Robinson et al v. Lynch et al
DECISION AND ORDER granting #6 Motion to Dismiss for Lack of Jurisdiction. Plaintiffs' Amended Complaint is dismissed, and Plaintiffs' #9 Motion for Summary Judgment is denied as moot. The Clerk of Court is directed to close the case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 4/10/2017. (SC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM ROBINSON, et al.,
Case # 15-CV-6765-FPG
DECISION AND ORDER
JEFF B. SESSIONS, Attorney General
of the United States, et al.,
This is a challenge to the constitutionality of government conduct allegedly taken in the
course of conducting background checks pursuant to the Gun Control Act, 18 U.S.C. §§ 921-931
(1968), and the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536
(1993). The Gun Control Act bans certain persons from possessing firearms. See 18 U.S.C. §
922(d)(1)-(9). The Brady Act establishes a national instant criminal background check system
(“NICS”) and requiring that federally licensed firearms dealers consult it before transferring
firearms to potential purchasers. See Pub. L. No. 103-159.
Plaintiffs are a collection of individuals and associations who are “outspoken critics
against government infringement of Second Amendment and additional civil liberties.” ECF No.
3, ¶ 75. Defendants are the Director of the Federal Bureau of Investigation, the Director of the
Terrorist Screening Center, the Director of the Bureau of Alcohol, Tobacco, Firearms and
Explosives, and the Attorney General of the United States. 1 ECF No. 3.
Plaintiffs allege that, in February 2004, Defendants began searching the Consolidated
Terrorist Screening Database (“TSDB”) in the course of conducting NICS background checks.
ECF No. 3, ¶ 19. Plaintiffs further allege that, when a potential firearms purchaser matches a
person listed in the TSDB, Defendants compile, retain, and disclose the potential purchaser’s
personal information for counterterrorism purposes. Id. at ¶¶ 24-30. Plaintiffs do not allege that
they were denied firearms, that they are listed in TSDB, or that Defendants have compiled,
retained, or disclosed their personal information. Rather, Plaintiffs allege that each Plaintiff “has
completed” the form that initiates an NICS background check since February 2004 and that each
Plaintiff “wants to continue” to purchase firearms through federally licensed dealers. Id. at ¶ 81.
Plaintiffs also allege that Defendants’ conduct has forced them to choose between their First and
Second Amendment rights, id. at ¶ 84, and has branded them as terrorists or potential terrorists.
Id. at ¶ 80. Plaintiffs challenge the search of the TSDB and subsequent data collection under the
Second Amendment, Procedural and Substantive Due Process, the Fourth Amendment, the Equal
Protection Clause, and the Administrative Procedure Act. Id. at ¶¶ 111-38.
Defendants contend as a threshold matter that Plaintiffs lack standing to bring this
challenge in federal court. ECF No. 6-1 at 7-12. Defendants also argue that the lawsuit lacks
merit because Plaintiffs fail to plead a cognizable claim under any of their six causes of action.
Id. at 12-25. In response, Plaintiffs moved for summary judgment. ECF No. 9-7. For the
reasons explained below, the Court finds that Plaintiffs do not have standing to challenge the
Attorney General Jeff B. Sessions should be substituted for former Attorney General Loretta Lynch, and
Bureau of Alcohol, Tobacco, Firearms and Explosives Director Byron Todd Jones should be substituted for former
Director Thomas E. Brandon as defendants in this case. See FED. R. CIV. P. 25(d).
counterterrorism actions that Defendants take in the course of conducting NICS background
The Gun Control Act regulates the manufacture and sale of firearms and ammunition.
See 18 U.S.C. §§ 921-31. In particular, it prohibits federally licensed firearms dealers from
selling firearms to certain categories of individuals, such as any person under 21 or any person
convicted of a felony. See, e.g., id. at § 922(b), (d), (g). In 1993, Congress gave greater effect to
those prohibitions by enacting the Brady Act. Pub. L. No. 103-159, 107 Stat. 1536. The Brady
Act requires federally licensed firearms dealers to initiate criminal background checks to
determine whether state or federal law prohibits potential purchasers from purchasing or
possessing firearms before selling to them. See id. at § 103(b). To facilitate those background
checks, the Brady Act directed the Attorney General to establish the NICS. See id. at § 102(a).
