West Virginia Citizens Defense League, Inc. et al v. City of Charleston et al
Filing
41
MEMORANDUM OPINION AND ORDER: granting in part and denying in part 16 Charleston defendant's MOTION to Dismiss; denying the Dunbar defendant's 18 Motion to Dismiss and denying South Charleston defendant's 21 MOTION to Dismiss ; that this action is stayed and retired to the inactive docket to permit plaintiffs to present their state law claims to a state court of competent jurisdiction; that the defendants are given leave to delay the filing of their respective answers to the amended complaint pending the further order of the court following the lifting of the stay; and that, in the event that the state courts do not resolve the parties' dispute on state law grounds, plaintiff are given leave to return to this co urt for adjudication of their federal claims. Signed by Judge John T. Copenhaver, Jr. on 9/20/2012. (cc: attys; any unrepresented party; WVCDL, Masada Enterprises LLC & Benjamin Ellis via certified mail, rrr; and Keith Morgan, WVCDL President @ kmorgan@wvcdl.org, Leonard Roman, WVCDL Vice President @ lroman@wvcdl.org) (cds)
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.
On May 19,
2011, the court stayed the case at the parties’ request pending
disposition of the motions to dismiss.
On June 17, 2011, the
court learned of a decision rendered by the Honorable John
Preston Bailey, Chief Judge of the United States District Court
for the Northern District of West Virginia, in the case of West
Virginia Citizens Defense League, Inc. v. City of Martinsburg,
No. 3:11-0005 (N.D. W. Va. Jan. 24, 2011).
Chief Judge Bailey
requested briefing respecting the application of Railroad
Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).
2
On
July 1, 2011, this court chose the same course.
Plaintiffs’
reply brief on the Pullman issue was received on August 11,
2011.
Chief Judge Bailey, as more fully discussed infra,
entered his decision to abstain and stay City of Martinsburg
pending adjudication by the state courts respecting certain
state claims alleged by plaintiffs.
of appeals affirmed the ruling.
On June 19, 2012, the court
See West Virginia Citizens
Defense League, Inc. v. City of Martinsburg, No. 11-2231, 2012
WL 2311837 (4th Cir. Jun 19, 2012).
I.
A.
The Parties
Plaintiff West Virginia Citizens Defense League, Inc.
(“WVCDL” or “the organization”), is a nonprofit corporation that
“support[s] an individual’s right to keep and bear arms for
defense of self, family, home and state, and for lawful hunting
and recreational use, as protected by the West Virginia
Constitution and the Second Amendment of the United States
Constitution.”
(Am. Compl. ¶ 2).
Some of WVCDL's members are
licensed to carry, and do carry, firearms for personal
protection when they visit the municipalities of Charleston,
3
Dunbar, and South Charleston.
The organization’s membership
also includes collectors who buy and sell handguns.
The defendant municipalities have each enacted
ordinances that restrict or condition the possession and sale of
firearms.
Violations are punishable by a fine and imprisonment
for up to 30 days.
The individual plaintiffs are Keith T.
Morgan, Elizabeth L. Morgan, Jereomy W. Schulz, and Benjamin L.
Ellis.
Plaintiffs all reside in or near the defendant
municipalities.
Mr. Ellis, a Charleston resident, is the
organizer and sole member of plaintiff Masada Enterprises, LLC
("Masada"), a federally licensed firearms dealer in Elkview.
B.
Standing Claims Respecting the Charleston Defendants
The amended complaint and declarations filed by Mr.
and Mrs. Morgan and Mr. Schulz contain a number of allegations
designed to satisfy Article III standing requirements.
The
amended complaint alleges that both Mr. Morgan and Mr. Schulz
declined to purchase firearms from a Charleston dealer.
Their
decision appears based upon Charleston's 72-hour waiting period
and its prohibition on gun purchases within 30 days after having
previously bought a firearm.
4
Mr. Morgan's declaration, which overlaps in many
respects with similar filings by Mrs. Morgan and Mr. Schulz,
elaborates further on the limitations he complains of and the
concerns associated with them:
11. I regularly carry a handgun for personal
protection at all times and places where I may
lawfully do so. Only when a federal, state, or local
law or regulation whose enforcement has not been
enjoined by a court of competent jurisdiction
prohibits carrying a handgun at a particular time or
place do I not carry a handgun on my person.
. . . .
17. On January 23, 2011, after I went to the Gander
Mountain store located in the City of Charleston and
identified, selected, and attempted to purchase a KelTec P3AT pistol, an employee of Gander Mountain
informed me that under Charleston City Code §§ 18-421
through 428, I was subject to a 72-hour waiting
period, could not purchase the handgun if I had
purchased any other handgun within the preceding 30
days, and would be required to complete a handgun
purchase registration form prescribed by the City of
Charleston and its chief of police, Brent Webster.
