[Government brief from case challenging application of Gun Free School Zones Act to home schooling; the Government asserts they will not apply the act to a home school situation.] IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION GAVINO PEREZ, MICHAEL PUTNAM, CHARLES DUNN, and WELDON LISTER, Plaintiffs, CIVIL NO. SA-97-CA-0604 vs. JANET RENO, in her official capacity as Attorney General of the United States, and WILLIAM BLAGG, in his official capacity as United States Attorney for the Western District of Texas, Defendants. DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION Defendants, JANET RENO, the Attorney General of the United States of America, and JAMES WILLIAM BLAGG, the United States Attorney for the Western District of Texas, hereby move, pursuant to Federal Rules of Civil Procedure 12(b)(l), to dismiss this action for lack of subject-matter jurisdiction. In support of this Motion, the Court is respectfully referred to Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss for Lack of Subject-Matter Jurisdiction. Respectfully submitted, FRANK W.HUNGER Assistant Attorney General JAMES WILLIAM BLAGG United States Attorney Western District of Texas RAYMOND A. NOWAK First Assistant-Civil Division [signed] VINCENT M. GARVEY Deputy Director ERIC S. ANGEL D.C. Bar No. 444731 Trial Attorney, Civil Division Federal Programs Branch United States Department of Justice Post Office Box 883 901 E Street, N.W., Room 904 Washington, D.C. 20044 Tel.: (202) 514-4775 Fax: (202) 616-8202 Attorneys for Defendants OF COUNSEL: KEVIN DIGREGORY Deputy Assistant Attorney General Criminal Division BRUCE DELAPLAINE Deputy Chief for Violent Crime NANCY OLIVER Trial Attorney Terrorism and Violent Crime Section Criminal Division United States Department of Justice DATED: November 6, 1997 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION GAVINO PEREZ, MICHAEL PUTNAM, CHARLES DUNN and WELDON LISTER, Plaintiffs, CIVIL NO. SA-97-CA-0604 vs. JANET RENO, in her official capacity as Attorney General of the United States, and WILLIAM BLAGG, in his official capacity as United States Attorney for the Western District of Texas, Defendants. MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT ....................................... 1 I. STANDARD OF REVIEW ....................................... 2 II. RELEVANT FACTUAL BACKGROUND ............................. 3 III. RELEVANT STATUTORY PROVISION ........................... 4 IV. ARGUMENT ................................................ 6 A. Plaintiffs Lack Standing to Bring a Pre-Enforcement Challenge to the Act ............................... 7 B. Plaintiffs' Pre-Enforcement Challenge Is Nor Ripe for Review. ............................................. 10 C. Long-Standing Equitable Principles Militate Against the Court Providing the Pre-Enforcement Relief Sought by Plaintiffs ........................................... 12 CONCLUSION .................................................... 13 TABLE OF AUTHORITIES Cases Abbott Lab. v. Gardner, 387 U.S. 136 (1967) ................... 11 Allen v. Wright, 468 U.S. 737 (1984) ........................ 7, 9 American Library Association v. Barr, 956 F.2d 1178 (D.C. Cir. 1992) .................................... 10,11 Barrera-Montenegro v. United States, 74 F.3d 657 (5th Cir. 1996) ......................................... 3 Bender v. Williamsport Area Sch. District, 475 U.S. 534 (1986) ...................................... 7 Buckley v. Valeo, 424 U.S. 1 (1976) ........................... 10 Chicago & Grand Trunk Ry Co. v. Wellman, 143 U.S. 339 (1938) ... 12 Couhig v. Brown, 538 F. Supp. 1086, 1088 (E.D. La. 1982) ....... 8 Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987) ....,......... 12 Dombrowski v. Pfister, 380 U.S. 479 (1965) .................... 8 Douglas v. City of Jeannette, 319 U.S. 157 (1943) ........... 8 Eccles v. Peoples Bank, 333 U.S. 426 (1947) ................ 12 Ellis v. Dyson, 421 U.S. 426 (1975) ........................... 1 Ernst & Young v. Depositors Economic Protection Com., 45 F.3d 530 (1st Cir. 1995) ............................. 12 Frank v. United States, 78 F.3d 815 (2d Cir. 1996), rev'd on other grounds, 117 S. Ct. 2501 (1997) .......... 9,13 George v. Texas, 788 F.2d 1099 (5th Cir.) (per curiam), cert. denied, 479 U.S. 866 (1986) ......................... 8 International Tape Manufacturers Association v. Gerstein, 494 F.2d 25 (5th Cir. 1974) ............................ 2,11 Jean v. Nelson, 472 U.S. 846 (1985) ........................... 2 Johnson v. Dallas, 61 F.3d 442 (5th Cir. 1995) ............. 7, 8 Koog v. United States, 852 F. Supp. 1376 (W.D. Tex. 1994), revd on other grounds, 79 F.3d 452 (5th Cir. 1996), cert denied, 117 S. Ct. 2307 (1997) ................... 