Motion To Dismiss (1) Second Amendment Puerto Rico

Case 3:12-cv-01218-FAB Document 15
Filed 07/12/12 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO DANNY WILLIAMS, et al. Plaintiff, v. PUERTO RICO SUPERIOR COURT, et al. Defendants. CIVIL NO. 12-1218 (FAB)
MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) TO THE HONORABLE COURT: COMES NOW, co-defendants POLICE DEPARTMENT, DEPARTMENT OF JUSTICE, the COMMONWEALTH OF PUERTO RICO and the PUERTO RICO SUPERIOR COURT without submitting to the Court's jurisdiction and through the undersigned attorney, who appears for the sole purpose of this motion, very respectfully states and prays as follows: I. INTRODUCTION
On March 28, 2012 plaintiffs in above captioned proceeding filed action seeking declaratory and injunctive relief for deprivation of civil rights alleging that Puerto Ricos Weapons Act of 2000 (25 L.P.R.A 456a et. Seq.) (herein Weapons Act) imposes an undue burden in clear violation of plaintiffs Second Amendment rights pursuant to the United States Supreme Courts decision in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Dkt. 5, 23. This action has been brought against the San Juan Superior Court, the Puerto Rico Police Department, the Puerto Rico Department of Justice and the Commonwealth of Puerto Rico. Dkt. 5. Plaintiff Danny Williams (Williams) alleges that on October 11, 2011 he requested a permit to carry weapons in the Puerto Rico Superior Court under Article 2.05 of the Weapons Act (25 L.P.R.A
MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) DANNY WILLIAMS V. PUERTO RICO SUPERIOR COURT CIVIL NO. 12-1218 (FAB)
456d). Thereon, on October 17, 2011 the court ordered the Justice Department, through the assistant district attorney to express themselves in 15 days regarding Williams petition under the Second Amendment. Nonetheless, on November 7, 2011 Williams petition was denied because he failed to present certain documents and the Justice Department never expressed their position regarding the Second Amendment issue. Dkt. 5, 19. Williams alleges that the truth of the matter is that the court wanted him to show his income tax returns and to bring 3 reputation witnesses to state that he is someone that could be trusted with a weapon. Dkt. 5, 19. Likewise, on September 8, 2011, plaintiff Rubn Gonzlez Lora, (Gonzlez-Lora) requested a permit to carry to the San Juan Superior Court under the Weapons Act and the Second Amendment. Thereafter, on September 12, 2011 the court allegedly ordered petitioner to file 3 sworn statements from reputation witnesses and a sworn statement stating that he had filed his state taxes. Gonzlez-Lora was also requested to file a certificate from child support stating that he had no debt. Dkt. 5, 20. Gonzlez-Lora filed several motions alleging that these requirements were unconstitutional and unsupported even under the PR Weapons Act. On November 28, 2011 Hon. Judge Gisela Alfonso Fernndez denied GonzlezLoras petition for a permit to carry. Dkt. 5, 20. Pursuant to above, plaintiffs claim that the Handgun Permit Laws of Puerto Rico are facially invalid under the Second and Fourteenth Amendment in violation of 42 U.S.C 1983. In mounting their case, plaintiffs assert that the government (1) can not license a constitutional right (1st cause of action); (2) that the government may not impose a payment for a citizen to exercise their constitutional right (2nd cause of action); (3) that the weapons act is discriminatory (3rd cause of action).; (4) that articles 2.02 and 2.05 of the weapons act violate the second and fourteenth amendment because they grant uncontrolled discretion in the hands of state officials (4th cause of action) and (5) that the requirements of sections 2.02 and 2.05 of the
weapons act violate the second and fourteenth amendment because the right to bear arms is conditioned on a range of requirements (5th cause of action). Nevertheless, it is defendants position that all of plaintiffs arguments fail as a matter of law. The Puerto Rico Weapons Act is a weapons licensing and regulating scheme not a total ban law like the cases of McDonald and Heller. Moreover, the Supreme Court of the United States has stated that the scope of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of hearth and home. Heller v. DC 554 U.S. 570, 635 (2008) (Emphasis ours). In doing so, it has also clarified that the right is not unlimited. Id. at 626, 128 S.Ct. 2783. This interpretation unequivocally challenges plaintiffs contention asserting that the Second Amendment bars any licensing system. As will be thoroughly discussed: 1. 2. 3. 4. 5. 6. Nothing in the US Supreme Court decisions in McDonald or Heller bar weapons licensing schemes like the Puerto Rico Weapons Act Plaintiffs do not have standing to invoke the unconstitutionality of section 456(a) of the Weapons Act because they already possess weapons licenses. Plaintiffs do not have standing to invoke the unconstitutionality of section 456(d) of the Weapons Act because the injury was self-inflicted and not caused by defendants. The Permit to Carry Weapons is a privilege and not a right; the scope of the Second Amendment has been interpreted as the right to possess weapons in ones home not to carry weapons in public. The requirements in the licensing scheme are constitutional under the intermediate scrutiny standard. The Weapons Act is not Discriminatory: Plaintiffs have failed to assert and Equal Protection Claim. II. MOTION TO DISMISS STANDARD
