Opinion
3:23-cv-00710-YY
08-16-2023
STEVEN B. LONG and MARTIN H. STANWOOD, Plaintiffs, v. MERRICK GARLAND, Attorney General of the United States, STEVEN DETTELBACH, Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosive, and UNITED STATES OF AMERICA, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Plaintiffs Steven B. Long and Martin H. Stanwood, who were each convicted of felonies in federal court in the early 1990s, bring this action for declaratory relief, claiming that 18 U.S.C. § 922(g)(1), which bars them from possessing firearms, violates their federal constitutional rights. Plaintiffs are otherwise prohibited from possessing firearms under Oregon law. Thus, a favorable result in this case would not redress their inability to possess firearms. Because plaintiffs lack standing, defendants' Motion to Dismiss (ECF 7) for lack of subject matter jurisdiction should be granted and this case should be dismissed.
“As a fundamental tenet of the Constitution's case-or-controversy requirement, the failure to establish standing deprives the court of subject matter jurisdiction, without which a court lacks authority to adjudicate the claim.” Fernandez v. 23676-23726 Malibu Rd., LLC, No. 22-55626, 2023 WL 4754577, at *2 (9th Cir. July 26, 2023). If a plaintiff fails to establish standing, the court has “no jurisdiction to hear the case.” Skaff v. Meridien N. Am. Beverly Hills,LLC, 506 F.3d 832, 837 (9th Cir. 2007).
“To establish standing, a plaintiff must demonstrate (1) a concrete and particularized injury that is actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the defendant's challenged conduct; and (3) a likelihood that a favorable decision will redress that injury.” Nat'l Fam. Farm Coal. v. U.S. Env't Prot. Agency, 966 F.3d 893, 908 (9th Cir. 2020) (citation omitted and simplified).
Under 18 U.S.C. § 922(g)(1), the federal statute that bars plaintiffs from possessing firearms, it is “unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to possess any firearm that has been shipped or transported in interstate commerce. Plaintiffs reside in Oregon, which has two statutes prohibiting convicted felons from possessing firearms. Under O.R.S. § 166.270(1), “[a]ny person who has been convicted of a felony . . . under the laws of the Government of the United States, who owns or has in the person's possession or under the person's custody or control any firearm commits the crime of felon in possession of a firearm,” which is a Class C felony. O.R.S. § 166.270(5). This statute does not bar plaintiffs in this case from possessing firearms because they have each been convicted of only one felony, their felony convictions did not involve a criminal homicide or possession of certain weapons, and they have been discharged from imprisonment, parole, or probation for a period of 15 years. O.R.S. § 166.270(4)(a).
However, plaintiffs are otherwise barred from possessing firearms under O.R.S. § 166.250(1)(c)(C), which provides that any person who “knowingly possess a firearm” and “has been convicted of a felony” “commits the crime of unlawful possession of a firearm,” a class A misdemeanor. O.R.S. § 166.250(5). Thus, even if plaintiffs cannot be convicted of a class C felony under O.R.S. 166.270(1), they are nevertheless prohibited from possessing a firearm in Oregon, irrespective of the nature or age of their felony convictions. See State v. Burris, 370 Or. 339, 361 (2022) (holding the “exception for certain older felony convictions in ORS 166.270(4)(a) does not apply to the prohibition on a felon possessing a firearm under ORS 166.250(1)(c)(C)”).
Because plaintiffs are barred from possessing firearms under Oregon law, their injuries would not be redressed by a favorable decision in this case and they lack standing to pursue their claims in federal court. As Chief Judge Hernandez recently explained in a similar case:
Plaintiff is still prohibited from possessing a firearm under Oregon state law . . . Accordingly, Plaintiff's alleged injury-that he is unable to obtain or possess firearms in violation of his Second Amendment rights-would not be redressed by the relief he seeks. Declaratory relief or an injunction that bars federal officials from enforcing . . . Section 922(g)(1) against him would not allow Plaintiff to legally obtain or possess firearms. He would still be prohibited from doing so under Oregon law. Because his injury is not redressable, Plaintiff lacks standing to assert his claim.Porter v. Garland, No. 3:22-CV-01178-HZ, 2023 WL 2140098, at *3 (D. Or. Feb. 17, 2023). Other courts have reached the same result. See Daogaru v. U.S. Att'y Gen., 683 Fed.Appx. 824 (11th Cir. 2017); Kimelman v. Garland, 588 F.Supp.3d 84, 87 (D.D.C. 2022); Sherlund v. Sessions, No. CV18-1126-PHX DGC, 2018 WL 5982602, at *3 (D. Ariz. Nov. 14, 2018).
Plaintiffs contend that they could petition the state circuit court for relief from the prohibition against possessing firearms pursuant to O.R.S. § 166.274. Resp. 3, ECF 9. That statute allows the state circuit court to grant relief where a petitioner “demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner.” O.R.S. § 166.274(7). But plaintiffs have not sought such relief in state court. As defendants correctly observe, “standing depends on the facts ‘as they existed when the complaint is filed.'” Langer v. Kiser, 57 F.4th 1085, 1092 (9th Cir. 2023) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (1992)); see also Lujan, 504 U.S. at 569 n.4 (rejecting argument that facts that occurred after the complaint was filed “retroactively created a redressability (and hence a jurisdiction) that did not exist at the outset”). Because plaintiffs lacked standing at the time they filed this case, the court lacks subject matter jurisdiction and this case must be dismissed.
In fact, plaintiffs concede there are “two impediments to having their gun rights restored, one federal, one state,” and explain they “have simply chosen to tackle this bigger problem first.”
RECOMMENDATIONS
Defendants' Motion to Dismiss (ECF 7) should be granted and this case should be dismissed due to lack of subject matter jurisdiction.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, August 30, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.