govemment would strip the individual of his liberty even if he were able to prove or disprove the particular the fact or set of facts[], such a hearing would be an exercise in futility, which is not requiredby procedural due process.” Id. (emphasis in original).

Here, “[t]his understanding of due process dooms any procedural challenge to $ 922(g)(l)” because “[t]he plain language of that provision makes clear Congress’ decision to bar all convicted felons (not merely those with violent tendencies or who otherwise present an

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ongoing danger to society) from possessing firearms.” Black,272 F . Supp. 2d at 34 (emphasis in

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  1. 3  whether he is currently dangerous because the results of such a hearing would have no bearing on
  2. 4  whether he is subj ect to the disability imposed by $ 922(9) (l);’ Id. at 35 .

original). Thus, under Doe, “due process does not entitle plaintiff to a hearing to determine

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  1. 8  plaintiff had claimed that Section 922(d0) violated due process because the statute had allegedly
  2. 9  “deprive[d] [plaintiff] of the ability to possess a firearm without providing him a hearing to

The court rn Bell similarly rejected a procedural due process challenge to 18 U.S.C. $ 922(d0) and “conclude[d], for the reasons stated by the District Court, that fthe plaintiffl’s proceduraldueprocessclaim…[is] withoutmerit.” Bell,574 F.App’xat6l. As inBlack,the

  1. 10  determine his future dangerousness.” Bell,2013 WL 5763219, at *3 (citation and internal
  2. 11  punctuation omitted). The court rejected this claim for the same reasons stated in Black. See id.
  3. 12  In short, due process does not require that a procedure be “incorporated into the criminal
  4. 13  adjudication process to determine in advance” whether Plaintiff is or was “likely to be a threat to
  5. 14  use a firearm in an act of violence,” Compl. I42,because the only matter relevant to Section
  6. 15  922(g(l) is whether Plaintiff was convicted of a crime punishable by more than one year’s


  1. 20  where the purpose of such a hearing would be to address a fact not relevant to the applicable
  2. 21  substantive inquiry.”) (citing cases). Here, where Plaintiff concedes that he has been convicted of


24 4. The Court Should Dismiss Count V Because Section 922(g)(l) Is Not a

Bill of Attainder.


  1. 26  In Count V, Plaintiff contends that as applied to him, Section 922(g)(L) violates the United
  2. 27  States Constitution’s prohibition against bills of attainder. Compl. Ufl 52-58. This contention has
  3. 28  no merit. Article I, Section 9 of the Constitution provides that “[n]o Bill of Attainder . . . shall be

imprisonment. See Doe,538 U.S. at 4 (“[D]ue process does not require the opportunity to prove a

  1. 17  fact that is not material to the State’s statutory scheme”); Nnebe v. Daus, _ F. Supp. 3d _,2016
  2. 18  WL 2865473, at *7 (S.D.N.Y. Apr. 28, 2016) (“[[t is well-established that procedural due
  3. 19  process does not require a govemment agency to provide a party with an individualized hearing

such a crime, see Compl.’lJ l; Ex. 1-2, Plaintiff s procedural due process claim cannot succeed, 23 and Count IV should thus be dismissed.


Case 2:16-cv-00578-JAD-PAL Document 19 Filed 07/25/16 Page 14 of 16

I passed.” U.S. Const. art. I, $ 9, cl. 3. “A bill of attainder is ‘a law that legislatively determines

or transportation of firearms by, persons convicted of or under indictment for a crime punishable
7 by imprisonment exceeding one year – do not constitute bills of attainder because they “set forth a

rule generally applicable to all persons possessing a certain characteristic, i.e., having been indicted for a felony,” and are therefore “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 flrearms.” United States v. Munsterman,lTT F.3d I 139, ll42 (9th Cir. 1999); see also Williams v. United States,426F.2d 253,255 (9th Cir. 1970) (former federal statute prohibiting any person indicted for or convicted of a crime punishable by imprisonment exceeding one year from transporting firearms was not a bill of attainder). For similar reasons, courts have rejected claims that Section 922(d0) constitutes a bill of attainder. ,See United States v. Stauffer, 156 F.3d l24l (9th Cir. 1998) (table);



guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.”‘ SeaRiver Mar. Fin. Holdings, Inc. v. Mineta,309 F.3d 662,668 (9th Cir. 2002) (citing Nixon v. Adm’r of Gen. Servs.,433 U.S. 425,468 (1977)). The Ninth Circuit has

