, Inc. v. Georgia

Decision Date20 July 2012
Docket NumberNo. 11–10387.,11–10387.
Citation687 F.3d 1244,23 Fla. L. Weekly Fed. C 1323
PartiesGEORGIACARRY.ORG, INC., The Baptist Tabernacle of Thomaston Georgia Inc., Edward Stone, Jonathan Wilkins, Plaintiffs–Appellants, v. The State of GEORGIA, Upson County Georgia, Governor of Georgia, County Manager Kyle Hood, Defendants–Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit


John R. Monroe, John R. Monroe, Attorney at Law, Roswell, GA, for PlaintiffsAppellants.

Laura Louise Lones, Samuel Scott Olens, Atty. Gen.'s Office, Atlanta, GA, Truitt Alvah Mallory, J. Edward Trice, Jr., Mallory and Trice, LLP, Thomaston, GA, for DefendantsAppellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

In 2010, the Georgia legislature, apparently concerned that the carrying of weapons1 and long guns2 would likely present an unreasonable risk of harm to people who assemble in eight specific locations, enacted a statute barring the unrestricted carrying of weapons or long guns in those locations. O.C.G.A. § 16–11–127(b) (this provision is hereinafter referred to as the “Carry Law”).3 This statutory bar does not apply, however, to a license holder4 if, on arriving at one of the eight locations, such person “approaches security or management personnel upon arrival ... and notifies such security or management personnel of the presence of the weapon or long gun and explicitly follows the security or management personnel's direction for removing, securing, storing, or temporarily surrendering such weapon or long gun.” Id. § 16–11–127(d)(2). The refusal to approach security or management personnel or to comply with management's direction is a misdemeanor. Id. § 16–11–127(b).

One of the eight locations designated in the Carry Law is a “place of worship.” Id.§ 16–11–127(b)(4). In this case, Edward Stone and Jonathan Wilkins (Plaintiffs) each allege in their Amended Complaint that they regularly attend religious services, possess a weapons carry license, and “would like to carry a handgun” while in a place of worship. Plaintiffs seek a declaration that the Carry Law is unconstitutional on its face and as applied to them because compliance with § 16–11–127 will violate their First Amendment right to the free exercise of their religion5 and their Second Amendment right to bear arms.6 The United States District Court for the Middle District of Georgia found no merit in either claim and dismissed the Amended Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).7 Plaintiffs now appeal the District Court's judgment, arguing that the allegations in the Amended Complaint are sufficient to make out a case that the Carry Law's place of worship provision is unconstitutional either on its face or as applied to Plaintiffs.8


This case began on July 12, 2010, in the Superior Court of Upson County, Georgia. Plaintiffs sued the State of Georgia and Upson County in a two-count complaint presenting the constitutional claims referred to above and seeking declaratory and injunctive relief under 42 U.S.C. § 1983.9 The State and the County removed the case to the District Court pursuant to 28 U.S.C. §§ 1441 and 1446. Plaintiffs amended their complaint to add two defendants, the Governor of Georgia and the Manager of Upson County, and two counts. Their Amended Complaint then read as follows: Count 1, a “direct action,” asserted that the Carry Law “interfered with” Plaintiffs' free exercise of religion; Count 2, brought under § 1983, replicated Count 1; Count 3, another “direct action,” asserted that the Carry Law infringes Plaintiffs' right to keep and bear arms; Count 4, brought under § 1983, replicated Count 3.10

The State of Georgia and the Governor jointly moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(1)11 on the grounds of Eleventh Amendment immunity12 and Plaintiffs' lack of standing to sue, and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief. Upson County and the County Manager separately moved the court to dismiss the Amended Complaint under Rule 12(b)(1) for Plaintiffs's lack of standing, and under Rule 12(b)(6) because the Amended Complaint failed to state a claim for relief.

In addressing the defendants' motions, the District Court bypassed the question of whether Plaintiffs had standing to sue and went straight to the question of whether any of the counts of the Amended Complaint stated a claim for relief. The court found that none of the counts stated a claim, and therefore dismissed the respective counts on the merits. The court dismissed all counts against the State on the additional ground of Eleventh Amendment immunity.13 Before we decide whether the District Court erred in dismissing the four counts of the Amended Complaint under Rule 12(b)(6), we must address an issue the District Court bypassed: whether Plaintiffs lacked standing to sue.14 It is to that issue that we turn now.


“The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution.” U.S. Const. art. III, § 2. To establish an Article III “case,” see Summers v. Earth Island Inst., 555 U.S. 488, 492–93, 129 S.Ct. 1142, 1148–49, 173 L.Ed.2d 1 (2009) (“In limiting the judicial power to Cases' and ‘Controversies,’ Article III of the Constitution restricts it 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 law.”), a plaintiff must establish standing, which requires a showing that

(1) [he] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–181, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). Case law from both the Supreme Court and this court is clear: because we must afford special protection for the exercise of constitutional rights, a plaintiff does not always need to risk prosecution to obtain preventative relief when his or her exercise of a constitutional right at stake. See Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974) ([I]t is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.”); Jacobs v. Florida Bar, 50 F.3d 901, 904 (11th Cir.1995) (“A plaintiff stating that he ‘intends to engage in a specific course of conduct arguably affected with a constitutional interest ... does not have to expose himself to enforcement to be able to challenge the law.’ (quoting ACLU v. Florida Bar, 999 F.2d 1486, 1492 (11th Cir.1993))). Instead, a plaintiff with the exercise of a constitutional right at stake may seek declaratory or injunctive relief prior to the challenged statute's enforcement. See Ex Parte Young, 209 U.S. 123, 150–51, 28 S.Ct. 441, 450, 52 L.Ed. 714 (1908) (concluding that state officials may be enjoined by a federal court of equity and that a federal court may, in appropriate circumstances, enjoin future state criminal prosecutions if the state officials threaten to enforce an unconstitutional statute).

The “injury” in this pre-enforcement context is the well-founded fear that comes with the risk of subjecting oneself to prosecution for engaging in allegedly protected activity. Babbitt v. UFW, 442 U.S. 289, 298–99, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979) (“When plaintiffs ‘do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,’ they do not allege a dispute susceptible to resolution by a federal court.” (quoting Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971))); see also Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (finding that allegations were sufficient when plaintiffs alleged “actual and well-founded fear that the law will be enforced against them”).

This court has held that a risk of prosecution is sufficient if the plaintiff alleges (1) that an actual threat of prosecution was made, (2) that prosecution is likely, or (3) that a credible threat of prosecution exists based on the circumstances. See Jacobs, 50 F.3d at 904. To show that a prosecution is likely or a credible threat exists, a plaintiff must show that there is “a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement.” Am. Civil Liberties Union v. Florida Bar, 999 F.2d 1486, 1492 (11th Cir.1993) (quoting Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979)). We look to see “whether the plaintiff is seriously interested in disobeying, and the defendant seriously intent on enforcing the challenged measure.” Id. at 1493 (quoting Int'l Soc'y for Krishna Consciousness v. Eaves, 601 F.2d 809, 818 (5th Cir.1979)).

Although the Amended Complaint is lacking in many respects, we believe that Plaintiffs have alleged a credible threat of prosecution under the Carry Law sufficient to establish standing to bring a facial challenge. They are license holders who regularly attend services at a place of worship. Moreover, they “would like to carry a handgun in such place of worship for the protection of [their] family and [themselves], but [they are] in fear of arrest and prosecution.” It thus seems clear that Plaintiffs are...

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