10,13 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......... 7 Mack v. United States, 66 F.3d 1025 (9th Cir. 1995), revd on other grounds sub nom., Printz v. United States,117 S. Ct. 2365 (1997) ....................... 9,11,13 Martin Tractor Co. v. Federal Election Commission, 627 F.2d 375 (D.C. Cir. 1980) ............................. 8 McGee v. United States, 863 F. Supp. 321 (S.D. Miss. 1994), affd, Koog v. United States, 79 F.3d 452 (5th Cir. 1996), cert. denied, 117 S. Ct. 2507 (1997) ................. 10, 13 Peebler v. Reno, 965 F. Supp. 28 (D. Or. 1997) ............. 10,13 Poe v. Ullman, 367 U.S. 497(1961) ...................... 2,8,9,12 Public Service Commission v. Wycoff Co., 344 U.S. 237 (1952) .. 12 Renne v. Geary, 501 U.S. 312 (1991) ............................ 1 Romero v. United States, 883 F. Supp. 1076 (W.D. La. 1994) .. 10,13 San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1128 (9th Cir. 1996) ...................... 9,11 Steffel v. Thompson, 415 U.S. 452 (1974) ....................... 8 United States v. Lopez, 514 U.S. 549 (1995) ................... 4 WEB DuBois Clubs of America v. Clark, 389 U.S. 309 (1967) ... 11,12 Warth v. Seldin, 422 U.S. 490 (1975) .......................... 7 Younger v. Harris, 401 U.S. 37 (1971) .................... 1,8,13 Federal Statutes Gun Free School Zones Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 369-70 (codified at 18 U.S.C. section 922(q)(1)-(2)) ........................... passim Declaratory Judgment Act, 28 U.S.C. section 2201(a) ................ 11 Federal Rules Fed. R. Civ. P. 12(b)(1) ................................... passim Fed. R. Crim. P. 12(b) ......................................... 7 PRELIMINARY STATEMENT Plaintiffs, four individuals who allege that they "home school" their children while maintaining a firearm in their residences, have brought this action seeking either a pre- enforcement advisory opinion regarding the appropriate interpretation of a new criminal statute or, in the alternative, a pre-enforcement declaration that the statute would be unconstitutional if it were ever applied to their conduct. The advisory relief which plaintiffs seek, however, cannot issue from this or any other federal court. Plaintiffs' First Amended Complaint, Oct. 20, 1997 [hereinafter "complaint"], suffers from numerous fatal jurisdictional defects. First, it is well-established that, absent highly unusual circumstances not present here, a plaintiff must be indicted, arrested, or threatened with imminent prosecution under a criminal statute in order to have standing to challenge its validity. See, e.g., Younger v. Harris, 401 U.S. 37, 41-42 (1971); Johnson v. Dallas, 61 F.3d 442, 444 (5th Cir. 1995) ("The law is well served that a plaintiff who has not been prosecuted under a criminal statute does nor normally have standing to challenge the statute's constitutionality") (internal quotation marks and citations omitted). In this case, plaintiffs have not even been threatened generally with criminal prosecution, and have certainly nor been the subject of a "genuine" and "credible" threat of imminent prosecution under the challenged statute. Renne v. Geary, 501 U.S. 312, 322 (1991); Ellis v. Dyson, 421 U.S. 426, 434 (1975); see Poe v. Ullman, 367 U.S. 497, 501-09 (1961) plurality). In any event, the Department of Justice does not interpret the Gun-Free School Zones Act of 1996 ("the Act"), Pub. L. No. 104-208, 110 Stat. 3009, 369-70 (codified at 18 U.S.C. section 922(q)(1)-(2)), to apply to the situation presented in the complaint, that is, to individuals who home school their own children and otherwise lawfully maintain a firearm in their residence. Under these circumstances, plaintiffs clearly cannot demonstrate a genuine, credible threat of imminent prosecution under the Act. Younger, 401 U.S. at 42 ("[P]ersons having no fears of state prosecution except those that are imaginary or speculative ... are not to be accepted as appropriate plaintiffs") (citation omitted). Hence, plaintiffs lack standing to litigate this pre-enforcement lawsuit. For similar reasons, plaintiffs' action should be dismissed on ripeness grounds: a plaintiff challenging a criminal statute "does not present a ripe controversy if he shows no realistic possibility that the challenged statute will be enforced to his detriment." International Tape Manufacturers Ass'n v. Gerstein, 494 F.2d 25, 28 (5th Cir. 1974) (multiple citations omitted). A suit is certainly not ripe when the prosecutors assert that the challenged statute does not apply to plaintiffs' conduct. See, e.g., Poe, 367 U.S. at 507-08 (1961) (citing C.I.O. v. McAdory, 325 U.S. 472, 