Haeker v. Linder

Filing 15

FINDINGS AND RECOMMENDATIONS. IT IS RECOMMENDED that Lindersmotion to dismiss (ECF No. 11 ) be GRANTED, as follows: (1) Haeker's claims under the Second Amendment (Count 2) and the Fourteenth Amendment's Due Process Clause (Count 1) shoul d be dismissed with prejudice; and (2) Haeker's claim under the Fourteenth Amendments Equal Protection Clause should be dismissed, but Haeker should be afforded leave to amend this claim to state facts sufficient to support a cognizable legal theory, as discussed herein. Signed by Magistrate Judge Carolyn S Ostby on 7/22/2016. (Hard copy to K. Haeker) (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
KURT HAEKER,

CV 16-26-BLG-SPW-CSO

Plaintiff,
FINDINGS AND
RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

vs.
MIKE LINDER, Yellowstone County
Sheriff,
Defendant.

Plaintiff Kurt Haeker (“Haeker”), appearing pro se, filed this
action against Defendant Mike Linder (“Linder”) in his capacity as
Sheriff of Yellowstone County, Montana, under 42 U.S.C. § 1983.
Haeker claims that Linder violated his Second Amendment right to
bear arms by revoking his permit to carry concealed weapons after the
filing of an order of protection (“protection order”) against Haeker.
Cmplt. (ECF No. 1) at ¶ 14. Haeker also claims that revocation of his
concealed-carry permit violated his Fourteenth Amendment rights to
due process and equal protection. Id. at ¶¶ 7, 11.

In earlier proceedings, the undersigned recommended that
Linder’s Rule 12(b)(6)1 motion to dismiss be granted, without prejudice,
because Haeker failed to respond to the motion. Findings and
Recommendation (ECF No. 8) at 5-8. Haeker objected. Resp. to
Findings (ECF No. 9). He did not address his failure to respond to
Linder’s motion, but instead argued that his Complaint properly states
claims for the violation of his Constitutional rights. Id. at 1-3.
Judge Watters rejected the undersigned’s findings and
recommendation concluding that the record did not reflect that Haeker
had been properly served with Linder’s motion. She concluded that his
case, therefore, should not be dismissed for failure to prosecute. Order
(ECF No. 10) at 2-3. Judge Watters also granted Linder leave to renew
his motion. Id. at 3.
Now pending is Linder’s renewed motion to dismiss under Rule
12(b)(6). Mtn. to Dismiss (ECF No. 11). Haeker timely responded to
the renewed motion. Haeker’s Resp. Br. (ECF No. 13). As discussed
below, the Court makes the recommendations that follow.
1

References to rules are to the Federal Rules of Civil Procedure
unless otherwise noted.
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I.

Background
Haeker’s Complaint2 alleges as follows:
On March 15, 2016, Janice Smith (“Smith”) filed a protection

order against Haeker in Billings Municipal Court, Billings, Montana.
ECF No. 1 at ¶ 6. On March 20, 2016, Haeker was served with notice
that Linder revoked Haeker’s concealed carry permit. Id. at ¶ 7.
Revocation of the concealed carry permit was based upon the protection
order and occurred before a hearing on that order scheduled for March
29, 2016, thus depriving Haeker of the opportunity to contest the
allegations leading to issuance of the protection order in violation of
Haeker’s due process rights. Id.
Haeker is a landlord in South Billings. He has a 12-year-old son
who helps with maintenance. His current tenants include a convicted
murderer, a convicted sex offender, and an individual with a conviction
2

