Clark v. City of Shawnee

• Decision Date: 29 April 2016
• Docket Number: Case No. 15-4965-SAC
• Parties: Jonathan Clark and Eric S. Clark, Plaintiffs, v. The City of Shawnee, Kansas, Defendant.
• Court: U.S. District Court — District of Kansas

184 F.Supp.3d 1020

Jonathan Clark and Eric S. Clark, Plaintiffs,

v.The City of Shawnee, Kansas, Defendant.

Case No. 15-4965-SAC

United States District Court, D. Kansas.

Signed April 29, 2016

Jonathan Clark, Shawnee, KS, pro se.

Eric S. Clark, Williamsburg, KS, pro se.

Christopher B. Nelson, Michael K. Seck, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, Ellis Rainey, II, Rainey & Rainey, Shawnee, KS, for Defendant.

MEMORANDUM AND ORDER

Sam A. Crow, United States District Senior Judge

The plaintiffs Jonathan Clark and Eric S. Clark appear pro se in filing their federal civil rights complaint for relief under 42 U.S.C. § 1983. On February 16, 2016, the plaintiffs filed a motion for summary judgment on all counts of their complaint. (Dk. 12). While the parties were briefing that motion, the court took up the defendant's ripe motion to dismiss. The court dismissed Jonathan Clark's Fourth Amendment claim for an unlawful initial traffic stop, denied dismissal on all other grounds properly before the court, and declined to address other arguments improperly raised. (Dk. 16). During the summary judgment briefing, the plaintiffs filed a motion for leave to file a first amended complaint (Dk. 18). The magistrate judge granted their motion, (Dk. 23), and the amended complaint has been filed, (Dk. 24). The plaintiffs' motion for summary judgment is now ripe. The court will rule on this pending motion rather than denying it as moot in light of the first amended complaint. The changes with the first amended complaint do not appear to have a material effect on the court's decision.

"Summary judgment is appropriate only if ‘the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.’ " Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Fed. R. Civ. P. 56(a) ). At the summary judgment stage, the court is not to be weighing evidence, crediting some over other, or determining the truth of disputed matters, but only deciding if a genuine issue for trial exists. Id. The court performs this task with a view of the evidence that favors most the party opposing summary judgment. Id. Because the plaintiffs are filing an affirmative motion for summary judgment on all their claims, the plaintiffs face a heavy burden in showing the absence of all genuine issues of material fact for fact on each of their claims.

To its motion to dismiss, the defendant did attach as a business record, Ordinance No. 3003, and the record showed the ordinance was in force on December 2, 2013. This ordinance had amended the defendant's municipal code to include the following provision, "§ 9.13.040 Criminal Possession of a Firearm" ("§ 9.13.040"), which states in relevant part:

A. Criminal Possession of a Firearm is an unlawful act that is prohibited within the City. Criminal Possession of a Firearm is:

....

4. Transporting a Firearm in any air, land, or water vehicle, unless the Firearm is unloaded and encased in a container which completely encloses the Firearm.

(Dk. 7-1, pp. 7-8). The defendant also attached to its reply brief a business record showing that the defendant subsequently enacted an ordinance on August 25, 2014, which repealed § 9.13.040 regarding criminal possession of firearms. (Dk. 11-1, p. 1). Thus, the ordinance that is the subject of this litigation was repealed in August of 2014, or over one year before the plaintiffs filed this federal action challenging its constitutionality.

The plaintiffs seek summary judgment arguing § 9.13.040 is unconstitutional for violating the Second Amendment rights of both plaintiffs and for resulting in the officer's violation of Jonathan Clark's Fourth Amendment rights to be from unreasonable searches and seizures which occurred with the extended stop and search after the officer saw a firearm in Jonathan Clark's vehicle. The plaintiffs' motion identifies three issues for summary judgment. First, the plaintiff Eric Clark has standing to bring a Second/Fourteenth Amendments claim. Second, § 9.13.040 was the moving force to the violation of Jonathan Clark's Fourth Amendment rights. Third, the defendant has the burden of proving § 9.13.040 passes the heightened scrutiny required by the Second Amendment. The court will take up the issues in that order.

