The W. Va. Coal. Against Domestic Violence v. Morrisey
| Docket Number | Civil Action 2:19-cv-00434 |
| Decision Date | 31 August 2023 |
| Parties | THE WEST VIRGINIA COALITION AGAINST DOMESTIC VIOLENCE, INC., Plaintiff, v. PATRICK J. MORRISEY, in his official capacity as Attorney General for the State of West Virginia, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
1
THE WEST VIRGINIA COALITION AGAINST DOMESTIC VIOLENCE, INC., Plaintiff,
v.
PATRICK J. MORRISEY, in his official capacity as Attorney General for the State of West Virginia, Defendant.
Civil Action No. 2:19-cv-00434
United States District Court, S.D. West Virginia
August 31, 2023
MEMORANDUM OPINION AND ORDER
John T. Copenhaver Jr. Senior United States District Judge
Pending is the Motion for Summary Judgment of the plaintiff, The West Virginia Coalition Against Domestic Violence, Inc. (ECF No. 38), filed March 15, 2021. Also pending is the Cross-Motion for Summary Judgment of the defendant, Attorney General Patrick J. Morrisey (ECF No. 44), filed April 5, 2021.
I. Factual and Procedural Background
The West Virginia Coalition Against Domestic Violence, Inc. (“the Coalition”) is a 501(c)(3) nonprofit membership organization with fourteen member programs (hereinafter
“Coalition members”). Joint Stipulation of Facts (“J.S.F.”), ECF No. 34 at ¶ 1-2. Each Coalition member is a domestic violence program that has been licensed by the West Virginia Family Protection Services Board. Id. at ¶ 2. The Coalition members operate as independent incorporated non-profit entities that “provide direct services to victims and survivors of domestic violence and their families.” Id. at ¶¶ 2-4.
Each of the Coalition members “operates at least one shelter, as well as one or more outreach offices, that provide direct services to victims and survivors of domestic violence.” Id. at ¶ 6. Some Coalition members also operate “visitation and exchange centers” that allow for supervised visitation areas for “estranged parents.” Id.
The stated mission of the Coalition is “to end personal and institutional violence in the lives of women, children and men.” Id. at ¶ 8. The parties agree that “[p]roviding a safe environment for victims and survivors of domestic violence is vital to the work of the Coalition and its Members” and that “[p]art of creating a safe environment for victims and survivors of domestic violence is creating an environment where victims and survivors will not be retraumatized.” Id. at ¶¶ 10-11.
Domestic violence and gun violence are interconnected. Several dozen domestic violence related homicides occur in West Virginia every year, and at least some portion of those homicides are committed with a firearm. Id. at ¶ 12. According to West Virginia Domestic Violence Related Death Reports provided by the Coalition, 75% of all domestic violence homicides between October 1, 2019 and September 30, 2020 were committed with a firearm. ECF No. 38-20 at 5. Domestic abusers can use firearms to threaten and control their victims, and mere access to firearms “may increase the risk of lethal violence” to victims. J.S.F. at ¶¶ 13-14; see Thomas Decl., ECF No. 38-18 at ¶ 6 (citing Jacquelyn C. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from Multistate Case Control Study, 93 Am. J. Pub. Health 1089, 1092 (2003) (finding a five-fold increase in femicide when abusers have access to a firearm)).
Indeed, domestic abusers have “come to Coalition Members' properties to stalk, harass, threaten, intimidate, or harm their victims and/or the victim[s'] children.” J.S.F. at ¶ 17. Some Coalition member staff have “witnessed victims be deterred from seeking services . . . because of firearm-related threats that their abusers have made to them and to [Coalition member] staff.” Program C Decl., ECF No. 38-12 at ¶ 5.
Coalition members, their clients, and staff have been threatened with violence in the past, and they continue to face security concerns as a result of their work and mission. J.S.F. at ¶¶ 18-19. Those concerns include threats of violence from both abusers and shelter residents. Id. at ¶ 20.
Ostensibly because of concerns about safety, West Virginia's Family Protection Services Board requires domesticviolence shelters, including the Coalition members, to have written policies “that prohibit the possession and use of weapons . . . violence and drug and alcohol use within the shelter.” Id. at ¶ 21.
In connection with their shelters and offices, all of the Coalition members “own, lease, and/or are charged with the care, custody, and control over parking areas” or “parking lots.” Id. at ¶ 7. Those parking areas are subject to West Virginia's Business Liability Protection Act (“BLPA”), W.Va. Code § 61-7-14.
