Kansky v. Luzerne County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

:

LAWRENCE J. KANSKY,

:

Plaintiff CIVIL ACTION NO. 20-cv-42

:

v. (JUDGE MANNION)

:

LUZERNE COUNTY, LUZERNE

COUNTY SHERIFF’S :

DEPARTMENT, AND BRIAN

SZUMSKI, :

Defendant :

MEMORANDUM

Before the court is Defendants’ Motion to Dismiss Plaintiff’s Third

Amended Complaint. (Doc. 66). The Third Amended Complaint (the

“Complaint”), (Doc. 57), brings claims under 42 U.S.C. §1983, asserting

violations of the First, Second, and Fourteenth Amendments. (Id. ¶9).

I. BACKGROUND1

The Complaint alleges the following: Plaintiff noticed an injured

raccoon in Wilkes-Barre, near 72 W. North Street. (Doc. 57 ¶12). After calling

1 In considering a motion to dismiss, the court considers only the facts

alleged in the complaint, exhibits attached to the complaint, and matters of

public record. Bruni v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir. 2016).

911 several times and waiting for 8 hours, he shot the raccoon. (Id. ¶13).

About two weeks later, he was charged with counts of reckless

endangerment, disorderly conduct, and unlawful acts concerning taking of

furbearers. (Id. ¶14). He later spoke to local media, including The Citizen’s

Voice, about the charges, explaining that he shot the animal “to put it out of

its misery and to protect the public.” (Id. ¶¶15–16). His license to carry a

firearm was then revoked by Defendant Brian Szumski, Luzerne County

Sheriff. (Id. ¶21).

Five counts are asserted. Plaintiff claims that:

(I) Defendants retaliated against him in violation of the First

Amendment;

(II) Defendants’ policy regarding revocation of firearms is vague and

overbroad;

(III) Luzerne County’s policy on revocation of firearms violated his

rights under the Second Amendment;

(IV) Defendants violated his rights to Due Process through their

revocation of his license to carry a firearm; and

(V) Defendants’ policy on revocation of licenses to carry firearms is

unconstitutional under the Second Amendment.

II. LEGAL STANDARD

Defendants move to dismiss under Fed.R.Civ.P. 12(b)(6), which

provides for the dismissal of a complaint, in whole or in part, if the plaintiff

fails to state a claim upon which relief can be granted. The moving party

bears the burden of showing that no claim has been stated, Hedges v. United

States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only

if, accepting all of the facts alleged in the complaint as true, the plaintiff has

failed to plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The facts

alleged must be sufficient to “raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. This requirement “calls for enough fact[s]

to raise a reasonable expectation that discovery will reveal evidence of” the

necessary elements of the plaintiff’s cause of action. Id. Furthermore, in

order to satisfy federal pleading requirements, the plaintiff must “provide the

grounds of his entitlement to relief,” which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)

(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544 at

555).

III. DISCUSSION

Plaintiff brings this suit under 42 U.S.C. §1983, which allows for a

private suit by one who was deprived of a constitutional right by a person

acting under the color of law. See Thomas v. Tice, 948 F.3d 133, 138 (3d

Cir. 2020).

A. Municipal Defendants

It appears from the Complaint that each claim is brought against all

Defendants, including the municipal Defendants: Luzerne County and the

Luzerne County Sheriff’s Department. Before discussing each claim

individually, the court addresses the possibility of municipal liability generally.

1) Sheriff’s Department

It must first be noted that the Luzerne County Sheriff’s Department is

merely a sub-unit of Luzerne County, and so is not properly a separate

defendant. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir.

1997) (“[W]e treat the municipality and its police department as a single entity

for purposes of section 1983 liability.”); Benard v. Washington Cnty., 465 F.

Supp. 2d 461, 470 (W.D. Pa. 2006); Open Inns, Ltd. v. Chester Cnty.

Sheriff’s Dep’t, 24 F. Supp. 2d 410, 416 n.13 (E.D. Pa. 1998). For this

reason, Plaintiff’s claims for municipal liability will be analyzed as against a

single municipal defendant, Luzerne County.

2) Luzerne County

Municipalities may only be held liable under §1983 “when the alleged

constitutional transgression implements or executes a policy, regulation or

decision officially adopted by the governing body or informally adopted by

custom.” Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 237 (3d Cir.

2013).

Defendants argue that Plaintiff has failed to adequately plead that a

policy or custom existed. (Doc. 72 at 43). To plead §1983 liability against a

municipality, a plaintiff “must identify a custom or policy, and specify what

exactly that custom or policy was.” McTernan v. City of York, 564 F.3d 636,

658 (3d Cir. 2009). The complaint may not “simply paraphrase[] §1983,” id.,

for a “formulaic recitation of the elements of a cause of action will not do.”

