Brady Campaign to Prevent Gun Violence v. Brownback et al

Filing 27

MEMORANDUM AND ORDER granting 13 Motion to Dismiss. This case is dismissed in its entirety without prejudice for lack of subject matter jurisdiction. Signed by District Judge Julie A. Robinson on 6/5/15. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRADY CAMPAIGN TO PREVENT GUN
VIOLENCE, on its institutional behalf and on
behalf of its members,
Plaintiff,
v.
SAM BROWNBACK, et al.,
Defendants.

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Case No. 14-CV-2327-JAR

MEMORANDUM AND ORDER
Plaintiff Brady Campaign to Prevent Gun Violence (“Brady Campaign”) brings this lawsuit
seeking declaratory and injunctive relief against Kansas Governor Sam Brownback, Kansas Attorney
General Derek Schmidt, and all other persons acting on behalf of the state of Kansas (collectively,
“Defendants”), in their official capacities. Specifically, Brady Campaign requests the Court to declare
unconstitutional and enjoin Defendants from enforcing the Kansas Second Amendment Act, which
prohibits application of some federal gun control laws to personal firearms made and kept within
Kansas borders.1 The case is now before the Court on Defendants’ Motion to Dismiss (Doc. 13).
That motion is fully briefed and the Court is prepared to rule.2

1

K.S.A. §§ 50-1201–1211.

2

Having reviewed the parties’ briefs, the Court finds that oral argument would not materially assist the
Court in resolving the legal issues presented in Defendants’ motion.

As explained in detail below, Brady Campaign lacks Article III standing to challenge the
Second Amendment Protection Act in this lawsuit because it has not shown that enforcement of the
statute inflicts an actual or imminently-threatened injury on any Brady Campaign member. Accordingly,
this Court lacks subject matter jurisdiction to consider the merits of this lawsuit and must grant
Defendants’ motion to dismiss.
I.

Background
In April 2013, the Kansas legislature passed the Second Amendment Protection Act (the

“Act”), codified at K.S.A. §§ 50-1201 through 50-1211. The Act begins by declaring federal
Commerce Clause legislation inapplicable to certain firearms and firearm accessories within the state of
Kansas:
A personal firearm, a firearm accessory or ammunition that is
manufactured commercially or privately and owned in Kansas and that
remains within the borders of Kansas is not subject to any federal law,
treaty, federal regulation, or federal executive action, including any
federal firearm or ammunition registration program, under the authority
of [C]ongress to regulate interstate commerce. It is declared by the
legislature that those items have not traveled in interstate commerce.3
Section 50-1206(b) prohibits state employees and employees of local governments from enforcing
federal regulations in a manner inconsistent with the Act:
No official, agent or employee of the state of Kansas, or any political
subdivision thereof, shall enforce or attempt to enforce any act, law,
treaty, order, rule or regulation of the government of the United States
regarding any personal firearm, firearm accessory or ammunition that is
manufactured commercially or privately and owned in the state of

3

K.S.A. § 50-1204(a).

2

Kansas and that remains within the borders of Kansas.4
The Act also contains enforcement provisions. In particular, § 50-1207 makes it a felony for federal
officials or agents to attempt to duly enforce federal regulations in violation of the Act:
It is unlawful for any official, agent or employee of the government of
the United States, or employee of a corporation providing services to
the government of the United States to enforce or attempt to enforce
any act, law, treaty, order, rule or regulation of the government of the
United States regarding a firearm, a firearm accessory, or ammunition
that is manufactured commercially or privately and owned in the state of
Kansas and that remains within the borders of Kansas. Violation of this
section is a severity level 10 nonperson felony.5
Additionally, § 50-1208 permits the state attorney general and county and district attorneys to seek
injunctive relief to enforce the provisions of § 50-1207 against federal officials, agents, or employees.6
The Act does not expressly authorize similar civil or criminal enforcement proceedings against state or
local employees.
Plaintiff Brady Campaign is a non-profit organization long committed to reducing gun violence
nationwide. It alleges that the Act is an unconstitutional attempt to nullify federal gun control
regulations. Brady Campaign alleges, for example, that the Act prohibits background checks for
“Kansas” firearms, permits undocumented and unlicensed manufacture and sale of those firearms, and
allows those firearms to be manufactured without serial numbers—all in clear violation of federal gun

4

Id. § 50-1206(b).

5

Id. § 50-1207.

6

Id. § 50-1208.

3

control laws like the National Firearms Act of 19347 and the Gun Control Act of 1968.8 If state and
local officials continue to enforce the Act, Brady Campaign contends, the statute’s civil and criminal
enforcement provisions will have the effect of deterring application of federal gun laws in Kansas,
increasing the risk of gun violence within the state.
At least one Brady Campaign member—City of Hiawatha, Kansas Mayor Crosby
Gernon—fears he will be criminally prosecuted or held civilly liable under the Act’s enforcement
provisions. In his office as mayor, Crosby Gernon is vested with all executive and administrative
authority in the city, and the Hiawatha Chief of Police is subject to Mayor Gernon’s orders and policy
decisions. Mayor Gernon is also involved in the hiring and firing of the Chief of Police as well as
serious disciplinary matters concerning local police officers. Brady Campaign alleges that as a result of
these duties, Mayor Gernon is subject to criminal prosecution as a “federal agent” “for any enforcement
activities that involve federal authorities.”9 Moreover, since Mayor Gernon is also a professor at the
University of Kansas School of Medicine and a physician with the University of Kansas Hospital,
Brady Campaign asserts he is an “official, agent, or employee of the state of Kansas” within the
meaning of § 50-1206(b), and may therefore be held civilly liable under the Act if he enforces federal
gun regulations in his office as mayor.
Other Brady Campaign members residing in Kansas fear that the Act compromises their
personal safety. Paul Temme, for example, was present at a horrific mass shooting at the Jewish

7

26 U.S.C. §§ 5801–5872.

8

18 U.S.C. §§ 921–931.

9

Doc. 19 at 15.