475 (1945)). Finally, review of plaintiffs' complaint would run contrary to longstanding judicial principles which require courts to avoid deciding constitutional questions "'unless such adjudication is unavoidable.'" Jean v. Nelson, 472 U.S. 846, 854 (1985) (quoting Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944)). For these reasons, elaborated upon below, the Court lacks subject-matter jurisdiction to review the merits of plaintiffs' complaint. Accordingly, defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) should be granted. I. STANDARD OF REVIEW The standard of review for motions brought pursuant to Fed. R. Civ. P. 12(b)(1) is well-established. Rule 12(b)(1) provides that a complaint may be dismissed for "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). In the Fifth Circuit, the district court "has the power to dismiss [pursuant to Rule 12(b)(1)] on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera- Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) (citations and internal quotation marks omitted). Accordingly, if necessary, the Court is explicitly authorized to resolve factual disputes in order to decide this jurisdictional motion. Nevertheless, as explained below, in this case the Court will not need to resolve any factual disputes in order to rule upon defendants' motion to dismiss for lack of subject-matter jurisdiction. II. RELEVANT FACTUAL BACKGROUND Although plaintiffs' complaint is relatively lengthy, their factual allegations are quite slim. For the purposes of this motion, there are only two material issues of fact, both of which the Court may assume to be true in ruling on defendant's motion. First, each plaintiff - - Gavino Perez, Michael Putnam, Charles Dunn, and Weldon Lister - - alleges that he "home schools" his children. [footnote 1] See First Amended Compl., paras. 3.1-3.4 Second, each plaintiff alleges that he owns at least one firearm which he maintains in his residence. [footnote 2] Id. A review of the complaint also makes it clear that none of the plaintiffs alleges that he has even remotely been threatened with prosecution under the Gun-Free School Zones Act of 1996. See generally First Amended Complaint. Rather, plaintiffs have instituted this lawsuit because they profess "uncertainty" as to whether the Act will be applied to their conduct. See First Amended Complaint, para. 4.6. III. RELEVANT STATUTORY PROVISION The Gun-Free School Zones Act of 1996 was signed into law on September 30, 1996, as part of the Omnibus Consolidated Appropriations Act of 1997. The Act amended the Gun-Free School Zones Act of 1990, which had been declared unconstitutional by the United States Supreme Court in United States v. Lopez, 514 U.S. 549 (1995), on the ground that the statute exceeded Congress' authority under the Commerce Clause. The Gun-Free School Zones Act of 1996 differs from its predecessor in several respects. Most notably, however, the 1996 Act contains a jurisdictional element, which requires the government to prove, in the context of each prosecution, that the relevant firearm has the requisite nexus to interstate commerce Thus. 18 U.S.C. section 922(q)(2)(A) provides that: "It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone." [footnote 3] The Gun-Free School Zones Act of 1996 also differs from its predecessor because it includes formal congressional findings. These findings, which have been incorporated into the statute itself, provide as follows: (q)(1) The Congress finds and declares that - (A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem; (B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs; (C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary [of] the House of Representatives and the Committee on the Judiciary of the Senate; (D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce; (E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason; (F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country; (G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States; (H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves-even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and (I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation's schools by enactment of this subsection. 