The Attorney General delegated management of the system to the Federal Bureau of
Investigations (“FBI”). See 28 C.F.R. § 25.3 (2015). Accordingly, the NICS is managed by the
FBI Criminal Justice Information Services Division’s NICS Operations Center. Id.
NICS Background Check Procedure Under the Brady Act
An NICS background check proceeds in two stages. On the front end, the dealer collects
information from the potential purchaser and provides some of that information to the NICS
Operations Center. See 27 C.F.R. § 478.124 (2012). The dealer obtains from each potential
purchaser a completed firearms transaction record (“Form 4473”). See id. Form 4473 asks for
certain identifying information, such as the purchaser’s name, sex, address, date of birth, height,
race, and country of citizenship. Id. The dealer then contacts the NICS Operations Center and
provides the purchaser’s name, sex, date of birth, and state of residence to initiate the
background check. See 28 C.F.R. § 27.5(a).
On the back end, the NICS Operations Center 2 uses the potential purchaser’s information
to search FBI-maintained databases—such as the NICS index, the National Criminal Information
Center’s Violent Gang and Terrorist Organization File (“VGTOF”), and the Interstate
Identification Index—for signs that the potential purchaser is prohibited from purchasing or
possessing firearms. See id. at § 25.6. If that search produces disqualifying information, the
NICS Operations Center informs the dealer that the transaction should be denied.
(c)(1)(iv)(C). If that search produces no signs of disqualifying information, the NICS Operations
Center informs the dealer that the transactions may proceed. Id. at (c)(1)(iv)(A). If the search
produces information that indicates the potential purchaser might be disqualified from
purchasing or possessing a firearm, the NICS Operations Center informs the dealer that the
transaction must be delayed pending further research. 3 Id. at (c)(1)(iv)(B).
Maintenance of Records Related to NICS Background Checks
These background check procedures produce two types of records: Form 4473 and NICS
transaction records. As noted above, Form 4473 contains the potential purchaser’s personal
information. 27 C.F.R § 478.124(c)(1). It also requires the dealer to record certain transactions
details, including the date on which the dealer contacted the NICS Operations Center, the unique
number assigned by the NICS Operations Center to the transaction, and the result of the
background check. Id. at (c)(3). If the sale of the firearm is completed, the dealer must also
In some states, Brady Act background checks are processed by designated state and local criminal justice
agency point-of-contacts. See 28 C.F.R. §§ 25.2, 25.6(a), (d). In New York, all Brady Act background checks are
processed by the FBI. Bureau of Alcohol, Tobacco, Firearms and Explosives, Permanent Brady State Lists (Sept.
22, 2016), https://www.atf.gov/rules-and-regulations/permanent-brady-state-lists.
Upon receiving a “delayed” response, the dealer must wait up to three business days to receive a
subsequent “proceed” or “denied” response. 28 C.F.R. 25.6(c)(1)(iv)(B). If the dealer does not hear from the
NICS Operations Center within three business days, the dealer may complete the transaction. Id.
record the manufacturer, importer, type, model, caliber, and serial number of the firearm sold.
Id. In the case of a completed sale, the dealer is required to keep a copy of the Form 4473 for 20
years. Id. If the sale is not completed, the dealer is only required to keep a copy of the form for
five years. Id.
NICS transaction records include the NICS index and audit log. 28 C.F.R. § 25.9(a)-(b).
The index documents transactions that the background check finds would violate state or federal
law. Id. at (a). The audit log, which is generated automatically, records certain information
about each background check that the NICS Operations Center conducts. Id. That information
includes the date and time of the inquiry, the potential purchaser’s identifying information, and
the unique number assigned to the transaction. Id. While the NICS Operations Center retains
the index of transactions that would violate state or federal law indefinitely, the center
continuously purges information—other than the unique number and date of each transaction—
from the audit log. Id. at (a)-(b). Information regarding denied transactions remains in the audit
log for ten years. Id. at (b)(1)(i). Information about delayed transactions remains in the audit log
for 90 days. Id. at (b)(1)(ii). The most sensitive information, identifying information connected
to approved transactions, is destroyed within 24 hours. Id. at (b)(1)(iii).
Just as it regulates retention of these records, the Brady Act regulates access to them.
