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
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