Michelle Lane v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-00503-GBL-TRJ Paper copies to all parties and the district court/agency. [999012725]. [11-1847]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHELLE LANE; SECOND
AMENDMENT FOUNDATION, INC.;
MATTHEW WELLING; AMANDA
WELLING,
Plaintiffs-Appellants,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States; W.
STEVEN FLAHERTY, Superintendent,
Virginia State Police,
Defendants-Appellees,
and
DISTRICT OF COLUMBIA,
Defendant.





No. 11-1847



Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:11-cv-00503-GBL-TRJ)
Argued: October 23, 2012
Decided: December 31, 2012
Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Motz and Judge Floyd joined.

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COUNSEL
ARGUED: Alan Gura, GURA & POSSESSKY, PLLC, Alexandria, Virginia, for Appellants. Anisha S. Dasgupta,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Earle Duncan Getchell, Jr., OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
ON BRIEF: Tony West, Assistant Attorney General, Michael
S. Raab, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellee Eric H. Holder, Jr. Kenneth T. Cuccinelli, II, Attorney General, Wesley G. Russell,
Jr., Deputy Attorney General, Catherine Crooks Hill, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee W. Steven
Flaherty.

OPINION
DUNCAN, Circuit Judge:
Michelle Lane, Amanda and Matthew Welling, and the
Second Amendment Foundation ("SAF") (collectively, "the
plaintiffs") filed a pre-enforcement challenge to the constitutionality of a federal statute restricting interstate transfers of
handguns, 18 U.S.C. § 922(b)(3); a federal regulation implementing that statute, 27 C.F.R. § 478.99; and a Virginia law
prohibiting Virginia firearms dealers from selling handguns to
non-residents of Virginia, Va. Code section 18.2-308.2:2. The
district court dismissed their complaint on standing grounds.
It concluded that any injury to the plaintiffs resulted from
decisions made by third parties rather than the application of
the challenged laws to them directly, and therefore, that they
lacked standing. On appeal, the plaintiffs argue that their
alleged injuries are traceable to the challenged laws. For the
reasons that follow, we affirm.

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I.
A.
Congress enacted the federal statute at issue, 18 U.S.C.
§ 922(b)(3), part of the Gun Control Act of 1968, Pub. L. No.
90-618, 82 Stat. 1213, "to strengthen Federal controls over
interstate and foreign commerce in firearms and to assist the
States effectively to regulate firearms traffic within their borders." H.R. Rep. No. 90-1577, at 6 (1968), reprinted in 1968
U.S.C.C.A.N. 4410, 4411. One of the mechanisms for doing
so was a requirement that interstate transfers of firearms take
place through federal firearms licensees ("FFLs"). 18 U.S.C.
§ 922(a)(1)-(5). Under the federal statute, a buyer may purchase a handgun from an out-of-state source, but that source
must be a FFL and the buyer must arrange for the handgun to
be delivered to an in-state FFL, from whom the buyer may
retrieve the gun. See id. § 922(b). In contrast, FFLs may sell
or deliver a rifle or shotgun to an out-of-state resident if the
transferee meets in person with the FFL in the state where she
wishes to buy the firearm and if the transfer complies with the
laws of both the transferee’s and transferor’s states. The
Bureau of Alcohol, Tobacco and Firearms issued implementing regulations that closely track the federal statute. See 27
C.F.R. § 478.99.
Virginia’s statute likewise permits the sale or transfer of a
rifle or shotgun to a non-resident of Virginia, but prohibits the
direct sale or transfer of a handgun to a non-resident. Va.
Code sections 18.2-308.2:2(B)(5), (C). As with the federal
statute, to sell or transfer a handgun to a non-resident, the firearms dealer must send the gun to a firearms dealer in the nonresident’s home state, from whom the buyer may retrieve the
gun. Id.

