Opinion
7:21-CV-104-M
08-13-2021
STANLEY LORENZO WILLIAMS, Plaintiff, v. THE STATE OF NORTH CAROLINA, et al, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones Jr. United States Magistrate Judge
This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-3] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition .... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed Med Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md House o/Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . ." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a,pw se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. ANALYSIS
A. Background
Plaintiff alleges that he has several prior felony convictions carrying terms of imprisonment of at least twelve months. Compl. [DE-1-1] at 5. His convictions are more than twenty years old, and he has lived a law-abiding life for the last two decades. Id. Following the Black Lives Matter protests and the attack on the Capitol on January 6, 2021, Plaintiff decided to apply for a handgun permit in order to protect himself and his home. Id. at 5-6. On April 20, 2021, Plaintiff's application was denied pursuant to N.C. Gen. Stat. § 14-415.1 and 18 U.S.C. § 922(g)(1) due to his felony convictions. [DE-1-3] at 2. Plaintiff claims that the denial of his application violates the Second Amendment and his substantive due process rights, the Equal Protection Clause of the Fourteenth Amendment, and his right to procedural due process.
B. Discussion
North Carolina makes it "unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm." N.C. Gen. Stat. §14-415.1. Likewise, 18 U.S.C. § 922(g)(1) provides that it is "unlawful for any person who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year... [to] possess in or affecting commerce, any firearm or ammunition." Plaintiff contends that the laws are unconstitutional on their face and as applied to him. Compl. [DE-1-1] at 6.
1. The Second Amendment and Substantive Due Process
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const, amend. II. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and the Court clarified that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," which the Court characterized as examples of "presumptively lawful regulatory measures." 554 U.S. 570, 626-27, 627 n.26, 635 (2008).
The "Second Amendment right recognized in Heller," which was "the right to possess a handgun in the home for the purpose of self-defense," was later incorporated against the States through the Due Process Clause of the Fourteenth Amendment. McDonald v. City of Chicago, III., 561 U.S. 742, 791 (2010).
In United States v. Chester, the Fourth Circuit considered whether 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by domestic violence misdemeanants, violates the Second Amendment right recognized in Heller. 628 F.3d 673, 674 (4th Cir. 2010). The Fourth Circuit articulated a two-part test for analyzing Second Amendment challenges: first, the court asks whether the law "burdens or regulates conduct that comes within the scope of the Second Amendment," and second, if it does, the court applies "an appropriate form of means-end scrutiny." Id. at 680-81. In Heller, the Supreme Court had held that a broad prohibition on possession of firearms by law-abiding citizens for self-defense in the home would fail any level of scrutiny, so it did not specify which level should be applied in subsequent cases but noted that rational basis would be inappropriate. 554 U.S. at 628-29, 628 n.27. The Fourth Circuit in Chester applied intermediate scrutiny rather than strict scrutiny because the right of a domestic violence misdemeanant to possess a firearm in his home was "not within the core right identified in Heller-the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense." 628 F.3d at 683. Accordingly, the question was whether the government had demonstrated "a reasonable fit between the challenged regulation and a substantial government objective." Id. At 683 (citations omitted). The Fourth Circuit remanded the case for the government to present evidence and ultimately affirmed the district court's conclusion that the law was constitutional. Id; United States v. Chester, 847 F.Supp.2d 902,911 (S.D. W.Va. 2012), aff'd, 514 Fed.Appx. 393 (4th Cir. 2013).
In United States v. Moore, the Fourth Circuit considered a constitutional challenge to 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by felons. 666 F.3d 313, 316 (4th Cir. 2012). The court began "by noting the unanimous result reached by every court of appeals that § 922(g)(1) is constitutional, both on its face and as applied." Id. The court cited Heller's characterization of a prohibition of possession of firearms by felons as a "presumptively lawful regulation" and noted that the Supreme Court did not specify whether the regulation was lawful because it prohibited conduct outside the scope of the Second Amendment or because it would pass any level of scrutiny. Id. at 318. The Fourth Circuit held:
Whichever meaning the Supreme Court had in mind negates a facial challenge to a felon in possession statute like § 922(g)(1). If such restrictions were outside the scope of Second Amendment coverage at ratification, then obviously it is not within Second Amendment protection now. On the other hand, if a § 922(g)(1)-type statute has some Second Amendment coverage, the fact it is presumptively lawful indicates it must pass muster under any standard of scrutiny.Id. Likewise, here, Plaintiff's facial challenge fails because a prohibition on possession of a firearm by a felon is presumptively lawful. See id.
