Book v. United States, No. 2:2016cv00144 - Document 13 (E.D. Wash. 2016)
Court Description: ORDER GRANTING DEFENDANTS MOTION TO DISMISS. Defendants Motion to Dismiss for Failure to State a Claim ECF No. 9 is GRANTED. Plaintiffs Complaint ECF No. 6 is DISMISSED with prejudice. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 TODD M. BOOK, NO: 2:16-CV-0144-TOR 8 9 10 11 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS v. UNITED STATES OF AMERICA, Defendant. 12 BEFORE THE COURT is United States’ Motion to Dismiss for Failure to 13 State a Claim (ECF No. 9). This matter was submitted for consideration without 14 oral argument. The Court has reviewed the briefing and the record and files 15 herein, and is fully informed. 16 17 BACKGROUND Plaintiff Todd M. Book (“Plaintiff”) filed a Complaint, see ECF No. 6, on 18 May 12, 2016, alleging that he was erroneously prohibited from purchasing a 19 firearm. Defendant United States (“Defendant”) filed the instant motion to dismiss 20 this action for failure to state a claim upon which relief can be granted. ECF No. 9. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 1 1 2 FACTS The following facts are drawn from Plaintiff's complaint, and are accepted as 3 true for purposes of the instant motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 4 556 (2007). 5 Plaintiff was involved in an altercation with his brother resulting in a 6 domestic violence allegation lodged against him by the City of Spokane. ECF No. 7 6 at 2. However, despite that allegation, Plaintiff pled guilty to one count of fourth 8 degree assault in Spokane City Municipal Court on October 20, 2009. Id. The 9 “Statement of Defendant on Plea of Guilty and Judgment and Sentence were both 10 marked to indicate that . . . [Plaintiff] would not lose his firearm rights.” Id. at 2-3. 11 In addition, the court stated on the record that Plaintiff would not lose his firearm 12 rights. Id. at 3. Based on these facts, Plaintiff asserts that he should not be 13 prohibited from firearm possession under Washington state law. Id. at 4-5. 14 Plaintiff also asserts that federal law does not prohibit him from firearm possession 15 because his conviction is not a “misdemeanor crime of domestic violence” under 16 18 U.S.C. § 922(g)(9). Id. at 4. 17 In December 2014, Plaintiff attempted to purchase a firearm. Id. at 3. The 18 National Instant Criminal Background Check Service (“NICS”) initiated a 19 background check, and denied Plaintiff’s application. Id. Between March 2015 20 and June 2, 2015, Plaintiff submitted several requests and supporting documents to ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 2 1 NICS to appeal the denial to no avail. Id. at 3-4. NICS repeatedly reported that 2 Washington state law prohibits Plaintiff from possessing a firearm. Id. 3 Plaintiff asserts a single cause of action against Defendant pursuant to 18 4 U.S.C. § 925A, requesting that the Court order NICS to update Plaintiff’s 5 application status to “proceed.” Id. at 5. 6 DISCUSSION 7 A. Standard of Review 8 A motion to dismiss for failure to state a claim pursuant to Federal Rule of 9 Civil Procedure 12(b)(6) tests the legal sufficiency of a plaintiff's claims. Navarro 10 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint must contain a “short and 11 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 12 Civ. P. 8(a)(2). To avoid dismissal under Rule 12(b)(6) for failure to state a claim, 13 a plaintiff must allege “sufficient factual matter . . . to state a claim to relief that is 14 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing 15 whether Rule 8(a)(2) has been satisfied, a court must first identify the elements of 16 the plaintiff's claim and then determine whether those elements could be proven on 17 the facts pled. See Iqbal, 556 U.S. at 675. 18 In this evaluation, the court should draw all reasonable inferences in the 19 plaintiff's favor, see Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1051 (9th 20 Cir. 2012), but it need not accept “naked assertions devoid of further factual ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 3 1 enhancement.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted). 2 Dismissal is appropriate where the plaintiff fails to state a claim supportable by a 3 cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 4 Cir. 1990) (citation omitted). 5 Here, Defendant seeks dismissal for Plaintiff’s failure to state a claim upon 6 which the Court can provide relief, arguing that Plaintiff’s state law conviction for 7 fourth degree assault qualifies as a prohibited offense under RCW 9.41.040(2)(a)(i) 8 and that 18 U.S.C. § 922(b)(2) prohibits a firearms transfer if such action would 9 violate state law. See ECF No. 9 at 2-3. 