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Hetherton v. Sears

decided: June 25, 1981.



Before Weis and Higginbotham, Circuit Judges, and McCUNE, District Judge.*fn*

Author: Higginbotham


This case comes before us for the second time and raises questions of standing and the constitutionality of a Delaware statute requiring each purchaser of a "deadly weapon" to be identified by two freeholders.*fn1 Del.Code Ann. tit. 24, § 904 (Michie 1975). In Hetherton v. Sears, Roebuck & Co., 593 F.2d 526 (3d Cir. 1979), we reversed the judgment of the district court granting Sears' motion for summary judgment and remanded the case for consideration of the issues of proximate cause and damages. Sears, as a vendor of deadly weapons, had sold Lloyd Fullman, Jr., a rifle and ammunition in violation of § 904.*fn2 Fullman used the weapon and ammunition in an attempted robbery of a Wilmington restaurant where James Hetherton was employed as a guard. During the course of the robbery, Fullman shot Hetherton in the head, severely wounding him. Hetherton sued Sears alleging that Sears was negligent for selling the weapons to Fullman without requiring that he be identified by two freeholders.

Sears raised, though somewhat obliquely, the federal constitutional issue now before us in its original answer to Hetherton's complaint.*fn3 Since, in the first district court opinion of January 27, 1978, Sears received a summary judgment on the ground that there was neither statutory nor common law liability, the trial court did not reach the constitutional issues asserted in the original answer. Hetherton v. Sears, Roebuck & Co., 445 F. Supp. 294 (D.Del.1978). Similarly, when the matter was before us on the first appeal, the federal constitutional issues were not briefed or argued. On remand the constitutional question was reached. Thus, the issue now properly before us is Sears' challenge to the constitutionality of § 904's freeholder identification requirement on equal protection grounds. It alleged that § 904 was without rational basis because it "denied the class of people not possessing freehold estates the opportunity to participate in the enforcement of the statute and it denied the class of people who did not know any freeholders the privilege of purchasing arms." District Court Opinion, reprinted at A-3. Hetherton responded that Sears lacked standing to challenge the constitutionality of § 904 and that, even if such a challenge were permissible by Sears, § 904 was supported by a rational basis.

In an excellent opinion by Judge Latchum, who was assigned the case after our remand, the contentions of Hetherton were rejected. We affirm Judge Latchum's decision and agree that Sears has standing to challenge the constitutionality of § 904 and that § 904, as it existed when the underlying events occurred, violates the fourteenth amendment.



The jurisdiction of federal courts is limited by Article III of the United States Constitution to "cases" or "controversies." Flast v. Cohen, 392 U.S. 83, 94, 88 S. Ct. 1942, 1949, 20 L. Ed. 2d 947 (1968); Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). A means of insuring valid jurisdiction is to require that parties coming to the federal courts have standing to present the claims they seek to have adjudicated. As the Supreme Court wrote in Flast v. Cohen, 392 U.S. at 99-100, 88 S. Ct. at 1952-1953 (footnotes omitted) (emphasis added):

The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, (82 S. Ct. 691, 703, 7 L. Ed. 2d 663) (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question. A proper party is demanded so that federal courts will not be asked to decide "ill-defined controversies over constitutional issues," United Public Works of America v. Mitchell, 330 U.S. 75, 90, (67 S. Ct. 556, 564, 91 L. Ed. 754) (1947), or a case which is of "a hypothetical or abstract character," Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, (57 S. Ct. 461, 463, 81 L. Ed. 617) (1937). So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, Chicago & Grand Truck R. Co. v. Wellman, supra, (143 U.S. 339, 12 S. Ct. 400, 36 L. Ed. 176) or those which are feigned or collusive in nature, United States v. Johnson, 319 U.S. 302, (63 S. Ct. 1075, 87 L. Ed. 1413) (1943); Lord v. Veazie, 49 U.S. 251, 8 How. 251, (12 L. Ed. 1067) (1850).

In Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 829-830, 25 L. Ed. 2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 163, 90 S. Ct. 832, 835, 25 L. Ed. 2d 192 (1970), the Supreme Court sharpened the analysis of Flast and Baker. It noted that parties have standing if they have suffered " "injury in fact, economic or otherwise,' to an interest "arguably within the zone of interest to be protected or regulated by the statute ... in question.' " Americans United for Separation of Church and State, Inc. v. HEW, 619 F.2d 252, 256 (3d Cir. 1980), cert. granted sub nom., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 450 U.S. 909, 101 S. Ct. 1345, 67 L. Ed. 2d 332 (1981), quoting, Data Processing Service, 397 U.S. at 152-53, 90 S. Ct. at 829-830. See United States of America v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980).