4

Community Center of Greater Kansas City in April 2014, and has “been the subject of hateful internet
attacks” since he began speaking publicly about that experience.10 Does 1 and 2 were also present at
the Jewish Community Center shooting. Temme now fears for his safety “since the Act makes it easier
for dangerous individuals . . . to obtain firearms and bring them into public places.”11 Harold Koch,
another member of both the Brady Campaign and the Jewish Community Center of Greater Kansas
City, tragically lost his fourteen-year-old brother in a shooting in Missouri in 1953 and has received
threats due to his activism in the gun violence prevention movement. Because of these experiences,
Koch “has a heightened fear of gun violence that is exacerbated by the Act.”12 Similarly, Susan Blaney
and Loren Stanton are both active members of groups dedicated to preventing gun violence in Kansas.
With passage of the Act, both now fear for their own safety and the safety of their grandchildren. Two
other Brady Campaign members are long-time residents of Johnson County, Kansas, and were also
present at the April 13, 2014, shooting at the Kansas City JCC. The names of both members were
withheld from the Complaint due to their fear for the physical safety of their respective families and due
to the fear of retaliation from state and local authorities for their participation in the current lawsuit.
Brady Campaign thus brings this action seeking an injunction to prevent Defendants from
enforcing the Act as well as a declaratory judgment that the Act is unconstitutional on its face. Brady
Campaign alleges four causes of action: (1) the Act is unconstitutional under the Supremacy Clause of
the United States Constitution because it purports to nullify federal gun control laws and regulations and

10

Doc. 1 ¶ 19.

11

Id.

12

Doc. 1 at 20.

5

to define the limits of congressional authority under the Commerce Clause; (2) the Act is void for
vagueness under the United States Constitution because it is insufficiently explicit to inform who may be
subject to its enforcement provisions or what conduct on their part will render them liable for penalties;
(3) the Act is void for vagueness under the Kansas Constitution for the same reasons; and (4) under 42
U.S.C. § 1983 for deprivation of due process under the Fourteenth Amendment.
Defendants move to dismiss the action on the following grounds: (1) that Brady Campaign lacks
standing to sue; (2) that Defendants are immune from suit under the Eleventh Amendment; and (3) that
Plaintiff fails to state a claim upon which relief may be granted.
II.

Discussion
Defendants argue that Brady Campaign lacks standing to sue on its claims that the Second

Amendment Protection Act is unconstitutional under federal and state law. Article III of the
Constitution gives federal courts the power to exercise jurisdiction only over “Cases” and
“Controversies.” As the Supreme Court has explained, “[i]n limiting the judicial power to ‘Cases’ and
‘Controversies,’ Article III of the Constitution restricts it to the traditional role of Anglo-American
courts, which is to redress or prevent actual or imminently threatened injury to persons caused by
private or official violation of law. Except when necessary in the execution of that function, courts have
no charter to review and revise legislative and executive action.”13
One of several doctrines reflecting Article III’s case-or-controversy limitation on the judicial
power is the doctrine of standing. That doctrine requires federal courts, before considering the merits

13

Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009).

6

of an action, to “‘satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of
the controversy as to warrant [the plaintiff’s] invocation of federal-court jurisdiction.’”14
Plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing each element
of standing “with the manner and degree of evidence required at the successive stages of the
litigation.”15 Standing is evaluated based on the facts as they exist at the time the Complaint is filed.16
At the pleading stage, the Court “‘presume[s] that general allegations embrace those specific facts that
are necessary to support the claim,’”17 and “general factual allegations of injury resulting from the
defendant’s conduct may suffice.’”18 Nonetheless, the Court is “not bound by conclusory allegations,
unwarranted inferences, or legal conclusions.”19
Where, as here, a plaintiff organization brings suit on behalf of its members, the organization has
standing to sue if “(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.”20 The
second and third prongs of this test are not in question: the interests Brady Campaign seeks to protect

14

Id. at 493 (quoting Warth v. Seldin, 422 U.S. 490, 498–99 (1975)).

15

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th
Cir. 2004).
16

Tandy, 380 F.3d at 1284.

17

Lujan, 504 U.S. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)).

18

Id.

19

Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994) (citations omitted).

20

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).

7

in this action are germane to its purpose of reducing gun violence, and no one suggests the claims and
relief requested require the participation of Brady Campaign’s members. The question before the
Court, therefore, is whether Brady Campaign has shown that one or more of its members would have
standing to sue individually.
The Supreme Court has found the “irreducible constitutional minimum of standing” to contain
three elements:
First, the plaintiff must have suffered an “injury in fact”—an invasion of
a legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the conduct
complained of—the injury has to be “fairly . . . trace[able] to the
challenged action of the defendant, and not . . . th[e] result of the
independent action of some third party not before the court.” Third, it
must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”21
To establish standing for prospective injunctive relief, “a plaintiff must be suffering a continuing injury or
be under a real and immediate threat of being injured in the future.”22
The parties dispute whether Plaintiff suffers an “injury in fact,” specifically, whether Brady
Campaign alleges an injury that is sufficiently imminent.23 Defendants contend that Brady Campaign

21

Lujan , 504 U.S. at 560–61 (internal quotation marks and citations omitted).

