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For Opinion See 117 S.Ct. 2501 Supreme Court of the United States. No. 95-2006. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit Petition for a Writ of Certiorari [FN*]James H. Warner, 11250 Waples Mill Road, Fairfax, Virginia 22030, (703) 267-1256, Attorney for Petitioner. Whether the delegated powers of Congress, as construed in New York v. United States,505 U.S. 144 (1992), include the power which Congress exercised in the Brady Law, 18 U.S.C. §922(s)(2), (6)(B) and (C), to prescribe duties for state Chief Law Enforcement Officers (CLEOs), beyond those duties prescribed in the state laws which created their positions, including compelling the CLEO to make a reasonable effort to ascertain whether individuals may lawfully purchase handguns; thereafter to destroy the records of such transaction, or to provide a written explanation for an adverse determination. *II PARTIES TO THE PROCEEDING The parties to the proceeding below were Sheriff Samuel Frank and the United States of America. No parent companies and wholly or non-wholly owned subsidiaries of either exist. *iii TABLE OF CONTENTS
Opinion of the U.S. Court of Appeals for the Second Circuit ... 1a *iv Opinion of the U.S. District Court for the District of Vermont ... 44a Brady Handgun Violence Protection Act, Pub. L. 103-159; 107 Stat. 1536 (1993) ... 78a Cases
Constitutional Provisions
Statutes and Rules
Regulations
*1 Petitioner, Sheriff Samuel Frank requests that a writ of certiorari issue to review the final order of the United States Court of Appeals for the Second Circuit. The opinion of the United States Court of Appeals is reported as Frankv. United States,78 F.3d 815 (2nd Cir. 1996) and is reproduced in the Appendix (“App.”) at la. The opinion of the United States District Court is reported as Frank v. United States,860 F. Supp. 1030 (D. Vermont. 1994) and is reproduced in the Appendix at 44a. On March 15, 1996, the Court of Appeals affirmed in part and reversed in part the judgment of the District Court, thereby upholding the validity of the statutory provisions in question. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1254(1). Article I, §8 of the Constitution of the United States provides: Congress shall have the power ... to regulate Commerce with foreign Nations, and among the several States.... Amendment 10 to the Constitution of the Constitution of the United States provides: *2 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Pub. L. 103-159, 107 Stat. 1536 (1993), codified as 18 U.S.C. §922(s), 924, 925A, is reproduced in full at App. 78a. As codified, it provides in relevant part: 18 U.S.C. §922(s): (1) .... it shall be unlawful for any ... licensed dealer to sell, deliver, or transfer a handgun... unless.... 18 U.S.C. §924(5): *3 18 U.S.C. §925A: Federal law prohibits the transfer of firearms to, or possession by, members of certain classes of restricted persons, including, inter alia, convicted felons, persons dishonorably discharged from the armed forces, adjudicated mental detectives, illegal aliens, unlawful drug users, fugitives from justice, and persons under certain forms of domestic restraining orders. In the past, purchasers were required to complete an official questionnaire, on a form prescribed by the federal government, verifying that they were not included in any of the classes of restricted persons. In 1993 Congress enacted the “Brady Law,” Pub. L. 103-159, 107 Stat. 1536 (1993), which provided for an official verification, through an examination of available records, of the proposed purchaser's eligibility to possess a firearm. To this end, the law requires the U.S. Justice Department to establish a data base of prohibited persons by the year 1999. Before that time, the law creates an interim system which requires that the background investigations, on persons seeking to purchase handguns, be conducted by the “Chief Law Enforcement Officer” (CLEO) for the district in which the proposed purchaser resides. The term “Chief Law Enforcement Officer” is defined as “... the chief of police, the sheriff, or an equivalent officer or the designee of any such individual.” During the operation of the interim system, the proposed purchaser must fill out a form indicating an intent to purchase a handgun The dealer must submit this information to the Chief Law Enforcement Officer of the place where the proposed purchaser resides. 18 U.S.C. §922(s)(1)(A)(iii). The CLEO is required to make “... a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General.” 18 U.S.C. §922(s)(2). The U.S. Attorney General has designated two Federal databases as the “national system” which the CLEO must check. Order No.1853-94, at 59 Federal Register 9498 (Feb. 28, 1994). If the CLEO finds that the proposed sale would not violate Federal, State or local law, he is required to destroy the form and any references to it within twenty business days. 18 U.S.C. §922(s)(6)(B). On the other hand, if the CLEO finds that the proposed purchaser is ineligible to receive a handgun, he must inform the dealer and, if the purchaser requests, provide a written justification of his findings within 20 business days. 18 U.S.C. §922(s)(6)(C). Should the CLEO err in barring a purchase, the statute creates a Federal cause of action against his jurisdiction for correction and recovery of attorneys' fees. 18 U.S.C. §925A. Sheriff Sam Frank is the elected Sheriff of Orange County, Vermont. Orange County has a population of approximately 26,000, and an area of 992 square miles. The County has three fall time law enforcement officers, including the Sheriff and two deputies. The Vermont legislature has prescribed the duties of a sheriff at 24 Vermont Statutes Annotated, Chap. 5, subchap. 