To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs' well-pleaded facts must possess enough heft to show that they are entitled to relief. Clark v. Boscher, 514 F.3d 107, 112 (1st Cir.2008). In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all well-pleaded facts [and indulge] all reasonable inferences in plaintiffs' favor . Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). The First Circuit has held that dismissal for failure to state a claim is appropriate if the complaint fails to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory. Gagliardi v. Sullivan, 513 F.3d 301, 305(1st Cir.2008). Courts may augment the facts in the complaint by reference to documents annexed to the complaint or fairly incorporated into it, and matters susceptible to judicial notice. Id. at 305306. Nevertheless, in judging the sufficiency of a complaint, courts must differentiate between well-pleaded facts, on the one hand, and bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like, on the other hand; the former must be credited, but the latter can safely be ignored. LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F.3d 29, 33 (1st Cir.2007); see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). Thus, Plaintiffs must rely on more than unsupported conclusions or interpretations of law, as these will be rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)). Moreover, even under the liberal pleading standards of Fed R. Civ. P. 8, the Supreme Court has recently held that to survive a motion to dismiss, a complaint must allege a plausible entitlement to relief. Twombly, 550 U.S. at 559. Although complaints do not require detailed factual allegations, the plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. at 556. In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court reaffirmed Twombly and clarified that two underlying principles must guide a court's assessment of the adequacy of pleadings when evaluating whether a complaint can survive a Rule 12(b)(6) motion. See Iqbal, 129 S.Ct. at 194950. First, the court must identify any conclusory allegations in the complaint as such allegations are not entitled to an assumption of truth. Id. at 1949. Specifically, the court is not obligated to
accept legal conclusions set forth as factual allegations in the complaint. Id. Moreover, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. (quoting Twombly, 550 U.S. at 555); see also PealbertRosa v. FortuoBurset, 631 F.3d 592, 595 (1st Cir.2011) ([S]ome allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to cross the line between the conclusory to the factual.). In other words, [a] plaintiff is not entitled to proceed perforce by virtue of allegations that merely parrot the elements of the cause of action. OcasioHernandez v. FortuoBurset, 640 F.3d 1, 12 (1st Cir.2011). Second, a complaint survives only if it states a plausible claim for relief. Id. (citing Twombly, 550 U.S. at 556). Thus, any nonconclusory factual allegations in the complaint, accepted as true, must be sufficient to give the claim facial plausibility. Id. A claim has facial plausibility when the pleaded facts allow the court to reasonably infer that the defendant is liable for the specific misconduct alleged. Id. at 1949, 1952. Such inferences must amount to more than a sheer possibility and be as plausible as any obvious alternative explanation. Id. at 1949, 1951. Plausibility is a context-specific determination that requires the court to draw on its judicial experience and common sense. Id . at 1950. Affirmative defenses, such as the statute of limitations, may be raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), provided that the facts establishing the defense [are] clear on the face of the plaintiff's pleadings. Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir.2001) (quoting AldahondaRivera v. Parke Davis & Co., 882 F.2d 590, 591 (1st Cir.1989)). Marquez Ramos v. Commonwealth of Puerto Rico, 2012 WL 1414302 (D. Puerto Rico).
III.
DISCUSSION
A. The Heller and McDonald Decisions In Heller1, the United States Supreme Court held that the District of Columbia's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Id. at 635, 128 S.Ct. 2783. At issue in the case was the constitutionality of several firearm restrictionsmost notably, a blanket ban on the ownership of handgunsenacted by the District of Columbia. Id. at 57475, 128 S.Ct. 2783. In determining that the ban violated the Constitution, the Court announced for the first time that the Second Amendment protects an individuals right to keep and bear firearms in one's home for the purpose of self-defense, not simply a collective right to possess and carry arms for the purpose of maintaining a State militia. See id. at 594620, 128 S.Ct. 2783. The Court characterized this right as the right of lawabiding, responsible citizens to use arms in defense of hearth and home. Id. at 635, 128 S.Ct. 2783. (Emphasis ours). Therefore, unless the plaintiff was disqualified from the exercise of Second Amendment rights for some reason, such as a felony conviction, the District had to permit him to register his handgun. Id. At 635, 128 S. Ct. 2783. The Court, however, qualified this right, stating that it is not unlimited. Id. at 626, 128 S.Ct. 2783. The Court affirmed its prior precedent saying that the rights protected by the Second Amendment involve only the bearing of arms for a lawful purpose, see id. at 617618, 128 S.Ct. 2783, and explained, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation. Id. at 595, 128 S.Ct. 2783. (Emphasis added). In addition, the Court affirmed its prior precedent limiting the Second Amendment's reach with respect to the types of weapons possessed or carried, explaining, the Second Amendment does not protect those weapons not typically
1
District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008)
possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns, id. at 625, 128 S.Ct. 2783, or the carrying of dangerous and unusual weapons, id. at 627, 128 S.Ct. 2783, quoting 4 Blackstone 148149 (1769). The Court declared that a citizen's Second Amendment right did not prohibit laws regulating who may possess and carry weapons or purchase them, or where such weapons may be carried. The Court explained: Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sales of arms. Heller, supra at 626627, 128 S.Ct. 2783. The Court noted: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive. Id. at 627 n. 26, 128 S.Ct. 2783. On June 28, 2010, the Court decided McDonald2. The Court explained that the Second Amendment right to keep and bear arms is among those fundamental rights necessary to our system of ordered liberty. McDonald, supra at 3042. The Court stated that the right applies equally to the Federal Government and the States and Justice Alito, writing the plurality opinion, concluded that the Second Amendment right is incorporated to the States through the due process clause of the Fourteenth Amendment. Id. at 3050. Of significance, the plurality opinion did not disturb the conclusion in Heller that a citizen's rights under the Second Amendment are limited. The Court explained: It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [ Heller, supra at 626, 128 S.Ct. 2783]. We made it clear in Heller that our
