level, a technique sometimes required in combat, but "not usually employed in hunting or competitive target competitions" where a firearm is held with two hands and fired at shoulder level. Id. Although plaintiffs argue that any rifle can be shot with one hand and at hip level, that is hardly the point. This factor aims to identify those rifles whose pistol grips are designed to make such spray firing from the hip particularly easy. Even a cursory review of the photographs submitted by the parties demonstrates that a sufficient number of assault rifles are so plainly equipped with grips that protrude conspicuously that it cannot be said that the factor is vague in all applications. Indeed, the court notes that Congress itself chose the very same formulation as a defining term for assault weapons in federal legislation. 18 U.S.C. § 921(a)(30)(B)(ii).
Plaintiffs submit that defining assault weapons with reference to features such as a "bayonet mount," "a flash suppressor or threaded barrel designed to accommodate a flash suppressor," a "barrel shroud," or a "grenade launcher," violates due process because a host of items exist that, although not specifically intended to serve these purposes, could arguably do so, thereby subjecting an unsuspecting gun owner to criminal liability. This argument, however, defeats itself. As already noted, when a statute is challenged for facial vagueness, the issue is not whether plaintiffs can posit some application not clearly defined by the legislation. The issue is whether all applications are impermissibly vague. Certainly, there is no vagueness when the statute is applied to firearms advertised to include parts identified as bayonet mounts, flash suppressors, barrel shrouds, or grenade launchers.
Finally, plaintiffs complain that Local Law 78 is impermissibly vague in defining as an assault weapon "any part, or combination of parts, designed or redesigned or intended to readily convert a rifle or shotgun into an assault weapon." They submit that a rifle manufacturer's intent in designing a gun may not easily be discernable from the mere appearance of a weapon.
The Supreme Court has, however, already rejected vagueness challenges to similar language in other statutes. In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, the Court upheld a local ordinance requiring businesses to obtain licenses if they sold items "designed or marketed for use with illegal cannabis or drugs." The "designed" standard was held to encompass "at least an item that is principally used with illegal drugs by virtue of its objective features." 455 U.S. at 501. Although application of this standard might, in some cases, be ambiguous, it was sufficient to cover "at least some of the items" sold by Flipside and, thus, to preclude a facial vagueness challenge. Similarly, the vagueness challenge to the "marketed" standard was rejected in light of the implicit scienter element, "since a retailer could scarcely 'market' items 'for' a particular use without intending that use." Id. at 502. See also Posters ' N' Things, Ltd. v. United States, 128 L. Ed. 2d 539, 114 S. Ct. 1747, 1750 (1994) (upholding federal statute that defined drug paraphernalia as items "primarily intended . . . for use" or "designed for use" with controlled substances, although holding that neither standard required proof of scienter).
Applying the same analysis to this case, this court is persuaded from many of the submitted advertisements for semiautomatic rifles that the objective features of at least some of these firearms clearly bring them within the "designed" standard of Local Law 78. Whether the "intended to convert" standard does or does not require proof of scienter is a question that can be left for the New York courts. The fact remains that plaintiffs have failed to show that all applications of Local Law 78 are unconstitutionally vague.
IV. Due Process
Plaintiffs claim that New York State law creates a liberty and property interest in the people to bear arms. See N.Y. Civ. Rights Law, art. 2, § 4 (McKinney 1992); N.Y. Gen. Mun. Law, art. 6, § 139-d (McKinney 1989); N.Y. Penal Law, arts. 265, 400 (McKinney 1987). Insofar as Local Law 78 deprives them of this interest, they assert it violates the due process guaranteed by the Fourteenth Amendment. The court assumes that plaintiffs invoke procedural due process since violations of state law generally do not give rise to substantive due process claims. See Weimer v. Amen, 870 F.2d 1400, 1405-06 (8th Cir. 1989).
In fact, it is far from clear that the state laws cited by plaintiffs do create a liberty or property interest in possessing semiautomatic weapons. Plaintiffs' argument in this respect depends largely on their pendent claim of state law preemption. For the reasons stated by Chief Magistrate Judge Chrein in his report, the merits of this claim are dubious at best. If they were presented to New York's highest court and rejected, there would be no basis for a federal due process claim. See Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1971) (existence of liberty or property right entitled to protection of procedural due process depends on right being recognized under state law); accord Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989); West Farms Assocs. v. State Traffic Comm'n, 951 F.2d 469 (2d Cir. 1991).
