2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2013

Association New Jersey Rifle a v. Governor of the

State of New J

Precedential or Non-Precedential: Precedential

Docket No. 12-1624

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Recommended Citation

"Association New Jersey Rifle a v. Governor of the State of New J" (2013). 2013 Decisions. Paper 1264.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/1264
 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1624

_____________

ASSOCIATION NEW JERSEY RIFLE AND PISTOL 

CLUBS,

a New Jersey Not for Profit Corporation; 

SCOTT L. BACH; KAARE A. JOHNSON; BOBS LITTLE 

SPORT SHOP,

a New Jersey Corporation; VINCENT FURIO; STEVEN 

YAGIELLO,

 Appellants

v.

GOVERNOR OF THE STATE OF NEW JERSEY; 

ATTORNEY GENERAL NEW JERSEY; COLONEL RICK 

FUENTES, 

Superintendent, Division of New Jersey State Police; 

WASHINGTON TOWNSHIP, (Morris County; XYZ 

MUNICIPALITIES 1-565;

CITY OF HACKENSACK; LITTLE EGG HARBOR 

TOWNSHIP;

XYZ MUNICIPALITIES1-563

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-10-cv-00271)
2

United States District Judge: Honorable Joel A. Pisano

_____________

Submitted Under Third Circuit LAR 34.1(a)

December 18, 2012

Before: MCKEE, Chief Judge, SLOVITER, and 

VANASKIE, Circuit Judges

(Filed: January 30, 2013)

Daniel L. Schmutter

Greenbaum Rowe, Smith & Davis, LLP

P.O. Box 5600

Metro Corporate Campus One, Suite 4

Woodbridge, NJ 07095

Attorneys for Appellants

Craig M. Pogosky

Zisa & Hitscherich 

77 Hudson Street

Hackensack, NJ 07601

Attorney for Appellee City of Hackensack

Gregory A. Spellmeyer

Robert T. Lougy

Roshan D. Shah

Office of Attorney General of New Jersey

25 Market Street

Richard J. Hughes Justice Complex

Trenton, New Jersey 08625
3

Attorney for Appellees

_________

OPINION

_________

SLOVITER, Circuit Judge.

The Association of New Jersey Rifle and Pistol Clubs,

Inc., Bob‘s Little Sport Shop, and several individuals 

(―Appellants‖) appeal the District Court‘s dismissal of their 

claims against Appellees –– the Governor of New Jersey, the 

Attorney General of New Jersey, the Superintendent of the 

New Jersey State Police, and the City of Hackensack 1— and

the District Court‘s denial of Appellants‘ motion for a 

preliminary injunction. We will affirm.2

 

1

 Washington Township and Little Egg Harbor Township 

were named as defendants to the original action. However, 

they settled with Appellants shortly after the action 

commenced. 

2

 The District Court had jurisdiction under 28 U.S.C. §§ 1331 

and 1343 and we have jurisdiction under 28 U.S.C. § 1291. 

We review de novo a district court‘s grant of a motion to 

dismiss. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d 

Cir. 2008). We review de novo a denial of injunctive relief 

based on statutory interpretation. Tanimura & Antle, Inc. v. 
4

I.

Appellants seek to enjoin the enforcement of N.J.

STAT. ANN. 2 §§ 2C:58-2(a)(7) and 2C:58-3(i) (West 2005 & 

Supp. 2012) (―One Gun Law‖).

3

 First, Appellants allege that 

these statutes are preempted by 15 U.S.C. § 5001(g)(ii)

(2006). Section 5001(g)(ii) provides in relevant part: ―no 

State shall –– prohibit the sale (other than prohibiting the sale 

to minors) of traditional B-B, paint ball, or pellet-firing air 

guns that expel a projectile through the force of air pressure.‖ 

Appellants argue that because the One Gun Law prohibits the 

purchase or sale of more than one handgun per person per 

month, including B-B and air guns,4it is preempted by § 

5001(g)(ii). 

Second, Appellants allege that the implementation of 

the One Gun Law violates the Due Process Clause of the 

Fourteenth Amendment. The One Gun Law provides 

exemptions from its restrictions for certain groups of people, 

such as collectors of handguns and competitive shooters. 

 

Packed Fresh Produce, Inc., 222 F.3d 132, 137 (3d Cir. 

2000).

3

―A dealer shall not knowingly deliver more than one 

handgun to any person within any 30-day period.‖ N.J. STAT.

ANN. § 2C:58-2(a)(7). ―Only one handgun shall be purchased 

or delivered on each permit and no more than one handgun 

shall be purchased within any 30-day period . . . .‖ N.J. STAT.

ANN. § 2C:58-3(i).