5. These include a duty to serve as bailiffs in courts in the county, transport prisoners, serve legal process, as well as to serve as peace officers for the county. Sheriff Frank, or his deputy, must spend from 15 minutes to six hours conducting background checks, and the workload, with respect to background checks, has doubled since the effective date of the Brady Law. App. 45a. In May, 1993, Petitioner commenced an action in the United States District Court, District of Vermont, invoking its jurisdiction under 28 U.S.C. §1331. He sought declaratory relief to establish, inter alia, that 18 U.S.C. §922(s) exceeds Congress's Article I powers and violates the Tenth Amendment. He also sought an injunction against its enforcement. The District Court (Parker, J.), relying upon this Court's decision in New York v. United States, 505 U.S. 144 (1992), issued its decision, holding, in pertinent part, that those sections of 18 U.S.C. §922(s) which impose ministerial duties upon Chief Law Enforcement Officers is unconstitutional, permanently enjoined the enforcement of same in the District of Vermont, and upheld the remainder of the statute as severable. App., at 44a. The Court of Appeals reversed in part and affirmed in part, the judgment of the District Court. The Court of Appeals for the Second Circuit found that the duties imposed by the Brady law do not, in fact, exceed the delegated powers of Congress, or violate the 10th Amendment. The question presented in this case has been reviewed in other Circuits. The Ninth Circuit, in Mack v. U.S., and Printz v. U.S.,66 F.3d 1025 (9th Cir. 1995), held that the duties which the Brady law compels CLEOs to perform did not violate the 10th Amendment, or exceed the delegated powers of Congress. On the other hand, in a decision issued 6 days after the decision in the instant case, the Fifth Circuit, in Koog v. U.S., and McGee v. U.S.,79 F.3d 452 (5th Cir. 1996), held that the interim duties, including the duty to perform a background check, the destruction of records and the duty to furnish written justification for denials, violate the constitution. The Solicitor General, in the Brief of the United States, in the Petition styled Printz v. United States, docket #95-1478, which involves the question which is presented in the instant case, concludes that this is a question which should be resolved and that certiorari should be granted. *7 REASONS FOR GRANTING THE WRIT I. THE WRIT SHOULD BE GRANTED BECAUSE THERE IS A CONFLICT OF OPINION IN THE CIRCUITS ON THE CONSTITUTIONALITY OF AN ACT OF CONGRESS This Court should grant the writ of certiorari because there is a conflict between the Circuit Courts on a question which involves the delegated powers of Congress, under Article I, section 8, c1.3 of the Constitution, and the reserved powers of the States, under the 10th Amendment to the Constitution. As noted, supra, the decision of the Second Circuit in the instant case, the decision of the Ninth Circuit, in Mack and Print, supra, are precisely contrary to the decision in the Fifth Circuit, in Koog and McGee, supra. Further, the decisions of the Second and Ninth Circuits are not congruent with the decision of this Court in New York v. United States,505 U.S. 144 (1992). In such case, it is appropriate for the Supreme Court to grant certiorari to resolve the conflict. Waterman Steamship Corp. v. U.S.,381 U.S. 252, 258 (1965); Federal Trade Commission v. Flotill Products,389 U.S. 179 (1967). *8 II THE WRIT SHOULD BE GRANTED BECAUSE THE DECISION OF THE SECOND CIRCUIT IS IN CONFLICT WITH THE DECISION OF THIS COURT IN NEW YORK V. UNITED STATES A. In an opinion on the same issue, with a contrary result, the Court of Appeals for the Fifth Circuit, in Koog v. U.S.,79 F. 3d 452 (5th Cir. 1996), held that the Brady Law, to the extent that it compels Chief Law Enforcement Officers to perform ministerial duties, is unconstitutional. The Fifth Circuit based its decision on the decision of this Court in New York v. U.S., 112 S. Ct. 2408 (1992), which, it said, was “... central to the question before us.” New York is also central to this case. In New York the issue was a challenge to the Low-Level Radioactive Waste Amendments of 1985. This statute provided several incentives to induce States to conform with the directives of the federal government on the disposal of nuclear wastes. The Act offered financial grants to States which complied. It provided for federal pre-emption in instances in which a State chose not to comply. This Court found that these provisions were within the permissible powers of Congress, and did not transgress the powers reserved under the 10th Amendment. The Act also provided that