“A document filed pro se is ‘to be liberally construed,’ and ‘a pro
se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.’” Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Cf. Fed. R. Civ. P. 8(e) (“Pleadings must
be construed so as to do justice”). For purposes of the pending motion,
the Court accepts all factual allegations in the Complaint as true and
construes the pleadings in the light most favorable to Haeker. Knievel
v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
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for assault on a police officer. He also has had numerous felons rent
apartments from him in the past and has had to evict a convicted felon.
He occasionally has disputes with tenants, and carrying a concealed
weapon is a comfort to him. Also, Smith’s partner has made repeated
threats to kill him. Id. at ¶ 8.
Haeker has passed numerous background checks, has had neither
a felony nor a misdemeanor conviction in 28 years, and has no criminal
history involving violence. He also has no civil judgments against him.
And he does not drink alcohol or use any illegal drug. His credit score
is greater than 750, has had only one marriage in 21 years, holds a
degree in biology, and has a Montana Brokers License. He is an Eagle
Scout, owns assets in excess of one million dollars, has employed more
than 100 people, and has a successful business. Id. at ¶ 9.
In his Complaint, Haeker claims that Linder’s revocation of his
concealed carry permit violated his right to due process and equal
protection under the Fourteenth Amendment (Count 1) and violated his
right to possess and carry firearms under the Second Amendment
(Count 2). Id. at ¶¶ 10-14.

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II.

Summary of Parties’ Arguments
Linder argues that Haeker has failed to state a claim upon which

relief can be granted for two principal reasons. First, he argues, the
Second Amendment does not guarantee an unlimited right to bear
arms. Linder’s Br. (ECF No. 12) at 3. He argues that the U.S.
Supreme Court has noted that the majority of courts that have
considered the question have concluded that “prohibitions on carrying
concealed weapons were lawful under the Second Amendment or state
analogues.” Id. (quoting District of Columbia v. Heller, 554 U.S. 570,
626 (2008)). Thus, “[i]f an absolute ban on the concealed carrying of
weapons does not implicate the Second Amendment, then the issue of
the revocation of a permit allowing concealed carry will not implicate it
either.” Id. And, he argues, the Ninth Circuit Court of Appeals ruled
recently that a city’s rules limiting the issuance of concealed weapons
permits did not infringe on the Second Amendment. Id. at 3-4.
Second, Linder argues that Haeker’s Second Amendment right is
not violated by revocation of his concealed carry permit because state
law allows a person to carry their weapon openly. Id. Thus, Linder

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argues, Haeker retains the right to carry his weapon in the open in
public and thus has the right to own and bear arms. Id. Accordingly,
there is no violation of his Second Amendment rights, and he has failed
to state a claim on which relief can be granted. Id.
In response, Haeker argues that: (1) the Second Amendment does
protect the right to carry a concealed weapon, Haeker’s Resp. Br. (ECF
No. 13) at 1; (2) the Fourteenth Amendment provides a right of
procedural due process, including an opportunity to be heard at a
meaningful time and in a meaningful manner, that limits the actions of
all state and local officials when they attempt to abridge privileges and
immunities of U.S. citizens or attempt to deprive them of life, liberty, or
property, id. at 1-3; (3) a concealed carry permit implicates a person’s
liberty and property interests, whether the permit is denominated as a
right or a privilege, so that revocation of such a permit cannot occur
without due process, id. at 3-4; and (4) due process is required for
revocation of similar state-issued licenses and rights, such as driving,
selling alcohol, selling real estate, receiving welfare and social security
benefits, or going to school, so that due process must be afforded for

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revocation of a concealed carry permit, id. at 4-6.
In reply, Linder argues that Haeker “fails to articulate an
underlying right which has been infringed[ ]” because his “complaint
fails to show how the revocation of a concealed [carry] permit is a
violation of a liberty or property interest.” Linder’s Reply Br. (ECF No.
14) at 2. Linder argues that Haeker “still has access to and the ability
to carry firearms[ ]” but “is only limited in the manner of carrying
weapons[ ]” and has not cited to any case in which a concealed carry
permit revocation was adjudicated to be a liberty or property interest
requiring any pre-revocation process. Id. And, Linder argues, Haeker
“has not articulated facts which show that a concealed carry permit was
essential to his livelihood.” Id. Haeker can still act as a landlord
whether he has a concealed carry permit or not, Linder argues, and he
retains the option to carry firearms openly. Thus, he cannot show a
right or interest protected by the Fourteenth Amendment for which he
is entitled to the process he demands. Id. at 2-3.
III. Legal Standard for Rule 12(b)(6) Motions
“Dismissal under Rule 12(b)(6) is proper only when the complaint