The government may access a completed Form 4473 in only three circumstances: during a
routine inspection of the dealer, when the dealer goes out of business and is not replaced by a
successor, or in the course of a criminal investigation. 18 U.S.C. § 923(g). Similarly, the NICS
index may only be accessed for purposes unrelated to NICS background checks when providing
information related to issuing a firearm permit, in response to an inquiry from the Bureau of
Alcohol, Tobacco, Firearms, and Explosives in connection with a civil or criminal law
enforcement activity, or for the purpose of disposing firearms in the possession of a government
28 C.F.R. § 25.6(j).
The NICS audit log, however, may only be accessed for
administrative purposes, such as analyzing system performance, and to support investigations
and inspections of dealers. Id. at § 25.9(b).
Background Checks Involving Terrorist Watch List Records
On September 16, 2003, President George W. Bush directed the Attorney General to
establish an organization to streamline terrorist watch list records generated and maintained by
various federal agencies. Press Release, Office of the Press Secretary, President George W.
Bush, Homeland Security Presidential Directive on Integration and Use of Screening Information
(Sept. 16, 2003), https://fas.org/irp/offdocs/nspd/hspd-6.html.
Accordingly, the Attorney
General established the Terrorist Screening Center (“TSC”). 49 C.F.R. § 1560.3 (2008). In line
with the President’s command, the TSC consolidated various terrorist watch lists into the
Terrorist Screening Database (“TSDB”). Id.
Plaintiffs allege that, shortly after the TSC created the TSDB, the NICS Operations
Center began searching the TSDB when conducting NICS background checks. ECF No. 3, ¶ 19.
Plaintiffs allege that, when the NICS Operations Center finds that a potential firearms purchaser
matches a known or suspected terrorist listed in the TSDB, the NICS Operations Center illegally
compiles, retains, and discloses information about that sale. Id. at ¶¶ 25-30. Specifically,
Plaintiffs allege that “[t]he FBI republishes the confidential, personal information from the NICS
[background checks] to numerous other agencies, foreign governments, and private contractors.”
ECF No. 3, ¶ 29.
Further, Plaintiffs allege that these practices are not in fact related to
counterterrorism, that Defendants have “misled” the public under the guise of “national
security,” and that Defendants actually intend “to create a national registry of firearms owners
and firearms.” ECF No. 9-7 at 3.
Plaintiffs provide no factual support for their conclusory allegations of national security
“smoke and mirrors,” see ECF No. 3, ¶ 36, wide FBI disclosures of confidential information to
foreign governments and private contractors, see id. at ¶ 29, and the government’s desire to
create a registry of gun owners. See id. at ¶¶ 42-47. However, in support of their allegations that
Defendants take antiterrorism, investigative measures in the course of conducting NICS
background checks, Plaintiffs cite the testimony of a former Attorney General, an FBI statement
to Congress, Government Accountability Office reports and correspondence, and Congressional
Research Service reports. See generally, ECF Nos. 12-13; see also ECF No. 9-7 at 9-18. As
discussed in greater detail below, those exhibits suggest that the NICS Operations Center
searches the TSDB during NICS background checks and compiles, retains, and discloses
information related to transactions involving known or suspected terrorists.
Plaintiffs’ allegations and exhibits suggest that, in the early 2000s, the FBI changed its
policies surrounding the role of terrorism-related intelligence in NICS background checks. See
ECF No. 9-7 at 10 (citing U.S. GOV’T ACCOUNTABILITY OFFICE, GOA-05-127, GUN CONTROL
TERRORISM: FBI COULD BETTER MANAGE FIREARM-RELATED BACKGROUND CHECKS
INVOLVING TERRORIST WATCH LIST RECORDS (2005) [hereinafter GOA 2005]).
terrorism-related intelligence had always been present in the databases searched during NICS
background checks, NICS agents conducting firearms background checks had not always been
notified when a potential purchaser matched a known or suspected terrorist. See GOA 2005 at 7
(“Although NICS checks have included searches of terrorist records in VGTOF, NICS personnel
. . . historically did not receive notice when there were hits on these records.”). Further, the
terrorism-related intelligence present in the databases searched during NICS background checks
became more robust after the TSC consolidated the various terrorists watch lists into the TSDB.4
Id. at 11. (“[T]he FBI and TSC have implemented procedures that allow all eligible records in
the [TSDB] to be added to the VGTOF and searched during NICS background checks.”).
