Montgomery Citizens for a Safer  Maryland v. Montgomery County, Maryland

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 FRANK KRASNER ENTERPRISES, LTD.,
d/b/a Silverado Gun Show, d/b/a
Silverado Promotions; RSM,
INCORPORATED, d/b/a Valley Gun &
Police Supply; ROBERT D. CULVER,
Individually and Member of
No. 04-1030 Montgomery Citizens for a Safer 
Maryland,
Plaintiffs-Appellees,
v.
MONTGOMERY COUNTY, MARYLAND,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CA-01-1831-MJG)
Argued: December 1, 2004
Decided: March 11, 2005
Before LUTTIG and GREGORY, Circuit Judges, and
W. Craig BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.
Reversed by published opinion. Judge Gregory wrote the opinion, in
which Judge Luttig and Judge Broadwater joined.

-- 1 of 9 --

COUNSEL
ARGUED: Clifford Lee Royalty, COUNTY ATTORNEY’S
OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville,
Maryland, for Appellant. Jonathan Paul Kagan, BRASSEL & BAL-
DWIN, P.A., Annapolis, Maryland, for Appellees. ON BRIEF:
Charles W. Thompson, Jr., County Attorney, Marc P. Hansen, Chief,
General Counsel Division, Karen L. Federman Henry, Principal
Counsel for Appeals, Rockville, Maryland, for Appellant. Alexander
J. May, BRASSEL & BALDWIN, P.A., Annapolis, Maryland, for
Appellees.
OPINION
GREGORY, Circuit Judge:
In this case we examine whether a gun-show promoter and an
exhibitor at that promoter’s gun shows have standing to challenge in
federal court a county law that denies public funding to venues that
display and sell guns. We hold that no such standing exists. Accord-
ingly, we reverse the ruling of the district court.
I.
Since 1990, Frank Krasner Enterprises, Ltd. ("Krasner") has been
in the business of putting on gun shows in the state of Maryland. For
his shows in Montgomery County, Maryland, Krasner has biannually
leased between 13,000 to 18,000 square feet of space at a venue in
the City of Gaithersburg called the Montgomery County Agricultural
Center ("Ag Center").1 Co-Appellee RSM, Inc. is a regular exhibitor
1At these gun shows, approximately 20-25% of the 220 to 320 tables
rented are rented to firearms dealers. The remainder are rented to busi-
nesses selling firearms-related merchandise and to organizations that
distribute gun-related information. A member of a group called Mont-
gomery Citizens for a Safer Maryland, which rented space but did not
sell firearms, sued individually and on behalf of the group. This plaintiff
was dismissed by the district court for lack of standing and did not
appeal.
2 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 2 of 9 --

at these gun shows who sells firearms and related equipment and also
discusses the use and value of firearms. The Ag Center is privately
owned by a non-profit group, but has received occasional, yet sub-
stantial, funding from Montgomery County for various projects.
On May 16, 2001, the Montgomery County Council amended
Chapter 57 of the Montgomery County Code. Exclusively at issue
here is section 57-13 of the Code, entitled "Use of Public Funds."2 It
states:
(a) The County must not give financial or in-kind support
to any organization that allows the display and sale of guns
at a facility owned or controlled by the organization. Finan-
cial or in-kind support means any thing of value that is not
generally available to similar organizations in the County,
such as a grant, special tax treatment, bond authority, free
or discounted services, or a capital improvement constructed
by the County.
(b) An organization referred to in subsection (a) that
receives direct financial support from the County must repay
the support if the organization allows the display and sale of
guns at the organization’s facility afer receiving the County
support. The repayment must include the actual, original
value of the support, plus reasonable interest calculated by
a method specified by the Director of Finance.
Montgomery Co., Md. Code § 57-13. This section applies to guns
sold and support received after December 1, 2003. Less than a month
after section 57-13 became law, the Ag Center sent a letter to Krasner
2Section 57-11 of the Code, enacted along with section 57-13, explic-
itly prohibits the possession or sale of guns in certain circumstances that
would affect Krasner. However, the County conceded early on in this lit-
igation that it would not apply section 57-11 to the Ag Center because
doing so would impermissibly impede on the authority of the City of
Gaithersburg, which has, as is its right, exempted itself from all County
regulations on which the City also has legislative authority. See Gaithers-
burg City Code § 2-6; Md. Code Ann., art 23A, § 2B(b)(2); Md. Code
Ann., criminal law, § 4-209.
3 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 3 of 9 --

