Daly v. Neil

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Jeff Daly, et al.,

Plaintiffs, Case No. 1:18cv346

v. Judge Michael R. Barrett

Jim Neil, et al.,

Defendants.

OPINION AND ORDER

This matter remains before the Court on the Motions to Dismiss filed by Defendant

Charmaine McGuffey,1 the Sheriff of Hamilton County, Ohio ("Hamilton County"),

Defendant Joseph Deters, the Prosecutor for Hamilton County, and Defendant Lieutenant

Matt Hamilton, the Commander for the Ohio State Highway Patrol's Post in Hamilton

County. (Docs. 19, 21).

I. BACKGROUND

Ohio residents can apply for a concealed handgun license ("CHL").

Ohio Rev. Code § 2923.125. To apply for a CHL, an Ohio resident must submit all of the

following items to the appropriate sheriff's office: a completed application form; a non-

refundable $67.00 license fee;2 a color photograph of the applicant; a certificate showing

1 Charmaine McGuffey succeeded Jim Neil as the Sheriff of Hamilton County after the parties completed

the requested supplemental briefing regarding the pending Motions to Dismiss. See Fed. R. Civ. P. 25(d).

2 Each county in Ohio must establish a sheriff's CHL issuance expense fund in which each sheriff must

deposit all fees paid by applicants for the issuance or renewal of a CHL. Ohio Rev. Code § 311.42(A). "The

county shall distribute all fees deposited into the fund except forty dollars of each fee paid by an applicant

under division (B) of section 2923.125 of the Revised Code, . . . to the attorney general to be used to pay

the cost of background checks . . . and to cover administrative costs associated with issuing the license."

Id. Each sheriff, with the approval of their respective board of county commissioners, may expend any

county portion of the CHL fees deposited for any of the following: costs incurred by the sheriff in connection

that the applicant has completed an approved firearms safety and training course; a

certification that the applicant read the pamphlet prepared by the Ohio peace officer

training commission; and a set of fingerprints. Id. § 2923.125(B)(1)-(5). Ohio waives the

CHL fee if the applicant is an active or reserve member of the armed forces of the United

States; is retired or was honorably discharged from military service in the active or reserve

armed forces of the United States; or is a retired peace officer. Id. § 2923.125(B)(1)(c).3

Plaintiff Jarvis lives in Hamilton County, owns more than one firearm, and is not

disqualified from possessing firearms under 18 U.S.C. § 922(g) or Ohio Revised Code

§ 2923.13. (Doc. 3 ¶¶ 10, 12, 35). He is indigent, disabled, and uses a wheelchair. (Id.

¶ 11). He alleges that robberies and other acts of violence have taken place in his

neighborhood and, more than once, criminals have thrown him from his wheelchair and

assaulted him. Id. On May 16, 2018, Plaintiff Jarvis attempted to apply for a CHL at one

of the Hamilton County Sherriff’s offices, but he refused to pay the license fee. (Id. ¶ 27).

The Sherriff’s representative informed Plaintiff Jarvis that the license fee could not be

waived unless he was an active or retired law enforcement officer. Id. Plaintiff Jarvis is

not an active or retired law enforcement officer, did not pay the fee, and did not receive a

CHL. See id. Plaintiff Jarvis alleges that he would obtain a CHL but for the license fee

found in Ohio Revised Code § 2923.125(B)(1). (Id. ¶ 13).

The Hamilton County Sherriff is statutorily charged with, among other duties,

with performing any administrative functions related to the issuance of CHLs; ammunition and firearms to

be used by the sheriff and the sheriff's employees; or any costs incurred in constructing, maintaining, or

renovating a shooting range to be used by the sheriff or the sheriff's employees. Id. § 311.42(B).