20. But for the requirements of Charleston City Code
§§ 18-421 through 428, I would have completed my
planned purchase.
(Aff. Of Keith Morgan at ¶¶ 11, 17, 20).
Mr. Morgan
additionally asserts that if the challenged ordinances were
stricken that he would purchase the aforementioned firearm.
also states his belief that the Charleston defendants are
presently enforcing the ordinances and specifically notes, by
example, a prominent warning posted at the Charleston Civic
Center respecting the ban on firearms.
5
He
Mr. Ellis and Masada also fear potential legal
liability based upon the Charleston ordinances.
That concern is
founded, at least in part, upon a definition found in section
18-421 of the City of Charleston Code:
Dealer means any individual, corporation, partnership
or venture which engages in any business, activity,
trade or employment.
City of Chas. Code of Ords. § 18-421.
With respect to this and
other language found in the Charleston ordinances, Mr. Ellis
alleges as follows, presumably on behalf of Masada as well:
Mr. Ellis cannot reasonably determine whether
Charleston City Code §§ 18-421 through 428, referring
to prohibiting various acts by any “person or dealer”
or words to a similar effect, serve to regulate the
transfer of handguns not only by licensed dealers, but
also by literally any other person, including any
resident of the City of Charleston who may attempt to
sell, loan, or rent a handgun from his or her personal
collection, either within or without the territorial
limits of the City of Charleston, or any resident of
the City of Charleston who may purchase or rent a
handgun for any purpose within or without the
territorial limits of the City of Charleston.
(Am. Compl. ¶ 57).
The court understands this allegation to
form the basis for, inter alia, a vagueness challenge by both
Mr. Ellis and Masada to the dealer requirements found in the
Charleston ordinances.
That conclusion is supported by the
allegations found in Count One, summarized later in this
memorandum opinion and order.
One such dealer requirement is
found in section 18-425 of the Charleston City Code:
6
No person or dealer shall sell any handgun to any
other person without first obtaining the following:
A registration form which shall include the
name and current residence address of the
purchaser; the name and address of the
seller shall be verified, signed and dated
by the purchaser and time-stamped by the
seller, and shall contain statements that
the handgun is for the use of the purchaser
and is not for resale within a 30-day
period, and the purchaser has not purchased
any other handgun within the 30-day period
immediately prior to the date on the
registration form.
City of Chas. Code of Ords. § 18-425.
C.
Standing Claims Respecting the South Charleston Defendants
Mr. Schulz resides in the City of South Charleston.
He frequently visits Joplin Park.
He is prohibited by South
Charleston’s ordinances from going there, or any other South
Charleston-owned location, however, while possessing a firearm.
Were it not for the South Charleston ordinances, Mr. Schulz, Mr.
and Mrs. Morgan, and Mr. Ellis, would "regularly carry handguns
when they visit various locations described" in the South
Charleston ordinances.
(Am. Compl. ¶ 205).
When Mr. and Mrs.
Morgan, Mr. Ellis, Mr. Schulz, and “many other” WVCDL members
occasionally visit these South Charleston-owned areas "while
exercising their constitutionally-protected right to keep and
bear arms for personal protection," they allege a reasonable
7
“fear [of] arrest, prosecution, fine, and imprisonment.”
(Id. ¶
204).
D.
Standing Allegations Respecting the Dunbar Defendants
With respect to the remaining defendants, Mr. Morgan
asserts that Dunbar City Hall has posted warnings about the
consequences of carrying of firearms therein, including a threat
of "Criminal Prosecution." (Morgan Aff. At 3).
Mrs. Morgan, who
works in Dunbar, notes that she has regularly in the past
visited Dunbar Wine Cellar Park and the Dunbar Recreational
Center.
She ceased doing so after she began regularly carrying
a handgun.
She feared the penalties that might be imposed upon
her as a result of the Dunbar ordinances that she and her fellow
plaintiffs challenge.
Mr. Morgan expresses the same concern
about "arrest, prosecution, fine, and imprisonment . . . while
exercising [his] . . . right to keep and bear arms for personal
protection" within Dunbar city limits.
E.
Claims Alleged Against Charleston Defendants
Counts One through Thirty-Four are aimed at the
Charleston defendants:
8
Count 1: Charleston’s ordinances are unconstitutionally vague in violation of the Due Process Clause
of the Fourteenth Amendment.1
Count 2: Charleston’s ordinances are unconstitutionally vague in violation of the Due Process Clause
of Article III, § 10 of the West Virginia Constitution
Count 3: Charleston’s one handgun per month purchase
limit violates the right of an individual to keep and
bear arms under the Second and Fourteenth Amendments.
Count 4: Charleston’s one handgun per month purchase
limit violates the right of an individual to keep and
bear arms under Article III, § 22 of the West Virginia
Constitution.
