UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 09-CV-10463

FOUR HUNDRED SEVENTY SEVEN (477)

FIREARMS,

Defendants.

/

ORDER GRANTING THE GOVERNMENT’S MOTION TO STRIKE CLAIMS OF

GREGORY KISH, SHERRY HARNESS, AND GABRIEL KISH, IV

Pending before the court is a “Motion to Strike Claims of Gabriel Kish, IV,

Gregory Kish, and Sherry Harness Based Upon Lack of Article III, Section 2 or Statutory

Standing,” filed by the Government on December 15, 2009. Having reviewed the briefs,

the court concludes a hearing on this motion is unnecessary. See E.D. Mich. LR

7.1(e)(2). For the reasons stated below, the court will grant the Government’s motion.

I. BACKGROUND

This case is an in rem civil forfeiture action in which the Government requests the

forfeiture of 477 firearms. The firearms were seized after the execution of a federal

search warrant at the Highland Gun Barn, a gun store in Highland, Michigan, in which

Claimants Gabriel Kish III and Deborah Summers were proprietors. (Am. Compl. ¶

7(a).) Firearms were retrieved from the main store area, the attic, a gun smithing area,

and a vault in the basement. (Id. ¶ 7(ss).) 

The search warrant was issued following an undercover operation by the Bureau

of Alcohol, Tobacco, Firearms and Explosives (“ATF”). From August 2007 to July 2008,

undercover ATF agents purchased firearms from Deborah Summers and Gabriel Kish
2

III and exchanged purported stolen merchandise for firearms. (Id. ¶ 7(j)-(oo).) Deborah

Summers has never held a federal firearms license, and Gabriel Kish III’s federal

firearms license was revoked in February 2005. (Id. ¶ 7(g)-(h).) 

On September 17, 2008, Gabriel Kish III and Deborah Summers were indicted

for willfully engaging in the business of dealing in firearms without a license in violation

of 18 U.S.C. § 922(a)(1). They were both convicted on April 17, 2009. Deborah

Summers was sentenced to a term of imprisonment of 57 months; Gabriel Kish III was

sentenced to a term of imprisonment of 48 months. At the sentencing hearing, the court

found: 

no reason to exclude the firearms that were found in the basement and in

the attic, . . . [a]nd the preponderance of the evidence convinces me that

those firearms were indeed available for sale. They were not a collector’s

item grouping of firearms. They were, in large measure, common firearms

that were “collected” if at all for the purpose of acquiring a stock in trade in

order to sell, should a willing purchaser present himself and wish to buy

such an item. 

So I am satisfied by the appropriate standard, that is a

preponderance of the evidence that more than 200 firearms were involved

in the offense of dealing in firearms without a license. And I accept the

probation officer’s, and accordingly, the Government’s argument in that

regard.

(9/1/09 Tr. at 39.)

In this case, the Government alleges that the firearms seized from the Highland

Gun Barn, including the guns in the basement vault, are subject to forfeiture pursuant to

18 U.S.C. § 924(d)(1), which provides, in pertinent part, for the forfeiture of firearms

“involved in or used in” any willful violation of 18 U.S.C. § 922(a)(1). (Am. Compl. ¶ 6.) 

A number of persons filed claims to these firearms, including now-convicted felons

Gabriel Kish III and Deborah Summers. Relevant to the present motion, three of
3

Gabriel Kish III’s children, Sherry Harness, Gregory Kish, and Gabriel Kish IV, filed

claims to firearms numbered “5, 9, 10, 11, 16, 17, 19, 20, 21, 27, 35, 36, 43, 44, 84, 97-

116, 199, 120, 121, 124, 126-163, 165-200, 205-476.” (Suppl. Claims of Sherry

Harness, Gregory Kish, Gabriel Kish, IV.) Each alleges that “[a]t the time of the seizure,

I had a lawful interest in the property as the owner of these firearms and/or heir to

them.” (Id.) They claim that the firearms found in the basement vault “constitute a

private family collection and were not offered for sale.” (Id.) The Claimants filed a

“more definite statement of claims” on August 3, 2009. It stated that “Claimant Gabe

Kish III’s children . . . are claiming the balance of the firearms on the basis that they are

the owners and/or intended heirs of the remaining guns which were not offered for sale

and have filed their claims accordingly.” (Claimants’ More Definite Statement of Claims

¶ 7.) On December 15, 2009, the Government filed a motion to strike the claims of

Gabriel Kish IV, Gregory Kish, and Sherry Harness for lack of standing.

II. STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper when

there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “In deciding a motion for summary

judgment, the court must view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United

States, 342 F.3d 493, 497 (6th Cir. 2003). “Where the moving party has carried its

burden of showing that the pleadings, depositions, answers to interrogatories,

admissions and affidavits in the record, construed favorably to the non-moving party, do

not raise a genuine issue of material fact for trial, entry of summary judgment is
4

appropriate.” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987) (citing Celotex

Corp. v. Catrett, 477 U.S. 317 (1986)).

The court does not weigh the evidence to determine the truth of the matter, but

rather, to determine if the evidence produced creates a genuine issue for trial. Sagan,

342 F.3d at 497 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 

The moving party discharges its burden by “‘showing’ –that is, pointing out to the district

court– that there is an absence of evidence to support the nonmoving party’s case.”

Horton v. Potter, 369 F.3d 906, 909 (2004) (citing Celotex, 477 U.S. at 325). The

burden then shifts to the nonmoving party, who “must do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must put forth

enough evidence to show that there exists “a genuine issue for trial.” Horton, 369 F.3d

at 909 (citing Matsushita, 475 U.S. at 587 (1986)). Summary judgment is not

appropriate when “the evidence presents a sufficient disagreement to require

submission to a jury.” Anderson, 477 U.S. at 251-52.

III. DISCUSSION

A. Standing

To contest a government forfeiture action, a claimant must have both statutory

standing in accord with the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) and

standing under Article III. $515,060.42 v. United States, 152 F.3d 491, 497 (6th Cir.
1

 The Government requests summary judgment on the basis of the Claimants’

lack of Article III standing and statutory standing. Statutory standing is met by strict

compliance with the Supplemental Rules for Certain Admiralty and Maritime Claims. 

See Fed. R. Civ. P. Supp Rule G(5)(a)(I); see also $515,060.42, 152 F.3d at 497

(stating that a claimant must meet the statutory standing requirements as provided in

Supplemental Rule C(6)); United States v. $5,730.00, 109 F. App’x 712, 713 (6th Cir.

2004) (explaining what is required in order to satisfy statutory standing under

Supplemental Rule C(6)); Gov’t’s Mot. Br. at i (“It should be noted that courts sometimes

refer to statutory standing in forfeiture cases when referring to the pleading

requirements of Supplemental Rule of Civil Procedure G(5).”). Here, the Government

does not contest that the Claimants complied with the Supplemental Rules. Instead, the

Government’s statutory standing argument is based on the definition of “owner” for

purposes of the innocent owner defense, 18 U.S.C. § 983(d)(1). The Government,

despite presenting argument on the innocent ownership defense in its brief, concedes

that “the issue of Gabriel Kish IV’s lack of an innocent ownership defense is not ripe”

and notes that “the Government will refrain from filing such a motion at present in the

interest of conserving judicial resources.” (Gov’t’s Mot. Br. at 3.) As this issue is not

properly before the court and in light of the court’s determination that the Claimants lack

Article III standing, the court will not address Gabriel Kish IV’s alleged lack of an

innocent ownership defense or what the Government has termed a statutory standing

argument.

5

1998) (citing United States v. $267,961.07, 916 F.2d 1104, 1107 (6th Cir. 1990)). In this

case, the Government argues that the Claimants lack Article III standing.1

 Article III, § 2 of the United States Constitution requires the existence of a case

or controversy through all stages of federal judicial proceedings. Throughout the

litigation, the petitioner “must have suffered, or be threatened with, an actual injury

traceable to the defendant and likely to be redressed by a favorable judicial decision.” 

Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). The injury must be “an

invasion of a legally protected interest which is (a) concrete and particularized and (b)

‘actual or imminent,’” not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992) (citations omitted). 

