Roberts v. Bondi

ADAM WAYNE TYLER ROBERTS, Plaintiff, v. PAM BONDI, and RICK SWEARINGEN, Defendants.

Case No.: 8:18-cv-1062-T-33TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

August 21, 2018

ORDER

This matter comes before the Court pursuant to Defendants Pam Bondi and Rick Swearingen's Motion to Dismiss (Doc. # 27), filed on July 2, 2018. Pro se Plaintiff Adam Wayne Tyler Roberts responded on July 30, 2018. (Doc. # 34). For the reasons that follow, the Motion is granted in part and denied in part as set forth below.

I. Background

Roberts initiated this action on May 1, 2018, asserting various claims against Bondi and Swearingen. (Doc. # 1). He seeks a declaration that a recently enacted state statute — Section 790.222, Fla. Stat. — violates article X, section 6 of the Florida Constitution as well as the Second, Fifth, and Fourteenth Amendments of the United States Constitution. (Id.). Furthermore, Roberts insists the statute is void for vagueness.

Section 790.222 prohibits bump-fire stocks: "A person may not import into this state or transfer, distribute, sell, keep for sale, offer for sale, possess, or give to another person a bump-fire stock. A person who violates this section commits a felony of the third degree." Fla. Stat. § 790.222. This section also provides:

[T]he term 'bump-fire stock' means a conversion kit, a tool, an accessory, or a device used to alter the rate of fire of a firearm to mimic automatic weapon fire or which is used to increase the rate of fire to a faster rate than is possible for a person to fire such semiautomatic firearm unassisted by a kit, a tool, an accessory, or a device.

Id.

According to Roberts, the term "bump-fire stock" as defined by the statute "includes a common firearm accessory for AR-15 and other semiautomatic rifles that are owned by tens of thousands of Floridians throughout the state." (Doc. # 1 at ¶ 7). Furthermore, "[a]ny fire control modification that allows the trigger of a firearm to be pulled faster than it could before fits the definition of 'Bump Fire Stock' under Fla. Stat. § 790.222 and therefore would be completely prohibited." (Id. at ¶ 12). The Complaint asserts "[m]illions of hunting rifles and handguns would fit the definition of'Bump Fire Stock.' Many of these modifications are permanent." (Id.).

Roberts alleges that he "owns firearms a Bump Fire Stock may be installed on and in." (Id. at ¶ 32). He "also owns Bump Fire Stocks, and other firearms that may be construed to be Bump Fire Stocks through trigger modifications and fire control group upgrades." (Id.).

Bondi and Swearingen filed the instant Motion to Dismiss on July 2, 2018. (Doc. # 27). Roberts has responded (Doc. # 34), and the Motion is ripe for review.

II. Legal Standard

The Court construes pro se pleadings liberally and holds them to a less stringent standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). But "a pro se litigant is still required to conform to procedural rules, and a district judge is not required to rewrite a deficient pleading." McFarlin v. Douglas County, 587 F. App'x 593, 595 (11th Cir. 2014).

On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, the Court favors the plaintiff with all reasonable inferencesfrom the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted). Courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). "The scope of review must be limited to the four corners of the complaint" and attached exhibits. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).

III. Analysis

Defendants raise various arguments for dismissal of the Complaint. The Court will address each argument in turn.

A. Bondi's Immunity

First, Bondi argues that the claims against her should be dismissed because she is immune to suit. (Doc. # 27 at 6-11). According to Defendants, "[t]he Eleventh Amendment bars this Court from exercising jurisdiction over Plaintiff's suitagainst the Attorney General because she has no authority to enforce the challenged statute and thus lacks the requisite connection to the statute under Ex parte Young." (Id. at 11). The Court agrees with Defendants.

Ex parte Young, 209 U.S. 123 (1908), provides a narrow exception to the sovereign immunity established by the Eleventh Amendment. Specifically, sovereign immunity does not apply to "suits against state officers seeking prospective equitable relief to end continuing violations of federal law." Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999)(citations omitted). This is because the "Eleventh Amendment generally does not bar the exercise of the judicial power of the United States where a plaintiff seeks to compel a state officer to comply with federal law." Id.

