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L.L.C. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives

United States District Court, D. Oregon, Medford Division

November 12, 2014

2nd AMENDMENT GUNS, L.L.C and LYNNE ANN CLOW, Plaintiffs,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendant

Lynne Ann Clow, Plaintiff, Pro se, Grants Pass, OR.

For Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendant: Timothy W. Simmons, LEAD ATTORNEY, United States Attorney's Office, Eugene, OR.

REPORT & RECOMMENDATION

MARK D. CLARKE, United States Magistrate Judge.

Plaintiffs 2nd Amendment Guns, L.L.C. (" 2nd Amendment Guns") and Lynne Ann Clow (" L. Clow"), (collectively, " Plaintiffs") bring this pro se action against Defendant Bureau of Alcohol, Tobacco, Firearms, and Explosives (" Defendant") alleging it improperly denied renewal of 2nd Amendment Guns' federal firearms license. Currently before the Court is Defendant's motion for summary judgment (#26). The Court advised (#30) the pro se Plaintiffs of the summary judgment rule requirements and afforded Plaintiffs the opportunity to submit a supplemental response and evidence in opposition to Defendant's motion in accordance with Fed.R.Civ.P. 56. Plaintiffs and Defendant submitted supplemental materials (#31, #32) in line with the Court's notice. Having reviewed all submitted materials, the Court concludes Defendant's motion (#26) should be GRANTED for the reasons set forth below.

PRELIMINARY MATTERS

I. Pro Se Representation of 2nd Amendment Guns

L. Clow attempts to proceed pro se on behalf of both herself and 2nd Amendment Guns. However, an artificial entity, like 2nd Amendment Guns, may appear in federal court only through licensed counsel. Rowland v. California Men's Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); see also 28 U.S.C. § 1654. Thus, L. Clow's representation of 2nd Amendment Guns in this action is improper. Because the Court finds that summary judgment is appropriate in any event, it will consider all of Plaintiffs' arguments and evidence, including those advanced by L. Clow on 2nd Amendment Guns' behalf, in the following Report & Recommendation.

II. Plaintiffs' Verified Response to Defendant's Summary Judgment Motion

In opposition to Defendant's motion, Plaintiffs filed a responsive brief, an excerpt of one of Defendant's forms, an excerpt of a March 2006 Newsletter for federal firearms licensees, various newspaper articles about other gun shops, and a log created by L. Clow titled " Errors Between Evidence Log And Forfeiture Notice Of Guns Seized Illegally From Us." In an affidavit attached to Plaintiffs' responsive brief, L. Clow certifies that its contents are " based on the truth, and facts supported by all evidence available to [her]." L. Clow Aff, at I. Given this certification and Plaintiffs' pro se status, the Court will treat the responsive brief as testimonial evidence and consider all admissible assertions advanced therein. See Whitman v. Mineta, 107 F.App'x 28, 29 (9th Cir. 2004) (" Indeed, the only evidence in the record that could possibly support Whitman's claims are the contents of his verified briefs filed in the district court, which, if based upon personal knowledge of admissible evidence, may function as affidavits for purposes of summary judgment."); Johnson v. Meltzer, 134 F.3d 1393, 1400 (9th Cir. 1998) (" Like a verified complaint, a verified motion functions as an affidavit.").

FACTUAL BACKGROUND

On October 16, 2006, 2nd Amendment Guns applied for, and was subsequently issued, a federal firearms license to deal firearms. AR 21-24. The application listed L. Clow as " owner operator" and Wilson Clow Jr. (" W. Clow") as " manager." AR 22. On November 22, 2006, Defendant conducted a qualification inspection of 2nd Amendment Guns during which it reviewed federal firearms laws and regulations with L. Clow and W. Clow. AR 31-32. L. Clow and W. Clow signed a form certifying Defendant had given them an overview of the laws and regulations, and acknowledging their responsibility to familiarize themselves with all laws governing their license. AR 32.

Defendant inspected 2nd Amendment Guns again in 2008, 2009, and 2011. In its 2008 inspection, Defendant identified 25 instances in which 2nd Amendment Guns failed to properly record the acquisition and disposition of firearms, one occasion in which 2nd Amendment Guns transferred a firearm to a transferee who indicated she was not the actual buyer, and 10 incomplete transferee records. AR 51-53, 200-02. Defendant issued a warning letter to 2nd Amendment Guns that stated: " [R]elention of your Federal firearms license is conditioned upon your compliance with Federal laws and regulations. Any future violations, either repeat or otherwise, could be viewed as willful and may result in the revocation of your license." AR 56-57.

Defendant's 2009 inspection revealed three instances in which 2nd Amendment Guns manufactured AR-15 rifles without the appropriate licensure, three times the business transferred a firearm to a person who was not the actual buyer, one instance in which 2nd Amendment Guns sold a firearm to a " prohibited person, " and 135 instances where it failed to properly complete acquisition and disposition entries. AR 60-63. Again, Defendant warned 2nd Amendment Guns that any future willful violations could ...


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