stating that, "we have been forced to make financial decisions to stop
conducting activities which would invoke the County to impose
financial sanctions on the Ag Center." J.A. 54. The letter made clear
that this decision was a result of the County’s funding restriction, not
any problems with Krasner.3
The Ag Center’s decision does not appear economically irrational:
the County had given the Ag Center a total of more than $500,000
over the past ten years for certain discrete projects, and while the
County was under no obligation to give the Ag Center anything, the
record reveals no reason — other than holding gun shows — that the
Ag Center could not expect to receive more funding from the County
in the future.4 Importantly, however, the letter also noted that the Ag
Center did not wish to take Krasner’s position opposing the bill:
As you know, from the very beginning of the gun show dis-
cussions back in October 2000, the Board of Directors
attempted to steer clear of taking a political position on the
matter of gun control, because it is not inherent to the Ag
Center’s mission in the community to take political posi-
tions on matters not directly related to agriculture.
J.A. 54.
Krasner, RSM, Inc., and a member of MCSM responded to the Ag
Center’s decision by suing Montgomery County in the United States
District Court for the District of Maryland. Importantly, the Ag Cen-
ter is not a party to this lawsuit, and the Appellees assert only their
rights, not Ag Center’s. Appellees’ Br. at 17-20. The lawsuit claims
that the County’s spending provision violates Maryland’s "Tillie
3Specifically, the letter stated that the Ag Center’s Board of Directors
appreciated Krasner’s professional manner but, because of the new law,
"now find ourselves in a difficult position. Therefore, until the County
changes the legislation that imposes financial sanctions on violators of
the gun show law, no further gun shows will be permitted in the grounds
of the Montgomery County Agricultural Center, Inc." J.A. 54.
4Nor, however, does the record reveal that the Ag Center would
receive any more funding, nor does it explain the Center’s other sources
of funding.
4 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 4 of 9 --

Frank" law,5 which empowers municipalities to ignore some overlap-
ping county regulations, as well as the First and Fourteenth Amend-
ments of the Constitution. The state-law argument is that section 57-
13 is really a regulatory provision in the guise of a funding restriction,
and thus inapplicable to the Ag Center because it is within the munici-
pality of Gaithersburg, which has exempted itself from County regu-
lations on which the City also has legislative authority. Appellees’ Br.
at 27-33. Appellees also argue that, even if section 57-13 is a spend-
ing restriction, it is invalid because there is no nexus between the pur-
pose of the County’s expenditure and prohibiting gun shows. See Id.
at 34-42. The First Amendment claim is that section 57-13 singles out
Appellees and burdens their "commercial free speech" while the Four-
teenth Amendment argument is that section 57-13 violates the Equal
Protection Clause because it treats gun shows differently without a
rational basis. See Id. at 43-61.
The district court found against the County on the state-law claim
and declined to reach the constitutional issues. Frank Krasner Enter.,
Ltd., v. Montgomery Co., Md., 166 F.Supp.2d 1058 (D.Md. 2001).
The County appealed, and this court vacated the district court’s ruling
and remanded for a determination of whether the plaintiffs had stand-
ing to sue. See Frank Krasner Enter., Ltd. v. Montgomery Co., Md,
60 Fed. Appx. 471, 472 (4th Cir. 2003). On remand, the district court
determined that Krasner and RSM alone (collectively, "Appellees")
had standing. The County again appeals.
II.
The standing doctrine is an indispensable expression of the Consti-
tution’s limitation on Article III courts’ power to adjudicate "cases
and controversies." Allen v. Wright, 468 U.S. 737, 750-51 (1984). The
burden of establishing standing to sue lies squarely on the party
claiming subject-matter jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992); Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 546 (1986). We review the question of whether a party
5The law, Md. Code Ann., art 23A, § 2B(a) (2001), is so called
because it was written to reverse the decision of Town of Forest Heights
v. Tillie Frank, 435 A.2d 425 (Md. 1981), which upheld a county ordi-
nance over a conflicting municipal ordinance.
5 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 5 of 9 --