2
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [ Id. at 626627, 128 S.Ct. 2783.] We repeat those assurances here. Despite municipal respondents' doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald, supra at 3047. (Emphasis Ours). In the case before this Honorable Court plaintiffs have stated that the government can not license a constitutional right. Dkt. 5, 26-31. In other words, plaintiffs assert that the Second Amendment bars any licensing scheme. Nonetheless, as evident from the decisions in Heller and McDonald this was not the intention of the Court when it interpreted the scope of the Second Amendment and made it applicable to the states. To the contrary, McDonald did not disturb the Heller pronouncement and precisely made clear that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Additionally, the Court made it clear that the decision did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill [Heller, supra at 626, 128 S.Ct. 2783]. Consequently, this Honorable Court should interpret the scope of the McDonald and Heller cases for what they area rejection of total ban laws-and not give in to plaintiffs flawed interpretation of the current case law as a doomsday proclamation of the states weapons licensing schemes. B. The Puerto Rico Weapons Act: The Difference Between Weapons License and Permit to Carry The government of Puerto Rico through the enactment of the Puerto Rico Weapons Act of 2000, 25 L.P.R.A. 455 et seq., has used its inherent regulating power with the noble goal of promoting security and well being for the people of Puerto Rico. The rise in criminal activity in the last decades has been a product, in part, of the increase in the illegal trafficking of drugs. This, in turn, has caused an alarming rise in the use of illegal weapons. The illegal firearms have been brought in clandestine ways from other
jurisdictions and some have been acquired during burglaries to state, private or commercial properties that have been authorized to legally possess weapons. To effectively deal with this rise in criminal activity, the Act establishes innovative ways that respond to the inherent state interest of having a legal device whose implementation permits law enforcement agencies to be more effective in the fight against crime. In this regard, the Act counsels law abiding citizens in the effective and responsible management of firearms while it advices criminals about the consequences of using firearms in illegal ways. Statement of Motives, Puerto Rico Arms Act of 2000, 25 L.P.R.A. 455 et seq. As part of the regulating scheme manifested in the law, there are two different licenses or permits that regulate the rights to possess or carry weapons by citizens of Puerto Rico. First, the Weapons Act provides for the issuance of a weapons license for all those who comply with the requirements of section 456a. 25 L.P.R.A 456a. This license is defined as the license issued by the Superintendant that authorizes the concessionaire to possess, carry and transport arms and ammunition, and, depending on their category, to carry firearms, target shooting or hunting. 25 L.P.R.A 455(o). This weapons license empowers the licensee to be the owner of a maximum of two (2) firearms except as specifically provided in section 456a (14)(d). Additionally, the license allows the licensee to bear, carry and transport the weapons in a hidden or unobtrusive manner but not on his/her person. For a licensee to be able to carry the weapons in his/her person and in public, a permit to carry is necessary. 25 L.P.R.A. 456a (14)(d)(1)(2). This permit to carry is the second weapons regulation in the licensing scheme and it requires authorization by the Court of First Instance of Puerto Rico. 25 L.P.R.A. 456d (a). As evident from the text of the Act, to be able to procure a permit to carry by the competent Court of First Instance, a petitioner must first possess a weapons license as defined in section 456a. In this regard, section 456d(a) establishes that: The competent Part of the Court of First Instance shall grant authorization to the Superintendant to include in the petitioners identification card a permit to bear, transport and carry, without
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identifying any particular weapon, any legally owned pistol or revolver unless there is just cause to deny said permit with prior notification to the Department of Justice and upon a hearing before the same if so required by the latter, to any person who holds a weapons license and demonstrates that he/she fearsa for his/her safety. (Emphasis added) Additionally, section 456 d(b) states that the permit to carry weapons granted herein shall have a term subject to the effectiveness of the weapons license... As evident from the licensing scheme, the legislative intention behind the Act was to distinguish two different rights and interests; the right to possess weapons in the home, for protection of the family and self and the privilege to carry a weapon in public. The weapons license safeguards the first and the permit to carry regulates the second. The allegations in the complaint make it clear that both plaintiffs already possess the weapons license given the fact that they were both procuring permits to carry. Dkt. 5, 19 and 20. Moreover, they were denied the permit to carry because they intentionally refrained from producing the documents that were required of them by law, alleging that the requirement to produce said documentation violated their rights under the Second Amendment. Nonetheless, and as will be further developed, defendants contend that plaintiffs do not have standing to allege the unconstutionality of section 456a regarding the requirements for the issuance of the weapons license because they already possess a weapons license and have nothing at stake regarding this issue. Additionally, defendants further contend that the permit to carry is beyond the scope of the Second Amendment and should not be analyzed as a right but as a privilege. The interpretation of the Second Amendment has been consistently related to the rights of law-abiding, responsible citizens to use arms in defense of hearth and home. Heller v. DC 554 U.S. 570, 635 (2008) (Emphasis ours). In this regard, the weapons license plaintiffs already possess, allows them to enjoy their Second Amendment rights fully.