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either (1) lacks a cognizable legal theory or (2) fails to allege sufficient
facts to support a cognizable legal theory.” Zixiang Li v. Kerry, 710
F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). The Court’s standard of
review under Rule 12(b)(6) is informed by Rule 8(a)(2), which requires
that a pleading contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 677-678 (2009) (quoting Fed. R. Civ. P 8(a)).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. at 678. “A claim has
facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A plausibility determination is context
specific, and courts must draw on judicial experience and common
sense in evaluating a complaint. Levitt v. Yelp! Inc., 2014 WL 4290615,
*10 (9th Cir. 2014).
A court considering a Rule 12(b)(6) motion must accept as true the

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allegations of the complaint and must construe those allegations in the
light most favorable to the nonmoving party. See, e.g., Wyler Summit
Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th
Cir. 1998). “However, a court need not accept as true unreasonable
inferences, unwarranted deductions of fact, or conclusory legal
allegations cast in the form of factual allegations.” Summit Technology,
Inc. v. High-Line Medical Instruments Co., Inc., 922 F.Supp. 299, 304
(C.D. Cal. 1996) (citing Western Mining Council v. Watt, 643 F.2d 618,
624 (9th Cir. 1981) cert. denied, 454 U.S. 1031 (1981)).
IV.

Discussion
A.

Count 2 – Haeker’s Second Amendment Claim

Count 2 alleges that Linder violated Haeker’s Second Amendment
right to possess and carry firearms by revoking his concealed carry
permit. The Court concludes that this claim must be dismissed.
Last month, in Peruta v. County of San Diego, ___ F.3d ___, 2016
WL 3194315, *5 (9th Cir., June 9, 2016) (en banc), the Ninth Circuit
Court of Appeals, sitting en banc, foreclosed Haeker’s argument that
the Second Amendment right to keep and bear arms encompasses the

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right to carry concealed firearms in public. The court, noting the
“overwhelming consensus of historical sources,” and discussing them in
detail, held as follows:
We therefore conclude that the Second Amendment right to
keep and bear arms does not include, in any degree, the
right of a member of the general public to carry concealed
firearms in public.
Id. at *15. This controlling authority precludes Haeker’s argument
that the Second Amendment affords protection to those who wish to
carry concealed firearms and renders Haeker’s Second Amendment
claim legally deficient. The claim is thus subject to dismissal.
B.

Count 1 – Haeker’s Fourteenth Amendment Due
Process and Equal Protection Claims

Haeker claims that Linder violated his Fourteenth Amendment
right to equal protection of the law when Linder revoked his concealed
carry permit without affording Haeker due process. ECF No. 1 at ¶ 11.
The Fourteenth Amendment provides that no State shall “deprive any
person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the laws.”
U.S. CONST. amend. XIV, § 1.

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1.

Due Process

Here, Haeker claims no deprivation of life, but rather argues that
Linder’s revocation of his concealed carry permit, without due process,
deprived him of property and liberty. ECF No. 13 at 3-5. As noted,
Linder argues that Haeker has failed “to show how the revocation of a
concealed [carry] permit is a violation of a liberty or property interest.”
ECF No. 14 at 2-3. The Court agrees.
A.

Property Interest

“Any significant taking of property by the State is within the
purview of the Due Process Clause.” Lavan v. City of Los Angeles, 693
F.3d 1022, 1031 (9th Cir. 2012) (quoting Fuentes v. Shevin, 407 U.S. 67,
86 (1972)). Application of the Due Process Clause requires a court to
engage in a two-stage analysis. A court “must first ask whether the
asserted individual interests are encompassed within the Fourteenth
Amendment’s protection of ‘life, liberty or property’; if protected
interests are implicated, [the court] then must decide what procedures
constitute ‘due process of law.’” Id. (quoting Ingraham v. Wright, 430
U.S. 651, 672 (1977)). But “[p]roperty interests protected by the Due

