NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0031n.06

FILED

No. 14-5488
JAN 0 9 2015
UNITED STATES COURTS OF APPEALS D
FOR THE SIXTH CIRCUIT ~ EBORAH 3' HUNT: Clerk
ERIC LAUBIS, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
KATHY WITT, Individually, and as Sheriff of ) COURT FOR THE EASTERN
Fayette County, Kentucky, ) DISTRICT OF KENTUCKY
Defendant-Appellee. )
)
)

BEFORE: SUHRHEINRICH and GRIFFIN, Circuit Judges; LEITMAN, District Judge.”

SUHRHEINRICH, Circuit Judge.

Plaintiff Eric Laubis sued Defendant Kathy Witt, individually and in her capacity as
Sheriff of Fayette County, under 42 U.S.C. § 1983, for violating his Second Amendment and
Due Process rights after She refused to return his ﬁrearms pursuant to the Lautenberg
Amendment, 18 U.S.C. § 922(g)(9). The district court dismissed the cOmplaint for failure to

state a claim and Laubis appeals.

Laubis had an intimate partner, Darlene Perkins. In February 2007, Laubis was charged
with “Assault 4th Degree Domestic Violence Minor Injury” to Perkins.1 ID# 25. On May 17,

2007, Laubis pleaded guilty to a lesser charge of harassment, which states that “[a] person is

i The Honorable Matthew J. Leitman, United States District Judge for the Eastern District of Michigan,
sitting by designation.

1 In June 2005, Perkins ﬁled a petition in Fayette County Kentucky Family Court, seeking a DVO against
Laubis, but the court dismissed the petition.

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LA UBIS v. WITT

guilty of harassment when, with intent to intimidate, harass, annoy, or alarm another person, he

or she: (a) Strikes, shoves, kicks, or otherwise subjects him to physical contact.” KRS

525.070(1)(a). ID# 29.

In June 2010, Perkins ﬁled another petition for a DVO against Laubis, and after a
hearing, the Fayette County Kentucky Court granted the DVO. Pursuant to the DVO, Laubis
surrendered his ﬁrearms to Fayette County Sheriffs Deputy, Sgt. R. Stephens pursuant to 18
U.S.G. § 922(g)(9), which prohibits any person who has been convicted of “a misdemeanor

crime of domestic violence” from possessing ﬁrearms. See 18 U.S.C. § 922(g)(9). This DVO

remained in effect against Laubis until December 15, 2010.

In May 2012, Laubis learned that three sheriff’s deputies had been charged with taking
couﬁscated guns and selling them or using them for personal use. Shortly thereafter, he
contacted Witt about his conﬁscated weapons. Witt apparently told him that the matter was
under investigation. Frustrated, Laubis obtained an agreed order from the Fayette Family Court
on January 14, 2013, dismissing the DVO “[u]pon agreement of the parties,” and ordering that
Laubis’s personal property, “speciﬁcally ﬁrearms held by the Fayette County Sheriff’s Ofﬁce, be
returned to [Laubis].” ID# 7. Laubis contacted Witt, who reﬁised to release the ﬁrearms on the
grounds that the Lautenburg Amendment makes it illegal for an individual “who has been

convicted in any court of a misdemeanor crime of domestic violence,” to possess any ﬁrearm.

In turn, Laubis ﬁled this suit against Witt, in her ofﬁcial and individual capacities,
alleging that she misinterpreted federal law and violated his rights under the Second

Amendment, the Due Process Clause, and the Takings Clause, as applied to the States through

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LA UBIS v. WITT

the Fourteenth Amendment. He sought the return of the guns, general damages, special

damages, punitive damages, and attorney’s fees.

Witt ﬁled a Rule 12(b)(6) motion to dismiss. See Fed. R. Civ. P. 12(b)(6). In response,
Laubis argued that his conviction for harassment under KRS § 525.070 was not a “misdemeanor
crime of domestic violence” under § 922(g)(9) based on our decision in United States v.
Castleman, 695 F.3d 582 (6th Cir. 2012), rev ’d 134 S. Ct. 1405 (2014), which held that the
defendant’s conviction of a Tennessee misdemeanor domestic assault did not qualify as a
misdemeanor crime of domestic violence because it did not include an element of “strong and

violent force.” Id. at 588.

The district court granted Witt’s motion to dismiss. The district court held that Laubis
failed to state a Second Amendment claim because he “fail[ed] to indicate why the Second
Amendment confers a right to bear Speciﬁc weapons that were lawfully seized, as opposed to a
general right to bear arms for self-defense,” and also because “the Court can ﬁnd no authority
that would indicate such a right exists.” ID# 80. The district court therefore concluded “a

violation of the right to bear arms as alleged, is not plausible on its face.” Id.