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (quoting Twombly, 550 U.S.

at 555).

The Complaint mostly offers conclusory statements of policy. Plaintiff

first asserts that his allegation that Defendant Szumski “was an official

policymaker and made the official decision to revoke Plaintiff’s License to

Carry a Firearm,” is adequate to plead municipal liability. (Doc. 79 at 11; Doc.

57 ¶5). It is true that “municipal liability may be imposed for a single decision

by municipal policymakers under appropriate circumstances.” Pembaur v.

City of Cincinnati, 475 U.S. 469, 480 (1986). But “not every decision by

municipal officers automatically subjects the municipality to §1983 liability.”

Id.

Municipal liability attaches only where the decisionmaker

possesses final authority to establish municipal policy with

respect to the action ordered. The fact that a particular official—

even a policymaking official—has discretion in the exercise of

particular functions does not, without more, give rise to municipal

liability based on an exercise of that discretion.

Id.2

The Complaint does not allege that Defendant Szumski had final

authority to establish Luzerne County policy with respect to revocation of

firearms. The fact that state law gives the county Sheriff authority to grant

and revoke licenses, see 18 Pa. Cons. Stat. §6109(g), (i), does not mean the

Sheriff establishes county policy each time he does so. See Pembaur, 475

U.S. at 482 n.12. Plaintiff’s allegation of a single decision by the Sheriff to

2 The Supreme Court in Pembaur further explained:

Thus, for example, the County Sheriff may have discretion to hire

and fire employees without also being the county official

responsible for establishing county employment policy. If this

were the case, the Sheriff’s decisions respecting employment

would not give rise to municipal liability, although similar

decisions with respect to law enforcement practices, over which

the Sheriff is the official policymaker, would give rise to municipal

liability.

475 U.S. 469, 482 n.12 (1986).

revoke Plaintiff’s license is therefore insufficient to plead the existence of a

policy. See id.

Plaintiff contends that other allegations suffice. (Doc. 79 at 11–12). But

these amount to nothing more than formulaic recitations of the elements of

§1983 municipal liability. The Complaint alleges that Defendant Szumski

“engaged in official policy, custom, and decision to violate Plaintiff’s First

Amendment, Second Amendment, and Fourteenth Amendment rights.”

(Doc. 79 at 11–12; Doc. 57 ¶6). It alleges that Luzerne County “failed to train

its officials and personnel not to retaliate against a citizen who engaged in

free speech, to provide due process and adhere to the Constitution and Bill

of Rights regarding the License to Carry a Firearm.” (Doc. 79 at 12; Doc. 57

¶7). And it alleges that Luzerne County “acquiesced in all actions taken by

its public officials and personnel since they had knowledge of the same yet

refused to remedy the situation to stop it.” (Doc. 79 at 12; Doc. 57 ¶8). These

conclusory statements are not entitled to a presumption of truth, and do not

satisfy Federal Rule of Civil Procedure 8(a)(2)’s pleading standard. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (3d Cir. 2009) (“[T]he tenet that a court

must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.”).

The Complaint eventually does include a policy. It alleges that Luzerne

County “has a policy that allows for the revocation of citizens’ License to

Carry a Firearm without giving due process using the alleged reason that ‘a

person whose character/reputation indicates danger to public safety’ without

any evidence or a criminal conviction.’” (Doc. 57 ¶59). Although he

speculates that this revocation policy “had to be enacted pursuant to Code

or other County legislation,” Plaintiff points the court to no such enactment.

(Doc. 57 ¶36). Nor does he allege that others were subjected to revocation

under this policy.3 But despite its ambiguity, the court concludes that this

allegation is partly factual, and, construed “in the light most favorable” to

Plaintiff, Phillips, 515 F.3d at 233, narrowly satisfies Plaintiff’s obligation to

“identify a custom or policy, and specify what exactly that custom or policy

was.” McTernan, 564 F.3d at 658. Thus, Defendant Luzerne County will not

be dismissed entirely due to insufficient pleading of a policy.

3 In fact, nowhere does the Complaint actually state that Plaintiff

himself was subjected to revocation under the County’s alleged “danger to

public safety” policy. It simply alleges that “Defendant Luzerne County Sheriff

Brian Szumski revoked Plaintiff’s License to Carry a Firearm without any pre

or post due process and in violation of the Second Amendment.” (Doc. 57

¶21). The court, required to “draw all reasonable inferences in favor of the

non-moving party,” Phillips, 515 F.3d at 232, is left to infer the Sheriff’s

reason.