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C. Plaintiffs Dont Have Standing: Both Plaintiffs Already Have Weapons Licenses and the Injury was Self Inflicted As part of the allegations in the complaint, plaintiffs challenge the constitutionality of the licensing requirements in section 456a (Article 2.02). Dkt. 4, 26, 33, 36, 37, 41. Section 456a codifies the requirements necessary to obtain a weapons license. As evident in the complaint, plaintiffs already possess a weapons license. Both Williams and Gonzlez-Lora were procuring a permit to carry which necessarily requires a licensee to have previously acquired a weapons license. Dkt. 5, 19 and 20; 25 L.P.R.A. 456d(a). Plaintiffs have nothing at stake regarding a determination by this Honorable Court of the constitutionality of section 456a, thus they dont have standing to challenge this disposition or the requirements set forth therein. Article III of United States Constitution limits the judicial power of the United States to the resolution of cases and controversies. Valley Forge Christian Coll v. Ams. United for Separation of Church & State, 454 U.S. 464, 471 (1982). A crucial part of the case and controversy limitation on the power of the federal courts is the requirement that a plaintiff must have standing to invoke federal jurisdiction. Id. At 471-73. Standing is a threshold issue and determines whether the court has the power to hear the case, and whether the putative plaintiff is entitled to have the court decide the merits of the case. Libertad v. Welch, 53 F. 3d 428, 436 (1st Cir. 1995) (internal quotations omitted). Therefore, if plaintiff lacks standing to bring a matter to federal court, the court lacks jurisdiction to decide the merits of the case and must dismiss the complaint. United States v. AVX Corp., 962 F. 2d 108, 113 (1st Cir. 1992). The Article III standing requirement assures that there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party; where that need does not exist; allowing courts to oversee legislative or executive action would significantly alter the allocation of power away from a democratic form of government. Summers v. Earth Island Institute, 129 S. Ct. 1142, 173 L. Ed. 2d 1, 72
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Fed. R. Serv. 3d 1183 (2009). Moreover, a person whose rights are affected by one portion of a statute may not question the constitutionality of another portion, where the operation of the provision affecting him or her will not be influenced by the validity or invalidity of the contested provision. In re Dos Cabezas Power Dist., 17 Ariz. App. 414, 498 P.2d 488 (Div. 2 1972). See United States v. Salerno, 481 U.S. 739, 745 & n. 3, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (constitutional jurisprudence instructs that usually person to whom statute properly applies will not be heard to challenge statute on grounds that it conceivably may be unconstitutional as applied to others). To establish Article III standing, plaintiffs must show that they have a personal stake in the outcome of the claim by meeting a three part test. Pagan v. Calderon, 448 F. 3d 16, 27 (1st Cir. 2006) (citing Baker v. Carr, 369 U.S. 186, 204 (1962)). (internal citations omitted). Id. They must show (1) a concrete and particularized injury in fact, (2) a causal connection that permits tracing the claimed injury to defendants actions, and (3) a likelihood that prevailing in the action will afford some redress for the injury. Weavers Cover Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F. 3d 458, 467 (1st Cir. 2009). (internal quotation marks omitted). The Supreme Court has held that the party invoking federal jurisdiction bears the burden of establishing these elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal citations omitted). Since they are not mere pleading requirements but rather an indispensible part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation. Id. (internal citations omitted). In the case at bar, the constitutional challenge plaintiffs have asserted regarding section 456a of the
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Weapons Act can not proceed as a matter of law because they will be unable to demonstrate (1)a concrete and particularized injury in fact, and (2) a likelihood that prevailing in the action will afford some redress for the injury. Weavers Cover Energy at 467 (1st Cir. 2009). As previously stated plaintiffs have not asserted that they applied to and were denied weapons license. Nothing in the allegations in the complaint points to plaintiffs being denied a weapons license. Williams and Gonzlez-Lora only make general allegations about the section being unduly burdensome and unconstitutional, but they fail to demonstrate how these characterizations will affect them in any way or form. Thus, given that any determination of constitutionality by this Honorable Court will not afford plaintiffs some redress for the injury alleged, plaintiffs have failed to demonstrate that they have standing to challenge the constitutionality of this portion of the statute. Moreover, plaintiffs dont have standing to challenge the constitutionality of section 456(d) (permit to carry) because they will be unable to proof the second prong of the three part test; that there