22

Tandy, 380 F.3d at 1283. Defendants also argue in their motion that Brady Campaign fails to demonstrate
“prudential standing.” There has been some recent “tension” between prudential standing challenges and the
Supreme Court’s repeated affirmation of the principle that “a federal court’s ‘obligation’ to hear and decide” cases
within its jurisdiction “is ‘virtually unflagging.’ ” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1386 (2014) (quoting Sprint Communications, Inc. v. Jacobs,134 S.Ct. 584, 591 (2013)); Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2347 (2014). Nonetheless, the Court need not reach Defendants’ prudential standing
arguments because it decides this case on grounds of Article III standing.
23

This inquiry is closely tied to another justiciability issue—ripeness. The ripeness doctrine asks “‘whether
there is sufficient hardship to the parties in withholding court consideration until there is enforcement action.’”
Meimmune, Inc. v. Genetech, Inc., 549 U.S. 118, 128 n.8 (2007) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149

8

bases its standing on speculative fears of possible future harm and, thus, has failed to allege an imminent
injury. Brady Campaign, on the other hand, urges that its members’ prospective injuries are sufficiently
imminent to give it standing to sue because: (a) Brady Campaign members residing in Kansas face an
imminent threat of gun violence as a result of the Act, and (b) Mayor Gernon faces an imminent threat
of prosecution and civil liability under the Act’s enforcement provisions. The Court will address each
asserted injury separately.
A.

Fear and Other Emotional Harms Associated with Changes to Firearms Laws

Brady Campaign first contends that the Act, by nullifying federal gun control laws designed to
ensure public safety, makes the state of Kansas a more dangerous place. Brady Campaign does not
claim that any of its members have suffered an actual injury from a “Kansas” firearm or any other
weapon as a result of the Act’s enforcement. Rather, Brady Campaign argues that the Act imposes an
unacceptable risk of future gun violence on the organization’s Kansas-based members. That risk,
Brady Campaign contends, is sufficiently imminent to satisfy Article III’s injury-in-fact requirement.
For an asserted injury to be imminent, it must be real and immediate—not remote, speculative,
conjectural, or hypothetical.24 Though the Supreme Court has described the concept as “somewhat
elastic,” it has cautioned that imminence “cannot be stretched beyond its purpose, which is to ensure
that the alleged injury is not too speculative for Article III purposes—that the injury is certainly

(1967)). The issues of imminence and ripeness really “boil down to the same question,” in this case. The Court
considers this question in the context of standing throughout this opinion. Accord Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 n.5 (2014).
24

See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013); Lujan, 504 U.S. at 560; Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990).

9

impending.”25 Thus, the Supreme Court has stated: “[W]e have said many times before and reiterate
today: Allegations of possible future injury do not satisfy the requirements of Art[icle] III. A threatened
injury must be certainly impending to constitute injury in fact.”26
The Court cannot find that an increased risk of future gun violence in itself is a concrete and
particularized injury; it is too abstract and speculative.27 Moreover, it is impossible to say who, among
the millions of people potentially affected by the Act, might someday suffer injury as a result of the
asserted risk of harm imposed by its enforcement. For any particular individual, the likelihood of being
injured in a shooting is remote, and the time when any such injury might occur is entirely uncertain.
Thus, under the circumstances presented here, Brady Campaign has not shown that any one of its
individual members suffers anything but a wholly speculative—much less a “certainly
impending”—prospect of future injury. It may be true that enforcement of the Act will someday result
in instances of gun violence in Kansas or elsewhere, but it is purely speculative to say that any particular
individual, including a Brady Campaign member, will be personally and concretely injured by such
violence.28 Indeed, because any of the feared injuries alleged in the Complaint are entirely dependent
on the decisions of some indeterminate third party to (a) own or obtain a firearm covered by the Act,
(b) carry that firearm to a place, among the countless possible places, where a Brady Campaign

25

Clapper, 133 S. Ct. at 1147.

26

Whitmore, 495 U.S. at 158 (internal quotation marks and citation omitted); see Clapper, 133 S. Ct. at 1147
(“[W]e have repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and
that allegations of possible future injury are not sufficient.” (internal quotation marks and citation omitted)).
27

See Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1297–98 (D.C. Cir. 2007).

28

See Clapper, 133 S. Ct. at 1148–49; City of Los Angeles v. Lyons, 461 U.S. 95, 105–08 (1983).

10

member happens to be at a specific point in time, and (c) discharge that firearm precisely in the
direction of the Brady Campaign member, Brady Campaign’s factual allegations concerning a risk of
future injury are necessarily speculative.29
Brady Campaign alleges that some of its members are at special risk of gun violence based on
past experiences with gun violence and threats associated with their activism in the gun violence
prevention movement.30 Before the Supreme Court’s decision in Clapper v.Amnesty International
USA,31 some courts accepted such “special risk” theories as sufficient to demonstrate an actual or
imminent injury.32 In Clapper, a collection of attorneys and human-rights, labor, legal, and media
organizations sought to challenge a statutory amendment authorizing the government to conduct
surveillance of certain electronic communications without first demonstrating probable cause.33 The
plaintiffs attempted to establish injury in fact based on the likelihood that their communications with
foreign contacts would be targeted under the amendment.34 The plaintiffs also claimed to experience a

29

See In re Sci. Applications Int’l Corp. (SAIC) Backup Tape Data Theft Litig., 45 F. Supp. 3d 14, 25–26
(D.D.C. 2014) (“Courts for this reason are reluctant to grant standing where the alleged future injury depends on the
actions of an independent third party.” (citing Clapper, 133 S. Ct. at 1150)).
30

See Doc. 1 ¶¶ 19–23.

