LLC v. Dannel P. Malloy, Governor of the State of Connecticut (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101.00)

On June 7, 2013, the defendant, Dannel P. Malloy, moved to dismiss the complaint filed by the plaintiffs, Disabled Americans for Firearms Rights, LLC (DAFR) and Scott A. Ennis, on the grounds that both plaintiffs lack standing and that the doctrine of sovereign immunity bars their claim.   The motion was accompanied by a supporting memorandum of law and exhibits.¹  On July 24, 2013, the plaintiffs filed an objection to the motion to dismiss with a supporting memorandum of law and exhibits.²  On November 12, 2013, the defendant filed a reply to the plaintiffs' objection and two further exhibits.³  The matter was heard at short calendar on December 2, 2013.   On January 7, 2014, the defendant filed a notice of supplemental authority, which contained two New York federal district court memoranda of decision.

BACKGROUND

On April 15, 2013, the plaintiffs filed a one-count complaint, which alleges the following facts.   Ennis is a resident of New London, Connecticut, and is a disabled individual who suffers from Hemophilia A, a bleeding condition which causes him severe joint damage.   Because of his disability, Ennis's strength, flexibility, and range of motion of his limbs is impaired, particularly in his upper extremities.   DAFR is an organization composed of members in Connecticut and throughout the nation.   DAFR's purpose is the education of the public and elected officials concerning the unique needs of disabled individuals when exercising their fundamental rights in the lawful use of firearms and other activities.   The defendant is the Governor of the State of Connecticut acting in his official capacity.

On April 4, 2013, the defendant signed into law No. 13–3 of the 2013 Public Acts, which made substantial changes to existing firearms laws.   Public Act 13–3 prohibits the ownership of certain firearms deemed “assault weapons.”   Public Act 13–3 defines assault weapons both by reference to a list of specific model names and manufacturers, and by listing certain enumerated features.   Public Act 13–3 also bans “large capacity magazines” which accept more then ten rounds of ammunition.

The plaintiffs further allege that disabled individuals, including Ennis and other members of DAFR, require weapons with certain of the prohibited features and large capacity magazines in order to exercise their fundamental right to bear arms.   By enacting Public Act 13–3, the defendant has deprived and will in the future deprive the plaintiffs of their fundamental rights, in violation of article first, §§ 1, 15, and 20 of the Connecticut constitution and General Statutes §§ 27–2 and 46a–58(a).   The plaintiffs seek a declaratory judgment, a temporary restraining order, and preliminary and permanent injunctions against implementation and enforcement of Public Act 13–3.

LAW RE MOTION TO DISMISS

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”   St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[L]ack of subject matter jurisdiction may be found in any one of three instances:  (1) the complaint alone;  (2) the complaint supplemented by undisputed facts evidenced in the record;  or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 650–51, 974 A.2d 669 (2009).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Id., 651.  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)   Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).

The defendant argues that the court is without subject matter jurisdiction to hear the claim, both because the plaintiffs lack standing and because their claim is barred by the doctrine of sovereign immunity.   This memorandum will address each argument in turn.

I

STANDINGAPPLICABLE LAW

The defendant claims that both plaintiffs lack standing because the complaint lacks any allegation of harm, because DAFR lacks associational standing to sue on behalf of its members, and because the statutes cited in the complaint do not create a private cause of action.   In response, the plaintiffs argue that they have properly alleged future harm, that DAFR properly possesses associational standing, and that the statutes in question need not provide for a private right of action to provide standing.

“[B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss.”  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012).  “If ․ the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed.”  (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).  “Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved.”  (Internal quotation marks omitted.)  Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).  “The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Id. The objectives of standing “are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.”  (Internal quotation marks omitted.)  Andross v. Town of West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008).