3) Defendant Szumski in his official capacity

Finally, to the extent Plaintiff sues Defendant Szumski in his official

capacity, those claims will be treated as ones against the municipality of

which the Sheriff is an agent—Luzerne County. See Kentucky v. Graham,

473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity.”).

B. Count I - First Amendment Retaliation

Plaintiff claims that “Defendants were aware of [his] protected activities

and retaliated against him by causing him mental anxiety, stress and

sleeplessness, and a continued campaign of harassment for having

exercised his constitutional rights to bear arms and exercise free speech.”

(Doc. 57 ¶25). Although he also invokes his Second Amendment right to bear

arms, this count is titled “First Amendment Retaliation,” and Plaintiff specifies

that he is “not seeking a First Amendment retaliation claim for the act of

shooting at the injured racoon, but rather his statements to the press and

accessing the courts.”

To establish a First Amendment retaliation claim, a plaintiff must first

demonstrate that his speech was protected. Merkle v. Upper Dublin Sch.

Dist., 211 F.3d 782, 793 (3d Cir. 2000). Defendants argue that “raccoon

mercy killing together with the subsequent explanation do not constitute

protected expression.” (Doc. 72 at 6). According to Defendants, Plaintiff’s

concession that his claim is not based on the act of shooting the raccoon

“does not alter the analysis … because the act itself is inextricably

interwoven with the speech Kansky maintains is protected.” (Id. at 6 n.6).

Plaintiff in response reiterates that his speech to the media forms the basis

of his claim, not his act of shooting the raccoon. (Doc. 79 at 5).

In support of their theory, Defendants cite Ruff v. Long, 111 F. Supp.

3d 639, 647 (E.D. Pa. 2015). Ruff concluded that the plaintiff’s act of bringing

a bag of firearms to a police station was not First Amendment expressive

conduct, despite the plaintiff’s explanation that he did so to make a statement

about community gun violence. Id. at 646–47. The plaintiff there had not

presented evidence that during this act he asserted anything to anyone or

that officers at the station understood his act to communicate a message. Id.

at 646. The court reasoned that “[p]ost-conduct explanations of [the

plaintiff’s] ‘secret’ intent, raised after he is stopped for suspicious activity or

files suit” did not show that his conduct was First Amendment expression. Id.

at 646.

Plaintiff here does not assert that his statements to the media

demonstrate that his act of shooting the raccoon was First Amendment

expression. He instead alleges that the statements themselves were the

basis for Defendants’ alleged retaliation.

The First Amendment forbids government abridgment of speech, U.S.

Const. amend. I, and thereby “protects the right of an individual to speak

freely.” Smith v. Ark. State Highway Emps., 441 U.S. 463, 464 (1979).

Plaintiff spoke to the media. He now alleges that he faced retaliation because

of what he said, not because of what he did. Nor does he contend that his

speech transforms his conduct into protected expression. The court is not

convinced by Defendants’ argument that simply because this speech is

associated with conduct, it is not itself protected by the First Amendment.

Thus, Defendants have not met their burden of showing that no First

Amendment retaliation claim has been stated.

To the extent the Complaint brings this count against Defendant

Szumski in his official capacity, however, and thereby brings it against the

County, it is inadequate. That is because §1983 municipality liability requires

a “direct causal link between a municipal policy or custom and the alleged

constitutional deprivation.” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247,

249 (3d Cir. 2007). There is no allegation that the Sheriff was implementing

a Luzerne County policy when he allegedly retaliated against Plaintiff

because of his speech. The policy which Plaintiff alleges the county has

adopted allows for revocation of licenses from those “whose

character/reputation indicates danger to public safety.” (Doc. 57 ¶59). It does

not direct officials to revoke the licenses of, or “mount a campaign of

harassment” against, those who complain to the press. (Doc. 57 ¶25). If the

Sheriff retaliated against Plaintiff in violation of the First Amendment, then,

he did not do so because of a Luzerne County policy.

So there is no direct causal link between a municipal policy and the

alleged constitutional transgression, and Count I will be dismissed as against

Luzerne County.

C. Count II - Vagueness and Overbreadth

Plaintiff next challenges what it calls “Defendants’ policy that revokes

a licensed firearm,” asserting that it is vague and facially overbroad. (Doc.