18 U.S.C. section 922(q)(1). As previously noted, although they have not been threatened with prosecution in any way, plaintiffs have instituted this suit professing "uncertainty" as to whether the Gun-Free School Zones Act of 1996 will be applied to their conduct. See First Amended Complaint, para. 4.6. Although under no obligation to do so in the context of this anticipatory challenge, the Department of Justice states that it does not interpret the Gun-Free School Zones Act to apply to the situation presented in the complaint, that is, to individuals who home school their own children and otherwise lawfully maintain a firearm in their residence. IV. ARGUMENT Although plaintiffs have been neither prosecuted nor threatened with prosecution under the Gun-Free School Zones Act, they nonetheless seek a declaratory judgment that the statute violates the United States Constitution or, in the alternative, an advisory opinion regarding the appropriate construction of the Act. But plaintiffs have no standing to litigate these claims. Moreover, because plaintiffs could challenge the Act in the extraordinarily unlikely event that a prosecution were ever initiated against them, plaintiffs' complaint is not ripe for review. Finally, even if plaintiffs had standing, and the claim were somehow ripe for review, for prudential reasons the Court should still decline to hear the merits of plaintiffs' challenge under these circumstances. For all of these reasons, plaintiffs' lawsuit should be dismissed. A. Plaintiffs Lack Standing to Bring a Pre-Enforcement Challenge to the Act Article III of the United States Constitution limits the federal judiciary to adjudicating actual "cases or controversies." The case or controversy requirement "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen v. Wright, 468 U.S. 737, 750 (1984). The requirement is based on "concern about the proper - and properly limited - role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498 (1975) (citations omitted). As a consequence, federal courts are presumed to lack jurisdiction, "unless 'the contrary appears affirmatively from the record.'" Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986) (quoting King Bridge Co. v. Otoe County, 120 U.S. 225, 226 (1887)). The doctrine of standing is "an essential and unchanging" "core component" of the case or controversy requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In order to have standing to invoke the power of a federal court, a plaintiff must establish, at an "irreducible constitutional minimum," three propositions. Id. First, a plaintiff must demonstrate that he has suffered an "injury in fact" which is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (internal citations and quotation marks omitted). Second, the injury must be fairly traceable to the challenged action of the defendant. Id. at 560 (citation omitted). Third, it must be likely, and not merely speculative, that the injury will be redressed by a favorable judicial decision. Id. (citation omitted). The plaintiff bears the burden of establishing each of these three elements. The failure to demonstrate any one of these constitutional requirements is a fatal defect, mandating dismissal. See id.; see also Johnson, 61 F.3d at 444 (Plaintiffs must "allege ... facts essential to show jurisdiction. If [they] fai[l] to make the necessary allegations, [they have] no standing.") As a general rule, a plaintiff must actually be indicted, arrested, or threatened with imminent prosecution under a criminal statute in order to have standing to challenge its validity. [footnote 4] See, e.g., Younger, 401 U.S. at 41-42; Steffel v. Thompson, 415 U.S. 452, 458-59 (1974); Poe v. Ullman, 367 U.S. 497, 501-09 (1961); Johnson, 61 F.3d at 444; George v. Texas, 788 F.2d 1099, 1100 (5th Cir.) (per curiam), cert, denied, 479 U.S. 866 (1986). For this season, the ordinary way to challenge the constitutionality of a criminal statute is as an affirmative defense to a criminal prosecution. See Fed. R. Crim. P. 12(b); see also Steffel, 415 U.S. at 460; Dombrowski, 380 U.S. at 485; Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943). Pre-enforcement challenges, by contrast, may be brought only in "exceedingly rare" circumstances. See Steffel, 415 U.S. at 476 (Stewart, J., concurring). Plaintiffs cannot meet their burden of establishing standing. Plaintiffs do not - - and cannot - - allege that they have been indicted or arrested under the Gun-Free School Zones Act. Plaintiffs do not - - and cannot - - even allege that any parent who home educates his or her child has ever been indicted or arrested under the Act. Nor do plaintiffs even allege that they have received any type of warning from any federal prosecutor that their conduct violates the challenged statute. A complaint which cannot allege a "genuine" threat that an allegedly unconstitutional law is about to be enforced against a specific plaintiff is "clearly insufficient to establish a 'case or controversy.'" San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1128 (9th Cir. 1996) (citations omitted) (pre-enforcement challenge to assault weapons ban). Although plaintiffs do not even