ANALYSIS

AScott Ennis

The complaint alleges that Ennis suffers from a medical condition which constitutes a physical disability and that the provisions of Public Act 13–3 prohibit firearms with features which he requires to accommodate his disability in order to exercise his rights under the constitution of Connecticut.  “[The Connecticut] constitution protects each citizen's right to possess a weapon of reasonably sufficient firepower to be effective for self-defense.”  Benjamin v. Bailey, 234 Conn. 455, 465, 662 A.2d 1226 (1995);  see Conn. Const., art.   I, § 15 (“Every citizen has a right to bear arms in defense of himself and the state”).   Our Supreme Court has held, however, that “as long as our citizens have available to them some types of weapons that are adequate reasonably to vindicate the right to bear arms in self-defense, the state may proscribe the possession of other weapons without infringing on article first, § 15.”  (Emphasis added.)  Benjamin v. Bailey, supra, 465–66.   Ennis has properly alleged both an interest, his right to bear arms in self-defense, and an adverse affect on that interest, a prohibition against possession of firearms he claims he requires in order to exercise that right.⁴

Of note is the fact that Public Act 13–3, unlike the prior ban, classifies certain firearms as assault weapons based solely on the manner in which the weapon may be gripped.⁵  In order for Ennis to succeed in his claim, he would be required to show that as a result of these new restrictions, there remains no weapon available to him which is adequately reasonable, in light of his physical disability, to vindicate his right to bear arms in self-defense pursuant to Benjamin.   The question of standing, however, “does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief.”   (Internal quotation marks omitted.)  Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn.App. 632, 638, 803 A.2d 402 (2002).

The plaintiffs in Benjamin sought similar relief for similar claims, albeit under a different version of the law.   While the plaintiffs there were ultimately unsuccessful in their claims, it is informative to the present matter that the trial court denied them relief only after a trial on the merits, and that our Supreme Court affirmed the trial court's ruling on those merits.   See Benjamin v. Bailey, supra, 234 Conn. 457–58.   The clear implication is that both courts found that they had jurisdiction to hear the matter.   The same holds true here.   See also Shew v. Malloy, United States District Court, Docket No. 3:13CV739 (AVC) (D.Conn. January 30, 2014) (jurisdiction implied where federal court granted summary judgment in favor of defendants in Second Amendment challenge to Public Act 13–3).

The defendant's second claim regarding Ennis' standing, that the statutes cited in the complaint do not provided a private right of action, is similarly unpersuasive.   The allegations of the deprivation of Ennis' constitutional rights in the complaint is sufficient to provide a cause of action, just as it was in Benjamin.   To the extent that the defendant claims that the plaintiffs can file a complaint with the Commission on Human Rights and Opportunities to seek relief, “[i]t is well settled under the common law that adjudication of the constitutionality of legislative enactments is beyond the jurisdiction of administrative agencies.”  Rayhall v. Akim Co, Inc., 263 Conn. 328, 337, 819 A.2d 803 (2003).  “If ․ the only way to determine whether a plaintiff can obtain the relief that she seeks is through a resolution of the constitutional challenge, she need not exhaust her administrative remedies and the court does have jurisdiction to hear the claim.”  Coyle v. Commissioner of Revenue Services, 142 Conn.App. 198, 209, 69 A.3d 310 (2013).   In the present matter, because the plaintiff seeks a resolution of his constitutional challenge, the court has jurisdiction without requiring the plaintiff to exhaust his administrative remedies.

B

DAFR

DAFR asserts that it has associational standing ⁶ on behalf of its members in the present action.  “[A]n association has standing to bring suit on behalf of its members when:  (a) its members would otherwise have standing to sue in their own right;  (b) the interests it seeks to protect are germane to the organization's purpose;  and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”   (Internal quotation marks omitted.)  Connecticut Ass'n of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 616, 508 A.2d 743 (1986).   “Representational standing depends in substantial measure on the nature of the relief sought.   If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.”  (Internal quotation marks omitted.)  Id.