57 ¶¶27–30). Without first identifying the policy,4 the Complaint asserts that

it “does not provide any guidelines of what consists ‘a person whose

character/reputation indicates a danger to public safety.’” (Doc 57 ¶30). See

Pennsylvania Uniform Firearms Act, 18 Pa. Cons. Stat. §6109(e)(1)(i) (“A

license to carry a firearm … shall not be issued to … [a]n individual whose

4 Among the allegations pertaining to Count 3, the Complaint alleges

that “Defendants had a policy and custom that allowed Defendant Luzerne

County Sheriff Brian Szumski to revoke Plaintiff’s License to Carry a Firearm

without giving him due process for the alleged reason that his ‘…

character/reputation indicates danger to public safety.’” (Doc. 57 ¶50).

character and reputation is such that the individual would be likely to act in a

manner dangerous to public safety.”). This count invokes §1983, but does

not indicate which constitutional right was violated.

Defendants recognize that a statute or policy may violate the Due

Process clause of the Fourteenth Amendment by reason of its vagueness.

San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir. 1992). Because a

procedural due process claim requires a protected property interest, Taylor

Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285, 1293 (3d Cir. 1993),

Defendants argue that Plaintiff has not stated such a claim because he has

no protected property interest in a license to carry a firearm. (Doc. 72 at 13–

18). And because a law may violate the First Amendment if it is overbroad,

Free Speech Coal. v. Att’y Gen., 974 F.3d 408, 427 (3d Cir. 2020),

Defendants reiterate their argument that Plaintiff has not alleged any

protected expression. In response, Plaintiff contends that he does have a

protected interest in the license, and further submits that it is not the Uniform

Firearms Act he challenges, but Luzerne County’s policy.

The court first notes that these claims may not be brought against

Defendant Szumski in his individual capacity, because, as discussed in

Section III.A.2, there is no allegation that he is responsible for the policy.

Thus, no plausible claim to relief has been stated as against him, so Count

II will be dismissed as against Defendant Szumski in his individual capacity.

1) Vagueness

A procedural due process claim requires deprivation of “a property

interest protected by state law.” Dondero v. Lower Milford Twp., 5 F.4th 355,

358 (3d Cir. 2021). Accordingly, “[s]tate law defines property interests for

purposes of procedural due process claims.” Ruiz v. New Garden Twp., 376

F.3d 203 (3d Cir. 2004).

Defendants focus on this requirement, arguing that Plaintiff does not

have a protected property interest in his license to carry a concealed

weapon. (Doc. 72 at 12). Because a county Sheriff enjoys “broad discretion”

in issuing and revoking such licenses, they assert, a citizen’s interest in that

license is not protected by procedural due process. (Id.). See Midnight

Sessions, Ltd. v. City of Phila., 945 F.2d 667, 679 (3d Cir. 1991) (concluding

that applicants could not have a protected property interest in dance hall

licenses where Pennsylvania statute gave city “broad discretion” in granting

such licenses).

The property interest of which Plaintiff alleges he was deprived is

created by state law. The Pennsylvania Uniform Firearms Act of 1995

provides that a license to carry a concealed firearm “shall be issued if, after

an investigation … it appears that the applicant is an individual concerning

whom no good cause exists to deny the license.” 18 Pa. Cons. Stat.

§6109(e)(1). This provision further lists criteria describing individuals to

whom “[a] license shall not be issued,” including “[a]n individual whose

character and reputation is such that the individual would be likely to act in a

manner dangerous to public safety.” §6109(e)(1)(i). The Sheriff may revoke

a license to carry firearms “for good cause,” and must revoke “for any reason

stated in subsection (e)(1) which occurs during the term of the permit.”

§6109(i).

In support of the proposition that the Sheriff enjoys broad discretion as

to the issuance and revocation of firearm licenses, Defendants cite Harris v.

Sheriff of Delaware Cnty., 675 A.2d 400, 402 (Pa. Commw. Ct. 1996) (“[T]he

legislature intended in Section 6109 of the Act to confer discretion on

sheriffs.”) and Tsokas v. Bd. of Licenses & Inspections Review, 777 A.2d

1197, 1202 (Pa. Commw. Ct. 2001) (same). Defendants further rely on Potts

v. City of Phila., 224 F. Supp. 2d 919 (E.D. Pa. 2002), which, also relying in

part on Harris and Tsokas for their language about §6109’s discretionary

nature, concluded that no protected property interest existed in a revoked

§6109 license. Id. at 941–42.

Potts reasoned that like the Pennsylvania Dance Hall Act at issue in

Midnight Sessions, which prohibited the issuance of a license “until it shall

be ascertained that the place for which it is issued … is a safe and proper

place for the purpose for which it shall be used,” 945 F.2d at 674, §6109’s

“dangerous to public safety” criterion provides a sheriff with “broad

discretion” in revoking licenses. Potts, 224 F. Supp. 2d at 940. Adding Harris

and Tsokas in further support of this “far-reaching discretion,” the court

concluded that the plaintiff had no protected property interest in the revoked

concealed-carry permit for purposes of procedural due process. Id. at 941–

42.