Count 5: Charleston’s one handgun per month purchase
limit is unauthorized by state statute and invalid as
a matter of state law.
Count 6: Charleston’s 72-hour handgun purchase waiting
period violates the right of an individual to keep and
bear arms under the Second and Fourteenth Amendments.
1
Count One, as noted supra, appears to be a challenge by Mr.
Ellis and Masada to the scope of the Charleston ordinances
respecting those who purchase and sell firearms:
People of reasonable intelligence must necessarily
guess whether Charleston City Code §§ 18-421 through
428, referring to prohibiting various acts by any
“person or dealer” or words to a similar effect, serve
to regulate the transfer of handguns not only by
licensed dealers, but also by literally any other
person, including any resident of the City of
Charleston who may attempt to sell, loan, or rent a
handgun from his or her personal collection, either
within or without the territorial limits of the City
of Charleston, or any resident of the City of
Charleston who may purchase or rent a handgun for any
purpose within or without the territorial limits of
the City of Charleston.
(Am. Compl. ¶ 58 (emphasis added)).
9
Count 7: Charleston’s 72-hour handgun purchase waiting
period violates the right of an individual to keep and
bear arms under Article III, § 22 of the West Virginia
Constitution.
Count 8: Charleston’s 72-hour handgun purchase waiting
period is unauthorized by state statute and invalid as
a matter of state law.
Count 9: Charleston’s handgun registration requirement
violates the right of an individual to keep and bear
arms under the Second and Fourteenth Amendments.
Count 10: Charleston’s handgun registration
requirement violates the right of an individual to
keep and bear arms under Article III, § 22 of the West
Virginia Constitution.
Count 11: Charleston’s handgun registration
requirement is unauthorized by state statute and
invalid as a matter of state law.
Count 12: Charleston’s handgun registration form
requires a handgun purchaser to disclose his or her
Social Security number in violation of section 7 of
the Privacy Act of 1974 and 42 U.S.C. § 408
Count 13: Charleston’s handgun registration form fails
to inform a prospective handgun purchaser who is
solicited to disclose his or her Social Security
account number, whether the disclosure of his or her
Social Security number is mandatory or voluntary, in
violation of section 7 of the Privacy Act of 1974.
Count 14: Charleston’s handgun registration form fails
to inform a prospective handgun purchaser who is
solicited to disclose his or her Social Security
account number, by what statutory or other authority
such number is solicited, in violation of section 7 of
the Privacy Act of 1974.
Count 15: Charleston’s handgun registration form fails
to inform a prospective handgun purchaser who is
solicited to disclose his or her Social Security
account number, what uses will be made of the
purchaser’s Social Security account number, in
violation of section 7 of the Privacy Act of 1974.
Count 16: Charleston’s prohibition on carrying a
weapon without a license violates the right of an
10
individual to keep and bear arms under the Second and
Fourteenth Amendments.
Count 17: Charleston’s prohibition on carrying a
weapon without a license violates the right of an
individual to keep and bear arms under Article III,
§22 of the West Virginia Constitution.
Count 18: Charleston’s prohibition on carrying a
weapon without a license in the Sternwheel Regatta
area violates the right of an individual to keep and
bear arms under the Second and Fourteenth Amendments.
Count 19: Charleston’s prohibition on carrying a
weapon without a license in the Sternwheel Regatta
area violates the right of an individual to keep and
bear arms under Article III, § 22 of the West
Virginia Constitution.
Count 20: Charleston’s prohibition on carrying a
weapon without a license in the Sternwheel Regatta
area is unauthorized by state statute and invalid as a
matter of state law.
Count 21: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has received voluntary mental health treatment
violates the right of an individual to keep and bear
arms under the Second and Fourteenth Amendments
Count 22: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has received voluntary mental health treatment
violates the right of an individual to due process of
law under the Fourteenth Amendment.
Count 23: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has received voluntary mental health treatment
violates Title II of the Americans With Disabilities
Act and the Supremacy Clause.
Count 24: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has received voluntary mental health treatment
violates the right of an individual to keep and bear
arms under Article III, § 22 of the West Virginia
Constitution.
Count 25: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
11
who has received voluntary mental health treatment
violates the right of an individual to due process of
law under Article III, § 10 of the West Virginia
Constitution.
Count 26: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has received voluntary mental health treatment is
unauthorized by state statute and invalid as a matter
of state law.
Count 27: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has any criminal charges pending violates the
right of an individual to keep and bear arms under the
Second and Fourteenth Amendments.
Count 28: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has any criminal charges pending violates the
right of an individual to keep and bear arms under
Article III, § 22 of the West Virginia Constitution.
Count 29: Charleston’s prohibition on the purchase of
a handgun by, or the sale of a handgun to, a purchaser
who has any criminal charges pending is unauthorized
by state statute and invalid as a matter of state law.