10 B. Analysis 11 Under 18 U.S.C. § 925A, a person denied a firearm pursuant to subsection 12 (s) or (t) of section 922, may sue the United States (1) due to erroneous 13 information by the State or NICS, or (2) if the person was not prohibited from 14 possessing a firearm under subsection (g) or (n) of section 922. A person may 15 petition a court for an order directing correction of the erroneous information, or 16 that the transfer of the firearm be approved. 18 U.S.C. § 925A. Subsections (g) 17 and (n) of section 922 prohibit certain categories of persons from receipt or 18 possession of a firearm. 19 20 The NICS was established by the Brady Handgun Violence Prevention Act. See Pub. L. 103-159, 107 Stat. 1536 (1993). Congress empowered the Attorney ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 4 1 General to prescribe the regulations under which the NICS would function. Id. at 2 § 103(h), 107 Stat. at 1542. As prescribed by law, an NICS background check is 3 required for the purchase of a firearm from any licensed importer, manufacturer, or 4 dealer. 18 U.S.C. § 922(t)(1). Here, NICS denied Plaintiff’s firearm purchase because Washington state 5 6 law precludes possession by a person convicted of fourth degree assault against a 7 family member. See § 922(t)(2); RCW 9.41.0401(2)(a)(i); ECF No. 6 at ¶¶ 5-7. 8 Plaintiff argues that NICS’s denial is erroneous. See ECF No. 6 at 5. At the 9 outset, Plaintiff’s Complaint does not explicitly state whether he was denied a 10 firearm due to erroneous information relied on by the State or NICS, or because he 11 was prohibited from receipt of a firearm under subsections (g) or (n) of section 12 922. See 18 U.S.C. § 925A. The Court will broadly construe Plaintiff’s Complaint 13 and responsive briefing as essentially arguing both. 14 On one hand, Plaintiff asserts that federal law does not prohibit firearm 15 possession under § 922(g).1 ECF No. 6 at ¶ 9. On the other, Plaintiff alleges that 16 Washington state law provides that he cannot be convicted of unlawful possession, 17 which “stands to reason” that it is not unlawful for him to possess a firearm under 18 19 20 1 Yet, the Court acknowledges Plaintiff’s assertion that “this litigation presents questions of Washington state law only.” See ECF No. 10 at 2, n.1. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 5 1 state law. See id. at ¶¶ 10-11; ECF No. 10 at 4. The Court examines each of 2 Plaintiff's theories in turn. 3 First, Plaintiff circuitously argues that the State or NICS relied on erroneous 4 information in denying his firearm purchase because Washington law does not 5 prohibit firearm possession when a sentencing court fails to inform a defendant of 6 the prohibition in writing or orally under RCW 9.41.047(1)(a). See ECF No. 10 at 7 5. Plaintiff primarily relies on State v. Minor, 162 Wash.2d 796, 804 (2008), 8 where a court’s failure to check a box to indicate firearm prohibition affirmatively 9 misled the defendant to believe that he was not prohibited from possessing a 10 firearm. There, the Washington Supreme Court reversed Minor’s unlawful 11 possession of a firearm conviction and dismissed the underlying charge. Id. 12 Plaintiff argues that Minor is directly on point and demonstrates that he cannot be 13 convicted of unlawful possession. ECF No. 10 at 3-4. From that springboard, 14 Plaintiff then makes the leap to conclude that it is not unlawful for him to purchase 15 or possess a firearm because he was not informed of the prohibition by the 16 Spokane Municipal Court. Id. 17 Although the Court recognizes Minor for what it is worth, its holding is 18 neither on point nor applicable here. Minor merely held that where the court 19 provided affirmative, misleading information upon which defendant relied, 20 defendant could not be convicted for unlawfully possessing a firearm. Minor, 162 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 6 1 Wash.2d at 804. In contrast, the Supreme Court in Minor distinguished State v. 2 Carter, 127 Wash.App. 713, 720-21 (2005) (rejecting argument that defendant was 3 affirmatively misled). Minor, 162 Wash.2d at 803. Later, the Washington 4 Supreme Court further clarified that this lack of notice is only an affirmative 5 defense to an unlawful firearms charge and that the State may rebut the defense by 6 showing that the defendant “otherwise [had] notice of the prohibition against 7 possession of firearms.” State v. Breitung, 173 Wash.2d 393, 404 (2011). Plaintiff 8 is not challenging an unlawful possession conviction; he is merely attempting to 9 purchase a firearm. That an unlawful possession conviction might be dismissed for 10 a court’s failure to inform a defendant of his rights (whether orally, in writing, or 11 otherwise) does not support a finding that NICS erroneously denied Plaintiff the 12 right to purchase a firearm necessitating this Court to order erroneous information 13 be corrected under 18 U.S.C. § 925A(1). Similarly, whether Plaintiff may have an 14 affirmative defense for unlawful firearm possession has no bearing on the Court’s 15 analysis here, given that this is not a criminal proceeding charging Defendant with 16 unlawful firearm possession. 