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B.
Lane and the Wellings are residents of Washington, D.C.
who wish to acquire handguns from other states. Lane ordered
two handguns from a FFL in Virginia. She was originally
unable to take possession of the handguns, as Washington,
D.C.’s sole FFL, Charles Sykes, had lost his lease and was no
longer in business.1 She contends that but for the interstate
handgun transfer prohibitions, she would have taken possession of the handguns directly in the Virginia store. Since the
time of the district court’s dismissal of this case, Sykes has
reestablished his business, and Lane has been able to acquire
one of her out-of-state handguns from him. To obtain a gun
moving interstate from Sykes, Washington, D.C. residents
must pay a transfer fee. The Wellings hoped to acquire a
handgun from Amanda Welling’s father, who wished to transfer the gun to her through a Virginia FFL. Generally, Lane
and the Wellings assert that they "would participate more frequently in the market for handguns but for the interstate handgun transfer ban." Appellants’ Br. at 18. They find the various
transactions they must undertake to acquire a handgun "burdensome and expensive." Id.
SAF is a non-profit membership organization with members from across the country, including Washington, D.C. and
Virginia. Its purposes include "promoting the exercise of the
right to keep and bear arms; and education, research, publishing and legal action focusing on the Constitutional right to
privately own and possess firearms, and the consequences of
gun control." J.A. 29. SAF contends that the challenged laws
have caused it to expend resources in response.
1

There was some dispute below about whether there were any FFLs in
business in Washington, D.C. at the time this case was before the district
court. The district court assumed for purposes of argument that the plaintiffs were presently unable to receive interstate transfers of handguns
because there were no FFLs operating in Washington, D.C. At this juncture, however, the parties agree that at least one FFL operates in Washington, D.C.

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II.
The plaintiffs sought injunctive and declaratory relief
against Eric Holder, Jr., in his official capacity as Attorney
General of the United States, and W. Stephen Flaherty, in his
official capacity as Superintendent of the Virginia State
Police, to prevent enforcement of 18 U.S.C. § 922(b)(3), 27
C.F.R. § 478.99, and Va. Code section 18.2-308.2:2, to the
extent these laws prohibit the acquisition of handguns by outof-state residents.2 The plaintiffs moved for a preliminary
injunction. In a hearing on that motion, the district court dismissed the case for lack of standing. The plaintiffs now
appeal.
III.
To have standing, a plaintiff must be able to show:
(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180–81 (2000).
We review a district court’s decision to dismiss for lack of
standing de novo. See Doe v. Obama, 631 F.3d 157, 160 (4th
Cir. 2011).
2

The complaint also challenged Washington, D.C. municipal regulations, which have since been modified. Upon Washington, D.C.’s amendment of its regulations, the plaintiffs moved to dismiss their claims against
Washington, D.C., and we granted their motion.

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A.
1.
To establish an injury in fact as required by the first prong
of our standing analysis, the plaintiffs must demonstrate that
their claim rests upon "a distinct and palpable injury" to a
legally protected interest. Warth v. Seldin, 422 U.S. 490, 501
(1975). This injury must "affect the plaintiff[s] in a personal
and individual way." Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 n.1 (1992).
The plaintiffs assert that the challenged laws result in "a
restriction on the range of retailers available to consumers of
constitutionally-protected articles." Appellants’ Br. at 23.
This, they contend, constitutes a constitutional injury that has
frequently been considered sufficient for standing by the
Supreme Court. We find that because the challenged regulations do not affect the plaintiffs directly, their situation is distinguishable from the cases in which the Supreme Court has
deemed such a restriction to constitute an injury in fact.
A plaintiff who alleges an injury based on restriction of distribution channels may be able to show standing if the defendant’s actions directly affect that plaintiff. For instance, the
Supreme Court found that a distributor of contraceptives had
standing to challenge a law barring all but licensed pharmacists from selling contraceptives. Carey v. Pop. Servs. Int’l,
431 U.S. 678, 682-83 (1977). In Carey, however, the lead
plaintiff was a distributor directly regulated by the law being
challenged. Id. The plaintiffs in this case are in a fundamentally different situation, as the laws and regulations they challenge do not apply to them but rather to the FFLs from whom
they would buy handguns. It is the absence of a direct effect
that distinguishes the facts before us from those in decisions
on which plaintiffs seek to rely.
Consumers burdened by regulation of the sellers they transact with may be able to establish that they have suffered an

