CopyCited 3 times | Published | District Court, M.D. Florida
...# 69), filed on November 16, 2018. Pro se Plaintiff Adam Wayne Tyler Roberts failed to respond to the Motion. For the reasons that follow, the Motion is granted to the extent the Court construes it as a Motion to Dismiss for lack of standing. I. Background Section 790.222, Florida Statutes, prohibits bump-fire stocks: "A person may not import into this state or transfer, distribute, sell, keep for sale, offer for sale, possess, or give to another person a bump-fire stock. A person who violates this section commits a felony of the third degree." Fla. Stat. § 790.222 ....
...Roberts initiated this action on May 1, 2018, asserting various claims against Swearingen, Commissioner of the Florida Department of Law Enforcement, and Pam Bondi, Attorney General of Florida. (Doc. # 1). In the Complaint, Roberts sought a declaration that Section 790.222 violates article X, section 6 of the Florida Constitution as well as the Second, Fifth, and Fourteenth Amendments of the United States Constitution....
...# 37). The Court dismissed Bondi as a Defendant. ( Id. ). The Court also dismissed with prejudice all but the two Second Amendment claims. ( Id. ). In denying the motion as to the Second Amendment claims, the Court noted that Roberts was not challenging Section 790.222 in its entirety and adopted Swearingen's reading of the Complaint: "Roberts' Second Amendment claim turns on other types of firearm modifications, not on the prohibition of actual bump-fire stocks because Counts 5 and 6 mention only trigger modifications such as 2-stage triggers and short-reset triggers." ( Id. at 12 )(citation and internal quotation marks omitted). Thus, in this action, Roberts is not arguing that Section 790.222 is unconstitutional because it prohibits true bump-fire stocks. Rather, Roberts argues that Section 790.222 is unconstitutional because *1344 he believes the second part of the bump-fire stock definition - regarding "increas[ing] the rate of fire" - covers a range of trigger modifications that are not true bump-fire stocks....
...The rate of fire for an un-modified semi-automatic weapon is "one round per single operation of the mechanism" - i.e. one bullet fired per pull of the trigger. ( Id. at 3 ). A device increases the rate of fire of a semi-automatic firearm, and is therefore a bump-fire stock under Section 790.222, if it allows a person to fire more than one round per single operation of the mechanism that causes the firearm to discharge. ( Id. at 4 ). Naples concluded that the Slide Fire Solutions stock did alter the rate of fire of the gun tested and so qualified as a bump-fire stock under Section 790.222....
...only when the magazine was empty." ( Id. ). Therefore, the Slide Fire Solutions stock is a true bump-fire stock. ( Id. ). In contrast, Naples concluded that the two items Roberts argues are unconstitutionally outlawed under the second definition of Section 790.222 - the modified hex bolt and screwdriver - do not alter the rate of fire of a semi-automatic weapon....
...ified firearm still "would not fire more than one round per pull of the trigger" so the "modified hex bolt did not increase the weapon's rate of fire." ( Id. ). Regarding the screwdriver, Naples explained that it could not be a bump-fire stock under Section 790.222 because the screwdriver is merely used to install the modified hex bolt - the screwdriver "was not an item that was either installed on, or in, the rifle" and did not increase the semi-automatic firearm's rate of fire. ( Id. at 6 ). During discovery, Roberts' deposition was taken. Throughout the deposition, Roberts took issue with Naples's expert report. (Doc. # 69-4 at 40:16-43:13, 88:19). He argued that the screwdriver is a bump-fire stock under Section 790.222 because it "was a tool that was used to alter the rate of fire, to mimic automatic weapon fire, which is used to increase the rate of fire faster." ( Id. at 46:10-47:10 ). Roberts also contended that the modified hex bolt qualified as a bump-fire stock under Section 790.222 because it reduces the pressure necessary to both pull and reset the trigger so "makes it faster and easier to bump fire the weapon." ( Id....
...get one bullet out of the weapon" and would ordinarily have to pull the trigger again to release another bullet. ( Id. at 79:23-80:21 ). Roberts also testified that he believed the Slide Fire Solutions stock was not made unlawful by the language of Section 790.222. ( Id. at 49:2-3, 54:3-14, 102:7-9 ). In an interrogatory *1345 response, Roberts elaborated on his opinion that the Slide Fire Solutions stock is not a bump-fire stock and is not prohibited by Section 790.222 because it is merely a "comfort device" that "does not enable bump firing" or "increase the rate of fire of the firearm." (Doc. # 69-3 at 4). Thus, because he does not believe Section 790.222 outlaws the Slide Fire Solutions stock at all, Roberts is not challenging the statute in relation to the Slide Fire Solutions stock....
...The undersigned denied the motion for a temporary restraining order but referred the motion for preliminary injunction to the Magistrate Judge. (Doc. ## 44, 48). The Magistrate Judge held a hearing on that motion on October 29, 2018. (Doc. # 62). During the hearing, Roberts confirmed that he is challenging Section 790.222's constitutionality only to the extent he believes that statute prohibits possession of certain other items besides true bump-fire stocks. (Doc. # 69-2 at 5:15-6:25, 11:17-21). Roberts also expressed concern during the hearing that someday a new Florida Attorney General may be appointed who would charge him with violating Section 790.222 for possession of the modified hex bolt and screwdriver....
...resolution of the dispute and the exercise of the court's remedial powers." Warth v. Seldin ,
422 U.S. 490 , 518,
95 S.Ct. 2197 ,
45 L.Ed.2d 343 (1975). B. Analysis Swearingen challenges Roberts' standing to bring a Second Amendment claim concerning Section
790.222....
...ute, and there exists a credible threat of prosecution thereunder.' " Id. (quoting Babbitt v. Farm Workers ,
442 U.S. 289 , 298,
99 S.Ct. 2301 ,
60 L.Ed.2d 895 (1979) ). Here, Roberts no longer possesses either of the two items he alleges fall under Section
790.222's prohibition - the modified hex bolt and the screwdriver....
...'[e]ventually,' her LCMs will wear out" at which point she would want to purchase new ones). Furthermore, Swearingen has now explained that the State of Florida does not interpret the modified hex bolt and screwdriver as falling under the purview of Section 790.222....
...Zaitzeff does not have standing to bring his Second Amendment cause of action in this Court."). Finally, Swearingen's own expert has concluded that the modified hex bolt and screwdriver do not alter the rate of fire of a firearm and so do not qualify as bump-fire stocks under Section 790.222....
...In short, there is no evidence to support that Roberts will be prosecuted in the future if he obtains the modified hex bolt and screwdriver again. True, Roberts asserted during the preliminary injunction hearing that a new Florida Attorney General may eventually be appointed who would charge him with violating Section 790.222 if he later possesses another modified hex bolt and screwdriver....
...is case, bringing charges against Roberts for possession of the two items at issue is highly unlikely. Because Roberts has failed to establish the existence of an injury-in-fact, Roberts lacks standing to bring his Second Amendment claim challenging Section 790.222....
...e the stock returned to him. ( Id. at 60:3-19). Regardless, the evidence before the Court establishes that the Slide Fire Solutions stock is a true bump-fire stock, (Doc. # 61-2 at 4-5), and Roberts has explained that he does not base his claim that Section 790.222 is unconstitutional on its prohibition of true bump-fire stocks, (Doc. # 69-2 at 5:15-6:25). And, while he disagrees with Swearingen's expert that the Slide Fire Solutions stock is a true bump-fire stock, Roberts acknowledged that he was not challenging Section 790.222 in relation to the Slide Fire Solutions stock anyway because he does not believe Section 790.222 outlaws the Slide Fire Solutions stock at all....