Additionally, Plaintiffs’ allegations and exhibits suggest that, when the NICS Operations
Center discovers a match between a potential firearms purchaser and a name listed in the TSDB,
Defendants take certain investigative measures. See ECF No. 9-7 at 10 (citing Terrorist and
Guns: The Nature of the Threat and Proposed Reforms Before Comm. On Homeland Sec. and
Gov’t Affairs, 111th Cong. 24-26 (2010) (statement of Daniel D. Roberts, Assistant Dir.,
Criminal Justice Info. Servs. Fed. Bureau of Investigation) [hereinafter Statement of Daniel D.
Roberts]). When there is a match between a potential firearms purchasers and a known or
suspected terrorist, the NICS agent conducting the background check informs the dealer that the
transactions is “delayed” for further research. See Statement of Daniel D. Roberts. The NICS
agent then attempts to gather more information about the potential purchaser from the dealer and
contacts the FBI’s Counterterrorism Division. Id. The Counterterrorism Division determines
whether there the FBI is currently investigating the potential purchaser and, if so, whether the
casefile contains any information that would disqualify the potential purchaser from purchasing
or possessing a firearm under the Gun Control Act. Id. Regardless of whether the transaction is
completed, the encounter is noted and the information is disclosed to counterterrorism and
foreign intelligence agencies at the state and federal level. Id. (“In this situation, in a given
According to the FBI, NICS Operations Center was not previously notified of a match between a potential
purchaser and a known or suspected terrorist because being a known or suspected terrorist did not disqualify the
potential purchaser from owning or possessing a gun. GOA 2005 at 7. However, the Bureau changed its policy, and
enhanced the terrorist-intelligence included in the databases it searches during NICS background checks, because
the file on the known or suspected terrorist is sometimes more accurate and up-to-date. Id. (noting that an audit of
NICS transactions revealed that, “[i]n one instance involving a VGTOF record, . . . an FBI field agent had
knowledge of prohibiting information not yet entered into the automated databases checked by NICS”).
investigation, the attempt may, in combination with other factors, lead to enhanced investigative
methods, such as surveillance. . . . In addition, this new piece of intelligence is provided to the
National Counterterrorism Center and, in turn, to the U.S. Intelligence Community. Federal and
state law enforcement partners are also notified as appropriate.”).
Plaintiffs argue that, by searching the TSDB in the course of conducting NICS
background checks and compiling, retaining, and disclosing a potential purchaser’s personal
information when a match is found, Defendants violate the Second Amendment, Procedural and
Substantive Due Process, the Fourth Amendment, the Equal Protection Clause, and the
Administrative Procedure Act. ECF No. 3 at ¶¶ 111-38. Before reaching the merits of Plaintiffs’
arguments, the Court must ensure that Plaintiffs have standing to challenge this conduct. See,
e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (“We have an obligation to
assure ourselves of litigants’ standing under Article III.”); Ontario Pub. Serv. Emps. Union
Pension Trust Fund v. Nortel Networks Corp., 369 F.3d 27, 34 (2d Cir. 2004) (“In order for our
court to properly reach the merits of the case . . . we must first find that the parties involved have
met the basic requirements of standing.”). The Court finds they do not.
I. Article III Standing
Article III of the Constitution limits the jurisdiction of the Federal Judiciary to “Cases”
and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. In doing so, Article III enshrines “the
proper—and properly limited—role of the courts in a democratic society.” DaimlerChrysler,
547 U.S. at 340. The doctrine of standing enforces Article III’s case-or-controversy requirement.
Id. at 342; see also Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138, 1146 (2013) (“The law of
Article III standing, which is built on separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the power of the political branches.”). To that end, the
doctrine of standing establishes an “irreducible constitutional minimum,” which ensures that a
plaintiff has alleged a “particularized” injury that affects the plaintiff in a “personal and
individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1, 561 (1992).
The irreducible constitutional minimum of standing requires three things: First, the
plaintiff must allege “an injury in fact”—a harm suffered by the plaintiff personally that is
“concrete and actual or imminent, not conjectural or hypothetical.” Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 103 (1998).
Second, the plaintiff must demonstrate a “fairly
traceable” causal connection “between the plaintiff’s injury and the complained-of conduct of the
defendant.” Id. Finally, there must be “a likelihood that the requested relief will redress the
alleged injury.” Id.; see also Valley Forge Christian College v. Americans United for Separation
of Church and State, Inc., 454 U.S. 464, 473 (1982) (“[A]t an irreducible minimum, Art. III
requires the party who invokes the court’s authority to show that he personally has suffered some
actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that
injury fairly can be traced to the challenged conduct and is likely to be redressed by a favorable
decision.”) (internal quotation marks and citations omitted).
