Bateman et al v. Perdue et al

Filing 84

ORDER granting #27 Motion to Dismiss; dismissing as moot #29 Motion to Dismiss; granting #32 Motion to Dismiss; dismissing as moot #62 Motion for Summary Judgment; dismissing as moot #65 Motion for Summary Judgment. Remaining before the court is plaintiffs' claim against the State Defendants. Signed by Senior District Judge Malcolm J. Howard on 3/31/2011. (Heath, D.)

Bateman et al v. Perdue et al

Doc. 84

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:10-CV-265-H

MICHAEL BATEMAN, VIRGIL GREEN, FORREST MINGES, JR., GRNC/FFE, INC., and SECOND AMENDMENT FOUNDATION, INC., Plaintiffs, ORDER

v.
BEVERLY PERDUE, REUBEN F. YOUNG, STOKES COUNTY, and CITY OF KING, Defendants.

This matter is before the court on motions to dismiss filed by defendant Stokes County [DE #27], defendant City of King [DE #32], and the State of North Carolina on behalf of defendants Perdue and Reuben F. Young [DE #29]. Appropriate

Beverly

responses and replies have been filed, and the time for further filings has expired. BACKGROUND At issue in this case or are North Carolina the statutory of

provisions firearms

restricting

authorizing

restriction

during declared states of
§

emergency.

North Carolina

General Statute

14-288.7 makes it a Class 1 misdemeanor "for

Dockets.Justia.com

any person to

transport

or possess off

his

own premises

any

dangerous weapon or substance in any area"

in which a state of

emergency has been declared by the Governor, a municipality or a county. A state of emergency is defined as

The condition that exists whenever, during times of public crisis, disaster, rioting, catastrophe, or similar public emergency, public safety authorities are unable to maintain pUblic order or afford adequate protection for lives or property, or whenever the occurrence of any such condition is imminent. N.C. Gen. Stat.
§

14-288.1(10).

Declarations

of

states

of

emergency may also contain "prohibitions and restrictions [u]pon the possession, transportation, sale, purchase, storage,

and use of dangerous weapons and substances."
§

N.C. Gen. Stat. also N.C. Gen.
§

14-288.12(b)
§

(municipal

declarations);

see

Stat.

14-288.13(b)

(county declarations); declarations). is

N.C.

Gen.

Stat. of

14-288.15(d) such

(gubernatorial or

Violation as as a a

any 2 3

prohibition if

restriction by the

punishable and

Class Class

misdemeanor

declared

Governor

misdemeanor if declared by a municipality or county. Plaintiffs filed this action seeking declaratory and

injunctive relief prohibiting the enforcement of restrictions. violate their

these firearm

Plaintiffs assert that these statutory provisions Second Amendment right to keep and bear arms.

Defendants each move to dismiss plaintiffs' to Rule 12 (b) (6)

complaint pursuant

for failure to state a claim upon which relief

2

can be

granted.

The

State of

North

Carolina

also

moves

to

dismiss for lack of subject matter jurisdiction.
COURT'S DISCUSSION I. Plaintiffs' Claim

Plaintiffs' injunctive allege that relief

sole

claim to

for 42

relief U.S.C.
§

is

for

permanent Plaintiffs

pursuant

1983.

North Carolina Gen. Stat. § 14-288.7, forbidding the carrying of firearms and ammunition during declared states of emergency, is unconstitutional, in that it forbids the exercise of Second Amendment rights, damaging plaintiffs in violation of 42 U.S.C. § 1983. (CompI. Stat.
§§

~

32.)

Additionally,

plaintiffs claim N.C. 14-288.14(a),

Gen. and

14-288.12(b) (4),

14-288.13(b),

14-288.15(d) are unconstitutional to the extent they enable government officials to prohibi t the purchase, sale, and possession of firearms and ammunition. . in that they forbid the exercise of Second Amendment rights, damaging plaintiffs in violation of 42 U.S.C. § 1983. (CompI.
II.
~

33.)

Standard of Review

A

federal

district

court

confronted

with

a

motion

to

dismiss for failure to state a claim should view the allegations of the complaint in the light most favorable to the plaintiff. See The Ibarra v. United States, 120 F.3d 472, 474 intent of Rule 12 (b) (6) is to test (4th Cir. 1997).

the sufficiency of a (4th

complaint.

