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Brady Campaign To Prevent Gun Violence v. Brownback

United States District Court, D. Kansas

June 5, 2015

BRADY CAMPAIGN TO PREVENT GUN VIOLENCE, on its institutional behalf and on behalf of its members, Plaintiff,
v.
SAM BROWNBACK, et al., Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff Brady Campaign to Prevent Gun Violence ("Brady Campaign") brings this lawsuit seeking declaratory and injunctive relief against Kansas Governor Sam Brownback, Kansas Attorney General Derek Schmidt, and all other persons acting on behalf of the state of Kansas (collectively, "Defendants"), in their official capacities. Specifically, Brady Campaign requests the Court to declare unconstitutional and enjoin Defendants from enforcing the Kansas Second Amendment Act, which prohibits application of some federal gun control laws to personal firearms made and kept within Kansas borders.[1] The case is now before the Court on Defendants' Motion to Dismiss (Doc. 13). That motion is fully briefed and the Court is prepared to rule.[2]

As explained in detail below, Brady Campaign lacks Article III standing to challenge the Second Amendment Protection Act in this lawsuit because it has not shown that enforcement of the statute inflicts an actual or imminently-threatened injury on any Brady Campaign member. Accordingly, this Court lacks subject matter jurisdiction to consider the merits of this lawsuit and must grant Defendants' motion to dismiss.

I. Background

In April 2013, the Kansas legislature passed the Second Amendment Protection Act (the "Act"), codified at K.S.A. §§ 50-1201 through 50-1211. The Act begins by declaring federal Commerce Clause legislation inapplicable to certain firearms and firearm accessories within the state of Kansas:

A personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately and owned in Kansas and that remains within the borders of Kansas is not subject to any federal law, treaty, federal regulation, or federal executive action, including any federal firearm or ammunition registration program, under the authority of [C]ongress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.[3]

Section 50-1206(b) prohibits state employees and employees of local governments from enforcing federal regulations in a manner inconsistent with the Act:

No official, agent or employee of the state of Kansas, or any political subdivision thereof, shall enforce or attempt to enforce any act, law, treaty, order, rule or regulation of the government of the United States regarding any personal firearm, firearm accessory or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas.[4]

The Act also contains enforcement provisions. In particular, § 50-1207 makes it a felony for federal officials or agents to attempt to duly enforce federal regulations in violation of the Act:

It is unlawful for any official, agent or employee of the government of the United States, or employee of a corporation providing services to the government of the United States to enforce or attempt to enforce any act, law, treaty, order, rule or regulation of the government of the United States regarding a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas. Violation of this section is a severity level 10 nonperson felony.[5]

Additionally, § 50-1208 permits the state attorney general and county and district attorneys to seek injunctive relief to enforce the provisions of § 50-1207 against federal officials, agents, or employees.[6] The Act does not expressly authorize similar civil or criminal enforcement proceedings against state or local employees.

Plaintiff Brady Campaign is a non-profit organization long committed to reducing gun violence nationwide. It alleges that the Act is an unconstitutional attempt to nullify federal gun control regulations. Brady Campaign alleges, for example, that the Act prohibits background checks for "Kansas" firearms, permits undocumented and unlicensed manufacture and sale of those firearms, and allows those firearms to be manufactured without serial numbers-all in clear violation of federal gun control laws like the National Firearms Act of 1934[7] and the Gun Control Act of 1968.[8] If state and local officials continue to enforce the Act, Brady Campaign contends, the statute's civil and criminal enforcement provisions will have the effect of deterring application of federal gun laws in Kansas, increasing the risk of gun violence within the state.

At least one Brady Campaign member-City of Hiawatha, Kansas Mayor Crosby Gernon-fears he will be criminally prosecuted or held civilly liable under the Act's enforcement provisions. In his office as mayor, Crosby Gernon is vested with all executive and administrative authority in the city, and the Hiawatha Chief of Police is subject to Mayor Gernon's orders and policy decisions. Mayor Gernon is also involved in the hiring and firing of the Chief of Police as well as serious disciplinary matters concerning local police officers. Brady Campaign alleges that as a result of these duties, Mayor Gernon is subject to criminal prosecution as a "federal agent" "for any enforcement activities that involve federal authorities."[9] Moreover, since Mayor Gernon is also a professor at the University of Kansas School of Medicine and a physician with the University of Kansas Hospital, Brady Campaign asserts he is an "official, agent, or employee of the state of Kansas" within the meaning of § 50-1206(b), and may therefore be held civilly liable under the Act if he enforces federal gun regulations in his office as mayor.

Other Brady Campaign members residing in Kansas fear that the Act compromises their personal safety. Paul Temme, for example, was present at a horrific mass shooting at the Jewish Community Center of Greater Kansas City in April 2014, and has "been the subject of hateful internet attacks" since he began speaking publicly about that experience.[10] Does 1 and 2 were also present at the Jewish Community Center shooting. Temme now fears for his safety "since the Act makes it easier for dangerous individuals... to obtain firearms and bring them into public places."[11] Harold Koch, another member of both the Brady Campaign and the Jewish Community Center of Greater Kansas City, tragically lost his fourteen-year-old brother in a shooting in Missouri in 1953 and has received threats due to his activism in the gun violence prevention movement. Because of these experiences, Koch "has a heightened fear of gun violence that is exacerbated by the Act."[12] Similarly, Susan Blaney and Loren Stanton are both active members of groups dedicated to preventing gun violence in Kansas. With passage of the Act, both now fear for their own safety and the safety of their grandchildren. Two other Brady Campaign members are long-time residents of Johnson County, Kansas, and were also present at the April 13, 2014, shooting at the Kansas City JCC. The names of both members were withheld from the Complaint due to their fear for the physical safety of their respective families and due to the fear of retaliation from state and local authorities for their participation in the current lawsuit.

Brady Campaign thus brings this action seeking an injunction to prevent Defendants from enforcing the Act as well as a declaratory judgment that the Act is unconstitutional on its face. Brady Campaign alleges four causes of action: (1) the Act is unconstitutional under the Supremacy Clause of the United States Constitution because it purports to nullify federal gun control laws and regulations and to define the limits of congressional authority under the Commerce Clause; (2) the Act is void for vagueness under the United States Constitution because it is insufficiently explicit to inform who may be subject to its enforcement provisions or what conduct on their part will render them liable for penalties;

(3) the Act is void for vagueness under the Kansas Constitution for the same reasons; and (4) under 42 U.S.C. § 1983 for deprivation of due ...


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