McNeill III v. Lynch, et al.

Filing 32

ORDER denying 22 Motion for Preliminary Injunction. Signed by US District Judge Terrence W. Boyle on 5/23/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-832-BO
WARREN C. MCNEILL, III,

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Plaintiff,
V.

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LORETTA E . .LYNCH, in her Official
Capacity as United States Attorney
General, and ROY COOPER, in his
Official Capacity as Attorney General of
North Carolina,
Defendants.

ORDER

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This cause comes before the Court on plaintiff's motion for preliminary injunction. [DE
22]. The matters have been fully briefed and are ripe for disposition. A hearing was held before
the undersigned on January 24, 2017 in Raleigh, North Carolina. For the reasons discussed
below, plaintiff's motion is denied.
BACKGROUND
In 1977, plaintiff was convicted for a nonviolent drug felony in the Eastern Districf of
North Carolina. In 1980, after being released from custody and completing his probation, a North
Carolina state judge ordered that all of plaintiff's "rights, privileges, and immunities of
citizenship be[ ... ] restored" pursuant to N.C. Gen. Stat. § 13-1. In 1984, the Bureau of Alcohol,
Tobacco and Firearms ("ATF") granted plaintiff's application for relief from federal firearms
and explosives disabilities pursuant to 18 U.S.C. §§ 925(c) and 845(b).
In 1995, the North Carolina General Assembly amended the Felony Firearms Act, N.C.
Gen. Stat. § 14-415 .1, to prohibit possession of certain firearms by all persons convicted of a
felony. Act of July 26, 1995, ch. 487, sec. 3, 1995 N.C. Sess. Laws 1417-18. The statute

provided that, "it shall be unlawful for any person who has been convicted of a felony to
purchase, own, possess, or have in his custody, care, or control any handgun" and that prior
convictions resulting in disentitlement include, "[v]iolations of criminal laws of other states or of
the United States that occur before, on, or after December 1, 1995, and that are substantially
similar to ... [felonies in North Carolina] which are punishable where committed by
imprisonment for a term exceeding one year" Ch. 487, sec. 3, 1995 N.C. Sess. Laws 1417-18. An
exclusion existed under this version of the law for felons to possess firearms within their own
home. In 2004, the legislature again modified N.C. Gen. Stat.§ 14-415.1 to expand the
disentitlement to cover all firearms and also remove the exclusion for home possession. 2004
N.C. Sess. Laws, ch. 186, sec. 14.1.
Around May of 2016, plaintiff attempted to purchase a firearm from a federally licensed
firearms dealer. After a background check through the Federal Bureau oflnvestigation's
National Instant Criminal Background Check System ("NICS") showed that plaintiff was
disentitled to possession under North Carolina Felony Firearms Act, plaintiffs purchase was
denied. Plaintiff immediately filed an appeal of the NICS' decision which was denied by letter
which stated that plaintiff is a "prohibited person," who may not possess a firearm under North
Carolina law.
On October 3, 2016, plaintiff filed a complaint alleging claims against North Carolina
Attorney General, Roy Cooper ("defendant Cooper") and United States Attorney General,
Loretta Lynch ("defendant Lynch"), under 18 U.S.C. § 925A, the Second Amendment of the
United States Constitution, 42 U.S.C. § 1983, and the Declaratory Judgment Act. [DE 1].
Plaintiff argues the Felony Firearms Act does not apply to him because ATF relieved plaintiff
from his firearms disabilities under federal law. Id. Plaintiff also argues that, under the Felony