3 Ohio also waives the CHL fee if the applicant is a retired natural resources law enforcement staff officer;

a retired forest-fire investigator; a retired wildlife officer; a retired natural resources officer of the department

of natural resources; or a retired federal law enforcement officer who, prior to retirement, was authorized to

carry a firearm in the course of duty, unless the retired peace officer, person, or federal law enforcement

officer retired as the result of a mental disability. Id.

processing CHL applications and enforcing Ohio laws. (Id. ¶¶ 17-18). The Hamilton

County Prosecutor, among other responsibilities, prosecutes crimes committed in and

charged by law enforcement officers in Hamilton County. (Id. ¶¶ 21-22). The Hamilton

County post of the Ohio State Highway Patrol, among other obligations, enforces Ohio

laws. (Id. ¶¶ 19-20).4

Plaintiff Jarvis' remaining claims,5 brought against Defendants in their official

capacities and pursuant to 42 U.S.C. § 1983, are that Ohio Revised Code

§ 2923.125(B)(1) violates his Second and Fourteenth Amendment rights, facially and as

applied. (Id. ¶¶ 40-55). He argues that Section 2923.125(B)(1)'s imposition of a license

fee is not narrowly tailored to meet a compelling state interest or, alternatively, does not

further a significant, substantial, or important objective, and there is not a reasonable fit

between Section 2923.125(B)(1) and the asserted objective for that Section, and that

Ohio may not impose a charge for the enjoyment of one's Second Amendment rights. (Id.

¶¶ 45-46). He also argues that Ohio's waiver of Section § 2923.125(B)(1)'s license fee for

certain groups, but not indigent persons like himself, violates the Fourteenth

Amendment's Equal Protection and Due Process Clauses. (Id. ¶ 52). He seeks

declaratory and injunctive relief. (Id. ¶¶ 56-57); (Id. n.1 PageID 33).

The Court requested that the parties brief the issue of Plaintiff Jarvis' standing to

challenge Ohio Revised Code § 2923.125(B)(1)(a)'s imposition of a license fee before it

4 Plaintiff Jarvis did not name the Ohio Attorney General as a party, but served him pursuant to Federal

Rule of Civil Procedure 5.1’s requirement that a party filing a pleading that questions the constitutionality of

a state statute must serve notice on the state attorney general. (Id. ¶ 23); see FED. R. CIV. P. 5.1(a)(2).

5 In a prior Opinion and Order, the Court held that Plaintiff Jeff Daly and Plaintiff Jarvis lack standing and

may not bring a pre-enforcement challenge with respect to their claims regarding the constitutionality of

Ohio Revised Code § 2923.16(A), (B), and (C) consistent with Article III and dismissed those claims. (Doc.

29). The Court also dismissed Plaintiff Daly's constitutional claims regarding Ohio Revised Code

§ 2923.125(B)(1) as moot. Id. Plaintiff Daly has no remaining claims in this matter.

ruled on the Motions to Dismiss. (Doc. 29). Plaintiff Jarvis responds that he has standing

because he pleaded that he is indigent, would obtain a CHL but for the license fee found

in Section 2923.125(B)(1), and the Sherriff's office enforced the law against him in May

2018. (Doc. 30). In an attached declaration, he adds that he is "unable to pay for the fee

for the concealed carry license" and "unable to pay for the fee for the class for the

concealed carry license." (Doc. 30-1).

Defendant Hamilton responds that Plaintiff Jarvis lacks standing, as Plaintiff does

not allege an injury from Hamilton. (Doc. 31). Defendant Hamilton contends that Plaintiff

does not allege that the Ohio State Highway Patrol has any involvement in the

enforcement of Section 2923.125(B)(1). Id. Defendants McGuffey and Deters respond

that Plaintiff Jarvis lacks standing, as Plaintiff does not have a concrete and particularized

injury. (Doc. 32). They assert that, although Plaintiff alleges that he is indigent, he does

not refute their observations that he has the financial wherewithal to own multiple

firearms, and presumably ammunition for those firearms, and pay the filing fee in this

matter, and admits that he has not complied with Section 2923.125(B)(3). Id. Although

the Court permitted Plaintiff to file a reply, he did not file one. See (Doc. 29).

II. ANALYSIS

"Standing stems from the Constitution's mandate that federal courts may decide

only 'Cases' or 'Controversies.'" Vonderhaar v. Vill. of Evendale, Ohio, 906 F.3d 397, 400-

01 (6th Cir. 2018) (citing U.S. CONST. art. III, § 2, cl. 1). Article III standing requires a

plaintiff to establish three things: a concrete and particularized injury, actual or imminent

("injury-in-fact"), traceable to the defendant ("causation"), and proof that a favorable

outcome would redress the harm ("redressability"). Id. (citing Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992)).

