FILED FEB - 7 P 1:05, ROBERT H. CLELAND 95 CV 10045 BC UNITED STATES OF AMERICA IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ---------------------------- NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York not for profit Corporation; MICHIGAN UNITED CONSERVATION CLUBS, a Michigan non profit corporation; OLYMPIC ARMS, a Washington corporation; CALICO LIGHT WEAPONS SYSTEMS, a California corporation; NAVEGAR, INC. a Florida corporation, d/b/a INTRATEC; D.C. ENGINEERING, INC., a Michigan corporation; THE AMMO DUMP, a Michigan corporation; GLENN DUNCAN; CHARLES DUNCAN; JAMES E. FLYNN; JAMES J. FOTIS; THOMAS L. HERITIER; and CHIEF CRAIG D. SANDLER, Plaintiffs -- vs -- JOHN MAGAW, Director Bureau of Alcohol, Tobacco and Firearms and THE UNITED STATES OF AMERICA, Defendants ------------------------------- COMPLAINT Plaintiffs, through their attorneys, Carol Bamberry, David Hardy, and James H. Warner, make the following allegations in their Complaint against Defendants: GENERAL ALLEGATIONS 1. Plaintiff Glenn Duncan holds a Federal Firearms License (FFL) and conducts a firearms business on the premises of "Duncan's Outdoor Shop, Inc.," located at 501 Salzburg - 1 - =========================================================== Avenue, Bay City, Michigan, 48706. 2. Plaintiff, National Rifle Association of America (NRA), is a New York not for profit corporation, consisting of 3.5 million members, of whom approximately 154,000 are residents of the State of Michigan, and many of these members have been directly harmed by the legislation at issue in this lawsuit. 3. Plaintiff, Michigan United Conservation Clubs (MUCC), is a Michigan non profit corporation, with its principal place of business located at 2101 Wood Street, Lansing, Michigan 48912. MUCC has 130,000 members and many of these members have been directly harmed by the legislation at issue in this lawsuit. 4. Plaintiff, D.C. Engineering, Inc., (DCE) is a Michigan corporation, with its principal place of business located at 8633 Southfield Road, Detroit, Michigan. DCE manufactures detachable ammunition feeding devices for firearms. 5. Plaintiff, Michael Gurecki is a resident of the city of Williamston, in the State of Michigan. Mr. Gurecki holds a Federal Firearms License (FFL) and conducts a firearms business under the name "The Ammo Dump" in premises located at 586 Williamston Road, Williamston, Michigan, 48895. 6. Charles Duncan resides at 1925 Marquette, Saginaw, Michigan 48602. Mr. Duncan served as a Police Officer and retired from the Police Department of the City of Saginaw. 7. Plaintiff James E. Flynn resides at 401 Plymouth Road, Saginaw, Michigan 48603. 8. Plaintiff Thomas L. Heritier resides at 2830 Schemm Street, Saginaw, Michigan 48602. Mr. Heritier is retired from the Police Department in the City of Saginaw, and currently serves, in a civilian capacity, as a firearms trainer for that Department. 9. Plaintiff, Olympic Arms, Inc. (Olympic), is a Washington corporation, with its principal place of business located at 624 Old Pacific Highway, S.E., Olympia, Washington 98513. Olympic is licensed by the Federal Government to manufacture firearms. Firearms manufactured by Olympic are sold in the State of Michigan. 10. Plaintiff, Calico Light Weapons Systems, Inc. (Calico), a California corporation, with its principal place of business located at 405 E. 19th Street, Bakersfield, California. Calico is licensed by the Federal Government to manufacture firearms. Firearms manufactured by Calico are sold in the State of Michigan. 11. Plaintiff, Navegar, Inc. (Navegar), is a Florida Corporation doing business as "Intratec," with its principal place of business located at 12405 SW 130 Street, Miami, Florida 33186. Navegar is licensed by the Federal Government to manufacture firearms. Firearms - 2 - =========================================================== manufactured by Navegar are sold in the State of Michigan. 12. Plaintiff James J. Fotis is a resident of the Commonwealth of Virginia, and is the Executive Director of the Law Enforcement Alliance of America, whose offices are located a 7700 Leesburg Pike, Suite 421, Falls Church, Virginia 22043. 13. Plaintiff Chief Craig D. Sandler resides at 43635 Ashburn Court, Ashburn, Virginia 22011. He retired as the Chief of Police of Nashua, New Hampshire. JURISDICTION 14. Jurisdiction is founded upon 28 U.S.C. Sec. 1331 in that this case arises under the Constitution and laws of the United States, and is a controversy to which the United States is a party. Venue is founded upon 18 U.S.C. Sec. 1391(e). 15. P.L. 103-322; 108 Stat.1796, became effective on September 13, 1994. Title XI, Subchapter A, of that statute amended 18 U.S.C. Sec. 921-922 to criminalize most future manufacture, transfer, or possession of certain firearms and large capacity ammunition feeding devices. 