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BARKEY v. FIREARMS CONTROL BD.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


November 25, 1968

Isaac H. BARKEY, Plaintiff,
v.
FIREARMS CONTROL BOARD, City of New York, Defendant

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Plaintiff seeks a preliminary injunction in this suit to enjoin the New York City Firearms Control Board from interfering with his part-time business as an alleged wholesale dealer in rifles. Plaintiff asserts that the Firearms Control Board has prevented a shipment of twenty guns because he did not obtain a permit in compliance with the New York City Gun Control Law, Local Law 106-1967. Plaintiff claims that the Board's action violates his rights under the commerce clause of the United States Constitution, the provisions of the Federal Firearms Act, and Section 436-6.6 of the New York City Gun Control Law, Local Law 106-1967, which specifically excludes wholesale dealers from the operation of the law. There is no diversity of citizenship.

 Whether plaintiff is a wholesaler or a retailer within the meaning of the New York City Gun Control Law is not a question arising under the constitution or the laws of the United States. We therefore lack jurisdiction to decide that claim, and it is one that is most appropriately decided by the courts of the State of New York. *fn1"

 The Federal Firearms Act does not exempt anyone from state law, and the regulations promulgated under that Act, 26 U.S.C. ยง 5847, specifically indicate that the federal statute does not immunize from state law. *fn2" Indeed, the very license plaintiff puts forth as evidence of compliance with the federal Act contains a warning that the license does not exempt from state law. *fn3" Plaintiff does not, therefore, have a claim of denial of any rights under a federal statute. There remains only plaintiff's claim of denial of constitutional rights.

 The Board's alleged prevention of a shipment of approximately twenty guns to plaintiff because he has not complied with the New York City Gun Control Law is a reasonable regulation of commerce in pursuance of a valid concern of the state and its political subdivisions. *fn4" There is no allegation that plaintiff cannot receive a fair determination of his classification under the City law by the state courts. Nor is there any allegation that the state courts will unfairly deal with any possible federal issues that might arise. Thus, even if we assume that the case does raise a federal question, it is, nonetheless, dominated by an interpretation and application of a local law, and in properly exercising our equitable discretion, we should abstain from such cases leaving their proper adjudication to the state courts. *fn5"

 Accordingly, plaintiff's motion for a preliminary injunction is in all respects denied.

 So ordered.


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