United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
William Christopher Sherlund alleges violations of the
Second, Fifth, and Fourteenth Amendments. Doc. 1. Defendants
Jefferson B. Sessions III, United States Attorney General;
Christopher Wray, Director of the Federal Bureau of
Investigations; and Thomas E. Brandon, Acting Director of the
Bureau of Alcohol, Tobacco, Firearms and Explosives, move to
dismiss Plaintiff's complaint pursuant to Rule 12(b)(1),
(3), and (6). Doc. 13. The motion is fully briefed, and oral
argument will not aid the Court's decision. Docs. 15-17.
For the following reasons, the Court will grant the motion
for lack of subject matter jurisdiction.
Court takes the factual allegations of Plaintiff's
complaint as true for purposes of a motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In July
2008, Plaintiff was involuntarily committed in California
because of concerns that he was a danger to himself and
others after a suicide attempt. Doc. 1 at 3, 6. Plaintiff has
not been a risk to himself or others since his discharge on
August 6, 2008, and he does not have substance abuse issues.
Id. at 6.
applied for a concealed weapons permit in Arizona.
Id. In a letter dated September 19, 2016, the
Arizona Department of Public Safety (“AZDPS”)
denied Plaintiff's application because he had been
“adjudicated as a mental defective or committed to a
mental institution.” Id. The letter stated:
On 9/17/2008, California Department of Justice adjudicated
you as suffering from a mental disorder. As a result, you are
classified as a prohibited possessor under state law A.R.S.
§ 13-3101(7)(a). Additionally, you are classified as a
prohibited possessor under federal law in accordance with
United States Code Title 18 Section 922(G)(4). The law
provides that an applicant for a concealed weapons permit
shall not be a prohibited possessor.
Id. at 6-7.
has been unable to purchase or possess a firearm, and he
fears arrest, criminal prosecution, incarceration, and fines
if he were to do so. Id. at 3. In April 2018,
Plaintiff sued Defendants, challenging the constitutionality
of 18 U.S.C. § 922(g)(4) under the Second, Fifth, and
Fourteenth Amendments. Doc. 1. Plaintiff did not challenge
the constitutionality of A.R.S. § 13-3101(7)(a).
See Doc. 1. Defendants argue that Plaintiff lacks
Article III standing, venue is improper, and that Plaintiff
fails to state a claim. Doc. 13.
Motion to Dismiss for Lack of Article III Standing.
Rule 12(b)(1) jurisdictional attack may be facial or factual.
In a facial attack, the challenger asserts that the
allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.” Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). When considering a facial attack, the Court takes the
allegations in the plaintiff's complaint as true.
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
2004). The party invoking the Court's jurisdiction has
the burden of establishing it. Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016).
Constitution limits federal court jurisdiction to
“Cases” and “Controversies.” U.S.
Const. art. III, § 2; Raines v. Byrd, 521 U.S.
811, 818 (1997) (citation omitted). To show that a case or
controversy exists, a plaintiff must establish that he has
standing to bring suit. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61 (1992). An individual plaintiff must
satisfy three elements to establish Article III standing: (1)
an injury-in-fact, (2) causation between the injury and the
allegedly wrongful conduct, and (3) that the injury is likely
to be redressed by a favorable decision from the Court.
Lujan, 504 U.S. at 560. In addition, when a
“plaintiff seeks declaratory and injunctive relief
only, there is a further requirement that [the plaintiff]
show a very significant possibility of future harm.”
San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d
1121, 1126 (9th Cir. 1996) (internal quotations omitted).
“If a plaintiff lacks Article III standing to bring a
suit, the federal court lacks subject matter jurisdiction and
the suit must be dismissed under Rule 12(b)(1).”
Chaney v. Berkshire Hathaway Automotive, No.
CV-17-00989-PHX-DGC, 2017 WL 6520662, at *4 (D. Ariz. Sept.
25, 2017). Defendants argue Plaintiff cannot satisfy the
causation and redressability elements of Article III
standing. Doc. 13 at 5.
show causation, the plaintiff must demonstrate a causal
connection between the injury and the conduct complained of -
the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the
independent action of some third party not before the
court.” Salmon Spawning & Recovery All. v.
Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008) (citing
Lujan, 504 U.S. at 560-61); see also Maya v.
Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011)
(“In cases where a chain of causation involves numerous
third parties whose independent decisions collectively have a
significant effect on plaintiff['s] injuries, . . . the
causal chain [is] too weak to support standing at the
pleading stage.” (citing Allen v. Wright, 468
U.S. 737, 759 (1984)).
argue Plaintiff cannot establish causation because he
challenges only the federal statute prohibiting his gun
possession when an Arizona statute also independently
prohibits approval of his concealed carry permit. Doc. 13 at
5. Plaintiff responds that his general fear of criminal
prosecution is fairly traceable, in part, to §
922(g)(4), and that his consequent forbearance in pursuing