Standing of Plaintiff Eric Clark

This issue was raised and only summarily briefed in the defendant's motion to dismiss. In ruling on that motion, the court gleaned from the plaintiffs' complaint that between December 2, 2013, and August 24, 2014, the plaintiff Eric Clark, Jonathan's uncle, allegedly had not transported loaded firearms due to the threat of § 9.13.040. On what had been properly raised and argued in the defendant's briefs, the court did not find grounds for dismissal and concluded the complaint could be read as alleging some actual injury for Eric Clark. (Dk. 16, p. 8).

In support of his summary judgment motion, the plaintiff Eric Clark now submits a declaration under penalty of perjury stating:

2. On one or more occasions between December 2, 2013 and August 24, 2014, I refrained from transporting lawful loaded firearms into the City of Shawnee, Kansas because that conduct was prohibited by Ordinance 9.13.040 of the City of Shawnee, Kansas and because I feared detention, arrest, prosecution, incarceration, and fines were I to violate Ordinance 9.13.040 of the City of Shawnee, Kansas.

3. But for the Ordinance 9.13.040 of the City of Shawnee, Kansas, I would have exercised my Second Amendment right on one or more occasions for which I refrained between December 2, 2013 and August 24, 2014.

(Dk. 13, pp. 3-4). The plaintiffs' summary judgment pleadings did not properly cite this declaration in support of their statement of facts. The court will overlook this procedural default this time, but it will expect from this point forward that the plaintiffs will follow all of the requirements of D. Kan. Rule. 56.1.

The plaintiff Eric Clark argues the defendant's repeal of § 9.13.040 should not deprive this court of the power to determine the former ordinance's constitutionality. He speculates the defendant could enact again a similar or the same ordinance. Borrowing the rule for First Amendment standing when a statute has a chilling effect on speech, he argues standing on the same ground here for his Second Amendment claim. Clark concludes that, "the restraint that was in place on the Second Amendment at least from December 2, 2013 until August 24, 2014 constitutes moving force for loss of freedom and irreparable injury." Clark argues the credible threat of injury comes from the December 2013 arrest of his nephew, the other plaintiff in this action.

The defendant responds that, "Eric Clark cannot prove he ever failed to carry a firearm because of the Ordinance." (Dk. 20, p. 3). Without any citation of authority, the defendant summarily posits that Eric Clark's own statement or testimony would be insufficient proof and that Clark would need to allege, "someone else accompanied him in every vehicle he occupied in Shawnee, Kansas between December 2, 2013 and August 24, 2014." Id. As it has been presented, this argument gains no traction in showing itself to have merit. As for the legal arguments advanced for Clark's standing, the defendant incorporates by reference its own arguments in the motion to dismiss briefing. The defendant rightly points out that the plaintiff Eric Clark is confusing the analysis for mootness with standing.

The Tenth Circuit recently addressed standing in the context of Second and Fourteenth Amendment challenges to some of Colorado's laws regulating firearms and large-capacity magazines. Colorado Outfitters Ass'n v. Hickenlooper , 823 F.3d 537, 2016 WL 1105363 (10th Cir. Mar. 22, 2016). The panel's summary of the relevant law is helpful here:

Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain " ‘Cases' and ‘Controversies.’ " Susan B. Anthony List v. Driehaus , ––– U.S. ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting U.S. Const. art. III, § 2). To satisfy Article III's case-or-controversy requirement, a plaintiff must demonstrate standing to sue by establishing "(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’ " Id. at 2341 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

....

...Second, the plaintiffs bear the burden of establishing standing. Raines v. Byrd , 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).... Fourth, the elements of standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. Thus, "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation." Id. ....

....

As discussed above, standing generally has three requirements: (1) an injury in fact; (2) causation; and (3) redressability. Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130. To satisfy the first of these three elements, a plaintiff must offer something more than the hypothetical possibility of injury. The alleged injury must be concrete, particularized, and actual or imminent. Id. at 560, 112 S.Ct. 2130. And while " ‘imminence’ is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is ‘certainly impending.’ " Id. at 564 n. 2, 112 S.Ct. 2130 (quoting Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ).

To establish such an injury in the context of a pre-enforcement challenge to a criminal statute, a

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