Paxton v. Restaino

683 F.Supp.3d 565

Ken PAXTON, et al., Plaintiffs, v. Gary M. RESTAINO, et al., Defendants.

No. 4:22-cv-0143-P

United States District Court, N.D. Texas, Fort Worth Division

Signed July 18, 2023

Charles K. Eldred, Johnathan Stone, Attorney General of Texas, Administrative Law Division, Austin, TX, for Plaintiff Ken Paxton.

Tony Keith McDonald, Garrett McMillan, The Law Offices of Tony McDonald, Leander, TX, Warren V. Norred, Norred Law PLLC, Arlington, TX, for Plaintiffs David Schnitz, Tracy Martin, Floice Allen.

Emily Brooke Nestler, United States Department of Justice, Civil Division, Washington, DC, for Defendants.

OPINION & ORDER

Mark T. Pittman, United States District Judge

The guidance from our high court on standing continues to be "a morass of imprecision."¹ N.H. Rt. to Life Pol. Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996). At best, standing is now "unsettled in nature [and] beset with difficulties." Thompson v. Cnty. of Franklin, 15 F.3d 245, 247 (2nd Cir. 1994). But luckily for this Court, though no one can pinpoint the height of the doctrine's "amorphous" bar, it is easy to determine that these Plaintiffs have fallen short of it.

BACKGROUND

I. The Regulatory Scheme

The National Firearms Act ("NFA")—passed by Congress in 1934—as amended by the Gun Control Act ("GCA")—passed by Congress in 1968—regulates the possession and manufacturing of firearm silencers (or "suppressors"). 26 U.S.C. § 5845. To make a silencer for personal use, the GCA requires individuals to file a written application to make and register the silencer, identify themselves and the silencer they wish to make, and pay a $200 tax. 26 U.S.C. § 5822. Applications to make silencers must be approved before the applicant may make the silencer. Id. And it is a crime to possess an unregistered silencer or make a silencer in violation of these procedures. 26 U.S.C. § 5872.

Applications to make and register silencers are denied if approving them would cause the applicant to violate another law—i.e., if approving an application would result in a convicted felon's possession of a firearm. See § 5822.

II. The Parties

Floice Allen, Tracy Martin, and David Schintz ("Individual Plaintiffs") are citizens who wish to make silencers at home without filing an application or paying the tax. They allege that it violates their Second Amendment rights for the federal government to require them to seek permission and pay a tax to make silencers at home for personal, non-commercial use. Plaintiffs also allege that they do not intend to make their silencers from any major component part manufactured outside of Texas, that they intend to own these silencers in perpetuity, and that they seek to make them for the exclusive purpose of home defense. But Plaintiffs have neither alleged that they in fact possess an illegal, non-registered silencer nor that they have attempted to complete the application to make one or paid the tax.

The State of Texas joins as a plaintiff to vindicate what it sees as its "quasi-sovereign interests" in its residents' ability to make silencers at home—uninhibited by federal regulation. Texas alleges that its residents' physical and economic well-being are at stake because the making and use of these silencers would protect an individual's ability to hear would-be home intruders and improve their ability for self-defense.

LEGAL STANDARD

Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact" and "is entitled to judgment as a matter of law." FED. R. CIV. P. 55(a). A dispute is "genuine" if the evidence presented would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242-43, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" when it might affect the outcome of a case. Id. at 248, 106 S.Ct. 2505. When determining whether summary judgment is appropriate, the Court views the evidence in the light most favorable to the nonmovant. First Am. Title Ins. Co. v. Cont'l Cas. Co., 709 F.3d 1170, 1173 (5th Cir. 2013). In conducting its evaluation, the Court may rely on any admissible evidence available in the record but need only consider those materials cited by the parties. FED. R. CIV. P. 55(c)(1)-(3).

ANALYSIS

I. Standing

Under Article III of the Constitution, "cases" or "controversies" only exist when a plaintiff has standing to sue. United States v. Texas, 599 U.S. 670, 143 S.Ct. 1964, 1966, 216 L.Ed.2d 624 (2023). Standing has three basic requirements. Lujan v. Def. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, there must be a concrete injury in fact that is not conjectural or hypothetical. Whitmore v. Arkansas, 495 U.S. 149, 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Second, there must be causation—a fairly traceable connection between a plaintiff's injury and the complained-of conduct of the defendant. Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Third, there must be redressability—a likelihood that the requested relief will redress the alleged injury. See Lujan, 504 U.S. at 562, 112 S.Ct. 2130.