minimally satisfy the requirements for standing and the complaint should be dismissed on that basis alone, there is yet another compelling reason why the court cannot review this matter: the Department of Justice does not interpret the Gun-Free School Zones Act to apply to the situation presented in the complaint, that is, to individuals who home school their own children and otherwise lawfully maintain a firearm in their residence. Assuming plaintiffs meet this criteria, they clearly face no threat of prosecution under the statute. Under these circumstances, it should be patently clear that plaintiffs have not suffered any injury-in-fact sufficient to satisfy the case or controversy requirement of the United States Constitution. [footnote 5] See Poe, 497 U.S. at 507 (citing C.I.O. v. McAdory, 325 U.S. 472, 475 (1945)); Frank v. United States, 78 F.3d 815, 832 (26 Cir. 1996) (holding plaintiffs' challenge to criminal provisions of the Brady Act to be non-justiciable where Department of Justice represented that the Act did not apply to their conduct and that they were not subject to prosecution under the Act), rev'd on other grounds, 117 S. Ct. 2501 (1997); Mack v. United States, 66 F.3d 1025, 1033 (9th Cir. 1995) (same), rev'd on other grounds sub nom., Printz v. United States, 117 S. Ct. 2365 11997); Romero v. United States, 883 F. Supp. 1076, 1079-80 (W.D. La. 1994) (same); McGee v. United States, 863 F. Supp. 321, 324 (S.D. Miss. 1994) (same), aff'd sub nom., Koog v. United States, 79 F.3d 452 (5th Cir. 1996), cert, denied, 117 S. Ct. 2507 (1997); Koog v. United States, 852 F. Supp. 1376, 1388 (W.D. Tex. 1994) (same), rev'd on other grounds, 79 F.3d 452 (5th Cir. 1996), cert. denied, (1997); see also Peebler v. Reno, 965 F. Supp. 28, 31 (D. Or. 1997) (plaintiffs had no standing to challenge criminal statute where Department of Justice stated in memorandum of law that plaintiffs' conduct did not violate challenged statute). B. Plaintiffs' Pre-Enforcement Challenge Is Not Ripe for Review Even if plaintiffs had standing to bring this pre-enforcement challenge, this action should nonetheless be dismissed on ripeness grounds. Ripeness is "peculiarly a question of timing." Buckley v. Valeo, 424 U.S. 1, 114 (1976) (internal quotation marks and citation omitted). Whether a dispute is ripe for review depends upon "the fitness of the issues for judicial decision" and "the hardship to the parties" of withholding review. Abbott Lab. v. Gardner, 387 U.S. 136, 149 (1967). Underlying the ripeness doctrine is the knowledge that [c]ourts cannot make well-informed decisions when legal issues do not arise out of the facts of a real case. Accurately predicting the factual settings in which the [challenged] statutes could be applied may be impossible. When courts attempt to adjudicate constitutional issues on the basis of such predictions, they risk not only rendering unnecessary opinions about imagined situations that would never have occurred, but also deciding the issues incorrectly. American Library Ass'n v. Barr, 956 F.2d 1178, 1197 (D.C. Cir. 1992) (citation omitted). In the context of a challenge to a criminal statute, a case is ordinarily not ripe until an actual criminal prosecution has been initiated. See San Diego County Gun Rights Comm., 98 F.3d at 1132-33. After all, the plaintiffs in this case have not specifically been threatened with prosecution and are therefore asking the court to rule upon issues that are not yet fit for judicial review. See WEB Dubois Clubs of America v. Clark, 389 U.S. 309, 312 (1968) (per curium) (courts "should not be forced to decide ... constitutional questions in a vacuum"). By the same token, these plaintiffs do not suffer sufficient hardship if review is withheld, since they can raise their challenges to the statute "if and when the government initiates a criminal prosecution against them. " San Diego County Gun Rights Comm., 98 F.3d at 1133. In this case, the ripeness issue is particularly straightforward, since plaintiffs can demonstrate "no realistic possibility that the challenged statute will be enforced to [their] detriment." International Tape, 294 F.2d at 28. As previously noted, the Department of Justice does not interpret the Gun-Free School Zones Act to apply to the situation presented in the complaint. Accordingly, these plaintiffs cannot show any demonstrable threat of prosecution and will suffer absolutely no "hardship" if the court withholds review. Indeed, if the court were to find plaintiffs' challenge ripe, it would risk rendering an "unnecessary opinion about an imaginary [criminal prosecution] that would never have occurred. " American Library Ass'n, 956 F.2d at 1197. See also International