To satisfy Article III’s standing requirement in civil forfeiture cases, “a claimant

must have a colorable ownership, possessory or security interest in at least a portion of
6

the defendant property.” $515,060.42, 152 F.3d at 497. A claimant is required to

“demonstrate a legally cognizable interest in the defendant property.” United States v.

$267,961.07, 916 F.2d 1104, 1107 (6th Cir. 1990). While a “property interest less than

ownership, such as a possessory interest, is sufficient to create standing,” id., the mere

“assertion of simple physical possession,” without accompanying factual allegations

regarding the nature and acquisition of possession is insufficient. $515,060.42, 152

F.3d at 498. “Similarly, bare legal title, in the absence of assertions of dominion, control

or some other indicia of ownership of or interest in the seized property, is insufficient to

confer standing to challenge a forfeiture.” Id. at 498 n.6. The Claimant has the burden

of demonstrating standing. Id. at 498.

Here, the Government argues that the Claimants lacks Article III standing

because they have not “identified any ownership interest beyond an alleged inchoate

expectation interest in the defendant firearms.” (Gov’t’s Mot. Br. at 13.) Specifically, the

Government argues that: (1) the Claimants’ interest as “heirs” is insufficient to establish

standing; (2) Gabriel Kish III did not make an inter-vivos transfer of the firearms to the

Claimants; and (3) the Claimants lack any other ownership interest in the firearms. (Id.

at 6-11.) The Claimants argue that they have standing based on (1) Gabriel Kish III’s

will; (2) the fact that Gabriel Kish III made an inter-vivos transfer of the firearms prior to

the seizure; and (3) the fact that Gabriel Kish IV and Gregory Kish “purchased certain

firearms in the family collection.” (Resp. at 2-6.)

1. Standing as “Heirs” to the Firearms

The Government argues that the Claimants “assert an interest in the defendant

property as owners/heirs” and under Michigan law, “no person can be an heir during the
7

life of an ancestor.” (Gov’t’s Mot. Br. at 6.) Claimants state that “[a]lthough Gabriel

Kish, III’s last will did not make a specific devise of the family collection of firearms, his

will did designate Gabriel Kish, IV as recipient of the residue of Gabriel Kish, III’s estate. 

Therefore, Gabriel Kish, IV has a vested interest in that residue, including the family

firearm collection.” (Resp. at 2 (citation omitted).) 

“‘[T]he general federal practice in forfeiture matters’ is to look to ‘the law of the

jurisdiction that created the property right to determine the petitioner’s legal interest.’”

United States v. Salti, 579 F.3d 656, 668 (6th Cir. 2009) (quoting United States v.

Speed Joyeros, S.A., 410 F. Supp. 2d 121, 125 (E.D.N.Y. 2006)). Michigan courts have

exclusive jurisdiction over the estate of a decedent who was domiciled in Michigan or

leaves an estate to be administered in Michigan. See Mich Comp. Laws § 700.1302. 

Gabriel Kish III was domiciled in Michigan and the firearms were seized in Michigan. 

Accordingly, Michigan law determines the legal interest in the property.

Michigan adheres to the black letter rule, nemo est haeres viventis, meaning “no

one can be an heir during the life of an ancestor.” In re Estate of Finlay, 424 N.W.2d

272, 277 n.12 (Mich. 1988) (citing In re Marriage of Stephenson, 460 N.E.2d 1 (Ill. Ct.

App. 1983)). As the In re Estate of Finlay court explained,

Wills, by their nature, are ambulatory until the testator dies. Until the death

of the testator, the potential heirs and legatees have a mere expectancy

interest. This interest has been defined in the following manner:

“‘An expectancy or chance is a mere hope, unfounded in any

limitation, provision, trust or legal act whatever; such as the

hope which an heir apparent has of succeeding to the

ancestor’s estate. This is sometimes said to be a bare or

mere possibility, and, at other times, less than a possibility.