The Court must determine whether Plaintiff Jarvis has standing to challenge

Section 2923.125(B)(1) before it can address the merits of his constitutional claims. See

City of Heath, Ohio v. Ashland Oil, Inc., 834 F. Supp. 971, 975 (S.D. Ohio 1993); accord

Moir v. Greater Cleveland Trans. Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Bell v.

Hood, 327 U.S. 678, 682 (1946) ("The Court will consider the 12(b)(1) motion first, as the

12(b)(6) challenge becomes moot if subject matter jurisdiction is lacking.")). In doing so,

the Court can consider matters outside the pleadings. See Cartwright v. Garner, 751 F.3d

752, 759 (6th Cir. 2014) (explaining that, in a challenge to the factual existence of subject

matter jurisdiction, the Court “has broad discretion with respect to what evidence to

consider in deciding whether subject matter jurisdiction exists, including evidence outside

of the pleadings.").

Plaintiff Jarvis does not allege that Defendants Hamilton and Deters, or anyone

acting under their authority, play a role in the enforcement of Section 2923.125(B)(1).

(Doc. 3 ¶¶ 17-22); (Doc. 30). He alleges that the Hamilton County Sherriff, and those

acting under the Sherriff's authority, are charged with processing CHL applications,

including the imposition of the license fee, and enforce Section 2923.125(B)(1) by

requiring that the license fee be paid before accepting CHL applications. (Doc. 3 ¶¶ 17-

18); (Doc. 30); accord (Doc. 24 PageID 113) (Plaintiffs' Response in Opposition to

Defendant Hamilton's Motion to Dismiss) ("Lt. Hamilton argues, and we agree, that he

has no enforcement authority over the concealed carry fee issue. It is the Sheriff who

mandates the fee for the license under the statute."). Plaintiff Jarvis' claims regarding

Section 2923.125(B)(1) derive from allegations about Defendant McGuffey's actions only.

See, e.g., (Doc. 3 ¶¶ 17-18, 27). Accordingly, Plaintiff Jarvis lacks standing to bring his

claims regarding Section 2923.125(B)(1) against Defendants Hamilton and Deters, as

Plaintiff does not allege any injury that is fairly traceable to those Defendants' conduct.

See Lujan, 504 U.S. at 560; Vonderhaar, 906 F.3d at 401.

Plaintiff Jarvis' Amended Complaint alleges that he is indigent; he attempted to

apply for a CHL without paying the license fee, but the Sherriff's representative did not

waive the fee; and he would obtain a CHL but for the requirement of the license fee.

(Doc. 3 ¶¶ 11-13, 27). In his declaration attached to his supplemental brief, he states that

he is "unable to pay for the fee for the concealed carry license" and "unable to pay for the

fee for the class for the concealed carry license." (Doc. 30-1). The Amended Complaint,

however, does not mention or challenge Ohio Revised Code § 2923.125(B)(3)'s

requirement that an Ohio resident applying for a CHL submit a certificate showing that he

has completed an approved firearms safety and training course. See (Doc. 3). So, even

assuming without deciding that Section 2923.125(B)(1)'s license fee requirement is

unconstitutional,6 Plaintiff Jarvis concedes that he still would not be able to obtain a CHL,

as he has not completed an approved firearms safety and training course, and he does

not challenge Section 2923.125(B)(3). The Court thus finds that Plaintiff Jarvis does not

have a sufficiently particularized injury, lacks standing, and may not challenge Ohio

Revised Code § 2923.125(B)(1) consistent with Article III against Defendant McGuffey.

See Lujan, 504 U.S. at 560; Vonderhaar, 906 F.3d at 401.

6 And, to be clear, the Court does not reach that question.

III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants’ Motions to

Dismiss (Docs. 19, 21) are GRANTED. This matter is CLOSED and TERMINATED from

the active docket of this Court.

IT IS SO ORDERED. _/s Michael R. Barrett________

Michael R. Barrett, Judge

United States District Court