Daly et al v. Neil et al

Filing 34

ORDER granting 19 21 Motions to Dismiss. Signed by Judge Michael R. Barrett on 2/16/21. (ba)

Case: 1:18-cv-00346-MRB Doc #: 34 Filed: 02/16/21 Page: 1 of 7 PAGEID #: 209

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Jeff Daly, et al.,
Plaintiffs,

Case No. 1:18cv346

v.

Judge Michael R. Barrett

Jim Neil, et al.,
Defendants.
OPINION AND ORDER
This matter remains before the Court on the Motions to Dismiss filed by Defendant
Charmaine McGuffey, 1 the Sheriff of Hamilton County, Ohio ("Hamilton County"),
Defendant Joseph Deters, the Prosecutor for Hamilton County, and Defendant Lieutenant
Matt Hamilton, the Commander for the Ohio State Highway Patrol's Post in Hamilton
County. (Docs. 19, 21).
I.

BACKGROUND
Ohio residents can apply for a concealed handgun license ("CHL").

Ohio Rev. Code § 2923.125. To apply for a CHL, an Ohio resident must submit all of the
following items to the appropriate sheriff's office: a completed application form; a nonrefundable $67.00 license fee; 2 a color photograph of the applicant; a certificate showing

1

Charmaine McGuffey succeeded Jim Neil as the Sheriff of Hamilton County after the parties completed
the requested supplemental briefing regarding the pending Motions to Dismiss. See Fed. R. Civ. P. 25(d).
2

Each county in Ohio must establish a sheriff's CHL issuance expense fund in which each sheriff must
deposit all fees paid by applicants for the issuance or renewal of a CHL. Ohio Rev. Code § 311.42(A). "The
county shall distribute all fees deposited into the fund except forty dollars of each fee paid by an applicant
under division (B) of section 2923.125 of the Revised Code, . . . to the attorney general to be used to pay
the cost of background checks . . . and to cover administrative costs associated with issuing the license."
Id. Each sheriff, with the approval of their respective board of county commissioners, may expend any
county portion of the CHL fees deposited for any of the following: costs incurred by the sheriff in connection

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that the applicant has completed an approved firearms safety and training course; a
certification that the applicant read the pamphlet prepared by the Ohio peace officer
training commission; and a set of fingerprints. Id. § 2923.125(B)(1)-(5). Ohio waives the
CHL fee if the applicant is an active or reserve member of the armed forces of the United
States; is retired or was honorably discharged from military service in the active or reserve
armed forces of the United States; or is a retired peace officer. Id. § 2923.125(B)(1)(c). 3
Plaintiff Jarvis lives in Hamilton County, owns more than one firearm, and is not
disqualified from possessing firearms under 18 U.S.C. § 922(g) or Ohio Revised Code
§ 2923.13. (Doc. 3 ¶¶ 10, 12, 35). He is indigent, disabled, and uses a wheelchair. (Id.
¶ 11). He alleges that robberies and other acts of violence have taken place in his
neighborhood and, more than once, criminals have thrown him from his wheelchair and
assaulted him. Id. On May 16, 2018, Plaintiff Jarvis attempted to apply for a CHL at one
of the Hamilton County Sherriff’s offices, but he refused to pay the license fee. (Id. ¶ 27).
The Sherriff’s representative informed Plaintiff Jarvis that the license fee could not be
waived unless he was an active or retired law enforcement officer. Id. Plaintiff Jarvis is
not an active or retired law enforcement officer, did not pay the fee, and did not receive a
CHL. See id. Plaintiff Jarvis alleges that he would obtain a CHL but for the license fee
found in Ohio Revised Code § 2923.125(B)(1). (Id. ¶ 13).
The Hamilton County Sherriff is statutorily charged with, among other duties,

with performing any administrative functions related to the issuance of CHLs; ammunition and firearms to
be used by the sheriff and the sheriff's employees; or any costs incurred in constructing, maintaining, or
renovating a shooting range to be used by the sheriff or the sheriff's employees. Id. § 311.42(B).
3 Ohio also waives the CHL fee if the applicant is a retired natural resources law enforcement staff officer;
a retired forest-fire investigator; a retired wildlife officer; a retired natural resources officer of the department
of natural resources; or a retired federal law enforcement officer who, prior to retirement, was authorized to
carry a firearm in the course of duty, unless the retired peace officer, person, or federal law enforcement
officer retired as the result of a mental disability. Id.