DAFR fails to satisfy the three prong test for associational standing.  “In regard to the first element, the requirement that an association's members would otherwise have standing to sue in their own right, courts have held that not all members of the association must be similarly injured.”   Connecticut Coalition for Justice in Educ. Funding, Inc. v. Rell, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07–CV–05–4050526–S (December 4, 2013, Dubay, J.).   The Connecticut Supreme Court has “implicitly rejected the notion that aggrievement must be universal among the membership of an association before it may have representative standing.”   Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 395, 610 A.2d 620 (1992).   Therefore, “[a]s long as at least one member has standing, an organization has standing.”  Connecticut Coalition for Justice in Educ. Funding, Inc. v. Rell, supra, citing United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) (“[T]he test's first requirement, that at least one of the organization's members would have standing to sue on his own, is grounded on Article III as an element of the constitutional requirement of a case or controversy” [internal quotation marks omitted] ).   Accordingly, because it has been determined that Ennis has standing, and because he is a member of DAFR, the first prong is satisfied.

DAFR does not meet the second or third factors of the test for associational standing, however.   The Appellate Court has adopted the characterization of “the germaneness prong as one mandating mere pertinence between litigation subject and organizational purpose.”  Paucatuck Eastern Pequot Indians v. Indian Affairs Council, 18 Conn.App. 4, 11, 555 A.2d 1003 (1989).   Paragraph two of the complaint describes DAFR as “an organization composed of thousands of members throughout Connecticut and the nation, which has as its mission the education of the public and elected officials concerning the unique needs of disabled individuals when exercising their fundamental rights in the lawful use of firearms, among other lawful activities.”  (Emphasis added.)   There is no indication that Public Act 13–3 interferes in any pertinent way with DAFR's stated purpose of educating the public and elected officials.   A restriction on certain types of firearms does not restrict DAFR from imparting information regarding disabled individuals or their rights regarding the use of non-prohibited firearms.⁷

Finally, the claim brought by the plaintiffs in the present matter would clearly require the participation of individual members of DAFR. In their complaint, the plaintiffs allege that disabled persons, including members of DAFR, require certain features prohibited by Public Act 13–3 in order to exercise their rights.   A determination of this allegation would require evidence of the specific physical disabilities of each individual.   Cf. Paucatuck Eastern Pequot Indians v. Indian Affairs Council, supra, 18 Conn.App. 10–11 (“[t]his prayer for relief does not require the court to consider the individual circumstances of any aggrieved tribal member”);  Connecticut Hospital Ass'n, Inc. v. Commission on Hospitals & Health Care, Superior Court, judicial district of New Haven, Docket No. CV–91–0316008–S (December 9, 1992, Hodgson, J.) (8 Conn. L. Rptr. 53) (“[s]ince the complaint seeks only declaratory relief and not money damages to recoup past discounts, nor a determination of the circumstances of any particular member ․ there is no necessity for participation of individual members” [citation omitted, emphasis added] ).

DAFR fails to satisfy the second and third prongs of the Worrell test.   Accordingly, it lacks associational standing.   The motion to dismiss is properly granted as to DAFR on that ground.

II

SOVEREIGN IMMUNITYAPPLICABLE LAW

The defendant further asserts that the plaintiffs' claims are barred by the doctrine of sovereign immunity.   The plaintiffs respond that sovereign immunity does not bar claims of violations of constitutional rights.   Because the complaint alleges a constitutional violation, the plaintiffs argue that sovereign immunity is inapplicable in the present matter.   The defendant argues in response that the plaintiffs have not alleged a substantial constitutional violation.

“[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).   Our Supreme Court “has recognized [an exception] to sovereign immunity involving declaratory judgments, when ․ a declaratory judgment is requested based on a substantial claim that the state or one of its officers violated a plaintiff's constitutional rights ․” (Citation omitted.)  St. George v. Gordon, 264 Conn. 538, 550 n.12, 825 A.2d 90, (2003), overruled on other grounds, Flanagan v. Blumenthal, 100 Conn.App. 255, 917 A.2d 1047 (2007).  “Sovereign immunity rests on the principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property ․ Because a court may tailor declaratory and injunctive relief so as to minimize any such interference ․ actions that seek injunctive or declaratory relief against a state officer acting in excess of statutory authority or pursuant to an unconstitutional statute do not conflict with the policies underlying the doctrine of sovereign immunity.”  (Citations omitted, internal quotation marks omitted.)  Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003).