31

133 S. Ct. 1138 (2013).

32

See, e.g., Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 28 (D.D.C. 2009)
(finding standing based on Brady Campaign members’ increased fear of gun violence in certain national parks and
wildlife refuges, which “Brady’s members visit[ed] and enjoy[ed] . . . on a frequent basis”); Brady Campaign to
Prevent Gun Violence United with the Million Mom March v. Ashcroft, 339 F. Supp. 2d 68, 75–76 (D.D.C. 2004)
(finding the presence of an actual injury because “[s]pecific members of the Brady Campaign live in neighborhoods
where violent crimes involving [semiautomatic weapons] occur at higher than average rates; and the challenged ATF
policy increases the risk that criminals in those neighborhoods will be able to obtain [semiautomatic weapons], thus
increasing the risk of violent [semiautomatic weapon] related crimes involving Brady Campaign members.”).
33

Clapper, 133 S. Ct. at 1144.

34

Id. at 1145, 1147–48.

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special risk of injury because their communications were especially likely to be intercepted by federal
agents.35 The Supreme Court found that the risk of injury was too speculative to qualify as imminent:
there were, the Court reasoned, simply too many contingencies on which the occurrence of a future
injury depended, and the plaintiffs could only speculate that their own communications would someday
be targeted under the amendment.36 The Supreme Court therefore rejected the plaintiffs’ claims to an
injury in fact, and held that they failed to show a “certainly impending” risk that federal agents would
target their communications.37 Since Clapper, courts have recognized that the relevant inquiry is not
whether the plaintiff suffers a “special risk” of injury, but whether the risk they experience is “certainly
impending.”38
The Complaint alleges that Temme witnessed a shooting at a New Year’s Eve party in
December 2013 and then was present, along with Does 1 and 2, at the Jewish Community Center of
Greater Kansas City when a mass shooting occurred there last year. Koch lost a 14-year-old brother
in a shooting in Missouri in 1953. The Supreme Court has recognized that, while “[p]ast wrongs are
evidence bearing on ‘whether there is a real and immediate threat of repeated injury,’”39 “‘[p]ast
exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive

35

Id. at 1145 (“Specifically, respondents claim that they communicate by telephone and e-mail with people
the Government believes . . . to be associated with terrorist organizations, people located in geographic areas that are
a special focus of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments
that are supported by the United States Government.” (internal quotation marks omitted)).
36

Id. at 1148–49.

37

Id. at 1147–48.

38

See, e.g., Sci. Applications Int’l Corp., 45 F. Supp. 3d at 25; Galaria v. Nationwide Mut. Ins. Co., 998 F.
Supp. 2d 646, 654 (S.D. Ohio 2014).
39

Lyons, 461 U.S. at 102 (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).

12

relief . . . if unaccompanied by any continuing, present adverse effects.’”40 The mere fact that Temme,
Koch, and the Doe plaintiffs previously witnessed gun violence does not make them more prone to
suffer injury as a result of the Act’s enforcement. Plaintiff does not allege facts that would establish or
lead to a reasonable inference that these past experiences would recur, or that would make these
members more prone to be repeat witnesses or targets of gun violence tied to enforcement of the Act.
Indeed, there is no indication that these incidents are traceable to the Act at all: Koch’s brother died
long before it was enacted, and although Temme’s and the Does’ experiences occurred after the Act
was passed, there is no factual allegation that those incidents involved “Kansas” firearms or that, absent
the existence of the Act, federal law would have prevented the incidents. Indeed, Brady Campaign
alleges in paragraph 19 of the Complaint that the Jewish Community Center shooter obtained firearms
despite his “prohibited purchaser” status under federal law.
Brady Campaign also alleges a certainly impending injury because its members have
experienced threats of violence due to their gun control advocacy. The Complaint alleges that Temme
has spoken publicly about his experience as a witness of the Jewish Community Center shooting, and
has been the subject of hateful internet attacks that he fears will be acted upon by individuals
sympathizing with the shooter. The Complaint cites one example of a verbal threat that Temme “must
be attacked with the same level of venomous attack he perpetrates.” Koch has also received threats
after local newspapers published his letters-to-the-editor supporting gun control. But the Court finds
that the threats described in the Complaint are too vague to raise an inference of risk to Temme or

40

Id.

13

Koch under the exacting standard of a “certainly impending” risk that either suffers an imminent risk of
gun violence. The Court can only speculate about the possibility of a shooting occurring. There is no
allegation that these threats even reference firearms. Moreover, the Act only applies to “Kansas”
firearms; the Court cannot infer from the facts alleged whether the threatened violence would involve
Kansas-made firearms that are stamped “made in Kansas” and that have never crossed state lines.
In sum, the Court is unable to conclude that Plaintiff met its burden of establishing an injury in
fact for any of its members based on an increased risk of violence under the Act.
B.

