satisfies the requirement that he demonstrate a "concrete and particularized" injury. Moreover, to satisfy the standing requirements of Article III, Buettner must demonstrate that it is "likely" (as opposed to merely speculative) that a favorable decision by this court will redress the injury. Lujan, 112 S. Ct. at 2136. It is unclear how in this context, injunctive relief would cure Buettner's purported injury. Accordingly, the court finds that as to these claims, Buettner lacks standing.
Defendants also contend that plaintiffs' claims are not ripe for review. Ripeness is peculiarly a question of timing. Am.-Arab, 970 F.2d at 510. To determine whether an issue is ripe for review, the court must (1) determine whether the issues are fit for judicial decision and (2) consider whether the parties will suffer hardship if the court declines to consider the issues. Id. (citing Abbott Lab. v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967)).
In terms of pre-enforcement review of a statute, an issue is not fit for review "in the absence of factual context upon which to rely in formulating a decision." Am.-Arab, 970 F.2d at 511-12. As the Ninth Circuit has observed, courts "should not be forced to decide. . . constitutional questions in a vacuum." Id. at 511.
Here, plaintiffs seek pre-enforcement review of a criminal statute. However, no factual context upon which this court can base its decision currently exists. In regards to plaintiffs' claims of vagueness, overbreadth and ambiguity, the lack of factual context raises a particular problem: because the Crime Control Act does not implicate First Amendment rights, it may be challenged for vagueness only as applied. United States v. Martinez, 49 F.3d 1398, 1995 U.S. App. LEXIS 4361, at *14 (9th Cir. 1995).
Furthermore, the court finds that plaintiffs have not resorted to the administrative process to clarify the meaning of the statute. Where persons challenging a law on vagueness or ambiguity grounds "have the ability to clarify [the law's] meaning by [their] own inquiry, or by resort to an administrative process," they should do so prior to invoking the jurisdiction of the federal courts. Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982); Kawaoka v. Arroyo Grande, 17 F.3d 1227, 1236 (9th Cir.), cert. denied, 130 L. Ed. 2d 125, 115 S. Ct. 193 (1994). Here, according to the government, plaintiffs can clarify any questions they might have about assault weapons and ammunition covered by the Crime Control Act by contacting the ATF's Firearm Technology branch to have those items classified.
Finally, as to the second prong of the ripeness test, the court finds that this is not a case where "delayed resolution" would be injurious to plaintiffs. The Crime Control Act places no affirmative duties on plaintiffs nor does it subject them to sanctions should they follow the law. Plaintiffs are not currently under any threat of prosecution and if they should be charged, plaintiffs will not be precluded from raising their constitutional challenges to the court. Accordingly, having considered the issue of ripeness, the court finds that at this time, plaintiffs' claims are not ripe for review.
C. Leave to Amend
At oral argument, plaintiffs' counsel requested that if this court decided to grant defendants' motion to dismiss, the dismissal be granted with leave to amend. The court denies plaintiffs request. It notes that plaintiffs have already had one opportunity to cure the jurisdictional defects of their complaint and still were unable to correct those problems. Plaintiffs' counsel conceded that none of his clients is facing criminal prosecution. Accordingly, the court finds that granting leave to amend at this juncture is inappropriate.
The court takes very seriously any allegations that plaintiffs' constitutional rights have been violated or infringed. Plaintiffs may raise as defenses to any criminal prosecution the argument which they advance here. That is not a meaningless exercise. Recently, the United States Supreme Court in United States v. Lopez, 95 Daily Journal D.A.R. 5325 (Apr. 27, 1995), upheld the reversal of a criminal conviction for possession of a handgun in violation of 18 U.S.C. § 922(g)(1)(A) because the law exceeded Congress' power under the Commerce Clause.
This court takes no position on the merit or lack of merit of plaintiffs' challenges. Before the court can reach the merits of the case brought here, the court must first examine if it properly has jurisdiction. Having reviewed plaintiffs' numerous claims of injury and listened to oral argument on this matter, the court finds that plaintiffs' have failed to clear the jurisdictional bars of standing and ripeness. Because it lacks jurisdiction, the court cannot address the merits of plaintiffs' constitutional claims.
Accordingly, the court grants defendants' motion to dismiss without leave to amend.
IT IS SO ORDERED.
MARILYN L. HUFF, JUDGE
UNITED STATES DISTRICT COURT
JUDGMENT IN A CIVIL CASE - May 18, 1995, FILED, ENTERED
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that Defendant's motion to dismiss without leave to amend is granted.
May 18, 1995
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