is a causal connection that permits tracing the claimed injury to defendants actions. Supra, Weavers Cover Energy, LLC at 467. (Emphasis Ours). As evident in the complaint the reason the Court of First Instance denied plaintiffs petition was because they intentionally failed to present the required documentation. This goes to the heart of the case and controversy requirement. In the case of Gonzlez-Lora he intentionally refrained from filing 3 sworn statements from reputation witnesses and a sworn statement stating that he had filed his state taxes. Dkt. 5, 20. Williams, on the other hand, failed to produce his income tax returns and to bring 3 reputation witnesses. Dkt. 5, 19. This action or inaction by plaintiffs is only attributable to plaintiffs own exploit and not to defendants uncontrolled discretion. See, Dkt. 5, 8. Accordingly, this court should DISMISS WITH PREJUDICE plaintiffs constitutional challenge to section 456a and 456d of the Puerto Rico Weapons Act.
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D. Plaintiffs Have Failed to Establish a Violation of the Second and Fourteenth Amendment Under 42 U.S.C. 1983 Plaintiffs claim against the appearing defendant should be dismissed for failing to state a claim under which relief can be granted. The substantive cause of action to claim damages and injunctive relief against individuals and governmental bodies who deprive a plaintiff of rights, privileges or immunities secured by the Constitution and laws arises from 1983. In order to state a valid claim under 42 U.S.C. 1983, three elements must be alleged before it becomes cognizable. A 1983 plaintiff must allege and prove the following elements: (1) that the conduct complained of was committed by a person acting under color of state law. See Gmez v. Toledo, 446 U.S. 635, 640 (1980); (2) that this conduct deprived plaintiff[s] of rights, privileges or immunities secured by the Constitution or laws of the United States. See Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527, 535 (1981); overruled in part on other grounds; Daniels v. Williams, 474 U.S. 327, 330-331 (1986); Voutour v. Vitale, 761 F. 2d 812, 819 (1st Cir. 1985); and (3) that defendant was personally and directly involved in causing the violation of the plaintiff[s] federally protected rights. See Rizzo v. Goode, 423 U.S. 362, 370, 96 S.Ct. 598, 46 L.Ed. 2d 561 (1976); Monell v. New York Dept. of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiffs have failed to adequately comply with the second prong of the 1983 analysis. They have failed to establish that they have been deprived of the rights, privileges or immunities secured by the Constitution or laws of the United States. Plaintiffs due process claim is centered on the allegation that articles 2.02 and 2.05 (sections 456a and 456d) of the Puerto Rico Weapons Act infringes plaintiffs Second and Fourteenth Amendment rights in violation of 42 U.S.C 1983. They claim, among other things, that the government can not license a constitutional right and that above mentioned sections are unconstitutional because the Second Amendment
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right to bear arms is conditioned on a series of requirements. Dkt. 5, 8. Nonetheless, plaintiffs Second Amendment right is safeguarded by the weapons license which they already possess. See Heller. at 594620, 128 S.Ct. 2783) (the Second Amendment protects an individuals right to keep and bear firearms in one's home for the purpose of self-defense). The weapons license already held by plaintiffs empowers the licensee to acquire, buy, sell, donate, transfer, assign, hold, possess, have custody of and transport, bear and carry firearms, ammunition and any pertinent accessory anywhere under the jurisdiction of the Commonwealth of Puerto Rico provided that (1) the firearms may be borne, carried, and transported in a hidden or unobtrusive manner. 25 L.P.R.A. 456a(c). As evident in the text of the law, plaintiffs current status as weapons license holders protects their rights under the Second Amendment. Nothing in their current position prevents them from possessing a firearm in their home for the purpose of self defense. The permit to carry, on the other hand, is a privilege and not a right protected by the Second Amendment by way of the Fourteenth Amendment. 25 L.P.R.A. 456d. The Supreme Court explained in Heller that we do not read the Second Amendment to protect the rights of citizens to carry arms for any sort of confrontation. Heller, Supra at 595. The permit to carry regulated by the Weapons Act grants the licensee the privilege of carrying the gun on his/her person in public. This, by definition, allows the licensee to be armed anywhere, at any time and for any sort of confrontation; well far beyond the protection of the citizens home; the specific right codified by the Second Amendment. As explained in Heller, the Second Amendment does not protect the rights of citizens to carry arms for any sort of confrontation. Accordingly, the permit to carry is beyond the scope of the Second Amendment and thus not suited for the protections inherent in the Fourteenth Amendment analysis. See, Heller, supra at 626, 128 S.Ct. 2783 . (the Second Amendment is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.).