ANALYSIS

The plaintiffs' complaint in the present action alleges violations of their constitutional right to bear arms in self defense pursuant to article first, § 15 of the Connecticut Constitution, and the equal protection of their rights under article first, §§ 1 and 20.   The plaintiffs seek a declaratory judgment that Public Act 13–3 violates the plaintiffs' constitutional rights.   These two points weigh in favor of their cause of action satisfying the exception to sovereign immunity for alleged constitutional violations.

The defendant claims that the plaintiffs do not satisfy the elements set forth in Benjamin to determine “whether a particular arms control statute infringes on the constitutional right to bear arms.”  Benjamin v. Bailey, supra, 234 Corm. 469.   This argument, however, overlooks the fact that in reaching an analysis of the factors, the court considered the issue as a constitutional question.  Id., 461 (“[w]e first consider the propriety of the statutory ban on assault weapons under article first, § 15, of the state constitution”).   As discussed previously in section I of this memorandum, the fact that both the trial court and the Supreme Court reached the merits of the plaintiffs' case in Benjamin implies that both courts previously found jurisdiction over the matter.

Whether or not the plaintiff can succeed on his claims under the standard set forth in Benjamin is a question for another day.   The fact that the plaintiff faces a difficult burden of proof in his case does not strip this court of its jurisdiction to permit him to attempt to carry that burden.⁸

ORDER

For the foregoing reasons, the motion to dismiss (# 101.00) is granted as to the plaintiff Disabled Americans for Firearms Rights, LLC and denied as to the plaintiff Scott Ennis.

Devine, J.

FOOTNOTES

FN1. The exhibits attached to the defendant's motion consisted of a copy of an article posted on the Emergency Services and Public Protection webpage and nine pages of the Connecticut Senate Session Transcript for April 3, 2013..  FN1. The exhibits attached to the defendant's motion consisted of a copy of an article posted on the Emergency Services and Public Protection webpage and nine pages of the Connecticut Senate Session Transcript for April 3, 2013.

FN2. Plaintiff's objection was accompanied by over 450 pages of exhibits, including various Department of Justice reports, Connecticut Uniform Crime Reports statistics, various news articles and editorials, and affidavits of Ennis, Christopher M. Fields (a private firearms instructor), Jeffrey Merli (a member of DAFR), and Jonathan Stanco (also a member of DAFR)..  FN2. Plaintiff's objection was accompanied by over 450 pages of exhibits, including various Department of Justice reports, Connecticut Uniform Crime Reports statistics, various news articles and editorials, and affidavits of Ennis, Christopher M. Fields (a private firearms instructor), Jeffrey Merli (a member of DAFR), and Jonathan Stanco (also a member of DAFR).

FN3. The exhibits attached to the defendant's reply consisted of a partial transcript of a federal district court case and an affidavit of Joseph Delehanty, a Senior Firearms Instructor for the Connecticut Police Academy..  FN3. The exhibits attached to the defendant's reply consisted of a partial transcript of a federal district court case and an affidavit of Joseph Delehanty, a Senior Firearms Instructor for the Connecticut Police Academy.

FN4. The defendant, in his motion to dismiss, claims that Ennis currently possesses weapons sufficient to exercise his rights, and that he is not injured by Public Act 13–3 because he will be permitted to retain the weapons he currently possesses.   The standard for a motion to dismiss requires the court to consider the facts to be those alleged in the complaint.   See Conboy v. State, supra, 292 Conn. 651.   The complaint does not allege any facts regarding what Ennis currently possesses.   What weapons Ennis currently possesses, and whether those weapons are sufficient for him to exercise his rights is a question of fact properly left to discovery and arguable in a motion for summary judgment or at trial..  FN4. The defendant, in his motion to dismiss, claims that Ennis currently possesses weapons sufficient to exercise his rights, and that he is not injured by Public Act 13–3 because he will be permitted to retain the weapons he currently possesses.   The standard for a motion to dismiss requires the court to consider the facts to be those alleged in the complaint.   See Conboy v. State, supra, 292 Conn. 651.   The complaint does not allege any facts regarding what Ennis currently possesses.   What weapons Ennis currently possesses, and whether those weapons are sufficient for him to exercise his rights is a question of fact properly left to discovery and arguable in a motion for summary judgment or at trial.