When a federal constitutional claim is so dependent upon the interpretation of an uncertain state statutory scheme, and when state law is susceptible to an interpretation that could avoid or modify the constitutional claim, a federal court will, in the interests of comity and federalism, abstain from exercising its jurisdiction to afford the parties an opportunity to seek resolution of the state law question in the local forum. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 501, 85 L. Ed. 971, 61 S. Ct. 643 (1941); see, e.g., Greater New York Metro. Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993).
In this case, the court need not simply abstain from hearing plaintiffs' procedural due process claim. Assuming arguendo that some liberty or property right is here at stake, plaintiffs have totally failed to demonstrate that they have been denied appropriate procedural safeguards. When legislative as opposed to administrative action is at issue, the only procedure required by the Constitution is judicial review. See Bowles v. Willingham, 321 U.S. 503, 519-20, 88 L. Ed. 892, 64 S. Ct. 641 (1944); accord Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 142 (2d Cir. 1994). Since New York courts are available to hear declaratory judgment actions challenging the legality of municipal ordinances in light of the state constitution and laws, N.Y. Civ. P. Law § 3017 (1991); e.g., Jancyn Manuf. Corp. v. County of Suffolk, 71 N.Y.2d 91, 95, 524 N.Y.S.2d 8, 9, 518 N.E.2d 903 (1987); Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 257-58, 401 N.Y.S.2d 173, 176, 372 N.E.2d 9 (1977), plaintiffs' procedural due process challenge must be rejected as a matter of law and summary judgment entered in favor of defendants.
V. Delegation of Rule-Making Powers to Police Commissioner
Plaintiffs claim that Local Law 78's delegation of rule-making authority to the Police Commissioner violates the Fourteenth Amendment's Due Process Clause. They further contend that the Commissioner has exercised this authority in an arbitrary and capricious manner in further violation of due process.
The latter claim is based on plaintiffs' argument that no one -- whether the City Council or the Police Commissioner -- could rationally categorize any semiautomatic rifle or shotgun as an assault weapon suitable for military purposes since no armed forces use such weapons. The court has already rejected this rationality challenge to Local Law 78 generally. For the same reasons, it rejects the argument as made more specifically against the Police Commissioner's exercise of rule-making authority under the law.
Plaintiffs' delegation challenge simply fails to state a cognizable federal claim. Article I, section 1 of the Constitution states that "all legislative Powers herein granted shall be vested in a Congress of the United States." Mindful of the Constitution's separation of powers among the branches of the federal government, the Supreme Court has derived from the quoted language a "non-delegation doctrine" prohibiting Congress from transferring its legislative powers to other governmental branches. See Mistretta v. United States, 488 U.S. 361, 371, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989); United States v. Pitera, 795 F. Supp. 546, 560 (E.D.N.Y. 1992). But nothing in the federal Constitution speaks to the delegation of legislative powers by state and local governments. Any such claim must be based on state law. See Friedman v. Beame, 558 F.2d 1107, 1111 (2d Cir. 1977). Since plaintiffs invoke only the Fourteenth Amendment in support of this claim, judgment is entered in favor of defendants.
VI. State Law Preemption
Plaintiffs claim that Local Law 78 is preempted by New York State law, specifically N.Y. Civ. Rights Law, art. 2, § 4; N.Y. Gen. Mun. Law, art. 6, § 133-d; and N.Y. Penal Law, arts. 265, 400. This court, having granted judgment in favor of defendants on all federal claims, declines to exercise pendent jurisdiction over this state law question. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Gelles v. TDA Indus., Inc., 44 F.3d 102, 106 (2d Cir. 1994).
The court rejects as a matter of law plaintiffs' challenge to the rationality of Local Law 78 and to the Police Commissioner's exercise of rule-making authority under that law. It further rejects as a matter of law plaintiffs' claim that the local law is facially vague in all its applications and their claim that the law is preempted by federal laws and regulations pertaining to the Civilian Marksmanship Program. It finds that plaintiffs have failed to state a federal claim for denial of procedural due process or for impermissible delegation of legislative powers. Accordingly, summary judgment is entered in favor of defendants on all federal claims. The sole remaining claim -- alleging state law preemption of Local Law 78 -- is dismissed for lack of independent federal jurisdiction.
Dated: Brooklyn, New York
August 10, 1995
UNITED STATES DISTRICT JUDGE