UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAXWELL HODGKINS, et al., : : Plaintiffs, : : v. : Civil Action No. 09-0587 (JR) : ERIC HOLDER, Attorney General of : the United States, : : Defendant. :

MEMORANDUM

Plaintiffs Maxwell Hodgkins, Stephen Dearth, and the

Second Amendment Foundation, Inc. (“SAF”), present constitutional

challenges to certain federal gun control restrictions. The

government moves to dismiss, arguing, correctly, that the

plaintiffs lack standing.

Background

With exceptions not relevant here, federal law does not

allow any person “who does not reside in any State to receive any

firearms unless such receipt is for lawful sporting purposes.”

(a)(9). A complementary provision prohibits the

transfer of firearms to any person “who the transferor knows or

has reasonable cause to believe does not reside in . . . the

State in which the transferor resides.”

§ 922(a)(5). To

facilitate enforcement of these provisions, a prospective firearm

purchaser must complete and give to the seller ATF Form 4473,

which asks the purchaser to list his or her state of residence,

if any. See

(c)(1). Plaintiff SAF is a non-profit organization of gunmen.

See Compl. ¶ 3. Plaintiffs Maxwell Hodgkins and Stephen Dearth

are United States citizens residing abroad with no domestic

residence. See

. Both occasionally visit friends

and family in the United States and intend to continue visiting

this country. See

. Both hold valid state

permits to carry handguns. See

. Hodgkins

attempted to purchase a firearm within the United States in

October 2008, but he was refused when he told the seller that he

resided abroad. See

. Similarly, Dearth attempted to

purchase firearms in the United States twice, but each time the

sale was refused when he admitted to residing abroad. See

. Dearth alleges that he intends to return to the United

States to buy firearms, which he would store at the home of

relatives in Ohio. See

.

Analysis

To have standing pursuant to Article III of the

Constitution, plaintiffs must demonstrate, inter alia, “an injury

in fact –- an invasion of a legally protected interest which is

(a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical.” Lujan v. Defenders of Wildlife,

(1992) (internal quotation marks and citations

omitted). Plaintiffs seek relief pursuant to the Declaratory

Judgment Act,

. To establish a right to proceed

- 2 - under the Declaratory Judgment Act, plaintiffs must demonstrate

“a case of actual controversy.”

A. Standing of Hodgkins and Dearth

1. Based solely upon refusal to sell

Plaintiffs Hodgkins and Dearth contend that their

failed attempts to purchase firearms confer standing. However,

unlike many causes of action, the Declaratory Judgment Act does

not authorize remedies for past injuries alone. Under the

Declaratory Judgment Act, a constitutional question “must be

presented in the context of a specific live grievance.” Golden

v. Zwickler,

(1969); see also Steffel v.

Thompson,

(1974) (requiring “the continuing

existence of a live and acute controversy”) (emphasis in

original). Thus, a plaintiff’s prior arrest could not support a

declaratory judgment action where the plaintiff could not show

that the arrestable offense was likely to reoccur. See Golden,

(plaintiff’s concern lacked the “immediacy and

reality” necessary to support a Declaratory Judgment Act action).

Past events can be relevant to a determination of

whether a plaintiff’s fear of future prosecution is “imaginary or

speculative” or whether it is “immedia[te] and real[],” Steffel,

, but past refusals of merchants to sell

firearms to Hodgkins and Dearth are not enough, without more, to

- 3 - provide the basis for an action pursuant to the Declaratory

Judgment Act.1

2. Preenforcement standing

If Hodgkins and Dearth have standing, then, it must be

based on the threat of future enforcement. See Seegars v.

Ashcroft,

(D.C. Cir. 2005) (“No plaintiff in

this case has been arrested and prosecuted for violating the

disputed provisions of the Code, so plaintiffs' case constitutes

a ‘preenforcement’ challenge.”). Hodgkins has not alleged any

intention to acquire firearms in the United States in the future,

so he cannot establish an imminent future injury. Dearth does

allege that he intends to return to the United States to purchase

firearms, but, as will be explained, that allegation is not

enough to overcome the preenforcement standing requirements

established by the D.C. Circuit in the Navegar line of cases.

Navegar, Inc. v. United States,

(D.C. Cir.

1997), held that gun manufacturers had standing to seek a

declaratory judgment against enforcement of the Violent Crime

Control & Law Enforcement Act of 1994 where the law, by naming

1 Some courts have characterized the Declaratory Judgment Act’s “actual controversy” requirement as being identical with Article III standing. See, e.g., Cutaiar v. Marshall,

(3d Cir. 1979); see also Aetna Life Ins. Co. v. Haworth,

(1937) (“The word ‘actual’ [in the Declaratory Judgment Act] is one of emphasis rather than of definition.”). However, this is not strictly correct; while Article III supports actions based solely on actual past injuries, Steffel and Golden show that the Declaratory Judgment Act does not.

- 4 - specific brands and models of firearms, “in effect single[d] out

the [plaintiffs] as its intended targets.” See id. at 999-1001.

The manufacturers did not have standing to challenge certain

other provisions of the Act, however, because of the absence of

“any special priority placed upon preventing these parties from

engaging in specified conduct.” Id. at 1001-02.