Threat of Criminal Prosecution or Civil Enforcement

Brady Campaign’s next asserted injury is that Brady Campaign members are subject to the
criminal and civil enforcement provisions in the Act. But the only member for whom the Act’s
enforcement provisions are alleged to specifically apply is Mayor Gernon. Brady Campaign alleges that
Mayor Gernon has “all executive and administrative authority” on behalf of the City, including the
authority to adopt policies that govern the local police department and to weigh in on the hiring, firing,
and discipline of local police officers. Brady Campaign thus contends Mayor Gernon is subject to
prosecution as a “federal agent” under § 50-1207 of the Act “for any enforcement activities that involve
federal authorities.”41 Brady Campaign also alleges that in his role as a physician with the University of
Kansas School of Medicine, Mayor Gernon could be considered an “official, agent, or employee of the
state of Kansas,” within the meaning of K.S.A. § 50-1206 and is therefore subject to potential civil
claims for violating the Act’s prohibitions. Defendants argue that the Act’s enforcement provisions do
not plausibly apply to Mayor Gernon and that, accordingly, no Kansas official or employee has ever

41

Doc. 19 at 15.

14

threatened to prosecute him, nor has there been any threat to bring civil enforcement measures against
him. Brady Campaign responds that it need not demonstrate specific government plans to prosecute
Mayer Gernon because if the Act’s enforcement provisions arguably proscribe Mayor Gernon’s
prospective conduct, that is enough to establish an imminent threat of prosecution.
In general, a plaintiff need not await the consummation of a government prosecution before
obtaining injunctive or declaratory relief; so long as a prosecution is “imminent,” the plaintiff may
challenge the constitutionality of a criminal statute without risking arrest by performing the conduct
proscribed.42 Brady Campaign may meet this standard either by demonstrating that Mayor Gernon’s
injury is certainly impending, or that he faces a credible threat of future prosecution under the Act.
1.

Clearly Impending Standard

Under the “imminence” standard discussed in the last section, the injury must be certainly
impending in order to confer standing.43 To meet this standard, however, the plaintiff must set forth
“concrete plans” to perform, in the near future, the conduct that would subject him to the threatened
injury.44 Where a plaintiff alleges mere “ ‘some day’ intentions” to engage in certain conduct, without
“any specification of when the some day will be,” any future harm that might flow from that conduct is
necessarily conjectural or hypothetical rather than imminent.45
Additionally, courts have considered whether an alleged threat of prosecution “target[s] the

42

See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 (2007) (“[W]here threatened action by
government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge
the basis for the threat—for example, the constitutionality of a law to be enforced.”).
43

Id. at 128–29.

44

Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 & n.2 (1992).

45

Id. at 564.

15

plaintiff’s planned conduct with some degree of specificity.”46 The “mere existence of a statute,” or
even an official’s general statement that the government intends to enforce a statutory prohibition against
the public, is ordinarily insufficient to establish an imminent threat of prosecution as to a particular
plaintiff.47 Thus, in International Longshoremen’s Ass’n, AFL-CIO v. Waterfront Commission of
New York Harbor,48 the Southern District of New York found that the plaintiffs alleged an imminent
threat of prosecution where they had received warning letters from a state commission explaining that
the plaintiffs’ planned conduct would be illegal.49 The warning letters reflected a specific threat to
prosecute, and distinguished that case from an earlier one in which the plaintiffs failed to show an
imminent threat because they alleged only that the state intended to enforce the law generally.50
Similarly, courts in the Ninth Circuit consider “whether the prosecuting authorities have communicated a
specific warning or threat to initiate proceedings” when evaluating the imminence of a future
prosecution.51 And the First Circuit has recognized a “well established” principle that, at least outside
the context of a First Amendment challenge to a criminal statute, the threat of prosecution must be
46

Jones v. Schneiderman, No. 11-CV-8215, 2015 WL 1454529, at *4 (S.D.N.Y. Mar. 31, 2015) (reviewing

cases).
47

See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (recognizing that
“the mere existence of a statute . . . is ordinarily not enough to sustain a judicial challenge, even by one who
reasonably believes that the law applies to him and will be enforced against him according to its terms.” (quoting
Nat’l Student Ass’n v. Hershey, 412 F.2d 1103, 1110 (D.C. Cir. 1969)); see also Libertarian Party of Los Angeles Cnty.
v. Bowen, 709 F.3d 867, 871 (9th Cir. 2013); Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010).
48

495 F. Supp. 1101 (S.D.N.Y. 1980), rev’d on other grounds by Int’l Longshoremen’s Ass’n, AFL-CIO v.
Waterfront Comm’n of N.Y. Harbor, 642 F.2d 666 (2d Cir. 1981).
49

Id. at 1110 & n.7.

50

Id. (citing Linehan v. Waterfront Comm’n of N.Y. Harbor, 116 F. Supp. 401, 404 (S.D.N.Y. 1953), aff’d sub
nom. Linehan v. Waterfront Comm’n of N.Y. Harbor, 347 U.S. 439 (1954)).
51

Wolfson, 616 F.3d at 1058. The Ninth Circuit also considers “whether the plaintiff has articulated a
concrete plan to violate the law in question” as well as “the history of past prosecution or enforcement under the
challenged statute.” Id.