Beyond that irreducible constitutional minimum, the Supreme Court has identified certain
prudential standing limitations. One of those limitations is that “when the asserted grievance is a
generalized grievance shared in substantially equal measure by all or a large class of citizens,
that harm alone normally does not warrant exercise of jurisdiction.” Warth v. Seldin, 422 U.S.
490, 499 (1975). That is because “other governmental institutions” may be more competent to
address “questions of wide public significance.” Id. at 500. Another of those limitations is that
the power to seek judicial review belongs to “those who have a direct stake in the outcome,”
rather than “concerned bystanders who will use it simply as a vehicle for the vindication of value
interests.” Diamond v. Charles, 476 U.S. 54, 62 (1986) (internal quotation marks omitted).
Underlying each of these prudential limitations is a fundamental principle of our democracy—
“The province of the court is, solely, to decide on the rights of individuals.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
In line with that democratic prerogative, the standing inquiry is “especially rigorous”
where reaching the merits of a dispute involves deciding “whether an action taken by one of the
other two branches of Federal Government was unconstitutional.” See Clapper, 133 S.Ct. at
1147. The inquiry is more rigorous still where reaching the merits of the dispute involves
“intelligence gathering and foreign affairs.” Id. at 1147 (citing United States v. Richardson, 418
U.S. 166, 188 (1974) (finding the plaintiff lacked standing to compel the Central Intelligence
Agency to publish information regarding how it spends its funds), Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 221–222 (1974) (finding the plaintiff lacked standing to
challenge the Armed Forces Reserve membership of members of Congress), and Laird v. Tatum,
408 U.S. 1, 11-16 (1972) (finding the plaintiff lacked standing to challenge an intelligencegathering program)).
Plaintiffs suggest three bases for standing to contest the constitutionality of the
challenged conduct. ECF No. 3. First, Plaintiffs argue that the challenged conduct directly
invades their legally protected interests because each Plaintiff “has completed an ATF Form
4473 since February 2004” and “wants to continue to purchase firearms through federallylicensed dealers.” ECF Nos. 3, ¶ 80; 9-7 at 37-87. Second, Plaintiffs suggest that they have
standing because the challenged conduct has forced them “to choose [among] their Second
Amendment rights, their First Amendment rights, and other, valuable civil liberties.” Id. at ¶84;
9-7 at 39. Third, Plaintiffs’ Amended Complaint seems to suggest that Plaintiffs have been
injured because the challenged conduct stigmatizes them as “terrorists and potential terrorists.”
ECF No. 3, ¶ 125. Each basis for standing is addressed below.
a. Direct Invasion of Interests
Plaintiffs’ first assert standing on the basis of a direct invasion into their personal
interests. See ECF No. 9-7 at 37. Plaintiffs allege that, since February 2004, when conducting
NICS background checks, Defendants have searched databases containing counterterrorism
intelligence and information. ECF No. 3, ¶¶ 19, 24.
Plaintiffs further allege that, when a match
between a potential purchaser and a known or suspected terrorist is found, the FBI has compiled,
retained, and disclosed to third parties the potential purchasers’ confidential information. ECF
No. 3, ¶¶ 25-30. Plaintiffs allege that this conduct has injured them directly because each
Plaintiff has completed a Form 4473 since February 2004 and wants to purchase firearms from
federally licensed dealers in the future. ECF No. 3, ¶ 81.
In response to those allegations, Defendants argue that completing Form 4473 and
wanting to purchase firearms in the future does not confer standing on Plaintiffs. Defendants
argue that Plaintiffs fail to allege “that they have ever had their own personal information
gathered” or that “their own personal information was ever improperly disclosed to other law
enforcement agencies or to a private entity.” ECF No. 6-1 at 10-11.
The Court agrees with Defendants. Plaintiffs’ allegations demonstrate that known or
suspected terrorists listed in the TSDB who have purchased or seek to purchase firearms have
sustained or are in imminent danger of sustaining an injury as a result of the challenged conduct.
But Plaintiffs do not allege that they are listed as known or suspected terrorists in the TSDB.
Nor do Plaintiffs allege facts that would raise a plausible inference that they are listed as known
or suspected terrorists in the TSDB. Simply put, Plaintiffs’ allegations do not demonstrate that
the challenged conduct harms them personally.