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processing CHL applications and enforcing Ohio laws. (Id. ¶¶ 17-18). The Hamilton
County Prosecutor, among other responsibilities, prosecutes crimes committed in and
charged by law enforcement officers in Hamilton County. (Id. ¶¶ 21-22). The Hamilton
County post of the Ohio State Highway Patrol, among other obligations, enforces Ohio
laws. (Id. ¶¶ 19-20). 4
Plaintiff Jarvis' remaining claims, 5 brought against Defendants in their official
capacities and

pursuant to 42 U.S.C. § 1983,

are that

Ohio

Revised

Code

§ 2923.125(B)(1) violates his Second and Fourteenth Amendment rights, facially and as
applied. (Id. ¶¶ 40-55). He argues that Section 2923.125(B)(1)'s imposition of a license
fee is not narrowly tailored to meet a compelling state interest or, alternatively, does not
further a significant, substantial, or important objective, and there is not a reasonable fit
between Section 2923.125(B)(1) and the asserted objective for that Section, and that
Ohio may not impose a charge for the enjoyment of one's Second Amendment rights. (Id.
¶¶ 45-46). He also argues that Ohio's waiver of Section § 2923.125(B)(1)'s license fee for
certain groups, but not indigent persons like himself, violates the Fourteenth
Amendment's Equal Protection and Due Process Clauses. (Id. ¶ 52). He seeks
declaratory and injunctive relief. (Id. ¶¶ 56-57); (Id. n.1 PageID 33).
The Court requested that the parties brief the issue of Plaintiff Jarvis' standing to
challenge Ohio Revised Code § 2923.125(B)(1)(a)'s imposition of a license fee before it

4

Plaintiff Jarvis did not name the Ohio Attorney General as a party, but served him pursuant to Federal
Rule of Civil Procedure 5.1’s requirement that a party filing a pleading that questions the constitutionality of
a state statute must serve notice on the state attorney general. (Id. ¶ 23); see FED. R. CIV. P. 5.1(a)(2).
5 In a prior Opinion and Order, the Court held that Plaintiff Jeff Daly and Plaintiff Jarvis lack standing and
may not bring a pre-enforcement challenge with respect to their claims regarding the constitutionality of
Ohio Revised Code § 2923.16(A), (B), and (C) consistent with Article III and dismissed those claims. (Doc.
29). The Court also dismissed Plaintiff Daly's constitutional claims regarding Ohio Revised Code
§ 2923.125(B)(1) as moot. Id. Plaintiff Daly has no remaining claims in this matter.

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ruled on the Motions to Dismiss. (Doc. 29). Plaintiff Jarvis responds that he has standing
because he pleaded that he is indigent, would obtain a CHL but for the license fee found
in Section 2923.125(B)(1), and the Sherriff's office enforced the law against him in May
2018. (Doc. 30). In an attached declaration, he adds that he is "unable to pay for the fee
for the concealed carry license" and "unable to pay for the fee for the class for the
concealed carry license." (Doc. 30-1).
Defendant Hamilton responds that Plaintiff Jarvis lacks standing, as Plaintiff does
not allege an injury from Hamilton. (Doc. 31). Defendant Hamilton contends that Plaintiff
does not allege that the Ohio State Highway Patrol has any involvement in the
enforcement of Section 2923.125(B)(1). Id. Defendants McGuffey and Deters respond
that Plaintiff Jarvis lacks standing, as Plaintiff does not have a concrete and particularized
injury. (Doc. 32). They assert that, although Plaintiff alleges that he is indigent, he does
not refute their observations that he has the financial wherewithal to own multiple
firearms, and presumably ammunition for those firearms, and pay the filing fee in this
matter, and admits that he has not complied with Section 2923.125(B)(3). Id. Although
the Court permitted Plaintiff to file a reply, he did not file one. See (Doc. 29).
II.