16. Title XI, subtitle A, of P.L. 103-322; 108 Stat.1796, added new subsection (v) to 18 U.S.C. Sec. 922. The new subsection made it illegal for a private person, other than a current employee of a law enforcement agency, to manufacture, transfer or possess a "semiautomatic assault weapon," other than one legally possessed on the statute's effective date. 17. Title XI also added a new paragraph (30) to 18 U.S.C. Sec. 921(a). The added paragraph defines the term "semiautomatic assault weapon" using two parallel, but unrelated, tests. 18. The first definition, in Sec. 921(a)(30)(A), is a list enumerating firearms by model name, manufacturer's name, or a name popularly used to designate a general class of firearms. These include: -- any of the firearms "known as" "(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v) Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-l l, M-11/9, and M-12; (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) Revolving cylinder shotguns such as (or similar to) the Street Sweeper and Striker 12." This test also includes copies or duplicates of the enumerated firearms in any caliber. The - 3 - ============================================================ degree of similarity required for a firearm to constitute a "copy" or "duplicate" of a listed one was not defined, apart from the implication that a difference in caliber between a firearm and one on the list would not prevent it from constituting a copy or duplicate of one listed. 19. The second definition, in Sec. 921(a)(30)(B), is a generic test for the presence of certain listed features or accessories; these vary with the type of firearm. For a rifle, the list includes (1) a folding stock; (2) a pistol grip protruding "conspicuously" below the action; (3) a bayonet mount; (4) a flash suppressor or barrel threaded to accommodate one; and (5) a grenade launcher. No one of these was forbidden, but a semiautomatic rifle with any combination of two or more was defined to be a "semiautomatic assault weapon" and thus prohibited. 20. Subtitle A, of Title XI, also added Sec. 922(w), which prohibits manufacture, transfer, or possession of large capacity ammunition feeding devices, defined as magazines capable of receiving more than 10 rounds. 21. Subtitle A, of Title XI, at Appendix A, contains a list of approximately 400 firearms, listed by name of manufacturer and model, which are explicitly exempt from the prohibition which this Act added to 18 U.S.C. sec. 922(V). COUNT I THE TERMS "COPY" AND "KNOWN AS" IN 18 U.S.C. 921(a)(30)(A) AND THE TERM "FLASH SUPPRESSOR" IN 18 U.S.C. 921(a)(30)(B) ARE IMPERMISSIBLY VAGUE 22. Plaintiffs restate the allegations in paragraphs 1 through 21, inclusive. 23. Plaintiffs desire to manufacture, transfer, or possess various semiautomatic firearms, with degrees of similarity to those which are enumerated in Sec. 921(a)(30)(A). These firearms would be used for hunting, target practice, self defense, collection, and other lawful purposes. They are unable to ascertain, with any reasonable assurance, what firearms they may lawfully manufacture, transfer or possess, and which firearms, if manufactured, transferred or possessed, would subject them to criminal penalties. 24. A wide variety of firearms possessing various attributes of the firearms listed in 18 U.S.C. Sec. 921(a)(30)(A) are available and useful in lawful pursuits. These vary in internal operation, outward appearance, function, and caliber. Some which have little physical variation from the listed firearms did not in fact derive their design from the listed firearm; rather both they and the listed firearm evolved from a common, unlisted, design ancestor. Others which were consciously designed using the listed firearm as an inspiration possess improvements of varying degrees. 25. The prohibition of manufacture, transfer, and use of "copies or duplicates" of the - 4 - =========================================================== firearms expressly listed in 18 U.S.C. Sec. 921 (a)(30)(A), without a definition of those terms, is violative of the Due Process Clause of the Fifth Amendment, Constitution of the United States, in that a reasonable person is unable to ascertain what firearms are forbidden to private citizens, other than law enforcement employees, and which are permitted. 26. The prohibition of manufacture, transfer and use of "copies or duplicates" of listed firearms is not severable from the remainder of 18 U.S.C. Sec. 921 (a)(30)(A). 