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Pullman Arms, Inc. v. Healey

United States District Court, D. Massachusetts

March 14, 2018

PULLMAN ARMS INC.; GUNS and GEAR, LLC; PAPER CITY FIREARMS, LLC; GRRR! GEAR, INC.; and NATIONAL SHOOTING SPORTS FOUNDATION, INC., Plaintiffs,
v.
MAURA HEALEY, ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS. Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS (DOCKET NO. 22)

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Introduction

         Plaintiffs Pullman Arms, Inc., Guns and Gear, LLC, Paper City Firearms, LLC, and National Shooting Sports Foundation bring this action seeking a declaratory judgment that an Enforcement Notice (“Notice”) regarding assault weapons issued by Attorney General Maura Healey on July 20, 2016 is unconstitutionally vague and unenforceable. The Notice announces the Attorney General's intention to prosecute those selling assault weapons in violation of the Massachusetts Assault Weapon Ban, Mass. Gen. L. ch. 140, § 121, and outlines how she interprets the definition of “assault weapon” under the statute. The Massachusetts Assault Weapons Ban was modeled after the federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. 921(a)(30), also referred to as the 1994 Federal Assault Weapons Ban. Like the equivalent federal statute, the definition of “assault weapon” under the Massachusetts ban included, inter alia, 19 specific models of semiautomatic weapons (“Enumerated Weapons”); such as the AK-47, and “copies or duplicates of th[os]e weapons, of any caliber.” The phrase “copies or duplicates” is not defined under either the federal or state statute.

         The Notice announces two tests that the Attorney General plans to use to establish whether a weapon is a “copy or duplicate” of one of the Enumerated Weapons: the “Similarity Test” and the “Interchangeability Test.” Under the Similarity Test, a weapon is considered a copy or duplicate of an Enumerated Weapon “if its internal functional components are substantially similar in construction and configuration to those of an Enumerated Weapon.” Notice, at 3 (emphasis added). Plaintiffs assert that the term “substantially similar” is vague, and that they are unable to discern which weapons the Attorney General considers to be copies or duplicates of the Enumerated Weapons. On August 18, 2016, the Attorney General issued a subsequent notice entitled “Guns That Are Not Assault Weapons, ” which set forth a list of guns that were exempted from the ban, including “any .22 caliber rifle.” Shortly thereafter, this subsequent notice was revised to clarify that semiautomatic rifles chambered for .22 caliber rimfire ammunition were exempted, and further added .17 caliber rimfire ammunition models and the Springfield Armory M1A to the list of weapons that are not “assault weapons”.

         Plaintiffs allege that when they called the Attorney General's Office to seek clarification regarding whether certain specific models were banned under the Attorney General's interpretation, they were told to “use their best judgment.” As a result of the uncertainty caused by the Notice, and a fear of prosecution, firearm retailers have ceased selling certain weapons that they previously sold.

         The Attorney General has moved to dismiss on numerous grounds, including that the state law claims are barred by the Eleventh Amendment, that the Enforcement Notice is not vague, that the Second Amendment claims are not justiciable, and that the Enforcement Notice does not impose a substantial burden on the plaintiffs' Second Amendment rights. After hearing, the Attorney General submitted a supplemental brief in support of her motion citing as additional grounds for dismissal that the Enforcement Notice is not susceptible to a vagueness challenge, and that the Plaintiffs lack standing.

         Discussion

         A. Susceptibility to vagueness challenge

         “[A] void-for-vagueness challenge must be directed to a statute or regulation that purports to define the lawfulness or unlawfulness of speech or conduct.” Nyeholt v. Secretary of Veterans Affairs, 298 F.3d 1350 (CAFC Aug. 6, 2002). The Attorney General asserts that her Notice is not susceptible to a constitutional vagueness challenge because it is neither statue nor regulation, but rather, “an advisory that notifies the public of the Attorney General's interpretation of a criminal statute….” Dkt. #23 at 16. In support, she cites to Beckles v. United States, __U.S. __, 137 S.Ct. 886 (2017), for the proposition that mere “guidelines” do not raise concerns about “fair notice” or “arbitrary enforcement” that underlie vagueness challenges to laws and regulations.[1]

         In Beckles, a vagueness challenge to the U.S. Sentencing Guidelines was not allowed because the court held that the Sentencing Guidelines do not regulate the public. However, in the context of this case the Attorney General's enforcement notice essentially does just that, by creating a climate in which the Plaintiffs now must refrain from commercial activity (that the Attorney General has acknowledged has previously been generally accepted) or risk prosecution. The lack of clarity in the Sentencing Guidelines in Beckles created no hazard to citizens, but was rather intended to create a framework for the courts to work within. On the other hand, the Notice and subsequent publications, and statements by the Attorney General make it clear that the Plaintiffs will suffer consequences for participating in commercial activity that was common practice under the status quo ante.[2]

         An agency's interpretation of the law is reviewable if it has the effect of regulation, regardless of whether it is called one. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154 (1997). In Bennett, the Supreme Court established that quasi-regulatory action by an agency is a subject for judicial review when the agency's action is final. Specifically, such action is reviewable if it is, a) conclusive, not “tentative or interlocutory” and, b) that “obligations are determined …from which legal consequences flow.” Bennett, 520 U.S. at 177-78. Interpreted in the light of the Attorney General's public statements, the Notice is a conclusive statement evidencing her intent to shift the definitional regime under which arms sales are to be regulated in Massachusetts. In fulfillment of the second prong, it is clear that the Attorney General intends that there will be legal consequences for those that engage in transferring the weapons in question. The Notice and associated publications are thus generally reviewable under Bennett.

         B. Enforcement Notice is reviewable because it is regulatory in effect

         On the specific issue of whether a document purporting to be other than a regulation can be reviewed by this court, F.C.C vs Fox Television Stations, Inc., 567 U.S. 239 (2012) is instructive. In Fox, the Supreme Court allowed that a Guidance document could be reviewed for vagueness because the need for “clarity in regulation is essential to the protections afforded by the Due Process Clause of the Fifth Amendment.” Fox, 567 U.S. at 253. This Court cannot dismiss the Plaintiffs' challenge to the Notice because they have raised genuine questions as to whether it gives “fair notice of conduct that is forbidden” with respect to the sale of certain weapons enumerated in the complaint.

         C. ...


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