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injury in fact, as the Supreme Court has made clear in the
context of Commerce Clause litigation. See Gen. Motors
Corp. v. Tracy, 519 U.S. 278, 286 (1997) (holding that "cognizable injury from unconstitutional discrimination against
interstate commerce does not stop at members of the class
against whom a State ultimately discriminates, and customers
of that class may also be injured," as is the case when a customer is liable to pay a tax when buying from an out-of-state
producer). Again, however, the plaintiffs in Tracy were burdened directly, as the government required them to pay a tax
upon buying products from out-of-state sellers. See Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin County, 115 F.3d
1372, 1381 (8th Cir. 1997) (concluding that Tracy and related
Commerce Clause cases "do not stand for the proposition that
consumers paying the end-line cost of an economic regulation
have standing to challenge the regulation under the Commerce Clause," because plaintiffs in those cases "were not
alleging that they incurred a passed-on cost; rather, the plaintiffs—not the out-of-state entities—were directly assessed the
challenged taxes"). No such government-imposed assessment
is levied against the plaintiffs here.
In a somewhat different context, several of our sister circuits have found standing for wine consumers prevented from
acquiring wine directly from out-of-state wine sellers as a
result of marketplace regulation. See Freeman v. Corzine, 629
F.3d 146, 154 (3d Cir. 2010); Bridenbaugh v. FreemanWilson, 227 F.3d 848, 849-850 (7th Cir. 2000). The plaintiffs
in those cases alleged that they were unable to acquire the
wines they wished to purchase through interstate commerce.
Here, the plaintiffs are not prevented from obtaining the handguns they desire. At worst, they are burdened by additional
costs and logistical hurdles.
These minor inconveniences are distinct from an absolute
deprivation. To obtain a handgun from another state, the
plaintiffs must pay a transfer fee and visit multiple FFLs, but
the laws do not prevent them from exercising their Second

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Amendment right to bear arms. This case thus differs from
those in which courts have found standing for plaintiffs prevented outright from obtaining or possessing firearms. See,
e.g., Ezell v. Chicago, 651 F.3d 684, 695, 698 (7th Cir. 2011)
(finding standing where plaintiffs complained that a ban on
firing ranges within the city, accompanied by a requirement
that firearm owners have completed training at a firing range,
unconstitutionally impaired their Second Amendment right,
emphasizing that "the occasional expense and inconvenience
of having to travel to a firing range in the suburbs . . . [is] not
the relevant constitutional harm"); Dearth v. Holder, 641 F.3d
499, 502-03 (D.C. Cir. 2011) (finding standing where a regulation prevented plaintiff from legally obtaining a firearm in
the United States at all). The plaintiffs in this case do not
allege such an injury. In fact, at least one of them has been
able to purchase a handgun since the beginning of this litigation.3
Because the challenged laws do not burden the plaintiffs
directly, and because the plaintiffs are not prevented from
acquiring the handguns they desire, they do not allege an
injury in fact.
2.
Even if the plaintiffs could demonstrate injury in fact, they
must still establish that their alleged injury is traceable to the
challenged laws.4 The plaintiffs contend that the district court
erred in finding that they failed to do so. The plaintiffs allege
that their injury stems from an inability to obtain their firearms from a store in Virginia, which inhibits them from
3

For the same reason, Doe v. Bolton, 410 U.S. 179 (1973), which the
plaintiffs cite in arguing that a restriction in distribution channels constitutes an injury in fact, is distinguishable. As in Dearth and Ezell, the challenged law in Doe prevented the plaintiff from exercising a constitutional
right.
4
Like the district court, the plaintiffs focus on the element of traceability. Because we agree with the district court that traceability is absent,
we do not reach the separate requirement of redressability.

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obtaining the handguns they want in the manner they desire.
The plaintiffs argue that the associated burden and expense is
a direct consequence of the challenged laws.
As the district court noted, however, any injury to the plaintiffs is caused by decisions and actions of third parties not
before this court rather than by the laws themselves. For this
reason, they face an uphill battle in establishing traceability.
"[W]hen a plaintiff is not the direct subject of government
action, but rather when the ‘asserted injury arises from the
government’s allegedly unlawful regulation (or lack of regulation) of someone else,’ satisfying standing requirements will
be ‘substantially more difficult.’" Frank Krasner Enters., Ltd.
v. Montgomery County, 401 F.3d 230, 234–35 (4th Cir. 2005)
(quoting Lujan, 504 U.S. at 562).
In Krasner, a gun show promoter and a gun show exhibitor
sought to challenge a law that would revoke a subsidy from
any venue that allowed the display or sale of guns on site. Id.
at 232. In response to the law, the venue in which the gun
show promoter had regularly leased space declined to renew
its lease. Id. We determined that the plaintiffs could not establish traceability, as the "purported injury . . . is not directly
linked to the challenged law because an intermediary . . .
stands directly between the plaintiffs and the challenged conduct in a way that breaks the causal chain." Id. at 236.
In challenging laws that do not apply directly to would-be
handgun purchasers, Lane and the Wellings are in a similar
posture to that of the plaintiffs in Krasner.5 As was true there,
5