16

“reasonably clear and specific” to confer standing.52
Applying those principles to the facts at issue here, the Court concludes that Brady Campaign
falls well short of alleging a “certainly impending” threat of prosecution as to Mayor Gernon. First, the
Complaint does not indicate that Mayor Gernon has any concrete plans to engage in conduct
proscribed by the Act.53 Though Brady Campaign alleges that Mayor Gernon retains authority to
adopt policies and procedures governing the city police department, it does not specify when he might
direct or participate in enforcement of federal regulations with respect to “Kansas” firearms.54 In fact,
Brady Campaign does not even allege the “ ‘some day’ intentions” the Supreme Court has held
insufficient to demonstrate an imminent injury: the Complaint does not state that Mayor Gernon has ever
enforced federal gun laws in the past or that he intends to enforce them at any point in the future.55
Only in its response to Defendants’ motion to dismiss does Brady Campaign suggest the possibility of
Mayor Gernon enforcing federal regulations. Even there, however, Brady Campaign does not contend
that Mayor Gernon ever intends to do so; it simply argues that he would be subject to the Act “for any
enforcement activities that involve federal authorities.” The possibility that he will someday be subject
to prosecution, therefore, is purely conjectural.56
52

N.H. Hemp Council, Inc. v. Marshall, 203 F.3d 1, 4 (1st Cir. 2000).

53

See K.S.A. § 50-1207 (making it a felony for federal officials or agents to enforce federal regulations with
respect to firearms made, owned, and having always remained within Kansas borders); id. § 1206(b) (prohibiting
employees of state and local governments from doing likewise).
54

See Schneiderman, 2015 WL 1454529, at *7 (finding that“indeterminate commitment to an act does not rise
to the level of a concrete plan, and so cannot engender a corresponding imminent threat of prosecution,” where the
plaintiff asserted it could “potentially” engage in the proscribed conduct if permitted to do so).
55

Doc. 19 at 15.

56

Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 & n.2 (1992) (finding that the plaintiffs’ “profession of
an ‘intent’ to return to the places they had visited before,” without a description of when they might do so, failed to
establish an imminent injury).

17

The speculative nature of the threat to Mayer Gernon is only compounded by the lack of a
specific statement or warning from the State suggesting that any of Mayor Gernon’s planned conduct is
unlawful under the Act.57 Brady Campaign does not allege that any prosecutor in Kansas has ever
targeted, or currently has plans to target, a local official like Mayor Gernon for the conduct described in
the Complaint. In fact, Defendants argue that the Act’s enforcement provisions do not apply to an
individual in Mayor Gernon’s position at all. At best, Brady Campaign alleges a highly generalized
threat of prosecution based on the “mere existence of a proscriptive statute” and an intention on the
part of Defendants to enforce it according to its terms.58 That is not enough to establish a “certainly
impending” threat of prosecution,59 especially where, as here, the plaintiff has not alleged any intention
or desire to engage in conduct proscribed by the challenged statute. The Court finds that Brady
Campaign fails to allege an imminent injury under the “certainly impending” imminence standard.
2.

Credible Threat Standard

The Supreme Court has recently explained that a plaintiff will have standing for preenforcement review “where he alleges ‘an intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by statute, and there exists a credible threat of prosecution
thereunder.’”60 Brady Campaign’s asserted injury is insufficient under this test as well.

57

See Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010).

58

Cf. Libertarian Party of Los Angeles Cnty. v. Bowen, 709 F.3d 867, 871 (9th Cir. 2013) (observing that the
“mere existence of a proscriptive statute” ordinarily does not suffice to establish an imminent threat of prosecution).
59

See id.; see also New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995)
(recognizing that “the mere existence of a statute . . . is ordinarily not enough to sustain a judicial challenge, even by
one who reasonably believes that the law applies to him and will be enforced against him according to its terms.”
(quoting Nat’l Student Ass’n v. Hershey, 412 F.2d 1103, 1110 (D.C. Cir. 1969)).
60

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (quoting Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979)).

18

The most glaring obstacle to a credible threat of prosecution is that Brady Campaign fails to
allege that Mayor Gernon intends to engage in conduct the Act forbids, as the Court has already
explained. The Complaint states that Mayor Gernon (1) adopts policies and procedures governing city
employees, including the Hiawatha Chief of Police, (2) retains authority to make hiring, firing, and
disciplinary decisions with respect to local police officers, and (3) instructs local police officers to “look
into” complaints Mayor Gernon receives from Hiawatha residents.61 None of these duties suggest that
Mayor Gernon has ever previously enforced federal gun laws with respect to “Kansas” firearms, nor do
they suggest he will have occasion to do so in the future. As already discussed, there are no allegations
in the Complaint about Mayor Gernon’s intention to engage in certain conduct; only that he arguably
retains authority to engage in such conduct.62
Second, the intended conduct at issue here—Mayor Gernon’s participation in enforcing
federal gun control laws—is not arguably affected with a constitutional interest. Courts have interpreted
the phrase “arguably affected with a constitutional interest,” to require that the plaintiff’s proscribed
conduct be constitutionally protected.63 Brady Campaign does not identify a constitutional protection

61

Doc. 1 ¶ 18.