But it is less than a possibility in the specific sense of the

term possibility. For, it is no right at all, in contemplation of

law, even by possibility; because, in the case of a mere
8

expectancy, nothing has been done to create an obligation in

any event; and where there is no obligation, there can be no

right because right and obligation are correlative terms.’”

This definition makes it clear that potential heirs and legatees do not have

a right in an estate until the testator dies.

Id. at 277 (citations omitted). The decedent’s heirs are vested with equitable title in the

property at the time of death, and this title is “subject to the rights of creditors and the

expenses of administration.” In re Forfeiture of $234,200, 551 N.W.2d 444, 446 (Mich.

Ct. App. 1996).

Here, it is undisputed that the Claimants are asserting an interest based on their

expectation that their father would leave the firearms to them when he died. Gabriel

Kish IV stated, “That was the thing, when us [sic] four kids were going to split them guns

up evenly and fairly, upon his death. That was part of our inheritance and we have

been told this since we were tiny, and it fell on to me . . . .” (Gov’ts Mot. Ex. 3 at 25.) 

He further stated, “Everything is even-steven, equal, when he is gone. He was making

death plans.” (Id. at 26.) Gregory Kish stated that the reason why he was in this case

was “because this is the only thing I will ever get from my father.” (Gov’t’s Mot. Ex. 5 at

13.) When asked which specific firearms he is claiming, he replied, “Twenty-five

percent of what was in that vault, I know that was ours.” (Id.) In response to the

question, “When did you learn that your father intended for you and your siblings to

inherit the family or his gun collection?,” Gregory Kish replied, “Since I was big enough

to shoot one, five or six years old, that’s all he ever talked about, ‘This is the stuff I got

put away for you.’” (Id. at 18.) Sherry Harness was asked if her father indicated to her

“what he expected would happen with those guns when he died.” She replied, “Well, he
9

has told us all along that no matter what happened, in our relationship with him, all the

guns were to be divided between the four of us.” (Gov’t’s Mot. Ex. 4 at 14.)

These statements demonstrate that the claims are based on a mere inheritance

interest in the firearms and not a “legally cognizable interest.” $267,961.07, 916 F.2d at

1107. Gabriel Kish III could have changed his will at any time. He also could have sold

the firearms or otherwise disposed of them before his death. If Gabriel Kish III had

attempted to sell or dispose of the firearms, the children would have no legal recourse

to stop him. Moreover, even if they were named as takers of the firearms in Gabriel

Kish III’s will at the time of his death, their right would be “subject to the rights of

creditors and the expenses of administration.” In re Forfeiture of $234,200, 551 N.W.2d

at 446. The estate may not be large enough to cover Gabriel Kish III’s debts and the

expenses of administration, in which case the firearms would not make it to the residue

to be distributed to Gabriel Kish IV. The Claimants’ mere possibility of eventually

obtaining the firearms is insufficient to confer standing to contest their forfeiture.

The Claimants acknowledge that the will can be changed at any time, but assert

that “[i]f this Court were to award the firearms to Gabriel Kish, IV and his siblings, then

those firearms would no longer be part of Gabriel Kish, III’s estate, and would not be

affected by any future changes in his will.” (Resp. at 2.) Although technically a correct

statement, the argument misses the point. Claimants must first demonstrate an interest

in the firearms sufficient to confer standing to contest the forfeiture. Claimants are

attempting to bootstrap potential success on the merits, which success necessarily

assumes that a current interest in the firearms had been established, in order to assert
10

that very interest. The court will not act upon circular reasoning. Potential heirs have

no right in an estate until the testator dies. In re Estate of Finlay, 424 N.W.2d at 277. 

The Claimants also rely on In re Estate of Bem, 637 N.W.2d 506 (Mich. Ct. App.

