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 comes before the Court on plaintiffs motion for
preliminary injunction. [DE 22]. The matters have been fully
briefed and are ripe for disposition. A hearing was held
before the undersigned on January 24, 2017 in Raleigh, North
Carolina. For the reasons discussed below, plaintiffs motion
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 a complaint 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 9-10.
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]. On December 12, 2016, plaintiff filed a motion for
preliminary injunction, [DE 22], to which defendant Cooper
responded, [DE 28]. Plaintiff, in his preliminary injunction
motion, seeks an order directing the North Carolina Attorney
General to "correct the erroneous information provided
to NICS." [DE 22 at 2].
preliminary injunction is an extraordinary and drastic
remedy." Munaf v. Geren, 553 U.S. 674, 689
(2008) (quotation and citation omitted). A movant must make a
clear showing of each of four elements before a preliminary
injunction may issue: (1) that he is likely to succeed on the
merits, (2) that he is likely to suffer irreparable harm in
the absence of preliminary relief, (3) that the balance of
equities tips in his favor, and (4) that an injunction is in
the public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008); see also Real Truth
About Obama, Inc. v. Fed. Election Comm 'n, 575 F.3d
342, 347 (4th Cir. 2009).
ordinary use of a preliminary injunction is for the purpose
of maintaining the status quo until the matter before the
Court can be resolved. Meiselman v. Paramount Film
Distributing Corp., 180 F.2d 94, 97 (4th Cir. 1950).
"Mandatory preliminary injunctions do not preserve the
status quo and normally should be granted only in those
circumstances when the exigencies of the situation demand
such relief." Wetzel v. Edwards, 635 F.2d 283,
286 (4th Cir. 1980). For that reason, the burden for one
seeking a mandatory injunction is higher. Id.;
see also In re Microsoft Corp. Antitrust
Litig., 333 F.3d 517, 525 (4th Cir. 2003). Here, because
the relief plaintiff seeks in his preliminary injunction is
that which would be granted should he prevail in this
lawsuit, plaintiffs motion is properly viewed as one seeking
a mandatory injunction. Therefore, plaintiffs motion can be
granted only if it meets the stringent burden discussed
has failed to meet his burden to show that a preliminary
injunction is merited in this matter. First, plaintiff has
not demonstrated a likelihood of success on the merits
because it is likely that the matter is not yet ripe for
disposition. A case is fit for judicial decision when the
issues are purely legal and when the action in controversy is
final and not dependent on future uncertainties. Franks
v. Ross, 313 F.3d 184, 194 (4th Cir. 2002). Here, North
Carolina's Felony Firearm Act authorizes the restoration
of firearms rights to felons disenfranchised "after a
hearing in court if the court determines that the petitioner
meets the criteria set out in this section and is not
otherwise disqualified to have that right restored."
N.C. Gen. Stat. § 14-415.4(c). The issue plaintiff seeks
to have adjudicated, his right to possess a firearm, is not
final because plaintiff has declined to avail himself of this
state process that, if successful, will grant him the relief
he seeks. Therefore, because this uncertainty likely means
that the matter is not ripe, plaintiff has failed to
demonstrate a likelihood of success on the merits.
has also failed to demonstrate that he is likely to suffer
irreparable harm absent the granting of injunctive relief.
The Supreme Court has recognized that felons do not share the
same entitlement to Second Amendment rights as law abiding
citizens, see District of Columbia v. Heller, 554
U.S. 570, 627 (2008), which is contrary to plaintiffs
argument that he suffers an irreparable harm as a result of
his current disenfranchisement. Additionally, plaintiff has
represented that he is not currently in possession of any
firearms, [DE 6 at ¶ 37], and therefore plaintiff is not
in any immediate danger of criminal prosecution under North
plaintiff has failed to show that the balance of equities
tips in his favor or that an injunction is in the public
interest. This is primarily because plaintiff has not shown
exceptional need to deviate from the status quo at this time,
and nor has he shown that there is a public interest in
upsetting North Carolina's statutory scheme for
reinstating firearms rights or the state's need to