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The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In order for plaintiffs to maintain a procedural due process claim, they must first identify the protected property interest. Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 7 8 (1st Cir. 2005). Usually, procedural due process mandates that the state provide a person with notice and an opportunity to be heard before depriving that person of a property or liberty interest. Whalen v. Massachusetts Trial Court, 397 F.3d 19 (1st Cir. 2005); Rosario-Urdaz v. Velazco, 433 F. 3d 174 (1st Cir. 2006). As explained before, plaintiffs Second Amendment right to bear arms is already protected by the weapons license they posses and which they dont have standing to challenge. Moreover, the request to characterize the permit to carry as part of this right is beyond the interpretation that the Supreme Court has granted to the Second Amendment and thus plaintiffs have failed to demonstrate that they have been deprived of the rights, privileges or immunities secured by the Constitution or laws of the United States. For that reason, this Honorable Court should DISMISS WITH PREJUDICE plaintiffs Fourteenth Amendment claim regarding the challenge to section 456d of the Puerto Rico Weapons Act. E. Intermediate Scrutiny and the Licensing Requirements As established above, it is defendants position that plaintiffs do not have standing to challenge the licensing scheme of section 456a of the Weapons Act given that they already possess the weapons license and have nothing at stake in the outcome of a decision on this issue. Nonetheless, defendants will analyze the merits of plaintiffs claim regarding the constitutionality of the licensing scheme including the requirements of the permit to carry in section 456d. Plaintiffs allege that the states retain the ability to regulate, under strict scrutiny, the manner of
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carrying handguns within constitutional parameters. Dkt. 5, 24. Additionally, plaintiffs claim that the states may notimpose regulations on the right to carry handguns that are inconsistent with the Second Amendment and do not meet the strict scrutiny review. Dkt. 5, 25. Nonetheless, defendants understand that the adequate standard of review is intermediate scrutiny. As this Honorable Court has correctly interpreted, when a law simply regulates the manner in which a person may exercise their Second Amendment right to bear arms, but does not prohibit the exercise of such a right, intermediate scrutiny is the appropriate standard to evaluate the constitutionality of such law. U.S. v. Coln-Quiles, 2012 WL 1565094 (D. Puerto Rico). This interpretation goes hand in hand with the explicit scope of Heller and the construal of other courts post-Heller. As many courts have recognized, the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right. If it had wanted to it would have done so explicitly. See, Heller v. DC, 698 F. Supp. 2d 179, 187. See Miller, 604 F.Supp.2d at 1170 n. 10 (citing United States v. Darrington, 351 F.3d 632, 635 (5th Cir.2003) (stating that if [a court] intended to recognize that the individual right to keep and bear arms is a fundamental right, in the sense that restrictions on this right are subject to strict scrutiny by the courts and require a compelling state interest, it would have used these constitutional terms of art)). Heller, 698 F. Supp. 2d at 187. Additionally, as the Heller dissent and numerous other courts and legal scholars have pointed out, a strict scrutiny standard of review would not make sense with the majority's references to presumptively lawful regulatory measures such as laws prohibiting firearms possession by felons and the mentally ill, forbidding the carrying of firearms in schools or government buildings and imposing conditions and qualifications on the commercial sale of arms. Heller, 128 S.Ct. at 2851 (Breyer, J., dissenting); see also Skoien, 587 F.3d at 812 (noting that the court did not see how the listed laws could be presumptively constitutional if they were subject to strict scrutiny); Marzzarella, 595 F.Supp.2d at 604 (observing that
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the Court's willingness to presume the validity of several types of gun regulations is arguably inconsistent with the adoption of a strict scrutiny standard of review); Dennis A. Henigan, The Heller Paradox, 56 UCLA L. REV. 1171, 1197-98 (2009) (stating that the Heller majority ... implicitly rejected strict scrutiny by describing certain gun control measures as presumptively lawful); Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 HASTINGS L.J. 1371, 1379 (2009) (opining that it is doctrinally impossible to conclude that strict scrutiny governs Second Amendment claims, while also upholding the presumptively lawful exceptions specified in Heller ). Heller, 698 F. Supp. 2d at 187. (Emphasis added). Under the intermediate scrutiny analysis, the Court must determine whether the asserted governmental purpose is substantially related to an important governmental objective. Clark, 486 U.S. at 461, 108 S.Ct. 1910; see also United States v. Williams, 616 F.3d 685, 69294 (7th Cir.2010). That is, the District must establish a tight fit between the registration requirements and an important or substantial governmental interest, a fit that employs not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective. Fox, 492 U.S. at 480, 109 S.Ct. 3028; see also Ward, 491 U.S. at 78283, 109 S.Ct. 2746 (The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest). The licensing requirements under the Puerto Rico Weapons Act are reasonable and they pass the intermediate scrutiny muster: the purpose of the statute is to assist law enforcement in the fight against crime and to promote security for the people of Puerto Rico. See Statement of Motives, Puerto Rico Arms Act of 2000, 25 L.P.R.A 455 et. Seq. These goals constitute an important governmental interest for the purpose of