Moving to Moore's as-applied challenge, the Fourth Circuit held that because Moore had "three prior felony convictions for common law robbery and two prior convictions for assault with a deadly weapon on a government official," he was not a "law-abiding, responsible citizen," and his right to possess a firearm was therefore not within the scope of the Second Amendment right recognized in Heller. Id. at 319-20. The Fourth Circuit did "not foreclose the possibility that a case might exist in which an as-applied Second Amendment challenge to § 922(g)(1) could succeed," but given Moore's criminal history and his vague proffered reason for wanting to possess a firearm-to protect himself from being robbed in a dangerous neighborhood-he could not rebut "the presumption that the presumptively lawful regulatory measure of the long standing prohibition on felon firearm possession is unconstitutional as applied to him." Id. at 320. "In order for [a party] to rebut the presumption of lawfulness regarding § 922(g)(1) as applied to him, he 'must show that his factual circumstances remove his challenge from the realm of ordinary challenges."' United States v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012) (holding that "the circumstances surrounding Smoot's possession of the loaded .38 Smith and Wesson revolver in his waistband in the backyard on Oliver Street do not distinguish his challenge from the typical application of § 922(g)(1)," so the law was not unconstitutional as applied to him) (quoting Moore, 666 F.3d at 319).
Less than a year after Moore, the Court of Appeals of North Carolina considered whether N.C. Gen. Stat. § 14-415.1, the North Carolina analog to § 922(g)(1), violates the Second Amendment right as it was recognized in Heller. Johnston v. State, 224 N.C.App. 282, 293, 735 S.E.2d 859, 868 (2012), aff'd, 367 N.C. 164,749 S.E.2d 278 (2013). At the first step of the Chester two-part test, the Court of Appeals held that "the record before us does not contain historical evidence to reveal whether the Second Amendment protects a felon's right to bear arms," so the Court assumed arguendo that it did and moved to the second step of the inquiry. Id., 224 N.C.App. at 293, 735 S.E.2d at 868. The Court applied intermediate scrutiny because "[b]y virtue of plaintiff's criminal history, his claim is not within the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense." Id., 224 N.C.App. at 294, 735 S.E.2d at 869. The Court remanded the case to the trial court to hear evidence and argument as to whether the law was unconstitutional as applied to Johnston. Id.
In United States v. Thorpe, the Fourth Circuit again considered an as-applied challenge to 18 U.S.C. § 922(g)(1). 680 Fed.Appx. 209,211 (4th Cir. 2017). Thorpe had felony drug convictions that were over twenty years old and did not have a history of violent conduct. Id. The Fourth Circuit held that "[although we have left open the possibility of a successful as-applied challenge to § 922(g)(1), given Thorpe's criminal history, he cannot meet the 'law-abiding responsible citizen requirement.'" (citing Moore, 666 F.3d at 320 and quoting United States v. Pruess, 703 F.3d 242, 246 (4th Cir. 2012)).
Also in 2017, the Fourth Circuit explained how it considers whether a person is a "law-abiding, responsible citizen" for purposes of the first step of the Chester analysis:
we simply hold that conviction of a felony necessarily removes one from the class of "law-abiding, responsible citizens" for the purposes of the Second Amendment, absent the narrow exceptions mentioned below.
Where the sovereign has labeled the crime a felony, it represents the sovereign's determination that the crime reflects "grave misjudgment and maladjustment," as recognized by the district court. A felon cannot be returned to the category of "law-abiding, responsible citizens" for the purposes of the Second Amendment and so cannot succeed at step one of the Chester inquiry, unless the felony conviction is pardoned or the law defining the crime of conviction is found unconstitutional or otherwise unlawful.
By confining the step one analysis to the challenger's criminal history, we consider only the conviction or convictions causing the disability to the challenger. As a result, we also hold that evidence of rehabilitation, likelihood of recidivism, and passage of time are not bases for which a challenger might remain in the protected class of "law-abiding, responsible" citizen.Hamilton v. Pallozzi, 848 F.3d 614, 626-27 (4th Cir. 2017).
Here, Plaintiff alleges that he has several felony convictions including breaking and entering, armed robbery, and possession with intent to sell drugs. Compl. [DE-1-1] at 5. Accordingly, he is not a "law-abiding, responsible citizen," and at the first step of the Chester analysis, the law prohibiting him from possessing a firearm does not "burden[] or regulate[] conduct that comes within the scope of the Second Amendment." Chester, 628 F.3d at 680. Plaintiff has therefore failed to state a claim that the law violates his Second Amendment and substantive due process rights, and it is recommended that the claim be dismissed.
2.Equal Protection
Plaintiff also contends that N.C. Gen. Stat. § 14-415.1 violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. "To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Here, Plaintiff alleges that he was treated differently than others in that he was denied a handgun permit because of his status as a felon.
The "promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996); Greenville Women's Clinic v. Bryant, 222 F.3d 157,171 (4th Cir. 2000). Therefore, "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer, 517 U.S. at 631; Bostic v. Schaefer, 760 F.3d 352, 375 (4th Cir. 2014). The rational basis standard of review is "not a toothless one." Matthews v. Lucas, 427 U.S. 495, 510 (1976). However, there is "a strong presumption of validity, and those attacking the rationality of the legislative classification have the burden" to show that there is no '"conceivable basis which might support it.'" F.C.C. v. Beach Commc 'ns, 508 U.S. 307, 315 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356,364 (1973)); Nat'l Ass'n for the Advancement of Multijurisdiction Practice v. Lynch, 826 F.3d 191,196 (4th Cir. 2016).