possesses standing, like other questions of law, de novo. Marshall v.
Meadows, 105 F.3d 904, 905-06 (1997).
The Supreme Court has held that two strands of standing exist:
Article III standing, which enforces the Constitution’s case or contro-
versy requirement, and "prudential" standing, which embodies "judi-
cially self-imposed limits on the exercise of federal jurisdiction." Elk
Grove Unified Sch. Dist. v. Newdow, 124 S.Ct. 2301, 2308-09 (2004).
The requirements of Article III standing are numbingly familiar.6 To
have a claim heard in federal court, a plaintiff must establish: (1) an
"injury in fact" to a "legally protected interest" that is both "(a) con-
crete and particularized, and (b) actual or imminent, not conjectural
or hypothetical"; (2) a causal connection between the injury and the
conduct complained of that is "fairly traceable," and not "the result
of the independent action of some third party not before the court";
and (3) a non-speculative likelihood that the injury would be
redressed by a favorable judicial decision. See Lujan 504 U.S. at 560-
61 (emphasis added) (internal quotations, brackets, and citations omit-
ted).
In Allen v. Wright, 468 U.S. 737 (1984), the Supreme Court
acknowledged that the plaintiffs, parents of black schoolchildren,
stated an injury in fact (a diminished chance for their children to
receive a racially integrated education) but found that the injury was
not "fairly traceable" to the government’s challenged actions (grant-
ing tax-exempt status to racially discriminatory public schools). Id. at
753, 756-58. Rather, the Court held that the link was "highly indirect"
and "attenuated at best" because the injury "‘results from the indepen-
dent action of some third party not before the court.’" Id. at 757
(quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 42
(1976)) (emphasis added). That is, the Court could not be sure — but
6The requirements of prudential standing are decidedly less settled. See
Elk Grove Unified Sch. Dist., 124 S.Ct. at 2308-09 (stating that pruden-
tial standing "encompasses ‘the general prohibition on a litigant’s raising
another person’s legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches,
and the requirement that a plaintiff’s complaint fall within the zone of
interests protected by the law invoked’")(quoting Allen, 468 U.S. at 751).
We do not engage in prudential standing analysis.
6 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 6 of 9 --

rather found it "speculative" — that, had the schools not been given
tax-exempt status, the white children would have attended public
rather than private schools. Id. at 758.
Cases after Allen have held that when a plaintiff is not the direct
subject of government action, but rather when the "asserted injury
arises from the government’s allegedly unlawful regulation (or lack
of regulation) of someone else," Lujan, 504 U.S. at 562 (emphasis in
original), satisfying standing requirements will be "‘substantially
more difficult.’" Id. (quoting Allen, 468 U.S. at 758). This is so
because, "[t]he existence of one or more of the essential elements of
standing ‘depends on the unfettered choices made by independent
actors not before the courts and whose exercise of broad and legiti-
mate discretion the courts cannot presume either to control or to pre-
dict.’" Id. (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)
(opinion of KENNEDY, J.)) (emphasis added).
We have previously denied standing because the actions of an inde-
pendent third party, who was not a party to the lawsuit, stood between
the plaintiff and the challenged actions. In Burke v. Charleston, 139
F.3d 401 (4th Cir. 1998), we held that an artist who painted a mural
for a business lacked standing to assert a First Amendment challenge
to Charleston’s historic conservation law, which banned the mural’s
display. Id. at 405-06. We found that the painter could not challenge
the law’s application to that mural because he had sold his rights to
it and the owner could subsequently, at a whim, paint over the mural.
Id. at 406-07. It was the mural’s owner’s right, not the artist’s, and
the owner’s absence from the suit rendered it stillborn. Id.
We are not alone. In San Diego County Gun Rights Commission v.
Reno, 98 F.3d 1121 (9th Cir. 1996), the Ninth Circuit denied standing
to plaintiffs who alleged, among other things, that the Crime Control
Act, which banned certain guns (but "grandfathered" in others) made
the guns and ammunition the plaintiffs wished to purchase more
expensive. Id. at 1124-30. Even granting that the law restricted supply
and that the purported economic injury was an "injury in fact," that
court found it to be a "fatal flaw" in the plaintiff’s standing argument
that "nothing in the Act directs manufacturers or dealers to raise the
price of regulated weapons." Id. at 1130. Rather, third parties such as
weapon dealers and manufacturers broke the chain of causation by
7 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 7 of 9 --

