Veasey et al v. Wilkins, Jr.
Filing
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ORDER GRANTING DE 43 MOTION to Dismiss by Roy Cooper, Pat McCrory and Frank L. Perry and DENYING DE 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION to Dismiss pursuant to Rule 12(b)(7) and 36 Motion to Dismiss for Failure to State a Claim by Brindell B. Wilkins, Jr. Signed by District Judge Terrence W. Boyle on 7/29/2015. (Romine, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:14-CV-369-BO
FELICITY M. VEASEY and SECOND
AMENDMENT FOUNDATION, INC.,
Plaintiffs,
V.
BRINDELL B. WILKINS, JR. in his official
Capacity as Sheriff of Granville County, North
Carolina, et al.
Defendants.
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ORDER
This matter is before the Court on defendants' respective motions to dismiss, which are
all ripe for adjudication. [DE 14, 36, 43]. For the following reasons, the motion to dismiss filed
by defendants Pat McCrory, Roy Cooper, and FrankL. Perry [DE 43] is GRANTED, and the
motions to dismiss filed by defendant Brindell B. Wilkins, Jr. [DE 14, 36] are DENIED.
BACKGROUND
Plaintiffs Felicity Veasey and the Second Amendment Foundation filed suit in this Court
against the Sheriff of Granville County, North Carolina (the Sheriff), and Governor Pat
McCrory, Roy Cooper, the Attorney General, and Frank Perry, the Secretary of the Department
ofPublic Safety (collectively, the state defendants), via 42 U.S.C. § 1983. Ms. Veasey is an
Australian citizen who is a legal permanent resident of the United States currently residing in
Granville County, North Carolina. The Second Amendment Foundation is a non-profit
organization with members in North Carolina dedicated to, inter alia, legal action focusing on
the Constitutional right to own and possess firearms. Plaintiffs allege that North Carolina
General Statute § 14 .415-12-which requires a person to demonstrate American citizenship
prior to obtaining a concealed carry permit-violates the Second and Fourteenth Amendments to
the United States Constitution. In North Carolina, each county's Sheriff's Office is the issuing
authority for concealed carry permits within its county.
In April2015, the Court granted plaintiff's motion for a preliminary injunction and
preliminarily enjoined defendants from enforcing the United States citizenship requirement of
NCGS 14-415.12(a)(l) against lawful permanent residents and from enforcing any other
sections of the North Carolina general Statutes which restrict the firearm rights and privileges of
lawful permanent residents based on citizenship. Now, the state defendants move to dismiss
pursuant to Rules 12(b)(1), (2), and (6), while the Sheriff moves to dismiss pursuant to Rules
12(b)(6) and (7) ofthe Federal Rules of Civil Procedure.
DISCUSSION
1. State Defendants' Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(l) authorizes dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642,
647-50 (4th Cir. 1999). When a facial challenge to subject matter jurisdiction is raised, "the
plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule
12(b)(6) consideration." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). The facts alleged by the plaintiff in the
complaint are then taken as true, "and the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction." !d. The Court can consider evidence
outside the pleadings without converting the motion into one for summary judgment. See, e.g.,
Evans, 166 F.3d at 647.
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States, state agencies, and state employees sued in their official capacities are immune
from suit in federal court. Will v. Mich. Dep 't ofState Police, 491 U.S. 58, 70-71 (1989). The
Eleventh Amendment, however, does permit suits for prospective injunctive relief against state
officials acting in violation of federal law. Ex parte Young, 209 U.S. 123 (1908). In regards to
"making an officer of the State a party defendant in a suit to enjoin the enforcement of an act
alleged to be unconstitutional it is plain that such officer must have some connection with the
enforcement ofthe act .... " Lytle v. Griffith, 240 F.3d 404,409 (4th Cir. 2001) (quoting Ex
parte Young, 209 U.S. at 157). A state official's "[g]eneral authority to enforce the laws of the
state is not sufficient to make government officials the proper parties to litigation challenging the
law." Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996)
(citation omitted); see also Mendez v. Heller, 530 F.2d 457,460 (2d Cir. 1976); Shell Oil Co. v.
Noel, 608 F.2d 208, 2011 (1st Cir. 1979). In sum, there must be some specific relationship
between the state actors sued and the enforcement of the statute in question.
Here, plaintiffs have not alleged that the state defendants had any involvement in the
concealed handgun permitting process. This is unsurprising, given that all duties and
responsibilities for determining the eligibility of an applicant for a concealed handgun permit fall
to the county sheriffs under North Carolina law. See N.C. Gen. Stat.§§ 1-415.11; 14-415.12(a);
14-415.13; 14-415.15(a). Moreover, sheriffs in North Carolina are separate constitutional
officers not subject to the authority ofthe Governor, Attorney General, or Secretary of the
Department of Public Safety. N.C. Const. art. VII, § 2; see also Boyd v. Robeson County, 621
S.E.2d 1, 11 (N.C. Ct. App. 2005) ("The State has no authority to veto or approve a sheriff's
action within that county."). Thus, none of the named state defendants has any authority to order
a Sheriff to take any action in the context of a concealed carry application. Plaintiff has neither
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alleged nor argued that the state defendants have any specific connection to the concealed carry
permitting process, but instead relies on their general obligation to defend the constitutionality of
North Carolina's statutes. This general assertion of authority is insufficient to overcome Eleventh
Amendment immunity, thus plaintiff's claims against the state defendants must be dismissed
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Because the Court lacks
subject matter jurisdiction, it declines to consider the remainder of defendants' arguments.