The Commonwealth Court of Pennsylvania, on the other hand, has

held that the revocation of a concealed-carry license granted under §6109

implicates a property interest protected by procedural due process. Caba v.

Weaknecht, 64 A.3d 39, 60 (Pa. Commw. Ct. 2013); see also Murphy v. Doe

Police Detective #1, 2021 WL 4399646, at *4–5 (E.D. Pa. 2021) (“This Court

agrees with the reasoning in Caba and concludes that the Plaintiff has a

protected property interest in the [license to carry a firearm].”). The Caba

court was not persuaded by Harris or Tsokas, because those decisions relied

on old statutory language: while §6109 formerly provided that the sheriff

“may” issue a license, it had been updated to provide (and still provides) that

a license “shall be issued” unless good cause exists to deny it. 64 A.3d at

61; 18 Pa. Cons. Stat. §6109(e)(1). The revised statute also makes

revocation mandatory for specified reasons, provides a right to appeal

revocation, and requires the sheriff to act on an application within 45 days

and provide written notice and reasons for refusal. Id. at 62; §6109(e), (g),

(i). The Commonwealth Court reasoned that these amendments “evidence

clear legislative intent to both guide and limit the discretion of the licensing

authority with respect to the grant, denial, and revocation of licenses.” Caba,

64 A.3d at 62.

Caba noted that the right of citizens to bear arms is recognized by the

federal and state constitutions. Id. at 58. While acknowledging that this right

is not absolute, the court reasoned that “by enacting the licensing scheme

for carrying a concealed weapon, the General Assembly created a path by

which Commonwealth citizens who meet certain statutory eligibility criteria

are entitled to the benefit of exercising their constitutional right to bear arms

in defense of themselves in a way that is not automatically available to all

Commonwealth citizens.” Id.; see also Bd. of Regents of State Colls. v. Roth,

408 U.S. 564, 576 (“The Fourteenth Amendment’s procedural protection of

property is a safeguard of the security of interests that a person has already

acquired in specific benefits.”). It concluded that a person who meets the

statute’s eligibility criteria “has a legitimate interest in carrying a concealed

weapon for self-defense,” and described this interest as “worthy of … no less

protection than that afforded to an interest in a driver’s license,” an interest

which has been recognized as constitutionally protected.5 Caba, 64 A.3d at

59.

Caba also concluded that the statute does not give a sheriff the sort of

“unfettered” discretion with respect to revocation which would preclude the

recognition of a protected property interest. Id. at 63. As limits on the sheriff’s

discretion, the court cited to the requirements that there be “good cause”

before revocation and that the sheriff provide the specific reason for

revocation as limits on the sheriff’s discretion. Id. It also reasoned that the

statute’s provision for a licensee’s right to appeal revocation demonstrated a

legislative intent to confer a property right. Id. Caba further rejected Potts’

premise that a sheriff exercises discretion in determining that a licensee’s

character and reputation is such that he would be likely to act in a manner

dangerous to public safety, characterizing that determination as “a question

of fact.” Id. (“Because [the sheriff] found that [the plaintiff] lacked the requisite

5 See Dixon v. Love, 431 U.S. 105, 112 (“It is clear that the Due

Process Clause applies to the deprivation of a driver’s license by the State.”);

Pa. Game Comm’n v. Marich, 666 A.2d 253, 257 (Pa. 1995) (“A driver’s

license also cannot be revoked without the procedural due process required

by the Fourteenth Amendment.”).

character and reputation, he was required by law (i.e., he had no discretion)

to revoke [the plaintiff’s] license.”).

The court finds Caba’s reasoning persuasive and is therefore not

convinced by Defendants’ argument that Plaintiff interest in his license to

carry a concealed firearm is not protected by procedural due process.

Accordingly, the court concludes that Defendants have not at this stage met

their burden of showing that Plaintiff has failed to state a void for vagueness

claim.

2) Overbreadth

As with Count I, Defendants argue that the act of shooting a racoon is

not expression protected by the First Amendment, and that Plaintiff has thus

not stated a First Amendment overbreadth claim. The Complaint does allege

that Plaintiff spoke to the media, so speech is involved.

