E.D.N.Y.: Gun law too "vague, amorphous" for § 1983

A New York federal district court held that a provision of the federal Firearms Owners Protection Act, preempting state restrictions on the transportation of firearms, is not enforceable through 42 U.S.C. § 1983. Torraco v. Port Authority of New York & New Jersey, --- F.Supp.2d ---, 2008 WL 706793 (E.D.N.Y. Mar. 17, 2008) (05-5572).

The court held that while the provision was clearly intended to confer individual rights, it was “too vague and amorphous” to provide a damages remedy.

 

            The case was brought by two men based on separate incidents in which they were detained after arguments with Port Authority officers about whether they could travel with certain firearms. Among their § 1983 claims was one based on 18 U.S.C. § 926A, which states in part:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm [subject only to a few limitations].

            The court began by reviewing “a number of principles” arising from Gonzaga Univ. v. Doe, 536 U.S. 273 (2002):

First, although the issue of whether § 1983 provides a damages remedy for violation of a particular federal statute is distinct from the issue of whether that federal statute provides an implied private right of action, the issues are closely related because the initial inquiry in both analyses is whether Congress “ intended to create a federal right.”…

Second, to support a conclusion that Congress intended to create enforceable rights, the text of the statute in question “must be phrased in terms of the persons benefitted.”…

Third, the Court went to some length to explain what is meant by “conferring a benefit” on the plaintiff. Invoking a concept that seems parallel to the distinction between intended and incidental beneficiaries in contract law, the Court held that it is not enough for the plaintiff to “fall[ ] within the general zone of interest that the statute is intended to protect.” The question remains whether Congress “intended to confer individual rights upon a class of beneficiaries.”

With regard to “private rights arising from preemption,” the court noted a distinction between “preemption in which Congress intends to free private individuals from government interference,” and “preemption implemented to accomplish uniform, national policy.” See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989).

 

            Among other cases, the court pointed to a recent Second Circuit decision as an example of the latter kind of preemption. In NextG Networks of NY, Inc. v. City of New York, 513 F.3d 49 (2d Cir. 2008), the court held that a provision of the Telecommunications Act, preempting state requirements limiting “the ability of any entity to provide any interstate or intrastate telecommunications service,” was aimed at limiting state and local government, not benefiting individuals. The court noted a broad savings clause in the Act as evidence of this intent.

 

            Turning to the language of § 926A, the district court said:

Perhaps more than any of the statutes at issue in the cases discussed above, the language of § 926A suggests that it is specifically directed at granting rights to beneficiaries, not merely prohibiting or limiting government action. It uses the term “entitled,” and the subject of the sentence is “any person,” not a governmental authority. Indeed, the reference to prohibiting government interference, buried as a limiter under the word “notwithstanding,” merely emphasizes the right being granted, and is practically superfluous; even without the “notwithstanding” clause, the Supremacy Clause might itself prohibit local interference. That contrasts with cases like NextG, where a savings clause makes it clear that federal and local law are to coexist in a federally defined equilibrium.

The court noted that while § 926A is also subject to a savings clause, it is “a rather ‘soft’ savings clause” that simply makes clear Congress does not intend total field preemption in the area of guns.

 

The court continued, however:

just because the language of a preemptive statute suggests a recognition of enforceable rights does not end the inquiry. …The second of the three Blessing [v. Freestone, 520 U.S. 329 (1997)] factors obligates a plaintiff to “demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous' that its enforcement would strain judicial competence.” This criteria necessarily includes consideration of practical problems that would arise by allowing a damages action under § 1983. In the instant case, because of the statute's allowance for the transport of firearms “for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm,” those practical problems abound. Although the statute is easily applied to accomplish one goal-preventing conviction under local gun laws for citizens who legally transport firearms between two states …its application in the field, to permit real-time transfer of legal firearms interstate in the fast-moving context of trains, planes, and automobiles, without judicial involvement, has, to say the least, severe practical difficulties.

The statute's use of the key terms “lawful” and “lawfully,” said the court, meant that in order to be fully compliant with it, law enforcement officers would have to be familiar with any and all state (and potentially foreign) laws applicable in light of a traveler’s itinerary. The court therefore concluded that:

providing a damage remedy under § 1983 for a failure to adequately apply § 926A would be unworkable. Congress' choice of the phrase “for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm” is the type of “vague and amorphous” language that Blessing holds will not support a claim for damages under § 1983. 

 

The court also held that Mr. Torraco could not state a claim under the Fourth Amendment, because there was probable cause to arrest him notwithstanding the effect of §926A. The court also rejected claims of malicious prosecution and violation of the right to travel

 

In closing, the court stated that the lack of a § 1983 damages remedy “would not preclude declaratory and injunctive relief to enjoin future violations of [§ 926A]” – presumably through a claim directly under the Supremacy Clause, though the court did not say so. Since the court determined that the plaintiffs’ rights were not in fact violated, however, that relief was also unavailable here.