62

In Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006), the Tenth Circuit held that, in
the First Amendment context, plaintiffs need not show they have “specific plans or intentions” to engage in
proscribed conduct in order to establish a credible threat of prosecution, as long as they present: “(1) evidence that
in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or
testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that
they presently have no intention to do so because of a credible threat that the statute will be enforced.” Id. at 1088
(emphasis in original). To the extent such a test might apply outside the First Amendment context, the Court notes
that Brady Campaign has not met any of the test’s requirements here: the Complaint does not state that Mayor
Gernon has previously engaged in conduct proscribed by the Act, nor does it state that he is refraining from doing
so because of a threat of prosecution.
63

See, e.g., Susan B. Anthony List, 134 S. Ct. at 2344 (“Because petitioners’ intended future conduct
concerns political speech, it is certainly ‘affected with a constitutional interest.’ ” (quoting Babbitt, 442 U.S. at 298));
Ward v. Utah, 321 F.3d 1263, 1269 (10th Cir. 2003) (finding standing under the “credible threat” standard because the
plaintiff alleged the challenged statute had a “ ‘chilling effect’ on his desire to engage in First Amendment

19

applicable to Mayor Gernon’s intended conduct, and the Court is unaware of any constitutionallyprotected right of a city mayor to enforce federal firearm regulations. Absent an allegation that the Act
impinges on a constitutional right of Mayor Gernon, the “credible threat” standard is not met. Nor does
it change the Court’s analysis that Brady Campaign’s claims arise under the Constitution’s Supremacy
Clause and Due Process Clause. As the Supreme Court has made clear, it is the plaintiff’s conduct,
not its claims, that must be constitutionally protected.64
Moreover, Mayor Gernon’s intended future conduct is not arguably proscribed by the statute.
Section 50-1207 of the Act makes it a felony “for any official, agent or employee of the government of
the United States, or employee of a corporation providing services to the government of the United
States,” to enforce federal Commerce Clause regulations with respect to “Kansas” firearms.65
Defendants contend that this section does not apply to local government officials like Mayor Gernon.
Brady Campaign disagrees, arguing that Mayor Gernon may be prosecuted as a “federal agent” under

activities”); Jones v. Schneiderman, No. 11-CV-8215, 2015 WL 1454529, at *3 n.4 (S.D.N.Y. Mar. 31, 2015) (finding
that the “credible threat” standard did not apply because the plaintiff did not identify any “constitutional
protection” for the prospective conduct at issue); Second Amendment Arms v. City of Chicago, No. 10-cv-4257, 2012
WL 4464900, at *8 (N.D. Ill. Sept. 25, 2012) (“As a general matter, a plaintiff who wishes to engage in conduct
arguably protected by the Constitution, but proscribed by a statute or ordinance, successfully demonstrates an
immediate risk of injury.” (emphasis added)); Deida v. City of Milwaukee, 192 F. Supp. 2d 899, 907 (E.D. Wisc. 2002)
(“[The plaintiff’s] conduct, leafleting cars, is ‘affected with a constitutional interest’ because leafleting is a form of
speech protected by the First Amendment.” (citation omitted)); see also Babbitt, 442 U.S. at 298 (“[I]t is not
necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the]
statute that he claims deters the exercise of his constitutional rights.” (emphasis added) (internal quotation marks
and citations omitted)).
64

Babbitt, 442 U.S. at 298 (holding the “credible threat” standard applicable “[w]hen the plaintiff has alleged
an intention to engage in a course of conduct arguably affected with a constitutional interest” (emphasis added));
see also Knife Rights, Inc. v. Vance, No. 11-CV-3918, 2013 WL 5434610, at *3 (S.D.N.Y. Sept. 25, 2013) (applying the
“certainly impending” imminence standard to an as-applied vagueness challenge that did not implicate
constitutionally protected conduct). But see Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 & n.5 (9th Cir. 2013)
(suggesting, without analysis, that the plaintiff’s conduct was affected with a constitutional interest because she
challenged a criminal statute “on constitutional grounds”).
65

K.S.A. § 50-1207.

20

§ 50-1207 if he engages in “enforcement activities that involve federal authorities.”66 Alternatively,
because Mayor Gernon is an employee of the University of Kansas, and because “the University of
Kansas provides services to the federal government through such programs as Medicaid and
Medicare,”67 Brady Campaign asserts that Mayor Gernon is subject to prosecution under § 50-1207
as an “employee of a corporation providing services to the United States government.”
Brady Campaign’s federal agent argument hinges on the statutory meaning of the term “agent”
and the possibility that Mayor Gernon’s duties, as alleged in the Complaint, might make him a federal
agent under § 50-1207. The Act itself does not define the term “agent.” Courts have applied
common-law agency concepts to determine when a state or local police officer might fairly be deemed
to assume status as a federal actor. In United States v. Leos-Hermosillo,68 for example, the Ninth
Circuit considered whether knowledge of a local police officer could be attributed to federal
prosecutors for purposes of determining compliance with the federal government’s Brady obligations.69
The court found that although the officer was not employed by a federal department or agency, he was
still an “agent of the federal government” because he acted on the behalf of the United States and was
subject to the federal prosecution team’s control.70 Similarly, in Askew v. Bloemker,71 the Seventh
Circuit held that a local police officer was not amenable to suit under 42 U.S.C. § 1983 because, at the

66

Doc. 19 at 15.

67

Id. at 16.

68

2000 WL 300967 (9th Cir. Mar. 22, 2000).

69

Id. at *3.

70

Id.