But a law is only overbroad if “a substantial number of its applications

are unconstitutional, judged in relation to the statute’s plainly legitimate

sweep.” Free Speech Coalition, 974 F.3d at 427 (3d Cir. 2020). The

Complaint contains no factual allegations which would raise the possibility of

overbreadth above a speculative level. First, as discussed in Count I, Plaintiff

does not allege that his own First Amendment rights were violated by the

county’s policy, for he does not allege that the Sheriff retaliated against him

pursuant to a policy of doing so. Second, Plaintiff alleges no other instances

in which this policy was applied in a manner that violates the First

Amendment. Third, the policy suggested by the Complaint does not itself

indicate any likelihood of unconstitutional application: it merely calls for

revocation of concealed-carry licenses from individuals dangerous to public

safety. It is not immediately evident how such a statute risks a substantial

number of First Amendment–violative applications. For these reasons, the

court concludes that Plaintiff has failed to state a claim for overbreadth.

Therefore, Count II will be also dismissed to the extent it claims

overbreadth.

D. Count III - Second Amendment As-Applied Challenge

1) Right to carry concealed firearm

The Complaint’s third count alleges that “Defendants had a policy or

custom that allowed Defendant Luzerne County Sheriff Brian Szumski to

revoke Plaintiff’s License to Carry a Firearm without giving him due process

for the alleged reason that ‘his character/reputation indicates danger to

public safety.’” (Doc. 57 ¶50). It further alleges that Defendants did not

investigate whether Plaintiff was a “danger to public safety” and that Plaintiff

had not been convicted of the crimes charged after the shooting. (Id. ¶¶37,

41). This count otherwise adds various allegations regarding Plaintiff’s

character as well as statements concerning his danger to society and an

absence of good cause to revoke his license. (Doc. 57 ¶¶37–51).

It is important first to clarify what exactly was revoked. In Pennsylvania,

carrying a “firearm concealed on or about [one’s] person” without a license

is a felony. 18 Pa. Cons. Stat. §6106(a)(1) (emphasis added). One may apply

to the county sheriff for a license to carry a concealed firearm in the

Commonwealth, and such a license “shall be issued” unless no good cause

exists to deny one. §6109(a), (b), (e). By contrast, “no license is required in

order to carry a firearm openly on one’s person,” except in Philadelphia.

Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (emphasis added);

§6108. Although Plaintiff describes the allegedly revoked license generally

as a “License to Carry a Firearm,” (Doc. 57 ¶51), he later cites §6109(i),

impliedly acknowledging that a §6109 license is what he possessed. (Doc.

57 ¶36).

So Plaintiff alleges that he was deprived of his license to carry a

concealed firearm. The right at issue, then, as Defendants recognize, is the

right to carry a concealed firearm. They argue that Plaintiff has not stated a

Second Amendment as-applied claim because “the Second Amendment

does not protect the right of a member of the general public to carry a

concealed weapon in public.” (Doc. 72 at 28).

Since this motion was briefed, the Supreme Court decided that the

Second Amendment “guaranteed to ‘all Americans’ the right to bear

commonly used arms in public subject to certain reasonable, well-defined

restrictions.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct.

2111, 2156 (2022). Bruen invalidated a New York statute under which an

applicant had to prove “proper cause”—a standard that had been

interpretated to require a showing of “special need”—to obtain a license to

carry a concealed firearm outside his home or place of business for self-

defense. 142 S.Ct. at 2122, 2132. Because the state did not allow the open

carry of firearms, a concealed-carry license was the only way to lawfully carry

one. Id. at 2169. The Court concluded that the government had not met its

“burden to identify an American tradition justifying the State’s proper-cause

requirement,” and held the law unconstitutional “in that it prevents law-

abiding citizens with ordinary self-defense needs from exercising their right

to keep and bear arms.” Id. at 2156.

Yet Bruen did not disturb the prior understanding that laws prohibiting

only concealed carry of firearms were constitutional. See id. at 2150 (“The

historical evidence from antebellum America does demonstrate that the

manner of public carry was subject to reasonable regulation …. States could

lawfully eliminate one kind of public carry—concealed carry—so long as they

left open the option to carry openly.”); id. at 2146 (“In the early to mid-19th

century, some States began enacting laws that proscribed the concealed

carry of pistols and other small weapons. As we recognized in [District of

Columbia v. Heller, 554 U.S. 570, 626 (2008)], the majority of 19th-century

courts to consider the question held that these prohibitions on carrying

concealed weapons were lawful under the Second Amendment or state

analogues.”); Bruen, 142 S.Ct. at 2146 (“[T]he history reveals a consensus

that States could not ban public carry altogether. Respondents’ cited

opinions agreed that concealed-carry prohibitions were constitutional only if

they did not similarly prohibit open carry.”); Peruta v. County of San Diego,

824 F.3d 919, 929 (9th Cir. 2016) (“[T]he history relevant to both the Second

Amendment and its incorporation by the Fourteenth Amendment leads to the

same conclusion: The right of a member of the general public to carry a

concealed firearm in public is not, and never has been, protected by the

Second Amendment.”); People v. Miller, 312 Cal. Rptr. 3d 655, 662–63 (Cal.

