Dorr v. Weber

• Citation: 741 F.Supp.2d 993
• Decision Date: 18 May 2010
• Docket Number: No. C 08–4093–MWB.,C 08–4093–MWB.
• Parties: Paul DORR and Alexander Dorr, individually, and on behalf of all other persons similarly situated, Plaintiffs,v.Douglas L. WEBER, individually, and in his capacity as Sheriff of Osceola County, and Osceola County, Iowa, Defendants.
• Court: U.S. District Court — Northern District of Iowa

741 F.Supp.2d 993

Paul DORR and Alexander Dorr, individually, and on behalf of all other persons similarly situated, Plaintiffs,

v.Douglas L. WEBER, individually, and in his capacity as Sheriff of Osceola County, and Osceola County, Iowa, Defendants.

No. C 08–4093–MWB.

United States District Court, N.D. Iowa, Western Division.

May 18, 2010.

Erick G. Kaardal, Vincent J. Fahnlander, Mohrman & Kaardal, PA, Minneapolis, MN, for Plaintiffs.Douglas L. Phillips, Klass Law Firm, L.L.P., Sioux City, IA, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

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                ¦TABLE OF CONTENTS¦
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I. INTRODUCTION AND BACKGROUND 997
                

 A. Factual Background 997
                B. Procedural Background 998
                

II. LEGAL ANALYSIS 1001
                

 A. Summary Judgment Standards 1001
                B. Iowa Law Governing Nonprofessional Weapon's Permits 1002
                C. Qualified Immunity 1003
                

 1. A violation of a constitutional right 1004
                2. Clearly established constitutional right at the time 1006
                

 D. The Dorrs' Equal Protection Claims 1006
                

 1. Elements of the claim 1006
                2. Was Alexander “similarly situated” to others? 1007
                3. Was Paul “similarly situated” to others? 1007
                

 E. The Dorrs' First Amendment Claims 1008
                F. The Dorrs' Due Process Claims 1009
                

III. CONCLUSION 1010
                

Plaintiffs in this section 1983 action are a father and son who were denied Iowa nonprofessional permits to carry a weapon by their county sheriff. Plaintiffs challenge the constitutionality of the sheriff's actions on multiple constitutional grounds. This case is currently before the court on the parties' cross motions for summary judgment.

I. INTRODUCTION AND BACKGROUND

A. Factual Background

The summary judgment record reveals that the following facts are undisputed.

Plaintiffs Paul Dorr (“Paul”) and Alexander Dorr (“Alexander”) are both residents of Osceola County, Iowa. Paul is Alexander's father. Paul owns and operates a consulting business, Copperhead Consulting Services, which engages in activities to support individuals, groups, associations, and other entities in political and election campaigns involving political, economic, and social issues. Paul was issued nonprofessional concealed weapons permits, pursuant to Iowa Code § 724.7, by the Osceola County Sheriff for the years 2001 through 2006.¹ Defendant Douglas L. Weber (“Sheriff Weber”), as Sheriff of Osceola County, granted Paul a nonprofessional concealed weapons permit in 2005 and 2006. In 2007, Paul again applied to Sheriff Weber for a concealed weapons permit pursuant to Iowa Code § 724.8. Sheriff Weber, however, denied Paul's application, stating on the application form that his reason for disapproval was: “Concerns from Public. Don't trust him.” Paul's Application at 2, Defendants' App. at 2 (docket no. 36–2). Sheriff Weber told Paul that citizens he had spoken to had “some fear” of him. Sheriff Weber did not provide Paul with any specific allegations made by citizens about him. Sheriff Weber provided no documentation to Paul supporting his statement that there was some fear of him among the citizenry. Sheriff Weber provided no documentation to Paul that he had conducted an investigation concerning an allegation made by a citizen who stated they feared Paul. Sheriff Weber would deny any new or renewal application for a nonprofessional concealed weapon permit submitted by Paul.

Paul has never been convicted of a felony, is not addicted to alcohol or any controlled substance, has no history of repeated acts of violence, and has never been convicted of any crime defined in Iowa Code Chapter 708.²

Sheriff Weber perceives Paul to be a “social bully” as a result of numerous letters to the editor Paul has written as well as other letters he has had published in the local paper. As part of his affiliation with the Osceola County Taxpayers Association, Paul has sent out letters to the editor, emails, placed fliers on doors and automobiles, and handed out brochures. Sheriff Weber knows that some citizens of Osceola County have opposing views to those of Paul and oppose Paul's advocacy of issues through his consulting business.