Tape, 294 F.2d at 29 (in the absence of a genuine, specific threat of prosecution, "we have before us nothing more than a request for an advisory ruling on the constitutionality of [a criminal statute]"); Mack, 66 F.3d at 1033 ("[i]n the extremely unlikely event that a criminal prosecution is one day brought against [plaintiffs], the constitutional objection may be raised in defense at that time"). for these reasons. plaintiffs' lawsuit is clearly not ripe for judicial review. C. Long-Standing Equitable Principles Militate Against the Court Providing the Pre-Enforcement Relief Sought by Plaintiffs Even if plaintiffs had standing, and these claims were somehow ripe for review, well-established equitable principles justify dismissal of the complaint. Indeed, declining to issue declaratory relief under these circumstances is consistent with the judiciary's obligation to "avoid constitutional questions if at all possible." Deaver v. Seymour, 822 F.2d 66, 71 (D.C. Cir. 1987) (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring)). As the Supreme Court has recognized, "'the best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.'" Poe, 367 U.S. at 503 (quoting Parker v. County of Los Angeles, 338 U.S. 327, 333 (1949)). The judicial power to review the constitutionality of a statute "is legitimate only in the last resort, and as a necessity in the determination of a real, earnest and vital controversy between individuals." Chicago & Grand Trunk Ry Co. v. Wellman, 143 U.S. 339, 345 (1938). Adhering to these principles, the Supreme Court has warned that courts should not rule upon constitutional challenges before it is even "clear that [plaintiffs] [are] covered by the Act." WEB Dubois Clubs of America, 389 U.S. at 312 (1967). [footnote 6] This fundamental precept takes on even greater force in a case such as this one where the Department of Justice has stated that it does not interpret the Act to apply to the situation presented in the complaint. See Frank, 78 F.3d at 832; Mack, 66 F.3d at 1033; Romero, 883 F. Supp, at 1079-80; McGee, 863 F. Supp. at 324; Koog, 852 F. Supp. at 1388; Peebler, 965 F. Supp. at 31. CONCLUSION For the foregoing reasons, the Court lacks subject-matter jurisdiction over plaintiffs' First Amended Complaint. Accordingly, defendants respectfully request that their motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) be granted. Respectfully submitted, FRANK W. HUNGER Assistant Attorney General JAMES WILLIAM BLAGG United States Attorney Western District of Texas RAYMOND A. NOWAK First Assistant-Civil Division [signed] VINCENT M. GARVEY Deputy Director ERIC S. ANGEL D.C. Bar No. 444731 Trial Attorney, Civil Division Federal Programs Branch United States Department of Justice Post Office Box 883 901 E Street, N.W., Room 904 Washington, D.C. 20044 Tel.: (202) 514-4775 Fax: (202) 616-8202 Attorneys for Defendants OF COUNSEL: KEVIN DIGREGORY Deputy Assistant Attorney General Criminal Division BRUCE DELAPLAINE Deputy Chief for Violent Crime NANCY OLIVER Trial Attorney Terrorism and Violent Crime Section Criminal Division United States Department of Justice DATED: November 6, 1997 CERTIFICATE OF SERVICE I hereby certify that on the 6th day of November. 1997, a copy of the foregoing Motion to Dismiss for Lack of Subject-Matter Jurisdiction, Memorandum of Law in support of Defendants' Motion to Dismiss for Lack of Subject-Matter Jurisdiction, and proposed Order were served on the following by first class mail, enclosed in an envelope with postage thereon prepaid: Michael P. Farris David Gordon Douglas W. Phillips Attorneys Pro Hoc Vice for Plaintiffs Home School Legal Defense Association 601 Pennsylvania Ave., Suite 900 Washington, D.C. 20004 Allan Parker Thomas W. Stack Texas Justice Foundation 8122 Datapoint, Suite 812 San Antonio, Texas 78229 Courtesy copies of the foregoing were faxed to: Michael P. Farris: (202) 639-8238 Allan Parker: (210) 614-6656 [signed] ERIC S. ANGEL Trial Attorney FOOTNOTES 1. Defendant notes that each plaintiff also alleges that home schools are private schools under Texas law. See First Amended Complaint, paras. 3.1-3.4. Naturally, this is a legal conclusion, as opposed to a factual allegation. See, e.g., Western Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir.) (courts are not required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations") (citations omitted), cert. denied, 454 U.S. 1031 (1981). Although the Texas Supreme Court has construed a "home school" to be a "private school" for the purposes of an exemption to Texas' mandatory school attendance law, See Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994), whether the Texas courts would consider a home school a private school for the purposes of in own gun-free school zone provision, see, Tex. Penal Code section 46.03, as well as in other contexts, is an open question. Nevertheless, as explained more fully below, in light of defendant's construction of the Act, this legal issue need not be resolved in the context of this case. 2. For the purposes of this motion, defendant assumes that each plaintiff maintains his firearms in his home in accordance with the applicable federal, state, and local laws. 3. 