The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendants Michael J. DeLeo ("DeLeo"), Office of the Lebanon County Sheriff, and Lebanon County's motion to dismiss the Plaintiffs' complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 7.) The motion is ripe for disposition. For the reasons that follow, the motion will be granted.
A. Factual Background*fn1
On or about September 11, 2008, Meleanie Hain ("Hain") attended her daughter's soccer game at Optimist Park, a public park in Lebanon County Pennsylvania. (Doc. No. 1 ¶ 11.) While in attendance, Hain openly carried a handgun secured in a holster on her hip. (Id. ¶ 15.) Hain was approached by Charlie Jones, a coach on one of the teams, who informed her that other parents watching the game were concerned about the firearm. (Id. ¶ 16.) Although she was not doing anything improper with the handgun, Hain subsequently moved to another part of the field. (Id. ¶ 17.) Hain approached the coach after the game to explain why she was openly carrying her handgun and to assuage any fears or doubts he had. (Id. ¶ 18.) Jones did not allow Hain a chance to explain, as he allegedly began to make "wild, false accusations" about Hain's "intentions of violence . . . ." (Id. ¶ 19.) After leaving the game, Hain received an email message from Nigel Foundling, director of the youth soccer league, instructing her to refrain from carrying a firearm to any league soccer game in the future. (Id. ¶¶ 20-21.) Hain asked Foundling for more information, but it was never provided. (Id. ¶¶ 22-23.)
On or about September 20, 2008, Hain received an official notice revoking her license to carry concealed firearms from Defendant DeLeo, the sheriff of Lebanon County. (Id. ¶¶ 7, 26.) The notice solely referenced the incident in Optimist Park, noting that unidentified individuals were upset about Hain's open carrying of the handgun under the circumstances. (Id. ¶ 28.) Hain was provided no notice or hearing prior to the revocation of her license. (Id. ¶ 27.) After inquiring about the revocation, a deputy in the Sheriff's Office informed Hain that her license would be reinstated if she would agree to conceal her firearms in the future. (Id. ¶ 30.) Hain refused the deputy and filed a formal appeal of the license revocation on September 22, 2008. (Id. ¶ 31.) A hearing was held before Court of Common Pleas Judge Robert J. Eby, who overturned DeLeo's revocation and reinstated Hain's license. (Id. ¶¶ 32-33.)
Meleanie and Scott Hain filed their complaint in this Court on November 24, 2008, alleging five causes of action, including: civil rights violations under the First, Second, Fourth, Fifth, and Fourteenth Amendments (Count I); civil rights violations against Lebanon County and its Sheriff's Office under Monell (Count II); conspiracy to violate civil rights (Count III); abuse of process and malicious prosecution (Count IV); and loss of consortium (Count V). (Doc. No. 1.) On November 16, 2009, Plaintiffs' counsel filed a suggestion of death for both Plaintiffs (Doc. No. 36), and a notice of voluntary dismissal of any claims made by Scott Hain (Doc. No. 37). Subsequently, citing the tragic murder suicide of Scott and Meleanie Hain, Plaintiff's counsel moved to dismiss the claims of Scott Hain (Doc. No. 37) and to substitute Jenny Stanley and Duane Gillete as administrators of Meleanie Hain's estate (Doc. No. 39), which the Court granted (Doc. No. 41).
Defendants have challenged Plaintiffs' claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In analyzing a complaint under Rule 12(b)(6), "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). The plaintiff must provide more than a formulaic recitation of a claim's elements that amounts to mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[C]onclusory or 'bare-bones' allegations will no longer survive a motion to dismiss . . . ." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Accordingly, "to prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler, 548 F.3d at 210. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
Defendants have raised several arguments challenging Plaintiffs' various claims.*fn2 The Court will review these challenges as argued by the parties.
The parties largely focus on Plaintiffs' claim that Defendant DeLeo violated Hain's Second Amendment*fn3 rights by his revocation of her license to carry firearms ("LCF"). (Doc. No. 1. ¶ 39.) Pennsylvania's Uniform Firearms Act ("UFA"), see 18 Pa. Cons. Stat. Ann. § 6101 et. seq., regulates the possession and use of firearms in Pennsylvania. The UFA generally requires a LCF to carry a firearm in a vehicle or concealed in public:
[A]ny person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
Id. § 6106.*fn4 There are several exceptions to this general requirement, including for transportation of the firearm to and from: its place of purchase, see id. § 6106(b)(8); target practice facility, see id. § 6106(b)(4); or hunting areas if the individual is licensed to hunt, see id. § 6106(b)(9). Plaintiffs' claim that DeLeo's revocation violated Hain's Second Amendment rights is based primarily on the Supreme Court's opinion in District of Columbia v. Heller, 128 S.Ct. 2783, 2821-22 (2008), which held that the Second Amendment conferred an individual right to keep and bear arms. The Court declined to define the exact contours of this right, but found that the Second Amendment at least "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 2821. The Court also highlighted a non-exhaustive list of presumptively lawful regulatory measures as examples of potential limitations on the right:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . [N]othing 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 sale of arms.