There is little question that Sears risks suffering injury in fact to an interest arguably within the zone of interest to be regulated by § 904. As the district court wrote:

The statutory requirement which Sears is challenging here created for Sears a legal duty to require anyone purchasing a firearm from Sears to produce two freeholders who could identify the purchaser. Sears' failure to perform this duty is presently exposing it to a very large potential liability and could lead to criminal prosecution. Thus, the statute is clearly causing Sears injury in fact and Sears had a weighty personal interest in demonstrating that the law was unconstitutional.

District Court Opinion at A-3.*fn4 The existence of potential civil and criminal liability when combined with the statute's clear intention to regulate the vendors of deadly weapons assures us that Sears had presented the "concrete adverseness" envisioned by Flast and Baker.

The dissent bases its objection to granting standing to Sears on "prudential" grounds. The term "prudential" is hazy in meaning and has seldom been defined with precision by the Supreme Court. Apparently it means "dimensions ... founded in concern about the proper and properly limited role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975). Prudential considerations however do not dictate that we deny Sears standing in this case. Typically courts will not permit a party to assert third party rights vicariously where the third party is capable of representing their own interests. This is due to a belief that the third party, whose rights have been violated, will have a clearer and more aggressive interest in seeing the rights vindicated. Here, Sears seeks to represent the interests of non-freeholders to participate in the enforcement of the Delaware statute and of persons who do not know any freeholders and want to purchase deadly weapons.*fn5 We have concluded that any prudential considerations are outweighed by Sears' vital and immediate interests in challenging § 904.

The dissent argues that the prudential basis for denying standing to Sears is made stronger by the fact that the amendment to § 904 makes the irrational distinction between freeholders and non-freeholders moot. It is true that Sears' challenge will not benefit any Delaware citizens in the future. Nevertheless, Sears was required to operate under what we believe was an unconstitutional statute and to risk criminal and civil liability for failing to follow it. The concern expressed by the Supreme Court in Craig that a vendor not be forced to chose between perpetuating discrimination and risking liability was present here even though the statute has since been amended. Furthermore, the cases where prudential concerns have been asserted to deny standing involve situations totally separate from the present case. For example, standing has been denied in cases involving an injury too abstract or general in nature, Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 220-23, 94 S. Ct. 2925, 2932-2933, 41 L. Ed. 2d 706 (1974), or cases calling for the resolution of political questions, Flast v. Cohen, 392 U.S. at 100, 88 S. Ct. at 1952. If Sears has standing under Craig as a vendor to whom an unconstitutional statute was directed, then the later amendment of that statute should not be given a retroactive effect so as to bar Sears from asserting the same constitutional arguments it could validly have made had the statute not been amended. Sears' liability, if any, arises because of its acts on the day the sale was made and it should have the same right on the basis of jus tertii to challenge § 904 as it would have had had there been no amendment.

The policies enunciated in Craig and our court's decision in Westinghouse Electric support this conclusion. The Supreme Court in Craig permitted a beer vendor to challenge the constitutionality of an Oklahoma statute that discriminated between men and women in the purchase of 3.2% beer. The rationale for their decision was that the vendor had "vigorously and "cogently' " presented the constitutional issues and, if standing were denied, vendors would be deterred from selling the beer to members of the class, thereby perpetuating the discrimination. Craig v. Boren, 429 U.S. at 194-95, 97 S. Ct. at 455-456. The Court went on to emphasize that the statute was directed towards the vendor forcing her to either perpetuate the discrimination or risk criminal sanctions. Thus, "vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function." Id. at 195, 97 S. Ct. at 456 (citations omitted).

Similarly, in Westinghouse Electric, our court permitted Westinghouse to challenge a subpoena directed towards it seeking the production of employees' medical records. Judge Sloviter, writing for the majority, noted that Westinghouse could be subjected to a contempt sanction for failure to comply with the subpoena. Since Westinghouse was effectively in the best position to present the privacy arguments of its employees, there was no prudential basis for the denial of standing.

We believe that the policies underlying the grant of standing in both Craig and Westinghouse Electric are directly applicable to Sears. The principal factor present in Craig, Westinghouse Electric and the instant case is that the party seeking to assert third party rights was subject to sanction for failure to obey either an unconstitutional statute or an impermissible subpoena. Sears is in the best position to cogently present the constitutional arguments and there is no suggestion that they have done otherwise. We, therefore, affirm the district court's holding that Sears has standing to assert the constitutional rights of non-freeholders in the State of Delaware.



Much has been written about the level of scrutiny a federal court should apply when reviewing a challenge to the constitutionality of a state statute or other official action. At the outset, it must be noted that this case involves neither a suspect classification nor a fundamental right. Thus, strict scrutiny is not appropriate. A strong argument could be made for the proposition that classifications based on the ownership of land are "quasi-suspect" and, therefore, receive a level of scrutiny greater than the rational basis test but less than strict.*fn6 We need not decide ...

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