17 To the contrary, Plaintiff was convicted of fourth degree assault for an 18 altercation with his brother, a gross misdemeanor carrying a maximum term of 364 19 days in custody. RCW 9A.36.041(2). Under Washington law, it is unlawful to 20 possess a firearm if one family or household member has been convicted of assault ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 7 1 in the fourth degree against another family or household member. RCW 2 9.41.040(2)(a)(i). That is the case here.2 Accordingly, the Court finds that the 3 State and NICS did not rely on or provide erroneous information related to the 4 denial of Plaintiff’s attempt to purchase a firearm. 5 As to Plaintiff’s second theory—that federal law does not prohibit him from 6 firearm possession under section 922(g)—the Court finds that Plaintiff is correct in 7 that narrow respect. A fourth degree assault conviction against a sibling does not 8 fall within the confines of 18 U.S.C. § 922(g)(9). See § 921(33)(A) (defining the 9 scope of a misdemeanor crime of domestic violence to include current or former 10 spouse, parent or guardian, or person similarly situated). Defendant concedes that 11 Plaintiff’s fourth degree assault conviction does not qualify as a crime of domestic 12 violence under 18 U.S.C. § 922(g)(9). Notwithstanding, Plaintiff’s limited remedies under 18 U.S.C. § 925A are 13 14 either an order directing erroneous information be corrected or that the transfer be 15 approved. Unless and until Plaintiff’s state law conviction is overturned or his 16 rights restored,3 the Court can accomplish neither. For the reasons stated above, 17 2 Plaintiff is now on notice that his possession of a firearm is unlawful. 3 Plaintiff may petition the superior court to his have right to possess a firearm 18 19 20 restored. See RCW 9.41.047(3). ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 8 1 the Court finds that there is no erroneous information to correct. The Court also 2 finds that it is precluded from ordering that the transfer be approved because the 3 sale of a firearm to Plaintiff is flatly prohibited under federal law regardless of 4 whether Plaintiff’s conviction falls under 18 U.S.C. § 922(g)(9). See 18 U.S.C. 5 § 922(b)(2) (prohibiting transfer to “any person in any State where the purchase or 6 possession by such person of such firearm would be in violation of any State 7 law . . .”). Licensed firearm dealers may not conduct transactions that violate state 8 law. Id. Likewise, NICS is only authorized to approve an applicant’s firearm 9 purchase provided that such action would not violate state law. See 18 U.S.C. 10 § 922(t)(2). 11 Accordingly, because Plaintiff has failed to state a claim for which the Court 12 may grant relief, Plaintiff’s Complaint is DISMISSED with prejudice. Moreover, 13 the Court dismisses Plaintiff’s claim without leave to amend. While Plaintiff did 14 not request leave to amend, Federal Rule of Civil Procedure 15(a) provides that 15 leave to amend should be “freely give[n] . . . when justice so requires.” Fed. R. 16 Civ. P. 15(a)(2). However, in deciding whether leave to amend is appropriate, a 17 court must consider, inter alia, whether an amendment would be futile. United 18 States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011); Lopez v. Smith, 203 19 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[A] district court should grant leave to 20 amend even if no request to amend the pleading was made, unless it determines ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 9 1 that the pleading could not possibly be cured by the allegation of other facts.”) 2 (internal citations omitted) (emphasis added). 3 4 5 6 7 8 9 10 11 Here, given that Plaintiff’s Complaint could not possibly be cured by allegation of other facts, the Court concludes amendment would be futile. ACCORDINGLY, IT IS ORDERED: 1. Defendant’s Motion to Dismiss for Failure to State a Claim (ECF No. 9) is GRANTED. 2. Plaintiff’s Complaint (ECF No. 6) is DISMISSED with prejudice. The District Court Executive is hereby directed to enter this Order and Judgment accordingly, furnish copies to counsel, and CLOSE the file. DATED October 21, 2016. 12 13 THOMAS O. RICE Chief United States District Judge 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ~ 10
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