James K. Bredar, United States District Judge.
James Hamilton ("Plaintiff") brought an action under 42 U.S.C. § 1983 against William L. Pallozzi in his official capacity as Superintendent of the Maryland State Police ("MSP"), and against Brian E. Frosh in his official capacity as Attorney General of Maryland (collectively, "Defendants"). Plaintiff challenges the constitutionality of certain Maryland statutes that Defendants are charged with enforcing; Plaintiff alleges that these statutes, as applied to him, violate his Second Amendment rights.
Now pending before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 7.) Also pending is Plaintiff's Motion for Summary Judgment pursuant to Rule 56. (ECF No. 11.) The
Plaintiff, a Maryland resident, was convicted in November 2006 in Rockbridge County, Virginia, of three felony offenses: credit-card theft in violation of Va. Code Ann. § 18.2-192; credit-card forgery in violation of Va. Code Ann. § 18.2-193; and credit-card fraud in violation of Va. Code Ann. § 18.2-195. (ECF No. 1 ¶¶ 1, 9.) Plaintiff received a four-year suspended sentence, and he paid restitution and court costs totaling $2337.90. (Id. ¶ 9.) Although Plaintiff's felony convictions triggered forfeiture of certain of his political rights in Virginia, those rights were restored in 2013 and 2014. (Id. ¶¶ 9-11.)
According to Plaintiff, in the years following his convictions he has become a "responsible, law-abiding American citizen." (Id. ¶ 15.)
At some unspecified point, Plaintiff contacted the MSP Licensing Division to request a Handgun Wear and Carry Permit. (ECF No. 1 ¶ 20.) Plaintiff was advised that, due to his disqualifying convictions, he cannot possess a firearm in Maryland unless he first obtains a full pardon from the Governor of Virginia. (Id.) Subsequently, on July 22, 2015, Plaintiff filed the present action under 42 U.S.C. § 1983, claiming that enforcement of the Firearms Prohibitions violates his Second and Fourteenth Amendment rights on an as-applied basis.
On October 6, 2015, Defendants moved to dismiss. (ECF No. 7.) Plaintiff filed a response in opposition (ECF No. 10); thereafter, Defendants did not reply within the period prescribed by Local Rule 105.2(a) (D. Md. 2014). Then, on October 26, 2015, Plaintiff moved for summary judgment. (ECF No. 11.) Plaintiff's summary-judgment motion is fully briefed (ECF Nos. 11-1, 14 & 18), and both motions are ripe for decision.
II. Standard of Review Under Rule 12(b)(6)
A complaint must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In analyzing a Rule 12(b)(6) motion, the Court views all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). Nevertheless, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In conducting its analysis, the Court "need not accept legal conclusions couched as facts or `unwarranted inferences, unreasonable conclusions, or arguments.'" Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir.2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008)).
A. Constitutional Standing and Ripeness
Before turning to the merits of Plaintiff's § 1983 claim, the Court must
Federal courts are courts of limited jurisdiction, the contours of which are circumscribed by the case-or-controversy requirement of Article III. The doctrines of constitutional standing and ripeness are integral components of that requirement. To establish standing, "(1) the plaintiff must allege that he or she suffered an actual or threatened injury that is not conjectural or hypothetical[;] (2) the injury must be fairly traceable to the challenged conduct; and (3) a favorable decision must be likely to redress the injury." Miller v. Brown, 462 F.3d 312, 316 (4th Cir.2006). In the context of a preenforcement challenge to a penal statute, a litigant may satisfy constitutional standing where (1) the litigant alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest" but (2) there exists a "credible threat of prosecution" under the challenged law. W. Va. Citizens Def. League, Inc. v. City of Martinsburg, 483 Fed.Appx. 838, 839 (4th Cir.2012) (per curiam) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)).
Ripeness overlaps with standing: the ripeness doctrine "prevents judicial consideration of issues until a controversy is presented in `clean-cut and concrete form.'" Miller, 462 F.3d at 318-19 (quoting Rescue Army v. Mun. Court, 331 U.S. 549, 584, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947)). In evaluating ripeness, courts must "`balance the fitness of the issues for judicial decision [with] the hardship to the parties of withholding court consideration.' 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." Id. at 319 (quoting Franks v. Ross, 313 F.3d 184, 194 (4th Cir.2002)).
The thrust of Defendants' justiciability argument is that the MSP never had an opportunity to formally determine whether Plaintiff qualifies for a handgun license or carry permit. Had Plaintiff submitted an application, Defendants reason, he would have been subject to a background check — and he might have been denied a license for a reason unrelated to his felony record, mooting his argument in these proceedings. (ECF No. 14 at 7-8.)