States could choose whether to enact regulations, as prescribed by Congress, or take title to the waste from the parties who generated it, and assume *9 liability both for the disposal of such wastes, and for any damages. This provision was found to lie outside of the enumerated powers and to be inconsistent with the Tenth Amendment. In reaching this decision, this Court distinguished those Tenth Amendment cases in which the issue was the authority of Congress to subject state governments to generally applicable laws. These cases include Garcia v. San Antonio Metropolitan Transit Authority, 469 US.. 528 (1985)(Fair Labor Standards Act); Fry v. U.S.,421 U.S. 542 (1975)(wage stabilization), and South Carolina v. Baker, 485 U.S. 505 (1988)(tax exemption on the interest on municipal bonds). Id., at 2420. The Court found these cases inapposite since the legislation at issue, in New York, was not applicable to private parties. Instead the issue was “...the circumstances under which Congress may use the States as implements of regulation.” Id. The Court began its analysis by observing that “Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Id, at 2420, citing Hodel v. Virginia Surface Mining & Reclamation Ass'n,452 U.S. 264, at 288 (1981). Congress may, however, use a variety of means to induce states to assist in regulatory programs. For example, under the spending power, “Congress may attach conditions to the receipt of federal funds.” Id. Or Congress may offer States the choice of regulating in accordance with Congressional wishes, or having State regulation pre-empted by federal regulation. Id., at 2424. In Hodel, and in Federal Energy Regulatory Comm'n v. Mississippi,456 U.S. 742 (1982) (FERC), there were *10 incentives offered to the States for undertaking certain regulatory programs. There was also the option of federal preemption if the States chose not to act. In neither case were the States compelled to enact legislation, nor to promulgate regulations. In fact, the court observed, “... this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” Id. Such a command is not permissible because the power of the national government operates directly upon the people, not on the States. In providing for a stronger central government, therefore, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. As we have seen, the Court has consistently respected this choice. We have always understood that even where Congress has the authority ... to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce. Id., at 2423. After explaining the principles to be applied in construing the Tenth Amendment, the Court then addressed the arguments of the Government in defense of the “take title” provisions, and against the prohibition on such legislation. *11 First, the Government argued that this prohibition can be overcome if the federal interest is important enough. The Court responded: No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate. The Constitution instead gives Congress the authority to regulate matters directly and to pre-empt contrary state regulation. Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents. Id., at 2429. The Government also argued that “... the Constitution does, in some circumstances, permit federal directives to state governments.” The Court responded that “(v)ariousos cases are cited for this proposition but none support it.” Id. The Brady law compels State officers (Chief Law Enforcement Officers, or “CLEOs”) to perform a background investigation of potential handgun purchasers, then either to destroy the records of the investigation if the result is negative, or furnish, if requested, a written explanation if the potential purchaser appears to be ineligible to possess a firearm. Like the “take title” provisions in New York, the Brady Law is a direct, and unavoidable command to state officials. Like the “take title” provisions, it violates the Tenth Amendment and exceeds the Commerce Clause powers. B. In the instant case, the Second Circuit began its analysis with the observation that “(t)o help navigate safely through the murky waters of Tenth Amendment doctrine, it is necessary to *12 dispel the notion that the federal government may never compel action by state officials.” Frank v. United States, 78 F.3d 815 (2nd Cir. 1996), at 825. This flatly ignores the New York Court's response to the same assertion, viz., “(v)ariousos cases are cited for this proposition but none support it.” New York, supra, at 2429. The Court of Appeals attempts to support this proposition with several examples of decisions in which burdens appear to have been imposed upon States. There are three which are central to its reasoning. In Garcia v. San Antonio Metropolitan Transit Authority, 469 US.. 528 (1985), the issue was the applicability of the Federal Fair Labor Standards Act, a law of general application, to a municipal transit authority. It is inapposite. The Brady Law background check duties apply only to state officials. In South Carolina v. Baker, 485 U.S. 505 (1988), the issue was the exemption, from federal income tax, of income from municipal bonds. It is inapposite. First, there is a specific constitutional grant of authority to Congress to “lay and collect taxes.” Art I, section 8, cl. 1. There is also a constitutional grant of authority to “make all laws which shall be necessary and proper for carrying into execution” the granted power. U.S. Constitution, Art I, section 8, c1.18. There is no such grant to give direct commands to state officials. In Testa v. Katt,330 U.S. 386 (1947), this Court held that a State court is required to enforce federal law. It is inapposite. The Constitution provides, that the “Constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land; and the judges of every state shall be bound thereby.” U.S. Constitution, Article VI, c1. 