Count 30: Charleston’s requirement that a prospective
handgun purchaser produce and display secondary
documentation of residence address within the last 90
days is unauthorized by state statute and invalid as a
matter of state law.
Count 31: Charleston’s regulation of classes of
individuals lawfully permitted to purchase or be sold
handguns is unauthorized by state statute and invalid
as a matter of state law.
Count 32: Charleston’s prohibition on carrying weapons
on city owned property violates the right of an
individual to keep and bear arms under the Second and
Fourteenth Amendments.
Count 33: Charleston’s prohibition on carrying weapons
on city owned property violates the right of an
individual to keep and bear arms under Article III, §
22 of the West Virginia Constitution.
12
Count 34: Charleston’s prohibition on carrying weapons
on city owned property is unauthorized by state
statute and invalid as a matter of state law.
F.
Claims Alleged Against South Charleston Defendants
Counts Thirty-Five and Thirty-Six are directed to the
South Charleston defendants:
Count 35: South Charleston’s prohibition on carrying
weapons on city-owned property violates the right of
an individual to keep and bear arms under the Second
and Fourteenth Amendments.
Count 36: South Charleston’s prohibition on carrying
weapons on city-owned property violates the right of
an individual to keep and bear arms under Article III,
§ 22 of the West Virginia Constitution.
G.
Claims Alleged Against Dunbar Defendants
Counts Thirty-Eight through Forty are directed to the
Dunbar defendants:
Count 38: Dunbar’s prohibition on carrying weapons on
city owned property violates the right of an
individual to keep and bear arms under the Second and
Fourteenth Amendments.
Count 39: Dunbar’s prohibition on carrying weapons on
city owned property violates the right of an
individual to keep and bear arms under Article III,
§ 22 of the West Virginia Constitution.
Count 40: Dunbar’s prohibition on carrying weapons on
city-owned property is unauthorized by state statute
and invalid as a matter of state law.
13
H.
Relief Sought
Plaintiffs seek preliminary and permanent injunctions
enjoining defendants and their agents from enforcing the
challenged ordinances, declaratory relief consistent with the
requested injunction, and fees and costs.
Defendants assert
that plaintiffs lack standing to pursue their challenges to the
ordinances.
Those contentions are dealt with below.
II.
A.
Standing Challenges
1. Governing Standard
Article III of the Constitution limits the exercise of
judicial power to “Cases” and “Controversies.”
III, § 1.
U.S. Const. art.
The provision reflects a desire to limit the
Judiciary to “the traditional role of Anglo-American courts,
which is to redress or prevent actual or imminently threatened
injury to persons caused by private or official violation of the
law.”
Summers v. Earth Island Inst., 129 S. Ct. 1142, 1148
(2009); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
559–60 (1992); Cuccinelli v. Sebelius, 656 F.3d 253, 268 (4th
14
Cir. 2011)(noting that to allow otherwise “'would be inimical to
the Constitution's democratic character'” and would weaken “'the
public's confidence in . . . [a] restrained . . . Judiciary.'”)
(quoting Arizona Christian School Tuition Org. v. Winn, 131 S.
Ct. 1436, 1442 (2011)).
Article III standing exists when a plaintiff alleges
(1) an injury in fact, (2) a causal connection between that
injury and the defendant's conduct, and (3) a likelihood that
the injury will be redressed by a favorable decision. See Lujan,
504 U.S. at 560-61.
An “injury in fact” is one that “inva[des]
. . . a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.”
Id. at 560 (internal quotation marks and
citations omitted).
In cases, such as this one, where a preenforcement
challenge to a criminal offense is at issue, a plaintiff must
allege (1) “an intention to engage in a course of conduct
arguably affected with a constitutional interest,” and (2) “a
credible threat of prosecution” under the law.
Babbitt v.
United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979).
The
threat must be real rather than imaginary or completely
speculative. See id. at 298, 302; see also Virginia Society for
15
Human Life, Inc. v. Federal Election Com'n, 263 F.3d 379, 386
(4th Cir. 2001).
The Supreme Court and our court of appeals have
likened the protections afforded under the First Amendment to
those existing under the Second Amendment. See United States v.
Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) ("Indeed, as has
been the experience under the First Amendment, we might expect
that courts will employ different types of scrutiny in assessing
burdens on Second Amendment rights, depending on the character
of the Second Amendment question presented."); United States v.