The Court finds Plaintiff's position here more persuasive. While Defendants speculate that Plaintiff might have been denied a license for some unknown reason, they provide no evidence whatsoever in support of their conjecture. Plaintiff, conversely, denies having any disqualifying characteristics other than his felony convictions; in fact, he included pleadings in his Complaint that specifically negate most of the disabling factors under Md. Code Ann., Pub. Safety §§ 5-133, -205. And Defendants never refute Plaintiff's basic assertion — i.e., that because of the Firearms Prohibitions, he is barred from lawfully possessing a handgun or long gun in the State of Maryland. Had Plaintiff gone through the motions of formally applying for a license or carry permit, it is uncontroverted that the MSP would have denied his request. The law does not require Plaintiff to avail himself of a hopeless administrative process before looking to the courts for relief. See Thetford Props. IV Ltd. P'ship v. U.S. Dep't of Housing & Urban Dev., 907 F.2d 445, 449 (4th Cir. 1990) ("To be sure, no litigant is obliged to exhaust inadequate administrative procedures."); see also Sammon v. N.J. Bd. of Med. Exam'rs, 66 F.3d 639, 643 (3d Cir. 1995) ("Litigants are not required to make... futile gestures to establish ripeness.").
Furthermore, Plaintiff's lawsuit does not challenge Maryland's firearms licensing scheme per se; rather, he asks the Court to enjoin enforcement of the Firearms Prohibitions as against him — and specifically those provisions that prohibit firearm possession on the basis of a disqualifying conviction. As Plaintiff aptly observes, "[e]ven if [he] suffered some other firearms disability... he could still be prosecuted by Defendants for violating the laws whose application he challenges here." (ECF No. 18 at 8-9.) Conversely, were the Court to grant the declaratory and injunctive relief that Plaintiff seeks, he would be shielded from prosecution under those provisions.
Although Defendants' justiciability argument is unpersuasive, the Court has identified a separate issue that is potentially more problematic. In his Complaint, Plaintiff alleges that the MSP informed him he could not possess a firearm in Maryland "unless he were to obtain a full pardon from Virginia's governor." (ECF No. 1 ¶ 20 (emphasis added).) An e-mail chain appended to Plaintiff's summary-judgment reply brief reinforces the possibility of relief via a pardon: Susan Howe Baron, Assistant Attorney General for the Maryland Department of Public Safety and Correctional Services, indicated that "[a]fter [Plaintiff] is pardoned by the Governor of Virginia, Maryland will give effect to the restoration of his rights by Virginia." (ECF No. 18-3 at 1.) However, Plaintiff's former attorney, Margaret Love, indicated in a declaration that a pardon is "not practically available": she did not elaborate on
While applying for a handgun license or carry permit would have been a futile endeavor for Plaintiff at this juncture, the same cannot necessarily be said of a pardon petition. And if Plaintiff could have averted the sting of the Firearms Prohibitions by requesting (and securing) executive clemency, it is not clear that his as-applied challenge to the constitutionality of the statutes is properly before the Court: that is, it is not clear that he has actually suffered an injury the likes of which the Court is the proper institution to redress.
Doe v. Virginia Department of State Police is instructive. 713 F.3d 745 (4th Cir.2013), reh'g denied, 720 F.3d 212 (4th Cir.2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1538, 188 L.Ed.2d 556 (2014). In Doe, the plaintiff — who had been convicted decades earlier of "carnal knowledge of a minor" — brought an action under § 1983 to challenge the constitutionality of a state law that had reclassified her crime as a "sexually violent offense," resulting in her exclusion from certain school facilities unless she received permission from both a state court and the school board. Ms. Doe alleged, inter alia, that the law interfered with her fundamental right to raise and educate her children as well as with certain of her First Amendment rights. Significantly, however, Doe never filed a petition with any state court or school board. The district court dismissed Doe's case, and the Fourth Circuit affirmed, finding that (1) Doe lacked Article III standing and (2) Doe's claims were not ripe for judicial review.
The Court notes the parallels between Ms. Doe's claims and Plaintiff's claim. Both litigants brought § 1983 actions challenging the constitutionality of state laws as applied to them. Moreover, both litigants declined to avail themselves of a state process that, if successful, could have
That being said, the Court recognizes that (1) the parties neither discussed the consequences of Plaintiff's failure to petition for clemency nor addressed the relevance of Doe in their briefs; and (2) Doe may be distinguishable on its facts.
B. § 1983 Claim
1. Legal Framework
Plaintiff asserts that application of the Firearms Prohibitions as against him violates his Second Amendment rights. He seeks declaratory and injunctive relief via § 1983, which provides that any person who, under color of state law, "subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights ... secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress" (emphasis added).
Until recently, the nature and extent of the Second Amendment right was ill-defined. But in District of Columbia v. Heller, 554 U.S. 570, 599, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that self-defense is the "central component" of the right. According to Heller, foremost among the interests protected by the Second Amendment is the "right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635. Heller clarified, however, that the self-defense right is not unlimited, and the Court specifically advised that nothing in its opinion should be taken to cast doubt on "presumptively lawful regulatory measures" such as "longstanding prohibitions
In the aftermath of Heller and McDonald, the Fourth Circuit — along with appellate courts nationwide — began developing a framework through which district courts might evaluate Second Amendment challenges to firearms regulations. In United States v. Chester, 628 F.3d 673 (4th Cir.2010), the Circuit set forth a two-prong approach. When faced with a Second Amendment challenge, a court must first determine "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. at 680 (quoting United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010)). If the law does burden a Second Amendment interest, the court must move to the "second step of applying an appropriate form of means-end scrutiny." Id. Chester held that the proper degree of scrutiny turns on whether the interest implicated falls within the "core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense." Id. at 683. For persons who, by virtue of their criminal history, do not qualify as law-abiding, responsible citizens, intermediate scrutiny is the appropriate standard of review. Id.