2. SheriffBrindell B. Wilkins's Motion to Dismiss
Sheriff Wilkins moves to dismiss the amended complaint pursuant to rule 12(b)(6) ofthe
Federal Rules of Civil Procedure. [DE 36]. A Rule 12(b)(6) motion to dismiss for failure to state
a claim for which relief can be granted challenges the legal sufficiency of a plaintiff's complaint.
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). When ruling on the motion, the court
"must accept as true all ofthe factual allegations contained in the complaint." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). Although complete and detailed factual allegations are not required, "a plaintiff's
obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and
conclusions ... ."Twombly, 550 U.S. at 555 (citations omitted). "Threadbare recitals ofthe
elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Similarly, a court need not
accept as true a plaintiff's "unwarranted inferences, unreasonable conclusions, or arguments." E.
Shore Mkts., Inc., v. JD. Assocs. Ltd., 213 F.3d 175, 180 (4th Cir. 2000).
Interestingly, at a hearing on the motion for preliminary injunction, the Sheriff admitted
that the law at issue in this case was unconstitutional. This is unsurprising given other district
court rulings on this issue. See, e.g., Fletcher v. Haas, 851 F. Supp. 2d 287, 301 (D.Mass. 2012);
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Foutoudis v. City and County ofHonolulu, No. 1400333 JMS-RLP, 2014 WL 4662385 (D.Haw.
Sept. 17, 2014); Washington v. Ibrahim, 269 P.3d 292, 296-97 (Wash. App. Div. 3, 2011).
Although he concedes that the law is unconstitutional, the Sheriff argues that he simply
administers and enforces North Carolina law, therefore he cannot be liable under section 1983
for violation of plaintiffs' constitutional rights. The Sheriff correctly points out that a local
government official can only be sued under § 1983 when he is acting pursuant to the local
government's "policy or custom." Monell v. Dep't ofSoc. Servs., 436 U.S. 658 (1978).
Though the Sheriff is, in name, a county official, such officials are sometimes considered
state agents for purposes of a specific case where they are simply enforcing state law. See, e.g,
Bostic v. Schaefer, 760 F.3d 352, 371 (4th Cir. 2014) (holding that the clerk was the proper
defendant through which to sue the state of Virginia under Ex parte Young where he was
responsible for enforcing Virginia's same-sex marriage ban); Bethesda Lutheran Homes and
Servs., Inc. v. Leean, 154 F.3d 716, 718 (8th Cir. 1998) (finding that a state law, not a
municipality, is responsible for a party's injury where a municipality is forced to follow an
unconstitutional state law); Echnols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990) ("[W]hen a
state statute directs the actions of an official, as here, the officer, be he state or local, is acting as
a state official."). That is precisely the case here.
In North Carolina, the county sheriffs are responsible for administering North Carolina
statutes governing concealed carry permits. N.C. Gen. Stat§ 14-415.10 et seq.. Accordingly, the
Sheriff is responsible for processing and issuing concealed carry permit applications in Granville
County, North Carolina. As he is the only person who has the authority to issue or deny
concealed carry license, he is the only person who could be directly responsible for causing any
constitutional injury to plaintiffs. The Court is unaware of any other person that plaintiffs could
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sue in order to remedy the alleged constitutional harm at issue in this case. Because the Sheriff is
the party who would be directly responsible for a constitutional violation, should the Court find
that there is one, he is a proper defendant. As the Sheriff points out, however, he is merely
following state law in applying the citizenship requirement to the concealed carry permitting
process. Accordingly, the Court will consider him a state agent for the purposes of this case.
Should the Sheriff be found to have violated plaintiffs' constitutional rights, ariy fees awarded
would be assessed against the Sheriff in his official capacity, to be paid by the State of North
Carolina.
As the Court has determined that the Sheriff is a state agent for the purposes of this case,
it need not decide whether Monell's "policy or custom" requirement applies. Moreover, because
plaintiffs seek only prospective injunctive relief and a declaratory judgment, the Eleventh
Amendment does not bar the suit. Ex Parte Young, 209 U.S. 123 (1908); DeBauche v. Trani, 191
F.3d 499, 505 (4th Cir. 1999) (citing Green v. Mansour, 4 74 U.S. 64, 68 (1985). Accordingly,
the Sheriffs motion to dismiss is denied.
CONCLUSION
For the foregoing reasons, the State defendants' motion to dismiss is GRANTED, and the
Sheriffs motion to dismiss is DENIED.
SO ORDERED, this
_l_fday of July, 2015.
~M¥T
NCE W. BOYLE
UNITED STATES DISTRICT JUDGE
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