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Olesen v. Morgan

December 8, 2008

LOUIS BRIAN OLESEN, II; BARBARA OLESEN; AMERICAN SHOOTERS SUPPLY, INC; AND GUNS, INC., PLAINTIFFS,
v.
JOHN MORGAN, SPECIAL AGENT OF THE FEDERAL BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; U.S. DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs filed this action on August 8, 2006, asserting six causes of action: (1) a Bivens claim against Defendant John Morgan ("Morgan"), an agent of Defendant U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") for violations of their First, Fourth, and Fifth Amendment rights; (2) a substantive due process claim against Defendant Morgan; (3) an intentional infliction of emotional distress claim against Defendant Morgan; (4) a tortious interference with business relations claim against Defendant Morgan; (5) a prima facie tort claim against Defendant Morgan; and (6) a cause of action for the liability of Defendant ATF. Plaintiffs have voluntarily dismissed the third, fourth, fifth, and sixth causes of actions.*fn1

Currently pending before the Court is Defendants' motion to dismiss the first and second causes of action on the following grounds: (1) sovereign immunity; (2) the Fourteenth Amendment applies only to state and not federal action; (3) Plaintiffs Barbara Olesen, American Shooters Supply, Inc., and Guns, Inc. lack standing; (4) statute of limitations; (5) failure to state a claim; and (6) qualified immunity.*fn2

II. BACKGROUND*fn3

Plaintiff Louis Brian Olesen, II ("Brian Olesen") is an individual holder of a federal firearms license, an employee of Plaintiff American Shooters Supply, Inc., doing business as B&J Guns ("ASSI"), and the owner and operator of Plaintiff Guns, Inc. ("GI"). Plaintiff Barbara Olesen ("Barbara Olesen") is the owner of ASSI and Plaintiff Brian Olesen's mother.

In 2002 and 2003, Plaintiff Brian Olesen and his partner James Frampton did business as B&J Guns, Inc. ("B&J"); Mr. Frampton held the federal firearms license for the business. In late 2002 to early 2003, Plaintiff Brian Olesen reported to Defendant ATF that Mr. Frampton was committing a number of violations of federal and state laws. Defendant Morgan was involved in the investigation of the complaints.

Plaintiffs' first cause of action is a Bivens claim for First Amendment retaliation, a Fourth Amendment violation, and a Fifth Amendment procedural due process violation. Plaintiffs allege that Defendant Morgan took various improper actions in response to Plaintiff Brian Olesen's complaints about Defendant Morgan's investigation of Mr. Frampton in violation of the First Amendment. Plaintiffs allege that Defendant Morgan conducted illegal searches and seizures of their businesses and property in violation of the Fourth Amendment. Finally, Plaintiffs allege that Defendant Morgan deprived them of their propertyinterests in guns and inventory as well as Plaintiff Brian Olesen's federal firearms license without due process in violation of their Fifth Amendment procedural due process rights.

Plaintiffs assert a second cause of action for violation of their substantive due process rights based on the same conduct covered by their Bivens claims under the First, Fourth and Fifth Amendments.

III. DISCUSSION

A. Preliminary Matters

Defendant Morgan moves to dismiss claims against him in his official capacity based on sovereign immunity. See Defendants' Memorandum of Law at 27-28. Sovereign immunity bars Bivens actions against federal defendants in their official capacities. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (dismissing, for want of subject matter jurisdiction due to sovereign immunity, Bivens claims to the extent they constituted claims against the defendants in their official capacities). Plaintiffs respond that their Bivens claims are only against Defendant Morgan in his individual capacity. Since the complaint sues Defendant Morgan both individually and in his official capacity, the Court grants Defendant Morgan's motion to dismiss Plaintiffs' claims against him to the extent they are asserted against him in his official capacity.*fn4

B. Standing

Defendants challenge the standing of all Plaintiffs, except Plaintiff Brian Olesen, to bring all of their causes of action.

A party demonstrates the constitutional minimum requirements of standing by asserting (1) "an 'injury in fact' - a harm suffered by the plaintiff that is 'concrete' and 'actual or imminent, not "conjectural" or "hypothetical;"'" (2) "causation - a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant;" and (3) "redressability - a likelihood that the requested relief will redress the alleged injury." Steel Co. v. Citizens for a Better Env't, 523 U.S. 82, 102-03 (1998) (citations omitted). The party invoking jurisdiction bears the burden of establishing standing. See id. at 103-04 (citation omitted). On a motion to dismiss, the court must presume that the general allegations in the complaint encompass the specific facts necessary to support those allegations. See id. at 104 (citation omitted).

The complaint contains the following allegations of injury directed to Plaintiffs Barbara Olesen and ASSI: (1) Defendant Morgan prevented the auctioneer from transferring the assets of B&J Guns, Inc. to Plaintiff ASSI (owned by Barbara Olesen), see Complaint at ¶ 30; (2), as part of the criminal investigation against Plaintiff Brian Olesen, Defendant Morgan issued subpoenas to customers of Plaintiffs ASSI and Barbara Olesen, see Complaint at ¶ 31(g); (3) Defendant Morgan threatened lending institutions, suppliers, vendors, and customers of Plaintiffs, see Complaint at ¶ 31(f); (4) Defendant Morgan visited a New York Supreme Court Justice to influence the Justice not to grant Plaintiffs' applications for gun dealer's licenses for their businesses, see Complaint at ¶ 31(g); and (5) Defendant Morgan unlawfully monitored Plaintiff ASSI and unlawfully harassed Plaintiff Barbara Olesen and her business, see Complaint at ¶ 45.*fn5

These allegations are sufficient to create standing for Plaintiffs Barbara Olesen and ASSI to assert their Fourth and Fifth Amendment violations and substantive due process claims.

With regard to the First Amendment claim, Plaintiff Barbara Olesen has standing, based on the right of intimate association, because the complaint alleges retaliation for her son's speech.*fn6 Plaintiff ASSI, however, does not have standing because the complaint does not allege retaliation for any of Plaintiff ASSI's speech, and Plaintiff ASSI does not have a cognizable right of association with Plaintiff Brian Olesen.

Finally, Plaintiff GI does not have standing to assert any claims. The complaint barely mentions GI, except to state that Plaintiff Brian Olesen owns Plaintiff GI.*fn7 Without more information as to how Defendant Morgan's actions affected Plaintiff GI, Plaintiff GI has not pled an injury-in-fact to itself, except perhaps collateral injuries as a result of those that Plaintiff Brian Olesen suffered (e.g., injuries stemming from delay of business due to Defendant Morgan causing delay in Plaintiff ...


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