Picking up where Chester left off, the Fourth Circuit in United States v. Moore, 666 F.3d 313 (4th Cir.2012), confronted a repeat offender's challenge to his conviction for violating the Gun Control Act of 1968 ("GCA"), as amended, 18 U.S.C. §§ 921 et seq. The GCA makes it unlawful for any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to possess a firearm or ammunition in or affecting commerce. § 922(g)(1). The appellant in Moore had multiple felony convictions on his record, bringing him well within the purview of § 922(g)(1); he argued, however, that the statute violated his Second Amendment rights. The Moore court began its analysis by acknowledging that every circuit court of appeals to consider the constitutionality of § 922(g)(1), whether through a facial attack or an as-applied challenge, has upheld the statute.
Following Moore, the Fourth Circuit has repeatedly upheld § 922(g)(1) and other provisions of the GCA in the face of constitutional attack. See, e.g., United States v. Taylor, 594 Fed.Appx. 784, 790 (4th Cir. 2014) (per curiam) (rejecting challenge to § 922(g)(1)), cert. denied, ___ U.S. ___, 135 S.Ct. 2339, 191 L.Ed.2d 999 (2015); United States v. Izaguirre-De La Cruz, 510 Fed.Appx. 233, 234 (4th Cir.2013) (per curiam) (rejecting challenge to § 922(g)(5), which proscribes firearm possession by an illegal alien); United States v. Larson, 502 Fed.Appx. 336, 339 (4th Cir.2013) (per curiam) (rejecting challenge to § 922(g)(8), which proscribes firearm possession by a person subject to a restraining order); United States v. Elkins, 495 Fed.Appx. 330, 333 (4th Cir.2012) (per curiam) (same); United States v. Mudlock, 483 Fed.Appx. 823, 828 (4th Cir.2012) (per curiam) (same).
In this case, of course, Plaintiff is not challenging the GCA; rather, he assails Maryland's Firearms Prohibitions as applied to him. The case law construing the constitutionality of the Firearms Prohibitions is admittedly quite sparse.
Because the Firearms Prohibitions, as felon-disarmament statutes, are included within that class of regulatory measures that is presumptively lawful under Heller, the burden is on Plaintiff in the first instance to rebut the presumption of lawfulness. Before the Court even considers whether the Firearms Prohibitions as applied to Plaintiff are reasonably tailored to a substantial government objective, Chester, 628 F.3d at 683, Plaintiff must demonstrate that "his factual circumstances remove his challenge from the realm of ordinary challenges," Moore, 666 F.3d at 319. But taking Plaintiff's Complaint at face value, he has failed to plausibly allege that he "fall[s] within the category of citizens to which the Heller court ascribed the Second Amendment protection of `the right of law-abiding responsible citizens to use arms in defense of hearth and home.'" Id. (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783). Consequently, the Court can resolve this dispute — and dismiss Plaintiff's Complaint — without undertaking a complicated means-ends inquiry.
Plaintiff's theory is, at bottom, a simple one: he sees himself as a "responsible, law-abiding American citizen" with "no history of violent behavior, or of any other conduct that would suggest he would pose any more danger by possessing firearms than an average, law-abiding responsible citizen." (ECF No. 1 ¶ 15.)
For that matter, courts in this Circuit and elsewhere have repeatedly rejected Second Amendment challenges to disarmament statutes brought by felons with non-violent offenses of conviction. See United States v. Pruess, 703 F.3d 242, 247 (4th Cir.2012) ("We now join our sister circuits in holding that application of the felon-in-possession prohibition to allegedly non-violent felons like Pruess does not violate the Second Amendment."); United States v. Everist, 368 F.3d 517, 519 (5th Cir.2004) ("Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens."); see also United States v. Kline, 494 Fed.Appx. 323, 325 (4th Cir.2012) (per curiam) (rejecting challenge by felon convicted of eluding a law-enforcement officer); United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011) (rejecting challenge by felon convicted of drug offenses); Wilson v. United States, No. 4:14-CV-158-A, 2014 WL 2445788, at *2 (N.D.Tex. May 30, 2014) (rejecting challenge by felon convicted of mail fraud).
The point of this discussion is not, of course, to impugn Plaintiff's motives or even to assess his rehabilitation. Assuming the truth of Plaintiff's allegations, it appears that he has made a number of commendable, socially responsible choices in the years following his convictions, and he has been rewarded for those choices (e.g.,
For the foregoing reasons, an Order shall enter DENYING Plaintiff's Motion for Summary Judgment (ECF No. 11); GRANTING Defendants' Motion to Dismiss (ECF No. 7); DISMISSING WITH PREJUDICE Plaintiff's § 1983 claim; and CLOSING THIS CASE.