independently charging higher prices. Id. (citing Lujan, 504 U.S. at
560). Other cases affirm this reasoning. See Pritikin v. Department of
Energy, 254 F.3d 791, 797 (9th Cir. 2001) (private citizen suing the
Department of Energy and individual governmental officers to com-
pel funding of medical monitoring program failed to meet Article III
standing on the causation and redressability prongs because another
agency, not before the court, decides whether to implement the pro-
gram); Common Cause v. Dept. of Energy, 702 F.2d 245, 251-54
(D.C. Cir. 1983) (denying Article III standing for consumer’s suit
against government which was "designed to leverage third-party fuel
suppliers into making pricing and allocation decisions favorable to the
consuming public."); cf. Area Transp., Inc. v. Ettinger, 219 F.3d 671,
672-74 (7th Cir. 2000) (no standing to challenge agency’s treatment
of potential competitor because, inter alia, competitor was an inde-
pendent actor not before the court).7 Indeed, Appellees have not cited,
and we are unaware of, a single case granting standing to a plaintiff
challenging a government’s decision not to subsidize a third party, not
before the court, with whom the plaintiff does business.
We thus find that the Appellees lack standing for failure to estab-
lish the causation and redressability prongs.8 The purported injury
here, like that of the painter in Burke and the gun-buyers in San Diego
County Gun Rights Commission, is not directly linked to the chal-
lenged law because an intermediary (in Burke, the mural-buyer; in
San Diego County Gun Rights Commission, the gun-sellers; here, the
Ag Center) stands directly between the plaintiffs and the challenged
conduct in a way that breaks the causal chain. We freely acknowledge
7Other courts have dismissed similarly indirect injuries under the pru-
dential, rather than Article III, strand of standing. In Ben Oehrleins and
Sons and Daughter, Inc. v. Hennepin County, Minnesota, 115 F.3d 1372,
1379-82 (8th Cir. 1997), for example, the Eighth Circuit held that cus-
tomers of waste-hauling firms satisfied Article III, but not prudential,
standing requirements to challenge under the Commerce Clause a county
law raising fees to waste haulers. Our result might be just the same under
a prudential-standing analysis, but for a number of reasons (not least of
which is that Krasner clearly does not claim third-party standing) we
explicitly ground this decision in Article III’s well-worn requirements.
8We will assume without analysis that the "injury in fact" requirement
is satisfied by the potential economic injury.
8 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 8 of 9 --

that the law makes it more expensive — perhaps prohibitively so —
for the Ag Center to lease space to Krasner. Specifically, the Ag Cen-
ter would need to charge Krasner or any other gun show proprietors
an amount at least equal to what it estimates it would lose from Mont-
gomery County in grants.9 The record leaves no doubt that this was
a deal-breaker; Krasner only rents space for perhaps four days a year,
and the County has given the Ag Center over a half-million dollars
in grants. But that the County’s decision may have been easy does not
alter the analysis. Likewise, even if we were to hear the case and hold
for the Appellees, we could not compel the Ag Center to rent space
to Krasner (nor, crucially, could we even direct the County to subsi-
dize the Ag Center in the future).
This would, then, be just the sort of advisory opinion federal courts
must not give. In short, where a law only indirectly raises a plaintiff’s
prices by withholding funding to a third party not before the court, the
directly affected third-party alone (here, the Ag Center, renting
space), not the downstream plaintiff (Krasner) or any party even fur-
ther downstream (RSM, Inc.), has standing to challenge the law in
federal courts.
III.
Krasner is once-removed from the County’s actions and the Ag
Center’s rights — whatever they may have been — and RSM, Inc. is
still another link down the broken chain of causation, and this is all
too much for us. Thus, the Appellees lack standing. Accordingly, the
district court’s ruling to the contrary is
REVERSED.
9This, in turn, would necessitate Krasner either passing along the costs
to table-renters like RSM, Inc. (who may have to pass along costs to pur-
chasers, etc.), or else charging higher admission and/or securing less
profits.
9 FRANK KRASNER ENTERS v. MONTGOMERY COUNTY

-- 9 of 9 --