Previously, the BLPA allowed property owners to prohibit the open or concealed carry of a firearm anywhere on their properties. See W.Va. Code § 61-7-14 (2017) ("[A]ny owner, lessee or other person charged with the care, custody and control of real property may prohibit the carrying openly or
concealing of any firearm or deadly weapon on property under his or her domain ....”).
In March 2018, the West Virginia Legislature enacted House Bill 4817, which amended the BLPA to prohibit property owners from banning firearms in the parking lot areas of their properties. The 2018 amendments are referred to by the parties as the “Parking Lot Amendments.” The Parking Lot Amendments became effective on June 8, 2018.
Subsection 61-7-14(d)(1) of the Parking Lot Amendments provides that:
No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit any customer, employee, or invitee from possessing any legally owned firearm, when the firearm is
(A) Lawfully possessed;
(B) Out of view;
(C) Locked inside or locked to a motor vehicle in a parking lot; and
(D) When the customer, employee, or invitee is lawfully allowed to be present in that area.
Similarly, subsection 61-7-14(d)(4) states that:
No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit or attempt to prevent any customer, employee, or invitee from entering the parking lot of the person's place of business because the customer's, employee's, or invitee's motor
vehicle contains a legal firearm being carried for lawful purposes that is out of view within the customer's, employee's, or invitee's motor vehicle.
The court will refer to subsections 61-7-14(d)(1)(storing) and (d)(4)(entering) collectively as the “No-Prohibition Provisions.”
The Parking Lot Amendments also prohibit owners, lessees, or persons “charged with the care, custody, and control” over parking lots from “violat[ing] the privacy rights of a customer, employee, or invitee . . . [b]y verbal or written inquiry, regarding the presence or absence of a firearm locked inside or locked to a motor vehicle in a parking lot[.]” W.Va. Code § 61-7-14(d)(2)(A). The court will refer to this section as the “Inquiry Provision.”
The BLPA also prohibits owners, lessees, and persons charged with the care, custody, and control of parking lots from “violat[ing] the privacy rights of a customer, employee, or invitee . . . [b]y conducting an actual search of a motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle[.]” W.Va. Code § 61-7-14(d)(2)(B). The court will refer to this subsection as the “Search Provision.”
Subsection 61-7-14(d)(2)(C) prohibits the same individuals from taking “any action against a customer, employee, or invitee based upon verbal or written statements of
any party concerning possession of a firearm stored inside a motor vehicle in a parking lot for lawful purposes, except upon statements made pertaining to unlawful purposes or threats of unlawful actions involving a firearm made in violation of § 616-24 [pertaining to threats of terrorist acts] of this code.” W.Va. Code § 67-7-14(d)(2)(C). The court will refer to this subsection as the “Take-No-Action Provision.”
Finally, the “Employment Provision,” subsection 61-7-14(d)(3)(B), prohibits employers from conditioning employment on an employee's agreement to refrain from keeping a firearm locked in or locked to a vehicle in parking lot areas.[1]
The Parking Lot Amendments authorize the West Virginia Attorney General to bring an action seeking injunctive relief and civil penalties of up to $5,000.00 for each violation plus costs and attorney's fees. W.Va. Code § 67-7-14(f). The Parking Lot Amendments also permit “aggrieved” customers, employees, and invitees to bring private civil actions against violators. Id.
Prior to the enactment of the Parking Lot Amendments, “some Coalition Members had policies, procedures, and/or signage
that prohibited firearms throughout their property, including in parking areas and parked vehicles.” J.S.F. at ¶ 24. Before the enactment of the Parking Lot Amendments, the BLPA specifically provided for their authority to do so. See W.Va. Code § 61-7-14 (2017).
On June 6, 2019, the Coalition filed this civil action against Patrick Morrisey (“the Attorney General”), in his official capacity as Attorney General for the State of West Virginia. Compl., ECF No.1. The Coalition's complaint asserts four violations of 42 U.S.C. § 1983: (I) the Inquiry and Take-No-Action Provisions facially violate the right to free speech under the First Amendment to the U.S. Constitution; (II) the BLPA as a whole, as applied to the Coalition, violates the freedom of association under the First Amendment of the U.S. Constitution; (III) the BLPA as a whole, as applied to the Coalition, violates substantive due process under the Fourteenth Amendment to the U.S. Constitution; and (IV) the Inquiry, Search, and Take-No-Action Provisions are unconstitutionally vague so as to violate procedural due process under the Fourteenth Amendment to the U.S. Constitution. Compl. ¶¶ 73-103. The Coalition requests declaratory judgment in its favor on each count, injunctive relief prohibiting the enforcement of the challenged provisions, and attorney's fees.
On November 25, 2020, this court denied the Attorney General's motion to dismiss, which challenged the Coalition's complaint on...
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