4

 B-B and air guns fall within New Jersey‘s definition of 

―handgun,‖ see N.J. STAT. ANN. §§ 2C:39-1(f) and (k), an 

issue Appellees did not contest.
5

N.J. STAT. ANN. § 2C:58-3.4. Appellants argue that the One 

Gun Law‘s exemptions, as implemented, violate the Due 

Process Clause because the exemptions are essentially 

illusory. In order to purchase more than one handgun per 

month under an exemption, the applicant must list, on a stateprovided application form, the particular handguns, by serial 

number, that s/he wishes to purchase. Appellants state that 

this provision makes it ―difficult or impossible for the average 

collector to obtain an exemption‖ as the collector must 

convince the seller of the gun to take it off the market while 

the application is processed, ―with no certainty about whether 

approval will even be granted months later.‖ Appellants‘ Br.

at 14. 

The District Court denied the Appellants‘ motion for a 

preliminary injunction and granted the state Defendants‘ 

motion to dismiss Appellants‘ federal claims. The District 

Court then declined to exercise supplemental jurisdiction over 

Appellants‘ state-law claims.5 Appellants appeal the District 

Court‘s orders and contend that if their federal claims are 

reinstated, the District Court should resume jurisdiction over 

their state-law claims as well. 

II.

A state law is preempted when it conflicts with federal 

law. Pac. Gas & Elec. Co. v. State Energy Res. Conservation 

& Dev. Comm’n, 461 U.S. 190, 204 (1983). Courts ―start 

with the assumption that the historic police powers of the 

States were not to be superseded by the Federal Act unless 

 

5 Appellants‘ state-law claims challenged the implementation 

of the One Gun Law by certain municipalities.
6

that was the clear and manifest purpose of Congress.‖ Rice v. 

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Section

5001(g)(ii) provides that states cannot prohibit the sale of B-B 

and air guns. However, it does not bar states from regulating

the sale of B-B and air guns in any way. The One Gun Law 

restricts the sale of these guns to one per person per month, 

and allows applications for exemptions from this restriction. 

It is evident that this is not a complete prohibition. Nor is this 

restriction so onerous as to be a de facto prohibition. Cf. 

Coal. of N.J. Sportsmen v. Florio, 744 F. Supp. 602, 608

(D.N.J. 1990) (holding that regulation created a de facto

prohibition when a ―person must go through the extremely 

rigorous qualification process required for receiving a 

license,‖ including having a court refer the application to a 

prosecutor for investigation, and then granting the license 

―only upon an express finding that the public safety and 

welfare so require‖). Because the One Gun Law regulates but 

does not prohibit the sale of B-B and air guns, it is not 

preempted by § 5001(g)(ii).

III.

To state a deprivation of procedural due process, 

Appellants must allege that they were deprived of an interest 

―encompassed within the Fourteenth Amendment's protection 

of  ̳life, liberty, or property,‘‖ and that available procedures 

―did not provide  ̳due process of law.‘‖ Hill v. Borough of 

Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). We conclude 

that the implementation of the One Gun Law‘s exemptions

does not violate due process. It is not necessary for us to 

determine whether Appellants have a property interest in the 

exemptions. Even if Appellants have a property interest, they 

do not demonstrate a deprivation of that interest. Appellants 
7

do not challenge the exemption provision of the One Gun 

Law. Rather, they challenge the implementing forms that

applicants must complete and submit in order to qualify for 

an exemption. Appellants state that these forms frustrate the 

purpose of the exemptions by requiring applicants to identify 

the particular handguns they wish to purchase. However, as 

the District Court pointed out, the exemption provision of the 

One Gun Law itself requires applicants to identify the 

particular handguns they wish to purchase. See N.J. STAT.

ANN. § 2C:58-3.4(b) (―The applicant shall certify, on a form 

prescribed by the superintendent, the specific exemption 

sought and the particular handguns to be purchased.‖). The 

implementing forms do not add further requirements that are 

so onerous as to deprive Appellants of any property interest 

they may have in the exemptions.

IV.

In summary, we conclude that the One Gun Law is not 

preempted by § 5001(g)(ii). We also reject the Appellants‘

claim that the implementation of the exemptions violates due 

process. The District Court declined to exercise jurisdiction 

over the state law claims after it dismissed the federal claims. 

Because we affirm its dismissal of the federal claims, we hold 

that the Court properly declined jurisdiction over the state law 

claims. See United States v. Gibbs, 383 U.S. 715, 726 (1996). 

We affirm the District Court‘s denial of Appellants‘ motion 

for a preliminary injunction to enjoin the enforcement of the 

One Gun Law. For the reasons above, Appellants do not 

show a reasonable likelihood of success on the merits. Am.

Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 

F.3d 1421, 1427 (3d Cir. 1996) (stating that an injunction 

should issue only if the moving party produces evidence that, 
8

inter alia, it is likely to prevail on the merits). Therefore, we 

will affirm the District Court‘s denial of a preliminary 

injunction and dismissal of Appellants‘ claims.