2001), in which the Michigan Court of Appeals stated that “[i]n the context of a will, a

person has a vested, not a contingent or conditional, interest if the testator’s death is the

only contingency that must occur before the interested person is entitled to receive the

devise at issue.” 637 N.W.2d at 517. In context, though, the discussion in In re Estate

of Bem involved the construction of the will after the testator had died. Id. at 516. The

issue involved the determination of whether the will was conditional. Id. That is,

whether it was valid only if a condition precedent was satisfied – that the testator’s

death occurred on an enumerated trip. Id. But, as is true in virtually all will construction

cases, the death of the testator was assumed in the analysis, a fact notably absent in

the present case. In any event, to the extent that In re Estate of Bem can be read to

establish a vested property right in a will beneficiary before the tesator dies, it is

contrary to every other Michigan case to address this issue. See, e.g., In re Estate of

Finlay, 424 N.W.2d at 277 (“[P]otential heirs and legatees do not have a right in an

estate until the testator dies.”); In re Jamieson Estate, 132 N.W.2d 1 (Mich. 1965) (“A

will, though often made while death is contemplated as a remote event, is to speak from

the time the death takes place.”); In re Churchill Estate, 203 N.W. 118 (Mich. 1925)

(“[E]states given by will take effect and become vested on the death of the testator . . .

.”); In re Sutherby’s Estate, 312 N.W.2d 200, 201 (Mich. Ct. App. 1981) (“A will is

ambulatory; no right accrues in the estate of the testator until the time of death.”).

A Claimant must have a “legally cognizable interest” in the property, and a
11

potential taker under a will has “no right at all, in contemplation of law.” In re Estate of

Finlay, 424 N.W.2d at 277. The Claimants’ expectancy interest is insufficient to

establish a colorable ownership interest in the firearms. $515,060.42, 152 F.3d at 497. 

Therefore, the Claimants do not have Article III standing.

2. Standing as “Owners” of the Firearms

a. Acquisition by Gift

The Government argues that the Claimants have failed to demonstrate a valid

inter-vivos transfer of the firearms from Gabriel Kish, III to his children. (Gov’t’s Mot. Br.

at 7.) The Claimants argue that “the evidence supports the existence of an inter-vivos

gift of the family collection prior to the seizure.” (Resp. at 4.) 

The elements of a valid gift are: “(1) the donor must possess the intent to transfer

title gratuitously to the donee, (2) there must be actual or constructive delivery of the

subject matter to the donee, unless it is already in the donee’s possession, and (3) the

donee must accept the gift.” Davidson v. Bugbee, 575 N.W.2d 574, 576 (Mich. Ct. App.

1997) (citing Molenda v. Simonson, 11 N.W.2d 835 (Mich. 1943); Children of the

Chippewa, Ottawa & Potawatomy Tribes v. Regents of the Univ. of Michigan, 305

N.W.2d 522 (Mich. 1981)). An inter-vivos gift is “made by one person to another without

the inducement or the apprehension of death.” Keller v. McConville, 141 N.W. 652

(Mich. 1913).

In this case, Gabriel Kish III did not possess the present intent to transfer title to

the firearms to the children. It is undisputed that he intended for his children to have

these firearms when he dies. But it is also undisputed that he never intended to give
2

Gabriel Kish III’s statements in his unsigned “affidavits” (i.e., statements) do not

change the analysis. Initially, his statement indicated that he intended to give away his

firearms when he executed his will. (Resp. Ex. 5.) He later notified his attorney that this

was incorrect and an amended statement was filed. (Amended Ex. 1.) The statement

says that “[t]he guns seized from the basement vault of the Gun Barn always belonged

to my children and grandchildren” and that “[m]y children and grandchildren became

owners of the collection at birth.” (Id. ¶¶ 1, 2.) It further states, “I always viewed myself

as holding all of the firearms in the family collection, located in the basement vault of the

Gun Barn, in trust for my children and grandchildren and their descendants.” (Id. ¶ 7.) 

Gabriel Kish III may have “viewed” the firearms this way, but this is insufficient to

convey a legal interest in the firearms to the children (or the grandchildren and other

descendants). For example, a grandmother may intend from the moment of her

grandchildren’s birth that they one day receive the family heirlooms. However, this does

not mean that the newborn grandchild then possesses a present legal interest in the

heirlooms. Until the grandmother actually gives the grandchildren the heirlooms

complying with the three elements of a valid gift, or dies and the grandchildren inherit

them, the grandchildren do not have a legally cognizable interest in the heirlooms. If the

grandmother were to take the heirlooms to an antiques dealer to sell them, the

grandchildren have no legal recourse to prevent the sale. Similarly, in this case, Gabriel

Kish III’s children could not have prevented him from selling any of the firearms in the

basement vault. He simply never conveyed a legal interest in the firearms to his

children before they were seized.