The plaintiffs aver that if they take possession of handguns in Virginia,
they will be arrested and prosecuted. Whether or not this is true, the law
prohibits FFLs from conveying the handguns to the plaintiffs in Virginia
in the first place. Moreover, the plaintiffs’ attempts to analogize this case
to Dearth, 641 F.3d 499, are unavailing. In that case, the law at issue precluded the plaintiff from purchasing a firearm altogether. Id. at 504. The
standing question in Dearth was whether the plaintiff alleged an injury in
fact; traceability was not at issue. Id.

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the costs the plaintiffs complain of are not traceable to the
laws they challenge, but to the FFLs that charge transfer fees.
See Krasner, 401 F.3d at 232; see also San Diego County Gun
Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996)
(holding that plaintiffs lacked standing to challenge legislation that, by banning certain guns, resulted in dealers raising
prices on guns and ammunition the plaintiffs wished to purchase, because "nothing in the Act directs manufacturers or
dealers to raise the price of regulated weapons."); cf. Common
Cause v. Dep’t of Energy, 702 F.2d 245, 251 (D.C. Cir. 1983)
(noting that "where injury is alleged to occur within a market
context, the concepts of causation and redressability become
particularly nebulous and subject to contradictory, and frequently unprovable, analyses"). Nothing in the challenged
legislation or regulations directs FFLs to impose such
charges. Because any harm to the plaintiffs results from the
actions of third parties not before this court, the plaintiffs are
unable to demonstrate traceability.
B.
The plaintiffs argue that even if Lane and the Wellings lack
standing, SAF should still be able to bring this action.6 In
determining whether an organization has standing, we must
conduct the same inquiry as in the case of an individual. See
Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982).
An organization may suffer an injury in fact when a defen6

Because Lane and the Wellings do not have standing to sue, it follows
that SAF does not have associational standing. An association has standing when "(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit." Hunt v.
Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). SAF
fails the first prong of Hunt’s associational standing test. Thus, if SAF
were to have standing, it would be as a result of independent injury to it
as an organization.

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dant’s actions impede its efforts to carry out its mission. See
id. at 379. For instance, in Havens, an organization dedicated
to promoting equal opportunity in housing sued a real estate
company that allegedly practiced racial steering. Because the
defendant’s alleged practices "perceptibly impaired [the organization’s] ability to provide counseling and referral services
for low- and moderate-income homeseekers," a key component of the plaintiff organization’s mission, that plaintiff suffered an injury in fact. Id.
The plaintiffs analogize SAF’s position to that of the organization in Havens. Part of the harm to the organization in
Havens took the form of a drain on its resources, and here the
plaintiffs likewise assert that SAF has been injured because its
"resources are taxed by inquiries into the operation and consequences of interstate handgun transfer provisions." Appellants’ Br. at 33.
This "mere expense" to SAF does not constitute an injury
in fact, however. Although a diversion of resources might
harm the organization by reducing the funds available for
other purposes, "it results not from any actions taken by [the
defendant], but rather from the [organization’s] own budgetary choices." Fair Emp’t Council of Greater Washington, Inc.
v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994). To
determine that an organization that decides to spend its money
on educating members, responding to member inquiries, or
undertaking litigation in response to legislation suffers a cognizable injury would be to imply standing for organizations
with merely "abstract concern[s] with a subject that could be
affected by an adjudication." Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 40 (1976); see BMC Mktg., 28 F.3d at
1277; Ass’n for Retarded Citizens of Dallas v. Dallas County
Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19
F.3d 241, 244 (5th Cir. 1994) (noting that finding standing for
an organization that redirects some of its resources to litigation and legal counseling in response to actions of another
party would "impl[y] that any sincere plaintiff could bootstrap

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standing by expending its resources in response to actions of
another"). Such a rule would not comport with the case or
controversy requirement of Article III of the Constitution.
We therefore conclude that neither SAF nor the individual
plaintiffs have standing.
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.