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

SPORT SHOP, a New Jersey Corporation; VINCENT FURIO; STEVEN

YAGIELLO, Ap pellants

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

- 5 63

_____________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3

- 10

- cv

- 0 0271 )2 United States District Judge: Honorable Joel A. Pisano

_____________ Submitted Under Third Circuit LAR 34.1(a)

December 18, 2012

B efore: MCKEE, Chief J udge

, SLOVITER, and VANASKIE

, Circuit Judges

(Filed: January 30, 2013)

Daniel L

. Schmutter G reenbaum R owe, 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 0760 1

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 086253 Attorney for Appellees

_________
OPINION

_________ SLOVITER, Circuit Judge.

The A ssociation of New Jersey Rifle and Pistol Clubs, Inc., Bob‘s Little Sport S hop, and several individuals (―A ppellant s‖) appeal the District C ourt‘s dismissal of their claims against Appellees

–– the Governor of New Jersey, the Attorney General of New Jersey, th e Superintendent of the New Jersey S tate P oli ce, and the City of Hackensack 1

— and the District Court‘s denial of A ppellants‘ motion for a preliminary injunction. We will affirm. 2

1 Washington Township and Little Egg Harbor Township were named as defendants to the original actio n. However, they settled with A ppellants shortly after the action

com menced.
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. o f 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. S TAT

. A NN

. 2 §§ 2 C:58

- 2(a)(7) and 2C:58

- 3(i) (West 2005 & Supp. 2012) (―One Gun Law‖)

. 3 First, Appellants alleg e 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 s ale to minors) of traditional B

- B, paint ball, or pellet

- firing air guns that expel a projectile through the for ce of air pres sure. ‖ 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, 4 it is preempted by § 5001(g)(ii).

Second, Appellants allege that the implement ation of the One Gun Law violates the Due Process Clause of the Fourteenth Amendment. The On e Gun Law provides exemptions from its restriction s for certain groups of people, such as collectors of handguns and competitive shooters.

Packed Fresh Produce, Inc. , 22 2 F.3d 132, 137 (3d Cir. 2000).
3 ―A dealer shall not knowingly deliver more than one handgun to any perso n within any 30

- day period.‖ N.J. S TAT

. A NN

. § 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. S TAT

. A NN

. § 2C:58

- 3(i).
4 B

- B and air guns fall within New Jersey‘s definition of ―handgun, ‖ s ee N.J. S TAT

. A NN

. §§ 2C:39

- 1(f) and (k) , an issue A ppellees did not contest

.5 N.J. S TAT

. A NN

. § 2C:5 8

- 3 .4. Appellants argue that the One Gun Law ‘s exemptions

, as implemented, v i olate 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 state

provided application form, the particular handguns

, by serial number

, that s/he wishes to purchase. Appellants state that this pro vision makes it ―difficult or impossible for the average collector to obtain an exemption‖ as the collector must

c onvince 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
pr eliminary i njunction and granted the state Defendants‘ motion to dismiss Appellants‘ f ederal claims. The District Court then declined to exercise supplemental jurisdiction over App ellants‘ state

- law claims. 5 Appellants appeal the District Court‘s o rders and contend that if their federal claims are reinstated, the District Court should resume jurisdiction over their s tate

- law claims as well.

II.

A state law is preempted when it conflicts with federal law. Pac. Gas & Elec. Co. v. State Energy Res. Con servation & 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‘ s tate

- 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 regulat ing 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 t his is not a complete prohibition. Nor is this restriction so onerous as to be a de facto prohibition. Cf

. Coal. of N.J. Sportsm en 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 appl ication to a prosecutor for investigation, and then granting the license ―only upon an express finding that the public safety and welfare so require‖). Because t he One Gun Law regulates but does not prohibit the sale of B

- B and air guns, it is not preempt ed by § 5001(g)(ii)

.

III.

To state a deprivat ion of procedural due process, A ppellants must allege that they were deprived of an interest

― encompassed within the Fourteenth Amendment's protection of  ̳life, liberty, or property,‘‖ and that available proc edures ―did not provide  ̳due process of law.‘‖ Hill v. Borough of Kutztown , 455 F.3d 225, 233

- 34 (3d Cir. 2006)

. We conclude that t he implementation of the One Gun Law ‘s exemptions does not violate due p rocess. It is not necessary for us to determine wh ether A ppellants have a property interest in the exemptions. Even if A ppellants have a property interest, they do not d emonstrate a deprivation of that interest. Appellants7 do not ch allenge the exemption provision of the One Gun Law. Rather, they challe nge 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 pu rchase. However, as the District Court point ed out, the exemption provision of the One Gun Law itself require s applicants to identify the particular handguns they wish to purchase. See N.J. S TAT

. A NN

. § 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 A ppellants of any property interest they may have in the exemptions.

IV.

In summary, we conclude that t he One Gun Law is not preempted by § 5001(g)(ii). We also reject the Appellant s ‘ claim that t he implementation of the ex emptions violat es due
p rocess. The District Court declined to exercise juris diction over the state law claims after it dismissed the f ederal claims. Because we affirm its dismissal of the f ederal claims, we hold that the Court properly declined jurisdiction over the state law claims. See United States v. Gibbs , 383 U.S. 715, 72 6 (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 likel ihood of success on the merits. Am

. Tel. & T el. 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 Dist rict Court ‘s de nial of a preliminary injunction and dismissal of Appellants‘ claims

.