12

the firearms to the children before then.2

 As discussed above, the children’s testimony

makes clear that they were to receive these guns upon Gabriel Kish III’s death. (Gov’ts

Mot. Ex. 3 at 25-26 (“That was the thing, when us four kids were going to split them

guns up evenly and fairly, upon his death. That was part of our inheritance . . . .

Everything is even-steven, equal, when he is gone. He was making death plans.”).) 

Gabriel Kish III’s death was a condition precedent to the transfer of the firearms to the

children. Therefore, the children never received an interest in the firearms and thus do

not have standing.

In addition, there was no delivery or acceptance of the firearms. Sherry Harness

was not even aware of the vault in the basement. (Gov’t’s Ex. 4 at 10.) Gregory Kish

stated that he learned that his father intended for his siblings to inherit the family gun
13

collection since he was “big enough to shoot one” and that his father always talked

about, “This is the stuff I got put away for you.” (Gov’t’s Ex. 5 at 18 (emphasis added).) 

The Claimants note that Gabriel Kish IV owned the building and “off and on” had the

combination to the vault. (Resp. at 5-6, Ex. 4 at 24.) However, he never exercised

dominion or control over the firearms, and “bare legal title, in the absence of assertions

of dominion, control or some other indicia of ownership of or interest in the seized

property, is insufficient to confer standing to challenge a forfeiture.” $515,060.42, 152

F.3d at 498 n.6. Indeed, Gabriel Kish IV expressly refused to exercise dominion and

control over the firearms, noting that the time was not right. (Gov’t’s Ex. 3 at 25 (“I will

get them later, when the time is right. That was the thing, when us four kids were going

to split them guns up evenly and fairly, upon his death.”). Accordingly, the purported

inter-vivos gift does not establish standing.

b. Acquisition by Purchase

The Claimants argue that “Gabriel Kish, IV and Gregory Kish purchased certain

firearms in the family collection and therefore have Article III standing to challenge the

forfeiture of those firearms.” (Resp. at 4.) The Government contends that these claims

lack specificity. (Gov’t’s Mot. Br. at 9; Gov’t’s Reply at 3.)

At her deposition, Sherry Harness stated, “I never purchased a gun to give to my

father.” (Resp. Ex. 2 at 9.) Gregory Kish and Gabriel Kish IV, on the other hand, both

indicated at their depositions that they had purchased guns to give to their father. When

Gregory Kish was asked whether he purchased any of the firearms to give to his father,

he replied, “There was one. I can’t tell you the serial number. I bought it from a guy I

worked with. I mean I don’t like to keep a lot of guns around my house, so that’s stuff
14

that ended up in the vault.” (Resp. Ex. 3 at 14.) Gabriel Kish IV stated that he told

Special Agent Logwood that “there was a private collection, that that was stuff that my

dad had collected for years, that I had helped with some of them. My other brother Jeff

had helped with some of them.” (Resp. Ex. 4 at 24.) When Gabriel Kish IV was asked,

“You mentioned some of the guns, you believe were guns that you had given to your

dad?,” he replied, “It was, and some he just took from me in a father-and-son family

way.” (Id. at 27.) However, he admitted that there no records indicating that he owned

the guns and explained, “It’s not like that. I trust any of these people with anything I got. 

Dad wasn’t like that, when it comes to stuff like that.” (Id.) Then, the following

exchange took place:

Q. [W]hich specific firearms do you believe that you gave to your father?

A. That I gave to my father, specifically? There’s been a bunch, over

the years, and I can’t remember them all. I can see most of them. 

What comes to mind, right off the top, which was left behind

because of it’s a black powder pistol, out of the 1700s. The agents

left that in the vault. That was not considered a firearm. That was

one. There was a Remington Model 42 XBN forty 4250 and 308

Winchester, that I remember buying both those guns from the

Lansing Gun Show at two different shows, because I brought the

308 and then six or eight months later, there was a .22 250 that

matched it perfectly, and dad, those target guns, he loved them.

