MORGANTOWN — Attorney General Patrick Morrisey has moved to dismiss the federal lawsuit filed against the state by a coalition of domestic violence organizations seeking to have the parking lot gun bill nullified.
Morrisey filed his motion this week in the U.S. District Court for the Southern District of West Virginia. The coalition, represented by Everytown Law, a branch of Everytown for Gun Safety, and two Charleston law firms, filed the suit in June.
The 2018 bill, HB 4187, now codified in 61-7-14, is officially called the Business Liability and Protection Act. It says no private or public sector employer may prevent an employee, customer or invitee from keeping a firearm properly locked out of sight inside the vehicle from parking in the parking lot.
The act says the property owner may not ask the driver if there is a gun in the vehicle and may not search the vehicle. An employer may not condition employment upon gun ownership or intention to keep a gun locked in the employee’s car.
The Elkview-based West Virginia Coalition Against Domestic Violence has 14 members statewide, including the Rape and Domestic Violence Information Center in Morgantown and HOPE Inc. in Fairmont.
The coalition says the act violates its property rights and First Amendment speech rights and endangers its members’ missions of keeping their clients safe by prohibiting them from inquiring if shelter clients or visitors are weapons in their vehicles and potentially packing.
Morrisey’s arguments to dismiss the case are lawyerly and directed at alleged errors in the complaint, but can be explained fairly simply.
Morrisey opens by noting that more than 20 states have similar parking lot gun bills, and efforts to have them declared unconstitutional – often using arguments similar to this suit – have consistently failed.
He next argues that the court has no jurisdiction over the subject matter because in the 14 months the law has been in effect no one has filed a complaint alleging a violation of the law, so there has been and foreseeably will not be a credible threat of his office enforcing the law. In other words, his office won’t be coming after any shelters any time soon and so there’s nothing for the court to consider or act on.
In the context of that argument, he questions – in a footnote – the motives of Everytown. Challenging the property rights of gun owners isn’t germane to the coalition’s purpose, but it does advance Everytown’s agenda. This argument cherry-picks phrases from one of Everytown’s web pages, where Everytown notes that it litigates “against the gun industry and gun dealers.”
Morrisey also argues that the case is not yet “ripe” [lawyer jargon] for judgment because, as above, no one’s filed a complaint so there’s been no danger of enforcement and no threat of penalties against any of the shelters.
Morrisey points out that the coalition’s standing in this kind of case requires passage of three tests: actual injury; injury traceable to the challenged law (such as enforcement penalties); and a likelihood the injury could be redressed by a favorable court decision.
He says, “There is no credible threat of prosecution constituting injury in fact here.”
While the shelters may be censoring their own speech to avoid breaking the law, he says, that doesn’t constitute objective harm or a threat of harm to its First Amendment rights.
Morrisey asks the court to either dismiss the case or order the plaintiffs to draft a more definite statement of complaint.
On Tuesday, the judge gave the coalition until Sept. 3 to respond to Morrisey’s motion and gave Morrisey 14 days after that to reply to the coalition’s response.
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