FN5. General Statutes § 53–202a, following the changes implemented by Public Act 13–3, now defines assault weapons, in part, as “[a] semiautomatic, centerfire rifle that has an ability to accept a detachable magazine and has at least one of the following:  ․ (II) Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the weapon when firing ․” The statute applies the same grip restrictions to shotguns, and restricts pistols which possess “a second hand grip.”  Id..  FN5. General Statutes § 53–202a, following the changes implemented by Public Act 13–3, now defines assault weapons, in part, as “[a] semiautomatic, centerfire rifle that has an ability to accept a detachable magazine and has at least one of the following:  ․ (II) Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the weapon when firing ․” The statute applies the same grip restrictions to shotguns, and restricts pistols which possess “a second hand grip.”  Id.

FN6. Associational standing is also commonly referred to as representational standing.   See Connecticut Coalition for Justice in Educ. Funding, Inc. v. Rell, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07–CV–05–4050526–S (December 4, 2013, Dubay, J.) (“[o]ur Supreme Court has recognized associational standing, also known as representational standing”)..  FN6. Associational standing is also commonly referred to as representational standing.   See Connecticut Coalition for Justice in Educ. Funding, Inc. v. Rell, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07–CV–05–4050526–S (December 4, 2013, Dubay, J.) (“[o]ur Supreme Court has recognized associational standing, also known as representational standing”).

FN7. In their memorandum of law, the plaintiffs lay out a more detailed organizational purpose.   According to the memorandum, “[t]he stated organizational purposes of DAFR include providing opportunities for disabled Americans to engage in recreational and competitive shooting events and promoting the unique needs of disabled individuals when exercising their fundamental rights in the lawful use of firearms.”   (Internal quotation marks omitted.)   The standard of review for a motion to dismiss, however, addresses only the facts alleged in or implied by the complaint as written.   See Conboy v. State, supra, 292 Conn. 651.   Even were the court to take into account the expanded organizational purpose from the memorandum, the plaintiffs still fail to establish a pertinent connection between providing events and promoting disabled individuals' needs and Public Act 13–3, which permits individuals to continue to exercise their rights with a wide variety of available firearms not affected by the ban.   See Benjamin v. Bailey, supra, 234 Conn. 471..  FN7. In their memorandum of law, the plaintiffs lay out a more detailed organizational purpose.   According to the memorandum, “[t]he stated organizational purposes of DAFR include providing opportunities for disabled Americans to engage in recreational and competitive shooting events and promoting the unique needs of disabled individuals when exercising their fundamental rights in the lawful use of firearms.”   (Internal quotation marks omitted.)   The standard of review for a motion to dismiss, however, addresses only the facts alleged in or implied by the complaint as written.   See Conboy v. State, supra, 292 Conn. 651.   Even were the court to take into account the expanded organizational purpose from the memorandum, the plaintiffs still fail to establish a pertinent connection between providing events and promoting disabled individuals' needs and Public Act 13–3, which permits individuals to continue to exercise their rights with a wide variety of available firearms not affected by the ban.   See Benjamin v. Bailey, supra, 234 Conn. 471.

FN8. The plaintiffs further allege in their complaint that the large capacity magazine ban is vague and ambiguous.   Because this court has jurisdiction over the subject matter of the only count in the complaint, a motion to dismiss is not procedurally proper as to a portion of the count.   The defendant may properly challenge the allegations regarding the large capacity magazine ban through other procedural means such as a motion to strike or a motion for summary judgment.   See Practice Book §§ 10–39, 17–44..  FN8. The plaintiffs further allege in their complaint that the large capacity magazine ban is vague and ambiguous.   Because this court has jurisdiction over the subject matter of the only count in the complaint, a motion to dismiss is not procedurally proper as to a portion of the count.   The defendant may properly challenge the allegations regarding the large capacity magazine ban through other procedural means such as a motion to strike or a motion for summary judgment.   See Practice Book §§ 10–39, 17–44.

Devine, James J., J.