West Virginia Citizens Defense League, Inc. et al v. City of Charleston et al
Filing
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MEMORANDUM OPINION AND ORDER directing that the plaintiffs file their briefs on the matter no later than 7/14/2011; the Charleston defendants, the Dunbar defendants, and the South Charleston defendants file their consolidated response to the plaintiffs' brief by 7/28/2011; and the plaintiffs are given leave to reply if they so desire by 8/10/2011. Signed by Judge John T. Copenhaver, Jr. on 7/1/2011. (cc: attys; any unrepresented parties) (cbo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA CITIZENS DEFENSE LEAGUE, INC.,
a West Virginia nonprofit corporation, and
KEITH T. MORGAN and
ELIZABETH L. MORGAN and
JEREOMY W. SCHULZ and
BENJAMIN L. ELLIS and
MASADA ENTERPRISES LLC,
a West Virginia limited liability company,
Plaintiffs,
v.
Civil Action No. 2:11-0048
CITY OF CHARLESTON,
a West Virginia municipal corporation, and
DANNY JONES,
personally and in his official capacity
as the Mayor of the City of Charleston, and
BRENT WEBSTER,
personally and in his official capacity
as the Chief of Police of the City of Charleston, and
CITY OF SOUTH CHARLESTON,
a West Virginia municipal corporation, and
FRANK A. MULLENS, JR.,
in his official capacity as the
Mayor of the City of South Charleston, and
BRAD L. RINEHART,
in his official capacity as the
Chief of Police of the City of South Charleston, and
CITY OF DUNBAR,
a West Virginia municipal corporation, and
JACK YEAGER,
in his official capacity as the
Mayor of the City of Dunbar, and
EARL WHITTINGTON,
in his official capacity as the
Chief of Police of the City of Dunbar,
Defendants,
MEMORANDUM OPINION AND ORDER
Pending are (1) the motion to dismiss filed March 28,
2011, by defendant City of Charleston, along with its Mayor Danny
Jones and Chief of Police Brent Webster ("Charleston
defendants"), (2) the motion to dismiss filed April 15, 2011, by
defendant City of Dunbar, along with its Mayor Jack Yeager and
Chief of Police Earl Whittington (“Dunbar defendants”), and (3)
the motion to dismiss filed April 15, 2011, by defendant City of
South Charleston, along with its Mayor Frank A. Mullens, Jr., and
Chief of Police Brad L. Rinehart (“South Charleston defendants”).
On May 16, 2011, the court received the final brief respecting
these motions, namely, the reply by the Charleston defendants
relating to their motion to dismiss.
I.
Our court of appeals has observed that “Pullman
abstention . . . is appropriate where there are unsettled
questions of state law that may dispose of the case and avoid the
need for deciding the [federal] constitutional question.”
Meredith v. Talbot County, 828 F.2d 228, 231 (4th Cir. 1987);
Virginia Office for Protection and Advocacy v. Stewart, 131 S.
Ct. 1632, 1644 (2011) (Kennedy, J., concurring) (“Pullman
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recognizes the importance of state sovereignty by limiting
federal judicial intervention in state affairs to cases where
intervention is necessary.
If an open question of state-law
would resolve a dispute, then federal courts may wait for the
resolution of the state-law issue before adjudicating the
merits.”).
In this action, plaintiffs challenge certain municipal
firearm restrictions on the grounds that, inter alia, they
violate the Second Amendment to the United States Constitution,
Article III, section 22 of the West Virginia Constitution, and
state law.
Pending in the United States District Court for the
Northern District of West Virginia is West Virginia Citizens
Defense League, Inc. v. City of Martinsburg, No. 3:11-0005 (N.D.
W. Va. Jan. 24, 2011).
The case is assigned to the Honorable
John Preston Bailey, Chief Judge.
The City of Martinsburg case
is prosecuted by the same associational plaintiff and its counsel
appearing herein.
The complaint in City of Martinsburg also
challenges municipal gun control ordinances on the grounds,
inter alia, that they are violative of the Second Amendment to
the United States Constitution, Article III, section 22 of the
West Virginia Constitution, and state law.
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On June 17, 2011, Judge Bailey, sua sponte, concluded
that “this might be an appropriate case for this Court to
abstain.”
City of Martinsburg, No. 3:11-0005, slip op. at 7
(N.D. W. Va. Jan. 24, 2011).
Citing Pullman, Judge Bailey
observed that “the West Virginia constitutional provision,
Article III, § 22, differs from and is not the ‘mirror image’ of
the Second Amendment . . . .”
Id. at 8.
Judge Bailey
allotted
the parties “14 days . . . to comment and/or object to”
application of the Pullman doctrine.
Id. at 9.
In view of the evident similarity of the two civil
actions, the court will likewise receive supplemental briefing
respecting
applicability of the Pullman doctrine.
It is,
accordingly, ORDERED as follows:
1.
That plaintiffs be, and they hereby are, directed to
file their brief on the matter no later than July 14,
2011;
2.
That the Charleston defendants, the Dunbar defendants,
and the South Charleston defendants be, and they hereby
are, directed to file their consolidated response to
the plaintiffs’ brief no later than July 28, 2011; and
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3.
That plaintiffs be, and they hereby are, given leave to
reply if they so desire no later than August 10, 2011.
The Clerk is requested to transmit this written opinion
and order to all counsel of record and to any unrepresented
parties.
DATED: July 1, 2011
John T. Copenhaver, Jr.
United States District Judge
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