Ct. App. 2023) (explaining that Bruen “does not suggest” that California’s

concealed carry prohibitions are unconstitutional).

Because the right to publicly carry a concealed firearm is not protected

by the Second Amendment, Plaintiff has failed to state a Second Amendment

as-applied claim. This count must therefore be dismissed.

2) Qualified Immunity

Defendant Szumski is also correct that there can be no Second

Amendment claim against him in his individual capacity because he is

entitled to qualified immunity. (Doc. 72 at 28). “The doctrine of qualified

immunity protects governmental officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted).

When Defendant Szumski revoked Plaintiff’s license in 2019, no

constitutional right to carry a concealed firearm outside the home was clearly

established. See Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (“[W]e

decline to definitively declare that the individual right to bear arms for the

purpose of self-defense extends beyond the home.”); District of Columbia v.

Heller, 554 U.S. 570, 626 (2008) (“Like most rights, the right secured by the

Second Amendment is not unlimited … For example, the majority of the 19th-

century courts to consider the question held that prohibitions on carrying

concealed weapons were lawful under the Second Amendment or state

analogues.”). Therefore, even if Plaintiff had alleged an infringement of the

Second Amendment, this claim against Defendant Szumski in his individual

capacity would have to be dismissed.

E. Count IV - Due Process

1) Procedural due process

On this count, titled “Violation of Due Process Rights,” the Complaint

adds conclusory assertions regarding due process. (Doc. 57 ¶¶54–57). By

way of its allegations that prior to revocation, “Defendants were required to

provide due process, which included notice, explanation of the evidence

against him and an opportunity to rebut the same,” (Id. ¶55), and that

“Defendants never provided pre-deprivation due process,” (Id. ¶56), the

court can infer an allegation that Defendants did not provide Plaintiff with a

pre-revocation hearing. This count also incorporates all preceding

paragraphs; relevant among those are the allegations that Plaintiff

possessed a license to carry a firearm and that Defendant Szumski revoked

that license. (Id. ¶¶11, 21, 53).

Defendants contend that Plaintiff has stated no procedural process

claim because he has not asserted a protected property interest. (Doc. 72 at

35). As discussed in Section III.B.a, the court disagrees with this argument,

and therefore will not dismiss on this basis.

Defendants further assert that “even if a concealed carry license is a

property interest subject to Fourteenth Amendment protection, Plaintiff was

not entitled to a pre-deprivation hearing.” (Doc. 72 at 36). The court agrees

and concludes, based on the allegations and matters of public record, that

the Complaint has not stated a procedural due process claim because

Plaintiff received due process.

As to what process Plaintiff has been afforded: First, although the

Complaint does not directly say so, it must be inferred from Plaintiff’s

allegations that the Sheriff did provide him with the reason for revocation, as

he was required to do by 18 Pa. Cons. Stat. §6109(i) (“Notice of revocation

shall be in writing and shall state the specific reason for revocation.”). Plaintiff

alleges that his license was revoked, and challenges the County’s policy of

revoking concealed-carry licenses from those whose “character/reputation

indicates danger to public safety.” (Doc. 57 ¶¶21, 50). So this “danger to

public safety” ground must have been the reason given to Plaintiff by the

Sheriff for revocation, otherwise Plaintiff would not be challenging it. Second,

Plaintiff has the right to appeal the Sheriff’s revocation in the Luzerne County

Court of Common Pleas. §6109(i) (“An individual whose license is revoked

may appeal to the court of common pleas for the judicial district in which the

individual resides.”).

As to what process Plaintiff believes he was entitled, the Complaint

alleges that “Defendants were required to provide due process, which

included notice, explanation of the evidence against him and an opportunity

to rebut the same.” (Doc. 57 ¶55). On this score, the court is persuaded by

the reasoning in Potts, 225 F. Supp. 2d at 943. In determining whether the

plaintiff there, whose §6109 license had been revoked for the same reason,

was entitled to a pre-deprivation hearing, the court considered the factors set

out in Matthews v. Eldridge, 424 U.S. 319, 335 (1976).6

With regard to the private interest affected, Potts reasoned that

although the plaintiff “may have a strong personal interest in his gun permit,

the permit does not constitute a basic necessity of life, such as income, or

even employment, that would strongly militate in favor of a pre-deprivation

hearing.” 224 F. Supp. 2d at 943 (citing Goldberg v. Kelly, 397 U.S. 254, 262

(1970) (holding that pre-termination hearing was required for recipients of

welfare, and explaining that “[f]or qualified recipients, welfare provides the

means to obtain essential food, clothing, housing, and medical care”)).