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Process Clause of the Fourteenth Amendment do not arise whenever a
person has only ‘an abstract need or desire for,’ or ‘unilateral
expectation of,’ a benefit.” Erdelyi v. O’Brien, 680 F.2d 61, 63 (9th Cir.
1982) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
“Rather, they arise from legitimate claim(s) of entitlement ... defined by
existing rules or understandings that stem from an independent source
such as state law.” Id. (citations and internal quotation marks
omitted).
In determining whether Haeker has a legitimate claim of
entitlement to a concealed-carry permit sufficient to establish a
property interest protected by the Due Process Clause, the Court turns
to state law. Under Montana law, it is generally illegal for a person to
carry a concealed weapon. MCA § 45-8-316. But there are numerous
exceptions, including one for “a person issued a permit under [MCA §]
45-8-321[.]” MCA § 45-8-317(g).
In light of MCA § 45-8-321(1), Montana is a so-called “‘shall-issue’
state in that it requires the local sheriff to issue a concealed weapons
permit when an applicant qualifies under the statute.” Van Der Hule v.

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Holder, 759 F.3d 1043, 1047 (9th Cir. 2014). Specifically, the statute
provides that “[a] county sheriff shall, within 60 days after the filing of
an application, issue a permit to carry a concealed weapon to the
applicant[,]” if the applicant meets certain basic requirements,
including that the applicant is U.S. citizen, is a Montana resident, and
has attained age 18 or older, and is not rendered ineligible under any of
the statute’s other provisions. MCA § 45-8-321(1)(a)-(g) (emphasis
added).
But, the Montana Supreme Court in Smith v. County of Missoula,
noted that the statute’s next subsection, MCA § 45-8-321(2), “grants the
sheriff discretion to deny an application for a concealed weapon permit
when the sheriff has reasonable cause to believe the applicant has a
mental disability or illness; or the applicant may be a threat to the
peace and good order of the community.” 992 P.2d 834, 838 (Mont.
1999). Because a sheriff has discretion under the statute to deny an
application for a concealed-carry permit, the supreme court in Smith
concluded that the sheriff had no legal duty to issue the applicant a
concealed-carry permit. Id. at 840.

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The case at hand involves Linder’s revocation of an already-issued
concealed-carry permit. MCA § 45-8-323 gives Linder discretion to
revoke a concealed-carry permit “if circumstances arise that would
require the sheriff to refuse to grant the permittee an original license.”
Thus, Linder had discretion under MCA § 45-8-323 to revoke Haeker’s
concealed-carry permit if Linder had “reasonable cause to believe [that
Haeker] . . . may be a threat to the peace and good order of the
community to the extent that [he] should not be allowed to carry a
concealed weapon.” MCA § 45-8-321(2).
Under the foregoing authority, and in light of Linder’s statutory
authority to exercise discretion in revoking a concealed-carry permit,
the Court concludes that Haeker did not have a legitimate claim of
entitlement to a concealed-carry permit under Montana law sufficient
to establish a property interest protected by the Due Process Clause.
As the above discussion demonstrates, Linder needed only “reasonable
cause to believe” that Haeker “may be a threat to the peace and good
order of the community” such that Haeker should not be permitted to
carry a concealed weapon for Linder to revoke Haeker’s permit to do so.

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This is not a heavy burden for a sheriff to bear. “Where state law gives
the issuing authority broad discretion to grant or deny license
applications in a closely regulated field, . . . applicants do not have a
property right in such licenses protected by the Fourteenth
Amendment.” Erdelyi, 680 F.2d at 63 (applying California law). The
broad discretion that Montana’s Legislature has bestowed upon
Montana sheriffs under the foregoing statutory scheme to revoke
concealed-carry permits is inconsistent with a concealed-carry permit
holder’s claim of entitlement to a property interest protected by the
Fourteenth Amendment’s Due Process Clause.
B.

Liberty Interest

“Although liberty is a broad and majestic term, it is not allinclusive.” Erdelyi, 680 F.2d at 63 (citation and internal quotation
marks omitted). Liberty does include, however, “the right to be free
from actions which impose a stigma or other disability that forecloses
one’s freedom to take advantage of other employment opportunities.”
Id. (citations and internal quotation marks omitted; alterations in cited
source).