18 U.S.C. section 921(q)(1) sets forth the following definitions: (25) The term "school zone" means -- (A) in, or on the grounds of, a public, parochial or private school; or (B) within a distance of 1000 feet from the grounds of a public, parochial or private school. (26) The term "school" means a school which provides elementary or secondary education, as determined under State law. 18 U.S.C. section 922(q)(2)(B) sets forth several statutory exemptions, as follows: Subparagraph (A) does not apply to the possession of a firearm -- (i) on private property not part of school grounds; (ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license; (iii) that is- (I) not loaded; and (II) in a locked container, or a locked firearms rack that is on a motor vehicle; (iv) by an individual for use in a program approved by a school in the school zone; (v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual; (vi) by a law enforcement officer acting in his or her official capacity; or (vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities. 4. The courts have adopted a more liberal approach to allowing pre-enforcement review in the context of challenges involving core First Amendment rights, because of the unique problem of self- censorship posed by those cases: See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965); Martin Tractor Co. v. Federal Election Comm'n, 627 F.2d 375, 380 (D.C. Cir.), cert. denied, 449 U.S. 954 (1980); Couhig v Brown, 538 F. Supp. 1086, 1088 (E.D. La. 1982). Needless to say, the plaintiffs in this case do not (and cannot) allege that there has been a "chilling effect" on any First Amendment activity that could justify pre-enforcement judicial review. 5. In addition to its constitutional components, standing doctrine also encompasses several judicially self-imposed prudential limitations on the court's jurisdiction, such as "the rule barring adjudication of generalized grievances." Allen, 468 U.S. at 751 (citation omitted). Plaintiffs' complaint fails on prudential standing grounds as well. Nevertheless, because plaintiffs so clearly lack constitutional standing, there is no need to address the judicially self-imposed standing requirements in the context of this case. 6. By the same token, the court's power under the Declaratory Judgment Act, 28 U.S.C. section 2201(a), which limits jurisdiction to "case[s] of actual controversy," is to be exercised with great caution. See, e.g., Public Serv. Comm'n v. Wycoff Co,, 344 U.S. 237, 241 (1952) (stating that Declaratory Judgment Act "is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant"); Eccles v. Peoples Bank, 333 U.S. 426, 432 (1947); Ernst & Young v. Depositors Econ. Protection Corp., 45 F.3d 530, 535 (1st Cir. 1995) ("the discretion to grant declaratory relief is to be exercised with great caution when matters of public moment are involved, or when a request for relief threatens to drag a federal court prematurely into constitutional issues that are freighted with uncertainty") (citations omitted). Yet another reason for judicial caution under these circumstances is that issuing declaratory relief in this case would be similar to enjoining a criminal prosecution. But it is a "basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger, 401 U.S. at 43-44. Here, the plaintiffs are in no danger of suffering irreparable injury, most notably because the Department of Justice does not interpret the Gun-Free School Zones Act as applying to the situation described in the amended complaint. Moreover, even if plaintiffs were subject to criminal prosecution, this would still not constitute irreparable harm. As the Supreme Court has recognized, although plaintiffs may wish to avoid the "cost, anxiety, and inconvenience" of defending a criminal prosecution, such injury is not "'irreparable' in the special legal sense of that term." Id. at 46. Finally, it is black letter law that the ability to challenge the constitutionality of a criminal statute as a defense to a criminal prosecution is, under ordinary circumstances, "an adequate remedy at law." See, e.g., id. For this reason as well, the Court should not grant plaintiffs the pre-enforcement, declaratory relief they seek.