6 “[O]ur prior decisions indicate that identification of the specific dictates

of due process generally requires consideration of three distinct 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.” Matthews v. Eldridge,

424 U.S. 319, 335 (1976).

Considering the probable value of additional procedural safeguards, Potts

opined that the potential benefit of a pre-deprivation hearing did not outweigh

its costs: “the potential fatal consequences of leaving a license to carry a gun

… in the hands of someone who poses a danger to the community while he

or she pursues a pre-deprivation hearing.” 224 F. Supp. 2d at 943. As to the

government’s interest, the court reasoned that “the City [of Philadelphia]

undoubtedly has a prevailing interest in ensuring that persons licensed to

carry a firearms do not present a danger to public safety.” Id.

The court finds that Plaintiff’s interest in keeping his license is

outweighed by the County’s interest in protecting its citizens from the

consequences of permitting dangerous individuals to carry concealed

firearms while they await a hearing. It further finds that the procedures

afforded to Plaintiff, namely, notice of the reason for revocation and an

opportunity to appeal that revocation in the Court of Common Pleas,

meaningfully protect his property interest from wrongful deprivation in a

manner sufficient to satisfy procedural due process. See Goldberg, 397 U.S.

at 262–63 (“The extent to which procedural due process must be afforded to

the recipient is influenced by the extent to which he may be condemned to

suffer grievous loss, and depends upon whether the recipient’s interest in

avoiding that loss outweighs the governmental interest in summary

adjudication.”). Plaintiff offers Goldberg in support of this claim, but the court

agrees with Potts that the temporary loss of one’s concealed-carry permit is

less grievous, and therefore entitled to less procedural protection, than a

welfare recipient’s loss of those benefits. 224 F. Supp. 2d at 943; 397 U.S.

at 264. For these reasons, the court concludes that Plaintiff has not stated

a claim for a violation of procedural due process.

2) Substantive due process

To the extent Plaintiff claims a violation of substantive due process, the

interest at issue would presumably be that in a license to carry a concealed

firearm. Such a claim would be duplicative of his Second Amendment claim.

“[W]here a particular Amendment provides an explicit textual source of

constitutional protection against a particular government behavior, that

Amendment, not the more generalized notion of substantive due process,

must be the guide for analyzing those claims.” County of Sacramento v.

Lewis, 523 U.S. 833, 842 (1998). Because the Second Amendment governs

the right which Plaintiff alleges was infringed, analysis based on substantive

due process is inappropriate. Therefore, to the extent this count includes a

substantive due process claim, it must be dismissed.

Because the court concludes that Plaintiff cannot state any due

process claim, Count IV will be dismissed.

F. Count V - Unconstitutional Policy in Violation of Second

Amendment

The complaint’s final count alleges that “Luzerne County and Luzerne

County Sheriff Department has a policy that allows for the revocation of

citizens’ License to Carry a Firearm without giving due process using the

alleged reason that ‘a person whose character/reputation indicates danger

to public safety’ without any evidence or a criminal conviction.’” (Doc. 57

¶59). Under this count, “Plaintiff seeks all remedies elimination of said policy

as unconstitutional and an injunction ceasing the implementation of said

policy, attorney fees and costs.” (Id.).

As with Count II, this count must be dismissed as against Defendant

Szusmki because there is no allegation that he was responsible for the

alleged policy. And as with Count III, this Count must also be dismissed as

against Luzerne County because Plaintiff has not alleged a violation of the

Second Amendment.

IV. CONCLUSION

In sum, Defendants’ motion to dismiss, (Doc. 66), will be GRANTED

IN PART and DENIED IN PART. All claims against the Luzerne County

Sheriff’s Department will be DISMISSED. With regard to the individual

counts:

(1) Count I will be dismissed as against Luzerne County and

Defendant Szumski in his official capacity.

(2) Count II will be dismissed as against Defendant Szumski in his

individual capacity and to the extent it claims overbreadth.

(3) Count III will be dismissed.

(4) Count IV will be dismissed.

(5) Count V will be dismissed.

An appropriate order will follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: November 2, 2023

20-42-02