Chester, 628 F.3d 673, 682 (4th Cir. 2010)(observing "Given
Heller's focus on 'core' Second Amendment conduct and the
Court's frequent references to First Amendment doctrine, we
agree with those who advocate looking to the First Amendment as
a guide in developing a standard of review for the Second
Amendment.") (quoting, in part, District of Columbia v. Heller,
554 U.S. 570, 596 (2008)).
But see Chester, 628 F.3d at 685,
687 (Davis, J., concurring) ("I have concerns about the
majority's invitation to import First Amendment doctrines into
Second Amendment jurisprudence. . . . [Supreme Court precedent
on the point is] hardly an invitation to import the First
Amendment's idiosyncratic doctrines wholesale into a Second
Amendment context, where, without a link to expressive conduct,
16
they will often appear unjustified. To the extent some
commentators and courts, frustrated with Heller's lack of
guidance, have clung to these references and attempted to force
unwieldy First Amendment analogies, they muddle, rather than
clarify, analysis.").
That comparison between the First and Second Amendment
rights is of some moment here in light of the application of
standing principles to First Amendment challenges:
A statute that “‘facially restrict[s] expressive
activity by the class to which the plaintiff belongs'
presents such a credible threat,” id. (quoting New
Hampshire Right to Life PAC v. Gardner, 99 F.3d 8, 15
(1st Cir. 1996)), particularly if it threatens to
“chill the exercise of First Amendment rights,” NCRL
I, 168 F.3d at 710. Since the statutes challenged by
the plaintiffs threaten to subject them to
prosecution, and the plaintiffs are therefore
“chilled” from engaging in potentially protected First
Amendment political expression, standing exists in
this case.
North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 280
(4th Cir. 2008) (emphasis added); Virginia Society for Human
Life, Inc. v. Federal Election Com'n, 263 F.3d 379, 389 (4th
Cir. 2001) ("To establish standing for a preenforcement
challenge to a regulation, it is enough to 'allege[ ] an
intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a
[regulation]. . . . At the time that VSHL filed suit, the 2000
election was only fifteen months away. VSHL's injury -- its fear
17
of prosecution -- was not only imminent but immediate because it
needed to plan the substance and placement of its advertisements.'”)(quoting Babbitt v. United Farm Workers Nat'l Union,
442 U.S. 289, 298 (1979)).
Irrespective of First Amendment analogies, plaintiffs
seeking to challenge the constitutionality of state criminal
provisions need not essentially put themselves in the dock.
See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129
(2007) ("The plaintiff's own action (or inaction) in failing to
violate the law eliminates the imminent threat of prosecution,
but nonetheless does not eliminate Article III jurisdiction.");
Mobil Oil Corp. v. Attorney General of Com. of Va., 940 F.2d 73,
75 (4th Cir. 1991) ("Public policy should encourage a person
aggrieved by laws he considers unconstitutional to seek a
declaratory judgment against the arm of the state entrusted with
the state's enforcement power, all the while complying with the
challenged law, rather than to deliberately break the law and
take his chances in the ensuing suit or prosecution. . . . Mobil
has certainly alleged 'an actual and well-founded fear' that the
law will be enforced, and has in fact 'self-censored' itself by
complying with the statute, incurring harm all the while."); see
also Free Enterprise Fund v. Public Co. Accounting Oversight
Bd., 130 S. Ct. 3138, 3151 (2010)("We normally do not require
18
plaintiffs to 'bet the farm . . . by taking the violative
action' before 'testing the validity of the law . . . .'”)
(citation omitted).
On a final note, once an individual member of an
organizational plaintiff makes the necessary Article III
showing, the organization will be deemed to have a sufficient
stake based upon the doctrine of representational standing:
[A]n association may have standing to sue in
federal court either based on an injury to the
organization in its own right or as the representative
of its members who have been harmed. An organization
has representational standing when (1) at least one of
its members would have standing to sue in his own
right; (2) the organization seeks to protect interests
germane to the organization's purpose; and (3) neither
the claim asserted nor the relief sought requires the
participation of individual members in the lawsuit.
Friends of the Earth, Inc. v. Gaston Copper, 204 F.3d 149, 155
(4th Cir. 2000) (en banc) (citations omitted).
2. Charleston Defendants
Mr. Morgan's declaration reflects that he is licensed
to, and regularly does, carry a handgun for personal protection
except when prohibited by law from doing so.
He also claims to
have chosen not to purchase a firearm in 2011 based upon the
registration, 72-hour waiting period, and 30-day restrictions
found in the Charleston ordinances.
19
He would have consummated
his purchase were it not for the restrictions imposed by the
Charleston ordinances.
He also perceives, it seems reasonably so, that he
faces a threat of prosecution if he violates the ordinances.
The threat is neither conjured nor speculative.
It is not a
leap of the imagination to predict what would occur if law
enforcement found any of the individual plaintiffs to have in
his or her possession a firearm while visiting city hall or
other city-owned properties.2
Neither Mr. Morgan, under the
Charleston ordinances, nor his fellow plaintiffs, under the
South Charleston and Dunbar laws, need suffer a confrontation
with, and arrest by, law enforcement to have these matters taken
up under Article III.