27. Many of the terms used in the enumerated list, such as "Avtomat Kalashnikov," "Uzi" and "Galil," are used differently by experts and non-experts to identify various firearms. A reasonable person is unable to ascertain which firearms may be "known as" such by various persons and institutions, and is unable to determine which person, or institution, was intended to serve as the authority on what a given firearm is "known as." A reasonable person is unable to determine what process is to be followed to determine what a given firearm is "known as." Accordingly, a reasonable person is unable to determine which firearms are permitted and which are forbidden. 28. The prohibition of firearms "known as" these designations is violative of the Due Process Clause of the Fifth Amendment, Constitution of the United States, in that a reasonable person is unable to ascertain what firearms are forbidden to private citizens, other than law enforcement employees, and which are permitted. 29. If the language creating the prohibition on firearms "known as" these designations, is taken to mean that a manufacturer is forbidden to write that name on a firearm, and means nothing more than this, then this prohibition violates the First Amendment to the Constitution of the United States. 30. If, in the alternative, a reasonable person can ascertain with assurance which firearms are known as the listed ones, and which others are copies or duplicates of them, Plaintiffs are in need of a declaratory judgement establishing which attributes render a firearm a copy or duplicate and which do not, and which of the firearms they desire to transfer or possess are lawful and which are prohibited. 31. The prohibition of manufacture, transfer and use of "firearms known as" the listed firearms is not severable from the remainder of 18 U.S.C. Sec. 921 (a)(30)(A). 32. 18 U.S.C. 921(a)(30)(B) provides an alternate definition of prohibited firearms. Under it, a non-listed firearm may not possess more than one of a specified list of accessories. Among the accessories restricted in the case of rifles is a "flash suppressor." 18 U.S.C. Sec. 921 (a)(30)(B)(iv). 33. A variety of devices exist which can either suppress the muzzle flash of a rifle or reduce it by a smaller or greater degrees. Some were specifically designed to suppress flash, - 5 - =========================================================== while others (including some so simple as a longer barrel, barrel extension, or recoil-reducing muzzle brake) have that effect only as an unintended effect of their intended function. 34. Plaintiffs and their members desire to purchase, transfer, attach and possess different of these items. They are unable to ascertain which of them Congress intended to restrict by its use of the term "flash suppressor." 35. The prohibition of a "flash suppressor" without further definition is violative of the Due Process Clause of the Fifth Amendment, Constitution of the United States, in that a reasonable person is unable to ascertain what device is forbidden to private citizens, other than law enforcement employees, and which are permitted. 36. In the alternative, Plaintiffs are in need of a declaratory judgment establishing which of the devices are covered, and which are not covered, by the use of the term "flash suppressor" in 18 U.S.C. Sec. 921(a)(30)(B)(iv). COUNT II THE FEDERAL GOVERNMENT LACKS THE AUTHORITY TO ENFORCE SUBTITLE A, OF TITLE XI, OF PL. 103-322 37. Plaintiffs restate the allegations in paragraphs 1-36, inclusive. 38. Plaintiffs, and their members, wish to manufacture, transfer, or possess, firearms similar to those in the enumerated list, with more than one of the proscribed features listed in the generic criteria definition of"semiautomatic assault weapon," and large capacity ammunition feeding devices. 39. Restrictions, and prohibitions, upon the manufacture, transfer, or possession of semiautomatic firearms, and large capacity ammunition feeding devices is an area of law which has historically been reserved to the States. 40. Subtitle A, of Title XI, of P.L. 103-322; 108 Stat. 1796, purports to impose restrictions upon the manufacture, transfer, and possession of these devices, but does not expressly state the intention of Congress to displace the authority of the States, nor does it expressly state the Constitutional grant of authority by which it intends to make such displacement. COUNT III THE BAN ON CERTAIN SEMIAUTOMATIC RIFLES, AND THE PROTECTION OF OTHER SEMIAUTOMATIC RIFLES OF THE SAME TYPE, FUNCTION AND CAPACITY, IS A DENIAL OF DUE PROCESS - 6 - ============================================================ 41. Plaintiffs restate the allegations in paragraphs 1-37, inclusive. 42. Plaintiffs Olympic Arms, Calico Light Weapons Systems, and Navegar, manufactured firearms prior to September 13, 1994, which may be proscribed by Subtitle A, of Title XI, of P.L. 103-322; 108 Stat. 1796, either by the enumerated list or by the generic criteria definition. 