Edwards v. City of Goldsboro, 178 F.3d 231, 243
3

cir. 1999). surrounding

A

Rule 12 (b) (6) motion" 'does not resolve contests facts, the merits Id. of a claim, or the

the

applicabili ty of defenses.'" Martin,

(quoting Republican Party v. "[O]nce a claim has

980 F.2d 943,952 (4th Cir. 1992)).

been stated adequately, of facts consistent

it may be supported by showing any set the allegations in the complaint."

with

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). "[A] complaint need not 'make a case' against a defendant or 'forecast evidence sufficient to prove an element' of the claim." Chao v. Rivendell Woods, Inc., 415 F.3d 342, 349 (4th Cir. 2005) (quoting Iodice v. 2002) ) . However, United States, 289 F.3d 270, 281 (4th Cir. the-

it must provide more than "an unadorned, Ashcroft v.

defendant-unlawfully-harmed-me accusation." 129 S. Ct. 1937, 1949 (2009).

Iqbal,

"To survive a motion to dismiss, accepted as on its

a complaint must contain sufficient factual matter, true, face.'" not to ·state Id. a claim to relief that is

plausible

(quoting Twombly, 550 U.S. at 570). as true legal conclusions

The court need as factual

accept

couched

allegations.

Twombly, 550 U.S. at 555.

III. Motions to Dismiss Stokes County and the City of King

The court first addresses the motions to dismiss filed by defendants Stokes County and the City of King. are not proper defendants to plaintiffs' be dismissed from the action.
4
§

They assert they

1983 claim and should

"[T]he touchstone of the

§

1983 action against a government

body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution [or laws of the United States]." of New York, 436 U.S. Monell v. Dep't of Social Services of City 658, 690 (1978). Absent "official

policy of some nature," a local governmental body is simply not liable under
§

1983.

Id.

(noting that

"official policy"

may

include governmental custom). In this case, plaintiffs challenge North Carolina statutes the restriction of firearms during

that restrict or authorize

declared states of emergency.

Under North Carolina law, Stokes

County and the City of King are authorized to declare states of emergency, as well as to impose restrictions of firearms during declared states of emergency. -288.13. The existence of See N.C. Gen. Stat. this statutory
§

14-288.12, is
§

authority

not

enough, however, to state a claim for relief pursuant to

1983.

To impose liability against either Stokes County or the City of King, to there must have been some "deliberate action attributable [local governmental body]" that is the "moving force" Bd. of Because

the

behind a deprivation of the plaintiffs' County Comm'rs v. Brown, 520 U.S. 397,

federal rights. 400 (1997).

plaintiffs are challenging only the state statutes and not any ordinance, regulation, policy or custom of either of these

5

governmental fails.
IV.

bodies,

plaintiffs'

§

1983

claim

against

them

Motion to Dismiss the State Defendants

Also before the court is a motion to dismiss filed by the State of North Carolina on behalf of defendants Beverly Perdue, the Governor of North Carolina, and Reuben
F.

Young,

the

Secretary of North Carolina's Department of Crime Control and Public Safety (collectively referred to as "the State

Defendants") to dismiss,

Since the filing of the State Defendants' motion the parties have filed cross motions for summary

judgment (See Plfs.' Mot. Summ. J. [DE #52].) In their motion for

[DE #44]; Dfs.' Mot. Summ. J. summary judgment, the State

Defendants incorporate by reference the arguments raised in the brief supporting their motion to dismiss, as well as their reply brief. Plaintiffs (Dfs.' have Brief Supp. to Mot. the Summ. State
J.

[DE

#53]

at

2.)

responded

Defendants'

summary

judgment motion, also referring to their previously filed brief opposing the State Defendants' motion to dismiss. In light of State Defendants' these circumstances, the court construes the as a motion to The court

motion for

summary judgment

dismiss or, in the alternative, for summary judgment.

will rule on the parties' summary judgment motions in due course and in so doing will consider the briefs previously submitted in support and opposition of the
6

State

Defendants'

motion

to

dismiss,

as well as the parties'

summary judgment briefs. [DE #29] is

The

State Defendants' moot.

motion to dismiss

DISMISSED as

CONCLUSION

For the foregoing reasons, defendant Stokes County [DE #27] #32] are GRANTED.

the motions to dismiss filed by and defendant City of King [DE

The following motions are dismissed as moot:

the motion for summary judgment filed by defendant Stokes County [DE #65]; the motion for [DE #62]; [DE summary judgment filed by defendant

City of King State

and the motion to dismiss filed by the #29]. Remaining before the court is

Defendants

plaintiffs' claim against the State Defendants. This ~day of March 2011.
rr

~~'&
MALCOLM . HOWARD

Senior United States District Judge

At Greenville, NC #31

7