The district court held that Laubis failed to state a procedural due process claim because
he hadn’t pleaded any facts to show that the state procedcures were inadequate. ID# 80-81. That
is, Laubis had not alleged that “he ha[d] attempted to enforce the state court order by returning to
the state family court for a centempt proceeding, or other means of enforcement,” or any other

form of state court relief. Id. at 81.

The district court dismissed Laubis’s taking clause claim because he failed to provide any

authority suggesting that “lawfully seized firearms would be subject to a Takings Clause analysis

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or would serve the purpose of the Takings Clause.” ID# 81. Thus, even if Witt had
misinterpreted federal law, Laubis had not established that she violated any of his constitutional

rights.

Finally, the court found that Witt was protected from damages claims by sovereign and
qualiﬁed immunity. The district court concluded that there was sovereign immunity for money
damages claims against Witt in her ofﬁcial capacity because Laubis did not allege that Witt’s
conduct was the result of a custom, policy, or practice of the county government. The district
court also held that Witt was also entitled to qualiﬁed immunity because it was “not clearly
established that an ofﬁcer’s misinterpretation of the Lautenberg Amendment would deprive an
individual of his or her constitutional rights.” ID# 83. The district court held that Castleman
“had nothing to do with violations of an individual’s constitutional rights,” and was based solely

on statutory interpretation of a criminal statute. ID# 83—84.

Laubis challenges these rulings on appeal.

Six days after the district court’s decision, the Supreme Court reversed this court’s
decision in Castleman, holding that a “misdemeanor crime of violence” as deﬁned in 18 U.S.C. §
921(a)(33)(A)(ii), is satisﬁed for purposes of § 922(g)(9) by a common-law battery conviction.

United States v. Castlemcm, 134 S. Ct. 1405, 1413 (2014).

II.

We review Rule 12(b)(6) dismissals de novo. Terry v. Tyson Farms, Inc, 604 F.3d 272,
274 (6th Cir. 2010). To survive a Rule 12(b)(6) motion to dismiss, the complaint must allege

sufﬁcient factual matter which, accepted as true, state a claim for relief that is plausible on its

No. 14-5488
LA UBlS v, WITT

face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions couched as factual

allegations will not sufﬁce. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To state a cognizable claim under 42 U.S.C. § 1983, a plaintiff must plead facts that
establish (1) that he was deprived of a federally-protected right (2) by a person acting under color

of state law. Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006).
A.

The Second Amendment confers an individual right to keep and bear arms in one’s home
for the purpose of self-defense. Dist. of Columbia v. Heller, SS4 U.S. 570 (2008); see also
McDonald v. Chicago, 561 U.S. 742 (2010) (holding that the Second Amendment applies to the
states through the Fourteenth Amendment). Thus, the district court’s ruling that Laubis failed to
identify a speciﬁc right to bear arms is incorrect. However, “the right secured by the Second
Amendment is not unlimited,” and the Supreme Court emphasized in Heller that “nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the possession of ﬁrearms
by felons and the mentally ill,” which are “presumptively lawful regulatory measures.” Heller,
554 U.S. at 626—27 & 727 n.26. Relying on this language, a number of courts have held that
§ 922(g)(9) does not violate the Second Amendment. See, e. g, United States v. Chovan, 735
F.3d 1127 (9th Cir. 2013) (and cases discussed therein); United States v. Booker, 644 F.3d 12, 25
(let Cir. 2011); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en bane); United States v.
White, 593 F.3d 1199, 1206 (11th Cir. 2010). Cf United States v. Carey, 602 F.3d 738, 741 (6th
Cir. 2010) (stating that “Heller states that the Second Amendment right is not unlimited, and, in

fact, it is speciﬁcally limited in the case of felon prohibitions;” holding that § 922(g)(1) does not

No. 14-5488
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violate the Second Amendment); United States v. Khamz‘, 362 F. App’x 501, 507-08 (6th Cir.

2010) (same).

Thus, Witt’s refusal to return Laubis’s ﬁrearms is not a violation of Laubis’s Second

Amendment rights if her actions were justiﬁed under § 922(g)(9). A “misdemeanor crime of

domestic Violence” under § 922(g)(9) is deﬁned in § 921(a)(33)(A)(ii):

(33)(A) Except as provided in subparagraph (C), the term “misdemeanor crime of
domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon, committed by a current or former spouse,
parent, or guardian of the victim, by a person with whom the victim shares a child
in common, by a person who is cohabiting with or has cohabited with the victim
as a spouse, parent, or guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.

Laubis pleaded guilty to “Harassment with physical contact pursuant to KRS
§ 525.070(1)(a), which provides: “(1) A person is guilty of harassment when, with intent to
intimidate, harass, annoy, or alarm another person, he or she: (a) Strikes, shoves, kicks, or

otherwise subjects him to physical contact.”

