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Johnson v. New York State Dep't of Correctional Services

April 30, 2010

LYNDON S. JOHNSON; LARRY RIVENBURG; MORRIS A. DARLING; LEONARD DAVIDOW; AND DAVID BOWHALL, PLAINTIFFS,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; NEW YORK STATE DIVISION OF CRIMINAL JUSTICE SERVICES; THE STATE OF NEW YORK; BRIAN FISCHER, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; DENISE O'DONNELL, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DIVISION OF CRIMINAL JUSTICE SERVICES; AND DAVID PATERSON, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiffs Lyndon S. Johnson, Larry Rivenburg, Morris A. Darling, Leonard Davidow, and David Bowhall ("plaintiffs") sue defendants New York State Department of Correctional Services ("DOCS"), New York State Division of Criminal Justice Services ("DCJS"), the State of New York, DOCS Commissioner Brian Fischer, DCJS Commissioner Denise O'Donnell, and New York State Governor David Paterson for declarative and injunctive relief under the Law Enforcement Officers Safety Act of 2004 ("LEOSA"), 18 U.S.C. § 926C. Each of the individual defendants are sued in only their official capacities. Defendants move to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b). Plaintiffs concede that the agency defendants and the State of New York may be dismissed, but they oppose the motion to dismiss as to all other defendants. (See Pls.' Mem. of Law in Opp'n to Defs.' Mot. to Dismiss, Dkt. No. 21, 9.) The motion was considered based upon the parties' submissions without oral argument.

II. BACKGROUND

Each of the plaintiffs are retired corrections officers with over twenty-five years of experience working for DOCS. On July 22, 2004, Congress enacted LEOSA. The statute provides in pertinent part:

Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce . . . . 18 U.S.C. § 926C(a). In order to meet the identification requirements of subsection (d), retired law enforcement officers must possess (1) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the standards established by the agency for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm; or (2)(A) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer; and (B) a certification issued by the state in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.

Id. § 926C(d).

Prior to filing their lawsuit, plaintiffs made several written requests to DOCS and DCJS for the identification described in subsection (d). In their requests, plaintiffs explained that they satisfy all of LEOSA's requirements for carrying a concealed firearm across state lines except for the state-issued photographic identification and/or certification. In response, both DOCS and DCJS stated their refusal to administer firearm training or certification for retired law enforcement officers.

Plaintiffs' lawsuit for declaratory and injunctive relief followed. In their amended complaint, plaintiffs seek an order declaring: (1) that LEOSA preempts state law; (2) that the defendants must certify retired law enforcement officers who have met New York's standards to carry a firearm of the same type as the concealed firearm; and (3) that the defendants must issue the appropriate photographic identification and/or certification described in subsection (d) of the statute. Finally, defendants also seek injunctive relief ordering the defendants to take necessary action to permit retired law enforcement officers to qualify to carry concealed firearms as provided under LEOSA.

III. DISCUSSION

Defendants do not specify whether their motion to dismiss is filed under Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). Instead, they more generally assert that their motion is filed pursuant to Rule 12(b). (See Defs.' Notice of Mot. to Dismiss, Dkt. No. 20, 1.) Significantly, at least one of defendants' grounds for dismissal is based upon whether plaintiffs' cause of action raises a federal question. (See Defs.' Mem. of Law in Supp. of Mot. to Dismiss, Dkt. No. 20-1, 6-7.) In any event, both Rule 12(b)(1) and Rule 12(b)(6) require the liberal construction of plaintiffs' complaint and the acceptance of all factual allegations as true. See Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (citing Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). Under Rule 12(b)(1), dismissal is proper where there is no statutory or constitutional authority to adjudicate the controversy at issue. See Ford, 579 F.3d at 188 (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). Under Rule 12(b)(6), a plaintiff's complaint will survive a motion to dismiss so long as there are "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007).

Defendants move to dismiss plaintiffs' complaint on four separate grounds. First, they contend they are not the proper parties to plaintiffs' lawsuit. Second, they argue that LEOSA does not create a private cause of action for the relief sought. Third, defendants assert that Congress, by enacting LEOSA, may not constitutionally require state officials to help implement a firearm certification program for retired law enforcement officers. Fourth, defendants contend that LEOSA does not preempt the states' authority to issue the identification described in subsection (d).

A. The Proper Parties to Plaintiffs' Lawsuit

Plaintiffs concede that DOCS, DCJS, and the State of New York are not proper parties. (See Pls.' Mem. of Law in Opp'n to Defs.' Mot. to Dismiss, Dkt. No. 21, 9); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-101, 104 S.Ct. 900, 908 (1984) (holding that states and their respective agencies are immune from suits brought by citizens in federal court "regardless of the nature of the relief sought") (citations omitted). Accordingly, there is only a question of whether defendants Fischer, O'Donnell, and Paterson should be parties to plaintiffs' lawsuit.

Defendants contend that none of the individual state officers are proper parties because they have no involvement with New York's process for issuing firearm licenses. Under Ex parte Young, a state officer sued in his official capacity must be connected to the alleged violation of federal law. 209 U.S. 123, 157, 28 S.Ct. 441, 453 (1908). Absent any allegation of a state officer's personal involvement, simply naming him as a defendant is nothing more than "making him a party as ...


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