United States District Court, E.D. North Carolina, Western Division
WARREN C. MCNEILL, III, Plaintiff,
LORETTA E. LYNCH, in her Official Capacity as United States Attorney General, and ROY COOPER, in his Official Capacity as Attorney General of North Carolina, Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause conies before the Court on defendants' motions to
dismiss. [DE 14, 17]. The matters have been fully briefed and
a hearing was held before the undersigned on January 24, 2017
in Raleigh, North Carolina. For the reasons discussed below,
defendants' motions are granted and plaintiffs complaint
1977, plaintiff was convicted for a nonviolent drug felony in
the Eastern District of North Carolina. In 1980, after being
released from custody and completing his probation, a North
Carolina state judge ordered that all of plaintiff s
"rights, privileges, and immunities of citizenship be [.
. .] restored" pursuant to N.C. Gen. Stat. § 13-1.
In 1984, the Bureau of Alcohol, Tobacco and Firearms
("ATF") granted plaintiffs application for relief
from federal firearms and explosives disabilities pursuant to
18 U.S.C. §§ 925(c) and 845(b).
1995, the North Carolina General Assembly amended the Felony
Firearms Act, N.C. Gen. Stat. § 14-415.1, to prohibit
possession of certain firearms by all persons convicted of a
felony. Act of July 26, 1995, ch. 487, sec. 3, 1995 N.C.
Sess. Laws 1417-18. The statute provided that, "it shall
be unlawful for any person who has been convicted of a felony
to purchase, own, possess, or have in his custody, care, or
control any handgun" and that prior convictions
resulting in disentitlement include "[violations of
criminal laws of other states or of the United States that
occur before, on, or after December 1, 1995, and that are
substantially similar to . .. [felonies in North Carolina]
which are punishable where committed by imprisonment for a
term exceeding one year" Ch. 487, sec. 3, 1995 N.C.
Sess. Laws 1417-18. An exclusion existed under this version
of the law for felons to possess firearms within their own
home. In 2004, the legislature again modified N.C. Gen. Stat.
§ 14-415.1 to expand the disentitlement to cover all
firearms and also remove the exclusion for home possession.
2004 N.C. Sess. Laws, ch. 186, sec. 14.1.
May of 2016, plaintiff attempted to purchase a firearm from a
federally licensed firearms dealer. After a background check
through the Federal Bureau of Investigation's National
Instant Criminal Background Check System ("NICS")
showed that plaintiff was disentitled to possession under
North Carolina Felony Firearms Act, plaintiffs purchase was
denied. Plaintiff immediately filed an appeal of the
NICS' decision which was denied by letter which stated
that plaintiff is a "prohibited person, " who may
not possess a firearm under North Carolina law.
October 3, 2016, plaintiff filed his complaint in the matter
alleging claims against North Carolina Attorney General, Roy
Cooper ("defendant Cooper") and United, States
Attorney General, Loretta Lynch ("defendant
Lynch"), under 18 U.S.C. § 925A, the Second
Amendment of the United States Constitution, 42 U.S.C. §
1983, and the Declaratory Judgment Act. [DE 1]. Plaintiff
argues the Felony Firearms Act does not apply to him because
ATF relieved plaintiff from his firearms disabilities under
federal law. Id. Plaintiff also argues that, under
the Felony Firearms Act, all plaintiff must do is show that
his rights could be restored under North Carolina law, but
that he need not actually go through the state restoration
process. Id. Plaintiff seeks declaratory relief,
injunctive relief, and attorneys' fees. Id. at
Cooper and Lynch each filed motions to dismiss plaintiffs
complaint. [DE 14, 17]. Plaintiff filed corresponding
responses, [DE 20, 21], to which defendants replied, [DE 26,
27]. Defendants argue first that the case should be dismissed
as not ripe because there is a state process by which felons
can petition to have gun rights restored. The issue here is
therefore not final, because plaintiff has not pursued a
state process which, if successful, could grant him the
relief sought. Defendants next argue that plaintiff cannot
state a claim under § 925 A because he is not entitled
to possess a firearm in North Carolina as a matter of law.
Defendants argue that the Felony Firearms Act clearly
establishes that plaintiff is a person prohibited from
possessing a firearm in North Carolina based upon his federal
conviction, and, therefore, there is no mistaken information
in NICS database to correct.
also argue that plaintiff has no claim under § 1983
because the Supreme Court has recognized that the right to
bear arms can be clearly be regulated in certain
circumstances, such as by prohibitions on the possession of
firearms by convicted felons. There is no provision or
interpretation of federal law providing that a convicted
felon has an absolute right to possess a firearm.
Additionally, the North Carolina General Assembly has
provided statutory relief for some felons through a petition
mechanism in state court for the restoration of their firearm
rights, and there can be no as-applied Second Amendment
violation where plaintiff failed to avail himself of the
state's relief-from-disabilities statute to restore his
defendants argue that the Court should abstain from hearing
this case because federal courts should not adjudicate the
constitutionality of state enactments fairly open to
interpretation until the state courts have been afforded a
reasonable opportunity to pass upon them and, if this Court
were to proceed with this case, the exercise of federal
authority over the questions of state law would be disruptive
of state efforts to establish a coherent policy with respect
to a matter of public concern.
brought their motions to dismiss under both Rule 12(b)(1) and
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal
of a claim for lack of subject matter jurisdiction.
"Subject-matter jurisdiction cannot be forfeited or
waived and should be considered when fairly in doubt."
Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009)
(citation omitted). When subject matter jurisdiction is
challenged, the plaintiff has the burden of proving
jurisdiction to survive the motion. Evans v. B.F. Perkins
Co., 166 F.3d 642, 647-50 (4th Cir. 1999). When a facial
challenge to subject matter jurisdiction is raised, the facts
alleged by the plaintiff in the complaint are taken as true,
"and the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction."
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009). The Court can consider evidence outside the pleadings
without converting the motion into one for summary judgment.
See, e.g., Evans, 166 F.3d at 647.
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Attain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the facts
pled "allow the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,
" and mere recitals of the elements of a cause of action
supported by conclusory statements do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
complaint must be dismissed if the factual allegations do not
nudge the plaintiffs claims "across the line from
conceivable to plausible." Twombly, 550 U.S. at
570. The complaint must plead sufficient facts to allow a
court, drawing on judicial experience and common sense, to
infer more than the mere possibility of misconduct. Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 256 (4th Cir. 2009). The court need not accept the
plaintiffs legal conclusions drawn from the facts, nor need
it accept as true unwarranted inferences, unreasonable
conclusions, or arguments. Philips v. Pitt County Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Court will first consider defendants' arguments that this
controversy is not ripe for adjudication. "The doctrine
of ripeness prevents judicial consideration of issues until a
controversy is presented in 'clean-cut and concrete
form.'" Miller v. Brown,462 F.3d 312,
318-19 (4th Cir. 2006) (quoting Rescue Army v. Mun. Court
of L.A.,331 U.S. 549, 584 (1947)). The burden of
demonstrating that a claim is ripe falls on the party
asserting the claim, id., and in order to determine
whether a claim is ripe a court must "balance the
fitness of the issues for judicial decision and the hardship
to the parties of withholding court consideration."
Franks v. Ross,313 F.3d 184, 194 (4th Cir. 2002)
(internal quotations and citations omitted). A ...