On appeal Laubis argues merely that Witt’s “arbitrary seizure was with[out] precedent or
authority, in that Lautenberg had never been applied to misdemeanor harassment.” App’s Br. at
9. In the district court Laubis argued that Witt’s interpretation and application of § 922(g)(9) to
him violated his Second Amendment rights because he was not convicted of a domestic crime

involving “physical force.” At the time, this argument had the support of our majority opinion in

No. 14-5488
LA UBIS v. WHT

Casrleman.2 See Castleman, 695 F.3d at 585-93. After the Supreme Court’s reversal of that
decision, it is now clear that a couviction pursuant to KRS 525.070(1)(a) would qualify as a
misdemeanor crime of dOmestic violence under § 922(g)(9) because “physical contact” meets the
“physical force” element as deﬁned in § 921(a)(33)(A)(ii). See Castleman, 134 S. Ct. at 1413.
Thus her refusal to return the ﬁrearms on the authority of § 922(g)(9) did not amount to a

constitutional violation.
B.

Laubis also challenges the district court’s diSmissal of his due process claim. But in
order to proceed in federal court with a § 1983 claim for deprivation of property without due
process, “the plaintiff must attack the state’s corrective procedure as well as the substantive
wrong.” Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1984). See Parratt v. Taylor, 451 US.
527 (1981) (holding that in order to seek relief in federal court under § 1983 for property
deprivations by state ofﬁcials, a plaintiff must show that available state procedures were
inadequate); Vicory, 721 F.2d at 1065-66 (applying Parran‘ to the seizure of the plaintiff’s
mobile home trailer as part of a criminal investigation by the county); see also Mitchell v.
Fankhaaser, 375 F.3d 477, 481-84 (6th Cir. 2004) (explaining that Parrai‘t and Vicory apply to
deprivations of property resulting from random, unauthorized acts of state employees).

Therefore, dismissal of this claim was proper.

2 Witt’s conclusion was at odds with the majority decision in Castleman. But it was consistent with the
dissenting opinion’s view. Castleman, 695 F.3d at 593-97. Furthermore, as the Supreme Court noted, the circuits
were split on the question. See Castleman, 134 S. Ct. at 1410.

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No. 14-5488
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C.

Next, Laubis asserts that his weapons were unlawfully seized in violation of the Fifth
Amendment Takings clause when Witt “deﬁed” the Family Court order and refused to return the
ﬁrearms after the DVD was dismissed.3 The Fifth Amendment, made applicable via the
Fourteenth Amendment, provides: “nor shall private property be taken for public use, without
just compensation.” U.S. Const. amend. V. Laubis has not alleged that the purported taking of
his ﬁrearms was for a “public use.” In fact, his complaint alleges that three sheriff‘s deputies
were “keeping them and/or selling them for personal use.” ID# 33. Furthermore, even if Laubis
had properly alleged a takings claim, he failed to establish that he ﬁrst invoked any available
state processes for obtaining compensation and received a ﬁnal decision from the state entity
denying the claim. See Williamson Cnty. Reg ’1 Planning Comm ’1’: v. Hamilton Bank of Johnson
City, 473 U.S. 172, 194-95 (1985); Streater v. Cox, 336 F. App’x 470, 477 (6th Cir. 2009). As
the district court observed, Laubis did not plead that he attempted to enforce the state court order.

The district court did not err in dismissing this claim either.
D.

Laubis challenges the district court’s ruling that Witt in her ofﬁcial capacity was entitled
to sovereign immunity for money damages claims. The district court correctly held that the
ofﬁcial capacity suit against Witt should be treated as a claim against the county itself,
Shamazeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003); Barber v. City of Salem, Ohio,

953 F.2d 232, 237 (6th Cir. 1992); Leach v. Shelby Cmy. Sheriﬂ; 891 F.2d 1241, 1244 (6th Cir.

1989). However, the district court incorrectly stated Witt was entitled to sovereign immunity,

3 Laubis points out that the ﬁrearms were lawfully surrendered by him and that the seizure occurred when
Witt refused to return them despite the family court order.

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No. 14-5488
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since (1) counties are not entitled to Eleventh Amendment immunity, Pucci v. Nineteenth Dist.
Court, 628 F.3d 752, 760 (6th Cir. 2010); (2) nor are they immunized from § 1983 liability by
state sovereign immunity. Wilson v. Elliott County, 198 F. App’x 471, 474 (6th Cir. 2006) (per
curiam). Nonetheless, as the district court correctly held, Laubis failed to allege that a custom or
policy that was the “moving force” behind Witt’s conduct, so municipality liability does not
come into play. See Monell v. Dep ’t of Soc. Servs. , 436 U.S. 658, 690-91 (1978); Heyerman v.
County of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012); Shamazeizadeh, 338 F.3d at 556. Finally,
and most importantly, Laubis failed to establish a constitutional violation, so he is not entitled to

money damages or equitable relief.

E.

Given our conclusion Laubis failed to allege any constitutional violation, the question of

qualiﬁed immunity is moot.

III.

For the foregoing reasons, the district court’s judgment is AFFIRMED.

