National Ass'n of Government Employees v. Barrett

• Citation: 968 F.Supp. 1564
• Decision Date: 02 July 1997
• Docket Number: No. 1:97-CV-276-RCF.,1:97-CV-276-RCF.
• Parties: NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC., and William S. Hiley, v. Jacqueline H. BARRETT, Fulton County, and United States of America.
• Court: U.S. District Court — Northern District of Georgia

Page 1564

968 F.Supp. 1564

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC., and William S. Hiley, v. Jacqueline H. BARRETT, Fulton County, and United States of America.

No. 1:97-CV-276-RCF.

United States District Court, N.D. Georgia, Atlanta Division.

July 2, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brenda Ann Raspberry, Robin M. Smith, Intern. Broth. of Police Officers, Atlanta, GA, for Plaintiffs.

Kent B. Alexander, Sharon Douglas Stokes, Office of U.S. Atty. Atlanta, GA, Michael Sitcov, Jennifer E. Kaplan, Frank W. Hunger, Gary G. Grindler, U.S. Dept. of Justice, Civil Div., Washington, DC, for Defendants.

ORDER

RICHARD C. FREEMAN, Senior District Judge.

This action is before the court on: (1) plaintiffs' motion for a preliminary injunction [# 3-1, as amended by # 5-1]; (2) defendants' motions to dismiss [# 7-1 and # 13-1]; (3) defendant USA's motion to exceed the page limitation [# 8-1]; and (4) plaintiffs' motion to exceed the page limitation [# 14-1].

Background

On September 30, 1996, President Clinton signed into law, as part of the Omnibus Consolidated Appropriations Act of 1997, amendments to the criminal provisions of the Gun Control Act of 1968, 18 U.S.C. § 1921, et seq. [the Act].¹ Central Act to this action is the amendment that makes it unlawful for "any person ... who has been convicted of a misdemeanor crime of domestic violence"² to ship, transport, possess, or receive firearms in or affecting commerce. 18 U.S.C. § 922(g)(9).³ This amendment, which is codified at § 922(g)(9), applies to all individuals who have been convicted of a domestic violence misdemeanor, including federal, state, and local law enforcement officers, and subjects individuals who knowingly violate the law to a fine, imprisonment, or both. 18 U.S.C. § 924(a)(2). Plaintiffs challenge the constitutionality of this amendment. They base their challenge on the following set of facts.

On August 8, 1990, plaintiff William S. Hiley became employed by defendant Fulton County as a deputy sheriff As a deputy sheriff, Hiley was issued a firearm by the Sheriffs Department, and the possession and ability to use that firearm was a requirement of his employment. Sometime thereafter, Hiley became a member of plaintiff National Association of Government Employees [NAGE], an employee organization and the majority union representative for non-supervisory peace officers who are members of Local 423 in Fulton County. Then, in August 1995, Hiley pleaded "no contest" to a misdemeanor battery that involved a domestic violence charge and was sentenced to a 12-month term of non-reporting probation. Immediately thereafter, Hiley informed the Sheriffs Department of his conviction. The Sheriffs Department did not discipline Hiley for his conviction.

After passage of § 922(g)(9), the Bureau of Alcohol, Tobacco and Firearms [ATF] issued an Open Letter to all state and local law enforcement officials to explain the prohibition set forth in that section. Warren Aff, Attachment 3. In its letter, ATF explained that law enforcement officers previously convicted of a misdemeanor crime of domestic violence who continued to possess firearms would be violating the law and might therefore be subject to criminal penalties. Id. ATF thus suggested that state and local officials "determine if any employee who is authorized to carry a firearm is subject to [the prohibition of § 922(g)(9)] and what appropriate action should be taken." Id.

Subsequently, by letter dated January 10, 1997, defendant Jacqueline H. Barrett, Sheriff of Fulton County, notified Hiley that he was dismissed "for cause" from his position as deputy sheriff, effective at the close of business January 14, 1997. Hiley Aff, Attachment A. The Sheriff's letter stated that "[i]f an employee authorized to carry a County-issued firearm and ammunition is affected by [§ 922(g)(9)], the employee may not possess any firearm or ammunition" and "must return any County-issued firearm and ammunition in accordance with Departmental policy." Id. The letter noted Hiley's misdemeanor conviction and advised him that it justified his termination. Id.