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Here, Haeker has neither alleged in his Complaint nor argued in
response to Linder’s motion that he has suffered a stigma or other
disability that has interfered with or prevented an employment
opportunity. Rather, he only has argued that he believes it is necessary
to carry a concealed firearm, as opposed to an openly-carried firearm, in
his occupation as a landlord because his tenants include and have
included individuals who have been convicted of serious crimes. See
ECF No. 1 at ¶ 8; ECF No. 9 at 2 (“Shall I . . . go over [to confront a
tenant who moved her convicted felon boyfriend in without permission
and who is behind on rent] and open carry only to aggravate the
situation or get in a heated argument, with a violent nutcase without
any means of protection?”).
Under Ninth Circuit authority, this argument is not sufficient to
establish a liberty interest that warrants Fourteenth Amendment Due
Process Clause protection. In Erdelyi, the Ninth Circuit addressed
whether a police chief in California violated the due process right of an
employee of a licensed private investigator when he denied her
application for a license to carry a concealed weapon. 680 F.2d at 62.

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The court concluded that plaintiff did not have a liberty interest in
obtaining a concealed weapons license for two reasons:
First, it is undisputed that many people engage in the
occupations of private investigator and criminal defense
investigator without a concealed weapons license. Although
Erdelyi might not be able to pursue her profession in
precisely the way she would like, she has not been entirely,
or even substantially, excluded. Second, no stigma attached
to the denial of her application. Therefore, Erdelyi did not
have a liberty interest in obtaining a concealed weapons
license.
Id. at 63-64.
The same can be said in this case. Haeker has neither alleged nor
shown that he or any other landlord is precluded from engaging in their
occupation unless they have a concealed-carry permit. It may be true
that Haeker would prefer to carry a concealed weapon rather than
carry a weapon openly when performing his landlord duties, but he has
no constitutional right to pursue his occupation in exactly the way he
would like. Id. And, he has not alleged or argued that a stigma has
attached to the revocation of his concealed-carry permit nor could he as
Linder expressly notes that Haeker may carry a firearm openly. See
ECF No. 14 at 3. Thus, Haeker does not have a liberty interest in

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retaining his concealed-carry permit.
For all of the foregoing reasons, Haeker’s due process claim fails
and should be dismissed.
2.

Equal Protection

Haeker also claims that Linder denied him equal protection of the
laws by revoking his concealed carry permit. ECF No. 1 at ¶ 11. But
he has failed to allege sufficient facts to support such a claim.
As noted, the Fourteenth Amendment’s Equal Protection Clause
states that no State shall “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const., amend. XIV, § 1. The clause
“is essentially a direction that all persons similarly situated should be
treated alike.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.
2001) (citations omitted). “To state a claim under 42 U.S.C. § 1983 for
a violation of the Equal Protection Clause of the Fourteenth
Amendment a plaintiff must show that the defendants acted with an
intent or purpose to discriminate against the plaintiff based upon
membership in a protected class.” Id. (quoting Barren v. Harrington,
152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999)).

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Here, Haeker has wholly failed to allege sufficient facts that
would give rise to a cognizable equal protection claim. He states only
that revocation of his concealed-carry permit “without due process
violates [his] Fourteenth Amendment right to equal protection of the
law[.]” ECF No. 1 at ¶ 11. This is insufficient and, under United
States Supreme Court precedent, the lack of factual support for this
claim is fatal to his claim. See Iqbal, 556 U.S. at 678; Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Teixeira v. County
of Alameda, 822 F.3d 1047, 1052-53 (9th Cir. 2016). Haeker’s equal
protection claim, as currently pled, must be dismissed under Rule
12(b)(6). But, in light of his pro se status, the Court should afford
Haeker leave to amend his claim to state facts sufficient to support a
cognizable legal theory.
V.

Conclusion
For the foregoing reasons, IT IS RECOMMENDED that Linder’s

motion to dismiss (ECF No. 11) be GRANTED, as follows: (1) Haeker’s
claims under the Second Amendment (Count 2) and the Fourteenth
Amendment’s Due Process Clause (Count 1) should be dismissed with

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prejudice; and (2) Haeker’s claim under the Fourteenth Amendment’s
Equal Protection Clause should be dismissed, but Haeker should be
afforded leave to amend this claim to state facts sufficient to support a
cognizable legal theory, as discussed herein.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall
serve a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after service
hereof, or objection is waived.
DATED this 22nd day of July, 2016.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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