But "federal courts have refused to apply Ex parte Young where the officer who is charged has no authority to enforce the challenged statute." Id. at 1342 (citations omitted). "Only if a state officer has the authority to enforce an unconstitutional act in the name of the state can the Supremacy Clause be invoked to strip the officer of his official or representative character and subject him to the individual consequences of his conduct." Id. at 1341.

Here, the challenged law is a criminal statute. Under Florida's Constitution, each "state attorney shall be the prosecuting officer of all trial courts in [her respective] circuit." Fla. Const. art. V, § 17. As another district court succinctly put it, "[t]he State Attorney enforces criminal law in Florida, not the Florida Attorney General." Freiberg v. Francois, No. 4:05CV177-RH/WCS, 2006 WL 2362046, at *6 (N.D. Fla. Aug. 15, 2006). And Defendants are correct that this rule's exceptions — that the Attorney General may prosecute "violations of municipal ordinances" and, through the Statewide Prosecutor, violations of certain enumerated criminal laws that occur in two or more judicial circuits — do not apply here. (Doc. # 27 at 8-9)(citing Fla. Const. art. V, § 17 and art. IV, § 4(b)).

True, Bondi, as Attorney General, is "entitled to be heard" when a state statute is challenged as unconstitutional. Fla. Stat. § 86.091 ("If the statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard."). But that does not mean enforcing this statute is her duty for Ex parte Young purposes. Furthermore, "[i]t haslong been recognized that the [Attorney General] is not a necessary party each time the constitutionality of a statute is drawn into question. The [Attorney General] is thus not affirmatively required to intervene every time an entity challenges the constitutionality of a statute." Mallory v. Harkness, 923 F. Supp. 1546, 1553 (S.D. Fla. 1996)(citations omitted), aff'd, 109 F.3d 771 (11th Cir. 1997)(unpublished table decision).

Because Bondi does not have the authority to enforce Section 790.222, she is not a proper defendant in this action. See Freiberg, 2006 WL 2362046, at *6 ("Attorney General Crist has no role in the licensing of naturopaths or in the enforcement of the criminal statute. He is not a proper Defendant. . . . [T]he only proper Defendant for the challenge to the criminal statute is William 'Willie' N. Meggs, State Attorney for the Second Judicial Circuit."). All Counts are dismissed to the extent they are brought against Bondi.

B. Takings Claims: Counts 1-4

Defendants next argue that Roberts' takings claims, under article X, section 6(a) of the Florida Constitution and the Fifth Amendment of the United States Constitution, should be dismissed. In those Counts, Roberts argues the bump-fire stock ban is "in-effect a taking" for which "no compensation[has been] provided." (Doc. # 1 at ¶¶ 35, 36, 41, 48, 49, 55). He challenges the constitutionality of the statute both facially and as applied to himself.

The Takings Clause of the Fifth Amendment states: "nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V. Similarly, article X, section 6(a) of the Florida Constitution provides: "No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner." Fla. Const. art. X, § 6(a). The Florida Supreme Court has "interpreted the takings clauses of the United States and Florida Constitutions coextensively." St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220, 1226 (Fla. 2011), rev'd on other grounds, 570 U.S. 595 (2013); see also Chmielewski v. City of St. Pete Beach, 890 F.3d 942, 949 (11th Cir. 2018)("Because Florida follows federal takings law, we can look to cases brought under the Fifth Amendment to inform our analysis.").

According to Defendants, these claims should be dismissed because "Section 790.222 does not effect any taking; instead, it prohibits the possession of contraband." (Doc. # 27 at 13). Defendants are correct. The Takings Clause"does not entitle all aggrieved owners to recompense, only those whose property has been 'taken for a public use.'" AmeriSource Corp. v....