Inasmuch as the ordinances necessarily
threaten prosecution, and the plaintiffs are restrained from
engaging in potentially protected activity, the preenforcement
nature of the claims is not an obstacle to the exercise of
subject matter jurisdiction.
2
If the court concludes that no credible threat of prosecution
exists, it all but invites the individual plaintiffs or others
to enter city-owned property with a firearm in order to
figuratively gain entry to the federal courthouse. That
approach is problematic for a variety of reasons, not the least
of which includes public safety. It is noteworthy as well that
one searches the municipalities' many pages of briefing in vain
for even the slightest assurance "that plaintiffs will not be
prosecuted if they do what they say they wish to do." Holder v.
Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010).
20
The injury is the fear of prosecution and essentially
forced compliance with the ordinances' prerequisites despite the
allegation that they are unlawful.
These injuries, and the
consequent impairment of the right to possess a firearm, are
directly related to the passage and expected enforcement of the
ordinances.
Finally, if the ordinances are declared unlawful
the injury will be redressed promptly.
The allegations in Mr.
Morgan's declaration satisfy the standing requirements
associated with Counts One through Sixteen and Thirty through
Thirty-Four.
It is also the case that both Mr. Ellis and Masada
possess Article III standing based upon their Count One
vagueness challenge to the Charleston ordinances.
They face
uncertainty presently concerning their obligations to those
Charleston residents seeking to purchase firearms from them
outside city limits.
If a limiting construction is placed on
the ordinances so as to bring clarity and certainty, the injury
complained of will doubtless be redressed.
There are other counts of the complaint against the
Charleston defendants, however, which appear unsupported by
sufficient standing allegations.
Those deal with the
prohibitions on (1) carrying a weapon without a license at the
Sternwheel Regatta (an event, the court notes, that is no longer
21
conducted in Charleston), (2) the purchase of a handgun by, or
the sale of a handgun to, one who has received voluntary mental
health treatment, and (3) the purchase of a handgun by, or the
sale of a handgun to, one who is the subject of pending criminal
charges.
Plaintiffs have not directed the court to allegations
in either the amended complaint or other materials in the record
which would support the necessary personal stake of any of the
plaintiffs in the adjudication of the issues raised by Counts
Eighteen through Twenty-Nine.
The court, accordingly, ORDERS that the Charleston
defendants' motion to dismiss be, and it hereby is, granted as
to Counts Eighteen through Twenty-Nine and denied in all other
respects.
Further, inasmuch as Mr. Morgan, a WVCDL member,
possesses Article III standing, WVCDL does as well based upon
the additional facts that it seeks to protect interests germane
to its purposes.
3. South Charleston Defendants
Mr. Schulz is prohibited by South Charleston’s
ordinances from visiting Joplin Park, or locations owned by
South Charleston, with a firearm.
ordinances did not exist.
He would carry one if the
He too reasonably fears criminal
sanctions if he violates the South Charleston ordinances.
22
Inasmuch as the two counts of the complaint directed
at South Charleston challenge the prohibition on carrying
firearms on city-owned property, Mr. Shulz' allegations plainly
satisfy the Article III standing requirements.
The court,
accordingly, ORDERS that the South Charleston defendants' motion
to dismiss be, and it hereby is, denied.
4. Standing Challenge by Dunbar Defendants
Mrs. Morgan works in Dunbar and ceased visiting areas
owned by that municipality once she began regularly carrying a
firearm.
She feared the penalties that might be imposed upon
her as a result of the Dunbar ordinances.
Mr. Morgan expresses
the same concern about "arrest, prosecution, fine, and
imprisonment . . . while exercising [his] . . . right to keep
and bear arms for personal protection" within Dunbar city
limits. (Morgan Aff. at 3). He notes in particular the posted
warnings outside Dunbar City Hall concerning the carrying of
firearms therein, including a threat of "Criminal Prosecution."
(Id.).
Inasmuch as the three counts of the complaint directed
at Dunbar challenge the prohibition on carrying firearms on
city-owned property, Mr. and Mrs. Morgan's allegations plainly
satisfy the Article III standing requirements.
23
The court,
accordingly, ORDERS that the Dunbar defendants' motion to
dismiss be, and it hereby is, denied.3
B.
Pullman Abstention
As noted, the court directed the filing of briefs
respecting the application of the Pullman abstention doctrine
after having learned of a similar course taken by Chief Judge
Bailey in the United States District Court for the Northern
District of West Virginia.
Since the filing of plaintiffs'
August 11, 2011, reply brief on that issue, Chief Judge Bailey
entered a September 6, 2011, decision on the matter:
For the reasons stated above, this Court will abstain
from ruling on the issues presented by this case.
This action will be stayed so that the plaintiff may
present its state law issues to state court. . . . In
the event that the state courts do not resolve this
case under state law, the plaintiff will be permitted
to seek a ruling on the federal issues in this Court.