On December 6, 2007, Alexander submitted an application for a nonprofessional concealed weapons permit. At the time he submitted the application, Alexander was seventeen years old. Alexander has never been convicted of a felony, is not addicted to alcohol or any controlled substance, has no history of repeated acts of violence, and has never been convicted of any crime defined in Iowa Code Chapter 708. On July 24, 2008, after Alexander had turned eighteen, Sheriff Weber denied Alexander's application, writing on the application form that his reason for disapproval was: “Subject under 21 years of age.” Alexander's Application at 2, Defendants' App. at 3 (docket no. 36–2). On July 24, 2008, Sheriff Weber also wrote a letter to Paul in which he stated:

I am denying your son Alexander's application for a permit to carry but would consider a new permit from him after his twenty-first birthday.

Your wife Debra can pick-up her permit on July 28th upon payment of the $10.00 fee.

I have previously denied your application and would deny any new application from you.

Weber Letter at 1, Plaintiffs' App. at 205 (docket no. 37–6).

Sheriff Weber does not feel comfortable issuing a permit to carry to a person under the age of 21. Although Sheriff Weber's predecessor had issued permits to carry concealed weapons to individuals under the age of 21, Sheriff Weber has not done so. Sheriff Weber would only consider issuing a permit to carry concealed weapons to individuals under the age of 21 if they were employed in law enforcement or security.

B. Procedural Background

Plaintiffs Paul Dorr and Alexander Dorr (collectively “the Dorrs” unless otherwise indicated) filed their original “Class Action Complaint” (docket no. 2) initiating this action on behalf of themselves and other persons similarly situated on October 28, 2009, under 42 U.S.C. §§ 1983 and 1988 (civil rights statutes), 28 U.S.C. § 2201 (declaratory judgment statute), and the Second and Fourteenth Amendments to the United States Constitution. They named as defendants Douglas L. Weber, individually and in his capacity as Sheriff of Osceola County, “his successors,” the Osceola County Sheriff's Department, and Osceola County, Iowa.

Before any party responded by answer or motion to the Dorrs' original Complaint, however, the Dorrs filed a “Class Action First Amended Complaint” (docket no. 16) on November 19, 2008, naming the same defendants, and again asserting claims under 42 U.S.C. §§ 1983 and 1988 (civil rights statutes), 28 U.S.C. § 2201 (declaratory judgment statute), and the Second and Fourteenth Amendments to the United States Constitution. In their Amended Complaint, the Dorrs allege that, in 2007 and 2008, they sought nonprofessional permits to carry weapons, pursuant to Iowa Code § 724.7, but, even though they met all of the statutory criteria necessary for issuance of such permits, pursuant to Iowa Code § 724.8, Sheriff Weber refused to issue the permits without justification. Therefore, they allege generally that all defendants acted illegally in denying their applications for permits to carry a weapon, meaning that the decisions were unreasonable, not authorized, and contrary to the terms, spirit, and purpose of the statute creating and defining nonprofessional permits for citizens to carry a weapon under Iowa law, and, thus, the defendants violated their constitutional rights under the Second and Fourteenth Amendments of the United States Constitution, including their rights to due process, equal protection, and to keep and bear arms.

Defendants the Osceola County Sheriff's Department and the “successors” to Sheriff Weber filed a Motion To Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that the Osceola County Sheriff's Department is not a legal entity under Iowa law capable of suing or being sued, and that no such “successors” to Sheriff Weber exist or are identifiable until there is a new sheriff, and, as a result, there are no “successors” to be served and no one to sue. On July 7, 2009, the court granted defendants Osceola County Sheriff's Department and the “Successors” to Sheriff Weber's Motion To Dismiss and they were dismissed from this lawsuit.

The Dorrs subsequently filed a “Class Action Second Amended Complaint” (docket no. 34) on February 9, 2010, naming defendants Weber and Osceola County, and asserting claims under the First Amendment of the United States Constitution, as well as again asserting claims under 42 U.S.C. §§ 1983 and 1988 (civil rights statutes), 28 U.S.C. § 2201 (declaratory judgment statute), and the Second and Fourteenth Amendments to the United States Constitution.

In the Second Amended Complaint, the Dorrs assert the following claims, on their behalf and on behalf of a putative class of similarly situated persons: ³ Count I alleges that Sheriff Weber denied the Dorrs' permit applications in violation of their Second Amendment right to keep and bear arms and their Fourteenth Amendment right to due process; Count II alleges that Osceola County denied the Dorrs' permit applications in violation of their Second Amendment right to keep and bear arms and their Fourteenth Amendment right to due process through Sheriff Weber, as the County's agent, and consistent with policies of Osceola County; Count III alleges that Sheriff Weber denied Paul's permit application in violation of his First Amendment right to freedom of speech and freedom of association; Count IV alleges that Sheriff Weber denied the plaintiffs' permit applications in violation of their right to equal protection under the Fourteenth Amendment; Count V alleges that Osceola County denied the Dorrs' permit applications in violation of their right to equal protection under the Fourteenth Amendment through Sheriff...