W. Va. Citizens Def. League, Inc. v. City of Charleston, Civil Action No. 2:11-0048
| Decision Date | 20 September 2012 |
| Docket Number | Civil Action No. 2:11-0048 |
| Parties | WEST VIRGINIA CITIZENS DEFENSE LEAGUE, INC., a West Virginia nonprofit corporation, and KEITH T. MORGAN and ELIZABETH L. MORGAN and JEREOMY W. SCHULZ and BENJAMIN L. ELLIS and MASADA ENTERPRISES LLC, a West Virginia limited liability company, Plaintiffs, v. CITY OF CHARLESTON, a West Virginia municipal corporation, and DANNY JONES, personally and in his official capacity as the Mayor of the City of Charleston, and BRENT WEBSTER, personally and in his official capacity as the Chief of Police of the City of Charleston, and CITY OF SOUTH CHARLESTON, a West Virginia municipal corporation, and FRANK A. MULLENS, JR., in his official capacity as the Mayor of the City of South Charleston, and BRAD L. RINEHART, in his official capacity as the Chief of Police of the City of South Charleston, and CITY OF DUNBAR, a West Virginia municipal corporation, and JACK YEAGER, in his official capacity as the Mayor of the City of Dunbar, and EARL WHITTINGTON, in his official capacity as the Chief of Police of the City of Dunbar, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending are (1) the motion to dismiss filed March 28, 2011, by defendant City of Charleston, along with its Mayor Danny Jones and Chief of Police Brent Webster ("Charleston defendants"), (2) the motion to dismiss filed April 15, 2011, by defendant City of Dunbar, along with its Mayor Jack Yeager and Chief of Police Earl Whittington ("Dunbar defendants"), and (3) the motion to dismiss filed April 15, 2011, by defendant City of South Charleston, along with its Mayor Frank A. Mullens, Jr., and Chief of Police Brad L. Rinehart ("South Charleston defendants").
On May 16, 2011, the court received the final brief respecting these motions, namely, the reply by the Charleston defendants relating to their motion to dismiss. On May 19, 2011, the court stayed the case at the parties' request pending disposition of the motions to dismiss. On June 17, 2011, the court learned of a decision rendered by the Honorable John Preston Bailey, Chief Judge of the United States District Court for the Northern District of West Virginia, in the case of West Virginia Citizens Defense League, Inc. v. City of Martinsburg, No. 3:11-0005 (N.D. W. Va. Jan. 24, 2011). Chief Judge Bailey requested briefing respecting the application of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). OnJuly 1, 2011, this court chose the same course. Plaintiffs' reply brief on the Pullman issue was received on August 11, 2011. Chief Judge Bailey, as more fully discussed infra, entered his decision to abstain and stay City of Martinsburg pending adjudication by the state courts respecting certain state claims alleged by plaintiffs. On June 19, 2012, the court of appeals affirmed the ruling. See West Virginia Citizens Defense League, Inc. v. City of Martinsburg, No. 11-2231, 2012 WL 2311837 (4th Cir. Jun 19, 2012).
Plaintiff West Virginia Citizens Defense League, Inc. ("WVCDL" or "the organization"), is a nonprofit corporation that "support[s] an individual's right to keep and bear arms for defense of self, family, home and state, and for lawful hunting and recreational use, as protected by the West Virginia Constitution and the Second Amendment of the United States Constitution." (Am. Compl. ¶ 2). Some of WVCDL's members are licensed to carry, and do carry, firearms for personal protection when they visit the municipalities of Charleston,Dunbar, and South Charleston. The organization's membership also includes collectors who buy and sell handguns.
The defendant municipalities have each enacted ordinances that restrict or condition the possession and sale of firearms. Violations are punishable by a fine and imprisonment for up to 30 days. The individual plaintiffs are Keith T. Morgan, Elizabeth L. Morgan, Jereomy W. Schulz, and Benjamin L. Ellis. Plaintiffs all reside in or near the defendant municipalities. Mr. Ellis, a Charleston resident, is the organizer and sole member of plaintiff Masada Enterprises, LLC ("Masada"), a federally licensed firearms dealer in Elkview.
The amended complaint and declarations filed by Mr. and Mrs. Morgan and Mr. Schulz contain a number of allegations designed to satisfy Article III standing requirements. The amended complaint alleges that both Mr. Morgan and Mr. Schulz declined to purchase firearms from a Charleston dealer. Their decision appears based upon Charleston's 72-hour waiting period and its prohibition on gun purchases within 30 days after having previously bought a firearm.
Mr. Morgan's declaration, which overlaps in many respects with similar filings by Mrs. Morgan and Mr. Schulz, elaborates further on the limitations he complains of and the concerns associated with them:
(Aff. Of Keith Morgan at ¶¶ 11, 17, 20). Mr. Morgan additionally asserts that if the challenged ordinances were stricken that he would purchase the aforementioned firearm. He also states his belief that the Charleston defendants are presently enforcing the ordinances and specifically notes, by example, a prominent warning posted at the Charleston Civic Center respecting the ban on firearms.
Mr. Ellis and Masada also fear potential legal liability based upon the Charleston ordinances. That concern is founded, at least in part, upon a definition found in section 18-421 of the City of Charleston Code:
Dealer means any individual, corporation, partnership or venture which engages in any business, activity, trade or employment.
City of Chas. Code of Ords. § 18-421. With respect to this and other language found in the Charleston ordinances, Mr. Ellis alleges as follows, presumably on behalf of Masada as well:
Mr. Ellis cannot reasonably determine whether Charleston City Code §§ 18-421 through 428, referring to prohibiting various acts by any "person or dealer" or words to a similar effect, serve to regulate the transfer of handguns not only by licensed dealers, but also by literally any other person, including any resident of the City of Charleston who may attempt to sell, loan, or rent a handgun from his or her personal collection, either within or without the territorial limits of the City of Charleston, or any resident of the City of Charleston who may purchase or rent a handgun for any purpose within or without the territorial limits of the City of Charleston.
(Am. Compl. ¶ 57). The court understands this allegation to form the basis for, inter alia, a vagueness challenge by both Mr. Ellis and Masada to the dealer requirements found in the Charleston ordinances. That conclusion is supported by the allegations found in Count One, summarized later in this memorandum opinion and order. One such dealer requirement is found in section 18-425 of the Charleston City Code:
City of Chas. Code of Ords. § 18-425.
Mr. Schulz resides in the City of South Charleston. He frequently visits Joplin Park. He is prohibited by South Charleston's ordinances from going there, or any other South Charleston-owned location, however, while possessing a firearm. Were it not for the South Charleston ordinances, Mr. Schulz, Mr. and Mrs. Morgan, and Mr. Ellis, would "regularly carry handguns when they visit various locations described" in the South Charleston ordinances. (Am. Compl. ¶ 205). When Mr. and Mrs. Morgan, Mr. Ellis, Mr. Schulz, and "many other" WVCDL members occasionally visit these South Charleston-owned areas "while exercising their constitutionally-protected right to keep and bear arms for personal protection," they allege a reasonable"fear [of] arrest, prosecution, fine, and imprisonment." (Id. ¶ 204).
With respect to the remaining defendants, Mr. Morgan asserts that Dunbar City Hall has posted warnings about the consequences of carrying of firearms therein, including a threat of "Criminal Prosecution." (Morgan Aff. At 3). Mrs. Morgan, who works in Dunbar, notes that she has regularly in the past visited Dunbar Wine Cellar Park and the Dunbar Recreational Center. She ceased doing so after she began regularly carrying a handgun. She feared the penalties that might be imposed upon her as a result of the Dunbar ordinances that she and her fellow ...
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