West Virginia Citizens Defense League, Inc. v. City of
Martinsburg, No. 3:11-0005, slip op. at 7 (N.D. W. Va. Sept. 6,
2011).
As noted, the court of appeals affirmed.
3
Some or all of the defendants also seek dismissal on
alternative or partial grounds. For instance, all defendants
assert that the municipalities were authorized by state law to
enact the challenged ordinances. Additionally, the South
Charleston and Dunbar defendants assert that the measures offend
neither the federal or state constitutions. The court does not
reach the assertions at this time in view of the ultimate
disposition found in the next section of this memorandum opinion
and order.
24
Controlling precedent makes clear that abstention is
“the exception, not the rule.”
New Orleans Pub. Serv., Inc. v.
Council of New Orleans, 491 U.S. 350, 359 (1989) (internal
quotation marks omitted).
There are nevertheless “carefully
defined . . . areas in which . . . abstention is permissible.”
Id. at 359 (internal quotation marks omitted); MLC Automotive,
LLC v. Town of Southern Pines, 532 F.3d 269, 280 (4th Cir.
2008).
One such area involves deferral to a state tribunal on
unsettled state law issues that might obviate the need to reach
federal constitutional claims.
See Meredith v. Talbot County,
828 F.2d 228, 231 (4th Cir. 1987) (noting 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 constitutional question.”).
different way,
Stated a slightly
Pullman abstention focuses on whether "there is
(1) an unclear issue of state law presented for decision (2) the
resolution of which may moot or present in a different posture
the federal constitutional issue such that the state law issue
is ‘potentially dispositive.'"
Educational Servs., Inc. v.
Maryland State Bd. for Higher Educ., 710 F.2d 170, 174 (4th Cir.
1983) (quoted authority omitted); see also Donohoe Constr. Co.,
Inc. v. Montgomery Cnty. Coun., 567 F.2d 603, 607 (4th Cir.
1977).
25
Article III, section 22 of the West Virginia
Constitution provides as follows:
A person has the right to keep and bear arms for the
defense of self, family, home and state, and for
lawful hunting and recreational use.
W. Va. Const. Art. 3, § 22.
The Supreme Court of Appeals of
West Virginia has not had occasion to address whether the
ordinances at issue here transgress this constitutional
privilege.
The outcome is difficult to predict inasmuch as a
flexible, means-ends inquiry governs the analysis:
“The West Virginia legislature may, through the valid
exercise of its police power, reasonably regulate the
right of a person to keep and bear arms in order to
promote the health, safety and welfare of all citizens
of this State, provided that the restrictions or
regulations imposed do not frustrate the
constitutional freedoms guaranteed by article III,
section 22 of the West Virginia Constitution, known as
the ‘Right to Keep and Bear Arms Amendment.’”
Syl. Pt. 3, Hartley Hill Hunt Club v. County Com'n of Ritchie
County, 220 W. Va. 382, 384, 647 S.E.2d 818, 820 (2007)(quoting
Syl. Pt. 4, State ex rel. City of Princeton v. Buckner, 180
W.Va. 457, 458, 377 S.E.2d 139, 140 (1988)).
It is thus unclear
how the supreme court of appeals might adjudicate the state
constitutional questions.
Further, upon considering the ordinances, the supreme
court of appeals may uphold or invalidate one or more of those
provisions.
The state high court's potentially dispositive
26
resolution may thus moot or present in a different posture the
federal constitutional issues.
Two other considerations merit mention as well.
First, Chief Judge Bailey's September 6, 2011, ruling means that
plaintiffs there may seek an authoritative determination of the
state constitutional issues in a state circuit court.
may the plaintiffs here.
So, too,
It would be inadvisable to render in
this court a determination of uncertain state law when those
state issues may in the meantime be under consideration, and
perhaps resolved, by a state tribunal.
That is especially so
when the matter involves a matter of public policy so important
as the permissible scope of municipal firearm restrictions under
the state constitution.
Second, abstention best serves the recent observation
of our court of appeals counseling restraint in ascertaining the
reach of Heller and its progeny:
There simply is no need in this litigation to
break ground that our superiors have not tread. To the
degree that we push the right beyond what the Supreme
Court in Heller declared to be its origin, we
circumscribe the scope of popular governance, move the
action into court, and encourage litigation in
contexts we cannot foresee. This is serious business.
We do not wish to be even minutely responsible for
some unspeakably tragic act of mayhem because in the
peace of our judicial chambers we miscalculated as to
Second Amendment rights. It is not far-fetched to
think the Heller Court wished to leave open the
possibility that such a danger would rise
27
exponentially as one moved the right from the home to
the public square.
If ever there was an occasion for restraint, this
would seem to be it. There is much to be said for a
course of simple caution.