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an intermediate scrutiny analysis. See,, United States v. Salerno, 481 U.S. 739, 748-50, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (noting that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest and holding that the government's interest in preventing crime is not only important, but compelling); Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (remarking that [t]he legitimate and compelling state interest in protecting the community from crime cannot be doubted (citations and quotation marks omitted)).Heller v. District of Columbia, 698 F. Supp. 2d 179, 199 (D.C. 2010). Given the demonstrated compelling and important government interest of state security and fighting crime, defendants will proceed to analyze the reasonableness of the challenged requirements. i. First and Second Cause of Action: Constitutionality of Licensing Requirements and Payment Fees At the outset, the idea that longstanding presumptively lawful regulatory measures is part of the articulated language in the Heller opinion necessarily means that regulation of firearms is by definition constitutional. Heller, supra at 626627, 128 S.Ct. 2783. Plaintiffs challenge the weapons license requirement scheme and its payment provision and allege it is unconstitutional on its face because it licenses a fundamental right. Dkt. 5, 37, 41. To succeed in a typical facial attack on the constitutionality of a statute, a party would have to establish that no set of circumstances exists under which the statute would be valid, or that the statute lacks any plainly legitimate sweep. U.S. v. Stevens, 130 S. Ct. 1577 (2010). Any facial challenge to a legislative enactment that tests the enactment not only as applied to the plaintiff but also as applied to other unidentified persons, must be treated cautiously by Article III courts, because slipping into the embrace of a facial challenge can tend to leave behind the limitations imposed by Article III and to trample on legislative prerogatives, in violation of separation of powers principles. U.S.C.A. Const. Art. 3, 1 et seq. Preston v. Leake, 660 F.3d 726 (4th Cir. 2011). Here, the plaintiffs contend that the statute is
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facially invalid because it requires a citizen to obtain a license for the exercise of a fundamental right. Dkt. 5, 37. Said another way, plaintiffs pretend to assert that the Second Amendment bars any licensing system. The Court's decisions of McDonald and District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ( Heller ), however, does not support such a conclusion. To the contrary, the Court in Heller identified an individual right to carry and bear arms that is limited in scope. The Court explained that a citizen's Second Amendment right did not prohibit laws regulating who may possess and carry weapons or purchase them, or where such weapons may be carried. The Court stated: Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sales of arms. The United States Supreme Court noted: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive. District of Columbia v. Heller, 554 U.S. 570, 627 n. 26, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In McDonald, the Court cited to this specific language in Heller and stated: We repeat those assurances here. Despite plaintiffs doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald, supra at 3047. Thus, the requirement of a citizen to obtain a license for the exercise of a fundamental right or a licensing system, does not by itself render the statute unconstitutional on its face and given that the underlying licensing regime is lawful the payment provision is also enforceable. Nothing in the McDonald and Heller decisions has altered or abrogated the state of the law concerning the statutory presumption set forth in the Puerto Rico Weapons Act. Moreover, if not with a licensing scheme, how else is the government going to have the assurance that those who possess weapons are law-abiding, responsible citizens who are not felons or the mentally ill? Without some form of regulation that balances the Second
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Amendment rights of the citizens and the governments interest in preventing and fighting crime there can really be no system of ordered liberty were to exercise those rights. See, McDonald, supra at 3042. ii. Third Cause of Action: Equal Protection Claim: Constitutionality of Special Treatment to Government Officers Plaintiffs challenge the constitutionality of section 456c of the Weapons Act alleging that it discriminates and favors those with faculty to approve licenses and that this fact crashes against the Second Amendment head on as the interpretative jurisprudence indicates that the Right belongs to the people not the government. Dkt. 5, 34, 35. First and foremost, we bring to the Courts attention the fact that plaintiff Danny Williams does not have standing to challenge this provision given the fact that he is an active duty soldier with the US Coast Guard, a status that is precisely favored and protected by section 456c. Dkt. 5, 9. Section 456c establishes a narrow list of persons who because of their office and duty enjoy an expedited procedure to obtain a weapons license. 25 L.P.R.A 456c. Among the officers who are able to enjoy this expedited process are; the Governor, legislators, mayors, secretaries, directors and heads of agencies of the Government of Puerto Rico, Commonwealth and federal judges, Commonwealth and federal prosecutors, minor's advocates, the Superintendent, members of the Police Force, officials, agents and employees of the government of Puerto Rico who because of their office and the duties they perform are required to carry a weapon, and members of the United States Armed Forces and the Puerto Rico National Guard. 25 L.P.R.A 456c. Pursuant to this statutory provision, remaining plaintiff has brought before the court an equal protection claim but has failed to state the necessary requirements to succeed on such a claim. In alleging that the classification in favor of an expedited process for certain government officials is discriminatory, plaintiffs do not allege either that they are members of a suspect class or that the provision directly infringes their fundamental right. Consequently, this honorable court must analyze the challenge to the Act under the rational basis review. See Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir.