The Court of Appeals has since explained Navegar’s

“special priority” language, holding that preenforcement standing

will exist only when a plaintiff has been “personally threatened

with prosecution or . . . his prosecution has [a] special

priority for the government.” Seegars,

.

Seegars questions whether Navegar’s stringency was consistent

with Supreme Court precedent and precedent from other circuits,

see

, but nonetheless “faithfully appl[ied]” its

holding to bar preenforcement challenges to several District of

Columbia gun control laws.

. In Parker v.

District of Columbia,

(D.C. Cir. 2007), the court

again questioned whether its standing precedent was consistent

with earlier Supreme Court decisions, but reiterated that it

“must be faithful to Seegars [and] Navegar.”

. The

court then held that all plaintiffs whose challenges presented

- 5 - only preenforcement issues lacked standing because they had not

been singled out for prosecution.2 See

Like the D.C. Circuit itself, plaintiffs have

criticized the Navegar line of cases as improperly stringent in

comparison with other authority. See Pl. Resp. at 14-22. That

criticism is especially apt in this case. Domestic firearm

merchants are legally obligated to refuse sale to citizens who

reside abroad. Because sales will be refused, would-be

purchasers will never draw government attention. Because they

will draw no attention, they will never be in a position to be

threatened with prosecution. If Navegar retains its vitality,

the only way the state residence law can be challenged in this

Circuit is to engage in a forbidden transaction, exposing oneself

to prosecution. Nevertheless, I must “faithfully apply” the

principle enunciated in the Navegar line of cases, which are

squarely on point.3

2 In Ord v. District of Columbia, No. 08-7094 (D.C. Cir. Dec. 4, 2009), a panel of the D.C. Circuit upheld the standing of a police officer challenging firearm laws where a warrant had been issued for his arrest and others had been arrested for similar conduct. See Slip. Op. at 9-10. While Judge Brown criticized the Navegar standard in dissent, see id. at 19, the majority applied the existing standard without comment. 3 Plaintiffs suggest that Fraternal Order of Police v. United States,

(D.C. Cir. 1998), on reh’g,

(D.C. Cir. 1999), is inconsistent with the Navegar line of cases. As the court explained, however, the plaintiff police officers in that case complained of an ongoing constitutional injury due to the conflict between local law enforcement duties and the federal law at issue. See Fraternal Order, 152 F.3d at - 6 - 3. Venue-based argument

Before they filed here, Dearth and Hodgkins brought

separate suits, in Ohio and Texas. See Pl. Resp. at 5. Venue

was held improper in both locations.4 See id. at 5-6.

Plaintiffs suggest that defendant sought transfer in those cases

to obtain the benefit of the D.C. Circuit’s exacting standing

requirements, and that this district was not an appropriate

recipient venue because their lack of standing here means it is

not a district “in which [the case] might have been brought,”

according to the requirements of the transfer statute.

(a); see also

(a). Plaintiffs suggest that

this court should “sensibly confirm[] that inherent in any

discretionary transfer here is the idea that jurisdiction cannot

be destroyed.” Pl. Resp. 25.

The argument is artful but unpersuasive. “There is no

valid reason for reading the words ‘where it might have been

brought’ to narrow the range of permissible federal forums beyond

those permitted by federal venue statutes.” Van Dusen v.

1001. Navegar and its progeny, as well as the present case, deal with the potential of prosecutions that could cause injury only in the future, if at all. 4 Plaintiffs in each case asked for and were granted dismissal without prejudice rather than transfer so that they could appeal immediately. They did appeal, but neither appeal was successful. See Dearth v. Mukasey,

(6th Cir. 2008) (holding appeal improper since the dismissal was voluntary); Hodgkins v. Mukasey,

(5th Cir. 2008) (same). - 7 - Barrack,

(1964); see also Carbonara v. Olmos,

, at *1 (N.D. Ill. Feb. 24, 1994) (holding that

transfer to a district in which circuit law likely precluded

standing was proper because the language of § 1404(a) “refers

only to whether venue is proper and not a plaintiff's capacity to

sue”).

B. Standing of SAF

SAF asserts both organizational and representational

standing. Organizations can have standing on their own behalf

when they have suffered injuries. See Warth v. Seldin,

(1975). However, SAF has not alleged any sufficient

injury. It contends that the work it must do fielding questions

from constituents about the laws at issue justifies standing, its

voluntary act of teaching cannot plausibly be the basis for a

claim of constitutional injury.

An association may sue on behalf of its members if

(1) its members would otherwise have standing to sue in their own

right, (2) the interests at stake are germane to the

organization's purpose, and (3) neither the claim asserted nor

the relief requested requires the participation of individual

members in the suit. Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc.,

(2000). SAF cannot

meet the first requirement, because it has failed to allege that

it has any members who are U.S. citizens residing abroad who

- 8 - intend to purchase firearms domestically in violation of the laws

at issue.

Conclusion

For the reasons set forth above, no plaintiff has

standing to challenge the provisions at issue. Accordingly,

defendant’s motion to dismiss will be granted. An appropriate

order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

- 9 -