71

548 F.2d 673 (7th Cir. 1976).

21

time of his allegedly unlawful conduct, he was acting as a federal agent rather than a state agent: though
paid by the City of St. Louis, the officer’s actions “were subject to the immediate control” of the Office
of Drug Abuse Law Enforcement, an arm of the United States Department of Justice.72 These holdings
appear consistent with the common-law agency principles adopted by the Kansas Supreme Court,
which, for its part, has defined an “agent” as one who “act[s] on [a] principal’s behalf and subject to the
principal’s control.”73
Mayor Gernon is therefore arguably a federal “agent” under § 50-1207 only if he acts subject
to the control of the federal government. The facts alleged in Brady Campaign’s Complaint, however,
do not suggest that he has ever acted under federal authority in the past or that he will have occasion to
do so in the future. In fact, the Complaint does not allege that Mayor Gernon’s official duties call for
interaction with federal officers at all.74 Absent allegations raising an inference that Mayor Gernon
sometimes acts subject to the control of the federal government, the Court can only speculate whether
§ 50-1207 applies to Mayor Gernon’s enforcement activities, rendering any threat of future prosecution
“wholly conjectural.”75

72

Id. at 677.

73

Golden Rule Ins. Co. v. Tomlinson, 335 P.3d 1178, 1188 (Kan. 2014) (citing Restatement (Third) of Agency
§ 1.01 (2005)); see also 3 Am. Jur. 2d Agency § 2 (“Indeed, the essential feature of agency is the right of control,
which right includes the right to dictate the means and details of the agent’s performance.”).
74

Although Brady Campaign alleges that Mayor Gernon retains some authority over the local police
department, the Complaint does not describe any mayoral responsibility that touches on the affairs of the federal
government. See Doc. 1 ¶ 18.
75

See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2344 (2014) (quotation marks and citation omitted);
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (“[P]ersons having no fears of state
prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.”
(quotation marks and citation omitted)); Nat’l Council for Improved Health v. Shalala, 122 F.3d 878, 884 (10th Cir.
1997) (“When we are left to speculate as to the nature of the claim plaintiffs may desire to make, and the treatment
such a hypothetical claim may receive under the regulations, plaintiffs have failed to allege a sufficient injury in
fact.”).

22

Equally conjectural is the possibility that Mayor Gernon will be prosecuted under § 50-1207
because he is a physician and professor at the University of Kansas. Though the University of Kansas
may be a “corporation providing services to the government of the United States,”76 and Mayor
Gernon might therefore technically fall within the Act’s provisions based on the happenstance of his
separate employment with the university, Brady Campaign does not contend that Mayor Gernon’s
positions with the university have any connection to his law enforcement activities or involve conduct for
which an individual could be prosecuted under the Act. It is pure conjecture to say that a Kansas
prosecutor might someday parse the language of § 50-1207 and attempt to apply that section to Mayor
Gernon based on the fortuity of his separate employment by a corporation “providing services” to the
federal government. It is possible, of course. But in light of the apparent purpose of § 50-1207—to
deter federal actors from enforcing federal gun control laws—that possibility is too remote to establish
that his conduct is arguably proscribed by the statute. Even under the more permissive “credible threat”
standard, “the possibility of future enforcement need not be reduced to zero to defeat standing.”77
Brady Campaign also argues that Mayor Gernon’s intended conduct is subject to a credible
threat of civil enforcement under §§ 50-1206(b) and 50-1208. Section 50-1208 authorizes
government attorneys to seek injunctive relief to prevent the conduct criminalized in § 50-1207 and,
like § 50-1207, applies only to federal actors.78 Section 50-1206(b), by contrast, prohibits “official[s],
76

K.S.A. § 50-1207.

77

Mink v. Suthers, 482 F.3d 1244, 1255 (10th Cir. 2007) (quoting Winsness v. Yocom, 433 F.3d 727, 733 (10th
Cir. 2006)) (internal quotation marks omitted).
78

See K.S.A. § 50-1208 (“A county or district attorney, or the attorney general, may seek injunctive relief in
any court of competent jurisdiction to enjoin any official, agent or employee of the government of the United States
or employee of a corporation providing services to the Government of the United States from enforcing any act, law,
treaty, order, rule or regulation of the government of the United States regarding a firearm, a firearm accessory, or
ammunition that is manufactured commercially or privately owned in the state of Kansas and that remains within the

23

agent[s], or employee[s] of the state of Kansas, or any political subdivisions thereof” from applying
federal regulations to firearms made and kept in Kansas.79 The Act does not provide for a private right
of action for damages or injunctive relief against state or local government actors, therefore the Court
cannot find that the intended conduct is arguably proscribed by the civil enforcement mechanisms of the
Act.
Finally, the Court cannot find that the threat of future enforcement of this statute against the
Brady Campaign members is substantial.80 As detailed above, the facts alleged in the Complaint do not
suggest that Mayor Gernon has ever previously applied federal regulations to “Kansas” firearms, that
Kansas officials have enforced the Act against local officials, or that the Act has been enforced at all at
this point. For all of the reasons discussed earlier, the court finds that at this time the prospect of future
enforcement of the Act against Mayor Gernon, or any other Brady Campaign member, is purely
speculative.
III.

Conclusion
For the foregoing reasons, the Court finds that at this time, Brady Campaign has not alleged an

actual or imminent injury that is fairly traceable to the enforcement of the Act and redressable by a
favorable decision by this Court. Brady Campaign, therefore, lacks Article III standing to mount a
constitutional challenge to the Second Amendment Protection Act. The Court therefore need not reach
the other issues raised in Defendants’ motion to dismiss. The Court grants Defendants’ motion to
dismiss for lack of subject matter jurisdiction.

borders of Kansas.”).
79

K.S.A. § 50-1206(b).

80

See Susan B. Anthony List, 134 S. Ct. at 2345.

24

IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to Dismiss
(Doc. 13) is GRANTED. This case is dismissed in its entirety without prejudice for lack of subject
matter jurisdiction.
Dated: June 5, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

25