N.C. Gen. Stat. § 14-415.1 is subject to rational basis review because it neither burdens a fundamental right nor draws a suspect classification. A fundamental right is one that is "explicitly or implicitly guaranteed by the Constitution." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973). The interest at stake is Plaintiff's ability to possess a firearm for self-defense as a felon. That interest is not explicitly or implicitly guaranteed by the Constitution, so it is not a fundamental right. See Moore, 666 F.3d at 316 ("We begin our analysis by noting the unanimous result reached by every court of appeals that § 922(g)(1) is constitutional."); Johnston, 224 N.C.App. at 294, 735 S.E.2d at 869 ("plaintiff's claim is not within the core right described in Heller. By virtue of plaintiff's criminal history, his claim is not within the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense."); Pruess, 703 F.3d at 247 ("We have held that Pruess has failed to rebut the constitutionality under the Second Amendment of his conviction as a felon in possession. As a result, Pruess has no right-much less a fundamental right-to bear arms and we apply only rational basis review to Pruess' equal protection challenge.").
Moreover, the suspect classifications are race, ethnicity, and religion. Johnson v. California, 543 U.S. 499,505 (2005) (holding that "all racial classifications are suspect") (citations omitted); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291 ("[E]thnic distinctions of any sort are inherently suspect"); Bowman v. United States, 564 F.3d 765, 772 (6th Cir. 2008) ("Strict scrutiny applies where the classification... is based on religion."). A person's status as a felon is not a suspect classification. Because the statute neither burdens a fundamental right nor discriminates against a suspect class, it is analyzed under rational basis review.
To survive rational basis review, the statute must "rationally further a legitimate state interest." Nordlinger v. Hahn, 505 U.S. 1,10 (1992); Quinn v. Bd. of Cty. Comm'rs, 862 F.3d433, 444 (4th Cir. 2017). In Lewis v. United States, the Supreme Court held that prohibiting felons from possessing firearms rationally furthers the legitimate state interest in protecting the public safety:
Congress ... was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United States. The legislative history of the gun control laws discloses Congress' worry about the easy availability of firearms, especially to those persons who pose a threat to community peace. And Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record. Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm.445 U.S. 55, 66 (1980); see also Pruess, 703 F.3d at 247; United States v. Land, 921 F.2d 272 (4th Cir. 1990) ("There is clearly a rational relationship between prohibiting the possession of firearms by persons convicted of serious crimes and attaining a legitimate government goal: reduction of lawlessness and violent crime."). Accordingly, it is recommended that Plaintiff's Equal Protection claim be dismissed.
3.Procedural Due Process
To state a procedural due process claim, a plaintiff must show "(1) a cognizable liberty or property interest; (2) the deprivation of that interest by some form of state action; and (3) that the procedures employed were constitutionally inadequate." Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009). "Procedural due process provides merely 'a guarantee of fair procedures-typically notice and an opportunity to be heard.'" Wolf, 555 F.3d at 323 (quoting Mora v. City of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008)). The court considers three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (citing Goldberg v. Kelly, 397 U.S. 254, 263-71 (1970)).
Here, Plaintiff has failed to state a claim for the denial of his procedural due process rights. In Johnston, the North Carolina Court of Appeals considered a procedural due process argument and held that because "[n]o federal or State case has held that a convicted felon enjoys a liberty interest to bear arms under the Fourteenth Amendment... the Act does not deprive plaintiffs of liberty without due process of law under the United States Constitution." 224 N.C.App. at 306, 735 S.E.2d at 876. Even assuming that the law did deprive Johnston of a liberty interest, the court held that "the State's interest in ensuring the public safety outweighs the private interest involved (if any) and any risk of erroneously depriving those interests." Id., 224 N.C.App. At 307, 735 S.E.2d at 876. To the extent that the denial of a permit to purchase a handgun deprives Plaintiff of a property interest, the Fourth Circuit has noted that a handgun permit applicant "had full procedural protections for this supposed property interest, including an administrative hearing and a right of access to the state courts," which "fully explains why she has not pled a claim for denial of procedural due process." Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995). Likewise, here, Plaintiff received notice that he could appeal the denial of his permit to the North Carolina superior court and received instructions for doing so. [DE-1-3] at 3. Plaintiff alleges in his complaint that he filed an appeal in New Hanover County Superior Court on May 17, 2021 and the court denied his appeal on May 19,2021. Compl. [DE-1-1]at 6. Accordingly, it is recommended that Plaintiff's procedural due process claim be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until August 27, 2021, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841,846-47 (4th Cir. 1985).