Dorr v. Weber, C 08-4093-MWB.
| Decision Date | 07 July 2009 |
| Docket Number | No. C 08-4093-MWB.,C 08-4093-MWB. |
| Citation | 635 F.Supp.2d 937 |
| 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, his successors, The Osceola County Sheriff's Department, and Osceola County, Iowa, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
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.
Are a county sheriff's department and the county sheriff's "successors" proper defendants in a lawsuit challenging denials of the plaintiffs' applications for nonprofessional permits to carry weapons on the ground that the denials violated the plaintiffs' constitutional rights to bear arms, to due process, and to equal protection? The county sheriff's department has moved to dismiss the plaintiffs' complaint as to it, because it is not a legal entity with the right to sue or be sued. The "successors" have moved to dismiss, because no specific claims appear to be directed at them and, in any event, a sitting sheriff has no "successors," so that they cannot be identified or served and they do not exist. The plaintiffs contend that their claims are viable as to both of the movants.
Plaintiffs Paul Dorr and Alexander Dorr 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.
Somewhat more specifically, Paul Dorr alleges that he is a citizen of Iowa and the United States and a resident of Osceola County, Iowa. He alleges that he is a "community activist" engaged in public discourse on issues that some citizens would characterize as controversial and, consequently, some citizens have threatened him with physical harm (and even to shoot him), both during public debates and meetings, and via website blogs. He also alleges that, from time to time, he transports money from fund raising activities, for example, to banks. He alleges that, from 2001 to 2006, he was issued and allowed to renew a nonprofessional permit to carry a weapon, but that Sheriff Weber denied his applications for such a permit in 2007 and again in 2008. He alleges that, on August 9, 2007, Sheriff Weber told Paul Dorr that he had a problem with his application and that he had "heard different things from some of the citizens and there's some fear out there of [Paul Dorr]," but that Sheriff Weber did not provide Paul Dorr with any specific allegations from citizens or otherwise substantiate or document his belief that there was "some fear" of Paul Dorr. Paul Dorr alleges that Sheriff Weber stated that he did not "feel comfortable issuing the permit" and did not "trust him." Paul Dorr alleges that, in response to his 2008 application, Sheriff Weber again denied him a permit and told him he "would deny any new application from [him]." Alexander Dorr alleges that he sought a nonprofessional permit to carry a weapon in 2008, but Sheriff Weber denied his application. Alexander Dorr alleges that, while Sheriff Weber did not give a reason for denying his application, Sheriff Weber did state that he would "consider a new application from [Alexander Dorr] after his twenty-first birthday." The plaintiffs allege that Sheriff Weber did issue Paul Dorr's wife, Debra Dorr, a nonprofessional permit to carry a weapon in 2008.
The Dorrs assert the following claims, on their behalf and on behalf of a putative class of similarly situated persons:1 Count I alleges that Sheriff Weber denied the plaintiffs' 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 plaintiffs' 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 the Osceola County Sheriff's Department and Osceola County; Count III alleges that the Osceola County Sheriff's Department denied the plaintiffs' 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 agent of the Osceola Sheriff's Department, and consistent with policies of the Osceola County Sheriff's Department; 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 plaintiffs' permit applications in violation of their right to equal protection under the Fourteenth Amendment through Sheriff Weber, as the County's agent, and consistent with policies of the Osceola County Sheriff's Department and Osceola County; Count VI alleges that the Osceola County Sheriff's Department denied the plaintiffs' permit applications in violation of their right to equal protection under the Fourteenth Amendment through Sheriff Weber, as the County's agent, and consistent with policies of the Osceola County Sheriff's Department and Osceola County; and Count VII seeks declaratory judgment invalidating the provisions of the Iowa Code concerning determinations of whether or not to grant nonprofessional permits to carry weapons on the ground that those provisions are overly broad and vague and, as such, infringe the right to keep and bear arms in the Second Amendment to the United States Constitution. The Dorrs' constitutional challenge to the Iowa statutes appears to be both on the face of the statutes and as they were applied by Sheriff Weber.2
The Dorrs' Amended Complaint seeks extensive relief, consisting of the following: (1) certification of the class described in the Amended Complaint; (2) judgments that Sheriff Weber, Osceola County, and the Osceola County Sheriff's Department violated Paul Dorr's and Alexander Dorr's constitutional rights to due process as protected under the Fourteenth Amendment of the United States Constitution; (3) judgments that Sheriff Weber, Osceola County, and the Osceola County Sheriff's Department violated the Dorrs' constitutional rights to equal protection of the law as protected under the Fourteenth Amendment of the United States Constitution; (4) judgments that Sheriff Weber, Osceola County, and the Osceola County Sheriff's Department denied the Dorrs permits to carry a weapon thereby denying their Second Amendment rights to keep and bear arms under color of IOWA CODE § 724.8; (5) a judgment that IOWA CODE § 724.8(5) is unconstitutional under the United States Constitution; (6) a judgment that Paul Dorr and Alexander Dorr are entitled to nonprofessional permits to carry a weapon under IOWA CODE § 724.8; (7) a judgment (presumably in the form of an injunction) directing the Osceola County Sheriff's Department to...
To continue reading
Request your trial
-
Plymouth Cnty. v. Merscorp, Inc.
...v. State, 434 N.W.2d 881, 884 (Iowa 1989).Schadendorf v. Snap–On Tools Corp., 757 N.W.2d 330, 337–38 (Iowa 2008); see Dorr v. Weber, 635 F.Supp.2d 937, 945 (N.D.Iowa 2009) (quoting the above from Schadendorf ). With these rules of statutory construction as a starting point, I have observed ......
-
Plymouth Cnty. v. Merscorp, Inc.
...v. State, 434 N.W.2d 881, 884 (Iowa 1989).Schadendorf v. Snap-On Tools Corp., 757 N.W.2d 330, 337-38 (Iowa 2008); see Dorr v. Weber, 635 F. Supp. 2d 937, 945 (N.D. Iowa 2009) (quoting the above from Schadendorf). With these rules of statutory construction as a starting point, I have observe......
-
Walker v. Mo. Dep't of Corrs., 20-cv-04251-NKL
... ... raises questions of fact that cannot be resolved on a motion ... to dismiss. See Dorr v. Weber, 635 F.Supp.2d 937, ... 946 (N.D. Iowa 2009) (holding that “fact-based ... ...