Judge redirects suit over firearms ordinances to state court

By Jessica M. Karmasek | Sep 28, 2012


CHARLESTON - A federal judge has referred a lawsuit over municipal firearms ordinances in Charleston, Dunbar and South Charleston to a West Virginia court.

In his ruling last week, Judge John T. Copenhaver Jr. of the U.S. District Court for the Southern District of West Virginia abstained from and stayed a lawsuit filed by the West Virginia Citizens Defense League Inc. against the three cities, and redirected it to a state court.

Copenhaver, in pointing to a similar order by Judge John Preston Bailey of the Northern District last year, said doing so would permit the plaintiffs to "present their state law claims to a state court of competent jurisdiction."

"It would be inadvisable to render in this court a determination of uncertain state law when those state issues may in the meantime be under consideration, and perhaps resolved, by a state tribunal. That is especially so when the matter involves a matter of public policy so important as the permissible scope of municipal firearm restrictions under the state constitution," Copenhaver wrote in his Sept. 20 ruling.

He added, "In the event that the state courts do not resolve the parties' dispute on state law grounds, plaintiffs are given leave to return to this court for adjudication of their federal claims."

WVCDL, in addition to individual gun rights advocates and a Kanawha County firearms dealer, filed the lawsuit in the federal court last year.

WVCDL is described as a nonprofit corporation that "supports 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."

Some of WVCDL's members are licensed to carry, and do carry, firearms for personal protection when they visit the three municipalities.

The organization's membership also includes collectors who buy and sell handguns.

The individual plaintiffs include Keith T. Morgan, Elizabeth L. Morgan, Jereomy W. Schulz and Benjamin L. Ellis, all of whom reside in or near the defendant municipalities.

Ellis, a Charleston resident, is the organizer and sole member of fellow plaintiff Masada Enterprises LLC, a federally licensed firearms dealer in Elkview.

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 plaintiffs are seeking preliminary and permanent injunctions enjoining Charleston, Dunbar and South Charleston from enforcing the challenged ordinances; declaratory relief consistent with the requested injunction; and fees and costs.

The cities assert that the plaintiffs lack standing to pursue their challenges to the ordinances.

In his 33-page ruling, Copenhaver also dismissed a number of arguments against the Charleston ordinances, saying they appear "unsupported by sufficient standing allegations."

"Those deal with the prohibitions on (1) carrying a weapon without a license at the Sternwheel Regatta (an event, the court notes, that is no longer conducted in Charleston), (2) the purchase of a handgun by, or the sale of a handgun to, one who has received voluntary mental health treatment, and (3) the purchase of a handgun by, or the sale of a handgun to, one who is the subject of pending criminal charges," the judge explained.

"Plaintiffs have not directed the court to allegations in either the amended complaint or other materials in the record which would support the necessary personal stake of any of the plaintiffs in the adjudication of the issues raised by Counts 18 through 29."

However, the allegations in Keith Morgan's declaration satisfy the standing requirements associated with Counts One through 16 and 30 through 34, the judge said.

"The injury is the fear of prosecution and essentially forced compliance with the ordinances' prerequisites despite the allegation that they are unlawful. These injuries, and the consequent impairment of the right to possess a firearm, are directly related to the passage and expected enforcement of the ordinances," Copenhaver wrote.

As to the allegations against South Charleston, Copenhaver said they "plainly satisfy" Article III standing requirements.

The allegations against Dunbar also satisfy the standing requirements, he said.

In his order, Copenhaver also noted that WVCDL, Masada Enterprises, Ellis, WVCDL President Keith Morgan and Leonard Roman, WVCDL vice president, are deemed "jointly responsible" for providing a copy of the ruling to fellow plaintiffs Elizabeth Morgan and Schulz.

In a footnote, the judge said the "unusual method" for providing notice of the court's ruling is necessitated by the death of James Mullins and the "nonappearance of substitute counsel since that time."

Mullins, WVCDL's founder and lawyer, died Aug. 22.

It is unclear how the challenge may proceed, given Mullins' death.

According to The Associated Press, no cases were filed in Kanawha County Circuit Court or the state Supreme Court of Appeals as of Wednesday.

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