Here, the Parties only contest whether Plaintiffs have suffered an injury in fact. The Court therefore sights its analysis on that element.

A. Individual Plaintiffs' Injury In Fact

Individual Plaintiffs allege that they are susceptible to two injuries. First, Individual Plaintiffs allege that their intent to engage in criminalized conduct—which they argue is constitutionally protected—opens them to the future injury of prosecution. Second, Individual Plaintiffs allege they would be injured because the application process, registration requirements, and the tax violate their constitutional rights. In essence, Individual Plaintiffs argue that they should not have to comply with the regulatory and tax scheme at issue because making silencers is protected under the Second Amendment.

1. Future Criminal Enforcement

An allegation of future injury may suffice for Article III if the threatened injury is certainly impending, imminent, or there is a substantial risk that the harm will occur. Clapper v. Amnesty Intern. USA, 568 U.S. 398, 415-16 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Alleging that a future injury is merely "possible" is not enough, Id. at 409, 133 S.Ct. 1138, because imminence "cannot be stretched beyond its purpose[, to ensure] that the alleged injury is not too speculative for Article III." Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130.

A plaintiff bringing a pre-enforcement challenge to a criminal statute must "demonstrate a realistic danger of sustaining a direct injury [from its] enforcement." Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). And plaintiffs who allege an intent to engage in proscribed conduct affected by a constitutional interest do not need to "expose [themselves] to actual arrest or prosecution" before they may challenge the law. Id. (citing Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). But a plaintiff fails to allege a case or controversy when they do not allege that they have ever been threatened with prosecution or that prosecution is likely. Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Umphress v. Hall, 500 F.Supp.3d 553, 559 (N.D. Tex. 2020) (Pittman, J.).

Individual Plaintiffs are correct that the government has a history of prosecuting the illegal possession of unregistered silencers. But these Plaintiffs have adduced no evidence that they, in fact, possess any illegal silencers—or otherwise attempted any prohibited conduct. Nor have they shown that they have been threatened with prosecution or that it is likely. And our doctrines of criminal law forbid convicting persons for mere thoughts, desires, or motives. See, e.g., United States v. Ferguson, 65 F.4th 806, 812 (6th Cir. 2023). Individual Plaintiffs therefore fail to allege a substantial risk of prosecution based solely on the desire to do something the government has prosecuted in the past. So, Individual Plaintiffs' fear of prosecution is "imaginary or speculative" at best—and insufficient for Article III standing. Umphress, 500 F.Supp.3d at 559 (citing Younger, 401 U.S. at 42, 91 S.Ct. 746).

2. Constitutional Injury

Alleging that a law is unconstitutional does not remove a plaintiff's burden to establish standing to challenge it. See, e.g., Henschen v. City of Hous., Tex., 959 F.2d 584 (5th Cir. 1992). To sue, a plaintiff must be concretely injured by the law they seek to challenge. Whitmore, 495 U.S. at 149, 110 S.Ct. 1717.

Individual Plaintiffs have not attempted to apply to make and register a silencer. And assuming that they are correct about the unconstitutional nature of the requirements, it is immaterial whether an application is ultimately approved or denied. Either an application is wrongfully denied, and a plaintiff is injured because the government has deprived them of a silencer, or an application is approved, and a plaintiff is injured by being subjected to the process and tax. But Individual Plaintiffs' intent—by itself—to make a silencer in violation of these requirements fails to establish that they have been concretely injured by the process they seek to challenge.²

B. Texas's Standing

The State of Texas "has no [Second Amendment] rights of its own." Haaland v. Brackeen, 599 U.S. 255, 143 S. Ct. 1609, 1640, 216 L.Ed.2d 254 (2023). Thus, Texas alleges that it has standing to defend its "quasi-sovereign interest in the health and well-being—both physical and economic of its residents in general." ECF No. 49-2 at 28. Texas claims a "quasi-sovereign interest" in protecting its residents' ability to make silencers free of federal regulation, specifically for Plaintiffs' ability to "diminish the need to obtain and use hearing protection in the event of a home invasion." Id.

The parens patriae action...