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2005); Baker v. City of Concord, 916 F.2d 744, 755 (1st Cir. 1990). Rational basis review "is a paradigm of judicial restraint." FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993). "The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn . . . is rationally related to a legitimate state interest." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440(1985). The challenger has the devoir of persuasion and must negate any and all conceivable bases upon which the challenged regulation might appropriately rest. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001); Heller v. Doe, 509 U.S. 312, 320 (1993). If any such ground exists to support the classification employed, the regulation must be upheld even if it is drawn from "rational speculation unsupported by evidence or empirical data." Beach Commc'ns, 508 U.S. at 315. In this case, the interests that section 456c purposes to serve are unarguably legitimate. The Legislature of Puerto Rico, when enacting the law, understood that the functions and duties of certain government officials were of such risk that an expedited process for them to obtain a weapons license was appropriate. This value and criteria by the legislature is presumed to be valid and must be sustained given the fact that it is rationally related to a legitimate state interest. Accordingly, this Honorable Court should DENY plaintiffs equal protection claim. iii. Fourth and Fifth Cause of Action: Constitutionality of Statutory Authority of Government Officials to Enforce Regulation of Firearms and Permit to Carry Requirements In asserting that Articles 2.02 and 2.05 of the Puerto Rico Weapons Act (25 L.P.R.A. 456a and 456d) violate the Second and Fourteenth Amendment because they vest uncontrolled discretion on the hands of state officials, plaintiffs rehash the claim challenging the licensing scheme. Dkt. 5, 36-40. On the other hand, in stating that these articles are unconstitutional because the exercise of a constitutional right can not be conditioned on the show of fear, third party opinions, prove of child support payment, prove of state tax payment and prove of medical abilities certification, plaintiffs challenge what is a privilege and not
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a right afforded by the Second Amendment. As stated above, plaintiffs dont have standing to challenge the constitutionality of section 456a or 456d given the fact that they already possess weapons licenses. In regards to section 456d, plaintiffs assert that it is facially invalid in that it vests the Superior Court with uncontrolled discretion to issue or refuse to issue carry permits and that the requirements to do so are impermissibly burdensome. Dkt. 5, 36-42. To succeed in a typical facial attack on the constitutionality of a statute, a party would have to establish that no set of circumstances exists under which the statute would be valid, or that the statute lacks any plainly legitimate sweep. U.S. v. Stevens, 130 S. Ct. 1577 (2010). This standard can not be proved by plaintiffs. As previously discussed, the carry permit is beyond the scope of the Second Amendment and the presumption of constitutionality normally accorded a State's law applies. Smith v. Doe, 538 U.S. 84, 110, 123 S.Ct. 1140 (2003). Additionally, even if it were to be analyzed within the scope of the Heller and McDonald decision, the discretion afforded to State Court judges and the requirements for the permit to carry would still stand because they respond to a legitimate purpose that is reasonably related to the right at issue. Heller precisely pointed to the fact that the Second Amendment right applied to law-abiding, responsible citizens to use arms in defense of hearth and home. Heller v. DC 554 U.S. 570, 635 (2008) (Emphasis ours). The discretion to grant a permit to carry to a weapons licensee holder takes into account factors that go to the heart of the limit of the right. The requirements of third party opinions, child support payment and prove of state tax payment go to the question of whether the person is a law abiding, responsible citizen. Accordingly, these requirements are presumed valid and this Honorable Court should DENY plaintiffs challenge to section 456d. WHEREFORE, defendants respectfully request that this Honorable Court DENY plaintiffs complaint and DISMISS WITH PREJUDICE all the causes of action that have been brought in the instant civil action.
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I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send electronic notification of such filing to all attorneys of record. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 12th day of July, 2012. GUILLERMO A. SOMOZA-COLOMBANI Secretary of Justice of the Commonwealth of Puerto Rico GRISEL SANTIAGO-CALDERN Deputy Secretary of Justice In Charge of the Office of General Litigation WANDYMAR BURGOS-VARGAS U.S.D.C.-P.R. Bar No. 223502 Acting Director of Legal Affairs Office of General Litigation Federal Litigation Division wburgos@justicia.pr.gov S/ Maraliz Vzquez Marrero MARALIZ VZQUEZ-MARRERO U.S.D.C. NO. 225504 Department of Justice Federal Litigation Division P.O. Box 9020192 San Juan, P.R., 00902-0192 Tel. (787) 721-2900 Fax (787) 723-9188 marvazquez@justicia.pr.gov maralizvaz@gmail.com
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Motion To Dismiss (1) Second Amendment Puerto Rico

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McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).

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