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Firearms Act, all plaintiff must do is show that his rights could be restored under North Carolina
law, but that he need not actually go through the state restoration process. Id Plaintiff seeks
declaratory relief, injunctive relief, and attorneys' fees. Id. at 9-10.
Defendants Cooper and Lynch each filed motions to dismiss plaintiffs complaint. [DE
14, 17]. Plaintiff filed corresponding responses, [DE 20, 21], to which defendants replied, [DE
26, 27]. On December 12, 2016, plaintiff filed a motion for preliminary injunction, [DE 22], to
which defendant Cooper responded, [DE 28]. Plaintiff, in his preliminary injunction motion,
seeks an order directing the North Carolina Attorney General to "correct the erroneous
information provided to NICS." [DE 22 at 2].
DISCUSSION
"A preliminary injunction is an extraordinary and drastic remedy." Munafv. Geren, 553
U.S. 674, 689 (2008) (quotation and citation omitted). A movant must make a clear showing of
each of four elements before a preliminary injunction may issue: (1) that he is likely to succeed
on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief,
(3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.
Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008); see also Real Truth About Obama,
Inc. v. Fed. Election Comm 'n, 575 F.3d 342, 347 (4th Cir. 2009).
The ordinary use of a preliminary injunction is for the purpose of maintaining the status
quo until the matter before the Court can be resolved. Meiselman v. Paramount Film Distributing
Corp., 180 F.2d 94, 97 (4th Cir. 1950). "Mandatory preliminary injunctions do not preserve the
status quo and normally should be granted only in those circumstances when the exigencies of
the situation demand such relief." Wetzel v. Edwards, 635 F. 2d 283, 286 (4th Cir. 1980). For
that reason, the burden for one seeking a mandatory injunction is higher. Id.; see also In re

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Microsoft Corp. Antitrust Litig., 333 F. 3d 517, 525 (4th Cir. 2003). Here, because the relief
plaintiff seeks in his preliminary injunction is that which would be granted should he prevail in
this lawsuit, plaintiffs motion is properly viewed as one seeking a mandatory injunction.
Therefore, plaintiffs motion can be granted only if it meets the stringent burden discussed
above.
Plaintiff has failed to meet his burden to show that a preliminary injunction is merited in
this matter. First, plaintiff has not demonstrated a likelihood of success on the merits because it is
likely that the matter is not yet ripe for disposition. A case is fit for judicial decision when the
issues are purely legal and when the action in controversy is final and not dependent on future
uncertainties. Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002). Here, North Carolina's Felony
Firearm Act authorizes the restoration of firearms rights to felons disenfranchised "after a
hearing in court if the court determines that the petitioner meets the criteria set out in this section
and is not otherwise disqualified to have that right restored." N.C. Gen. Stat. § 14-415.4(c). The
issue plaintiff seeks to have adjudicated, his right to possess a firearm, is not final because
plaintiff has declined to avail himself of this state process that, if successful, will grant him the
relief he seeks. Therefore, because this uncertainty likely means that the matter is not ripe,
plaintiff has failed to demonstrate a likelihood of success on the merits.
Plaintiff has also failed to demonstrate that he is likely to suffer irreparable harm absent
the granting of injunctive relief. The Supreme Court has recognized that felons do not share the
same entitlement to Second Amendment rights as law abiding citizens, see District of Columbia

v. Heller, 554 U.S. 570, 627 (2008), which is contrary to plaintiffs argument that he suffers an
irreparable harm as a result of his current disenfranchisement. Additionally, plaintiff has

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represented that he is not currently in possession of any firearms, [DE 6 at~ 37], and therefore
plaintiff is not in any immediate danger of criminal prosecution under North Carolina law.
Finally, plaintiff has failed to show that the balance of equities tips in his favor or that an
injunction is in the public interest. This is primarily because plaintiff has not shown exceptional
need to deviate from the status quo at this time, and nor has he shown that there is a public
interest in upsetting North Carolina's statutory scheme for reinstating firearms rights or the
state's need to regulate the ownership of firearms in the manner it has adopted that necessitates
this Court's· action at this time.
For these reasons, plaintiff has failed to show that a preliminary injunction at this time is
merited, and plaintiffs motion will be denied.
CONCLUSION
For the foregoing reasons, plaintiffs motion for preliminary injunction [DE 22] is
DENIED.

SO ORDERED, this

rbJ_ day of May, 2017.

:x::~~~
UNITED STATES DISTRICT JUDGE

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