ANALYSIS
"Standing stems from the Constitution's mandate that federal courts may decide

only 'Cases' or 'Controversies.'" Vonderhaar v. Vill. of Evendale, Ohio, 906 F.3d 397, 40001 (6th Cir. 2018) (citing U.S. CONST. art. III, § 2, cl. 1). Article III standing requires a
plaintiff to establish three things: a concrete and particularized injury, actual or imminent
("injury-in-fact"), traceable to the defendant ("causation"), and proof that a favorable
outcome would redress the harm ("redressability"). Id. (citing Lujan v. Defs. of Wildlife,

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504 U.S. 555, 560 (1992)).
The Court must determine whether Plaintiff Jarvis has standing to challenge
Section 2923.125(B)(1) before it can address the merits of his constitutional claims. See
City of Heath, Ohio v. Ashland Oil, Inc., 834 F. Supp. 971, 975 (S.D. Ohio 1993); accord
Moir v. Greater Cleveland Trans. Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Bell v.
Hood, 327 U.S. 678, 682 (1946) ("The Court will consider the 12(b)(1) motion first, as the
12(b)(6) challenge becomes moot if subject matter jurisdiction is lacking.")). In doing so,
the Court can consider matters outside the pleadings. See Cartwright v. Garner, 751 F.3d
752, 759 (6th Cir. 2014) (explaining that, in a challenge to the factual existence of subject
matter jurisdiction, the Court “has broad discretion with respect to what evidence to
consider in deciding whether subject matter jurisdiction exists, including evidence outside
of the pleadings.").
Plaintiff Jarvis does not allege that Defendants Hamilton and Deters, or anyone
acting under their authority, play a role in the enforcement of Section 2923.125(B)(1).
(Doc. 3 ¶¶ 17-22); (Doc. 30). He alleges that the Hamilton County Sherriff, and those
acting under the Sherriff's authority, are charged with processing CHL applications,
including the imposition of the license fee, and enforce Section 2923.125(B)(1) by
requiring that the license fee be paid before accepting CHL applications. (Doc. 3 ¶¶ 1718); (Doc. 30); accord (Doc. 24 PageID 113) (Plaintiffs' Response in Opposition to
Defendant Hamilton's Motion to Dismiss) ("Lt. Hamilton argues, and we agree, that he
has no enforcement authority over the concealed carry fee issue. It is the Sheriff who
mandates the fee for the license under the statute."). Plaintiff Jarvis' claims regarding
Section 2923.125(B)(1) derive from allegations about Defendant McGuffey's actions only.

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See, e.g., (Doc. 3 ¶¶ 17-18, 27). Accordingly, Plaintiff Jarvis lacks standing to bring his
claims regarding Section 2923.125(B)(1) against Defendants Hamilton and Deters, as
Plaintiff does not allege any injury that is fairly traceable to those Defendants' conduct.
See Lujan, 504 U.S. at 560; Vonderhaar, 906 F.3d at 401.
Plaintiff Jarvis' Amended Complaint alleges that he is indigent; he attempted to
apply for a CHL without paying the license fee, but the Sherriff's representative did not
waive the fee; and he would obtain a CHL but for the requirement of the license fee.
(Doc. 3 ¶¶ 11-13, 27). In his declaration attached to his supplemental brief, he states that
he is "unable to pay for the fee for the concealed carry license" and "unable to pay for the
fee for the class for the concealed carry license." (Doc. 30-1). The Amended Complaint,
however, does not mention or challenge Ohio Revised Code § 2923.125(B)(3)'s
requirement that an Ohio resident applying for a CHL submit a certificate showing that he
has completed an approved firearms safety and training course. See (Doc. 3). So, even
assuming without deciding that Section 2923.125(B)(1)'s license fee requirement is
unconstitutional, 6 Plaintiff Jarvis concedes that he still would not be able to obtain a CHL,
as he has not completed an approved firearms safety and training course, and he does
not challenge Section 2923.125(B)(3). The Court thus finds that Plaintiff Jarvis does not
have a sufficiently particularized injury, lacks standing, and may not challenge Ohio
Revised Code § 2923.125(B)(1) consistent with Article III against Defendant McGuffey.
See Lujan, 504 U.S. at 560; Vonderhaar, 906 F.3d at 401.

6

And, to be clear, the Court does not reach that question.

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III.

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendants’ Motions to

Dismiss (Docs. 19, 21) are GRANTED. This matter is CLOSED and TERMINATED from
the active docket of this Court.
IT IS SO ORDERED.

_/s Michael R. Barrett________
Michael R. Barrett, Judge
United States District Court

7