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Lawsuit dismissed for lack of standing
Another firearms lawsuit is dismissed for lack of standing to sue.
Standing is a complex and chaotic doctrine. When I lectured a CLE seminar on bringing firearm law test cases, I always dealt with it first, with the warning it has a 75-80% kill rate, and you have to really do your preparation on it. Unless they really like your claim, courts are quick to say you have no standing because you aren't being prosecuted and can only speculate that if you break the law, something would happen. You have to be very creative here.
In this case, the guy had a DV conviction expunged under state law, but ATFE took the position that since the court record really wasn't destroyed (most "expungements" today are nominal -- the person gets an order saying it was set aside or expunged, but the conviction remains on record and can be plead as a first offense if he does anything again) it wasn't expunged, and he'd commit a felony if he possesses a gun. Court says -- no standing, it's an abstract dispute over what a law means, he can't show a sufficient probability of enforcement.
I'd suggest here an argument along the following lines: to buy a gun from a dealer he has to get a background check. Now, he can't really fill out the 4473 and put in NO. That'd make him guilty of a false record, a felony, and it's pretty much strict liability for that. He must say yes or no, and is guilty if the answer is wrong, even if he thinks it is right.
But... if he did do that, the NICS system would stop the transaction.
So he has an immediate injury, even if ATFE sent him a letter saying that, because he is such a nice person, they will never prosecute him even if he does buy. He can't buy from an FFL, period. It's not just that he fears prosecution if he does, the system is so set up that he cannot.
The other remedy I suppose would be to ask that the NICS take him off the list, I believe there's a specific route for that. Once they turn him down, he can take THAT administrative decision to court.
(Link comes via Gun Law News]
Comments
There-but for the grace of God-could have been me.I went through a very acrimonious divorce. Lautenberg was fully in force, my ex was not even aware that only an accusation was enough to seriously put a monkey wrench in the firearms-related side of life. (I wasn't going to say anything!) The only way to test this properly is for the man in question to get good legal backing from JPFO? GOA? somebody with a proven record to take his case so he could step in to test the law by attempting a legal FFL firearm purchase. Fought vigorously and competently this one looks winnable from my unqualified view.
Posted by: The mechanic at July 24, 2006 02:11 PM