43. Many of the firearms which are explicitly exempted from the prohibitions in Subtitle A, are of the same type, function, or capacity as those which were formerly manufactured by Plaintiffs. 44. The classification of certain firearms as proscribed, and others as protected, when the members of both classes are of the same type, function, or capacity, is arbitrary and capricious, and is not rationally related to any legitimate governmental purpose, or to the stated objective of the legislation. Accordingly, it is a denial of due process in that it deprives Plaintiffs of the equal protection of the laws. COUNT IV THE REFUSAL, BY BATF, TO RECOGNIZE, AS A FIREARM, THE FRAME OR RECEIVER OF A FIREARM LAWFULLY POSSESSED PRIOR TO THE EFFECTIVE DATE, IS ARBITRARY AND CAPRICIOUS 45. Plaintiffs restate the allegations in paragraphs 1-37 inclusive. 46. 18 U.S.C. Sec. 921(3) defines the term "firearm" to include the frame or receiver a firearm. 18 U.S.C. Sec. 922(v)(2) exempts from the ban any "semiautomatic assault weapons" which were lawfully possessed under Federal law on September 13, 1994. Plaintiffs, and their members, wish to transfer or possess, the frames or receivers of firearms which may be known as, or may be copies of the firearms known as, those on the enumerated list, but which are exempt from the prohibition because they were lawfully possessed on or before September 13, 1994. They wish to use these frames or receivers to assemble firearms which would not be lawful to assemble if the frames or receivers were not lawfully owned on or before September 13, 1994. 47. BATF has declared that the definition of "firearm" given at 18 U.S.C. Sec. 921(a)(3)(B) (the frame or receiver of a weapon) notwithstanding, it will not consider a receiver to be within the exception if it has not been assembled into a fully functional firearm, or for which the possessor did not possess a complete parts kit on September 13, 1994. 48. Plaintiffs know of no method by which they may ascertain if a given frame or receiver had been assembled into a fully functional firearm, or its possessor had possessed a complete parts kit on or before the effective date of the statute. Further, Plaintiffs do not know how to prove the status of such a frame or receiver in the event they are wrongfully charged with violating the statute for assembling the firearm. Accordingly, Plaintiffs are in need of a declaratory judgment setting forth the procedure to be used to ascertain, and prove in court, the status of a frame or - 7 - =========================================================== receiver. 49. The refusal to recognize the exemption has harmed Plaintiffs, and their members, and is arbitrary and capricious. WHEREFORE, Plaintiffs respectfully request that this Court render judgment in favor of Plaintiffs and against Defendants, as follows: 1. Declare that 18 U.S.C. Sec. 921(a)(30)(A) denies due process of law because it is vague for a person of ordinary intelligence to understand its meaning, in violation of the First and Fifth Amendments to the Constitution of the United States, and issue an order permanently enjoining the Defendants from enforcement of the prohibitions in 18 U.S.C. Sec. 922(v); 2. In the alternative, declaring which firearms are within the definition of 18 U.S.C. Sec. 921(a)(30)(A), and enjoining enforcement with respect to those which are not; 3. Enter a declaratory judgment defining which devices are within the scope of the term "flash suppressor" as used in 18 U.S.C. Sec. 921(a)(30)(B)(iv); 4. Enter judgment that Subtitle A, Title XI, of P.L 103-322; 108 Stat. 1796, violates the Constitution of the United States in that it purports to invade a province of the law historically reserved to the States without expressly stating an intention to displace state authority, nor reciting any constitutional grant of power which would enable the United States Government to do so; 5. Enter a declaratory judgment setting forth the standards to be used to ascertain and prove that a frame or receiver was lawfully owned on or before September 13, 1994; 6. Issue an order enjoining Defendants from proceeding contrary to the declaratory relief granted. 7. Granting Plaintiffs their costs and attorney fees; and 8. Granting such other relief as may be just and proper. Respectfully submitted this _7_ day of _February_, 1995. - 8 - =========================================================== ATTORNEYS FOR PLAINTIFFS: (signed) James H. Warner (P29094) Assistant General Counsel National Rifle Association 11250 Waples Mill Road Fairfax, VA 22030 (signed) M. Carol Bambery Michigan United Conservation Club 2101 Wood Street P.O. Box 30235 Lansing, MI (signed) David Hardy 8987 E. Tanque Verde Suite 265 Tucson, AZ 85749 [END OF DOCUMENT]