To challenge a government policy or program, a plaintiff must demonstrate either that
they have been subjected to the challenged conduct or that they are substantially likely to be
subjected to the challenged conduct in the future. 5 In O’Shea v. Littleton, the Supreme Court
found that the plaintiffs did not have standing to challenge racial discrimination in their city’s
issuance of bond and imposition of criminal sentences because they had only alleged “general
assertions or inferences” that they would be subjected to the challenged conduct. 414 U.S. 488,
497-98 (1974). There, the plaintiffs’ alleged injury relied on speculation that the plaintiffs would
be arrested and then subsequently treated in a discriminatory manner. Id. Because the plaintiffs’
allegations did not point to any imminent prosecutions contemplated against them, or even
suggest that the plaintiffs expected to violate any criminal laws, the Court found the threat of
injury from the challenged conduct was “too remote to satisfy the case-or-controversy”
requirement. Id. at 498.
More recently, in Clapper v. Amnesty USA, the Supreme Court found that a group of
attorneys, journalists, and human rights organizations did not have standing to challenge a
government surveillance program because they could not demonstrate that their communications
To be clear, a plaintiff must demonstrate standing to seek each form of relief sought. Allen v. Wright, 468
U.S. 737, 755 (1984), abrogated in part on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc.,
134 S. Ct 1377, 1387-88 (2014) (“[T]he standing inquiry requires careful judicial examination of a complaint’s
allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims
asserted.”); see also Laidlaw, 528 U.S. at 185 ([A] plaintiff must demonstrate standing separately for each form of
relief sought.”). Accordingly, to seek damages for past conduct, Plaintiffs must demonstrate that they have been
injured by the challenged conduct in the past, see City of Los Angeles, 461 U.S. 95 (1983) (finding the plaintiff, who
had been choked by a police officer, had standing to seek damages for the past conduct), and to seek an injunction to
prevent future conduct, Plaintiffs must demonstrate that a substantial likelihood that they, personally, will be the
object of the challenged conduct in the future. Id. (finding that same plaintiff did not have standing to seek
injunctive relief because he could not demonstrate a sufficient likelihood that “he would suffer future injury from the
use of chokeholds by police officers”). Plaintiffs here seek both forms of relief but demonstrate neither type of
would be intercepted. 6 Clapper, 133 S.Ct. at 1138. The Court rejected the plaintiffs’ theory that
their injury was concrete and imminent because their contacts abroad were the type of
individuals whom the policies at issue would target. Id. at 1148. Indeed, the Court highlighted a
plaintiff’s statement that he had “no choice but to assume” that his communications with his
foreign contacts “may be subject to government surveillance.” Id. (emphasis added in original).
Like the plaintiffs in O’Shea and Clapper, Plaintiffs fail to demonstrate that they have
been, or will be, personally injured by the challenged conduct. Plaintiffs assert that they can
establish a direct and personal injury flowing from the challenged conduct because they each
have completed Form 4473 and want to continue to purchase firearms from federally licensed
dealers in the future. But Plaintiffs are not challenging provisions of the Brady Act or even
NICS background checks generally. Rather, Plaintiffs challenge the antiterrorism measures that
they allege have become a routine part of some NICS background checks. The problem is,
Plaintiffs do not allege facts that demonstrate they have been, or will be, personally affected by
Plaintiffs have not alleged that the FBI has compiled, retained, or disclosed their personal
information. Plaintiffs have not alleged that they are listed in the TSDB as known or suspected
Plaintiffs attempt to distinguish the conduct challenged in Clapper. See ECF No. 9-7 at 8, 38-39. To be
sure, the regulatory framework at issue in Clapper merely allowed federal officials to apply for authorization to
engage in the surveillance that the plaintiffs feared. Clapper, 133 S.Ct. at 1149. In contrast, Plaintiffs challenge
investigatory practices that have been put in place. See ECF No. 3, ¶¶ 19-30. Thus, the injury in Clapper was even
more hypothetical and conjectural. Clapper, 133 S.Ct. at 1149. But this is a distinction without a meaningful
difference. In Clapper, the plaintiffs failed to offer evidence that their communications would be monitored. Id. at
1148. Although the structure of the regulatory framework further undermined the plaintiff’s theory of standing, the
Court emphasized that the plaintiffs had “set forth no specific facts” demonstrating that their communications would
be monitored. Id. at 1149. Indeed, in emphasizing that failure, the Court cited the Sixth Circuit’s decision in
American Civil Liberties Union v. National Sec. Agency, 493 F.3d 664 (2007). The plaintiffs in ACLU sought to
challenge an actual program of surveillance that the President had already authorized. ACLU, 493 F.3d at 648 n.1.