Q. Why did you give the guns to your dad?

A. Because I love my dad. Why would you give cufflinks to yours? 

We just gave guns instead of cufflinks. It’s just the same.

Q. Would it be fair to say that the guns you gave to your dad were a

gift to your father?

A. Yes. You know, yes and no. He would look at it, roll it around, and

he would say, “Boy, that’s too good for you, kid.” I said, “Dad, why

don’t you take it home with you.”

That’s how our conversations pretty well went. I could have went
15

and got it tomorrow or the day after he died. I wasn’t worried about

it. 

(Id. at 39-40.)

Purchasing a firearm and putting it in the vault to hold would likely be a sufficient

interest to confer standing. However, both Gregory Kish and Gabriel Kish IV’s

deposition testimony indicates that after they purchased the gun, they gave it to their

father. (See id. at 40 (noting that they “just gave guns instead of cufflinks”).) Thus, they

no longer have an interest in these guns. 

This is consistent with both Gregory Kish and Gabriel Kish IV’s claims. Each

claims the same firearms and that they should be split up “even-steven.” (Id. at 26.) 

Gregory Kish does not make a specific claim for the firearm that he purchased from a

coworker and gave his father. Indeed, he does not even know its serial number. He

instead claims “[t]wenty-five percent of what was in that vault.” (Resp. Ex. 3 at 13.) 

Gabriel Kish IV lists a few specific guns that he purchased; however, he never identifies

which guns these correspond to in the Government’s complaint. (Resp. Ex. 4 at 40.) 

There does not appear to be a Remington Model 42 XBN forty 4250 in the guns he

claims and there are four 308 caliber Winchesters in the guns he claims. 

Gregory Kish and Gabriel Kish IV’s general claims to a proportionate share of the

firearms are insufficient. “Each element of Article III standing ‘must be supported in the

same way as any other matter on which the plaintiff bears the burden of proof, i.e., with

the manner and degree of evidence required at the successive stages of the litigation.’” 

Salti, 579 F.3d at 667 n.11 (quoting Lujan, 504 U.S. at 561). At this stage in the

litigation, the Claimants have not put forward evidence sufficient to meet their burden of
3

Formal discovery ended on December 30, 2009, following two extensions

granted by the court. During the status conference on December 22, 2009, the parties

agreed to an inspection of the firearms at the ATF warehouse in Flint, Michigan the

week of January 4, 2010. The Government attempted to arrange this inspection on

January 8, 2010, and on January 22, 2010. However, the Claimants were unable to

attend, in part, because Gabriel Kish IV was out of the state for the month of January on

a hunting trip. (Claimants’ Mot. to Stay Discovery at 2; Gov’t’s Resp. to Mot. to Stay

Discovery Ex. 3.) The Claimants filed a motion to stay discovery pending resolution of

the present motion and a motion on the burden of proof at trial. Both of these motions

are now resolved; in a separate order, the court will terminate the motion to stay

discovery as moot.

16

demonstrating standing. Discovery has closed.3

 The non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.” 

Matsushita Elec. Indus. Co., 475 U.S. at 586. Gregory Kish and Gabriel Kish IV claim a

proportionate share in the firearms in the “family collection,” not specific ones. They

expected to receive these firearms when their father died. As they no longer have an

interest in the firearms that they purchased, they do not have standing to challenge their

forfeiture.

IV. CONCLUSION 

For the reasons above, IT IS ORDERED that the Government’s “Motion to Strike

Claims of Gabriel Kish, IV, Gregory Kish, and Sherry Harness Based Upon Lack of

Article III, Section 2 or Statutory Standing” [Dkt. # 53] is GRANTED. The claims of

Gabriel Kish IV, Gregory Kish, and Sherry Harness are DISMISSED.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: March 12, 2010

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, March 12, 2010, by electronic and/or ordinary mail.

 S/Deborah J. Goltz 

Case Manager