5 held that l8 U.S.C. $$ 922(dX1) and (n) – which prohibit the sale of firearms to, or the shipping



9 10 il t2 13 t4 l5 t6 t7 18

United States v. Hemmings, 258 F.3d 587, 594-95 (7th Cir. 2001); United States v. Davis,27 F . App’x 592,600 (6thCir.2001); Bell,574 F. App’x at6I;Freezev. Obama,No. l1-1098,2011 WL2446596, at*l (D.D.C. June 15, 20ll); see also Zivkovic v. Reinke, No. I l-624, 2013 WL

20 690597 4, at *3-4 (D. Idaho Dec. 3 I , 201 3) (Idaho statute prohibiting f,rrearms possession by

2t 22 23 24 25 26 27 28

felons was not bill of attainder); Swartz v. Ryan, No. CV 12-23,2014WL2048057, at *11-13 (D. Ariz. May 19,2014) (Arizona statute prohibiting firearms possession by felons was not bill of attainder). In any event, Plaintiff is subject to Section 922(9)(l)’s prohibition against possessing firearms because he has had a’Judicial trial,” SeaRiver,309 F.3d at 668, as a result of which he was found guilty of a felony. See Artway v. Att’y Gen. of State of N.J., 8 I F.3d 1235, 1253 n.l5 (3d Cir. 1996) (questioning plaintiffls argument that registration provisions of Megan’s Law constituted a bill of attainder when he “had a trial, at which he was convicted of the crime triggering registration”). The Court should therefore dismiss Count V.



2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

5. The Court Should Dismiss Count VI Because 18 U.S.C. $ 922(9)(1) Does Not Violate the Constitutional Prohibition Against Cruel and Unusual Punishments.

Finally, in Count VI, Plaintiff alleges that as applied to him, Section 922(d0) violates his right to be free of cruel and unusual punishment under the Eighth Amendment. Compl. fltT 60-63. This allegation is meritless, as courts have repeatedly rejected Eighth Amendment challenges to Section 922(g(l\ See United States v. Watkins,l2 F.3d 1110 (9th Cir. 1993) (table); United States v. Jester,l39 F.3d I 168, 1 170 (7th Cir. 1998); United States v. Dowis, _ F. App’x _, 2016 WL 641100, at*2 (llth Cir. Feb. 18, 2016); Bell,574 F. App’x at 6l; see also United States v. Lewis,236F.3d 948, 950 (8th Cir. 2001) (federal firearms prohibition for conviction of domestic violence misdemeanor did not constitute cruel and unusual punishment). Furthermore, Plaintiff no more succeeds in his reliance on the doctrines of substantive and procedural due process with respect to Count VI than in his equally mistaken reliance on these same doctrines with respect to Counts III and IV, as described above. Count VI should therefore be dismissed. V. CONCLUSION

For the reasons stated above, 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.

Case 2:16-cv-00578-JAD-PAL Document 19 Filed 07/25/16 Page 15 of 16

Dated this 25th day of July 2016.


JOI―IN R.TYLER Assistant Branch Director

DANIEL RIESS Trial Attomey

mS Branch


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I hereby certify that this MOTION TO DISMISS was served this date on all parties via

Case 2:16-cv-00578-JAD-PAL Document 19 Filed 07/25/16 Page 16 of 16

electronic mail at the following address:

Michael E. Zaprn
Law Offices of MichaelB.Zapin 20283 State Rd 7, Ste. 400
Boca Raton, Florida 33498 michaelezapin@ Counsel for Plaintiff

Dated this 25th day of July 2016.

,dL’?’J’Uh ‘/s/ Blaine T. Welsh for