Id. at 2817 (internal citations omitted); see also McDonald v. City of Chicago, 130 S.Ct. 3020, 3047 (2010) ("[I]ncorporation does not imperil every law regulating firearms.").
As Defendants argued extensively in their briefs on this motion, Heller dealt with a statute in the District of Columbia and did not necessarily apply to the applicable state actors and laws in this case. Since the briefs were filed on the present motion, however, The Supreme Court has held that "the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller" such that it applies equally to the federal government and the States. McDonald, 130 S.Ct. at 3050. Accordingly, Defendants' arguments that Heller is inapplicable to state or local governments must be rejected.*fn5
This does not end the inquiry, however. The Defendants have also argued that DeLeo is entitled to qualified immunity on this claim. Defendants contend there is no constitutional violation because, considering the discussion in Heller, "the Second Amendment does not grant a right to carry concealed weapons," and Hain's firearm license was not required to openly carry weapons. (Doc. No. 14 at 4-5.) Defendants also argue that any Second Amendment right DeLeo may have violated was not clearly established at the time of the events at issue. (Doc. No. 26 at 10.)
"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In Saucier v. Katz, the Supreme Court set out a sequential two-step analysis for claims of qualified immunity: (1) the court must decide whether the facts alleged or shown make out a violation of a constitutional right, and (2) the court must decide whether the right at issue was clearly established at the time of a defendant's alleged misconduct. Pearson, 129 S.Ct. at 815-16 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Supreme Court has recently relaxed the requirement that Saucier's two steps be analyzed in sequential order. Id. at 818.
There is some support for Defendants' argument that the Second Amendment is not implicated by revocation of Hain's LCF. By its terms, the UFA does not regulate or restrict an individual's right to defend "hearth and home," or even to carry firearms openly in most public places in the Commonwealth. See 18 Pa. Con. Stat. Ann. § 6106(a)(1) (excluding persons in their "place of abode or fixed place of business" from coverage under the statute). The UFA also contains exceptions for transportation of firearms from the home in a vehicle for common legitimate purposes. See id. §§ 6106(b)(4); 6106(b)(9) (excepting coverage for persons engaged in target shooting and hunting). Additionally, the Supreme Court in Heller explicitly referenced prohibitions on concealed carrying of firearms as an example of regulations that have traditionally been considered lawful under the Second Amendment. See Heller, 128 S.Ct. at 2816; see also United States v. Masciandaro, 648 F. Supp. 2d 779, 790 (E.D. Va. 2009) ("Heller's approval of concealed weapons bans provides further support for rejecting Masciandaro's as-applied challenge, as carrying a loaded weapon in a motor vehicle-an act which, by definition, is almost always outside the view of those nearby-presents the sort of compelling safety risk more adequately resolved by legislation than judicial ipse dixit."). Despite this, the Court need not finally determine at this time whether DeLeo violated Hain's Second Amendment right to keep and bear arms, as it is clear that he is entitled to qualified immunity based on the second prong of the Saucier analysis.
"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 201 (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). This analysis must be conducted in light of the specific context of the case and "turns on the 'objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.'" Pearson, 129 S.Ct. at 822 (quoting Wilson, 526 U.S. at 614). "[I]f the law did not put the officer on notice that his conduct would be clearly unlawful, [dismissal] based on qualified immunity is appropriate." Bayer v. Monroe Cnty. Children and Youth Serv., 577 F.3d 186, 193 (3d Cir. 2009) (quoting Saucier, 533 U.S. at 202). Accordingly, qualified immunity "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Egolf v. Witmer, 526 F.3d 104, 110-11 (3d Cir. 2008) (citing Gilles v. Davis, 427 F.3d 197, 203 (3d Cir. 2005)).
Plaintiffs argue that Heller was decided approximately four months before DeLeo revoked Hain's license, which makes Hain's rights under the Second Amendment clearly established. (Doc. No. 26 at 19.) But, as the discussion above demonstrates, Heller did not settle the bounds of the Second Amendment right to keep and bear arms. Indeed, the Supreme Court itself plainly acknowledged that significant uncertainty in the law would remain after Heller:
[S]ince this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145, (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
Heller, 128 S.Ct. at 2783. Even now many questions remain as to the scope of the Second Amendment. As the Third Circuit has recently cautioned, "Second Amendment doctrine remains in its nascency, and lower courts must proceed deliberately when addressing regulations unmentioned by Heller." United States v. Marzzarella, 614 F.3d 85, 101 (3d Cir. 2010).
Plaintiffs' argument must therefore be rejected; there is no question that the clearly established legal rules confronting DeLeo would not have put him on notice that his conduct violated the Second Amendment. As a local official, it would not have been clear to him at the time that his actions implicated Plaintiff's Second Amendment right, which was only just recently incorporated by the Supreme Court. Indeed, it was not and is still not clear that the Second Amendment right set out in Heller is implicated by the revocation of a license to carry concealed weapons in public. Even interpreting the complaint to allege that the revocation of Plaintiff's permit in retaliation for Plaintiff's exercise of her Second Amendment rights is a distinct Second Amendment violation, qualified ...