But the court found the plaintiffs did not have standing to do so because they lacked evidence that their
communications had been intercepted. Id. at 665-656, 673-674. Similarly, here, Plaintiffs challenge a policy that
they allege has already been authorized and put into effect. Plaintiffs put themselves one step closer to the policy at
issue than did the plaintiffs in Clapper. But like the plaintiffs in both Clapper and ACLU, Plaintiffs in this case have
failed to allege facts that demonstrate they have been, or likely will be, the object of that policy. That failure thwarts
their theory of standing.
terrorists. Plaintiffs do not even allege that their NICS background checks have resulted in
“delayed” transactions, a fact that might give rise to a reasonable inference that they have been
the object of the challenged conduct. 7 Just as Plaintiffs do not allege that they have been
subjected to the antiterrorism measures that they challenged, they do not allege that they will, in
the future, be subjected to that conduct. Like the plaintiffs in O’Shea, Plaintiffs here do not point
to any imminent counterterrorism investigations contemplated against them. Nor do Plaintiffs
suggest that they expect to behave in a manner that might lead to a counterterrorism
investigation. Further, like the plaintiffs in Clapper, the affidavits of Plaintiffs in this case rely
on speculation that they might be subjected to the challenged conduct. See, e.g., ECF No. 9-3
(Affidavit of Michael P. Carpinelli) (“What if my name is slipped on the [TSDB]? I would lose
my right to defend myself, my family, my community, my livelihood.”) (emphasis added).
Because the injury that Plaintiffs assert is necessarily contingent on Plaintiffs being deemed
known or suspected terrorists, these failures are fatal to Plaintiffs’ theory of standing.
Plaintiffs also argue that if the Court finds that they do not have standing, Defendants’
conduct could not be challenged. ECF No. 9-7 at 40. That argument is both legally and
factually flawed. First, it is well established that the argument that “no one would have standing
to sue” is not itself a reason to find standing. Clapper, 133 S.Ct. at 1154 (citing Valley Forge
Christian College, 454 U.S. at 489). Second, this decision does not shield Defendants from
Plaintiffs allege that, “[w]hen the FBI believes that a potential customer is a match to someone in the
[TSDB], . . . the FBI uses the ‘delay’ sequence to create a three business-day window to elicit further information
about the potential customer, including, but not limited to, learning the manufacturer, model, and serial number of
the potential firearm to be purchased.” ECF No. 3, ¶ 33. Plaintiffs also provide exhibits that support this allegation.
See, e.g., Statement of Daniel D. Roberts (explaining that, when a potential purchaser matches a known or suspected
terrorist listed in the TSDB, “the NICS examiner informs [the dealer] the transaction is delayed for further research
and transfers the transaction to the NICS Command Center”); see also GOA 2005 at 2 (“[A]ll NICS transactions
with potential or valid matches to terrorist watch list records are automatically delayed to give NICS personnel the
chance to further research the transaction for prohibiting information before a response (e.g., proceed or denied) is
given to the initiator of the background check.”). But Plaintiffs do not allege that, when they have attempted to
purchase firearms, their NICS background checks resulted in delayed transactions.
judicial review. This decision merely requires, consistent with the irreducible, constitutional
minimum requirements of standing, that a plaintiff seeking judicial review demonstrate that they
have been injured by the challenged conduct. “The requirement that a party seeking review must
allege facts showing that he is himself adversely affected does not insulate executive action from
judicial review, nor does it prevent any public interests from being protected through the judicial
process.” Sierra Club v. Morton, 405 U.S. 727, 740 (1972). Rather, the doctrine of standing
shields the constitutional prerogatives of the executive—including the Chief Executive’s most
important constitutional duty, to “take Care that the Laws be faithfully executed,”—from
unnecessary interference by plaintiffs whose rights are not personally violated. See Laird, 408
U.S. at 15.
b. Chilling Effect
Plaintiffs next assert standing based on the effect of the challenged conduct on the
exercise of their constitutional rights. See ECF No. 9-7 at 39. Plaintiffs allege that Defendants’
conduct forces them to choose between their First and Second Amendment rights, among other
civil liberties. ECF No. 3, ¶ 84. Plaintiffs claim “the actions of the Defendants create immediate
and total interference with the statutory and public expectations regarding the purchase of a
firearm.” ECF No. 9-7 at 39. Defendants argue in response that Plaintiffs have fallen short of
demonstrating a concrete and particularized injury because they have not identified “a single
instance on which they were precluded from exercising their civil liberties.” ECF No. 6-1 at 11.