2. There is no provision binding *13 state executive or legislative branch officials to the commands of Congress. The Second Circuit also cites Gregory v. Ashcroft,111 S. Ct. 2395 (1991). It is not clear, from the decision, what principle this case was thought to support. In that case the issue was the applicability of the federal Age Discrimination in Employment Act to Missouri judges who were required, by the State Constitution, to retire at age 70. The case is not only inapposite, but may be taken to support the opposing view. The right of the people to determine the qualifications of state officials is an integral element of a republican government. There is a Constitutional guarantee of a republican form of government, U.S. Constitution, Art. IV, sect. 4. Federal interference would violate the Tenth Amendment. The Second Circuit does recognize a very narrow field in which Congress cannot act: Certain kinds of federal action are by their very nature so intrusive as to violate the Tenth Amendment regardless of how light a burden is imposed on state officials. Coercive commandeering to the States' legislative processes that effectively compels the States to adopt a federal regulatory scheme is one example. Frank,78 F.3d 815 (2nd Cir. 1996), at 826. Under the structural limits test, the Court found the Brady Law did not violate the Tenth Amendment because it does not “direct the States to enact legislation or to promulgate regulations.” Further, it held that the background check did not transgress the decision in New York supra, because “... the Brady Act is an exercise of Congress's power to regulate individuals.” Id., at 827. *14 While it is true that most provisions of the Brady Law are of general application, the provisions relating to Chief Law Enforcement Officers is only applicable to them in their capacity as creatures of State law, and not as individuals. Further, the Brady Law does “commandeer the legislative process” by augmenting the duties which the legislature of the State prescribes for CLEOs by adding duties which the legislature has declined to prescribe. The Second Circuit also discussed a subjective, quantitative limits test. “Directives aimed solely at States have been upheld if they do not place any particularly ‘onerous burden’ on the State.” Id., citing FERC, supra, 2142. The Second Circuit found that the Brady Law does not impose such an “onerous burden” on CLEOs. Counsel is unable to find support for an “onerous burden” standard in the four comers of New York. However, assuming, arguendo, that there is such a lower threshold for those statutes which do not violate the structural limits of the Tenth Amendment, the Brady Law does, in fact, impose an onerous burden. First, when Congress was considering the Brady Bill, it rejected an amendment which would have forced the Federal Bureau of Investigation to conduct the background checks. H.R. Rep. No. 103-344, 103rd Cong., 1st Sess., at 7 (1993). If the burden is too onerous for the F.B.I., with its financial, material, and personnel resources, then it is, a fortiori, onerous for a Sheriff with two full time deputies and 992 square miles to patrol. Further, the Brady Law, at 18 U.S.C. §925A, provides for a federal cause of action in cases of erroneous determinations of ineligibility. That is, it involuntarily imposes liability upon Orange County, and the State of Vermont. If exposure to unlimited money damages is not an “onerous burden,” the Second Circuit does not explain why it is not. In *15 fact, the liability provision would appear to “commandeer the legislative processes.” It commits the financial resources of the people of Orange County, and of Vermont, under conditions over which the people have no control. It mandates liability for compulsory actions which the people are not permitted to prescribe, alter, or evade. C. There is a conflict in the Circuits on the question which is presented in the instant case, a question regarding the constitutionality of an act of Congress. The Solicitor General agrees that certiorari should be granted on this question. The Court of Appeals, for the Second Circuit, in the instant case, has not followed the decision in New York. The Brady Law violates the Tenth Amendment, and it exceeds the powers granted Congress in the Commerce Clause. This Court should grant a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit. (Appendix not available.) Samuel FRANK, Sheriff, Orange County, Vermont, Petitioner, 1996 WL 33422396 (U.S. ) (Appellate Petition, Motion and Filing ) |
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