United States v. Masciandaro, 638 F.3d 458, 475-76 (4th Cir.
2011).
Plaintiffs assert that "state law is sufficiently
clear and not fairly open to interpretation."
Objecs. at 2).
(Pls.' Resp. and
They curiously focus only on the state statutory
authority of the municipalities to enact the ordinances.
They
make only one nonsubstantive mention of Article III, section 22,
in their opening brief, relegating it to a footnote.
Plaintiffs
also express their preference that the court certify questions
to the supreme court of appeals instead of abstaining.
Inasmuch
as an evidentiary record will doubtless need to be developed,
certification is inappropriate.
much.
Plaintiffs appear to concede as
(Id. at 10 ("certifying questions involving the
constitutionality of the challenged ordinances to the West
Virginia Supreme Court of Appeals at this particular time,
before all the relevant facts are determined, would likely
present nonjusticiable, academic, hypothetical questions well
outside the bounds of the courts’ [sic] respective
jurisdiction.").
28
Defendants oppose abstention as well, on essentially
two grounds.
First, they assert that the standard for
constitutional review applicable to Article III, section 22, is
clear enough.
That is true.
The application of that flexible
standard to the challenged ordinances, however, is a novel
question, the answer to which may change the complexion of this
action or obviate the need to pursue it altogether.
Second,
defendants assert that the Second Amendment and Article III,
section 22 are substantively close enough to one another that
they might be considered parallel provisions for which
abstention would be inappropriate.
case.
That is plainly not the
The state provision is far more explicit than its federal
counterpart.
This is not a situation where two similarly
drafted federal and state due process or speech provisions are
at issue.
Mirror provisions are not here involved.
The court, accordingly, abstains from further
adjudication of the parties' rights at this time.4
It is ORDERED
4
The court of appeals in City of Martinsburg concluded the same
approach was appropriate:
In this case, WVCDL's assertion that the record is bereft of
evidence demonstrating the presence of thorny and potentially
dispositive state law questions is without merit, given that
WVCDL's complaint squarely demonstrates the presence of numerous
such issues. Nor do we countenance WVCDL's contention that
Arizonans for Official English v. Arizona, 520 U.S. 43, 75–80
(1997), renders the district court's reliance on Pullman
(continued…)
29
that this action be, and it hereby is, stayed to permit
plaintiffs to present their state law claims to a state court of
competent jurisdiction.
In the event that the state courts do
not resolve the parties' dispute on state law grounds,
plaintiffs are given leave to return to this court for
adjudication of their federal claims.
improper. In our view, the circumstances of this case would have
supported either certifying a question of state law to the West
Virginia state courts or invoking the Pullman abstention
doctrine. Because both options were equally available to the
district court, it was not an abuse of discretion for the court
to choose the latter over the former.
City of Martinsburg, 2012 WL 2311837, at *2.
30
III.
Based upon the foregoing discussion, it is ORDERED as
follows:
1. That the Charleston defendants' motion to dismiss be, and
it hereby is, granted as to Counts Eighteen through TwentyNine and denied in all other respects;
2. That the South Charleston and Dunbar defendants' motions to
dismiss be, and they hereby are, denied;
3. That this action be, and it hereby is, stayed and retired
to the inactive docket to permit plaintiffs to present
their state law claims to a state court of competent
jurisdiction;
4. That the defendants be, and they hereby are, given leave to
delay the filing of their respective answers to the amended
complaint pending the further order of the court following
the lifting of the stay; and
5. That, in the event that the state courts do not resolve the
parties' dispute on state law grounds, plaintiffs be, and
they hereby are, given leave to return to this court for
adjudication of their federal claims.
31
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
The Clerk is further directed to send a
copy to the following entities at the addresses indicated:
WVCDL
P.O. Box 11371
Charleston, WV, 25339-1371,
Via certified mail, return receipt requested
Masada Enterprises LLC
501 Mountview Drive
Elkview, WV, 25071
Via certified mail, return receipt requested
Benjamin Ellis
1101 Shamrock Road
Charleston, WV, 25314
Via certified mail, return receipt requested
Keith Morgan, WVCDL President
kmorgan@wvcdl.org
Leonard Roman, WVCDL Vice President
lroman@wvcdl.org.
WVCDL, Masada Enterprises LLC, Mr. Ellis, Mr. Morgan
and Mr. Roman are additionally deemed jointly responsible for
providing a copy of this written opinion and order to their
32
fellow plaintiffs, Ms. Elizabeth L. Morgan and Mr. Jereomy W.
Schulz.5
DATED:
September 20, 2012
John T. Copenhaver, Jr.
United States District Judge
5
The unusual method for providing notice of the court's ruling
is necessitated by the untimely death on August 22, 2012, of
plaintiffs' counsel and the nonappearance of substitute counsel
since that time.
33
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