The Court finds this to be an insufficient basis for standing. The injury asserted under
this theory of standing does not arise directly from Defendants’ conduct; rather, under this theory
Plaintiffs are injured because the possibility that Defendants will intercept their personal
information for counterterrorism purposes has chilled the exercise of their constitutional rights.
But the possibility that Defendants will intercept their personal information for counterterrorism
purposes is still too remote to confer standing.
Allegations of a remote, “subjective chill” do not satisfy Article III’s case-or-controversy
requirement. Laird, 408 U.S. at 13-14. In Laird, the plaintiffs argued that their exercise of their
First Amendment rights was being “chilled by the mere existence, without more, of [the Army's]
investigative and data-gathering activity.” Id. at 10. While acknowledging that prior cases have
held that constitutional violations may arise from the chilling effect of “regulations that fall short
of a direct prohibition against the exercise of First Amendment rights,” the Supreme Court
declared that none of the plaintiffs in those cases asserted chilling effect arising “merely from the
individual’s knowledge that a governmental agency was engaged in certain activities.” Id. at 11.
Noting that the plaintiffs had not connected the existence of the surveillance program to their
own speech, the Court held that the plaintiffs’ allegations of a subjective chill were “not an
adequate substitute for a claim of specific present objective harm or a threat of a specific future
harm.” Id. at 13-14.
Like the plaintiffs in Laird, Plaintiffs here allege that the exercise of their constitutional
rights has been chilled by the mere existence of the challenged conduct. See ECF No. 3, ¶ 84.
Plaintiffs allege that they are “being forced to choose between their Second Amendment rights,
their First Amendment rights, and other, valuable civil liberties.” Id. But Plaintiffs fail to
demonstrate any likelihood that they will be subjected to the government actions they fear. Mere
knowledge that NICS background checks trigger counterterrorism efforts when some individuals
attempt to purchase firearms is not enough. See Laird, 408 U.S. at 11. Just as in Larid, the
chilling effect here is too remote to confer standing on Plaintiffs.
Plaintiffs’ Amended Complaint seems to suggest a third basis for standing. Plaintiffs
suggest that Defendants conduct injures firearms purchasers because it associates them with
terrorists. Plaintiffs submit that searching the TSDB in the course of conducting an NICS
background check “result[s] in their stigmatization as terrorists and potential terrorists.” ECF
No. 3, ¶ 125. Defendants argue that Plaintiffs’ alleged stigma is not sufficient to demonstrate an
injury because Plaintiffs “have not made any assertion of harm flowing from such alleged
stigmatization.” ECF No. 6-1 at 11. The Court agrees that Plaintiffs’ alleged stigma is not a
sufficient basis for standing.
An injury rooted in the stigmatizing effect of government conduct “accords a basis for
standing only to those persons who are personally denied equal treatment by the challenged
discriminatory conduct.” Allen, 468 U.S. at 755 (collecting cases). In Allen, the Supreme Court
held that the African American plaintiffs did not have standing based on a stigma resulting from
discrimination against other African Americans. Id. at 761. The Court found such an injury to
be “abstract” and “not judicially cognizable.” Id. at 755.
Here, Plaintiffs seem to suggest that they have been stigmatized as “terrorists and
potential terrorists” because other potential firearms purchasers, whom the FBI considers
known or suspected terrorists, have had some of their personal information compiled, retained,
and disclosed. See ECF No. 3, ¶ 125. But Plaintiffs do not allege that they have been subjected
to the conduct that creates the stigma. For that reason, Plaintiffs’ alleged stigma, like the stigma
asserted in Allen, is not “judicially cognizable.” Id. at 755.
For the reasons stated above, Defendant’s Motion to Dismiss (ECF No. 6) is GRANTED.
Plaintiffs’ Amended Complaint is dismissed without prejudice, and the Clerk of the Court is
directed to close the case.
IT IS SO ORDERED.
Dated: April 10, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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