Plaintiff lacks standing to challenge firearm statute

Where the plaintiff’s argument that a new Virginia statute restricting a person’s access to firearms in certain circumstances was unconstitutional and would inhibit his ability to express himself out of fear he might be subjected to the statute, was speculative and conjectural, it was insufficient to establish standing. 

Background

During its 2020 session, the Virginia General Assembly enacted legislation that allows an attorney for the commonwealth or a law enforcement officer to petition for an “emergency substantial risk order” that temporarily restricts a person’s access to firearms. The issuance of such order, or a subsequent order of longer duration, requires a finding that the person poses a substantial risk of personal injury to himself or others in the near future by possessing or acquiring a firearm.

The day after the legislation took effect, Joseph Draego, a pro se plaintiff, filed this action under 42 U.S.C. § 1983 challenging its constitutionality. The complaint names as defendants the Charlottesville chief of police and commonwealth’s attorney. The defendants have moved to dismiss the complaint on multiple grounds.

Analysis

The Fourth Circuit has explained that defendants may challenge subject matter jurisdiction in one of two ways: “facially or factually.” In this case, the defendants make a facial challenge, arguing that the complaint fails to allege facts upon which subject matter jurisdiction can be based. In that scenario, “the plaintiff is ‘afforded the same procedural protection as [he] would receive under a Rule 12(b)(6) consideration.’”

In order to possess standing to sue under Article III, “a plaintiff must sufficiently allege the three elements identified by the Supreme Court.” “That is, a plaintiff must allege that they have: ‘(1) suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’” Because Draego seeks injunctive relief, he “must establish an ongoing or future injury in fact.” 

The court concludes that Draego’s allegations fail to satisfy the ongoing or future injury-in-fact requirement for injunctive relief. Draego alleges that he “plans to refrain from engaging in lawful expressive activity to avoid losing his ability to possess firearms.” However, nothing in the complaint suggests that Draego faces a credible threat of being subjected to a substantial risk order if he exercises his First Amendment rights.

Draego does not identify any particular form of expressive activity that he wishes to engage in, but is refraining from in fear of being subjected to a substantial risk order. To the extent that he is refraining from voicing his opinions on political or social issues, the substantial risk order legislation does not facially restrict such expressive activity.

Instead, the legislation is directed to acts of violence, force, physical threats or other conduct by an individual that evidences a substantial risk of personal injury to himself or others by such individual’s possession of a  firearm. Accordingly, this is not a case in which a credible threat of enforcement can be presumed. 

Nor is this a case in which the plaintiff cites to past enforcement against the same conduct to demonstrate a credible threat of future enforcement. Draego does not allege that the substantial risk order legislation has been utilized against him or anyone else because of the expressive activity in which he seeks to engage. Nor does he allege that the defendants or any other law enforcement officials have threatened to petition for a substantial risk order on the basis of his expressive activity. 

At most, Draego suggests that he has self-censored his speech on the basis of past actions taken by nonparty “activists.” However, the new legislation does not permit members of the general public to petition for a substantial risk order, and his allegations in this regard do not “translate into a credible threat that the [defendants] would sanction [him] for engaging in protected speech in the future simply because others found it offensive.” 

In short, while Draego alleges that the enactment of the challenged statutes has chilled him from exercising his constitutional rights, he has not alleged facts sufficient to show that any threat of the defendants enforcing the statutes against him is more than a speculative or conjectural possibility. Without a credible threat of enforcement sufficient to establish an injury-in-fact, Draego lacks standing to challenge the constitutionality of the legislation. 

Defendants’ motions to dismiss granted. 

Draego v. Brackney, Case No. 3:20-cv-00037, Nov. 13, 2020. WDVA at Charlottesville (Conrad). VLW 020-3-560. 13 pp.