Hiley appealed his termination with the Fulton County Personnel Board, and plaintiffs commenced this action. Through this litigation, plaintiffs seek preliminary and permanent injunctive relief enjoining the enforcement of § 922(g)(9) against any NAGE member on the grounds that § 922(g)(9) is unconstitutional. Since the commencement of this action, Fulton County has rescinded Hiley's termination and has reassigned him to a position as a detention officer, which, presumably, does not require Hiley to possess a firearm. Hiley's reinstatement and reassignment resulted from a settlement agreement entered into by Hiley, Barrett, and Fulton County. In connection therewith, Hiley has dismissed with prejudice his claims against defendants Barrett and Fulton County.

Motion to Dismiss

In their motion to dismiss, defendants challenge plaintiffs' ability to demonstrate that the court has subject matter jurisdiction over this action. Specifically, defendants argue that the doctrines of standing and ripeness preclude the court's review of plaintiffs' claims. Defendants also contend that plaintiffs fail to state a claim upon which relief can be granted.

1. Standing

As the Supreme Court has explained, "the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Thus, before the court may consider the merits of plaintiffs' claims, plaintiffs must demonstrate that the facts alleged present the court with a "case or controversy" within the meaning of Article III of the United States Constitution. Id. A demonstration of three factors is necessary to satisfy the constitutional requisites for standing: (1) that the plaintiff has suffered an actual or threatened injury; (2) that the injury is fairly traceable to the challenged conduct of the defendant; and (3) that the injury is likely to be redressed by a favorable ruling. Valley Forge Christian College v. Americans United for Separation of Church and State Inc., 454 U.S. 464, 471-72, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).⁴

a. Hiley

Defendants argue that Hiley fails to satisfy the constitutional requirements for standing. In his complaint,⁵ Hiley alleges that he has been injured as a consequence of the enactment of § 922(g)(9) because he has been dismissed as a deputy sheriff.⁶ This claim of lost employment meets the standing requirement that Hiley suffer an actual or threatened, and not abstract, injury. See, e.g., Stehney v. Perry, 101 F.3d 925, 930 (3d Cir.1996) (finding loss of employment to constitute sufficient injury for standing purposes). And although Hiley has been reassigned to the position of detention officer and is thus not completely without employment, the court finds that Hiley's alleged preclusion from employment as a deputy sheriff constitutes sufficient injury for the purposes of standing.

The court also finds that Hiley has satisfied the causation requirement for standing. Although Hiley's termination is two steps removed from the prohibition set out in § 922(g)(9), the court finds that Hiley has shown the requisite "logical nexus" between his injury and the challenged action.⁷ See Linda R.S. v. Richard D., 410 U.S. 614, 617-19, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). In finding this nexus, the court notes that the Sheriff's Department did not remove Hiley from his position as deputy sheriff when it learned of his misdemeanor conviction in 1995; it took such action only after § 922(g)(9) made it unlawful for Hiley to possess a firearm legally. Indeed, Barrett's letter to Hiley explained that his termination was justified in light of § 922(g)(9) and his conviction in August 1995. Because the Sheriff's Department allegedly has a longstanding policy that a sworn deputy sheriff have the physical and legal ability to carry a firearm, the court sees little room for determining that Hiley's termination was not fairly traceable to the enactment of § 922(g)(9). Hiley thus sits in a position quite different from the examples provided by defendants in which the nexus between the alleged injuries and challenged conduct was found to be attenuated. See, e.g., San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1130 (9th Cir.1996) (holding that plaintiffs failed to demonstrate that their alleged economic injury was traceable to the Crime Control Act because "any finding that the Crime Control Act had a significant impact on the increase in prices of weapons would be tantamount to sheer speculation").

Lastly, the court turns to the requirement that plaintiff's injury be redressable by a favorable decision. At first blush, it might appear that Hiley is unable to satisfy this requirement because a finding that § 922(g)(9) is unconstitutional does not necessarily lead to his reinstatement to the position of deputy sheriff. Barrett and Fulton County have, however, agreed to reinstate Hiley to his position as deputy sheriff if he prevails on the merits of this suit. Plaintiff has thus demonstrated that it is "likely, as opposed to merely speculative" that his injury will be redressed by a decision in his favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-66, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977) (finding standing because there was a "substantial probability" that plaintiff's injury would be redressed by a favorable ruling).

The court is convinced that Hiley's personal stake in the outcome of this litigation will provide the concrete adverseness necessary to define the issues related to his challenge of the enactment of § 922(g)(9). Accordingly, defendants' motions to...